Offlrndl Caw Bc^uol SJibtarj)
KF1249.BC59L4UniVerS"yLibrary
LeiH>nHXS?.,?n ,he law of tor«s determ
3 1924 019 350 325
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the Cornell University Library.
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LEADING CASES
ON THE
L AW OF TORTS
DETERMINED BY THE COURTS OF
AMERICA AND ENGLAND.
WITS NOTES.
BY
MELVILLE M. BIGELOW-
BOSTON:
LITTLE, BEOWN, AND COMPANY.
1875.
Entered according to Act 8f Congress, in the year 1875, by
Melville M. Bighelcw,
in the Office of the Librarian of Congress, at Washington.
Ml
*4
Press of John Wilson and Son.
TO
HENRY W. PAINE, LL.D.
PREFACE.
The work now offered to the profession is the result of an
attempt to furnish for ready service a collection of recognized
authorities on the existing law of Torts, with a consideration of
the rise and growth of the law as thus represented, followed by
a statement in greater detail of its present aspect.
The author has confined himself to a consideration of the
typical branches of the subject, omitting bailments, marine torts,
statutory torts, and the torts of persons under legal disability.
To introduce these with proper fulness would have required such
a curtailing of the main branches of the subject as to destroy
in a great measure the practical usefulness of the book. They
were therefore omitted and reserved for future consideration,
should it ever become desirable to add another volume to the
work. It may be observed, however, that the topics mentioned
are often incidentally presented, and their leading doctrines
touched upon.
Even with these omissions, it was not possible to consider in
detail all of the law relating to the main branches of the subject.
Slander, Trespasses upon Property, and Negligence have each
been treated in text-books as large as the present volume. As
to these subjects, and as to one or two others, the author was
governed by the same considerations as in deciding upon the
omissions above mentioned. It was thought best to present the
central and prominent features of these topics in full detail, leav-
ing the rest for incidental mention and illustration.
In one word, it is the object of this book to present a full and
complete view of the essential doctrines of the law of Torts. To
this end, the notes will be found to contain many minute discus-
sions of particular points in the law ; especially of such as have
VI PREFACE.
been the subject of conflict. If there has been any success in
proportion to the amount of labor bestowed upon this attempt to
bring out in clear relief the great doctrines of the subject, the
work will have accomplished its chief purpose.
The author confesses to a partiality for that portion of his
work which, in this swift age, will pass- unnoticed by many of
those into whose hands the book may chance to fall. The prac-
ticing lawyer of to-day has little time, and possibly less inclina-
tion, for historical study ; and the old law, having lost much of
its force as authority, is rapidly passing into oblivion. To acquire
a knowledge of the crabbed books which were the only sources
of authority to the lawyers of the olden time is now too great a
sacrifice. The importunity of business forbids it ; and the multi-
tude of modern books, in their improved dress and English text
of the day, renders it for most purposes unnecessary. May not
the author hope that the difficulty of tracing the course of the old
authorities upon one branch of law has now, to some extent, been
relieved ? And if so, may he not also indulge a well-grounded
hope that he has done something to arrest the tendency to wholly
brush aside the law of the past ? This is in part the object of
the historical notes.
But there is a growing class of persons devoted more or less to
the study of the law, rather than to its practice ; and for such
the historical notes are especially intended.
The notes of which we speak are given as introductory to
those on the existing law, but separate from them, so that no one
may be led to suppose that the present law is referred to. They
are prefixed to each of the subjects into which the book is
divided, and will show how those subjects first took form in the
English Courts, after the Norman Conquest, and their subsequent
growth and development.
In carrying out the design of presenting a set of authorities
ready for present use, the author hopes to have performed a use-
ful service. Something more has been done than to present a
considerable number of leading cases in the text. Many short
reports of cases will be found in the notes. This feature in other
books has met with wide approval, particularly among the great
number of the profession who have not ready access to large
libraries; and this is sufficient to justify the labor and care be-
stowed upon it here.
PEEFACE. Vll
For the arrangement of the work, in its outline, the author
is much indebted to the suggestions of Mr. Oliver Wendell
Holmes, Jr. The valuable contribution of that gentleman on
The Theory of Torts in the " American LaAv Review," for July,
1873 (7 Am. Law Rev. 652), has been studied, and the arrange-
ment there elaborated has exercised a controlling influence on the
one adopted in this book ; the differences between the two being
more of detail than of substance. The division of duties into
the classes of persons upon whom they devolve and to whom
they are owed has been omitted as too subtle for a book of lead-
ing cases ; but the division of topics is substantially adopted.
Mr. Holmes's chart will be found on p. 663 of the 7 Am. Law
Rev., and may be compared with the following, which represents
the order of subjects in this work: —
First class. — Deceit.
Slander and Libel.
Malicious Prosecution.
Conspiracy.
Second class. — Assault and Battery.
False Imprisonment.
Seduction and Enticing away.
Trespasses upon Property.
Conversion.
Nuisance.
Dangerous Animals and Works.
Obstructing and Diverting Water.
Support of Ground and Buildings.
Third class. — Negligence.
The present opportunity is taken to tender acknowledgments
also to Mr. Green, Lecturer on Torts in the Boston University
Law School, for many valuable criticisms and suggestions in the
progress of the work ; and to Dr. Wharton and Messrs. Shear-
man and Redfield, whose works on Negligence have been of
service in the preparation of the last and largest topic of this
volume.
M. M. B.
Boston, September 1, 1875.
vm
ADDENDA.
On p. 113, near top of second column, add Miller v. David, Law R. 9 C. P.
118, as to special damage.
On p. 193, near top of first column, add, after " Paullus," lib. 1.
On p. 231, at end of the citations in the middle of first column, add Common-
wealth v. White, 110 Mass. 407.
On p. 439, at the end of the citations in the middle of the second column, add
Perham v. Coney, 117 Mass. 102 ; and, after the next citation (Johnson v. Weed-
ham), add Harvey v. Epes, 12 Gratt. 153.
On p. 600, near top of first column, add, after "Christie v. Griggs, 2 Campb.
79," See also Roberts v. Johnson, 58 N. Y. 613.
On p. 721, at the end of the paragraph closing near the foot of the second
column, add See Carroll v. Staten Island R. Co., 58 N. Y. 126.
Add the following at the foot of p. 616, making a reference from the para-
graph ending near the top of the first column : Further, it has never been
objected to the liability of an agent or servant to third persons for misfeasance
that the act was a breach of contract by him with his principal or master. See
Story, Agency, §§ 308 et seq.; Lane v. Cotton, 12 Mod. 488; Bell v: Josselyn,
3 Gray, 309; New York, &c, Tel. Co. v. Dryburg, 35 Penn. St. 298, 303.
CONTENTS.
Page
Table of Cases Reported , xv
Table of Cases Cited x;x
Deceit ... \-12
Pasley v. Freeman, leading case 1
Note on Deceit generally 16-42
Historical aspects of actions of deceit 16-20
Knowledge of falsity, including misrepresentations of
agents 20-35
Intention of defendant 35-37
Acting upon the misrepresentation 37-39
Representations concerning solvency 39-42
Malaehy v. Soper, leading case 42
Note on Slander of Title 54-59
Marsh v. Billings, leading case 59
Sykes v. Sykes, leading case 66
Note on Trade-marks 66-72
Slander and Libel 73-177
Peake v. Oldham, leading case 73
Brooker v. Coffin, leading case 77
Ward v. Clark, leading case 81-
Carslake v. Mapledoram, leading case 84
Lumby v. Allday, leading case 87
Thorley v. Kerry, leading case 89
Note on Actionable Words 99-113
Historical aspects of the subject 99-101
Doctrine of rniiiori sensu 101
Imputation of indictable offence 102-104
Imputation of contagious or infectious disorder . . . 105
Imputation affecting plaintiff in his office or profession . 105-106
Imputation tending to the disherison of the plaintiff . . 106-107
Libel 107-112
Truth of charge 112-113
Non-actionable words 113
X CONTENTS.
Paoe
Slander and Libel, — continued.
Chalmers v. Payne, leading case 113
Note on Malice in Law 116-121
Hastings v. Lusk, leading case 121
Bromage v. Prosser, leading case 131
Toogood v. Spyring, leading case 139
De Crespigny v. Wellesley, leading case 151
Note on Malice in Fact. Privileged Communications . . . 158-177
Absolute privilege 158
Proceedings before church organizations 162-163
Reports of judicial trials and other public proceedings . 163-169
Master giving character to servant 169-170
Communications made to public authorities 170-174
Publications in vindication of character 174-175
Principle of the cases stated 175
Northampton's Case. Repeating defamation .... 175-177
Malicious Prosecution 178-206
Vanderbilt v. Mathis, leading case 178
Byne v. Moore, leading case 181
Grainger v. Hill, leading case 184
Note on Malicious Prosecution 190-206
Historical aspects of the subject 190-196
Termination of the prosecution 196-197
Want of probable cause 197-203
Malice 203-204
Damage 204-206
Malicious abuse of process . 206
Conspiracy . 207-216
Hutchins v. Hutchins, leading case 207
Note on Conspiracy 210-216
Historical aspects of the subject 210-214
Modern doctrines 214-216
Assault and Battery 217-234
v Stephens o. Myers, leading case 217
Cole v. Turner, leading case ' 218
Elliott v. Brown, leading case 219
Note on Assault and Battery 222-234
Historical aspects of the subject 222-230
Assault 230-231
Battery 231-232
Son assault demesne goo
Master and servant 232-234
False Imprisonment oik-ob.*
Barker v. Braham, leading case 9q-
West v. Smallwood, leading case . 2„7
CONTENTS. XI
Page
False Imprisonment, — continued.
Savacool v. Boughton, leading case 241
Fox i'. Gaunt, leading case 250
Hogg v. Ward, leading case 252
Timothy v. Simpson, leading case 257
Allen v. Wright, leading case 265
Note on False Imprisonment 268-285
Historical aspects of the -subject . 268-272
The arrest 272-275
Arrests with warrant 275-281
Arrests without warrant 281-285
Seduction and enticing away 286-340
Martin v. Payne, leading case 286
Note on Seduction of child 290-305
Historical aspects of the subject 290-291
The fiction of service 291-295
Rights of widow. Daughter in service of third person . 295-304
Return and support of child through confinement. . . 304-305
Lumley v. Gye, leading case 306
Note on Doctrine of enticing to break Contracts .... 325-328
Winsmore v. Greenbank, leading case 328
Note on enticing away and on seducing Wife 333-340
Enticing wife away from husband 333-337
Seduction of wife 337-338
Proof of marriage 338-340
Trespasses upon Property 341-387
Cutts v. Spring, leading case 341
Murray v. Hall, leading case 343
Note on Trespasses upon Property 345-370
Historical aspects of the subject 345-352
Possession and property . . 352-370
Possession as to wrong-doers 352-354
Injuries to Reversion . 354-356
Constructive possession 356-358
Cotenants 358-360
Mesne profits. Entry 360-370
Injuries to personalty 370
Williams v. Esling, leading case 371
Anthony v. Haney, leading case 374
Malcom v. Spoor, leading case 378
Note on what constitutes a Trespass 379-387
Conversion 388-453
Armory v. Delamirie, leading case 388
Bristol v. Burt, leading case 389
Loeschman v. Machin, leading case 393
Xll CONTENTS.
Page
Conversion, — continued.
Donald v. Suckling, leading case "J*
Note on Conversion . . , . , 420-453
Historical aspects of the. action of trover 420-424
Possession and property 424-428
What constitutes conversion 428-453
Assertion of title 428
Sale 428-429
Disposal of qualified interest 429-437
Disposal of part of a chattel 437
Owner allowing another to sell his goods .... 437-438
Surpassing limit of authority 438
Pledging goods 438-439
Appropriating an article to different use from that
intended 439-441
Attachment of goods already levied on .... 441
Where goods are not converted to defendant's use . 441-444
Demand and refusal 444-447
Acts of cotenants 447-453
Nuisance 454-477
St. Helen's Smelting Co. v. Tipping, leading case 454
Rose v. Miles, leading case 460
Note on Nuisance 462-477
Historical aspects of the subject 462-465
Test of public or private nuisance 465
Locality 465-467
Bodily discomfort 467-470
Mental discomfort 470-471
Public nuisances 471-475
Who liable 475-477
Things authorized by statute or municipal license . . . 477
Dangerous Animate and Works 478-505
May v. Burdett, leading case 478
Note on Dangerous Animals and Works 487-505
Injuries by animals 487-492
Foreign law 487-488
Injuries committed contra or secundum naturam . . 488-489
Injuries by domestic animals 489-490
Fences. Escape of animals 490
Killing another's animals. Detaining strays . . . 491-492
Bringing dangerous things upon a man's land .... 492-505
Obstructing and Diverting Water 506-526
Springfield v. Harris, leading case 50Q
Elliot v. Fitchburg.R. Co., leading case 509
Note on Obstructing and Diverting Water 515-526
CONTENTS. xiii
Obstructing and Diverting Water, — continued.
Surface-water 515-522
Foreign law 515-516
Usufruct and reasonable use 516-520
Grant and prescription 520-522
Sub-surface water 522-526
Support of Ground and Buildings 527-558
Thurston v. Hancock, leading case 527
Humphries v. Brogden, leading case 536
Note on Support 548-558
Lateral support of ground and houses 548-553
Support of contiguous houses 553-555
Party walls 555-556
Subjacent support 556-558
Negligence 559-732
McCully v. Clark, leading case 559
Dixon y. Bell, leading case 568
Hammaek v. White, leading case 570
Byrne v. Boadle, leading case 578
Note on Negligence generally 584-601
Historical aspects of the subject 584-589
Negligence as a question of law or of fact 589-596
Presumptions of negligence 596-601
Thomas v. Winchester, leading case 602
Note. To whom Wrong-doer liable 608-626
Causation 608-613
Breaches of contract 613-626
Fisher t\ Thirkell, leading case 627
Hilliard v. Richardson, leading case 636
Note. Who liable 653-660
Landlord and tenant 653-654
Contractors 654-657
Sub-contractors 657
Servants employing others 657-658
Servants under double masters 658
Bank directors and bank officers 659
Builders and architects 659-660
Sweeny v. Old Colony & N. R. Co., leading case 660
Indermaur v. Dames, leading case 668
Roberts v. Smith, leading case 684
Farwell v. Boston & W. R. Corp., leading case 688
Note on Care of Premises 697-710
Persons (not servants) injured while on defendant's
premises 697-706
Servants injured on master's premises 706-709
Servants injured from negligence of fellow-servants . . 709-710
XIV
CONTENTS.
Page
Negligence, — continued.
Sutton v. Wauwatosa, leading case 711
Note on Contributory Negligence 721-732
Ground of doctrine 721-725
Burden of proof : 725-726
Identification or imputability 726-732
Passenger and carrier 726-729
Parent and child 729-732
Index ' 733
TABLE OF CASES REPORTED.
Page
AlLDAY, LtJMBY V 87
Allen v. Wright 265
Anthony v. Haney 374
Armory v. Delamirie 388
Barker v. Br\ham 235
Bell, Dixon v 568
Billings, Marsh v 59
Boadle, Byrne v 578
Boston & W. R. Corp., Farwell v 688
boughton, savacool v 241
Braham, Barker v 235
Bristol v. Burt 389
Brogden, Humphries v 536
Bbomage v. Prosser 131
Brooker d. Coffin 77
Brown, Elliott v 219
Burdett, May v 478
Burt, Bristol v 389
Byne v. Moore 181
Byrne v. Boadle 578
Carslake v. Mapledoram 84
Chalmers v. Payne 113
Clark, McCully v 559
Clark, Ward v 81
Coffin, Brooker v. 77
Cole v. Turner 218
Cutts v. Spring 341
Dames, Indermaur v 668
De Crespigny v. Wellesley . 151
Delamirie, Armory v 388
XVI TABLE OP CASES REPORTED.
Dixon ». Bell
Donald v. Suckling
Page
568
394
Elliot v. Fitchburg R. Co 509
Elliott v. Brown
Esling, Williams v °'1
Farwell i). Boston & W. R. Corp 688
Fisher v. Thirkell "-'
Fitchburg R. Co., Elliot v 509
Fox v. Gaunt 250
Freeman, Pasley v 1
Gaunt, Fox v 250
Grainger v. Hill .... 184
Greenbank, Winsmore v. . . . . 328
Gye, Xumley v. ,.j. 306
Hall, Murray v 343
Hammack b. White 570
Hancock, Thurston v 527
Haney, Anthony v 374
Harris, Springfield v 506
Hastings v. Lusk 121
Hill,. Grainger v. . . 184
Hillard v.. Richardson 636
Hogg v. Ward . 252
Humphries v. Brogden . . 536
Hutchins v. Hutchins 207
Indermaur v. Dames 668
Kerry, Thorley v % 90
Loeschman v. Machin 393
Lumby v. Allday 87
Lumley v. Gye 306
Lusk, Hastings v 121
McCully «. Clark 559
Machin, Loeschman v. ....... 393
Malachy v. Sopisr 42
Malcolm v. Spoor 378
Mapledoram, Carslake « 84
Marsh v. Billings 59
Martin v. Payne 286
Mathis, Vanderbilt v 178
TABLE OF CASES REPORTED. Xvii
Page
May v. Burdett 478
Miles, Rose v 4g0
Moore, Byne v 181
Murray v. Hall 343
Mykrs, Stkphens v 217
Old Colony & N. R. Co., Sweeny v 660
Oldham, Peake v 73
Pasley r. Freeman 1
Payne, Chalmers v 113
Payne, Martin r . 286
Peake v. Oldham 73
Prosser, Bromage r 131
Richardson, Hillaud v 636
Roberts t. Smith 684
Rose c. Miles 460
St. Helen's Smelting Co. v. Tipping 454
Savacool v. Boughton 241
Smallwood, West r 237
Smith, Roberts c 684
Soper, Malachy v 42
Spring, Cutts v 341
Springfield 1: Harris 506
Spoor, Malcolm v. . . . • 378
Spyring, Toogood v 139
Stephens v. Myers 217
Suckling, Donald v 394
Sctton v. Wauwatosa 711
Sweeny v. Old Colony & N. R. Co 660
Sykes v. Sykes 66
Thirkell, Fisher v 627
Thomas v. Winchester 002
Thorley v. Kerry 90
Thurston v. Hancock 527
Tipping, St. Helen's Smelting Co. v 454
Toogood v. Spyring 139
Turner, Cole v 218
Vanderbilt v. Mathis 178
Ward v. Clark 81
Ward, Hogg v 252
6
XVlii TABLE OP CASES REPORTED.
Page
71 1
Wauwatosa, Sutton v
Wellesley, De Crespigny v
West v. Smaixwood
White, Hammack v
Williams v. Esling
Winchester, Thomas v
wlnsmore v. greenbank
Wright, Allen v
151
237
570
371
602
328
265
TABLE OF CASES CITED.
A.
Andrews v. Morris
PAGE
279
Anthony v. Haney
379,
381
382
PAGE
v. Lapham
512
514
Abel v. Sutton
449
Applebee v. Percy -
490
Abrahams v. Kidney
293
295
Armory v. Delamirie
385
425
Absor c. French
380
Armstrong v. Lancashire
Ry.
Co.
726,
Ackroyd r. Smith
354
728
ActonY Blundell 522,
523,5!
54.5
Arnold v. Norton
490
Adams r. Adams
3*6
v. Steeves
276
v. Bafeald
312
322
Arrowsmith v. Le Mesurier
273
v. Emerson
357
Arthur v. Gayle
447
v. Lawson
108
Ashby v. White
474
r. Lisher
199,
200
Asher v. Whitlock
352
353
v. Page
215
Ashley v. Harrison
313,
317
324
v. Rivers
386
v. Wolcott
526
Ad die v. Western Bank Law
R.
35
Ashlin v. White
39
Adesco Oil Co. v. Gilson
707
Ashworth v. Stanwix
707
708
Adler v. Fenton
214
Astley v. Younge
161
Agnew v. Johnson
453
Atkinson v. Matteson
276
Aikin v. Buck
358
Attorney-General v. Cleaver
4G9
Albany v. Cunliff
617
v. Siddon
25
Albert v. Bleecker St. R.
Co.
596
Austin v. Culpeper
95
Albro v. Jaquith
706
710
v. Great Western
Ry.
Co.
615
Alcorn v. Hooker
112
v. White
85
Aldred v. Constable
428
Ayer v. Bartlett
355
Aldrich v. Howard
470
v. Norwich
476
Alger o. Lowell
723
Ayre v. Craven
106
Allen v. Carter
358
367
Ayre's Case
27
v. Croibot 128,
162
386
387
Axford v. Prior
705
v. Harper
453
v. Hayward
648
B.
v. Thayer
366
v. Wright
284
Babcock v. Kennedy
363
Allerton v. Allerton
25
v. New Jersey
Stock
Allison v. Western R. Co
612
Yard Co.
470
Allsop ». Allsop
104
113
Babson v. Rockport
723
Amick v. O'Hara
492
Bacon v. Sheppard
362
Amory v. Flyn
491
v. Towne
196,
198
203
Amoskeag Manuf. Co. v.
Spear
70
Badgley v. Decker
294
Andre v. Johnson
232
v. Hedges
128
Andres v. Koppenheaver
103
Bageley v. Forder
300
v. Wells 109,
110,
111
168
Bagshaw v. Seymour
38
XX
TABLE OF CASES CITED.
Bailey v. Adams 441
v. Colby 429,430, 434. 435, 436
v. New York 499, 650, 651
Baird v. Wells 515
-.-.Williamson 494
Baker v. Moore 473
v. Portland 714, 719
Ball v. Nye 493, 498
v. Kay 470
Balnie v. Hutton 370
Balston v. Bensted 522, 524
Baltimore Ins. Co. v. Dalrymple 434
Baltimore & O. K. Co. v. State 595
Baity v. Duxbury 651
Bamford v. Turnley 465, 466, 467
Banfield v. Whipple 425
Banister v. Banister 107
Barbee v. Armstead 335
Barber v. Dennis 303
Barker v. Braham 279, 280
Barley v. Walford 20
Barnard v. Poor 499
Barnardiston v. Chapman 451
Barnes v. Allen 335, 336, 337
v. Ward 665, 672, 698, 699, 714
Barnett v. Guildford 301
BarnstaMe v. Thacher 352, 353
Barr v. Gratz 352
Barrett v. Warren 370, 385, 447
Barrow v. Mason 198, 203
Barry v. Croskey 38
Bartlett v. Brown 202
v. Hooksett 476
v. Tucker 22
Bartley v. Richtmyer 291, 292, 293,
294, 297
Barton v. Burton 449, 451
v. Holmes 120
v. St Louis &c. R. Co. 595
v, Williams 449
Bartonshill Coal Co. v. MeGuire 708,
709
v. Reid 708, 709
Barwick v. English Joint-stock
Bank 29, 31, 32, 34
Bassett v. Salisbury Manuf. Co. 498,
525
Basten v. Carew 279
Batchelder t>. Heagan 499
Bateson v. Green 541
Bauer v. Clay 198, 281
Baum v. Clause 112
Baxter v. Taylor 355, 379
Bayly v. Merrel 5, 12
Baynes v. Brewster 282
Bayntine v. Sharp 480
Beach v. Furman 247
v. Hancock 231
v. Ranney 113
Beal v. Robeson
Bealey v. Shaw
Beardmore v. Treadwell
Bears v. Ambler
Beatson v. Skene
Beaulieu v. Portland
Beavers v. Winner
Beck v. Stitzel
202
513
466, 469
476, 636
174
709, 710
. 476
103, 104
Beckwith v. Philby 282, 283, 284
Bedford v. Bagshaw 38
Beers v. Housatonic R. Co. 725
Behn v. Kemble 20
Bell v. Hansley _„„, : 232
v. Josselyn viii, 616
v. Locke 66
v. Pearcy 198
v. Stone 48, 95, 96
v. Twentyman 495
Bellefontaine &c. R. Co. v. Snyder 729
Bellinger v. New York Cent. R. Co. 498
Bellows v. Sackett 502
Belton v. Baxter 596
Bemis v. Upham 515
Benedict v. Howard 453
Btnford v. Sanner 216
Bennet v. Bullock 359
Bennett ». Allcott 289, 296
i). Clemence 359, 360
v. Deacon 170
v. Judson 21, 24, 25
v. Smith 334, 335
v. Williamson 107
Benton v. Piatt 72
Bernhard v. Rensselaer & S. R. Co. 595
Besebe v. Matthews 196
Bibby v. Carter 354
Biddle v. Bond 426
Bigelow v. Jones 359
v. Newell 515
v. Reed 714
Billings v. Wing 103
Billiter v. Young 428
Binks v. South Yorkshire Ry. 665
Birch v. Benton 104
Bird v. Great Northern Ry. Co. 581
v. Holbrook 491, 698, 714, 723
v. Jones 274
v. Randall 317
Birge v. Gardiner 698, 726, 729
Birt v. Barlow 338, 839, 340
Bishop v. Bedford Charity 475, 636
v. Latimer 165
Blackburn v. Mackey 299
Blackford v. Dod 199
Blackham v. Pugh 174
Blackman v. Simmons 480, 484
Blagg v. Sturt 172
Blake v. Barnard 230
v. Ferris 651
TABLE OP CASES CITED.
Blake v. Jerome 380
c. Lanyon 312, 314, 324, 334
v. Stevens 165
Blakemore v. Bristol 70S
Blanehard v. Baker 514
Blin v. Campbell 585
Bliss v. Greelv 5°5
r. Hall ' 467
Blofeld v. Payne 66, 71
Blood v. Nashua & Lowell R. Co. 473,
474
i . Palmer 431
Bloodworth v. Gray 105
Bloom v. Bloom 103
Bloxam r. Hubbard 445
r. Sanders 416, 433, 437
Blunt r. Little 202, 338
Blyth v. Birmingham Water-works
Co. ' 503
r. Topham 700
Bodwell r. Osgood 160, 205
Bois r. Bois 48
Boland r. Missouri R. Co. 729
Bokh i). Smith 665, 675, 701
Bold r. Bacon 49
Boles i\ Pinkerton 232
Boiling v. Whittle 381
Bond r. Wilder 3S6
Bonesteel r. Bonesteel 281
Bonomi r. Backhouse 5v49, 550, 551,
552, 557
Booraem v. Crane 445
Borden v. Fitch 245
Bostick v. Rutherford 203
Boston v. Tatham 102, 112
B .?ton Bank v. Reed 363
Bosworth v. Swansey 712, 722
Boughton c. Coventry 93
Bowditch v. Bakhin 282
Bowen r. Fenner 437
r. Lake Erie Tel. Co. 621, 622
r. Matheson 215
Boyd v. Cross 196, 198, 203
Boyle v. Brandon 295
Bracket* v. Lubke 657
Bradburn v. Great Western Ry. Co. 327
Bradish v. S< henck 357
Bradley v. Copley 424
v. Methnen 95
v. Mutual Benefit Life Ins.
Co. 719
Bradt v. Tawsley 113
Brady v. Whitney 440
Brannock v. Bouldin 216
Brass v. Maitland 676
Braveboy v. Cockfield 198, 203, 205
Bredin v. Bredin 216
Breese r. United States Tel. Co. 623,
624
Brewer r. Dyer 623
Bridge v. Grand Junction Ry. Co. 724
Bridges v. Hawkesworth 426, 427
i Brierly v. Kendall 399, 400, 436
I Briggs r. Oliver 597
Brimmer v. Long Wharf 352
I Brinsmead v. Harrison 440
Bristol p. Burt 429
Brittain v. Kinnaird 279
Broad i: Ham 198, 200
Broadbent v. Ramsbotham 496, 516,
522, 526
v. Wilkes 549
Brock v. Copeland 480, 482
r. Stimson 285
Brockway v. Crawford 283
Brockwell's Case 25
Brokaw v. New Jersey R. Co. 35
Bromage v. Prosser 114, 118
Bromley v. Coxwell 441
c. Wallace 337
Bronson v. Southbury 729, 730
Brook v. Montague 127
v. Rawl 54
Brooker i>. Coffin 103, 104
Brooklyn White Lead Co. v. Ma-
sury 70
Brooks v. Curtis 556
Broughton v. Wellington 369
Brow c. Hathaway 172, 173
Brown v. Accrington Cotton Co. 655
v. Best 502
v. Carpenter 491
v. Chadsey 281
v. Collins 498
v. Croome 117, 175
v. Eastern, &c, Ry. Co. 729
v. European, &c, R. Co. 730
v. Hoburger 491
v. McGregor 728
v. Manter 352, 379
v. New York Central R.
Co. 728
t'. Ramsey 292
v. Randall 203
v. Robins 557
v. Windsor 552
Brubaker v. Paul 232
Brushaben v. Hegeman 272
Bryan v. Baldwin 439
Brydon v. Stewart 687
Buckley v. Gross 425
v. Leonard 490
v. Wood 161
Buckmaster i\ Mower 429, 436
Buel v. New York '-•>
Buell v. Chapin 596
Bulkelev v. Smith I'9
Bulkely" u.Welch 434
XX11
TABLE OP CASES CITED.
Bulkley v. Dolbeare
356
v. Storer
215
Burbank v. Crooker
431, 432
Burgess v. Gray
646, 655
v. Hills
71
Burhans v. Sanford
203
Burke v. Bell
285
v. Brooklyn R. Co.
730
v. Savage
426
Burling v. Read
384
Burlingame v. Burlingame
198
Burnaps v. Albert
204
Burnes v. Pennell
26
Burns v. Poulsom
35
Burratt v. Price
277
Burrows ». March Gas Co.
611
v. Stoddard
352
Burt v. Moult
449
v. Place
197
Burton v. Fulton
215
Bush v. Steinman 641, 642, 643, 644,
645, 646, 647, 648, 649, 650, 651,
652, 653, 654
Bushell v. Miller 443, 444
Busst v. Gibbons 197
Butcher v. Butcher 352
Butler v. Butler 301
v. Duncomb 299
v. Peck 497
Butterfield i>. Forrester 724
v. Western R. Corp. 593
Button v. Hudson River R. Co. 726
Buxendin v. Sharp 480
Byne v. Moore 204
Byrne v. Boadle 596
Cable v. Cooper
245
Caffeen v. Brunton
70
Cairnes v. Bleecker
438
Caledonian Ry. Co. ». Sprot
551
Calkins v. Barzer
499
5Q3
v. Sumner
162
Call v. Allen
477
Callager v. Piper
710
Callahan v. Bean
729
Calvert v. Aldrich
557
Cameron v. Lightfoot
279
Camp v. Church Wardens
657
v. Homesley
359
Campbell v. Carter
336
v. Spottiswoode 55
113
,120
v. Stakes
440
Candee v. Deere
70
Cane v. Golding
51
Cannon v. Hatcher
355
Card v. Case 487,
488
489
Cardival v. Smith 196, 197, 203
Carey v. Buntain 357
Carl v. Ayers 198
Carleton v. Franconia Iron Co. 704,
705
Carley v. Wilkins 20
Carlisle v. Garland 447
Carnfoot v. Fowke 29
Carnegie v. Morrison 623
Carpenter v. Hale 438
v. Tarrant 102
Carpentier v. Mitchell 359
Carpue v. The London and Brigh-
ton Ry. Co. 574, 581
Carr v. Hood 168
Carratt v. Morley 277, 279, 280
Carrington v. Taylor 314
Carroll v. Minnesota Val. R. Co. 596
v. Staten Island R. Co. viii
Carstairs v. Taylor 493, 495
Carter v. Kingman 428, 429
v. Towne 610
Cartier v. Carlile 70
Cartwright v. Green 427
Case v. Boughton 20
v. De Goes 361, 362
v. Mark 585
Cassidy v. Stockbridge 723
Castrique v. Behrens 215
Caswell v. Worth 708
Catherwood v. Caslon 339
Catlin «. Hills 726
Cavey v. Ledbitter 467
Cazeux v. Meli 38
Chadwick v. Trower 543
Chalmers v. Payne 108
Chambers v. Bedell 382
v. Caulfield 337, 338
v. Donaldson 352
Chandler v. Ferguson 446
Channon v. Lusk 453
Chapman v. Dyett 279
v. Erie R Co. 709
v. New York & N. H.
R. Co. 728
■v. Rothwell 665, 675, 6S0,
704
Charless v. Rankin 553
Chase v. Fish 279
v. Silverstone 525
Chasemore v. Richards 524, 525
Chatfield v. Wilson 517, 518, 519
Chauntler v. Robinson '" 476, 554, 636
Cheeseborough v. Green 557
Cheesman v. Exall 426
Cheetham v. Hampson 476, 636
Chegaray v. Jenkins 278
Cherry v. Colonial Bank 22
v. Stein 558
TABLE OF CASES CITED.
XX111
Chester v. Diekerson
25
Chicago o. Dermody
710
v. Robbins
$r>5
v. Starr
729
Chicago R. Co. r. Ward
709
Chicago &c. R. Co. r. Gregory 729
v. Tan Patten 725
Chicago & A. R. Co. r. Gregory 723
Chicago &■ Xorth-western R. Co.
v. Sweeney 725
Chicago & R. R. Co. v. McKean 723
Chichester v. Lethbridge 472
Child l-. Affleck 150, 169
Childers r. Wooler 20
Chinery r. Viall 399, 400, 433. 434,
436
Christie v. Griggs 572. 573, 581, 600
Chubb v. Flanaghan 112
Cincinnati Gazette Co. e. Timber-
lake 167
Clare i: National Citv Bank 600
Claflin v. Boston & L. R. Co. 441
Clark r. Chamberlain 428
r. Cleveland 276, 277
c. Dearborn 436
r. Everett 196
r. Fitch 291
v. Foot 499, 502
v. Frr 635
r. Gilbert 434
v. Rideout 428
r. Whitaker 428
v. Wilson 428
Clarke r. Dickson 30, 38
v. Holmes 680
Clason v. Rankin 359, 360
Cleeve v. Mahony 469
Clemens v. Clemens 719
Cleveland r. Citizens' Gas Co. 470
Cleveland R. Co. v. Rowan 726
Cleveland &c. R. Co. v. Terry 726
Clifford r. Brooke 42
Chnton v. Myers 519
Coats r. Holbrook 66, 70, 71
Cobbett v. Grey - 230
Cockayne v. Hodgkisson 174
Cockcroft v. Smith 220, 221
Cockerham r. Nixon 490
Codman v. Winslow 352
Coffev r. Wilkerson 429, 436
Cogg'ill v. Hartford 431
Coggs r. Bernard 11, 14, 396, 409,
411, 414
Cohen v. Morgan 280
Colburn v. Richards 512, 513
Colby r. Reynolds 104
Cole t. Curtis 198, 202
c. Maundy 382
v. Stewart 355
Colegrove v. New York
R. Co.
Cole Silver M. Co. v.
Water Co.
Collen e. Wright
Collett r. Foster
Collins v. Evans
r. Yewens
Columbus Gas Co
Columbus & I. R. Co. v. Arnold
Commonwealth v. Belgard
v. Child
i\ Horton
v. White
Conant v. Seneca Bank
Congress & E. Spring Co. v. Con-
gress Spring Co.
Collis v. Selden 328, 613, 698,
Congreve v. Morgan 476,
Conhocion Stone Road v. Buffalo
&e. R. Co.
Conner v. New Albany
Connolly v. Boston
Conway v. Nicol
Cook v. Batchellor
i. Castner
v. Charlestown
v. Howard
v. Hull
r. New York Cent. R. Co.
v. State
Cooke v. Howard
v. Wilder 117, 175
Coombs v. New Bedford Cordage
Co. 706, 707, 708
Coon v. Moffitt 305
Cooper v. Barber 502
v. Chitty 370, 425, 428, 429, 447
& N. H.
728
Virginia
525
20, 22, 626
280
20, 23
277
Freeland 469
710
340
101
340
viii
619
70
705
633
476
357
722
338
49
25
477
352
512
595
339
352
Greely
v. Harding
v. Randall
v. Stone
v. Utterbach
v. Willomatt
Copeland v. New England Marine
Ins. Co.
Corby v. Hill 664, 672, 675, 701,
Core v. Morton
Corey v. Butts
Cornfoot v. Fowke
Corning v. Tiny Iron & Nail Fact.
Cornman v. Eastern Counties Ry.
Co.
Cotterell v. Jones
Cotton r. Sharpstein
v. Wood 572, 575, 582,
Coughlin v. Ball
Coughtry v. Globe Woollen Co
101, 107, 108
281
470
168
200, 201
436
692
702
82
714
21
518
702
214
715
597
425
617,
618
XXIV
TABLE OP CASES CITED.
Coulter v. American Express Co. 609,
722
Coupal ». Ward 2S1
Coupey v. Henley 261
Coupland v. Hardingham 702
Cowles v. Coe 215
Cox v. Burbridge 490, 493, 593, 597
v. Callender 365
v. Cook 722
v Lee 108
v. Matthews 552
v. Muneey 304
Coxhead v. Richards 170
Craig v. Ward 25
Crawshay ». Thompson 69, 71, 72
Crepps v. Durden 279, 280
Crissey v. Hestonville Ry. Co. 729
Crocker v. Carson 381
b. Gullifer 429, 431, 436, 439
Croford v. Blisse 83
Croft v. Day 66
Crofts v. Waterhouse 574
Cromwell's Case 84, 130
Crooker v. Bragg 517
Cropp v. Tilney 94
Cropper v. Matthews 481
Crosby v. Leng 233
Crosse v. Gardner 8
Crump v. Lambert 469
Cubitt v. Porter 344, 345, 359, 556
Cuddington v. Wilkins 112
Cuff v. Newark & N. ;Y. R. Co. 475,
.654, 657
Cummings v. Noyes 362
v. Perham 440
Currier v. Lowell 639
Curry v. Walter 160, 166
v. Wright 165, 166
Curtis v. Avrault 496
v. Groat 379
v. Mills 480, 484
o. Mussey 109, 120
Cutler u.'Dixon 160, 161
v. Smith 382
Cutts v. Spring 352, 353, 426
D.
Dabney v. Manning
362
Dain v. Cowing
447,
448
v. Wycoff
201
Dale v. Smithson
70
Dalyell v. Tyrer
616
658
Damon v. Moore
294, 295
302
Daniel v. Champlin
360
Daniels v. Clegg
725
v. Pond
355
Danville, &c, Turnpike Co. v.
Stewart 728
Darby v. Ouseley 108, 113
Dascomb v. Buffalo, &c, R.
Co. 593
Daubigny v. Duval 399, 413
Davenport v. Lynch 215
v. Ruckman 476, 633
Davidson v. Nichols 612, 617
Davies v. Mann 724
v. Williams 305, 384
Davis v. Bemis 25
u. Clancy 355, 356
v. Detroit & M. R. Co. 709
v. Gardner 113
v. Getchell 519
v. Lewis 135
v. Reeves 170, 174
v. Russell 255. 283
v. Tingle 453
Davison v. Duncan 109, 167
Dean v. Peel 287, 288, 289, 291,
292, 295
Deane v. Clayton 698
Deering v. Austin 446
De Forrest v. Wright 626, 652
Delahoussaye v. Judice 502
Delancy v. Root 453
Delano v. Curtis 439, 445
Delaware & H. Canal Co. v.
Clark 70
Delegal v. Highley 160, 164, 198
Delhi v. Youmans 525
De Manneville v. De Manneville 297
Demick v. Chapman 352
Denison v. Cornwell 301
Dennis v. Ryan 204
Dent v. Chiles 446
Deposit Life Assur. Co. ». Ays-
cough 26
Derby v. Reading R. Co. 614
De Rutte v. New York, Albany,
&c, Tel. Co. 621, 622, 623
Deshon v. Bigelow 431
Detroit & M. R. Co. v. Curtis 596
v. Van Stein-
burg 593
Devereaux v. Barclay 441
Dewey v. Osborn 361, 362
Dexter v. Spear 111
Deyo v. Van Valkenburgh 279, 280
Dezell v. Odell 437
Dibdin v. Swan 168
Dicas v. Lawson 115, 116
Dickens v. New York Cent. R.
Co. 595
Dickey v. Maine Tel. Co. 726
Dickinson v. Brown 277
v. Coward 339
TABLE OF CASES CITED.
XXV
Dickinson !•. Grand Junction
nal Co. 528,
r„ Worcester 463,
Didling r. Murray
Dietz r. Langfitt
Dillon r. Langlev
Dilloway p. Turrill
Dimock i . Nuffield
Dinks v. South Yorkshire
Co.
Dixon p. Bell 233, 480,
p. Fawcus
r. Parsons
Dobbs p. Gallidge
Dodd p. Holme 543,
Dodge r. Staev
Dodgson's Case
Dodson r. Mock
Dodwell r. Burford
Doe p. Prosser
Dole p. Lyon
Donald r. Suckling
Ca-
524. 525,
526
496, 497
517
203
447
109
476
429.
Donoghue r. Hayes
Dorland r. Patterson
Dorman p. Kane
Dougberty p. Stepp
Doupe v. Genin
Dowd v. Chicopee
Dowell c. General Steam
Co.
Dowling p. Hemmings
Doyle v. O'Doherty
r. Russell
Dovlev r. Roberts
Drake' r. Wells
Dressier ;■. Davis
Dreux r. Domee
Driggs r. Burton
Duberley r. Gunning
Dubois v. Beaver
Duel r. Harding
Duncan r. Brown
p. Thwaites
Duncombe t>. Randall
Dunham r. Powers
Dunlap v. Snyder
Dunman r. Bigg
Dunn v. Hall 109, 110.
r. Winters
Dunne r. Anderson
Dunston p. Paterson
Darant p. Palmer
Duranty's Case
Durst v. Burton
Dyckman v. Valiente
Dyer r. Talcott
Rv.
701
593, 594
71
170
379
552, 553
476
25
491
231
359, 860
176
434, 437.
439, 452
119
101
441
379
496
729
724
556
162
277
106
381
726
214
203
356,
276.
196,
E.
Eagan p. Fitchburg R. Co. 296
Eager r. Grim wood 293
Eames r. Salem & L. R. Co. 722
Earl r. De Hart 502
Earle v. Hall 638
Eason p. Petway 215
East p. Newman 424
Eastman p. Amoskeag Manuf. Co. 476
Eaton p. Boston & L. R. Co. 611
p. Delaware, &e., R. Co. 704
70, 71
425, 446
20
293
137, 169
165
106
334
431
596, 729
502, 516,
518
635
248
704
Edelsten v. Edelsten
Edgerly p. Wbalan
Ediek v. Crim
Edmonson p. Machell
v. Stevenson
Edsall r. Brooks
p. Russell
Edwards p. Crock
Eldridge r. Benson
Elkins v. Boston & A. R. Co.
Elliot p. Fitchburg R. Co.
Elliott p. Aiken
v. Peirsol
p. Pray
Ellis
359
232
101
165, 166
513
162
491
146
111. li'.s
162, 163
If,*;
276
726
27
25
447
726
702
621, 624
525
490
Roanoke
600
Am. Tel. Co.
t. Duncan
p. Loftus Iron Co.
v. Portsmouth &
R. Co.
p. Sheffield Gas Co. 476, 634,
649, 655, 656
F.lliotson v. Feetham 467, 470
Elsam p. Faucett 338
Elsee p. Galward 620
p. Smith 206, 239
Elwell v. Chamberlin 25
Elwood v. Western Union Tel. Co. 621
Ely v. Ehle 447
Embrey p. Owen 513, 517, 519
Emerson p. Fisk 436
v. Thompson 365, 366
Emery v. Lowell 470
Eno p. Del Vecchio 554, 555
Enos v. Hamilton 471, 474
Eslow p. Mitchell 439
E-tep p. Estep 635
Evans p. Bicknell 39, 42
p. Collins 20
v. Edmonds 21
p. Walton 233, 293, 304, 338
Evansville R. Co. v. Dick 477
v. Hiatt 726
Everett v. Hydraulic Co. 498
p. Salters 429
Evertson t . Miles 20
XXVI
TABLE OF CASES CITED.
Ewald v. Corbett
360
Ewell v. State
339
Ewings v. Walker
440
Ewins v. Calhoun
40
Exchange Bank v. Rice
623
Eyre v. Dunsford
40
F.
Fairbanks v. Kerr
609
Fairman v. Ives
160
Fallenstein v. Boothe
101
Farina v. Silverlock
71
Farmers' Bank v. McKinney
279
Farnsworth v. Storrs
162
Farrand v. Marshall
549,
550
Farrant v. Barnes 611, 672,
673,
676,
679
v. Thompson
436
Farrar v. Beswick
448
449
Farrelly v. Cincinnati
472
Fay 11. Prentice
497
v. Whitman
470
Feital v. Middlesex R.. Co.
722
Feler v. New York Cent. R.
Co.
595
Feltham v. England
710
Fenn v. Brittleston
415
,417
Fennings v. Grenville
453
Fenton v. Dublin Steam Packet
Co. 616
, 655
, 658
Ferguson v. Tucker
334
Fernald v. Chase
441
Fernsler v. Mayer
300
, 301
Ferrin v. Simonds
379
Filbert v. Hoff
359
,360
Filer v. New York Cent. R.
Co.
723
Finch v. Alston
352
First Baptist Church v. Utica & S
R. Co.
470
,477
Fiquet v. Allison
453
Fisher v. Bristow
196
v. Kyle
439
v. Thirkell 475, 476
496
618,
65£
, 655
Fitts v. Hall
440
Fitzgerald v. Jordan
441
Fitzsimmons v. Inglis
609
Flagg v. Worcester
497
Fleming v. Orr
489
Flemington v. Smithers
233
Fletcher w.Rylands 490, 492, 493, 491,
495, 496. 498, '500, 502, 610
Flight v. Thomas 467
Flint v. Pike 159, 163
Florence Sewing Co. v. Warford 427
Flynn v. Hatton 729
Fogg v. Griffin 35
Foley v. Peterborough 338
550
709
231
290, 293, 314
339
Foley v. Wyeth
Ford v. Fitchburg R. Co.
Forde v. Skinner
Fores v. Wilson
Fornev v. Hallacher
Foshay v. Glen Haven
Foss v. Hildreth
Foster v. Charles
Fouldes v. Willoughby
Fountain v. Boodle
Fowler v. Dowdney
Fox v. Hanbury
Francis v. Schoellkopf
Fraser v. Berkeley
Fray v. Fray
Frazier v. Brown
Freeds v. Anderson
Freer v. Cameron
French v. Marstin
v. Taunton Branch R. Co.
476
112
36
442
169
102
450
473
168
108, 109
525
470,
Frierson v. Hewitt
Friend v. Thompson
Frink v. Potter
Frisbie v. Fowler
Frost v. Plumb
Fryer v. Kinnersley
Fullenwider v. McWilliams
Fuller v. Chicopee Manuf. Co,
v. Cook
v. Fenner
v. Wilson
Furman v. Van Size
Fumes v. Smith
G.
446
704
232
593,
596
204
335
723
104
440
170, 175
206
498
205
113
20
303
440
Gainford v. Tuke
102
Gainsford v. Blachford
41
Galena & B. R. Co. v.
Fay
726
Galena & C. R. Co. v.
Yarwood
723
Gallaher v. Humphrey
675
Gallwey v. Marshall
106
Galvin v. Bacon
385,
436
446
Gambling v. Prince
356
Gandy v. Jubber
476
Gannon v. Hargadon
496
497
v. Housatonic R. Co.
710
Gardner v. Campbell
386
v. Slade
170
Garford v. Merk
134
Garr v. Selden
162
Gates v. Loundsbury
386
Gathercole v. Miall
167
, 168
Gaunce v. Backhouse
215
Gaunt ». Fynney
470
Gautret v. Egerton
702
Gaynor v. Old Colony
R. Co
594
TABLE OP CASES CITED.
XXV11
Gee r. Metropolitan Ry. Co. 596
Gentry r. Madden 437
v. Pike 437
George r. Skivington 611, 614
r. Van Horn 302
Gerhard c. Bates 38, 39
Gerrard v. Dickenson 50, 55
Gerrish r. Xew Market Manuf. Co. 517
Gibbert r. Schwenck -232
Gibbons r. Pepper
Gibbs v. Dewey
r. Liverpool Docks
Gibson c. Williams
Gilbert v. Dkkerson
Gilchrist r. Bale
Giles r. Simonds
Gill c. Middleton
Gillespie r. Xewburgh
Gillett v. Johnson
v. Thiebold
Gillham r. Madison Co. R Co
Gillis r. Pennsylvania Ry. Co.
Gillott r. Estabrook
Gilman r. Eastern Rv. Co.
l: Hill
Gilmore v. Xewton
Gladman r. Johnson
Gladwell 0. Steggall
Glassey r. Hestonville
Godson v. Home
Godwin r. Francis
Gold v. Bissell
Golderman v. Stearns
Goodale ». Tuttle
Goodenow v. Tappan
Goodloe r. Cincinnati
Goodtitle v. Tombs
Gordon v. Harper
r. Potter
Gore r. Brazier
Gorman v. Lowell
Gorton r. De Angelis
Gott r. Gaudy
Gould v. Boston Duck Co.
Goulding v. Herring
Graham v. Xoble
v. Peat 342,
v. Smith
Grainger v. Hill 206, 272, 273,
Grammer v. Nixon
Grand June Canal Co. v. Shugar
Grant r. Chase
Graves c. Berden
c. Spier
Gray p. Cookson
r. Durland 302,
v. Harris
v. Pentland
Greasly v. Codling 472,
356,
571, 575
163
705
120
447
334
381
614
593
518, 526, 576
281
496
655
71
709
428
444
490
616
729
146
00
248
112
502
162
525
345, 359
424, 431
300
367
722
178
635
508, 519
55
203
352
301
428
389
526
00S
557
25
280
304
498
172
473
Green v. Button 200, 308, 309, 317.
320, 321
83
109
t\ Stafford
v. Telfair
Greenland v. Chaplin
Greenleaf v. Francis
v. Illinois, &c
Gregg v. Wyman
Gregory v. Derby
Grev r. Cookson
Griffin v. Chubb
c. Coleman
Griffith p. Ogle
Griffiths v. Teetgen
Griggs c. Fraukenstein
Grigsby e. Clear Lake Water
Griswold c. Sedgwick
Grinnell v. Wells
Grizzle v. Frost
Grubb i\ Guilford
24.
Co.
440, 712.
R.
i 11
525
596,
723
722
205
279
203
282
215
292
596
471,
476
276
294, 299
1 08
426
Co.
H.
Haas v. Damon 438
Hackford v. Xew York Cent. R.
Co. 593
Haddrick r. Heslop 199
Haines r. Roberts 557
Haldeman v. Martin 215
Hale e. Clark 386
t. Cranfield 83
Hall v. Corcoran 440, 722
r. Eaton 215
r. Smith 645
c. Suydam 200
Halley v. Stanton 102
Halliday v. Holgate 434, 435, 437, 439,
452
Hamar v. Alexander 40
Hamilton v. Boston 722
r. Goding
r. Lomax
Hammack v. White
Hammond r. Corbett
Hancock v. Stephens
Handy v. Johnson
Hankinson v. Bilby
Hanson v. McCue
Hard v. Vermont & C. R. Co.
Hardcastle v. South Yorkshire Rv
Harding r. Bodman
Hardy t>. Ryle
v. Wheeler
Hargrave r. Le Breton
Harle v. Catherall
714
301
5S2,594
304
101
230
101
525
710
665,
699
161
239
444
138
173
49, 56
X-XV111
TABLE OP CASES CITED.
Harman v. Dcelany 94, 95, 96
v. Gartman 360
Harper K.Indianapolis &c. R. Co. 709,
710
v. Luffkin 304, 338
Harris v. Baker 645
v. Ryding 544, 551, 556
v. Saunders 428
Harrison v. Bush 171, 172
v. Taylor 360
Hart v. Aldridge 323, 324
v. Basset 473
v. Crowley 580
Hart6eld v. Roper 729
Hartley v. Cumraings 312, 314
v. Harriman 483
v. Herring 49
Hartwel v. Cole 82
Harvey v. Crickett 449, 450
v. Epes viii, 439
v. Watson 337
v. Young ■ 5
Haskford v. New York & H. R. Co. 595
Haslem v. Lockwood 428
Hastings v. Liverraore 355
v. Lusk 159, 161
Hatch v. Lane 173
v. Potter 117, 118
Hause v. Cowing 476
Haverstick v. Sipe 558
Hay v. Cohoes Co. 499, 501
v. Leneve 727
Haycraft v. Creasy 21
Haycroft v. Lake Shore R. Co. 729
Hayes v. Waldron 519
Hayland's Case 194
Hayward v. Malachi 46
Hawks v. Patton 120
Heane v. Rogers 437
Hearne v. Stowell 109
Heath v. Hubbard 451
Hedges v. Chapman 254
v. Tagg 292, 293
Helsham v. Blackwood 102
Hemmings v. Smith 338, 340
Henderson v. Broomhead 162
Henkel ». Pape 624, 728
Heriot v. Stuart 59
Herlighy v. Smith 600
Herman v. Brookerhoff 196, 197
Hermance v. James 335, 337
v. Vernoy 379
Hern v. Nichols 23, 24, 25, 32, 34
Herndon v. Bartlett 381
Herring v. Wilmington & Raleigh
R. Co. 595, 600
Herron v. Hughes 215
Hewer v. Dawson 133
Hewitt v. Prime 291
200
298
206
202, 205
168
199
542
201
452, 453
363
600
446
243, 278
431
520
353
54
283
Hewlett v. Cruchley
Heysham v. Heysham
Heywood v. Collinge
Heyward v. Cuthbert
Hibbs v. Wilkinson
Hickman v. Griffin
Hide v. Thornborough
Higgins's Case
Higgins v. Thomas
v. York Buildings
Higgs v. Maynard
Hilbery v. Hatton
Hill v. Bateman
v. Freeman
v. Smith
v. Tupper
v. Ward
Hilliai-d v. Richardson 475, 654, 656
Hills v. Snell 432
Hilton v. Granville 545, 549
v. Whitehead 354
Hinchman v. Richie 215, 216
Hinckley v. Emerson 491
Hingham v. Sprague 355
Hoag v. Hatch 104
Hoare v. Silverlock 160, 167
Hobson v. Todd 372, 373
Hodges v. New England Screw Co. 619
Hodgson v. Scarlett 125, 126, 159
Hoffman v. Union Ferry Co. 723
Hogan v. Cregan 294
Hogg v. Ward 282, 283
Holbrook v. Wight 429
Holburn v. Neal 197
Holcomb v. Rawlins 363, 365
Hole v. Barlow 465, 466, 467
Hollev v. Burgess 103
" v. Mix 276
Hollis v. Wells 301
Holly v. Boston Gas Co. 729
Holmes v. Clarke 708
v. Johnson 161
v. North-eastern Ry. Co. 655,
706
v. Townsend 474
Holroyd v. Doncaster 239
Holt v. Parsons 113
v. Scholefield 81, 103
Homan v. Stanley 656
Homer v. Thwing 439, 441
Honeysberger v. Second Av. R.
Co. 730
Hood v. Palm 215
Hooper v. Lane 277
v. Truscott 117, 118
Hope v, Lawrence 439
Hopkins v. Beadle 81, 82
Hornketh v. Barr 291
TABLE OF CASES CITED.
XXIX
408,
425,
Horsly v. Branch
Houi'k <-. Waehter
Hough v. Doylestown
Houliston v. Smith
Hounsell v. Smyth 665
67(5, 678,
Howe r. Prinn
Howes r. Ball
Howells v. Landore Steel Co.
Howland r. Vincent
Hoyt v. Hudson
Hubbard's Case
Hubbard r. Lyman
v. Town
Hubert r. Groves
Huff v. Bennett
Huges v. Macfie
Humphries v. Brogden
r. Pratt
Humphrey r. Mitchell
Humphreys v. Stantield
Hunter r. Hudson River Iron Co.
Hunt r. Algar
r. Bennett
r. Peake 551, 552
Hunting r. Russell 352
Huntley r. Simson 199
Hurst v. Gwennop 446
Hutcheson r. Peck 335
Hutchinson v. Bell 41
v. Newcastle 709
Hyde r. Xoble 385, 428, 446
i. Stone 447
439
471, 474, 475
526
334
672, 674, 675,
700, 701, 702
105
413
710
c>ys
526
424
426
558
472
109
730
554, 556
23
277
107
25
165
109
Blidge v. Goodwin 607,
Illinois Cent. R. Co. v. Able
r. Baches
v. Buckner
v. Carraher
r. Grabill
Ilott r. Wilkes
Indemaur v. Dames 707,
Indianapolis, &c, R. Co. r. Carr
Ligersoll v. Jones 291, 293, 294,
Ingraham r. Hutchinson
Ionian v. Foster
Insurance Co. v. Tweed
Irish v. Cloves
Irvin r. Fowler
Irwin r. Brandwood
v. Dearman
i. Fowler
Isaac r. Clark
Isaack r. Clarke
Isaacs r. Brand
Israel r. Brooks
Iveson r. Moore 471,
293,
428,
254,
Jackson v. Leonard
v. Pesked
r. Rogers
v. Smithson
Jacobs i\ Seward
James v. Brook
t . Campbell
J'Anson v. Stuart
Jarrett v. Kennedy
Jarvis r. Dean
612
723
725
723
702
470
298
7 08
723
295
or>S
176
610
445
633
106
294
476
439
439
257
203
474
369
355
620
489
358, 359, 360
106
231
94, 108, 112, 113
21
702
Jeffersonville &c, R. Co. v. Bow-
732
24, 32
Rv.
425, 426
354
Co.
v.
V.
V.
V.
V.
V.
21
596
479
206
356
595
170
596
202, 203
445, 446
215, 216
. 724, 726
289
280
698
104
Jeffrey r. Bigelow
Jefferies v. Great Western
Co.
Jeffries v. Williams
Jefts v. York
Jenkins v. Hutchinson
[•. Little Miami R. Co.
c. Turner
Jennings v. Florence
Jepherson r. Drvden
Jetter v. New York & H. R
Joannes r. Bennett
Johnson o. Bruner
Chambers
Couillard
v. Davis
r. Hudson River Co
v. M'Adam
v. Maxon
Patterson
Shields
Smith
Stear 396, 399, 400, 401,
402, '404, 409, 416, 417,
434, 436, 437
v. Tompkins 274
v. Weedham viii
v. Weedman 439
v. West Chester & P. R.
Co.
Jones v. Andover 712,
v. Baker
o. Brown 233, 451
v. Chapman 352, 368
v. Festiniog Ry. Co. 503
v. Fort 445
». Gwynn 204.
v. Hart
v. Jones
r. Kirksey
r. Nicholls
v. Perry
v. Powell
v. Sparrow
723
722
208
205
389
384
196
203
483
466
338
XXX
TABLE OP CASES CITED.
Johnston v. Morrow 104
v. Whittemore 436
Johnstone v. Sutton J 60
Jordin v. Crump 483, 698, 702
Josselyn v. McAllister 203, 281
Judd v. Gibbs 369
Judson v. Bennett 25
Justice v. Wendell 447
K.
Karl v. Maillard 704
Karr v. Parks 729
Kauffman v. Griesemer 497, 502
Kavenaugh v. Janesville 599
Kaye v. Bayley 96
Kearney v. London & Brighton
Ry. Co. 598, 599
Keats v. Hugo 558
Keay v. Goodwin 358, 360
Keeble v. Hickeringall 314
Keith v. Easton 479
Keller v. New York Cent. R. Co. 595
Kelley v. Davis 300
Kelly v. New York 655
v. Tinling 168
v. Wade 489
Kendall v. Stone 54, 56, 57
Kennayde v. Pacific R. Co. 596
Kennedy v. Shea 291
Kerle v. Osgood 105
Kerr v. Mount 278
Kerwhacker v. Railway Co. 714
Kilgore ». Wood 448, 453
Killon v. Power 654
Kimball v. Cushman 659
v. Harman 214, 215
Kincaid v. Eaton 428
Kine v. Sewell 124
King v. Kline 491
v. Lake 93, 95
v. Morris 467
v. Root 112, 113, 117, 120
Kingsbury v. Dedham 477
Kirby v. Boylston Market Asso-
ciation 599
Kirkham v. Sharp 371
Kirkpatrick v. Kirkpatrick 203
v. Lex 215
Kirtley v. Deck 216
Kittredge v. Ellott 490
Klopper v. Bromme 295
Knight v. Coates 451
v. Ebert 702
v. Fox 649, 657
v. Gibbs 174
v. Jermin 195
v. Wilcox 295
Knott o. Morgan 66
Kobbs v. Branscomb
Koenig v. Ritchie
Koehler v. Iron Co.
Krebs v. Oliver
254
174
619
170
Ladbroke v. Crickett 245
Lafayette &c. , R. Co. v. Huffman 729,
1 731
Lake v. King 160, 163
Lampman v. Hammond 304
Lancashire Waggon Co. v. Fitz-
hugh 428
Lancaster v. Greaves 239
Lancaster Canal Co. v. Barnaby 680
Landon v. Emmons 426
Langridge v. Levy 38, 308, 613, 614
Lane ». Cotton 616
Langdon v. Potter 367
Lannen v. Albany Gas Co. 612
Lansing v. Stone 499
v. Wiswall 472
Lasala v. Holbrook 552
Laugher v. Pointer 30, 647, 658
Laumier v. Francis 497
Law v. Harwood 48, 54
v. Wilkin 299
Lawler v. Androse 709, 710
v. Earle 172
Lawrence v. Maxwell 439
«\ State 427
Lazarus v. Waithman 447
Lea v. White 162
Leach v. Woods 353
Leake's Case 424
Leame v. Bray 483, 571, 585
Leavitt v. Fletcher 635
v. Gushee 215
Le Clair v. St. Paul 709
Lee v. Atkinson 415
v. Haley 70
v. Hodges 292
Legg v. Evans 406, 407, 409
Lehman v. Brooklyn 599, 729
Leigh v. Webb 202
Leighton v. Shapley 446
Leland v. Tousey 361, 369
Leonard v. Allen 120
v. New York, Albany,
&c, Tel. Co. 623
v. Wilkin s 491
Leslie v. Lewiston 732
v. Pounds 650
Lesper v. Wabash Navigation Co. 651
Letzler v. Huntington 281
Leutz v. Stroh 491
Levy v. Brannan 203
TABLE OF CASES CITED.
XXXI
Levy !•. Langridge
Leward p. Basely
Lewis v. Clement
r. Few
t . Levy
p, Littlefield
r. Lyman
i. Palmer
r. Walter
Lexington and Ohio
Bridges
Lienow e. Ritchie
Liford's Case 361
Like r. MeKinstry
Lillie v. Price
Limpus i-. London Omnibus Co.
Lindley r. Horton
Lipe r. Eisenlerd
Litchfield v. Ready
Littledale v. Lonsdale
Livermore v. Hershell
Livingston r. Adams
v. McDonald
308, 309
165
162
165, 166, 167
440
278
r. Mott
Lloyd r. Morris
r. Ogleby
Lobdell v. Baker
v. Sto-well
Locke r. Stearns
Lockhardt p. Lichtenthaler
Lockwood v. Dull
Loesehnian p. Machin
Logan r. Murray
oor>
279
164
R. Co. v.
619
355
363, 365, 366
54
123
85
108
303
361
538
216
499
496, 497,
501, 525
355
2 9 ■}
115,
297
598
21, 37
453
24
726
44.5
436
:05
London, B., &c, Ry. Co. v. Walton 723
Long p. Eakle 117, 118
Longmeid r. Holliday 607, 614
Lonsdale r. Littledale 642
Loop r. Litchfield
Loring p. Bacon
Losee r. Buchanan 498, 499
v. Clute 617
Louisville Canal Co. o. Murphy
Louisville R. Co. r. Cavens
Lovejoy r. Murray
Lowe r. Hare wood
r. Miller
Lowell p. Boston & Lowell Ry.
043
617
55 1
500
618
729
710
440
49,51
453
638,
651
Lowell o. Boston & L. R. Co. 638,
639, 640
v. SDauIding 476, 599, 635, 636
Lucas r. Xew Bedford & T. R. Co. 725
r. Trumbull 441
c. Wesson 451
Lumley p. Gye 299, 304, 327, 333, 334
v. Wagner 306
Luther v. Winnisimmet Co. 496, 525
Lygo v. Xewbold 730
Lyman v. Mower
363
Lyme Regis v. Henley
473
Lynch v. Knight
113, 335
v. Xurdin
606, 698, 729
v. Smith
729, 731
Lyons v. Merrick
490
M.
Macarthy p. Younge
McAvoy v. Medina
McCallum r. Boswell
McClaughry p. Wetmore
McCloughan r. Clayton
M'Combie p. Davies
679, 708
427
360
129
254
M^cKinney v. Smith
McLaughlin v. Waite
392, 399, 408,
413, 429
McCulIy c. Clark 585
McCurdy r. Rogers 22
McDaniel v. Baca 56, 57
McDonald v. Bear River Co. 520
r. Snelling 609
McDonnell v. Pittsfield 722
McDonough v. Oilman 476
Macdougall v. Claridge 145
McGill v. Ash 360
McGuire r. Grant 550
Machin u. Geortner 356
Mackay v. Commercial Bank 32, 35
MeKee v. Ingalls 117, 118
McKeon v. Lee 499
520
428
McLeod ». Jones 380, 381
McMahou r. Davidson 600
McManus v. Crickett 691
^MeXeal r. Emerson 381
McXeely v. Driskill 202
McPartland v. Read 425, 428
McPherson v. Daniels 176
Madras Ry. Co. v. The Zemindar 496,
503
Maguire r. Middlesex R. Co. 599
Mahurin p. Harding 20, 22
Maitland p. Bramwell 176
Malachy v. Soper 107
Malcom r. Spoor 38.5
Maloy v. Xew York & H. R. Co. 596
Mangan v. Atterton 731
v. Brooklyn City R. Co. 729
Manly i\ Field 292
Mannan p. Merritt 446
Manning p. Avery 50, 51
Manvell r. Thomson 293
Marcy v. Marcy 359, 360
Marsh v. Billings 69, 71
Marshall v. Cohen 495, 653
p. Davis 385, 447
p. York, &c, Ry. Co. 615, 616
xxxu
TABLE OP CASES CITED.
Marten v. Van Schaick
Martin v. Jett
v. Payne
v. Kiddle
v. Simpson
v. Stilwell
Martindale v. Smith
111
501
291
407
498
103
433
Martinez v. Gerber 233, 304, 327
Mason v. Hill 513, 517
v. Keeling 480, 483, 484, 485
Mathews v. Harsell 426
Matthew v. Crasse 107, 113
Matthews v. Beach 109, 167
v. Fiestel 491
v. West London Water
Works 645, 657
Matthewson v. Perry 304
Matts v. Hawkins 556
Maunder v. Vann 233
May v. Burdett 489, 490, 492, 493,
495, 572
May v. Foster 712
Mayer v. Walter 196, 197, 205
Mayhew v. Herrick 448, 449
v. Norton 357
Maynard v. Boston & Maine R.
Co. 722
Maynell v. Saltmarsh 472
Mayo v. Fletcher 370
Maxwell v. Palmerston 491
Mazetti v. New York 477, 503
Mead v. Hamond 389
v. Orrery 363
Medina v. Stoughton 8
Meigs v. Lister 470
Meldrum v. Snow 431
Mellors v. Shaw 707, 708
Melville v. Brown 378
Mercer v. Sparks 137
Merkle v. Ottensmeyer 203
Merry v. Green 427
Merrifield v. Worcester 519, 526
Merritt v. Earle 714
Mersey Docks v. Gibbs 705
Meyer v. Sehleichter 104
Michael v. Alestree 480, 481, 484, 571,
572, 643
Michiael v. Stanton 710
Mildway's Case 56
Milgate v. Kebble 416, 433, 434, 435,
436, 437
Milhau v. Sharp 471, 633
Millen v. Tawdry 380
Miller's Case 85
Miller v. Brown 206
v. David viii
v. Foley 276
v. Lauboch 502
v. Parish 104
Miller v. Thompson
292
Milligan v. Wedge
648
Millington v. Fox
70, 71
Millman v. Pratt
49
Milne v. Marwood
21
Mill River Manuf. Co. v.
Smith 518
Miner v. Gilmour
519
Mitchell v. Crassweller
580
Mitchinson v. Cross.
203
Mixer's Case 26
Mohney v. Cook 714, 715, 717
Monson & B. Manuf. Co. v. Ful-
ler 493
Montgomery v. Hutchinson 477
Moore v. Goedel 654
v. Meagher 113, 145
v. Stevenson 113
Moran v. Dawes. 294
Moravia v. Sloper 238, 244
Mores v. Conham 414, 416
Morgan v. Marquis 448, 449, 450
v. Vale of Neath Ry. Co. 709,
710
v. Varick 361, 363
Morison v. Salmon 69
Morril's Case 362
Morris v. Langdale 321
v. Miller 338, 339
v. Scott 205
Morse v. James 279
v. Richmond 476
Mortimore v. Wright 299
Morton v. Gloster 440
Mosier v. Caldwell 525
Moss v. Sweet 431
Moulton v. Clapham • 126, 128
v. Sanford 717
Mountney v. Wotten 165
Mowry v. Miller 199, 200
v. Whipple 198
Mullen v. St. John 598
v. Strieker 558
Mulligan v. Curtis 729, 730
v. Elias 470
Mulvehall v. Millward 291
Mumford v. McKay 447
Mundell v. Hugh 379
Munger v. Tonawanda 490
Munn v. Reed 729
Munroe v. Luke 362, 367
Murchie v. Black 552
Murgoo v. Cogswell 491
Muriel v. Tracy 191, 212
Murphy v. Brooks 698
v. Deane 721, 722, 724, 726
Murray v. Hall 359, 360, 452
v. Long 179
v. South Carolina Ry. Co. 692
Myers v. Dodd 490
TABLE OF CASES CITED.
XXX1U
N.
Napier v. Bui winkle 558
Nash v. Mosber 885, 447
National Exchange Co. v. Drew 27, 38
Xeate r. Ball 431
Needham r, Rawbone 443, 444
Neiler p. Kelley 436
Nelson v. Borchenius 120
Nettlt'ton v. Sikes 381
Xewall r. Jenkins 215
New Brunswick Ry. v. Conybeare 27
Newhouse v. Miller 725
New Jersey Exp. Co. p. Nichols 723
Newkirk r." Sabler 3S0, 382
Newman r. Alvord 70
v. Zachary " 321
New River Co. p. Johnson 525
Newsom r. Jackson 39, 40, 41
Newton r. Stubbs 83
New York & W. Tel. Co. r. Drv-
burg 616, 619, 628
Nickleson r. Strvker 292
Nicklin r. Williams 551
Nichols v. Allen 299
Nicholson r. Coghill 203
Nicol's Case 26
Nicolls v. Bastard 425
Nixon v. Jenkins 444
Noble v. McFarland 359, 360
Nolton p. Western R. Corp. 614
Norris r. Kohler 600
c. Litchfield
North v. Smith
Northam v. Bowden
714
571
425
. Mahoney
v. Daly
F29
702
729
22
453
112
519
North-eastern Ry. Co. v. Elliot 551, 557
North Penn. R. Co. r. Heileman 593
p.
Norwich v. Breed
Norwich & W. R. Co.
Noyes v. Loring
Nunnallv r. White
Nutt's Case
Nuttall p. Bracewell
O.
Oakes p. Spaulding 489
Oakham p. Holbrook 599
Oatfield r. Waring 453
O'Brien p. Barry 196
». Clement 120
O'Byrne v. Barne 708
Odiorne p. Lyford 359
O'Driseoll r. McBurney 205
Offerman p. Starr 476, 636
Ogburn p. Connor 497
Ogden r. Lancashire 292
r. Rummers 708
v. Turner 105
O'Keefe r. Chicago &c. R. Co. 725
Oldfield v. New York & H. R.
Co. 726
O1 Linda v. Lothrop 357
Olmstead v. Patriate 200, 202
Onslow r. Home 81, 89, 94, 103, 105
O'Riley r. McCheeney 5l'6
Ormro'd v. Huth 20
Oroinys r. Jones 636
Ortmayer t*. Johnson 654
Ottumwa Lodge v. Lewis 557
Outcalt r. Durling 352
Overton v. Freeman 645, 649, 656, 657
Oviatt r. Sage 448, 450
Owen p. Henman 470
f. Knight 424. 425
Owings p. Jones 476
P.
Pack v. New York
655
Page v. Gushing
203
, 204
v. Keble
82
v. Parker
216
v. Robinson
355
Pain r. Rochester
195
r. Whittaker
431
Paine r. Patrich
472
Painter v. Liverpool Gaslight Co.
280
i. Pittsburgh
057
1 Palmer r. Flesbees
552
v. Thorp
58
1 Panton p. Holland
552
v. Williams
276
525
Parburv's Case
26
Paris v. Levy
168
Park v. O'Brien
726
Parker v. Foote
558
p. Griswold
518
p. Huntington
196, 206,
211,
215
v. Meek
292
305
v. Middlebrook
447
p. Patrick
189
Parks v. Alta Californian Tel. Co.
623
v. Newburyport
497
Parmiter v. Coupland
107, 108
109
Parnaby v. Lancaster Canal Co.
705
Parson Prit's Case
122
Parsons v. Brown
232
p. Lloyd
279
p. Webb
446
p. Winchell
643
Parton v. Williams
276
Patrick p. Colerick
3S1
XXXIV
TABLE OF CASES CITED.
Partridge v. Gilbert 554, 555, 556
v. Menck 70, 71
v. Scott 548, 557
Tasley v. Freeman 20, 37, 40, 54, 69,
72, 107, 138, 200, 206
Pastorious v. Fisher 372
Pater v. Baker 54, 56
Paton v. Westervelt 278
Patten v. Gurney 40, 42, 215
Patterson v. Wallace 686, 708
Pattison ». Jones 169
Paull v. Halferty 54
Paulmeiser v. Erie R. Co. 707
Pawson v. Watson 21
Payne v. Rogers 476, 635
Payron v. Caswell 196
Peachey v. Rowland 649
Peake v. Oldham 101
Pearce v. Atwood 278
Peard v. Jones 106
Pearson v. Yewens 277
Peckham v. Tomlinson 281
Peek v. Gurney 27, 28, 38
Pemberton v. Colls 106
Pendrill v. Second Ave. R. Co. 595
Penn v. Preston 356
Pennsylvania Land Co. v. Bentley 596,
726
Pennsylvania R. Co. b. Beale 593
v. Ozier 593
v. Weber 593
Penriyman v. Rabanks 49
Penrod v. Morrison 215
Penruddoek's Case 333, 383, 476
People v. Croswell 108
Perham v. Coney viii
Perkin b. Proctor 243
Perren v. Monmouthshire Ry. Co. 574
Perry v. Fitzhowe 383, 384
v. Phipps 491
v. Truefitt 71
Perryman v. Lister 282, 283, 284
Peterborough ». Stanton 94
v. Williams 95
Peters v. Hey ward 403
Peterson v. Lock 360
Pettigrew v. Evansville 498
Peyton v. London 553
v. The Mayor 542
Phelps v. Goddard 215
v. Hendrick 439
v. Willard 356
Phila. City Ry. Co. v. Hassard 730
Phila., &c, Ry. Co. v. Phila., &c,
Towboat Co. 714
Philips v. Biron 279
Phillips v. Barber 120
Philp v. Squire 335, 336
Philpott v. Kelley 437
Phinizy v. Augusta 526
Pickard v. Sears 437
v. Smith 704
Picton v. Jackman 170, 174
Pierce v. Dart 472
v. Fernald 558
v. Street 203
v. Van Dyke 385, 447
Pieffot v. Eastern Counties Ry.
Co. 567
Pigot v. Cubley 396
Pigott & Surry's Case 534
Pike v. Carter 279
Pilkington v. Scott 312
Pillsbury v. Morse 476
Pindal v. Wadsworth 371, 373
Pinero v. Goodlake 167
Pippet v. Hearn 205
Pippin v. Sheppard 616
Pitt v. Donovan 54, 55
v. Petway 449, 451
Pittock v. O'Niell 109
Pitts v. Lancaster Mills 519
Pittsburgh v. Grier 705
Pittsburgh Ry. Co. v. Caldwell 729
Pittsburgh &c, R. Co. v. Devin-
ney 710
v. Vining 729,
730
Pixley v. Clark 499
Play ford v. United Kingdom Tel.
Co. 613, 614, 620, 621, 622, 623
Polhill v. Walter 36, 37
Pollard v. Evans 212
Polley v. Lenox Iron Works 441
Pollitt v. Long 517
Pool v. Lewis 519
Poole v. Mitchell 369
Popplewell v. Hodkinson 551
v. Pierce 490
Porter v. Purdy 278
Postlethwaite v. Parker 289
Pothonier v. Dawson 407
Potter v. Starkie 447
v. White 555
Potts v. Plunkett 707
Pottstown Gas Co. v. Murphy 477
Pow v. Davis 22
Powell v. Deveney 610
Powers v. Wheeler 351
Preston v. Cooper 206
Price v. Helyar 447
v. New Jersey R. Co. 490
Pridham o. Tucker 105
Priestley v. Fowler 692, 703, 707
Proctor v. Jennings 498
Pulsford v. Richards 21
Purcell v. McNamara 202, 203
Puterbaugh v. Reasor 726
TABLE OF CASES CITED.
XXXV
Putnam p. Payne
491
Rex p. Almon
112
Putt p. Rawstern
385
f. Carlile
.
160
Pyne v. Dor
424
v. Creevey
p. Dancer
v. Ford
160
163
244
255
Q-
v. Gunston
12
p. Gutch
110
168
Quarman v. Burnett 616,
647, 648,
v. Huggins
479
482
727
p. Walter
110
Quinn p. Paterson
549
p. Woolman
255
Quirk r. Holt
596
Reynolds v. Clarke
p. Hanrahan
v. Kennedy
498
596
197
R.
p. Zeynham
298
Rich v. Basterfield
466,
475
636
Rabe r. Hanna
335, 386
Richards p. Jenkins
556
Radcliffp. Brooklyn 525
, 549, 550
p. Johnston
438
Rafael i\ Terelet
238, 239
v. Randall
369
Railway Co. t. Conybeare
28
p. Rose
553
Railroad Co. v. Gilman
730
Richardson v. Atkinson
437
p. Gladmon
726
p. Milburn
490
i-. Hanning
657
p. Vermont
Cent
. R.
i. Stout
593
Co.
549
Ramsbottom r. Lewis
449
v. Williamson
22
Rand v. Sargent
441
Richart p. Scott
552
Randell r. Trimen
21. 22
Richels p. State
231
Randleson r. Murray
645, 655
Rieket p. Metropolitan Ry. C
0.
474
Raneer r. Great Western Railway
Rigaut p. Gallisard
338
C5.
28, 35
Rigby p. Hewitt
727
Rapp r. Latham
24
Rigg v. Curgenven
339
Rapson p. Cubitt
648, 657
Riley p. Baxendale
706
Rateliff r. Davis
397
p. Boston Water Power Co
446
Ravenga p. Mackintosh 199
200, 201
Ring p. Wheeler
126
129
Rawstron p. Taylor 496, 516
, 525, 622
Ripley p. Davis
451
Raymond f. Andrews
369
Rising v. Stannard
370
Rea e. Sheward
382
Risney r. Selby
), 12
v. Tucker
338
Rist v. Faux
292
Read p. Coker
230
Roach p. Garvan
298
Reade v. Sweetzer
109
Roath p. Driscoll
525
Rector p. Buckhart
599
Robbins p. Borman
357
p. Smith
162
v. Jones
654
Reddie r. Scoolt
301
p. Mount
654
Redington r. Chase
453
Roberts p. Bye
555
Reed p. Merrifield
369
v. Brown
164
Reedie r. London & Northwestern
v. Camden
101
Ry. Co.
648, 727
p. Connelly
292
296
Reese Silver Mining Co. v. Smith 21
p. Johnson
viii
Reeves r. Capper
402
p. Roberts
113
p. Delaware & L. R.
Co. 593
p. Smith
706,
707
708
p. Templar
1C9
p. Wyatt
425
Regina v. Cotesworth
231
Robinson p. Cone
725
729
p. Mole
427
p. May
j71
v. Peters
427
p. Yewens
277
p. Swindall
606
Rockwood p. Wilson
497
502
p. Tooley
261
Rodgers p. Now ill
69, 71
p. Watts
599, 636
Rogers p. Clifton
134,
146
169
Resenstein r. Brown
197
p. Taylor
557
Revis p. Smith
162
Rohan p. Sawin
282
Rex p. Abingdon
163
Rose p. United States Tel. Co.
621
SXXV1
TABLE OF CASES CITED.
Rosewell v. Prior
643
Ross v. Fedden
495
653
Rot an v. Fletcher
426
Rotch v. Hawes
439
441
Roulston v. Clark
702
Rowbotham v. Wilson
549, 556
557
Rowe v. Roach
48, 49
Rowley v. Rice
379
Ruekman v. Decker
448
Rudolphy v. Fuchs
595
Rumsey v. Webb
170
Russell v. Shenton
475
636
Rutland v. Rutland
424
Ryall ». Rolle
402
Ryalls v. Leader
160
Ryan v. Copes
477
Sadler v. Henlock
647
655
St. Anthony Falls Co. v
. Eastman
726
St. Helen's Smelting Co. v.
Tip-
ping
465
467
470
Salisbury v. Gladstone
549
Salmon v. Richardson
619
Salters v. Delaware &
H.
Dana!
Co.
709
Saltonstall v. Banker
477
Sampson v. Hoddinott
517
Samuel v. Norris
447
v. Payne
254
Sanborn v. Colman
431
■v. Morrill
448
449,
450
v. Neilson
338
Sanderson v. Price
363
Sands v. Robison
162
Sandford v. Handy
25, 33
Sans v. Joerris
113,
117
176
Sappington v. Watson
201
Sargeant v. Blunt
438
Sargent v.
291
294
295
v. Gile 429,
430,
435
446
v. Metcalf
431
Sasser v. Rouse
120
Savacool v. Boughton
277,
278
Savage v. Robery
50
Savil v. Roberts 195,
204,
208,
214
Savile v. Jardine
94
Sawyer v. Rutland & B.
R. Co.
708
Sayles v. Briggs
196
Searll v. Dixon
172
Scarry v. Tanner
261
Scetchet v. Ellham
480
Schennert v. Koehler
715
Schienfeldt v. Norris
596
Schierhold v. North Beach,
&c,
R. Co.
596
Schmidt v. Milwaukee, &c, R. Co.
730
Suhuer v. Needer 585
Schuneman v. Palmer 336, 337
Scott v. Dixon 38
o. Dublin & W. Ry. Co. 723
v. Ely 276
w. London Docks Co. 596, 665
v. Shepherd 571, 609, 612
v. Stansfield 162
Scribner v. Beach 232
Seager v. Sligcrland 301
Seago v. Pomeroy 438
Seaman v. Bigg 106
Searle v. Lindsey 710
Sears v. Dennis 723
Sweley v. Brush 516
Seixo v. Provezende 70
Selden v. Delaware & H. Canal
Co. 498, 499
Severin v. Keppell 445
Seymour v. Butterworth 169
Sewell v. Lane 279
Seymour w. Maddox 672, 676, 679, 687
Sharp v. New York 25
Sharpe v. Hancock 502
Sharrock v. Hannemer 261
Shattuck v. Allen 109
Shaul v. Brown 178, 205
Shaw v. Kaler 425
Sheckell v. Jackson 109, 167, 168
Sheldon v. Hudson River R. Co. 600
v. Sherman 499
v. Skinner 453
v. Van Buskirk 278
Shelfer v. Gooding 161
Shelton v. Springett 299
Shepard v. Ryers 359
Sheperd ». Wakeman 308, 309, 317
Sheple v. Page 215
Shergold v. Holloway 244, 278
Sherry v. Picker 447
Shipley v. Filty Associates 497
Shipp v. McCraw 102
Shorland v. Govett 386
Shrewsbury «. Smith 499
Shrieve v. Stokes 553
Silloway v. Brown 359
Simmons v. Lillystone 428, 441
Simpson v. Down 172
v. Hornbeck 281
Sinclair v. Eldred 203
Singleton v. Bolton 69
v. Eastern Counties R.
Co. 729
Six Carpenters' Case 378. 386
Skinner v. Gunton 191, 208, 212, 315
v. London, B., &c, Ry.
Co. 574, 581
v. Trobe 82
i>. White 104
TABLE OF CASES CITED.
XXXV11
Skipp !•. Eastern Counties Ry. Co. 70S
Slade r. Little 89, 40
Slater r. Rawson 352, 3<>8
Sleeper r. Sandown 723
Sleght p. Kane 127
Slingsby v. Barnard 53-2
Sly r. Edgerly 644
Smale r. Hammon 103
Smart p. Blanchard 113, 12u
r. Morton 557
Smawley v. Stark 120
Smee i . Martin 299
Smith r. Adams 502, 525
r. Ashley 111
r. Bouciuer 279
r. Clark 596
r. First National Bank 597
r. Fletcher 493, 494, 500
v. Higgins 170, 171
v. Ingram 379
r. Kenrick
r. Lawrence
r. London Docks Co.
r. Miles
494, 54(3
658
655. 706
120
370, 447
r. Milles
r. O'Connor , 29
p. O'Hara 520
t . Oriell 450
p. Pelah 479, 482, 486
r. Phillips _ 476
t. Richardson 136
r. Shaw 246
r. Smith 104, 113, 726
v. Spooner 56
r. Stewart 103
v. Stokes 450
v. Sydney -St
r. Thackerah 51S, 553
p. Thomas 1-4
Smoot v. Wetumpka 26
Smout r. Bbery 21, 22
Snell r. Snow 120
Snow r. Allen 200
r. Housatonic R. Co. 70S. 723
r. Judson 58
r. Parsons 519
Snyder v. Andrews 109
Soames r. Watts 446
Society of Shakers r. Underwood 618
Solomon v. Vintners' Co. 554
Soltau r. De Held 465, 470, 471, 473
Somerville v. Hawkins 175
Soinmer v. Wilt 206
South r. Denniston 296, 304
Southeote r. Stanley 672, 674, 675,
679, 680, 703, 704, 705, 707, 710
Southeote's Case 396
Southee r, Denny 106
South-western R Co. v. Paulk 723
Spanker r. Davy 198, 200,
Spar-hawk p. Union Pass. Ry. Co.
Speckling r. Nevell
Speight p. Oliviera
Spencer v. Pilcher
Spooner p. Holmes
Springfield r. Harris
Stafford p. Green
Stanley p. Webb
Stanshurv p. Fogle
Stanley p. Gaylord 370, 385, 446,
Star, sell r. Joilard
Stanton p. Middlesex R. Co.
Star p. Jackson
Stark p. Chetwood
Starkie p. Slander
Starr p. Jackson
State p. Crow
v. Linkhaw
v. McDonald
p. Med bury
i\ Smith
p. Wood
Stedman p. Smith
Steel p. South-eastern
Stephens p. Baird
p. Myers
p. Wilkins
Stetson p. Faxon 472,
Stevens v. Armstrong
p. Hartwell
c. Thompson
Steward v. Gromell
p. Young
Stewart r. Cole
Stiles v. Xokes
v. Tilford 291,
Stockley p. Hornidge
Stokes v. Saltonstall 699,
v. White
Stone p. Carlan
p. Cartwright 642, 643,
t. Cod m an
p. Cooper
p. Marsh
Storrs v. Utica
Story p. Odin 552,
Stout p. Wren
Stranham's Case
Stratton p. Rastall
Straus v. Young 202,
Strayan v. Knowles 552,
Streight t>. Bell
Strickland v. Barrett
p. Parker
Strohl v. Levan
Strong ». Connell
Stuart r. Hawley 499,
v. Lovell
206
470
22
291
439
445
519
81
167
206
447
542
722
355
'56
175
342
230
476
339
339
231
221
555
655
437
230
278
473
651
176
557
197
54
206
164
294
203
723
279
66
658
638
107
233
655
55S
232
424
585
203
557
204
432
453
585
596
503
168
XXXV111
TABLE OF CASES CITED.
Sturges v. Keith 445
Sturt v. Blandford 337
Suggs v. Anderson 232
Sullivan v. Waters 674
Summersett v. Jarvis 445
Sutton v. Clarke 502
v. Huffman 292, 303
v. Johnstone 283
o. Wauwatosa 721
Suydam v. Keys 246, 247
Svenson v. Atlantic Steamship Co. 600,
710
Swain v. Stafford 197, 198
Swan v. Saddlemire 215
v. Tappan 54
Sweeny v. Old Colony & N. R.
Co. 697, 702
Swett v. Cutts 498, 525
Swift v. Jewesbury 32
v. Winterbotham 81, 38
Swinton v. Molloy 283
Syeds v. Hay 392, 444
Sykes v. Dixon 304, 312, 314
v. Sykes 72
Sylvester v. Girard 426
Symmes v. Frazier 428
Symons v. Symons 365
T.
Tabart v. Tipper
Tapham t>. Curtis
Tapp v. Lee
Tappan v. Burnham
o. Powers
Talbot v. Cains
Talbott v. Shrewsbury
Talmadge v. Scudder
Tarleton v. M'Gawley
Tarlton v. Fisher
Tarrant v. Webb
Tasburg v. Day
Taylor v. Ashton
v. Carpenter
v. Church
v. Cole
v. Hall
v. Hawkins
v. New York
v. Neri 313,
v. Whitehead
Tebbutt v. Bristol & E.
Tenant v. Goldwin
Terry v. Hooper
v. Hutchinson
Terrymond's Case
Terwilliger v. Wands
168
498
36,40
352
216
215
298
447
313
279
688
50
21
70
173
379
86
175
653
314, 317, 324
380
B,y. Co. 705
493
106
291, 294
606
104, 113
Tevis v. Hicks
Thimblethorpe's Case
Thorn v. Bigland
Thomas v. Churton
v. Croswell
v. Morgan
v. Winchester
609,
Thompson v. Moesta
v. North-eastern
Co.
v. Rose
w. Ross
v. Shackell
Thorley v. Kerry
Thome v. Blanchard
v. Tilbury
Thorogood v. Bryan
v. Robinson
Thorp v. Brookfield
Thrall v. Lathrop
Thurber v. Martin
Thurston v. Hancock
Tidman v. Ainslie
Tillotson v. Smith
Timm v. Bear
Timothy v. Simpson
Tinsman^. Belvidere R. Co
Tobey v. Webster
Todd v. Cochell
v. Flight
v. Rough
Toledo, &c, R. Co.
360
391
20, 36
162
164
481, 485
612, 613,
657
441
Ry.
705
445, 446
292
168
48, 107
172
426
726, 727, 728
443
723
438
508
551, 558
176
517
519
284
549
355
498
476, 636
103
Conray
Riley
Tolle v. Correth
Tollervey v. Malachi
Toomey v. London and Brighton
Ry. Co.
Tootle v. Clifton
Torrence v. Gibbins
Tourtellot v. Phelps
v. Rosebrook
Towne v. Wiley
Townsend v. Kerns
v. Wathen
Trammell v. McDade
Trauger v. Sassaman
Travis v. Barger
v. Smith
Trelawney ». Coleman
Tremain v. Cohoes
Trevelian v. Pyne
Trow v. Vermont Cent. R. Co.
709
723
520
46
True v. International Tel. Co.
Tubbs v. Richardson
Tuberville v. Savage
Tubeville v. Stampe
675
497
233
508
499
440
352
480
448
360
301
198
334
499
352
724,
726
623,
624
448, 450
230
503
TABLE OF CASES CITED.
XXXIX
Tuff r. Warman
Turner r. Amb er
Turner v. Estes
v. Ogden
r. Sterling
i . Sullivan,
Turpin v. Kemv
Tuthill r. Milton
r. Wheeler
Tuttle ». Bishop
Tvler r. Wilkinson
IT.
724, 725,
20;;
386
108
107
165
205
105
425
101
514
Udell r. Atherton 30
United States r. Appleton 558
United Shakers' Soc. v. Under-
wood 440, 659
Upton i-. Vail 40
Urmston i. jSTewcomen 299
Van Ankin r. Westfall 113
Van Brunt r. Sehenek 361, 362
Vance r. Erie Ry. Co. 35
Vandenburgh r. Truax 609
Vanderzie r. McGregor 172
Vanduzer r. Linderman 176, 180
Van Hoesen r. Coventry 514, 518
Van Leuven v. Lyke 370
Van Wyek r. Aspinwall 171
Vasse r". Smith 440
Vaughan v. Ellis 107
r. Taff Vale Ry. Co. 496,
503
Venard r. Cross 474, 475
Venezuela Ry. Co. r. Kisch 41
Verdin v. Robertson 624, 728
Vicars r. Wilcocks 320
Villers v. Monsley 95, 96
Vincent r. Cornell 430, 431, 432
Von Latham v. Libby 2^1
Vossel r. Cole 305
W.
Wadsworth r. Tillotson 516, 518
Waffle v. New York Cent. R. Co. 502.
526
Wait r. Richardson 359
Waite v. Xorth-eastern Rv. Co. 725,
729, 731
' Wakefield r. Buccleuch
549
Wakeman v. Robinson
572
Waloot r. Pomerov
370
Walden r. Mitchell
105
■ Wallis c. Hodson
209
v. Alpine
202
Walsh v. Miss. R. Co.
725
v. Peet Valve Co.
708
Walter r. Sample
200. 201
r. Selfe 467, 46t
. 470, 550
' r. Wicomico
476
Wanstead Board of Health v
Hill, 467,
469
Wanzer i: Bright
206
Ward r. Clark
81
1-. Xeal
558
i p. Reynolds
76
r. Weeks
176, 320
Warner v. Commonwealth
339
c. Erie Ry. Co.
710
r. Payne
162
v. Riddiferd
272, 273
v. Shed
247
Warren v. Kauffmann
654
Warrington r. Brown
337
Watkins v. Hall
176
Watling v. Oastler
70S, 709
Watson i". Paulson
36
r. McCarthy
105
Watt v. Porter
446
Weatherston v. Hawkins
137, 169
Weaver r. Eureka Lake Co.
520
r. Ward
231, 571
Webb v. Beavan
381
i'. Danforth
44S
r. Mann
453
Webb Portland Manuf. Co.
514
Webber v. Closson
490
v. Davis
423
Webster v. Hudson R. Co.
728
t. Stevens
554
Weedon v. Timbrell
335, 337
Weeks r. Burton
40
Weger v. Penn. R. Co.
709, 710
Welch v. Clark
448
Welfare v. London & Brighton Rv.
Co. 594,
b9i>, 600,
703
372
Weller v. Baker
Wellington r. Downer Oil Co. 611,
614, 617
r. Small
214, 215
e. Wentworth
446
Wendell v. Baxter
704
r. Johnson
379
Wentworth r. Day
42S
Wesson t>. Washburn Iron Co. 465,
471, 472
West r. Louisville
476
xl
TABLE OP CASES CITED.
West Chester & Phila. R. Co. v.
MeElwee 592
Western Bank v. Addie 21, 27, 29, 30,
32
Western Union Tel. Co. v. Carew 623
Weston v. Alden 512
Whaley v. Laing 354
Whatman v. Pearson 35
Wheatley v. Chrisman 517, 526
v. Harris 491
Wheatly v. Baugh 501, 525 »
Wheelock v. Wheelwright 439, 440
Wheldon v. Chappel 440
Whipple v. Kilpatrick 431
Whirley v. Whittemore 729
White v. Brooks 447
v. Carroll 162
v. Dewary 446
v. Garden 429
v. Madison 22
v. Nellis 293
v. Nicholls 117, 158, 159, 160,
161
v. Sawyer 25, 32
v. Sayward 120
v. Spettigue 233
v. Taylor 254
Whitman v. Spencer 215
Whitman Mining Co. v. Tritle 446
Whitney v. Beckford 436
Wickes v. Clutterbuck 279
Wicks v. Fentham 205
Widrig v. Oyer 103
Wiggett v. Fox 710
Wiggin v. Coffin 180
Wilbraham v. Snow 425
Wild v. Oliver 447
Wilde v. Gibson 29
v. Minsterley 539
Wilder a. Houghton S63
Wilds v. Hudson Eiver R. Co. 593,
726
Wiley v. Campbell 103
Wilkes v. Hungerford Market Co. 472
Wilkinson v. Fairrie 671. 672, 675,
681,706
v. Haygarth 358, 452
v. Proud 556
Willans v. Taylor 179, 197, 202,
203
Willard v. Pinard 595
v. Newbury 651
Willet v. Chambers 24
Williams's Case 472
Williams v. Banks 199
v. Chadbourne 447
v. Clouch 708
v. East India Company 676
v. Esling 379, 497, 518
Williams «. Gale
502
v. Hill
113
v. Holdridge
105
v. Merle
429
v. Morland
513
517
v. Morris
381
v. Norwood
203
v. Smith
281
Willis v. Bernard
334
Wilmhurst v. Bowker
434
Wilson v. Barker
370
v. Chambers
424
v. Collins
162
v. Goit
104
113
v. McLaughlin
443
v. Merry
710
v. New Bedford
498
525
v. Newberry
496
v. Peto
658
v. Reed
447
448
Wilton v. Webster
334, 337
338
Winkler v. Meister
351
Winner v. Penniman
453
Winter v. Henn
337
Winterbottom v. Derby
474
v. Wright 328, 605,
613, 614, 616, 617, 618
Winship v. Neale 424
Winsmore v. Greenbank 307, 309,
317, 320, 321, 334, 335, 476
Wise v. Wilcox 40
v. Withers 248, 249
Wiswell i). Brinson 651
Witham v. Gawen 196, 197
Witherspoon v. Blewett 444
Wiltshire v. Sidford 344
Wixon v. Water & Mining Co. 520
Wonder v. Baltimore & O. R. Co. 710
Wood v. Cobb 657
v. Cohen 447
v. Lane 274
v. Leadbitter 353
v. Manley 380
v. Waud 502, 513, 517, 519
Woodbridge v. Swann 450
Woodbury v. Thompson 104
Woodman v. Hubbard 440, 714
Woodward v. Dowsing 107, 108
Woolf v. Chalker 491
Woolnoth v. Meadows 79
Work v. Bennett 436
Worth v. Gilling 489, 490
Wotherspoon v. Currie 70
Wren v. Weild 54, 56, 57, 58, 206
Wright v. Clements 164
v. Court 285
v. Howard 513
v. Maiden 729
v. Woodgate 129, 175
TABLE OF CASES CITED.
xli
Wyatt v. Blades
r. Blandes
r. Harrison S54, 539, 542, 551
Wvndham r. Wycombe
189
[ York v. Pease
162, 163
447
Young r. Macrae
58
551
r. Miller
103
3o7
i\ Spencer
355
Y.
Yates v. Carnseed
Yawhill Bridge Co. v. Newby
Yocum r. Pollv
446 ,
453 Zobias r. Harland
202 Zoebisch r. Tarbell
59
704
LEADING CASES OX TORTS.
LEADING CASES ON TORTS.
DECEIT.
Pallet i: Freeman, leading case.
Xote on Deceit generally.
Historical aspects of actions of deceit.
Knowledge of falsity, including misrepresentations by agents.
Intention of defendant.
Acting npon the misrepresentation.
Representations concerning solTency.
Malacht v. Soper, leading case.
Note on Slander of Title.
M*hsh v. Billings, leading case.
Stke* i. Sykes. leading case.
Xote on Trade-marks.
Pasley V. Freeman.
(3 T. K. 51. King's Bench, England, Hilary Term, 1789.)
A fiih' affirmation, made by the defendant with intent to defraud the plaintiff, whereby
the plaintiff receives damage, is the ground of an action upon the case in the
nature of deceit. In such an action it is not necessary that the defendant should
be benefited by the deceit, or that he should collude with the person who is bene-
fited.
This was an action in the nature of a writ of deceit, to which
the defendant pleaded the general issue. And after a verdict for
the plaintiffs on the third count, a motion was made in arrest of
judgment.
The third count was as follows : " And whereas, also, the said
Joseph Freeman, afterwards, to wit. on the twenty-first day of Feb-
ruary, in the year of our Lord 1787. at London aforesaid, in the par-
ish and ward aforesaid, further intending to deceive and defraud
the said John Pasley and Edward, did wrongfully and deceitfully
1
DECEIT.
encourage and persuade the said John Pasley and Edward to sell
and deliver to the said John Christopher Falch divers other goods,
wares, and merchandises, to wit, sixteen other bags of cochineal
of great value, to wit, of the value of 2,634?. 16s. Id. upon trust
and credit ; and did for that purpose then and there falsely, de-
ceitfully, and fraudulently assert and affirm to the said John Pasley
and Edward, that the said John Christopher then and there was
a person safely to be trusted and given credit to in that respect,
and did thereby falsely, fraudulently, and deceitfully cause and
procure the said John Pasley and Edward to sell and deliver the
said last-mentioned goods, wares, and merchandises upon trust
and credit to the said John Christopher ; and, in fact, they the
said John Pasley and Edward, confiding in and giving credit to
the said last-mentioned assertion and affirmation of the said
Joseph, and believing the same to be true, and not knowing the
contrary thereof, did afterwards, to wit, on the twenty-eighth
day of February, in the year of our Lord 1787, at London afore-
said, in the parish and ward aforesaid, s,ell and deliver the said
last-mentioned goods, wares, and merchandises upon trust and
credit to the said John Christopher ; whereas in truth and fact, at
the time of the said Joseph's making his said last-mentioned asser-
tion and affirmation, the said John Christopher was not then and
there a person safely to be trusted and given credit to in that
respect, and the said Joseph well knew the same, to wit, at Lon-
don aforesaid, in the parish and ward aforesaid. And the said
John Pasley and Edward further say, that the said John Christo-
pher hath not, nor hath any other person on his behalf, paid to the
said John Pasley and Edward, or either of them, the said sum of
2,634?. 16s. Id. last mentioned, or any part thereof, for the said
last-mentioned goods, wares, and merchandises ; but, on the con-
trary, the said John Christopher then was and still is wholly
unable to pay the said sum of money last mentioned, or any part
thereof, to the said John and Edward, to wit, at London afore-
said, in the parish and ward aforesaid ; and the said John Pasley
and Edward aver that the said Joseph falsely and fraudulently
deceived them in this, that at the time of his making his said last-
mentioned assertion and affirmation the said John Christopher
was not a person safely to be trusted or given credit to in that
respect as aforesaid, and the said Joseph then well knew the
same, to wit, at London aforesaid, in the parish and ward afore-
PASLET V. FREEMAN. 3
said : by reason of which said last-mentioned false, fraudulent, and
deceitful assertion and affirmation of the said Joseph, the said
John Pasley and Edward have been deceived and imposed upon,
and have wholly lost the said last-mentioned goods, wares, and.
merchandises, and the value thereof, to wit, at London aforesaid,
in the parish and ward aforesaid, to the damage, &c.
Application was first made for a new trial, which after areu-
ment was refused, and then this motion in arrest of judgment.
Wood argued for the plaintiffs, and Russell for the defendant, in
the last term ; but as the court went so fully into this subject in
giving their opinions, it is unnecessary to give the arguments at
the bar.
The court took time to consider of this matter, and now deliv-
ered their opinions seriatim.
Grose, J. Upon the face of this count in the declaration, no
privity of contract is stated between the parties. No considera-
tion arises to the defendant ; and he is in no situation in which
the law considers him in any trust, or in which it demands from
him any account of the credit of Falch. He appears not to be
interested in any transaction between the plaintiffs and Falch,
nor to have colluded with them ; but he knowingly asserted a
falsehood, by saying that Falch might be safely intrusted with
the goods, and given credit to, for the purpose of inducing the
plaintiffs to trust him with them, by which the plaintiffs lost the
value of the goods. Then this is an action against the defendant
for making a false affirmation, or telling a lie, respecting the
credit of a third person, with intent to deceive, by which the
third person was damnified ; and for the damages suffered,
the plaintiffs contend that the defendant is answerable in an
action upon the case. It is admitted that the action is new in
point of precedent ; but it is insisted that the law recognizes prin-
ciples on which it may be supported. The principle upon which
it is contended -to lie is that, wherever deceit or falsehood is prac-
tised to the detriment of another, the law will give redress. This
proposition I controvert, and shall endeavor to show that, in
every case where deceit or falsehood is practised to the detriment
of another, the law will not give redress ; and I say that by the
law, as it now stands, no action lies against any person standing
in the predicament of this defendant for the false affirmation
stated in the declaration. If the action can be supported, it must
DECEIT.
be upon the ground that there exists in this case, what the law
deems, damnum cum injuria. If it does, I admit that the action
lies ; and I admit that upon the verdict found the plaintiffs appear
to have been damnified. But whether there has been injuria, a
wrong, a tort, for which an action lies, is a matter of law. The
tort complained of is the false affirmation made with intent to
deceive ; and it is said to be an action upon the case analogous to
the old writ of deceit. When this was first argued at the bar, on
the motion for a new trial, I confess I thought it reasonable that the
action should lie ; but, on looking into the old books for cases
in which the old action of deceit has been maintained upon the
false affirmation of the defendant, I have changed my opinion.
The cases on this head are brought together in Bro. tit. Deceit,
pi. 29, and in Fitz. Abr. I have likewise looked into Danvers,
Kitchins, and Comyns, and I have not met with any case of an
action upon a false affirmation, except against a party to a con-
tract, and where there is a promise, either express or implied, that
the fact is true, which is misrepresented ; and no other case has
been cited at the bar. Then if no such case has ever existed, it
furnishes a strong objection against the action, which is brought
for the first time for a supposed injury, which has been daily com-
mitted for centuries past. For I believe there has been no time
when men have not been constantly damnified by the fraudulent
misrepresentations of others ; and if such an action would have
lain, there certainly has been, and will be, a plentiful source of
litigation, of which the public are not hitherto aware. A variety
of cases may be put. Suppose a man recommends an estate to
another, as knowing it to be of greater value than it is ; when the
purchaser has bought it, he discovers the defect, and sells the
estate for less than he gave : why may not an action be brought
for the loss upon any principle that will support this action ? And
yet such an action has never been attempted. Or suppose a per-
son present at the sale of a horse asserts that he was his horse,
and that he knows him to be sound and sure-footed, when in fact
the horse is neither the one nor the other ; according to the prin-
ciple contended for by the plaintiffs, an action lies against the
person present as well as the seller, and the purchaser has two
securities. And even in this very case, if the action lies, the
plaintiffs will stand in a peculiarly fortunate predicament, for they
will then have the responsibility both of Falch and the defendant.
PASLEY V. FREEMAN. 5
And they vrill be in a better situation than they would have been
if, in the conversation that passed between them and the defend-
ant, instead of asserting that Falch might safely be trusted, the
defendant had said, " If he do not pay for the goods, I will ; " for
then undoubtedly an action would not have lain against the de-
fendant. Other and stronger cases may be put of actions that
must necessarily spring out of any principle, upon which this can
be supported, and yet which were never thought of till the present
action was brought. Upon what principle is this act said to be an
injury ? The plaintiffs say, on the ground that, when the question
was asked, the defendant was bound to tell the truth. There are
cases, I admit, where a man is bound not to misrepresent, but to
tell the truth ; but no such case has been cited, except in the case
of contracts : and all the cases of deceit for misinformation may,
it seems to me, be turned into actions of assumpsit. And so far
from a person being bound in a case like the present to tell the
truth, the books supply me with a variety of cases, in which even
the contracting party is not liable for a misrepresentation. There
are cases of two sorts in which, though a man is deceived, he can
maintain no action. The first class of cases (though not analogous
to the present) is where the affirmation is that the thing sold has
not a defect which is a visible one : there the imposition, the
fraudulent intent, is admitted, but it is no tort. The second head
of cases is where the affirmation is (what is called in some of the
books) a nude assertion, such as the party deceived may exercise
his own judgment upon ; as where it is matter of opinion, where
he mav make inquiries into the truth of the assertion, and it
becomes his own fault from laches that he is deceived. 1 Roll.
Abr. 101 ; Yelv. 20 ; 1 Sid. 146 ; Cro. Jac. 386 ; Bayly v. Mer-
rel. In Harvey v. Young, Yelv. 20, G. S., who had a term for
years, affirmed to F. D. that the term was worth 150?. to be sold,
upon which F. D. gave 150Z.. and afterwards could not get more
than 100/. for it, and then brought his action ; and it was alleged
that this matter did not prove any fraud, for it was only a naked
assertion that the term was worth so much, and it was the plain-
tiffs folly to give credit to such assertion. But if the defendant
had warranted the term to be of such a value to be sold, and upon
that the plaintiff had bought it, it would have been otherwise ;
for the warranty given by the defendant is a matter to induce
confidence and trust in the plaintiff. This case, and the passage
DECEIT.
in 1 Roll. Abr. 101, are recognized in 1 Sid. 146. How, then, are
the cases ? None exist in which such an action as the present
has been brought ; none, in which any principle applicable to the
present case has been laid down to prove that it will lie ; not even
a dictum. But from the cases cited some principles may be ex-
tracted to show that it cannot be sustained: 1st. That what is
fraud, which will support an action, is matter of law. 2d. That
in every case of fraudulent misrepresentation, attended with
damage, an action will not lie even between contracting parties.
3d. That if the assertion be a nude assertion, it is that sort of
misrepresentation the truth of which does not lie merely in the
knowledge of the defendant, but may be inquired into, and the
plaintiff is bound so to do ; and he cannot recover a damage which
he has suffered by his laches. Then let us consider how far the
facts of the case come within the last of these principles. The
misrepresentation stated in the declaration is respecting the credit
of Falch ; the defendant asserted that the plaintiffs might safely
give him credit ; but credit to which a man is entitled is matter
of judgment and opinion, on which different men might form dif-
ferent opinions, and upon which the plaintiffs might form their
own, to mislead which no fact to prove the good credit of Falch
is falsely asserted. It seems to me, therefore, that any assertion
relative to credit, especially where the party making it has no
interest, nor is in any collusion with the person respecting whose
credit the assertion is made, is like the case in Yelverton respect-
ing the value of the term. But at any rate, it is not an assertion^
of a fact peculiarly in the knowledge of the defendant. Whether
Falch deserved credit' depended on the opinion of many; for
credit exists on the good opinion of many. Respecting this the
plaintiffs might have inquired of others, who knew as much as
the defendant ; it was their fault that they did not, and they have
suffered damage by their own laches. It was owing to their own
gross negligence that they gave credence to the assertion of the
defendant, without taking pains to satisfy themselves that that
assertion was founded in fact, as in the case of Bayly v. Merrel.
I am, therefore, of opinion that this action is as novel in principle
as it is in precedent, that it is against the principles to be collected
from analogous cases, and consequently that it cannot be main-
tained.
Buller, J. The foundation of this action is fraud and deceit
PASLET V. FREEMAN. 7
in the defendant, and damage to the plaintiffs. And the question
is, whether an action thus founded can be sustained in a court of
law. Fraud without damage, or damage without fraud, gives
no cause of action ; but where these two concur, an action
lies. Per Croke, J., 3 Bulst. 95. But it is contended that this
was a bare, naked lie ; that, as no collusion with Falch is charged,
it does not amount to a fraud ; and, if there were any fraud, the
nature of it is not stated. And it was supposed by the counsel,
who originally made the motion, that no action could be main-
tained unless the defendant, who made this false assertion, had
an interest in so doing. I agree that an action cannot be sup-
ported for telling a bare, naked he ; but that I define to be, say-
ing a thing which is false, knowing or not knowing it to be so, and
without any design to injure, cheat, or deceive another person.
Every deceit comprehends a lie ; but a deceit is more than a lie,
on account of the view with which it is practised, its being
coupled with some dealing, and the injury which it is calculated
to occasion, and does occasion, to another person. Deceit is a
very extensive head in the law ; and it will be proper to take a
short view of some of the cases which have existed on the sub-
ject, to see how far the courts have gone, and what are the prin-
ciples upon which they have decided. I lay out of the question
the case in 2 Cro. 196, and all other cases which relate to free-
hold interests in lands ; for they go on the special reason that the
seller cannot have them without title, and the buyer is at his
peril to see it. But the cases cited on the part of the defendant
deserving notice are Yelv. 20, Carth. 90, Salk. 210. The first
of these has been fully stated by my brother Grose ; but it is to
be observed that the book does not affect to give the reasons on
which the court delivered their judgment ; but it is a case quoted
by counsel at the bar, who mentions what was alleged by counsel
in the other case. If the court went on a distinction between
the words ■• warranty " and " affirmation," the case is not law ; for
it was rightly held by Holt, C. J., in the subsequent cases, and
has been uniformly adopted ever since, that an affirmation at the
time of a sale is a warranty, provided it appear on evidence to
have been so intended. But the true ground of that determina-
tion was that the assertion was of mere matter of judgment and
opinion : of a matter of which the defendant had no particular
knowledge, but of which many men will be of many minds, and
8 DECEIT.
which is often governed by whim and caprice. Judgment, or
opinion, in such cases, implies no knowledge. And here this
case differs materially from that in Yelverton : my brother Grose
considers this assertion as mere matter of opinion only, but I differ
from him in that respect. For it is stated on this record that the
defendant knew that the fact was false. The case in Yelverton ad-
mits that, if there had been fraud, it would have been otherwise.
The case of Crosse v. Gardner, Carth. 90, was upon an affirma-
tion that oxen which the defendant had in his possession, and
sold to the plaintiff, were his, when in truth they belonged to an-
other person. The objection against the action was that the dec-
laration neither stated that the defendant deceitfully sold them,
or that he knew them to be the property of another person ; and
a man may be mistaken in his property and right to a thing with-
out any fraud or ill intent. Ex concessit therefore if there were
fraud or deceit, the action would lie ; and knowledge of the false-
hood of the thing asserted is fraud and deceit. But, notwith-
standing these objections, the court held that the action lay,
because the plaintiff had no means of knowing to whom the prop-
erty belonged but only by the possession. And, in Cro. Jac.
474, it was held that affirming them to be his, knowing them to
be a stranger's, is the offence and cause of action. The case of
Medina v. Stoughton, Salk. 210, in the point of decision, is the
same as Crosse v. Gardner ; but there is an obiter dictum of Holt,
C. J., that where the seller of a personal thing is out of possession,
it is otherwise ; for there may be room to question the seller's title,
and caveat emptor in such case to have an express warranty or a
good title. This distinction by Holt is not mentioned by Lord
Raym. 593, who reports the same case ; and if an affirmation at
the time of sale be a warranty, I cannot feel a distinction between
the vendor's being in or out of possession. The thing is bought
of him, and in consequence of his assertion ; and, if there be any
difference, it seems to me that the case is strongest against the
vendor when he is out of possession, because then the vendee has
nothing but the warranty to rely on. These cases, then, are so
far from being authorities against the present action, that they
show that, if there be fraud or deceit, the action will lie ; and that
knowledge of the falsehood of the thing asserted is fraud and
deceit. Collusion, then, is not necessary to constitute fraud.
PASLEY V. FREEMAN. -9
In the case of a conspiracy, there must he a collusion between
two or more to support an indictment ; hut if one man alone be
guilty of an offence which, if practised by two, would be the sub-
ject of an indictment for a conspiracy, he is civilly liable in an
action for reparation of damages at the suit of the person injured.
That knowledge of the falsehood of the thing asserted constitutes
fraud, though there be no collusion, is further proved by the case
of Eisney v. Selby, Salk. 211, where, upon a treaty for the pur-
chase of a house, the defendant fraudulently affirmed that the
rent was 80?. per annum, when it was only 20?. per annum, and
the plaintiff had his judgment ; for the value of the rent is a
matter which lies in the private knowledge of the landlord and
tenant : and if they affirm the rent to be more than it is, the pur-
chaser is cheated, and ought to have a remedy for it. No collu-
sion was there stated ; nor does it appear that the tenant was
ever asked a question about the rent, and yet the purchaser
might have applied to him for information ; but the judgment
proceeded wholly upon the ground that the defendant knew that
what he asserted was false. And, by the words of the book, it
seems that, if the tenant had said the same thing, he also would
have been liable to an action. If so, that would be an answer to
the objection that the defendant in this case had no interest in the
assertion which he made. But I shall not leave this point on
the dictum or inference which may be collected from that case.
If A., by fraud and deceit, cheat B. out of 1,000?., it makes no dif-
ference to B. whether A. or any other person pockets that 1,000?.
He has lost his money : and, if he can fix fraud upon A., reason
seems to say that he has a right to seek satisfaction against him.
Authorities are not wanting on this point. 1 Roll. Abr. 91, pi. 7.
If the vendor affirm that the goods are the goods of a stranger,
his friend, and that he had authority from him to sell them, and,
upon that, B. buj-s them, when in truth they are the goods of an-
other, yet, if he sell them, fraudulently and falsely, on this pre-
tence of authority, though he do not warrant them, and though
it be not averred that he sold them, knowing them to be the
goods of the stranger, yet B. shall have an action for this deceit.
It is not clear from this case whether the fraud consisted in hav-
ing no authority from his friend, or in knowing that the goods
belonged to another person : what is said at the end of the case
only proves that " falsely " and "fraudulently " are equivalent to
10 DECEIT.
" knowingly." If the first were the fact in the ease, namely, that
he had no authority, the case does not apply to this point ; but if
he had an authority from his friend, whatever the goods were sold
for his friend was entitled to, and he had no interest in them. But,
however that might be, the next case admits of no doubt. For,
in 1 Roll. Abr. 100, pi. 1, it was held, that if a man acknowledge
a fine in my name, or acknowledge a judgment in an action in my
name of my land, this shall bind me for ever ; and, therefore, I
may have a writ of deceit against him who acknowledged it. So
if a man acknowledge a recognizance, statute-merchant or staple,
there is no foundation for supposing that in that case the person
acknowledging the fine or judgment was the same person to whom
it was so acknowledged. If that had been necessary, it would
have been so stated ; but if it were not so, he who acknowledged
the fine had no interest in it. Again, in 1 Roll. Abr. 95, 1. 25, it
is said, " If my servant lease my land to another for years, reserv-
ing a rent for me, and, to persuade the lessee to accept it, he
promise that he shall enjoy the land without incumbrances, if the
land be incumbered, &c, the lessee may have an action on the
case against my servant, because he made an express warranty."
Here, then, is a case in which the party had no interest whatever.
The same case is reported in Cro. Jac. 425 ; but no notice is taken
of this point, probably because the reporter thought it immaterial
whether the warranty be by the master or servant. And if the
warranty be made at the time of the sale, or before the sale, and
the sale is upon the faith of the warranty, I can see no distinc-
tion between the cases. The gist of the action is fraud and de-
ceit ; and if that fraud and deceit can be fixed by evidence on
one who had no interest in his iniquity, it proves his malice to be
the greater. But it was objected to this declaration that, if there
were any fraud, the nature of it is not stated. To this the dec-
laration itself is so direct an answer, that the case admits of no
other. The fraud is that the defendant procured the plaintiffs to
sell goods on credit to one whom they would not otherwise have
trusted, by asserting that which he knew to be false. Here, then,
is the fraud and the means by which it was committed ; and it
was done with a view to enrich Falch by impoverishing the
plaintiffs, or, in other words, by cheating the plaintiffs out of
their goods. The cases which I have stated, and Sid. 146, and
1 Keb. 522, prove that the declaration states more than is neces-
PASLET 1'. FREEMAN. 11
sary : for fraudulenter without salens, ov seiens without fraud u-
lenter, would be sufficient to support the action. But, as Mr. J.
Twisden said in that case, the fraud must be proved. The asser-
tion alone will not maintain the action ; but the plaintiff must go
on to prove that it was false, and that the defendant knew it to
be so : by what means that proof is to be made out in evidence
need not be stated in the declaration. Some general arguments
were urged at the bar to show that mischiefs and inconveniences
would arise if this action were sustained ; for if a man who is
asked a question respecting another's responsibility hesitate or is
silent, he blasts the character of the tradesman : and if he say
that he is insolvent, he may not be able to prove it. But let us
see what is contended for : it is nothing less than that a man may
assert that which he knows to be false, and thereby do an ever-
lasting injury to his neighbor, and yet not be answerable for it.
This is as repugnant to law as it is to morality. Then it is said
that the plaintiffs had no right to ask the question of the defend-
ant. But I do not agree in that ; for the plaintiffs had an inter-
est in knowing what the credit of Falch was. It was not the
inquiry of idle curiosity, but it was to govern a very extensive
concern. The defendant undoubtedly had his option to give an
answer to the question or not ; but if he gave none, or said he
did not know, it is impossible for any court of justice to adopt the
possible inferences of a suspicious mind as a ground for grave
judgment. All that is required of a person in the defendant's
situation is that he shall give no answer, or that, if he do, he shall
answer according to the truth as far as he knows. The reasoning
in the case of Coggs v. Barnard, which was cited by the plaintiff's
counsel, is, I think, very applicable to this part of the case. If the
answer import insolvency, it is not necessary that the defendant
should be able to prove that insolvency to a jury ; for the law pro-
tects a man in giving that answer, if he does it in confidence and
without malice. Xo action can be maintained against him for giv-
ing such an answer, unless express malice can be proved. From the
circumstance of the law giving that protection, it seems to follow,
as a necessary consequence, that the law not only gives sanction
to the question, but requires that, if it be answered at all, it shall
be answered honestly. There is a case in the books which, though
not much to be relied on, yet serves to show that this kind of
conduct has never been thought innocent in Westminster Hall.
12 DECEIT.
In R. v. Gunston, 1 Str. 589, the defendant was indicted for pre-
tending that a person of no reputation was Sir J. Thornycraft,
whereby the prosecutor was induced to trust him ; and the court
refused to grant a certiorari, unless a special ground were laid for
it. If the assertion in that case had been wholly innocent, the
court would not have hesitated a moment. How, indeed, an in-
dictment could be maintained for that I do not well understand ;
nor have I learnt what became of it. The objection to the
indictment is that it was merely a private injury; but that
is no answer to an action. And if a man will wickedly assert
that which he knows to be false, and thereby draws his neighbor
into a heavy loss, even though it be under the specious pre-
tence of serving his friend, I say ausis talibus istis non jura sub-
serviunt.
Ashhurst, J. The objection in this case, which is to the
third count in the declaration, is that it contains only a bare
assertion, and does not state that the defendant had any interest,
or that he colluded with the other party who had. But I am of
opinion that the action lies notwithstanding this objection. It seems
to me that the rule laid down by Croke, J., in Bayly v. Merrel, 3
Bulstr. 95, is a sound and solid principle, namely, that fraud with-
out damage, or damage without fraud, will not found an action ;
but where both concur an action will lie. The principle is not
denied by the other judges, but only the application of it, because
the party injured there, who was the carrier, had the means of
attaining certain knowledge in his own power, namely, by weighing
the goods ; and therefore it was a foolish credulity, against which
the law will not relieve. But that is not the ease here, for it is
expressly charged that the defendant knew the falsity of the
allegation, and which the jury have found to be true ; but non
constat that the plaintiffs knew it, or had any means of know-
ing it, but trusted to the veracity of the defendant. And many
reasons may occur why the defendant might know that fact
better than the plaintiffs ; as if there had been before this
event subsisted a partnership between him and Falch, which
had been dissolved ; but at any rate it is stated as a fact that he
knew it. It is admitted that a fraudulent affirmation, when the
party making it has an interest, is a ground of action, as in Ris-
ney v. Selby, which was a false affirmation made to a purchaser
as to the rent of a farm which the defendant was' in treaty to
PASLEY V. FREEMAN. 13
sell to him. But it was argued that the action lies not, unless
where the party making it has an interest, or colludes with one
who has. I do not recollect that any case was cited which
proves such a position; but if there were any such to be
found, I should not hesitate to say that it could not be law, for I
have so great a veneration for the law as to suppose that nothing-
can be law which is not founded in common sense or common
honesty. For the gist of the action is the injury done to the
plaintiff, and not whether the defendant meant to be a gainer by
it : what is it to the plaintiff whether the defendant was or was
not to gain by it? the injury to him is the same. And it should
seem that it ought more emphatically to lie against him, as the
malice is more diabolical if he had not the temptation of gain.
For the same reason, it cannot be necessary that the defendant
shoidd collude with one who has an interest. But if collusion
were necessary, there seems all the reason in the world to sup-
pose both interest and collusion from the nature of the act ; for
it is to be hoped that there is not to be found a disposition so
diabolical as to prompt any man to injure another without bene-
fiting himself. But it is said that if this be determined to be
law. any man may have an action brought against him for telling
a lie, by the crediting of which another happens eventually to be
injured. But this consequence by no means follows ; for in
order to make it actionable it must be accompanied with the
circumstances averred in this count, namely, that the defendant,
'• intending to deceive and defraud the plaintiffs, did deceitfully
encourage and persuade them to do the act, and for that purpose
made the faLe affirmation, in consequence of which they did the
act." Any lie accompanied with those circumstances I should
clearly hold to be the subject of an action ; but not a mere he
thrown out at random without any intention of hurting any-
body, but which some person was foolish enough to act upon ;
for the quo animo is a great part of the gist of the action. An-
other argument which has been made use of is, that this is a
new case, and that there is no precedent of such an action.
Where cases are new in their principle, there I admit that it is
necessary to have recourse to legislative interposition in order to
remedv the grievance ; but where the case is only new in the
instance, and the only question is upon the application of a prin-
ciple recognized in the law to such new case, it will be just as
14 DECEIT.
competent to courts of justice to apply the principle to any case
which may arise two centuries hence, as it was two centuries
ago ; if it were not, we ought to blot out of our law-books one
fourth part of the cases that are to be found in them. The same
objection might in my opinion have been made with much greater
reason in the case of Coggs v. Barnard ; for there the defendant,
so far from meaning an injury, meant a kindness, though he was
not so careful as he should have been in the execution of what
he undertook. And indeed the principle of the case does not in
my opinion seem so clear as that of the case now before us, and
yet that case has always been received as law. Indeed, one great
reason, perhaps, why this action has never occurred may be that it
is not likely that such a species of fraud should be practised unless
the party is in some way interested. Therefore I think the rule
for arresting the judgment ought to be discharged.
Lord Kenyon, C. J. I am not desirous of entering very
fully into the discussion of this subject, as the argument cqmes
to me quite exhausted by what has been said by my brothers.
But still I will say a few words as to the grounds upon which my
opinion is formed. All laws stand on the best and broadest
basis which go to enforce moral and social duties. Though,
indeed, it is not every moral and social duty the neglect of which
is the ground of an action. For there are, which are called in
the civil law, duties of imperfect obligation, for the enforcing of
which no action lies. There are many cases where the pure
effusion of a good mind may induce the performance of partic-
ular duties, which yet cannot be enforced by municipal laws.
But there are certain duties, the non-performance of which the
jurisprudence of this country has made the subject of a civil
action. And I find it laid down by the Lord Ch. B. Comyns,1
that " an action upon the case for a deceit lies when a man does
any deceit to the damage of another." He has not, indeed, cited
any authority for his opinion ; but his opinion alone is of great
authority, since he was considered by his contemporaries as the
most able lawyer in Westminster Hall. Let us, however, con-
sider whether that proposition is not supported by the invariable
principle in all the cases on this subject. In 3 Bulstr. 95, it
was held by Croke, J., that " fraud without damage, or damage
without fraud, gives no cause of action ; but where these two do
1 Cora. Dig. tit. " Action upon the case for a deceit,1' A. 1.
PASLEY V. FREEMAN. 15
concur, there an action lieth." It is true, as has been already ob-
served, that the judges were of opinion in that case that the action
did not lie on other grounds. But consider what those grounds
were. Dodderidge, J., said : " If we shall give way to this, then
every carrier would have an action upon the case ; but he shall not
have any action for this, because it is merely his own default that
he did not weigh it.*' Undoubtedly, where the common prudence
and caution of man are sufficient to guard him, the law will not
protect him in his negligence. And, in that case, as reported in
Cro. Jac. 3S6, the negligence of the plaintiff himself was the
cause for which the court held that the action was not maintain-
able. Then, how does the principle of that case apply to the
present ? There are many situations in life, and particularly in
the commercial world, where a man cannot by any diligence in-
form himself of the decree of credit which ought to be given to
the persons with whom he deals ; in which cases he must apply
to those whose sources of intelligence enable them to give that
information. The law of prudence leads him to apply to them ;
and the law of morality ought to induce them to give the infor-
mation required. In the case of Bulstrode, the carrier might have
weighed the goods himself ; but in this case the plaintiffs had no
means of knowing the state of Falch's credit but by an applica-
tion to his neighbors. The same observation may be made to the
cases cited by the defendant's counsel respecting titles to real
property. For a person does not have recourse to common con-
versation to know the title of an estate which he is about to pur-
chase ; but he may inspect the title-deeds : and he does not use
common prudence if he rely on any other security. In the case
of Bulstrode, the court seemed to consider that damnum and in-
juria are the grounds of this action ; and they all admitted that,
if they had existed in that case, the action would have lain there ;
for the rest of the judges did not controvert the opinion of Cioke,
J., but denied the application of it to that particular case. Then
it was contended here that the action cannot be maintained for
telling a naked lie ; but that proposition is to be taken sub modo.
If, indeed, no injury is occasioned by the lie, it is not actionable ;
but if it be attended with a damage, it then becomes the subject
of an action. As calling a woman a whore, if she sustain
no damage by it, is not actionable ; but if she lose her mar-
riage by it, then she may recover satisfaction in damages. But
16
DECEIT.
in this case the two grounds of the action concur : here are both
the damnum et injuria. The plaintiffs applied to the defendant,
telling him that they were going to deal with Falch, and desiring
to be informed of his credit, when the defendant fraudulently,
and knowing it to be otherwise, and with a design to deceive the
plaintiffs, made the false assertion which is stated on the record, by
which they sustained a considerable damage. Then, can a doubt
be entertained for a moment but that this is injurious to the plain-
tiffs ? If this be not an injury, I do not know how to define the
word. Then, as to the loss : this is stated in the declaration, and
found by the verdict. Several of the words stated in this dec-
laration, and particularly fraudulenter, did not occur in several of
the cases cited. It is admitted that the defendant's conduct was
highly immoral and detrimental to society. And I am of opinion
that the action is maintainable on the grounds of deceit in the
defendant, and injury and loss to the plaintiffs.
Mule for arresting the judgment discharged.
Historical. — The history of actions
of deceit runs back to an early period
in the English law. Many writs (and
writs were precedents while pleadings
were oral) of deceit are given in the
Register, both original and judicial
(Original Writs, pp. 112 et seq. ; Judi-
cial Writs, pp. 6 b, 9 b, 10, 18, 37, 51 &,
52, 59 6, 65 6, 66, 70 &, 77 6) ; and this,
we need hardly say, is one of the oldest
authorities in our law. But we are not
to place too much reliance upon Lord
Coke's statement that the Register
antedates the Conquest (a. d. 1066).
Pref. 10 Rep. p. xxiv; 4 Inst. 140; Dug-
dale's Orig. p. 56. The improbability
of this was long since shown by Hickes.
See his Thesaurus, Dissertatio Epist.
p. 8. Much of the Register is quite
modern.
Now, the writ of deceit in its per-
fect form, as seen in the Register, was,
it might be surmised, an evolution from
something already in existence ; and of
this we find strong confirmation. Sev-
eral of the writs of deceit in the Register
(as above cited) are actions for the re-
covery of lands adjudged to another in
a real action through the fraud of the
demandant, or of his sheriffs or offi-
cers ; such, for instance, as the false
return of the summoners, that the tenant
(now plaintiff) had been summoned.
The same proceeding is described in
Bracton, who wrote about the middle of
the 13th century ; and the writ is given
by him in full. It was as follows : —
" Rex vicecomiti salutem. Praecipi-
mus tibi quod habeas coram justitiariis
nostris etc. talem petentem, scilicet, ad
audiendum judicium suum et considera-
tionem curias nostrse de hoc, quod ipse
per malitiam et manifestam falsitatem
fecit disseysiri talem de tanta terra cum
pertinentiis, etc. Et unde cum idem
B. nullam haberet summonitionem optu-
lit se idem A. (i. e. petens, the former
plaintiff) versus eum, ita quod terra
eapta fait in manum nostram semel et
secundo et per quam defaltem idem A.
HISTORICAL.
17
terram illam reeuperavit desieut ilia
defalta nulla fuit ut dicit ; et catella
ipsius B. in eadt-m terra tunc inventa et
ei oeeasione pradicta oblata eidern sine
dilatione reddi facias et restitui. Prje-
eipimus etiam tibi quod habeas coram
etc., ad eundein terminum, A. et B. per
quos summonitio prima facta fuit et in
curia nostra testata, et pneterea qua-
. tuor illos per quorum visum terra ilia
eapta fuit in nianuin nostrani, et per
quos captio ilia testificata fuit in curia
nostra etc. et etiam illos per quos se-
cunda summonitio facta fuit et testata
ad testificandum justiciaries nostros de
pnedietis suminonitionibus et captioni-
bus. Et habeas ibi hoc breve. Teste,
etc." Bracton, 335 6.
The summoners and the four knights
were then to be examined as to the truth
of the complaint ; and, if they were all
agreed that summons had been duly
made, the defence was to take place by
law-wa;_rer; but, if they did not agree on
the examination, the former judgment
was to be annulled, and possession re-
stored to the plaintiff in the writ. And
if it should appear that the plaintiff
was in fault, he was to be amerced,
lb. 336, 367.
If the above writ from Bracton be
compared with the judicial writ of the
Register, 6 6 (part 2), it will be found
that the only difference is that the latter
sets out an actual case, with descripiion
of parties, tenements, &c, and that the
wrong is alleged to be " in deceit of
our court." It is clear that it is only a
more perfect development of the writ
of Bracton.
The same form of proceeding is de-
scribed by Fleta, who wrote about a
quarter of a century, or a little more,
after Bracton (near the close of the
13th century). Fleta only gives the
substance of the writ; and this, as
usual, in the language of Bracton.
Lib. 6, c. 6. § 19, p. 380. But else-
where (lib. 2, c. 1, § 13, p. 64) he
speaks of the punishment of " deceiv-
ers of the king's court and the party,"
using the words contained in writs of
deceit of the Register; which indicates
that the writ had now assumed its set-
tled form.
The above is the only writ given by
Bracton which can be considered as
the prototype of the writ of deceit. But
he mentions elsewhere another action
which was clearly a case of deceit. In
speaking of pleas to writs in general,
he says that a writ fails when it is ob-
tained by false suggestion or suppres-
sion of the truth ; ' ' and at the same
time an action to the damage of [i. e.
against] the party who obtained it is
given." Lib. 5, c. 17, § 2, p. 4U.
And he gives as an example of the
former the case of one who represents
himself to be an heir when he is not, —
a point which had been decided in the
fourth year of King Henry (2d?),
Trinity term. A writ of this kin 1 is
given at length in the Register,
pp. 114 6, 115; and this writ also
runs "in deceit of our court."
In Glanville, who wrote about sev-
enty-five years before Bracton, we find
a writ, apparently at the instance of
the crown, against one who had fal.-ely
essoined the tenant in a real action.
The w.rit was as follows: "The king
to the sheriff, greeting, — I command
you that without delay you diligently
seek through your county A., who has
falsely essoined B. against C. in my
court, and that you safely keep liim
until you have my other precept. Wit-
ness, &c."
Compare with this the writs of the
Reg^ter against false essoiners, and it
will be clear that they are developed
18
DECEIT.
from the writ in Glanville. Register,
116 ; Fitzherbert's Natura Brevium, 96
B. ; infra, p. 19, where we give at length
a writ in deceit of the court and the
plaintiff, in which the latter had sued a
pracipe quod reddat against divers
tenants, who purchased a protection
for (i.e., essoined) one of them, falsely
affirming that he was beyond sea, in the
king's service, whereby the demandant
was delayed in his suit. And see a
case of this kind, 20 Hen. 6, p. 10.
Within two or three years after
Fleta wrote, we find mention of a writ
of deceit eo nomine, in the Year-Book
of 21 Edw. 1, p. 44, Horwood ; being
A. D. 1493. This is the first regularly
reported case on the subject. The plain-
tiff had recovered judgment against an-
other in debt, and had directed the
sheriff to levy on certain corn of the
defendant. The sheriff returned nulla
bona; whereupon the plaintiff sued out
a writ of deceit. He, however, failed
in his proof (by the refusal of the court
to allow his attorney to testify because
he was not a party to the action), and
he was amerced. The form of this writ
is not given ; but it is stated that it ran
" in deceit of the court."
It may not be certain that this was
not a new writ. The Statute of West-
minster 2, c. 24, had been passed about
eight years before (and about five years
before Fleta was written), which au-
thorized the clerks in chancery to form
writs in consimili casu to those already
in existence, where the plaintiff was
justly entitled to a remedy, but could
not bring his case within any of the ex-
isting writs. And it is possible that
this writ against the sheriff was formed
under the authority of this act; but
there is nothing to indicate that the
action was new. And the presence
of the words quoted indicates pretty
strongly that it was not. An act done
"in deceit of the court and a party"
was a crime as well as a civil injury;
the law imposing a year's imprisonment
upon the offender. Fleta, lib. 2, c. 1,
§ 13, p. 64. And as the dignity and
usefulness of courts could not be main- _
tained if such acts were allowed, it is
not probable that this punishment was
any new thing. Now civil redress was
often given in criminal actions in these
early, and even in later times (see the
notes on Assault and Battery, Tres-
passes upon Property, and Conver-
sion) ; and we therefore conclude
that writs against the sheriff for a
false return probably antedated the
statute. It may be observed, also,
that the writ in the case referred to
was a judicial writ ; and Bracton (who
wrote before the Statute of Westmin-
ster) says that such writs were fre-
quently varied according to the variety
of pleas. Lib. 5, c. 17, § 2, p. 413 6.
So, it would not follow that because
actions against the sheriff for a false
return may have been later than the
other writs of deceit above referred to,
they must have been founded on the
statute.
But, however this maybe, it is clear
that the typical writ of deceit of the old
law was one of the above class, in which
the wrong was alleged to be in deceit
of the court ; and that such writs were
in use, though not in their fully devel-
oped form, long before the statute
under which actions on the case arose.1
The necessities of the proper adminis-
tration of justice, as well as the in-
i There are also several writs of deceit in the Register against counterfeiters of private seals,
which probably sprung from the criminal prosecution for the crimen falsi, and may have pre-
ceded the statute. 112 b, 1144, 116 b. See Bracton, 118 b, 119 b, 413 b; Fleta, 32.
HISTORICAL.
19
jured rights of the complaining party,
required theni
We give now the form in full of two
of the shorter of these typical writs of
the Register, presenting them in Fitzher-
bert's translation. The first was directed
against one who had fraudulently ob-
tained a writ in the name of another : —
" The king to the sheriff of L. greet-
ing. — If A. shall make you secure, i&c. ,
then put, &c, P., &c, as well to answer
us as the aforesaid A., wherefore he
fraudulently and maliciously, in our
Court of Chancery, obtained our cer-
tain writ by a fine of twenty shillings,
taken for our use, for the writ afore-
said, in the name of the aforesaid A.,
who was wholly ignorant of this, in de-
ceit of our court, to the great damage
of the said A. And have you there
the names of the pledges and this writ,
&c." Xatura Brevium, p. 96 A.
The next was against tenants who
had purchased a false protection. "If
A. shall make you secure, &c, then
put B. and C, &c, that they be before,
&c, as well to answer us as A. ; where-
fore, whereas he, the said A., in our
court, before our justices of the bench,
impleaded by our writ the aforesaid B.
and C. of three parts of the manor of
S., with the appurtenances, they, the
said B. and C, inanife^lv contriving to
evade our court and the law and cus-
tom of our realm of England, and to
delay the prosecution of the aforesaid
A. in this behalf, at a certain day pre-
fixed to the said parties in the same
plea before the said justices, caused to
be produced before the said justices our
certain letters of protection, compriz-
ing that he, the said C, was then gone
into parts beyond the seas, in our ser-
vice, and so he was to be quiet touch-
ing all pleas and complaints, except
pleas unde nihil, &c, and except pleas
in which he might happen to be sum-
moned before our justices in eyre in
their circuits, he, the said C, being
then, afterwards, and before that time,
continually residing in England, by
which that plea before the said justices
remained without day, in manifest con-
tempt of us, and in deceit and manifest
evasion of our court aforesaid, and of
the laws and custom aforesaid, and also
to the great expense and manifest dan-
ger of disherism of him, the said A.
And have there," &c. Nat. Brev. 97 B.
The interesting fact in the history of
this writ remains to be mentioned ;
namely, that the writ of deceit was
taken as a model in framing new reme-
dies under the St. of Westni. 2. We
are wont to suppose that trespass was
the universal model, as in our day tres-
pass on the case, and its offspring
assumpsit, are alone in use, even deceit
having lost in the former its individ-
uality. But there was a time, a period
of at least a century and a half, after
the above statute when the writ of deceit
was used as a model for new writs ; and
during this period we have frequent
mention of writs of deceit on the case,
eo nomine. Year Book, 9 Hen. 6, p. 53,
pi. 37 ; s. c. post, p. 34 ; 16 Edw. 4, p. 9 ;
Old Xatura Brevium, p. 58 (ed. 1528).
The first of these cases was an action
for fraud in the sale of wine ; the liquor
proving to be sour and unfit to drink.
The second was an action for the failure
of the defendant to properly perform an
agreement to enfeoff the plaintiff; the
defendant having, after his promise
enfeoffed another (see infra). And
in the Old Natura Brevium, as cited, it
is stated that if, after a writ of deceit
granted to a tenant, who has lost seizin
of his land by judgment without
summons, against the demandant and
summoners, the summoners die before
20
DECEIT.
they are examined of the alleged deceit,
the tenant shall never recover the land
(since they alone could give evidence
that summons was made) ; but the
tenant shall then have a writ of deceit
upon his case against the sheriff, and
recover against him all his damages.
That the above cases of actions for
fraud in contracts were not at first con-
sidered proper subjects for trespass on
the case, and that that action was con-
sidered as distinct from deceit on the
case, is clear from several cases. Thus,
in one action the plaintiff declared in
trespass on the case that the defendant
had sold to him a horse, warranting him
sound, knowing that he was full of mala-
dies in his eyes and legs. To which the
court said : " This writ supposes a false
and fraudulent sale, which sounds in
deceit.'1 Bellewe, Cas. t. Rich. 2, p. 139.
But trespass on the case soon began
to encroach upon deceit. In the reign
of Henry 6, the former came to be
used, where the latter had been, against
an escheator for a false return : 9 Hen.
6, p. 60 ; and in some cases the distinc-
tion between the two writs was very
nice. Mr. Reeves mentions the follow-
ing distinction as taken in a case in the
Year Book of 20 Hen. 6, p. 34 : Where
a person made a promise to do anything
and broke that promise, trespass on the
case lay ; but if he performed it nomi-
nally, but by some false dealing ren-
dered the performance of no effect,
deceit lay. As if a man who bad
undertaken to enfeoff another, first
charged the land or enfeoffed a stranger,
and then entered and made the feoffment
which he had promised to make, this was
a case for the writ of deceit. 2 Reeves's
Hist. Eng. Law, 606, Finl. ed. See also
16 Edw. 4, p. 9 ; 3 Hen. 7, p. 14.
The subsequent history of this ancient
writ is shortly told. So far as it lay
for the recovery of lands obtained under
a void judgment operating as an audita
querela for setting aside the judgment,
it was abolished by statute in the reign
of William 4th. 3 & 4 Wm. 4, c. 27.
So far as it was used as an action for
the breach of a parol contract, it was
gradually superseded in practice by
assumpsit; and in all other cases it
finally lost its individuality, — so far as
that consisted in giving it an existence
of its own, distinct from other actions,
— in the sweeping advance of trespass
on the case: The name is still retained ;
but for a century or more that has been
used to indicate the nature of the sub-
ject-matter rather than a peculiar form
of action. Deceit has been fused with
the younger and more vigorous action
of trespass on the case, or rather has
become one of its species.
Knowledge of Falsity. — Generally
speaking, an honest statement of fact,
though made with a view to being acted
upon, and justifying action upon it in
the light of ordinary transactions, will
not, upon turning out to be untrue, cre-
ate a liability for damages on the part
of the person making it. Knowledge of
the falsity of the statement must be fixed
upon the defendant. Collins v. Evans,
5 Q. B. 820, 826 ; Ormrod v. Huth, 14
Mees. & W. 651, 664; Behn v. Kem-
ble, 7 C. B. n. s. 260 ; Barley v. Wal-
ford, 9 Q. B. 197, 208; Thorn v.
Bigland, 8 Ex. 725; Childers v.
Wooler, 2 El. & E. 287; Mahurin
v. Harding, 28 N. H. 128; Evertson
v. Miles, 6 Johns. 138 ; Case v. Bough-
ton, 11 Wend. 106, 108; Carley ».
Wilkins, 6 Barb. 557 ; Edick v. Crim,
10 Barb. 445. Though the contrary
was at one time supposed to be law.
Fuller v. Wilson, 3 Q. B. 58 ; ib. 1009;
Evans o. Collins, 5 Q B. 805, revd. 820.
The well-known case of Cornfoot v.
KNOWLEDGE OP FALSITY.
21
Fowke, C Mees. & W. SoS. though an
action of contract, is generally referred
to in this connection. A statement had
been made by an agent which was false
to the knowledge of the principal, but
not to the knowledge of the agent ; and
there was nothing to ^ow that the prin-
cipal had authorized the statement, or
that he knew it had been made. These
facts were htld insufficient to support
the defence of fraud. The case has
often been discussed and criticised ; buC
whatever may be said of its soundness
as a defence to an action in contract
(see the dissenting opinion of Lord
Abinger, C. B ) . had it been an action
in tort for the false statement, its cor-
rectness could hardly be doubted.
But the honesty of the statement is
not always a pood answer to an action
of deceit. A distinction between moral,
or actual, and legal, or constructive,
fraud has been taken in many of the
cases, and particularly in Haycraft c.
Creasy, 2 East. 92, and in Taylor p.
Ashton, 11 Mees. & AV. 401. (It is
proper to remark that the term " fraud,"
as used in tlis connection, means merely
knowledge of the falsity of the repre-
sentation ; though in its proper sense
it means not only this, but, in addition,
an intent to injure.)
In H.ivcraft v. Creasy, Lord Kenyon
thought that for the defendant to have
stated a fact as of his own positive
knowledge, of which, in truth, he pos-
sessed no knowledge, was legal, as
opposed to actual, fraud, and, other ele-
ments concurring, was sufficient to sus-
tain an action in tort The majority of
the court were against him, though on
the ground that the facts upon which the
representation was made were mere
matter of opinion. Had not this been
the case, the position of Lord Kenyon
would clearly have been correct. Such
a representation implies that the party
claims to have positive evidence of the
fact stated, amounting to proof; and if
he had no evidence of the fact at all, he
has plainly told what he knows to be
false. He has not made a mistake ; he
has told a lie. Whereas, if he had made
the very same statement upon some
knowledge, actual or supposed, which
had turned out erroneous or had given
rise to wrong deductions, he could well
be permitted to prove his honesty.
Mr. Justice Maule, in Evans v. Ed-
monds, 13 C. B. 777, 786, says that in
such cases a party takes upon himself to
warrant his own belief of the truth of
that which he asserts. And many other
expressions to the same effect may be
found in the books. See Smout r. H-
bery, 10 Mees. & AV. 1; Jenkins v.
Hutchinson, 13 Q. B. 748; Randell v.
Trimen, IS C. B. 786 ; Pawson v. AVat-
son, 2 Cowp. 788 ; Pulsford v. Richards,
17 Beav. 87, 94; Milne v. Marwood,
24 Law J. C. P. 36, 37 ; Western Bank
t. Addie, Law R. 1 Scotch, 145 ; Reese
Silver Mining Co. v. Smith, Law R. 4
H. L. 64; Lobdell i: Baker, 1 Met.
193, 201 ; Bennett r. Judson, 21 ST. Y.
138 ; 1 Story, Eq. Jur. § 193.
So, too, a person 's often held liable
for misrepresentations of fact, though
not made with actual fraud, where the
facts are such as are peculiarly within
his own knowledge. See the remarks
of Cresswell, J., and AVilde, C. J., in
Jarrett c. Kennedy, 6 C. B. 319, 322.
The case of Taylor v. Aslitun, 11
Mees. & AAT. 401, may be explained
upon this ground. That was an action
on the ca^e for misrepresentations in
certain reports put forth by the defend-
ants to induce parties to become share-
holders in a banking enterprise ; the
reports falsely exhibiting the enterprise
to be in a prosperous condition. It was
22
DECEIT.
held that it was not necessary to show
that the defendants knew that the
representations were false. The facts
were peculiarly within their own knowl-
edge.
Under this class of cases may also
be included cases of express and im-
plied representations of agency. In-
deed, it is in cases of this kind that the
doctrine under consideration has been
most often asserted. It is settled law
that if a person honestly assume to act
for another in respect of a matter over
which he has no authority, he renders
himself liable to an action ; the action
being sometimes said to be for the
breach of an implied warranty of au-
thority, and in others for a false repre-
sentation. See Collen v. Wright, 8 El.
& B. 647; Randell v. Trimen, 18 C. B.
786 ; Cherry v. Colonial Bank, Law
K. 3 P. C. 24; Pow v. Davis, 1 Best &
S. 220; Spedding v. Nevell, Law R. 4
C. P. 212; Godwin v. Francis, Law R.
5 C. P. 295; Richardson v. Williamson,
Law R. 6 Q. B. 276 ; White v. Madi-
son, 26 N. Y. 117, 124; Jefts v. York,
4 Cush. 371 ; Bartlett i>. Tucker, 104
Mass. 336 ; Johnson v. Smith, 21 Conn.
627 ; Noyes v. Loring, 55 Maine, 408 ;
McCurdy v. Rogers, 21 Wis. 197, 202.
(Assumpsit for breach of warranty, it is
to be observed, is often a concurrent
remedy with deceit;' and in that form of
action the allegation of a scienter is of
course unnecessary. See Mahurin v.
Harding, 28 N. H. 128.)
That these cases are to be sustained,
if at all, upon the principle that the
facts are peculiarly within the knowledge
of the professed agent, finds support in
the remarks of Jervis, C. J., in the
course of the argument in Randell v.
Trimen, supra. The report runs thus :
Counsel for Hie defendant. " There is
no pretence, upon the evidence, for
saying that the defendant wilfully mis-
represented his authority." Jervis,
C. J. " The defendant is clearly liable
for his misrepresentation as to his being
authorized to order the stone in the
name of the Rev. Mr. Ireland." Coun-
sel. " Even though he were honestly
mistaken ? " Jervis, C. J. " Yes."
Counsel. " That, it is submitted, is
contrary to the doctrine laid down by
the Court of Exchequer in Smout v.
•Ilbery, 10 Mees. & W. 1." Jervis,
C. J. " In that case there was no rep-
resentation at all by the defendant.
The plaintiff was misled by a circum-
stance equally within the knowledge and
beyond the control of both parties." And
this is one of the grounds upon which
the court in Smout v. Ilbery rest their
decision. That was an action of debt
against a married woman for meat sup-
plied. It appeared that the husband,
having been in the habit of dealing with
the defendant, went abroad, leaving his
wife and family behind, and there died.
And it was held that she was not liable
for meat supplied before information of
her husband's death was received.
Other cases of the same character
will be readily suggested ; as where the
agency of a party is determined by a
dissolution of the partnership of the
principals residing in a distant place,
the fact being unknown to the defend-
ant (the professed agent) at the time of
the transaction in controversy ; or where
a foreign agency is suspended or ter-
minated by a declaration of war against
the country in which the agent resides.
In such cases, the facts not being more
within the knowledge of the defendant
than of the plaintiff, this action cannot
be maintained.
The result of the cases upon this
point we understand to be this : The
representation complained of must be
KNOWLEDGE OF FALSITY.
23
proved to have been made with actual been the subject of more perplexing
knowledge of its falsity; unless (1) it doubts and conflicts than the question
be made of the party's own positive of the liability in tort of a principal
knowledge when he knows nothing at for such misrepresentations of his
all about it ; or unless (2) it be made of agent as are known by the agent to be
a fact peculiarly within his knowledge, false, but not by the principal. In
i.e., his means of knowledge, and not America it has generally been held that
so within the plaintiff's. But if the an action of deceit may be maintained
statement amount only to an expression against the principal ; but the cases are
of opinion, no right of action will arise, at variance as to the ground of liabil-
A fortiori, if the plaintiff knew the ity. In England the whole subject has
truth, he cannot maintain the action, until recently been in a very unsettled
since he has not been deceived. state ; and it is not yet free from diffi-
There is another case which should cullies,
be mentioned as being somewhat related The American courts in most cases
to this subject. It is this : that where have implicitly followed the doctrine of
an action is brought against a party Hern r. Nichols, 1 Salk. 589, but gener-
■who is bound to indemnify the plaintiff ally with little or no investigation of the
for an act done by the defendant's au- proper limitations of that case. This is
thority upon a false represensation made somewhat remarkable, as Hern v. Xich-
by him, — as in the case of an action by ols is but a briefly reported nisiprius de-
a sheriff against an attorney who has cision. The case was this : The plaintiff,
required him to levy upon certain goods in an action of deceit, set forth that he
as the property of a judgment debtor had bought several pieces of silk for
when they were not his property, or to silk, whereas it was another kind of
take the body of such a person as the silk, and that the defendant, well know-
one designated in the writ, when he was ing this deceit, sold it to him for
not the person, — in these cases it is silk. On trial, upon not guilty, it
not necessary for the plaintiff to prove appeared that there was no actual
that the defendant knew that his state- deceit in the defendant, who was the
ment was false. Humphries v. Pratt, merchant, but that it was his factor
5 Bligh, >-. s. 154; Collins v. Evans, beyond sea; and the doubt was, if this
5 Q. B. 820. In such cases the action deceit could charge the merchant. And
in reality is for indemnification over, Holt, C. J., was of opinion that the
and not. properly speaking, for deceit, merchant was answerable for the deceit
In the further consideration of the of his factor, though not criminaliter,
scienter it remains to consider the effect yet civililer; for seeing somebody must
upon an innocent principal of the fraud- be a loser by this deceit, it is more rea-
ulent representations of his agent.1 If son that he that employs and puts a trust
the principal authorized the statement, and confidence in the deceiver should
the sime rule will prevail as if he had be a loser than a stranger. And upon
made itbimself. Infra, p. 33. But while this opinion the plaintiff had a verdict.
this is clear, few points in the law have Among the American cases, Jeffrey
1 The author published the substance of the following consideration of the misrepresen-
tations of agents as an article in the "American Law Review," of July, 1874. 8 Am. Law
Rev. 631.
24
DECEIT.
v. Bigelow, 13 Wend. 518, is often
referred to. The facts in this case, in
brief, were that one Stevens, an agent
of the defendants, had sold to the
plaintiff sheep infected with the scab,
which fact was at the time known to
the agent, but not to the defendants.
The fact of the disease was known to
one Hunt, who at the sale was a partner
of the defendants, to whom he had
before the action assigned all his inter-
est. In an action on the case for fraud
the defendants were held liable, both
for the loss of the sheep sold by their
agent, and of others that had become
infected by them. Much was said in
the opinion of the court to the effect
that, Hunt being a partner, his knowl-
edge was notice to his copartners, the
defendants ; also that Stevens was a
general agent in relation to the sale ;
and the doctrine of Lord Holt, supra,
of trust and confidence reposed in the
agent, was adopted. Hunt's connec-
tion with the case does not appear to
be important ; for as partner he was
only a general agent of the firm, and
there was no evidence that he had in
fact communicated his information to
the defendants.
The leading case in Massachusetts
is Locke v. Stearns, 1 Met. 560. This
was trespass upon the case in the nature
of deceit. One of the defendants, who
were partners, had sold divers quan-
tities of meal as linseed meal, when in
fact it was a mixture of linseed and
teilseed meal ; the latter being inferior
in quality to the former. The judge
charged the jury that if one of the
defendants sold the meal to the plain-
tiff, knowing that teilseed meal was
inferior in quality and value to linseed
meal, this knowledge would bind all the
defendants ; and the charge was sus-
tained. Af.er mentioning that the de-
ceit was resorted to for the defendants'
benefit, the ground taken in Hern o.
Nichols was again referred to with
approval. And it was also said to be a
general rule that one partner is liable for
damages sustained by the deceit or other
fraudulent act of his copartner, done
within the scope of his authority ; citing
Rapp v. Latham, 2 Barn. & Aid. 795,
and Willet v. Chambers, 2 Cowp. 814.
The case of Bennett v. Judson, 21
N. Y. 238, though holding a similar
doctrine, marks a departure from the
above cases in the ground of liability.
That was an action for fraud in the sale
of land by the defendant's agent.
"There is no evidence,'' said Corn-
stock, C. J., delivering the judgment
of the court, "that the defendant
authorized or knew of the alleged fraud
committed by his agent Davis in nego-
tiating the exchange of lands. Never-
theless, he cannot enjoy the fruits of
the bargain without adopting all the
instrumentalities employed by thengent
in bringing it to a consummation. K
an agent defrauds the person with whom
he is dealing, the principal, not having
authorized or participated in the wrong,
may no doubt rescind when he dis-
covers the fraud, o\ the terms of mak-
ing complete restitution. But so long
as he retains the benefits of the dealing
he cannot claim immunity on the ground
that the fraud was committed by his
agent, and not by himself."
This ground, as we have stated, was
suggested in Locke v. Stearns, supra ;
and had it not been for the ruling that
the defendant in Jeffrey ». Bigelow,
supra, was liable for the loss of other
sheep than those sold by him, that case
would also have been covered by the
rule in Bennett v. Judson. A rule
similar to that in Jeffrey v. Bigelow, in
not confining the liability of the prin-
KNOWLEDGE OP FALSITY.
25
cipal to the profit derived by him, was
declared in White v. Sawyer, 16 Gray,
586. " No question is made by the
defendant's counsel," said the court,
" of the correctness of the doctrine
that a principal is liable for the false
representations of his agent, although
personally innocent of the fraud. It
is settled by the clear weight of author-
ity." The point was therefore not con-
sidered in the case. And the same is
true, so far as appears from the opinion,
of the other point, extending the dam-
ages beyond the profit derived.
All of the other American cases are
like Judson t-. Bennett ; the defendant
being held liable where he has received
a benefit from the act of his agent. In
none of them is it suggested that his
liability is to be pushed beyond this
point. See Allerton v. Allerton, 50
N. Y. 670; Craig d. Ward, 3 Keyes,
393; Elwell i: Chamberlin, 31 X. Y.
619 ; Chester v. Dickerson, 52 Barb.
349; Graves v. Spier, oS Barb. 387;
Hunter v. Hudson River Iron Co., 20
Barb. 493; Sharp v. Xew York, 40
Barb. 257; Davis p. Bemis, 40 X. Y.
453, note; Durst v. Burton, 2 Lans.
137; s. c. 47 X. Y. 167; Sandford v.
Handy, 23 Wend. 260. In Cook v.
Castner, 9 Cush. 266, the action was in
assumpsit to recover the consideration
paid in a transaction brought about by
the fraudulent representations of one of
the defendants, who were partners.
Here, of course, tfce measure of dam-
ages is plain ; and this is doubtless the
proper form of action for such cases.
But while most of these cases were
decided upon the ground taken in Jud-
son o. Bennett, some of them also refer
to the doctrine of Hern v. Nichols.
See Davis v. Bemis and Sandford i>.
Handy, supra. Mr. Justice Nelson, in
Sandford v. Handy, after quoting the
language of Lord Holt, says that the
agent is " held out as fit to be trusted,
and his fidelity and good conduct in
the matter thereby recommended. At-
torney-General v, Siddon, 1 Tyrwh.
46, Bayley, B. ; Smith's Mer. Law, 70 ;
Story's Coram. Agency, § 465. And
where one ' of two innocent persons
must sufFer by the fraudulent act of a
third, the one who enables such third
person to commit the fraud must bear
the loss." The first part of this lan-
guage seems to be only another way of
putting the doctrine of Hern v. Nich-
ols. The trust and confidence reposed
in the agent is manifested by holding
him out as such.
Let us now turn to the English
cases. The question has there more
frequently arisen as to the liability of
corporations for misrepresentations of
their directors or other managers. In
Dodgson's Case, 3 De Gex & S. 85, the
plaintiff had been induced to purchase
shares in a failing concern by the fraud
of the directors, and brought suit in
equity to have his name taken off the
list of contributories in winding-up
proceedings. But the Vice-Chancellor
held that the fraud of the directors
could not affect the general body of
shareholders, i.e., the company. This
case was followed by Vice-Chancellor
Parker, in Bernard's Ca.-e, 5 De Gex
& S. 289, who there said : " Dodgson's
Case shows that the directors cannot
be the agents of the company to com-
mit a fraud; and, therefore, even if
Mr. Bernard had been induced to take
shares by the misrepresentaton of the
directors, that was no reason why he
should not be a contributory." In
Brockwell's Case, i Drewrv, 205, Vice-
Chancellor Kindersley held the con-
trary on similar facts ; but this case
was soon after overruled by the Lord
26
DECEIT.
Chancellor and Lords Justices in ap-
peal. Mixer's Case, 4 De Gex & J.
575. " Clearly,'' said the Lord Chan-
cellor, " there was fraud, and gross
fraud, on the part of the directors, and
I have no doubt that Mixer was induced
by fraud to take his shares. I think,
however, that it was a fraud on -the
part of the directors which cannot be
attributed to the company."
These, being cases of rescission, are,
it is true, explainable on the ground of
laches and change of position, or par-
ticipation in the profits of the corpora-
tion or company. In Dodgson's Case the
shares were purchased in 1846, and the
claim to be relieved was not made until
in 1849, though the plaintiff had re-
ceived no dividends. In Bernard's Case,
the complainant had received dividends
on his shares for several years. In
Mixer's Case the Lord Chancellor said :
" Supposing it to have been a fraud on
the part of the company, I do not think
that the appellant is now entitled to
avail himself of it and rescind the con-
tract. [See Parbury's Case, 3 De Gex
& S. 43]. It is a settled rule that a
contract obtained by fraud is not void,
but that the party defrauded has a right
to avoid it if he does so while matters
can be replaced in their former position.
In each case we must look to see whether
the contract has been acted upon. If it
has been acted upon by the party de-
frauded, so that others who are in-
terested cannot be restored to their
former rights, the contract cannot be
rescinded, and nothing remains to the
party defrauded but a reparation in
damages.'' See also Nicol's Case, 3 De
Gex & J. 387, where, apart from con-
siderations of the above character
(which prevented recovery), the Lord
Chancellor and Lord Justice Turner
were at variance as to whether the
company could be chargeable with the
misrepresentations of the directors in
the course of the business. See further,
Parbury's Case, 3 De Gex & S. 43 ;
Bell's Case, 22 Beav. 35 ; Holt's Case,
ib. 53; Burnes u. Penncll, 2 H. L.
Cas. 497 ; Deposit Life Assur. Co. v.
Ayscough, 6 El. & B. 761 ; Barrett's
Case, 3 De Gex, J. & S. 30.
However, these cases clearly es-
tablish the principle that a party to a
joint-stock company, or other associa-
tion, can neither maintain a bill in
equity against the company to be re-
lieved from liability, nor defend an ac-
tion on his subscription, by alleging the
false representations of the company or
its agents, unless, first, he repudiates
the contract promptly before the rights
and interests of others have been af-
fected by his action ; or unless, secondly,
all the other members of the company
interested united in the false statements.
As to this last point, see the suggestion
of Bruce, V. C. : " If it were established
that the only other per.-ons interested in
these affairs were the persons who made
the alleged misrepresentations, the case
might be different." Parbury's Case.
The first qualification deserves a
passing notice. Bell's Case, 22 Beav.
35, illustrates it. There the objects of
the company, into membership of which
the plaintiff had been drawn by false
representations of the directors, had at
the time totally failed, and the company
had become insolve»t, and practically
at an end ; and it was held that the
plaintiff was not liable as a contributory.
The Master of the Bolls observed that
the doctrine of Parbury's Case was this:
that where certain persons set on foot a
project, and by fraudulent representa-
tions induce others to become share-
holders, and incur liabilities, there, as
between those who are equally innocent
KNOWLEDGE OF FALSITY.
27
shareholders, all are liable to contribute
towards payment of the debts of the
concern. Their rights lay against those
who had made the misrepresentations.
But no authority could be found mak-
ing parties liable to contribute in eases
such as this. See also Avre's Case, 25
Beav. 518, where, through false state-
ments, a person having taken shares in
a company insolvent at the time, and,
upon discovering the fact, having re-
pudiated his shares, was held not to be
a contributory.
But if the person claiming relief
purchased his shares from a third per-
son, and not from the company, he will
be bound to contribute, though he were
induced to make the purchase by the
false representations of the company.
(Xor in such case, clearly, would he
have a right of aetion for deceit against
the company. Peck r. Gurney, 43 Law
J. Ch. 19, in the House of Lords. See
Avre's Case, supra: Duranty's Case, 26
Beav. 2'JS.) And this would doubtless
be true, though the vendor of the shares
were also guilty of fraudulent represen-
tations, unless the vendee had repudi-
ated and rescinded the sale. Ibid.
The opinion of the Court of Chan-
cery (with the exception of that of the
Vice-Chancellor in BroekweU's Case,
supra, which, as has been stated, was
overruled) is uniform in these cases that
the company or corporation cannot be
made liable to an action for the unau-
thorized fraudulent representations of
its agents ; aDd that the latter are not
authorized by their mere position to
make false statements concerning the
condition of their principals. Of course,
if the company sub.-equently ratify the
misrepresentations at a meeting of the
shareholders, the fraud will then be
fixed on them: Nieol's Case, supra;
New Brunswick Ky. v. Conybeare, 9
H. L. Cas. 711 ; but even then the party
defrauded will not be able to escape lia-
bility to contribute in winding up if the
rights of others, innocent persons, have
intervened or been affected by his ac-
tion, or if he have participated in any
benefits of the concern. His remedy is
by.an action of deceit against the agent,
or the company, or both. It is worthy
of notice, also, that in one of the above
cases (Mixer's Case) the ruling that the
company are not liable for the false
representations made by its agents with-
out express authority was made in ap-
peal in chancery ; which gives the
decision the same authority as the de-
cisions of the Exchequer Chamber at
law.
The decision of the Vice-Chancellor
in BroekweU's Case was based princi-
pally upon language of the Lord Chan-
cellor and of Lord St Leonards in
^National Exchange Co. v. Drew,
2 Macq. 103, 125, 139. That was a
Scotch case, — an action to recover the
amount of a loan. The facts, in short,
were that the defendants had been in-
duced by the false representations of the
plaintiff's manager to buy shares in the
plaintiff's enterprise upon a loan of
money by the plaintiffs for the purpose ;
the object being to bolster and raise up
the shares of the company in the market.
The shares became valueless ; and the
company sued to recover the amount of
the loan. Judgment was given for the
defendants.
Although this case contains expres-
sions to the effect that such companies
are bound by the false representations
of their agents, made in the course of
their business, it is to be observed, as
stated by Lord Brougham and Lord
St. Leonards, that the company had the
benefit of the fraud of their manager.
It appears, also, that the defendants
28
DECEIT.
had acted upon a report made to the
shareholders at a regular meeting;
and, as Lord St. Leonards said, the
first act that takes place at such meet-
ings is, that, if there is not a rejec-
tion of the report, there is an adoption
of it. And the representation was,
therefore, the company's ; and though
the shareholders were ignorant of its
untruth, it was a matter within their
own peculiar knowledge, and not within
that of the defendants. So that, on the
principle of cases referred to in a pre-
vious part of this note, pp. 21, 22, the
company might well be chargeable with
fraud. See also New Brunswick Rail-
way Co., 9 II. L. Cas. 711, 725.
Besides, this was an action of con-
tract ; and it may be doubted if, in
such cases, the defence of fraud is to
have the same force as in an action by
the defendant for the fraud. It is often
true that innocent misrepresentations
are sufficient to defeat a recovery in
contract ; but, to maintain an action of
deceit, the false statement must have
been made with knowledge. See Wes-
tern Bank v. Addie, Law R. 1 H. L.
Scotch, 145, 158, 167 ; New Brunswick
Railway Co. v. Conybeare, 9 H. L.
Cas. 711, 740. So, too, a concealment
of material facts will defeat an action
upon a contract; but nothing short of
an active misrepresentation, it is held,
will support an action for deceit. Peck
v. Gurney, 43 Law J. Ch. 19. See a
further distinction near the end of this
note.
New Brunswick Railway Co. v.
Conybeare, 9 H. L. Cas. 711, was a
suit for the rescission of a contract for
the purchase of shares, on the ground
of fraud in the defendants' agent. It
was held that the facts were not suffi-
cient to sustain the bill; but Lord
Cranworth takes occasion to allude to
the distinction between actions of this
kind and actions of deceit. Referring
to his opinion in Ranger v. Great
Western Railway Co., 5 H. L. Cas. 72,
infra, he said : " My lords, to that
opinion I entirely adhere ; and I think
it would have been applicable in this
case, if it had been proved that there
had been a fraudulent representation or
concealment by the directors in order
to induce Mr. Conybeare to purchase,
not shares in the market (that is a very
different thing), but shares belonging to
the company, namely, forfeited shares,
if the directors, or the secretary acting
for them, had fraudulently represented
something to him which was untrue, I
then adhered to the opinion which I
had expressed in the former cases, that
the company would have been bound by
that fraud. [This sentence is some-
what obscure, but it is correctly quoted
from the Report.] But the principle
cannot be carried to the wild length
that I have heard suggested, namely,
that you can bring an action against the
company upon the ground of deceit be-
cause the directors have done an act
which might render them liable to such
an action. That I take not to be the
law of the land, nor do I believe that it
would be the law of the land if the
directors were the agents of some per-
son, not a company. The fraud must
be a fraud that is either personal on the
part of the individual making it, or
some fraud which another person has
impliedly authorized him to be guilty
of."
The case of Ranger v. Great West-
ern Railway Co., to which his lordship
referred, was a similar suit for rescis-
sion, in which the allegations of fraud
failed. The opinion there expressed
(to which, in New Brunswick Railway
Co. v. Conybeare, he says he adheres)
KNOWLEDGE OP FALSITY.
29
was to the effect that, if an incorpo-
rated company, acting by an agent, in-
duces a person to .enter into a contract
for the benefit of the company, that
company can no more repudiate the
fraudulent action of the agent than an
individual could.
It thus appears that there was little
ground upon which to support the deci-
sion of Vice-Chancellor Kindersley, in
Broekwell's Case.
Comfoot v. Fowke, 6 Mees. & W.
858, though constantly cited in these
cases, is in point only in its dicta. Be-
sides being an action of contract, the
misrepresentations alleged in defence
were false to the knowledge of the prin-
cipal, but not to the knowledge of the
agent. It was held (Lord Abinger,
C. B., dissenting) that the plea of
fraud was not supported. There was
nothing to show that the principal had
caused the agent to make the untrue
statement, or that he knew that any
misrepresentation had been made.
And, therefore, according to the ma-
jority of the court, fraud could not be
imputed to him.
There are many other cases of con-
tract in which this subject is considered ;
but their application to actions of deceit,
as has been suggested, is doubtful, and
they will not be further pursued. See
Wilde v. Gibson, 1 H. L. Cas. 605.
In 1867 the precise case of the lia-
bility of a principal in an action in tort
for representations of an agent, false to
the knowledge of the latter, but not to
that of the former, arose simultaneously
in the Exchequer Chamber and in the
House of Lords ; and, each court pro-
ceeding independently of the other, the
former held the principal liable, and
the latter held the contrary. Barwick
v. English Joint-Stock Bank, Law R. 2
Ex. 259 ; Western Bank v. Addie, Law
R. 1 H. L. Scotch, 145. But the cases
are not necessarily in conflict.
In Barwick v. English Joint-Stock
Bank, the facts, in brief, were these :
The plaintiff required a guaranty of the
responsibility of one J. D., which the
defendants' manager gave, to the effect
that, the checks of J. D. should be paid,
on receipt of certain money (from the
government) from J. D., "in priority
to any other payment, except to this
bank." J. D. was at the time of the
guaranty largely indebted to the bank,
which fact was not communicated to the
plaintiff; and the defendants declined
to honor the check of J. D., though
drawn after he had received and de-
posited the money referred to. The
plaintiff now brought an action against
the bank for the false representations
of the manager; and it was held that
there was evidence to go to the jury
that the manager knew and intended
that the guaranty should be unavailing,
and fraudulently concealed from the
plaintiff the fact of the indebtedness of
J. D. to the bank. It was also held
that the defendants would be liable for
such fraud in their manager.
This, it will be noticed, was not the
case of a representation of fact in which
the defendants were not interested,
since, by the manager's fraud, they
obtained and appropriated to them-
selves a deposit of money in favor of
their debtor ; and this is the turning-
point of the case, as appears from the
opinion of the court. " It was con-
tended on behalf of the bank," said Mr.
Justice Willes, in delivering the judg-
ment, " that inasmuch as the guaranty
contains a stipulation that the plaintiff's
debt should be paid subsequently to the
debt of the bank, which was to have
priority, there was no fraud. We are
unable to adopt that conclusion. I
30
DECEIT.
speak sparingly, because we desire not
to anticipate the judgment which the
constitutional tribunal, the jury, may
pass. But they might, upon these facts,
justly come to the conclusion that the
manager knew and intended that the
guarantee should be unavailing; that
he procured for his employers, the bank,,
the government check, by keeping back
from the plaintiff the state of Davis's
(J. D.'s) account, and that he intended
to do so. If the jury took that view of
the facts, they would conclude that there
was such a fraud in the manager as the
plaintiff complained of."
Again, after commenting upon Udell
v. Atherton, 7 Hurl. & N. 172 (in
which he said that the court were di-
vided rather upon the proper applica-
tion of the law to the facts than upon
the principle involved), the learned jus-
tice proceeded to say : " With respect
to the question whether a principal is
answerable for the act of his agent in
the course of his master's business, and
for his master's benefit, no sensible dis-
tinction can be drawn between the case
of fraud and any other wrong. The
general rule is, that the master is an-
swerable for every such wrong of the
servant or agent as is committed in
the course of the service, and for the
master's benefit, though no express
command or privity of the master is
proved ; " citing Laugher v. Pointer, 5
Barn. & C. 547, 554.
The nature of the action is still more
clearly shown in a subsequent part of
the opinion in this case. It had been
objected that the count in fraud should
not have described the fraud of the
manager as that of the bank ; to meet
which objection a count for money had
and received had been included in the
declaration. The court replied: "I
need not go into the question whether
it be necessary to resort to the count
in case for fraud, or whether, under the
circumstances, money.having been actu-
ally procured for and paid into the bank
which ought to have got into the plain-
tiff's hands, the count for money had
and received is not applicable to the
case," — thus indicating that the action
was, in substance, an action for money
received to the plaintiff's use. See
Clarke v. Dickson, El., B. & E. 148.
The case in the House of Lords,
above referred to (Western Bank o.
Addie), was a Scotch suit, to rescind a
contract for the purchase of shares, and
for restitution in integrum {i.e., to the
party's position before the contract),
or, alternatively, for damages for the
false representations of the defendants'
manager. There being no direct fraud
on the part of the bank itself, it was
held that the action could not be main-
tained; and the determination as to the
alternative claim for redress was not
affected by the fact that the plaintiff
was a member of the company, and had
been for a long time. Nor would it
have been an answer to this suit of
redress, as the Lord Chancellor stated,
that a recovery might prejudice those
who had innocently acquired their shares
after the plaintiff had acquired his. The
ground of decision was that the fraud
of the manager alone, though committed
in the course of his business, could not
be made the ground of a liability in tort
on the part of the defendants. This
conclusion was reached upon a review
of all the important cases, and with a
view, as the report states (p. 151), of
laying down the proper rule of law.
The case is therefore of great impor-
tance and authority.
The Lord Chancellor said that the
sound distinction to be drawn from the
authorities was this : " Where a person
KNOWLEDGE OF FALSITY.
31
has been drawn into a contract to pur-
chase shares belonging to a company by
fraudulent misrepresentations of the di-
rectors, and the directors, in the name
of the company, seek to enforce that
contract, or the person who has been
deceived institutes a suit against the
company to rescind the contract on the
ground of fraud, the misrepresentations
are imputable to the company; and the
purchaser cannot be held to his con-
tract, because a company cannot retain
any benefit which they have obtained
through the fraud of their agents. But
if the person who has been induced to
purchase shares by the fraud of the
directors, instead of seeking to set
aside the contract, prefers to bring an
action for damages for the deceit, such
an action cannot be maintained against
the company, but only against the di-
rectors personally."
Lord Cranworth, who delivered the
only other opinion concerning the prin-
ciple involved, stated the doctrine in
the same way. "An attentive consid-
eration of the cases," said he, "has
convinced me that the true principle
is that these corporate bodies, through
whose agents so large a portion of the
business of the country is now carried
on, may be made responsible for the
frauds of those agents to the extent to
which the companies have profited from
these frauds ; but that they cannot be
sued as wrong-doers, by imputing to
them the misconduct of those whom
they have employed. A person de-
frauded by directors, if the subsequent
acts and dealings of the parties have
been such as to leave him no remedy
but an action for the fraud [as where,
by delay, the rights of innocent persons
have intervened], must seek his remedy
against the directors personally."
It would seem that such a decision,
coming from the court of final resort,
should have put to rest all further doubt.
But the question has xery lately arisen
again in the Queen's Bench ; and that
court has (except upon the suggestion,
infra) apparently declined to follow the
rule declared by the House of Lords.
Swift r. YVinterbotham, LawR. 8 Q. B.
2U, decided in 1873.
The case professes to have been de-
cided upon the authority of Barwick v.
English Joint-Stock Bank, supra. But
that case does not support it. The action
was for a false and fraudulent repre-
sentation, jointly against the agent who
had made it and against the principal.
And the latter was held equally liable.
(The case has been referred to as au-
thority for another point, ante. p. 29.)
The false statement consisted in an
affirmation of the solvency of Sir Wil-
liam Russell. The matter was indifferent
to the defendants. The representation
was not made for the purpose of obtain-
ing a benefit for the banking company ;
nor does it appear that any advantage
was derived from it. The case is there-
fore unlike Barwick v. English Joint-
Stock Bank, and opposed to the ground
taken in that case, as well as in conflict
with the decisions of the Court of Chan-
cery and the House of Lords; unless the
fact that the court held that the com-
munication complained of (which was
in writing) was in reality the representa-
tion of the banking company, affords a
distinction. The inquiry was made con-
cerning a customer of the defendants ;
and the reply was signed, " J. B. God-
dard, Manager." And the court say,
"We think it clear, therefore, that the
communications were in fact, and were
intended to be, communications between
the banks." The fact inquired of was
peculiarly within the knowledge of the
defendants ; and upon the ruling that
32
DECEIT.
the signature of the manager was, in
fact, the signature of the bank, the case
would not, perhaps, be inconsistent with
Western Bank v. Addie. But this rul-
ing as to the manager's signature was
decided, on appeal to the Exchequer
Chamber, to be wrong; and the case
was reversed. 30 Law Times, n. s. 31,
sub nom. Swift v. Jewesbury.
Lord Coleridge, C. J., who delivered
the principal opinion, said that this de-
cision did not conflict with Barwick v.
English Joint-Stock Bank, " because,"
he observed, " there can be no doubt
that a different set of principles alto-
gether applies where an agent of a cor-
poration, or a joint-stock company, at
any rate, in carrying on its business,
does something of which the company
takes advantage, or profits, or may
profit, and it turns out that the act of
the agent is fraudulent."
The latest case, decided within six
weeks of the present writing, was de-
termined in the Privy Council. Mackay
v. Commercial Bank, 30 Law Times,
N. s. 180. There the defendants had
derived a benefit from the fraudulent
misrepresentation of their manager,
made within the general scope of his
authority; and upon this precise ground
the defendants were held liable. The
court declined to give any opinion as
to the rule where no advantage had
been derived by the principal.
We find, then, no English case in
which a principal has been held liable
in tort for the unauthorized and fraudu-
lent representations of his agent alone,
except where he has derived a benefit
from them. And even where an ad-
vantage has been obtained, it is ques-
tionable, as we have suggested, if this
form of action be proper. The action,
where the benefit is pecuniary, is in
substance an action for money had and
received ; and if the suit be in tort, it
can only be allowable, it would seem,
so. far as it conforms, in the amount of
damages recoverable, to the proper
form of action. See Mackay v. Com-
mercial Bank, supra, where, to an ob-
jection that an action for money had
and received might lie in such cases,
the court say, that, granting that, the
question to be tried would be in sub-
stance the same, and add, what perhaps
has been the real justification of these
cases, that the time has passed when
much importance is to be attached to
mere forms of action. In other words,
the plaintiff, being entitled to a remedy
of some kind, will not be put to the ex-
pense of being sent to the technically
proper action. It may be observed,
also, that, by taking the benefit of the
agent's fraud, the principal adopts it;
and he may, therefore, be liable in an
act for deceit, perhaps, in the same way
that he would have been had he at first
authorized the misrepresentation of a
fact peculiarly within his means of
knowledge.
We conceive, therefore, that the
ground taken in Hern v. Nichols for
supporting actions of this kind — the
trust and confidence reposed in the
agent — is not sustained by the later
English authorities, the proper ground
for such cases being the fact that the
principal has received a benefit, as he
had there, from the fraud of his agent;
and that, if this be not the case, the
principal can only be liable when he
has authorized, or ratified, or joined
in, the false statement.
If this be true, it follows that the
doctrine of Jeffrey v. Bigelow and of
White v. Sawyer, referred to near the
beginning of this discussion, extending
the damages beyond the amount of the
benefit received by the principal, is not
KNOWLEDGE OP FALSITY.
33
sound. It is difficult to deny, however,
that the rule in those cases would be
correct if an action of deceit were the
proper form of suit in such cases.
Aside from the authorities, it is not
easy to understand the cases which sug-
gest (where the representation is made
in a transaction not for the principal)
that the defendant's liability arises from
his putting a trust and confidence in the
agent, or, what is the same thing, in
holding him out as agent. It is sub-
mitted that he does no such thing with-
out giving the agent express authority
to make the representation complained
of; except, perhaps, in those cases
where he derives a benefit from the
agent's act. A principal holds out his
agent as authorized to transact his (the
principal's) business, and not that of
third persons, in which the principal
has no concern. It is hardly conceiva-
ble that he should have any other pur-
pose in the appointment of an agent ;
and everybody knows it. Consequently,
when the plaintiff goes to the defend-
ant's asent for information in a matter
which has no relation to the defendant's
business, he knows, if he is a man of
common sense, that that is outside of
the legitimate purpose of the agency,
and that he must rely, if at all, upon
the responsibility of the agent in case
false information be given.
If the principal expressly authorize
the agent to make the statement, the
case is more difficult; but we conceive
that the same principles should apply as
if the principal had himself made it. If
he is aware of its falsity, or, perhaps,
if it is a matter peculiarly within his
own means of knowledge, he will be
liable for permitting his agent to com-
mit the fraud on the plaintiff. But on
what principle he could be held for a
misrepresentation made as to a matter
indifferent to him, where he is innocent
of any improper motive in allowing the
agent to speak for him, is not easily un-
derstood. If he were himself to make
the statement, he would not be liable ;
why, then, should he be liable for allow-
ing another to do so for him ? The plain-
tiff is no worse off by inquiring of the
agent than if he had inquired of the
principal.
It is said that the principal is liable,
under the rule that of two innocent per-
sons he who enables a third person to
commit » fraud upon the other must
suffer the loss. Nelson, J., in Sandford
r. Handy, Ho Wend. 260. But is it
true that the principal has enabled his
agent to commit a fraud on the plain-
tiff? In most cases it is not. The
plaintiff has made inquiry of the agent,
not because of his authority to give the
desired information, but because he
possessed that information. He treats
him for such purpose not as an agent,
but as one acting on his own responsi-
bility. If it be replied that he acquired
his information by reason of his situa-
tion in the defendant's employment, the
answer to this is, that such a connection
between the defendant and the plaintiff
is too remote. The rule of liability be-
tween innocent persons is subject to the
rule of proximate and remote cause.
Xow, in all probability the plaintiff
knew nothing of the fact that the agent
had authority to make the representa-
tion. The presumption is, as we have
seen, that it was outside of his ordinary-
powers, to the plaintiff's knowledge;
and he would seldom stop to inquire
into the matter. At all events, the
burden of proof should be upon him to
show that, in acting upon the repre-
sentation, he relied upon the defend-
ant's grant of authority.
The rule, if there is such a one, that
3
34
DECEIT.
a principal is supposed to know what
his agent knows, is, we conceive, con-
fined to the case of contracts and sales.
It probably means no more than this :
that, mutual assent being essential to
binding transactions in contract, that is
wanting where a material misrepresen-
tation has been made by one having a
right to make the contract. The injured
party has not agreed to do or accept the
thing for which the principal seeks to
bind him ; and thus the principal is
bound by the fraud of his agent. It is
not because of the fraud of the agent ;
since the same result would follow in
many cases where the agent himself
were innocent, as in cases of mis-
take.
In the early law, under the old writ
of deceit, we find that it was necessary
to prove fraud directly upon the de-
fendant. And there is a case in the
Year -Books (9 Henry 6, 63, pi. 37;
s. c. Brooke's Abr. Accion sur la Case,
pi. 8) involving the very question now
under consideration. It was, in sub-
stance, as follows : —
Writ of deceit om the case by A.
against B. and C, in the sale of Rumm-
ney wine, said C. knowing it to be sour
and unfit for use. Rolf, for the defence,
having taken certain objections to the
writ (one of which was that no warranty
was alleged), which were overruled,
pleaded for B. that the wine was not
sour, upon which issue was joined. For
C, he pleaded that he sold the wine by
B., his servant. To which Martin, J.,
replied : But " of your own knowledge
you deceived " the plaintiff. — Rolf.
"If I have a servant, who is my sales-
man, and goes to a fair with an un-
sound horse, or other merchandise, and
sells it, will the party [pty] have an
action of deceit on the case against me ?
Clearly not." — Martin, J. " You say
true ; for you did not command him to
sell the thing to him, nor to any person
in particular. But if your servant, by
your covin and command, sell one bad
wine, he shall have an action against
you ; for it is your own sale. And if
the case should be that you did not bid
your servant sell to that very person,
then you can say that you did not sell
to the plaintiff."
Rolf did not appear to be satis-
fied with this last refinetaent, replying
that it would be a risky thing to put
that into the mouth of the common
people.
Mr. Justice Nelson, indeed, says
that this case was overruled by Lord
Holt in Hern v. Nichols. Sandford v.
Handy, supra. But the report of that
case does not show any thing of the
kind, except in the ground of the de-
cision, which has itself been overruled,
as we have seen. The point decided in
Hern v. Nichols is distinguishable from
the case in the Year-Book, on the
ground that the defendant had there
obtained a benefit from the agent's act.
And though this was also the fact ap-
parently, in the other case, that was
decided at a time when the form of ac-
tion precluded any notice of such fact.
This old case, therefore, also supports
the position that the action of deceit is
not the proper proceeding, even where
the defendant has derived a benefit from
his agent's misrepresentation.
There is one more difficulty worthy
of notice, presented by the class of
cases in which it is held that the princi-
pal is liable in tort for the acts of mis-
conduct of his agent in the course of
his employment; though he be acting
without authority, or contrary to the
express instructions of his principal.
See Willes, J., in Barwick v. English
Joint-Stock Bank, Law R. 2 Ex. 259,
THE INTENTION.
35
205 ; Whatman e. Pearson, Law R. 3
C. P. 4-22 ; Burns t>. Poulsom, Law R.
8 C. P. 563 ; Linipus v. London Omni-
bus Co., 1 Hurl. & C. o-26; s. c. 32
Law J. Ex. 34. But these cases are
not easily understood except upon the
principle of a special public policy,
■which finds it important to hold the
master responsible for the extraordinary
conduct of his agent within the line of
the agency. In Limpus r. London
Omnibus Co., supra, which was a case
of misconduct by an omnibus-driver, Mr.
Justice Willes refers the right of action
against the principal in part to the im-
pecuniosity of that class of servants.
" There ought to be a remedy," he
says, " against some person capable of
paying damiges to those injured by im-
proper driving." This is doubtless the
real ground of the master's liability in
such cases. But, we submit, that a
public policy which points to a state of
facts which varies with almost every
case, and often fixes a liability where
there is no need of it (for agents are
often responsible), should not be ex-
tended to a new and different class of
cases.
But there is a better reason for limit-
ing this rule of public policy. The
negligence or misconduct of an agent
for which the cases hold the principal
liable, probably never involves any
deep moral turpitude. If the conduct
of the agent were of such character, the
principal would not be held liable.
For instance, — to take a case often
put, — if a servant shoeing a horse
should maliciously prick him, he, and
not the master, would be liable ; though
it would be otherwise if it were not in-
tentionally done. And it is immaterial
that the act, in cases of this kind, may
have been intended for the benefit of
the principal. See the language of
Blackburn, J., in Limpus v. London
Omnibus Co., supra, quoted with ap-
proval by Brett, J., in Burns v. Poul-
som, supra.
The action for deceit more nearly
resembles this class of cases. The
allegation always is that the represen-
tation was made " falsely and fraud-
ulently.'" A lie is charged, and charged
to have been told with the base motive
of injuring another. The proof need
not be so strong in all cases ; but fraud,
actual or constructive, must be made
out. Xow it can no more properly be
held that such a misrepresentation binds
the principal, than that the other-men-
tioned malicious misconduct of the
agent does ; and as the rule of public
policy does not extend to the latter
class of cases, it should not to the for-
mer.
It is to be observed that it is no an-
swer to the action that the defendant is
a corporation. It is settled that a cor-
poration, though having no soul, is
liable for the authorized deceit of its
agents. See Brokaw i. New Jersey
Ry. Co., 3 Vroom, 328 ; Vance v. Erie
Ry. Co., ib. 334, 335 ; Fogg v. Griffin,
2 Allen, 1 ; Ranger v. Great Western
Ry. Co., 5 H. L. Cas. 72 ; Addie v.
Western Bank, Law R. 1 H. L. Scotch,
145; Mackay v. Commercial Bank, 30
Law Times, x s. 180. But this would
probably be otherwise where the mis-
representation was made before the in-
corporation of the body. In such case,
the action should be against the indi-
viduals personally. See Addie r. West-
ern Bank, supra.
The Intention. — It is well settled that
it is not necessary that the misrepresen-
tation complained of should have been
made with a corrupt motive of personal
gain on the part of the defendant, in
order to render him liable. Foster v.
36
DECEIT.
Charles, 6 Bing. 396; s. c. 7 Bing.
105.
But while it is not necessary that the
defendant should have made the false
statement with the motive of personal
gain, it is necessary to show that it was
made with the purpose of affecting the
conduct of the plaintiff ; or, to use the
more common expression, with intent
to induce the plaintiff to take the action
complained of. See Thom v. Bigland,
8 Ex. 725, 731 ; Tapp v. Lee, 3 Bos. &
P. 367 ; Watson v. Poulson, 15 Jur.
1112; Polhill v. Walter, 3 Barn. &
Ad. 123.
This is illustrated in Tapp v. Lee, 3
Bos. & P. 367. The plaintiffs' servant
was sent to inquire concerning the re-
sponsibility of one Brunell ; and the
defendant, though knowing that he was
a bankrupt, replied that Brunell was an
honest man, that he owed the defendant,
and that he (the defendant) was willing
to trust him more. It was alleged that
Brunell was not an honest man, as the
defendant well knew, and that the de-
fendant was not willing to give him
farther credit. The defendant, having
afterwards met the plaintiffs' servant,
inquired if they had trusted Brunell;
and, upon receiving an affirmative re-
ply, said: "I did not think you was
such a cake," by the last word meaning,
apparently, dupe. The jury having
found a verdict for the plaintiff, a mo-
tion to set the same aside was made on
the ground that (notwithstanding the
knowledge of the falsity of the defend-
ant's representation) there was no evi-
dence of a fraudulent intent ; and the
motion was granted, terms of costs
being imposed on the ground that the
above-quoted remark, appearing like
exultation, was some evidence of fraud,
so that the verdict was not wholly un-
supported. Lord Alvanley, C. J., said :
" In stating my opinion to the jury on
the evidence in this case, I told them
that unless they believed that the party
knew the representation to be false at
the time when he made it, and intended
thereby to obtain credit for Brunell. they
ought not to find a verdict for the plain-
tiff." Mr. Justice Heath said: "The
evidence of fraud turned on a single
expression of the defendant, that he did
not think the plaintiffs' servant had
been such a cake; the effect of which
was to be decided upon by them. If
he meant to say that he did not think
the plaintiffs' servant would have been
such a dupe, it would seem as if he
meant to exult in the calamity into
which he had led his fellow-trades-
man."
Foster v. Charles, 6 Bing. 396, s. c.
7 Bing. 105, is not inconsistent with this
position ; for although it is said that
nothing more is necessary to maintain
the action than to prove the untruth of
the suggestion which has occasioned the
injury, and the knowledge of its untruth
by the defendant (Gaselee, J., 6 Bing.
403), this was said in answer to the
position that there must have been »
motive of personal gain on the part of
the defendant. See 7 Bing. 106, where
the argument is more distinctly stated
than on the first trial. It was not meant
that it was not necessary to prove that
the defendant did not intend, in any
way, to injure the plaintiff. On the
second trial, Tindal, C. J., said that the
attention of the jury had been drawn to
two classes of motives possible to the
defendant : first, a desire to benefit him-
self by making a statement which he
knew to be false (which the jury nega-
tived) ; and, secondly, a desire to bene-
fit some third person. So, too, upon
this occasion, Gaselee, J., said that the
right of action was complete when the
ACTING UPON THE MISREPRESENTATION.
37
intention to mislead was followed by
actual injury.
When, therefore, it is said that an
action cannot be maintained for a bare
lie, the meaning is that it must be told
with intent to mislead, as well as fol-
lowed by injury.
However, it need not be proved in
all oases that the defendant intended to
injure the plaintiff in making the repre-
sentation. He may, in fact, have in-
tended an advantage to him ; and it is
enough that the defendant intended that
the plaintiff should act upon the repre-
sentation, if he chose to do so. This is
illustrated in Polhill v. Walter, 3 Barn.
& Ad. 114, and in other cases of false
representations of a party's authority to
act for another.
If the party would escape the conse-
quences of his false representation, he
must actually withdraw it before it has
been acted upon. It will not suffice
that he repents of his fraudulent intent,
and clears his own mind from the bad
motive, before the injury has taken
place. See Lobdell v. Baker, 1 Met.
193, where an indorsement of a promis-
sory note by an infant had been fraudu-
lently procured ; and in trespass on the
case bv the person to whom the note
was passed, the question was, whether
it was necessary for the plaintiff to
prove a fraudulent intent at the time of
passing the note, as well as at the time
of procuring the indorsement. The
answer was in the negative.
Acting upon the Misrepresentation.
— It is of course fundamental that the
representation should have been acted
upon. The plaintiff can only maintain
the action upon proof of damage, as
was said by the judges in Pasley v.
Freeman. And it is to be observed
that there are two classes of cases :
first, where the representation is made
of the plaintiff to a third person, post,
pp. 54, 69 ; secondly, where it is made
to or for the plaintiff, as in Pasley v.
Freeman. But both, when acted upon,
give a like right to damages.
In the second class of cases, if the
false representation was intended for
others than those to whom it was made,
it may give a right of action to any
such who may act upon it ; as in the
case of Polhill v. Walter, '2 Barn. &
Ad. 114. There the defendant had
given an acceptance of a negotiable
bill as by procuration for the drawee,
without authority, believing that the
act would be sanctioned by the latter ;
and it was held that the plaintiff (who
had subsequently purchased the bill)
had a right of action for the false rep-
resentation of authority, though it had
not been made to him.
So, too, in Langridge r. Levy, 2
Mees. & W. 519. s. c. 4Mees. & W.337,
where the representation was made to
the plaintiff's father, with a view to being
acted upon by the plaintiff, the action
was held proper. " The defendant,"
said Parke, B., in delivering the judg-
ment of the Exchequer, " has know-
ingly sold the gun to the father, for the
purpose of being used by the plaintiff,
bv loading and discharging it, and has
knowingly made a false warranty that
it might safely be done, in order to
effect the sale ; and the plaintiff, on
the faith of that warranty, and believ-
ing it to be true (fur this is the mean-
ing of the term confiding) . used the
gun, and thereby sustained the damage
which is the subject of this complaint."
And he ad Is, by way of explaining the
use of l ho word "warranty," "The
warrantv between these parties has not
the effect of a contract. It is no more
than a representation ; but it is no
less."
38
DECEIT.
So, where directors of a company-
put forth a prospectus containing false
representations for the purpose of sell-
ing shares of stock, the false repre-
sentations are deemed in law to have
been made to all who read the pros-
pectus and become purchasers from the
company on the faith of the statements
therein made. Barry v. Croskey, 2
Johns. & H. 21 ; Bedford v. Bagshaw,
4 Hurl. & N. 548; s. c. 29 Law J. Ex.
59; Bagshaw v. Seymour, ib. 62, note;
Scott v. Dixon, ib. 62, note; Gerhard
v. Bates, 2 El. & B. 476 ; Clarke v.
Dickson, 6 Com. B. n. s. 453; Ca-
zeux v Meli, 25 Barb. 583; National
Exchange Co. v. Drew, 2 Macq.
103 ; Peek v. Gurney, 43 Law J. Ch.
19.
In Swift v. Winterbotham, Law R.
8 Q. B. 244, the defendants had given
false information concerning the stand-
ing of a third person on request of the
plaintiff through his banker ; and it was
objected that, as the representation had
not been made to the plaintiff, he had
no right of action. But it appeared
that it was usual for customers of a bank
to make inquiries of this description
through the bank, since bankers uni-
formly refuse to answer inquiries made
by strangers ; and it was therefore held
that the plaintiff was entitled to recover.
The rule was thus declared: "It is
now well established that in order to
enable a person injured by a false
representation to sue for damages, it
is not necessary that the representation
should be made to the plaintiff directly ;
it is sufficient if the representation is
made to a third person to be commu-
nicated to the plaintiff, or to be com-
municated to a class of persons of
whom the plaintiff is one, or even if it
is made to the public generally with a
view to its being acted on, and the
plaintiff, as one of the public, acts on
it, and suffers damage thereby."
But if the representation, however
false and fraudulent, be communicated
by an intervening person, he must have
authority to carry it to the plaintiff;
otherwise the defendant will not be
liable though the plaintiff in fact acted
upon the representation. This point
was lately decided in the House of
Lords. Peek v. Gurney, 43 Law J.
Ch. 19. This was a proceeding in
equity to obtain damages for false rep-
resentations made by the defendants in
a prospectus concerning a bill-broking
business. This prospectus was ad-
dressed to the public, and invited pro-
posals for allotment of shares. The
plaintiff had not purchased his shares
from the company, but on the market ;
though he had done this in reliance
upon the truthfulness of the statements
contained in the prospectus. It was
held that he was not entitled to judg-
ment; and Bedford v. Bagshaw and
Bagshaw v. Seymour, supra, were over-
ruled, as having carried the doctrine of
liability in such cases too far.
Lord Chelmsford said that the case
of Gerhard v. Bates, supra, was not an
authority for holding that upon a pros-
pectus addressed to the public by the
directors of a company, any one of
the public who had been led to take
shares upon the faith of the represen-
tations thus published could maintain
an action against them. The observa-
tions of Lord Campbell were to the
same effect. "It appears to me,"
the learned judge continued, " that
there must be something to connect the
directors making the representation
with the party complaining that he has
been deceived and injured by it ; as in
Scott v. Dickson, supra, by selling a
report containing the misrepresentation
EEPRESENTATIONS CONCERNING SOLVENCY.
39
complained of to a person who after-
wards purchases shares upon the faith
of it ; or, as suggested in Gerhard v.
Bates, supra, by delivering the fraud-
ulent prospectus to a person who there-
upon becomes a purchaser of shares ;
or by making an allotment of shares to
a person who has been induced by the
prospectus to apply for such allotment.
In all these cases, the parties, in one
way or other, are brought into direct
communication ; and in an action the
misrepresentation would be properly
alleged to have been made by the de-
fendant to the plaintiff. But the pur-
chaser of shares in the market, upon the
faith of a prospectus which he has not
received from those who are answerable
for it, cannot by acting upon it so
connect himself with them as to render
them liable to him for the misrepre-
sentations contained in it as if it had
been addressed personally to himself."
Lord Cairns stated the law very
clearly. The object of the prospectus,
he said, was clearly to invite the pub-
lic to take shares in the new company.
Appended to it there was a form of
application to be filled up. But the
plaintiff djd not avail himself of this
means of securing shares. The shares
had been speedily applied for and taken
up; and the allotment having been
completed, the prospectus had done
its work, and was exhausted. Several
months afterwards the plaintiff had pur-
chased his shares at the stock exchange,
at a high premium, not even knowing
at first, of course, from whom he
bought them. " How," said he further,
" can the directors of a company be
liable after the full original allotment
of shares, for all the subsequent deal-
ings which may take place with regard
to those shares upon the stock ex-
change ? If the argument of the ap-
pellant is right, they must be liable ad
infinitum, for I know no means of
pointing out any time at which the lia-
bility would in point of fact cease. Not
only so, but if the argument be right
they must be liable no matter what the
premium may be at which the shares
may be sold. That premium may rise
from time to time from circumstances
altogether unconnected with the pros-
pectus; and yet, if the argument be
right, the appellant would be entitled
to call upon the directors to indem-
nify him up to the highest point at
which the shares may be sold for all
that he may expend in buying the
shares."
Representation concerning Solvency.
— Upon the facts of Pasley v. Freeman,
the decision has been sometimes crit-
icised. The mere form of the repre-
sentation, it is said, took the case out
of the purview of the Statute of Frauds.
If, instead of asserting that Falch was
a person to be trusted, the defendant
had said to the plaintiff, you may trust
Falch, and if he doesn't pay you I
will, the case would have come within
the terms of the Statute of Frauds.
See Evans v. Bicknell, 6 Yes. 174, 186.
The case was also doubted in Slade v.
Little, 20 Ga. 371, 375, on the same
ground apparently. See also Xewsom
v. Jackson, 26 Ga 241, 248. " I am
old enough," said Gibbs, C. J., in Ash-
lin v. White, Holt, N. P. 387, " to
remember when this species of action
came into use. It was dexterously in-
tended to avoid the Statute of Frauds."
And he adds that when the principle
once gained ground, a flood of cases
followed. The anomaly led in Eng-
land to the passage of an act extending
the Statute of Frauds to such cases.
Lord Tenterden's Act, 6 Geo. 4, c.
14. So in Maine, Vermont, Massa-
40
DECEIT.
chusetts, Virginia, Alabama, Kentucky,
Michigan, Indiana, and Missouri. See
Brown, Statute of Frauds, Appendix.
The objection of the Statute of
Frauds, which seems not to have been
suggested in Pasley v. Freeman, was
raised in Eyre v. Dunsford, 1 East,
318, tried in 1801. This was an action
on the case to recover damages incurred
by the plaintiffs in consequence of
having trusted one W. T. on the rep-
resentations of the defendant. The
plaintiffs, it appeared, applied to the
defendant for information concerning
the responsibility of W. T., to which
the defendant answered that he knew
nothing of the person but what he had
learned from his correspondent abroad ;
but that he had a credit for a large sum
lodged with him by a respectable house
at Hamburg ; and that upon a view of
all the circumstances which had come
to his (defendant's) knowledge, the
plaintiffs might safely credit W. T.
The truth was that the credit referred
to was lodged on condition that W. T.
should previously lodge with the de-
fendant goods of treble the value. The
action was sustained, although the de-
fendant had attempted to shield him-
self by adding that he gave the advice
to the plaintiffs without prejudice to
himself. Lord Kenyon said that the
statute had no relation to cases of this
kind. It raised certain legal presump-
tions of fraud from the want of certain
formalities in contracts and other trans- '
actions, against which it guarded by
declaring them void, but that idea had
no application to actions founded on
actual fraud and deceit.
In Tapp u. Lee, 3 Bos. & P. 367,
referred to ante, p. 36, Cbambre, J.,
said: "Cases of this sort are within
all the mischief intended to be pre-
vented by the Statute of Frauds ; but
I think that statute does not extend to
them. I much wish, indeed, that it
did, not only on account of the exten-
sive consequences to those against
whom such actions are brought, but in
respect of the evidence to be produced
at the trial. It is very desirable that
representations of character, by which
parties are made liable, as well as
engagements for the debts of third
persons, should be in writing ; but that
is not the law."
The doctrine of these cases, that an
action for the damage caused by fraud-
ulent representations of solvency is not
within the original Statute of Frauds,
and is therefore maintainable though
the words were oral, is generally ac-
cepted in this country. Upton v. Vail,
6 Johns. 181 ; Wise v. Wilcox, 1 Day,
22; Weeks v. Burton, 7 Vt. 67 ; Ewius
v. Calhoun, ib. 79 ; Newsom v. Jack-
son, 26 Ga. 241 ; Patten v. Gurney, 17
Mass. 182. But see Slade v. Little,
20 Ga. 371.
In Upton v. Vail, supra, Kent, C. J.,
said : " The only plausible objection to
it [Pasley v. Freeman] is that in its ap-
plication to this case it comes within
the mischiefs which gave r^ise to the
Statute of Frauds, and that, therefore,
the representation ought to be in writ-
ing. But this, I apprehend, is an
objection arising from policy and ex-
pediency ; for it is certain that the
Statute of Frauds, as it now stands,
has nothing to do with the case."
It has further been held that the
plaintiff does not lose his right of
action for a fraudulent misrepresen-
tation of the circumstances of another
by the fact that the defendant added,
" If he does not pay for the goods, I
will." Hamar v. Alexander, 2 Bos. &
P. N. R. 241.
The doctrine of these cases came
REPRESENTATIONS CONCERNING SOLVENCY.
41
under further consideration in Hutchin-
son i>. Bell, 1 Taunt. 008. In this case
the plaintiff had opened an account
with a third person upon the defend-
ant's fraudulent misrepresentation as to
his pecuniary circumstances; and this
person had in fact paid for the first
five parcels of goods ordered. Subse-
quently the plaintiff (having in the
mean time given further credit to the
party) was applied to for more goods,
which were sold accordingly; but be-
fore delivery the plaintiff wrote the
party that he must have a more satis-
factory reference as to his responsi-
bility, and requested him to pay for the
goods he had just bought. Later he
made a payment and purchased another
parcel of goods. Other payments were
also made on general account at differ-
ent times. He was afterwards declared
a bankrupt ; and the plaintiff now sued
the defendant for the whole loss which
he had sustained. The jury found a
verdict for the plaintiff for the amount
due at the time the letter above men-
tioned was written ; and the verdict was
sustained. Counsel contended that
under the letter the subsequent pav-
ments should be applied to reduce the
debt then due ; to which the court
replied, that the jury had properly de-
cided that the letter meant, not that the
plaintiff would credit the party no
longer for the sum then due, but that
he would not trust him for any greater
sum than was then due. And as the
payments made afterwards had been
made on general account, the plaintiff
was entitled to apply them to the debts
contracted after the letter was written.
This case furnishes a suggestion as
to the duration of the defendant's lia-
bility. So long as the plaintiff relies,
or is justified in relying, upon the
representation, — that is, so long as
that representation continues to be the
inducement to the credit given, — the
defendant will be liable, and no longer.
If he knew of the falsity of the state-
ment when it was made, he would not be
justified in acting upon it at all. The
action of deceit would not lie, because
he could not have been deceived. So
if the defendant should afterwards
withdraw his representation, he would
not be liable for any subsequent loss ;
and the same would perhaps be true if
he were afterwards credibly informed by
another of the true pecuniary condition
of the person entrusted. See Newsom
i'. Jackson, 26 Ga. 241, where Lamp-
kin, J., held, according to the head-
note, that to make the defendant liable
in these cases it must appear, first, that
the entire credit was given upon these
representations ; secondly, if it were not
a single transaction, then there must
be some reasonable certainty as to the
amount of the credit and the length of
time to which it should extend; and,
thirdly, that the party giving the credit
was not himself the victim of blind
credulity or overweening confidence.
If this third point, however, requires
the plaintiff always to adopt other
means of ascertaining the party's con-
dition, its correctness may be doubted ;
as, if the plaintiff were a person of
weak mind. See also Venezuela Ry.
Co. v. Kisch, L. R. 2 H. L. 99.
The case of Hutchinson v. Bell
also shows that it is not necessary to
the plaintiff's right of action for the
deceit that the person credited should
turn out wholly insolvent and unable
to pay any thing. The defendant is
liable for the actual loss sustained by
reason of his fraud, though it may ap-
pear that for a time the statement
proved true, as in that case.
In Gainsford v. Blachford, 7 Price,
42
DECEIT.
544, s. C. 6 Price, 36, the defendant,
in reply to a question concerning the
circumstances of a tradesman, told the
plaintiff that he had been paid a debt
by the party, and that he (the defend-
ant) was ready to give him credit for
any thing he wanted. The tradesman
had in fact been discharged under an
insolvent act before that time, to the
defendant's knowledge. It was held
that the non-disclosure of this fact was
not a ground for an action of deceit.
The defendant might well say, even in
such a case, that lie would trust the
tradesman.
In Patten v. Gurney, 17 Mass. 182,
a joint action by copartners was held
to lie against other copartners jointly
for a misrepresentation of this kind.
Besides disapproving of the rule in
Pasley v. Freeman, as an evasion of
the Statute of Frauds, Lord Eldon also
doubted whether the case were within
the jurisdiction of the law courts. It
was, however, a very old head of
equity that if a representation be made
to another, going to deal in a matter of
interest upon the faith of that repre-
sentation, the party should make good
that representation, if he knew it to be
false. Evans v. Bicknell, 6 Ves. 174,
183. But his successor, Lord Erskine,
fully approved of Pasley v. Freeman
(Clifford v. Brooke, 13 Ves. 131, 133);
and, apart from the special facts of the
case, there has never since been any
doubt of the correctness of the prin-
ciple there involved, — that an action
lies for the damage caused by a false
and fraudulent representation made
with a view to affecting the action of
the plaintiff.
Malachy v. Soper and Another.
(3 Bing. N. C. 371. Common Pleas, Michaelmas Term, 1836.)
Slander of Title. Plaintiff was possessed of certain shares in a silver mine, touching
which shares certain claimants had filed a bill in chancery, to which plaintiff had
demurred. Held, that without alleging special damage, plaintiff could not sue
defendant for falsely publishing that the demurrer had been overruled; that .the
prayer of the petition (for the appointment of a receiver) had been granted; and
that persons duly authorized had arrived at the mine.
The declaration stated that the plaintiff before and at the time
of the committing of the grievances by the defendant, as herein-
after mentioned, was possessed of and interested in divers, to wit,
sixteen hundred shares or parts, the whole into divers, to wit, five
thousand shares or parts, to be divided, of and in a certain mine
commonly known and called by the name of the Wheal Brothers,
situate, lying, and being in the parish of Calstock, in the county
of Cornwall, such shares being of great value, to wit, of the value
of 100,000L That before and at the time of the committing the
MALACHY V. SOPER. 43
grievance by the defendant, as hereinafter mentioned, the said
mine had been worked and used, and was then being worked and
used, for and on the behalf of the plaintiff and others, the holders
of shares and interests in the said mine, to the great benefit and
advantage of the plaintiff, and to the great increase of the value
of his said shares.
That also before and at the time of the committing of the
grievances by the defendant, as hereinafter mentioned, one
Horatio Nelson Tollervey had instituted his certain bill of com-
plaint in writing- against Malachy, the plaintiff, and others, in
the High Court of Chancery of our lord the king ; and in and
by the said bill of complaint the said H. N. Tollervey claimed
to be a holder of and interested in divers shares in the said
mine, and disputed the plaintiffs right to the whole of the said
shares, and claimed in himself, the said H. N. Tollervey, a right
in and to a part of the same. And the said H. N. Tollervey
did, in and by his said bill of complaint, pray that the said
Malachy. the plaintiff, and others might answer the premises
therein mentioned, and make a full and true disclosure and dis-
covery of all and singular the matters therein mentioned, and
that H. N. Tollervey might be declared to be entitled to -|f$- parts
or shares of and in said mine, or to such other parts or shares
thereof as the said court should be of opinion that he was enti-
tled to, and that a proper legal assignment and transfer thereof
might be made to him by all necessary parties ; that the said
Malachy, the plaintiff, and others might be compelled to come
to an account with the said H. N. Tollervey for so much of the
profits which had been made in the said mine as, under *the cir-
cumstances in the said bill mentioned, the said H. N. Tollervey
had been entitled to receive in respect of his shares, and so far
as such profits had been divided among the shareholders, and to
pay to the said H. N. Tollervey what should be due to him on
such account ; and also to pay to the said H. N. Tollervey, from
time to time, his share of the profits of the said mine, which
should be divided and paid in respect of such shares as therein
mentioned ; and that the said H. N. Tollervey might also be
declared to be entitled to the like share and interest in the
future term therein mentioned to have been granted in the said
mine and premises, as he was entitled to in the therein-men-
tioned lease of the 29th of September, 1S33 ; and that he might
44 DECEIT.
have the benefit thereof secured to him accordingly ; and that
the said Malachy, the plaintiff, and others might be restrained
by the order and injunction of the said court from selling or
disposing of or transferring the said H. N. Tollervey's share and
interest in the said mine, or any other shares or interests in the
said mine, to the prejudice of the said H. N. Tollervey's rights
and interest therein ; and that some proper person might be
appointed by the said court as receiver of the said mine and
premises, with all usual and proper directions for carrying on
the same under the directions of the said court, to the end that
the said H. N. Tollervey's shares of the profits thereof might be
properly secured for his benefit ; or else that some proper person
might be appointed by the said court as receiver of -^-{j- parts of
the profits of the said mine, with all usual and necessary direc-
tions; and that the said Malachy, the plaintiff, and others might
be restrained by the injunction of the said court from retaining
to their own use, or appropriating in any other manner, the said
H. N. Tollervey's share of the said profit. And such proceedings
were had in the said court, that before and at the time of the
committing of the grievances by the defendant, as hereinafter
mentioned, the said Malachy, the plaintiff, and the others had
demurred to the said bill of complaint, and had demanded the
judgment of the said Court of Chancery whether they should
be compelled to make any further or other answer to the said
bill, or any of the matters therein contained, and they prayed
that the same might be thenceforth dismissed. That also before
and at the time of the committing of the grievances by the
defenda-nts, as hereinafter mentioned, one Richard Deadman
Hay ward had exhibited his certain bill of complaint in writing
against Malachy, the plaintiff, and Samuel Lyle, in the High
Court of Chancery of our lord the king, and the said R. D. Hay-
ward in and by his said bill of complaint claimed to be entitled
to be a holder of and interested in divers shares in the said mine,
and disputed the plaintiff's right to the whole of the said shares,
and claimed in himself, the said R. D. Hayward, a right in and
to a part of the same ; and the said R. D. Hajrward did, in and
by the said last-mentioned bill of complaint, pray that the said
Malachy, the plaintiff, and S. Lyle might make a full and true
disclosure and discovery of all and singular the matters in that
bill mentioned, and that it might be declared that as against the
MALACHY V. SOPER. 45
said Malaehy, the plaintiff, and S. Lyle the said R. D. Hay ward
was entitled not only to the two shares in the said bill men-
tioned in the said mine, and the said property and effects belong-
ing thereto, for which shares he had such certificates as in the
said bill were mentioned, but also to five other 5001. shares
therein, and to all the profits thereof, from the 22d of February,
1834 ; and that the said Malaehy, the plaintiff, and S. Lyle
might be compelled to sign and deliver to the said R. D. Hay-
ward certificates of his title to such five shares, or that the said
Malaehy, the plaintiff, and S. Lyle, might be compelled to pro-
cure and deliver to the said R. D. Hayward such certificates ;
and that he, the plaintiff, might be decreed to pay the costs of
that suit, or the costs thereof so far as the same had been made
necessary by his conduct ; and that the said Malaehy, the plain-
tiff, and S. Lyle might be compelled to account with the said
R. D. Hayward for the profits which had been already declared
and divided in respect of the said mine, and to pay to the said
R. D. Hayward -^fo parts of such profits, and also to pay to the
said R. D. Hayward for the time to come what the said R. D.
Hayward would be entitled to receive in respect of such shares
as aforesaid of the profits and proceeds thereafter to be divided
amongst the owners of the said mine; and that the said Malaehy,
the plaintiff, and S. Lyle might be restrained by the injunction
of the said court from selling or disposing of their or either of
their interests in the said mine, without first giving to the said
R. D. Hayward a proper transfer of such shares as aforesaid ; and
that the said Malaehy, the plaintiff, and S. Lyle might be in like
manner restrained from making any assignment of the said leases
therein mentioned, or either of them ; and that the said R. D.
Hayward might be protected in the enjoyment of his said therein-
mentioned shares of the said mine, and the profits and the prod-
uce thereof ; and, if it should be necessary, then that some proper
person or persons might be appointed by the said court as a
manager or managers of the said mine, to manage and conduct
the same, and to sell and dispose of the produce thereof, with all
usual and necessary directions, and that all usual and necessary
directions might be given for taking the said accounts and effect-
uating the several purposes aforesaid. And such proceedings
were had in the said last-mentioned suit, that before and at the
time of the committing of the grievances by the defendant, as
46 DECEIT.
hereinafter mentioned, the said S. Lyle had demurred to the said
last-mentioned bill of complaints, and had demanded the judg-
ment of the said Court of Chancery whether he should be
compelled to make any further or other answer to the said last-
mentioned bill, or any of the matters therein contained, and
prayed the same to be thence dismissed, with his reasonable costs
in that behalf sustained. Yet the defendants well knowing the
premises, but greatly envying the happy state and condition
of the plaintiff, and contriving, and wickedly and maliciously
intending, to injure the plaintiff in his said rights, and to cause
it to be suspected and believed that the said shares of the plain-
tiffs were of little or no value, and that the plaintiff had no right
to use or work the said mine as aforesaid, and to hinder and pre-
vent the plaintiff from selling or disposing of his said shares, and
from deriving or acquiring from the said mine any more profits,
emoluments, or advantages whatever, and also to vex, harass,
oppress, impoverish, and wholly ruin the plaintiff, to wit, on the
2d of January, 1836, wrongfully and unjustly did publish, and
cause and procure to be published, a certain false, malicious, and
unfounded libel in a certain public newspaper, of and concerning
the plaintiffs and his said shares, and the said using and working
of the said mine, and of and concerning the aforesaid suits, bills,
and demurrers, that is to say : " Wheal Brothers silver mine
(meaning the said mine) ; Tollervey v. Malachi (meaning the
first-mentioned suit), and Hayward v. Malachi (meaning the
second-mentioned suit) ; in these cases (meaning the said two
suits) which arose out of disputes relating to the celebrated
silver mine, Wheal Brothers, in the parish of Calstock (mean-
ing the said mine), and which have been brought into the court
of the Vice-Chancellor, the learned judge, after hearing long
arguments, and a multitude of affidavits, has set aside the
demurrers (meaning the said demurrers), and granted the prayer
of the petition (meaning the prayer of the petition in each of the
said bills as aforesaid, for an account and an injunction), and
persons duly authorized have arrived on the workings " (mean-
ing the workings of the said mine) ; thereby then meaning that
the said several demurrers had been set aside by the said court,
and that the prayer of the said petition on each of the said bills
for an account and injunction had been granted by the said
court, and that persons duly authorized by the said court had
MALACHY I'. SOPEft. 47
arrived on the workings of the said mine, and were hindering
and preventing the said mine from being used and worked as it
was before the committing of the grievance, and as the same
would have continued to have been, in so ample and beneficial
a manner for the plaintiff, and others, the holders of shares in
the said mine ; whereas, in truth and in fact, at the time of the
committing of the grievance, the. said demurrers had not, nor
had either of them, been set aside by the said court, nor had
the prayer of the said petition, on each of the said bills, for an
account and injunction been granted by the said court ; and
whereas, in truth and in fact, at the time of the committing of
the grievance, no person or persons, duly authorized by the said
court, had carried on the workings of the said mine, nor was nor
were any person or persons hindering or preventing the said
mine from being used and worked as it had been before this
committing of the said grievance, and as the same would have
continued to have been, in so ample and beneficial a manner for
the plaintiff, and others, the holders of shares in the said mine.
By means of which said several premises the plaintiff had been
and was greatly injured in his said rights ; and the said shares so
possessed by him, and in which he was interested as aforesaid,
became and were much depreciated and lessened in value, to wit,
in the value of 501., on and in respect of each of such shares, and
divers persons had believed, and still did believe, that the plain-
tiff had little or no right to the said shares, and that the said
mine could not lawfully be worked or used for the benefit of
the plaintiff ; and the plaintiff had been hindered and prevented
from selling or disposing of his said shares in the said mine, and
from working and using the same in so ample and beneficial a
manner as he otherwise would have done ; and the plaintiff had
been otherwise hindered and prevented from gaining, acquiring,
or deriving profits, emoluments, benefits, and advantages which
otherwise would have arisen and accrued to him from the same ;
and also, by reason of the premises aforesaid, the plaintiff had
been and was otherwise much damnified and injured.
A verdict having been obtained for the plaintiff on this decla-
ration, damages 51.,.
Talfourd, Serjt., obtained a rule nisi to arrest the judgment,
on the ground that there was no allegation or proof of special
damage, and that without such allegation and proof an action
48 • DECEIT.
for disparagement of the plaintiff's title did not lie. Law v.
Harwood, Cro. Car. 140 ; Sir W. Jones, 196 ; Rowe v. Roach,
1 M. & S. 304 ; Bois v. Bois, 1 Lev. 134.
He also objected that the innuendo in the declaration was too
large ; but upon this point the court pronounced no opinion.
Bompas, Serjt., Erie, Cowder, and Butt showed cause. This
is an action not so much for defaming the plaintiff's title to
mining shares, as for injuring him in his business and means of
getting his livelihood ; and for defamation of that kind an action
lies without any allegation or proof of special damage. The
plaintiff alleges that by means of the premises he was injured in
his rights ; that his shares became depreciated ; that divers per-
sons believed he had no right to them ; that the mines could not
be worked for his benefit ; that he was hindered from selling his
shares in the mine and working the same in so beneficial a man-
ner as he otherwise would have done, and was prevented from
gaining divers profits which otherwise would have accrued to
him. It is to be observed, too, that the injury complained of is
a printed libel, not a mere oral slander. Now, when persons are
defamed, vituperative expressions in writing are actionable,
which would not be actionable if merely spoken. Thorley v.
Lord Kerry, 4 Taunt. 355 ; Bell v. Stone, 1 Bos. & P. 331.
And there is no reason why the same distinction should not
be applied to defamation of title. The writing is permanent
and pervading ; the speech is fleeting and local. At all events,
it is sufficient if the words in themselves import damage to the
plaintiff in his estate. Accordingly, in Bois v. Bois, 1 Lev.
134, which was an action on the case for calling a widow,
who held an estate while sole and chaste, a whore, falsely
and maliciously, with intent to oust her of her estate, and say-
ing he would oust her thereof; and at another time calling
her a whore : after verdict for plaintiff on the issue not guilty, it
was moved in arrest of judgment that, no special damage being
laid, the words were not actionable. But by the court : " They
import damage by themselves in this case, in respect of her
estate ; as for calling a man a thief, an action lies without special
damage, because the words imply it in themselves." But for the
last words spoken at another time, which are not actionable in
themselves, and the damage being entire, the judgment was
therefore arrested till the matter be examined, whether the dam-
MALACHT V. SOPER. 49
ages were given entire or not. So in Pennyman v. Rabanks,
Cro. Eliz. 427, in an action on the case for slandering the plain-
tiff's title to J. S., who was to buy the plaintiff's land, the
words, •• I know one that hath two leases of his land, who will
not part with them at any reasonable rate," were held actionable ;
and no special damage appears to have been alleged. In Bold
v. Bacon, Cro. Eliz. 346, it was alleged that, by reason of the
words spoken by the defendant, none would buy the plaintiff's
land ; but no damage was alleged by the loss of any specific
purchaser. Indeed, in many cases the immediate effect of the
calumny may be to prevent any person from thinking of a pur-
chase. But in Lowe v. Harewood the language as stated in Croke
was not of so mischievous a nature; and though in Rowe u.
Roach the plaintiff did allege special damage, there was no deci-
sion that he was bound to do so. On the other hand, in Mill-
man v. Pratt, 2 B. & C. 486, an action for slander of title, there
was no special damage alleged. In Hargrave v. Le Breton,
4 Burr. 2422, it was only decided that malice, express or implied,
must appear : while in Hartley v. Herring, 8 T. R. 130, in an
action for consequential damage from slander, imputing incon-
' tinence to the plaintiff, it was held enough to state that he was
employed to preach to a dissenting congregation at a certain
licensed chapel ; that he derived considerable profit from his
preaching ; and that, by reason of the scandal, " persons fre-
quenting the chapel refused to permit him to preach there, and
had discontinued giving him the profits which they usually had
and otherwise would have given," without saying who those
persons were or by what authority they excluded him, or that
he was a preacher duly qualified according to the 10 Anne, c. 2.
In Cook v. Batchellor, 3 B. & P. 150, the defamation was oral,
and only injurious to the plaintiffs in the way of their trade. An
allegation of special damage was therefore essential to the action.
Tdlfuurd. Barstow, and Howe, in support of the rule. With
the exception of Millman v. Pratt, there is no instance of slander
of title without allegation of special damage ; there, however, the
property was actually put up to sale ; it was alleged that persons
desirous of purchasing were prevented by the libel from bidding ;
, and the decision of the court turned on a point of variance.
But in Lowe v. Harewood the court said that the declaration was
not good, and so the judgment was erroneous, because the action
4
50 DECEIT.
is not maintainable without showing special prejudice, any more
than for calling one " whore " or " bastard," without showing
special cause of temporal damage ; and it was not like words
spoken which imply slander and temporal loss, as " thief," and
" bankrupt," and such like; but slandering one's title did not
import in itself loss, without showing particularly the cause of
loss by reason of the speaking the words, as that he could not
sell or let the lands ; but, being general words, they were not
sufficient.
The distinction between written and oral defamation does not
apply to slander of title ; there is no question in such a case of
feelings more or less wounded, but of mere pecuniary loss ; and
a printed assertion is not likely to occasion greater loss than a
spoken one.
Nor is this a libel against the plaintiff in the way of his liveli-
hood. In order to constitute such a libel there must be an asser-
tion, first, concerning the individual, and, secondly, concerning
him in the way of his trade. It is not sufficient that the defend-
ant has spoken of the individual only, or of his trade only : it
must be of the individual in the way of his trade. In Savage v.
Robery, 2 Salk. 694, the plaintiff declared that he was a trader,
and that the defendant said of him, " You are a cheat, and have
been a cheat for divers years." Upon the first motion, Holt, C. J.,
held, that the words must be understood of his way of living,
and that it needed no colloquium. But Pasch. 10 W. 3, mutata
opinion, judgment was arrested. In Tasburgh v. Day, Cro. Jac.
484, in an action for slander of title, the court held that it
must be averred that the plaintiff was in actual treaty for the
sale of the estate, and that he received special damage. Gerrard
v. Dickenson, Cro. Eliz;. 197, and Manning v. Avery, 3 Keb. 153,
are in confirmation of the same principle.
Cur. adv. vult.
Tjndal, C. J. In this case a verdict having been found for
the plaintiff at the trial of the cause, with bl. damages, a motion
has been made to arrest the judgment on the ground that the
declaration does not state any legal cause of action ; and we
are of opinion that this objection is well founded, and that the
judgment must be arrested.
This is not an ordinary action for defamation of the person, by
the publication of slander, either oral or written, in which form
MALACHY V. SOPER. 51
of action no special damage need either be alleged or proved,
the law presuming that the uttering of the slanderous words, or
the publishing of the libel, have of themselves a natural and nec-
essary tendency to injure the plaintiff. But this is an action to
recover damages by reason of the publication of a paragraph in
a newspaper, which contains no other charge than that the peti-
tion in a bill filed in the Court of Chancery against the plaintiff,
and certain other persons as share-owners in a certain mine, for
an account and an injunction, had been granted by the Vice-
Chancellor, and that persons duly authorized had arrived in the
workings." The publication, therefore, is one which slanders
not the person or character of the plaintiff, but his title as one
of the shareholders to the undisputed possession and enjoyment
of his shares of the mine. And the objection taken is, that the
plaintiff, in order to maintain this action, must show a special
damage to have happened from the publication, and that this
declaration shows none.
The first question, therefore, is, Does the law require in such
an action an allegation of special damage ? And, looking at the
authorities, we think they all point the same way. The law is
clearly laid down in Sir W. Jones, 196 (Lowe v. Harewood).
" Of slander of title, the plaintiff shall not maintain action unless
it was re vera a damage, soil., that he was hindered in sale of his
land ; so there the particular damage ought to be alleged." And
in addition to the cases cited at the bar, viz.. Sir John Tas-
burgh v. Day, Cro. Jac. 484, and Manning v. Avery, 3 Keb. 153,
the case of Cane r. Golding, Style's Rep. 169, 176, furnishes a
strong authority. That was an action on the case for slandering
the plaintiff's title, by speaking these words, viz., " His right
and title thereunto is nought, and I have a better title than he."
The words were alleged to be spoken /also et malitiose, and that
he was likely to sell and was injured by the words; and that
by reason of speaking the words he could not recover his titles.
After verdict for the plaintiff, there was a motion in arrest of
judgment ; and Rolle, C. J., said, " There ought to be a scandal
and a particular damage set forth, and there is not here ; " and
upon its being moved again and argued by the judges, Rolle, C. J.,
held, that the action did not lie, although it was alleged that the
words were spoken fa ho et malitiose, for " the plaintiff ought to
have a special cause ; but that the verdict might supply ; but
52 DECEIT.
the plaintiff ought also to have showed a special damage, which
he hath not done, and this the verdict cannot supply. The dec-
laration here is too general, and upon which no good issue can
be joined ; and he ought to have alleged that there was a com-
munication had before the words spoken touching the sale of
the lands whereof the title was slandered, and that by speaking
of them the sale was hindered ; " and cited several cases to that
effect.
We hold, therefore, on the authority of these cases, that an
action for slander of title is not properly an action for words
spoken or for libel written and published, but an action on the
case for special damage sustained by reason of the speaking or
publication of the slander of the plaintiff's title. This action is
ranged under that division of actions in the Digests and other
writers on the text law, and such we feel bound to hold it to
remain at the present day.
The next question is, Has there been such a special damage
alleged in this case as will satisfy the rule laid down by the
authorities above referred to ? The doctrine of the older cases
is, that the plaintiff ought to aver that, by the speaking, he could
not sell or lease (Cro. Eliz. 197, Cro. Car. 140) ; and that it will
not be sufficient to say only, that he had an intent to sell, with-
out alleging a communication for sale. It. 1. Rolle, 244. Admit-
ting, however, that these may be put as instances only, and that
there may be many more cases in which a particular damage may
be equally apparent without such allegation, they establish at
least this, that in the action for slander of title there must be an
express allegation of some particular damage resulting to the
plaintiff from such slander. Now the allegation upon this record
is only this, " that the plaintiff is injured in his rights ; and the
shares so possessed by him, and in which he is interested, have
been and are much depreciated and lessened in value ; and divers
persons have believed and do believe that he has little or no right
to the shares, and that the mine cannot be lawfully worked or
used for his benefit ; and that he hath been hindered and pre-
vented from selling or disposing of his said shares in the said
mine, and from working and using the same in so ample and
beneficial a manner as he otherwise would have done." And we
are of opinion that this is not such an allegation of special dam-
age as the authorities above referred to require, where the action
MALACHY V. SOPER. 53
is not founded on the words spoken or written, but upon the
special damage sustained.
It has been argued in support of the present action that it is
not so much an action for slander of title, as an action for a libel
on the plaintiff in the course of his business, and in the way of
gaining his livelihood, and that such an action is strictly and
properly an action for defamation, and so classed and held by all
the authorities. Bat we think it sufficient to advert to the dec-
laration, to be convinced that the publication complained of was
really and strictly a slander of the plaintiff's title to his shares,
and nothing else. The bill in chancery, out of which the publi-
cation arose, is filed by Tollervey, who disputed the plaintiff's
right to the whole of the shares, and claimed in himself a right
to part of the same, and prayed that he might be declared to be
entitled to some of them ; and the only mention made as to the
working of the mines was with reference to the appointment of
a receiver to the profits thereof. And we think it would be
doing violence to the natural meaning of the terms of the publi-
cation, if we were to hold it to be published of the plaintiff in
the course of his business or occupation or mode of acquiring his
livelihood, aud not as referring to the disputed title of the shares
of the mine.
It has been urged, secondly, that however necessary it may be,
according to the ancient authorities, to allege some particular
damage in cases of unwritten slander of title, the case of written
slander stands on different grounds ; and that an action may be
maintained without an allegation of damage actually sustained,
if the plaintiff's right be impeached by a written puhlicatiou,
which of itself, it is contended, affords presumption of injury to
the plaintiff. Xo authority whatever has been cited in support
of this distinction. And we are of opinion that the necessity for
an allegation of actual damage in the case of slander of title
cannot depend upon the medium through which that slander is
conveved, that is, whether it be through words or writing or
print : but that it rests on the nature of the action itself, namely,
it is an action for special damage actually sustained, and not an
action for slander. The circumstance of the slander of title being
conveyed in a letter or other publication, appears to us to make
no other difference than that it is more widely and permanently
disseminated, and in consequence more likely to be serious than
54
DECEIT.
where the slander of title is by words only, but that it makes no
difference whatever in the legal ground of action.
For these reasons we are of opinion that the action is not main-
tainable, and that the judgment must be arrested ; and, conse-
quently, it becomes unnecessary to inquire whether the innuendo
laid in the declaration is more large than it ought to have been.
We therefore make the rule for arresting the judgment
Absolute.
The doctrine of Malachy v. Soper,
that a misrepresentation of the plain-
tiff's present title, though often called
slander of title, stands upon the same
footing with other actions for false rep-
resentations, is well settled. See Gut-
sole v. Mathers, 1 Mees. & W. 501 ;
Brook v. Rawl, 4 Ex. 524; Pater v.
Baker, 3 Com. B. 831 ; Kendall v. Stone,
5 N. Y. 14; Like v. McKinstry, 4
Keyes, 397 ; Hill v. Ward, 13 Ala. 310 ;
Paull v. Halferty, 63 Penn. St. 46;
Swan v. Tappan, 5 Cush. 104.
That this is true as to the necessity
of proving special damage, has been
conceded from early times. Law v.
Harwood, Croke Car. 140. But the
language of the judges in certain recent
cases may convey the impression that
the doctrine of implied malice belongs
to actions of this kind as well as to
actions for personal defamation ; though
the cases themselves do not decide the
point. Wren v. Weild, Law R. 4 Q. B.
730 ; Steward e. Young, Law R. 5 C.
P. 122; Hill v. Ward, 13 Ala. 310.
Before considering these cases, it is
to be remembered that in actions for
defamation by slander or libel the law
raises a presumption of malice in the
defendant, and casts the burden of
proof upon him to relieve himself. In
actions for false representations, how-
ever, as we have seen in the note to
Pasley v. Freeman, the burden rests
upon the plaintiff of proving that the
defendant made the statement fraudu-
lently as well as falsely ; and the ques-
tion now is, to which of these cases the
action of slander of title belongs.
In Wren v. Weild, supra, it was
merely decided, as it had often been
decided before, that no action lies
against a party for falsely asserting a
claim to property, by which the plain-
tiff loses a sale. In the course of the
judgment, Mr. Justice Blackburn says:
" There is a well-known action for
slander. of title, where an unfounded
assertion that the owner of real prop-
erty has not title to it — if made under
such circumstances that the law would
imply malice, or if express malice be
proved, and special damage is shown
. . . — is held to give a cause of action."
The case, however, explains this lan-
guage, as we shall see, and removes the
impression it might at first convey.
Steward v. Young, supra, was a case
of the same kind; and Bovill, C. J.,
said : " I think the occasion of the
speaking the alleged slander was one
which brought it within the rule as to
privileged communications. . . . The
prima facie presumption of malice being
rebutted, the onus of proving malice
lay upon the plaintiff" And the lan-
guage of the other judges in this case,
and of the court in Hill v. Ward, supra,
is much to the same effect.
The decision of Lord Ellenborough
in Pitt v. Donovan, 1 Maule & S. 639,
SLANDER OF TITLE.
55
is often referred to; but though that dis-
tinguished judge there says that the
jury must arrive at their conclusion
through the medium of malice or no
malice, he so explains his meaning as
to show that he did not use the term in
the sense in which it is employed in the
law of slander and libel. The question
was, whether the defendant's honesty
in warning against the plaintiff's title
was the proper criterion of liability;
and he held that it was. " If," said he,
• ' what the defendant has written be
most untrue, but, nevertheless, he be-
lieved it, if he was acting under the
most vicious of judgments, yet if he
exerei.-ed that judgment bona fide, it
will be a justification in this case."'
And again: " The question, then, dis-
tinctly and sulstantively is. whether, in
the communication which he made, he
acted bona fide. I am aware that there
are many things reprehensible in the
letters, but they are no slander of the
title if he believed them."
Xow, it is to be remembered that, in
the action for defamation of character,
it is no defence that the party believed
that what he sai I of the plaintiff was
true. Campbell r. Spottiswoode, 3 Best
& S. 7t>0. The question in Pitt r.
Donovan, however, did not involve the
matter of the burden of proof, and the
point was not mentioned in the case.
The earliest case that we have found
in which malice is spoken of as essen-
tial to this action is Goulding v. Herring,
3 Keb. 141, pi. 11. a p. 16*0. It was
there atrreed that the defendant claimed
title, vet if it were found by verdict to
be done malitiose, the action lay; but if
upon the evidence any probable cause
of claim appeared, it ought not to be
found malitiose.
Grard c. Dickenson, 4 Coke, 18,
tried about a hundred years earlier,
seems decisive against this connection
of malice with actions for slander of
title. In that case, the defendant had
prevented the sale of a lease by the
plaintiff, by representing to the in-
tended purchaser that she (the defend-
ant) held a lease of the premises for
ninety years. The declaration alleged
that the lease of the defendant was a
forgery, and thai she knew it. The de-
fendant traversed the knowledge of the
forgery. The court resolved that if
the defendant had merely set up a claim
to the premises, though the claim were
false, no action lay; but because it was
alleged in the declaration that the de-
fendant knew of the intended making
of the lease, and also knew that her
own lease was forged and counterfeited,
and yet. against, her own knowledge,
had affirmed and published that it was
a good lease, the action was maintain-
able. The bar was held insufficient,
for the defendant's knowing of the
forgery was not traversable; " as in an
action upon the case because the de-
fendant's dog has bit the plaintiff's
cattle, ipse sciens canon siium ad mor-
dendas oves consiietum, the sciens is not
traversable, but oitght to be proved in
ei-idence upon the general issue, for
sciois is no direct allegation, nor ever
alleged in any place, so that it is not
traversable nor triable.-' The editor of
Coke, in a note to this point, says that
the general issue is in tact a traverse of
the sciens. for unless, in the case put,
the plaintiff prove that the defendant
knew his dog to be accustomed to bite
sheep, his cause of action falls to the
ground.
Here, then, is a case, often cited as
a leading authority, in which no mention
is made of malice, and the pnint decided
that it is a part of the plaintiff's case to
prove that the slander was false to the
56
DECEIT.
defendant's knowledge, and that it was
uttered for the purpose of injuring the
plaintiff.
Mildway's Case, 1 Coke, 175 a, a few
years earlier, is to the same effect. In
that case, which was for slander of title,
the defendant had published that a
third person had a lease of the plain-
tiff's land for a thousand years ; but
the lease being void in law, it was held,
in the language of the report, that,
forasmuch as the defendant hath taken
upon him the knowledge of the law,
and, meddling with a matter which did
not concern him, had published and de-
clared that Oliffe had a good estate for
a thousand years, in slander of the title
of Mildway, and thereby had prejudiced
the plaintiff, as appears by the plaintiff's
declaration; for this reason the judg-
ment given for the plaintiff was affirmed
in the writ of error; et ignorantia legis
non excusat. That is, the defendant
had made a statement false to his own
knowledge, since he was bound to
know the law ; and, having virtually
admitted this by his pleading, the plain-
tiff's case was made out. See Smith
v. Spooner, 3 Taunt. 246, per Law-
rence, J.
If it should be said that these cases
are not important because the doctrine
of implied malice is not mentioned in
any of the cases of slander in the Re-
ports of Coke, and is apparently of sub-
sequent growth, the reply is, that there
are many cases in Coke's time holding
that certain classes of words are action-
able per se, the effect of proving which
words was, of course, to cast the burden
of proof upon the defendant to justify
the speaking of them. Now, it is plain
that nothing was added when it was
afterwards said that malice is the gist of
the action ; for the courts always said
that actionable words implied malice.
Malice is therefore a superfluous factor
in the case ; and the cases of actionable
words in Coke's Reports are the same
in substance as the modern cases. But
in slander of title, where the words were
not actionable per se, it was not enough
to prove the words alone ; the burden
was still upon the plaintiff to prove that
the words were published with a knowl-
edge of their falsity, and to the special
damage of the plaintiff.
The modern cases, decided since the
doctrine of implied malice was ingrafted
upon the law of slander and libel, also
show that the burden of proof is upon
the plaintiff to establish the malice of the
defendant. Smith v. Spooner, 3 Taunt.
246; Pater v. Baker, 3 C. B. 831;
Stark v. Chetwood, 5 Kans. 141;
McDaniel v. Baca, 2 Cal. 326. See
also Hargrave v. Le Breton, 4 Burr.
2422; Wren v. Weild, Law R. 4 Q. B.
730; Kendall v. Stone, 2 Sandf. 269;
s. c. 5 N. Y. 14.
In Smith v. Spooner, supra, the de-
fendant had stopped the sale of the
plaintiff's leasehold premises, asserting
that he could not make title to them.
It was objected under the general issue
that the plaintiff could not recover upon
the evidence, since there was no proof
of malice in the defendant ; and the ob-
jection was sustained. Lawrence, J.,
said : " It is not necessary to plead
specially ; it is for the plaintiff to prove
malice, which is the gist of the action,
and is a part of the declaration impor-
tant to be proved by the plaintiff."
Pater v. Baker, supra, is to the same
effect. The action was against a sur-
veyor of highways for words by which
he prevented the sale by the plaintiff of
certain unfinished houses. " It seems to
have been admitted," said Wilde, C. J.,
" and, indeed, it could not well have
been denied, that proof of actual malice
SLANDER OF TITLE.
57
In this country the same decision has
been reached in Kendall v. Stone, 2
Sandf. 209; in MeDaniel v. Baca, 2
Cal. 326; and in Stark v. Chetwood,
5 Kans. 141.
Kendall v. Stone was, indeed, re-
was requisite to sustain the action. The
declaration is framed with reference to
that view of the law." JIaule, J., said
directly that, unless the plaintiff in ac-
tions for slander of title showed false-
hood and malice, and an injure to
himself, he had no case to go to the versed in the Court of Appeals (5 N.
Jur-V" Y- 14), but not on this point. There
The case of Wren v, Weild, above was no doubt, the court observed (2
referred to (p. 54), though in the ex- Sandf. 284), that sufficient words and
tract given the court speak of implied damage (upon which last point the case
malice, is also in reality opposed to the was reversed) had been shown to sus-
notion that this action of slander of title tain the action, provided malice had
is allied to the action of slander. The been established. " This was a ques-
opinion shows that by " implied malice " tion of fact, and was fairly submitted to
was meant circumstances to be proved the jury. The whole charge proceeds
by the plaintiff from which the inference on the ground, that if the defendant
of malice could be drawn. "If said honestly believed what he communi-
the court, '-the plaintiffs had given cated to Wheeler, and cautioned him
evidence on which the jury might prop- in a fair spirit, he was not liable ; but
erly find that the defendant made the if he made the communication with a
communication to the intended pur- different spirit, to prevent the sale to
chasers mala fide, and without any in- Wheeler, so as to enable the defendant
tention to institute legal proceedings at to get the plaintiff's property himself
all against the purchasers,1 . . . we are for less than its value, or from any other
inclined to think that it would have been impure or corrupt motive, then he must
proper to leave that evidence to the be deemed to have spoken the words
jury in support of the plaintiff's allega- maliciously. We see nothing excep-
tion that the defendant's letter was false tionable in this view of the charge. . . .
and malicious; the question whether The plaintiff assumes the burden of prov-
that is enough without an express alle- ing not only special loss, but actual
gation of knowledge or want of reason- malice; not that malice which the law
able and probable cause being on the implies in ordinary actions for defama-
record." And again : " We think the tion of the person, but actual, express
action could not lie, unless the plaintiffs malice.''
affirmaticdy proved that the defendant's In MeDaniel r. Baca, supra, the
claim was not a bona fide claim in sup- court below had instructed the jury
port of a right which, with or without that "where a person injuriously slan-
cause, he fancied he had ; but a mala ders the title of another, malice is
fide and malicious attempt to injure the presumed ; " and this instruction was
plaintiffs by asserting a claim of right pointedly overruled,
against his own knowledge that it was If these cases were not conclusive
without foundation." that the doctrine of the presumption of
1 The defendant had warned the public against purchasing certain machines of the plain-
tiffs, alleging them to be infringements of his patent, and threatening the purchasers with
legal proceedings.
58
DECEIT.
malice in actions for slander has no place
in actions for slan.ler of title, it might
be shown to be highly probable from
the fact that the connection of malice
with the law of slander is, as we have
seen, to be traced to the canon law.
When slander was a matter of cogni-
zance in the spiritual courts, malitia was
considered essential to the action ; but
slander of title was always a temporal
cause, and therefore was probably never
cognizable in the spiritual courts. See
Palmer v. Thorpe, 4 Coke, 20, where
it was held that to defamation in the
ecclesiastical courts there were three
incidents: 1. That it concerns matter
merely of ecclesiastical cognizance, as
for calling one heretic, adulterer, &c. ;
2. That it concerns matter merely
spiritual ; for if it relate to any thing
determinable at common law, the ec-
clesiastical judge shall not have cogni-
zance thereof; 3. That the party cannot
sue there for damages, but only for pun-
ishment of sin.
This will probably account for the
fact that in all the English cases there
has never been an express decision that
the speaking of injurious words of one's
title raises a presumption of malice.
Had slander of title come from the
spiritual courts, it is altogether likely
that the action would have been assimi-
lated to the action for defamation. But
the fact that the action has from early
times been called slander of title has, no
doubt, given rise to the use of the term
" malice," and caused the courts some-
times to say that malice is the gist of
the action. This malice, however,
seems merely to be a knowledge of the
falsity of the words, .coupled with an
intention to injure the plaintiff, or to
prevent him from miking a bargain.
If the words are spoken with an honest
motive to protect or save the rights of
the defendant, though perhaps he may
not have good grounds to support his
claim (see Wren v. Weild, supra), there
is no malice ; and the action fails.
The action for slander of title is
therefore more nearly allied to actions
for false representations, like Pasley v.
Freeman ; and it is safe to say that a
declaration framed after the manner of
declarations in those cases would be
consistent with evidence of slandering
the plaintiff's title.
Originally actions for slander of title
were brought only for words affecting
the title to the plaintiff's real property ;
but this was perhaps owing to the cir-
cumstance that in early times personal
property was regarded as of but little
importance, anil actions concerning it
were infrequent. But the leading case
shows that the action has in modern
times been extended to matters con-
cerning personalty. See also Wren v.
Weild, Law R. 4 Q. B. 730 ; Snow v.
Judson, 38 Barb. 210.
There has been some disposition also
to confine this action to words affecting
the plaintiff's title. See Young v. Mac-
rae, 3 Best & S. 264, 269, where Black-
burn, J., in the course of the argument,
says : " I-t there any case where an ac-
tion has been maintained for slander,
written or verbal, of goods, unless where
the slander is of the title to them, and
special damage has resulted?" And
Cockburn, C. J. says : " Not one of us
recollects such an action in the course
of his experience." But on giving judg-
ment, the Chief Justice said : " I am far
from saying that if a man falsely and
maliciously makes a statement disparag-
ing an article which another manufact-
ures or vends, although in so doing be
casts no imputation on his personal
or professional character, and thereby
causes an injury, and special damage is
MARSH V. BILLINGS.
59
averred, an action might not be main-
tained. For, although none of us are
familiar with such actions, still we can
see that a most grievous wrong might
be done in that way. and it ought not to
be without remedy." But it was held
that the declaration had not alleged
facts to bring the case within such a
rule.
There is a case, however, in which
Lord Kenyon held that it was action-
able, in connection with proof of special
damage, to publish of a newspaper that
it was '• lowest in circulation." Heriot
v. Stuart, 1 Esp. 437. See also Tobias
r. Harland, 4 "Wend. 537. And if we
are correct in supposing that the doc-
trine of presumption of malice has noth-
ing to do with these cases, and that the
burden of proving not only actual dam-
age, but the falsity and mala Jides of
the words, lies upon the plaintiff, there
is no good reason for a distinction be-
tween (for example) words concerning
the plaintiff's solvency and words con-
cerning the quality of bis sugar. If the
utterance of injurious words, falsely and
fraudulently, in the one case gives a
cause of action, it should in the other.
The only ground for any distinction
must have arisen from a mistaken no-
tion, that to admit the action would
carry with it a presumption of malice
in favor of the plaintiff.
Warren Marsh and Another v. Frederick Billings and Others.
(7 Cush. 322. Supreme Court, Massachusetts, March Term, 18-31.)
Fraudulent Use of Badge. M. agreed with S.. the lessee of the Revere House, to keep
good carriages, horses, and drivers, on the arrival of certain specified trains, at a
railroad station, to convey passengers to the Revere House, and in consideration
thereof, S. agreed to employ M. to carry all the passengers from the Revere House
to the station, and authorized him to put upon his coaches and the caps of his
drivers, as a badge, the wop Is " Revere House." A similar agreement, previously
exisrng between S. and B., had been terminated by mutual consent ; but B. still
continued to use the words " Revere House " as a badge on his coaches and on
the caps of his drivers, although requested not to do so by S. : and bis drivers
called " Revere House " at the station, and diverted passengers from M.'s coaches
into B. s In an action on the case brought by M. against B.. for using said badge
and diverting passengers, it was held that M., by his agreement with S , had an
exclusive right to use the wonls " Revere House," for the purpose of indicating
that he had the patronage of that house for the conveyance of passengers ; that if
B. used those words for the purpose of holding himself out as having the patronage
and, confidence of that establishment, and in that way to induce passengers to go
in his coaches rather than in M.'s. this would be a fraud on the plaintiff, and a
violation of his rights, for which this action would lie, without proof of specific
damage ; and that M. would be entitled to recover such damages as the jury,
upon the whole evidence, should be satisfied that he had sustained, and not merely
for the loss of such passengers as he could prove to have been actually diverted
from his coaches to the defendant's.
60 DECEIT.
This was an action of trespass on the case. The declaration
contained two counts, the first of which stated that the plaintiffs,
on the 16th of January, 1849, and ever since, had purchased for
a valuable consideration, and were possessed of, the sole and
exclusive right and privilege of representing and acting for Paran
Stevens, the lessee of the hotel or public-house in Boston known
as the Revere House, at the station of the Boston and Worcester
Railroad Company in Boston, in and about the carriage and trans-
portation for hire of such passengers arriving at the station as
should require the services and aid of hackmen and hacks author-
ized by Stevens to act for and represent him in this behalf, to
transport them and their baggage from the station to the Revere
House, and of the exclusive right of using, wearing, and placing
upon their carriages and servants, stationed at said station, the
name, badge, and designation of " Revere House ; " and that, to
enable them to exercise their said rights and privileges benefi-
cially, the plaintiffs had been put to great outlay and expense,
and had bought and maintained two carriages at a great expense,
to wit, the sum of four thousand dollars, and had hired and kept
divers servants at great wages ; and, at the time of the commit-
ting by the defendants of the grievances complained of, were
used and accustomed to obtain and transport for hire, from the
station to the Revere House, a great number of such passen-
gers and their baggage ; and by reason of the transportation of
such passengers and baggage great profits and advantages had
accrued, and still ought to accrue, to the plaintiffs. Yet the
defendants, well knowing the premises, but contriving and
unjustly intending to injure the plaintiffs in the exercise of their
said business or occupation, and to deprive them of great parts
of their said profits and advantages,* without the license or con-
sent of the plaintiffs, or of Stevens, and against the will of the
plaintiffs, and of Stevens, -did unlawfully, on the 16th of Jan-
uary, 1849, and on divers other days since that day, and before
the purchase of this writ, keep and maintain, and caused to be
kept and maintained, at said station a large number of carriages
and servants, with the name, badge, or designation of " Revere
House " marked, placed, or worn upon them and each of them, in
imitation of and as the name, badge, and designation worn and
used by the plaintiffs as aforesaid, and in order to denote to such
passengers that said coaches and servants were authorized by
MARSH V. BILLINGS. 61
Stevens to transport them and their baggage from the station to
the Revere House, and did knowingly and deceitfully represent,
and cause their said servants to represent, to such passengers
that said coaches and servants were authorized and placed by
Stevens at the station, to transport for hire said passengers and
their baggage from the station to the Eevere House ; by means
of which a great number, to wit, five hundred, of such passengers
were induced to enter the defendants' carriages with their bag-
gage, and to desert and leave the carriages of the plaintiffs, and
the plaintiffs thereby lost the profits and advantages which would
otherwise have accrued to them from transporting for hire said
passengers and their baggage from the station to the Eevere
House, and were subjected to great loss in their said business or
occupation.
The second count was precisely like the first as far as the
star (*) above, and then alleged that the defendants did unlaw-
fully, on the 16th of January, 1849, and on divers other days
since that day, and before the purchase of this writ, interfere,
and cause their servants to interfere, with the plaintiffs, in the
exercise of their said business or occupation, and in the obtaining
and transportation by the plaintiffs of such passengers and their
baggage from the station to the Revere House, insomuch that
many passengers, to wit, five hundred, who were then and there
about to enter the plaintiffs' carriages, were prevented from so
doing, and the plaintiffs were thereby prevented from obtaining
and transporting for hire such passengers and their baggage in
such plenty as they would otherwise have done, and from realiz-
ing the profits and advantages which ought to have accrued to
them in their said business and occupation, and were therein
subjected to great loss.
At the trial before Bigelow, J., in the Court of Common Pleas,
the plaintiffs, to prove their case, called as a witness Paran
Stevens, the lessee of the Revere House, who testified that on
the first day of May, 1849, he made a verbal agreement with the
plaintiffs, by which they agreed to keep coaches at the station of
the Boston and Worcester Railroad in Boston, to convey passen-
gers arriving at the station by the '■ long trains," who might
desire to go to the Revere House, and further agreed to keep
good horses and coaches, and to employ first-rate drivers, to do
the work of conveying passengers, to the acceptance of the pas-
62 DECEIT.
sengers and of Stevens ; in consideration of which he agreed to
employ the plaintiffs to convey all passengers who might wish
to go from the Revere House to the station, and authorized the
plaintiffs to put on their coaches and on the caps of their drivers,
as a badge, the words " Revere House." He further testified
that a similar agreement had existed between him and the
defendants, from the time when he first opened the Revere
House, until the 1st of May, 1849, when it was terminated by
him with the assent of the defendants, because the defendants
did not do the work to his satisfaction ; and that the defendants,
under this agreement, had placed the words " Revere House " on
their coaches and on the caps of their drivers.
It further appeared in evidence that after the 1st of May,
1849, and during the times alleged in the plaintiffs' writ, the
defendants continued to carry the words " Revere House " on
their coaches and on the caps of their drivers ; that their coaches
and drivers, so marked, were kept at the station of the Boston
and Worcester Railroad, and on the arrival of the " long trains "
their drivers were in the constant habit of calling out " Revere
House," in loud tones, in the presence and hearing of the passen-
gers by said trains. It also appeared that some time in July,
1849, Stevens requested one of the defendants to discontinue the
use of the words " Revere House " on their coaches and on the
caps of their drivers; but that he refused so to do, saying he had
a right to use them.
There was also some evidence that the defendants by their
agents on one or more occasions stated to persons desiring convey-
ance to the Revere House, that they were the agents employed
by the " Revere House," or by Mr. Stevens, to convey passengers,
and that the plaintiffs were not, or words to that effect, by means
of which statements some passengers were diverted from the
coaches of the plaintiffs, and induced to go in the coaches of the
defendants. Upon this point, however, the evidence was con-
tradictory. One person in the employ of the defendants, called
as a witness by the plaintiffs, testified that on one occasion he
induced three persons to leave the coach of the plaintiffs and
go in the defendants' coach, by stating to them that his coach
was the regular coach, and that they had got into the wrong
coach. The plaintiffs also offered evidence that the defend-
ants, during the time alleged in the plaintiffs' writ, carried
MARSH V. BILLINGS. 63
large numbers of passengers from the station to the Revere
House.
The plaintiffs, on the foregoing evidence, contended that they
had an exclusive right to the use of the words " Revere House "
on their coaches and on the caps of their drivers ; that these
words were in the nature of trade-marks, and that their action
would lie, on showing that the defendants had used these words
in the manner above stated.
But the judge instructed the jury that no person had the legal
right to claim the exclusive privilege of conveying passengers
from the station of the Boston and Worcester Railroad to the
Revere House ; that any person, who saw fit to engage in it, had
a right to carry on the business, and to indicate, by suitable signs
on his coaches, by badges on the caps of his drivers, and by call-
ing at the station, in the hearing of passengers, the place to and
fro ni which he conveyed passengers ; that the plaintiffs in this
case could not recover damages of the defendants, merely by
showing that the defendants had on their coaches, and on the
caps of their drivers, the words " Revere House," and that they
had called out •• Revere House," in the hearing of passengers in
the station, and thereby obtaining the conveyance of passengers
from the station to the Revere House. But that if, on the whole
evidence before the jury, the burden of proof being on the plain-
tiffs, the jury were satisfied that the plaintiffs were authorized
by Stevens to hold themselves out as his agents at the station,
for the transportation of passengers thence to the Revere House,
and the defendants knowing this, by means of false representa-
tions that they were the agents of Stevens for this purpose, or
that the plaintiffs were not. induced persons to go by the coaches
of the defendants, instead of going by the coaches of the plain-
tiffs, and that thereby passengers were actually diverted from
the plaintiffs' coaches, then the plaintiffs might recover of the
defendants such damages as the plaintiffs had shown they had
sustained in consequence of such false representations, and the
loss of passengers thereby occasioned.
The jury returned a verdict for the plaintiffs, assessing damages
in the sum of seventy-five cents, and the plaintiffs excepted to
the instructions of the judge.
Tr. Sohier, for the plaintiffs. W. Brigham, for the defendants.
The opinion was delivered at March term, 1852.
64 DECEIT.
Fletcher, J. This is. an action on the case, sounding in tort.
The principle involved in the merits of the case is one of much
importance, not only to persons situated as the plaintiffs are, but
also to the public. But this principle is by no means novel in its
character, or in its application to a case like the present. It is
substantially the same principle which has been repeatedly
recognized and acted on by courts, in reference to the fraudulent
use of trade-marks, and regarded as one of much importance in
a mercantile community. Vast numbers, no doubt, of the stran-
gers who are continually arriving at the stations of the various
railroads in the city have a knowledge of the reputation and
character of the principal hotels, and would at once trust them-
selves and their luggage to coachmen supposed to have the
patronage and confidence of these establishments. Not only
much wrong might be done to individuals situated like the
plaintiffs, but great fraud and imposition might be practised
upon strangers, if coachmen were permitted to hold themselves
out falsely as being in the employment, or as having the patron-
age and countenance, of the keepers of well known and respect-
able public-houses. It was said, in behalf of the defendants,
that the lessee of the Revere House had no exclusive right to
convey passengers from the Worcester Railroad to his house, nor
had he the exclusive right to put upon his coaches or the badges
of his servants the words "Revere House," and could confer no
such exclusive right on the plaintiffs; that the defendants, in
common with all other citizens, have a right to convey passen-
gers from the Worcester Railroad to any public-house, and have
a right to indicate their intention so to do, by marks on their
coaches and on the badges of their servants.
This may all be very true, but it does not reach the merits of
the case. The plaintiffs do not claim the exclusive right of using
the words " Revere House ; " but they do claim the exclusive
right to use those words in a manner to indicate, and for the
purpose of indicating, the fact that they have the patronage and
countenance of the lessee of that house, for the purpose of trans-
porting passengers to and from that house, to and from the rail-
roads. The plaintiffs may well claim that they had the exclusive
right to use the words " Revere House," to indicate the fact that
they had the patronage of that establishment ; because the evi-
dence shows that such was the fact, and that the plaintiffs, and
MARSH V. BILLINGS. 65
they alone, had such patronage of that house, by a fair and
express agreement with the lessee. For this privilege they paid
an equivalent in the obligations into which they entered. The
defendants, no doubt, had a perfect right to cany passengers
from the station to the Revere House. And they might perhaps
use the words " Revere House," provided they did not use them
under such circumstances and in such a manner as to effect
a fraud upon others.
The defendants have a perfect right to carry on as active and
as energetic a competition as they please, in the conveyance
of passengers to the Revere House or any other house. The
employment is open to them as fully and freely as to the plain-
tiffs. They may obtain the public patronage by the excellence
of their carriages, the civility and attention of their drivers, or
by their carefulness and fidelity, or any other lawful means.
But they may not by falsehood and fraud violate the rights of
others. The business is fully open to them, but they must not
dress themselves in colors, and adopt and wear symbols which
belong to others.
The ground of action against the defendants is not that they
carried passengers to the Revere House, or that they had the
words " Revere House " on the coaches and on the caps of the
drivers, merely ; but that they falsely and fraudulently held
themselves out as being in the employment, or as having the
patronage and confidence, of the lessee of the Revere House, in
violation of the rights of the plaintiffs. The jury would have
been well warranted by the evidence in finding that the defend-
ants used the words " Revere House," not for the purpose of
indicating merely that they carried passengers to that house, but
for the purpose of indicating, and in a manner and under cir-
cumstances calculated and designed to indicate, that they had,
and to hold themselves out as having, the patronage of that
establishment. Upon the evidence in the case, the jury should
have been instructed, that if they were satisfied by the evidence
that the plaintiffs had made the agreement with the lessee of the
Revere House, as stated, they had, under and by virtue of that
agreement, an exclusive right to use the words "Revere House,"
for the purpose of indicating and holding themselves out as hav-
ing the patronage -of that establishment for the conveyance of
passengers ; and that if the defendants used those words, in the
5
66 DECEIT.
manner and under the circumstances stated in the evidence, for
the purpose of falsely holding themselves out as having the
patronage and confidence of that house, and in that way to
induce passengers to go in the defendants' coaches, rather than
in those of the- plaintiffs, that would be a fraud on the plaintiffs,
and a violation of their rights, for which this action would lie,
without proof of actual or specific damage ; that if the jury
found for the plaintiffs, they would be entitled to such damages
as the jury, upon the whole evidence, should be satisfied they
had sustained ; that the damage would not be confined to the
loss of such passengers as the plaintiffs could prove had actually
been diverted from their coaches to those of the defendants ; but
that the jury would be justified in making such inferences, as to
the loss of passengers and injury sustained by the plaintiffs, as
they might think were warranted by the whole evidence iu the
case.
Though the instructions, as given, may have been intended to
conform substantially to these views, yet, upon the whole, it
seems to the court that the principles of the law, upon which
the rights of the parties were to be determined, were not stated
with all that distinctness and accuracy which the practical impor-
tance of the case requires.
The principles of law which govern this decision are so fully
settled by numerous decisions, that it seems unnecessary to go
into any particular examination of authorities, but it is sufficient
merely to refer to some leading cases. Coats v. Holbrook,
2 Sandf. Ch. 586; Blofeld v. Payne, 4 B. & Ad. 410 ; Morison
v. Salmon, 2 Man. & Gr. 385 ; Knott v. Morgan, 2 Keen, 213 ;
Croft v. Day, 7 Beavan, 84 ; Rodgers v. Nowill, 5 Man., G.
& S. 109 ; Bell v. Locke, 8 Paige, 75 ; Stone v. Carlan, 13 Law
Reporter, 360. Kew trial ordered.
Sykes v. Sykes el al.
(3 Barn. & C. 541. King's Bench, England, Michaelmas Term, 1824.)
Trade-mark. Where a manufacturer had adopted a particular mark for his goods,
in order to denote that they were manufactured by him, held, that an action was
maintainable by him against another person who adopted the same mark for the
STKES V. SYKES. 67
purpose of denoting that his goods were manufactured by the plaintiff, and who
sold the goods so marked as and for goods manufactured by the plaintiff.
The declaration stated that defendant sold the goods as and for goods manufactured
by the plaintiff. It appeared that the persons who bought the goods of the defend-
ant knew by whom they were manufactured, but still that defendant used the
plaintiff's mark, and sold the goods so marked, in order that his customers might
resell them, as in fact they did, as and for goods manufactured by the plaintiff;
hdd, that this evidence supported the declaration.
Case. The declaration alleged that the plaintiff, before and
at the time of committing the grievances complained of, carried
on the business of a shot-belt and powder-flask manufacturer,
and made and sold for profit a large quantity of shot-belts, pow-
der-flasks. tSrc, which he was accustomed to mark with the
words " Sykes Patent," in order to denote that they were man-
ufactured by him, the plaintiff, aud to distinguish them from
articles of the same description manufactured by other persons ;
that plaintiff enjoyed great reputation with the public on account
of the good quality of the said articles, and made great gains by
the sale of them, and that defendants, knowing the premises, and
contriving. &rc, did wrongfully, knowingly, and fraudulently,
against the will and without the license and consent of the
plaintiff, make a great quantity of shot-belts and powder-flasks,
and cause them to be marked with the words " Sykes Patent,"
in imitation of the said mark so made by the plaintiff in that
behalf as aforesaid, and in order to denote that the said shot-belts
and powder-flasks, &c, were of the manufacture of the plaintiff,
and did knowingly, wrongfully, and deceitful^ sell, for then-
own lucre and gain, the said articles so made and marked as
aforesaid, as and for shot-belts and powder-flasks, &c, of the
manufacture of the plaintiff. Whereby plaintiff was prevented
from selling a great quantity of shot-belts, powder-flasks, &c,
and greatly injured in reputation ; the articles so manufactured
and sold by the defendants being greatly inferioT to those manu-
factured by the plaintiff. Plea, not guilty.
At the trial before Barley, J., at the last Yorkshire assizes, it
was proved that some years before the plaintiff's father obtained a
patent for the manufacture of the articles in question. In an
action afterwards brought for infringing the same, the patent was
held to be invalid on account of a defect in the specification ;
but the patentee, and afterwards the plaintiff, continued to mark
the articles with the words '• Sykes Patent," in order to distin-
68 DECEIT.
guish them as their manufactures. The defendants afterwards
commenced business, and manufactured articles of the same sort,
but of an inferior description, and sold them at a reduced price
to the retail dealers. They marked them with a stamp resem-
bling as nearly as possible that used by the plaintiff, in order
that the retail dealers might, and it was proved that they actually
did, sell them again, as and for goods manufactured by the plain-
tiff; but the persons who bought these articles from the defend-
ants, for the purpose of so reselling them, knew by whom they
were manufactured. It further appeared that the plaintiff's sales
had decreased since the defendants commenced this business.
It was contended for the defendants that the plaintiff could
not maintain this action, for that one of the defendants being
named Sykes, he had a right to mark his goods with that name,
and had also as much right to add the word " patent " as the
plaintiff, the patent granted to the latter having been declared
invalid. The learned judge overruled the objection, as the
defendant had no right so to mark his goods as and for goods
manufactured by the plaintiff, which is the allegation in the
declaration.
It was then urged that the declaration was not supported by
the evidence, for that it charged that the defendants sold the
goods as and for goods made by the plaintiff; whereas the imme-
diate purchasers knew them to be manufactured by the defend-
ants. The learned judge overruled this objection also, and left
it to the jury to say whether the defendants adopted the mark in
question for the purpose of inducing the public to suppose that
the articles were not manufactured by them but by the plaintiff;
and they found a verdict for the plaintiff. And now
Brougham moved for a rule nisi for a new trial, and renewed the
second objection taken at the trial, and contended that the facts
proved did not support the declaration. The allegation [to con-
form to the evidence] should have been, not that defendants sold
the goods as and for goods made by the plaintiff, but that they
sold them to third persons, in order that they might be resold as
and for goods manufactured by the plaintiff.
Abbott, C. J. I think that the substance of the declaration
was proved. It was established most clearly that the defendants
marked the goods manufactured by them with the words " Sykes
Patent," in order to denote that they were of the genuine manu-
TRADE-MARKS. 69
facture of the plaintiff; and although they did not themselves
sell them as goods of the plaintiff's manufacture, jet they sold
them to retail dealers for the express purpose of being resold as
goods of the plaintiffs manufacture. I think that is substantially
the same thing, and that we ought not to disturb the verdict.
Rule refused.
The only apparent difference be- ruled, not on the ground that such an
tween actions of the class represented allegation was unnecessary, but that
by die above cases, and those like Pas- the declaration was sufficiently specific.
ley c Freeman, is that where the plain- Tindal, C. J., said, that if the declara-
tifT claims a trade-mark, there is no tion had stopped with alleging that the
allegation that lie was deceived by the defendant had deceitfully and fraud-
defend.mt's misrepresentation. The ulently prepared and made the article
representation is not made to the plain- in question in imitation of that pre-
tifT, to induce him to act upon it, but pared and made by the plaintiffs, it
to third per>ons, to whom the allega- would have failed to disclose a cause of
tion of the deceitful intention must of action, the article not being patented,
course refer. But there was a further allegation that
Where a purchaser claims to have the article was prepared and vended
been defrauded by the use of false falselv, as material prepared and vended
marks by the seller, the action is pre- bv the plaintiff. And this he and the
cisely like that in I'asley t. Freeman; other judges held to be a sufficient
the plaintiff claims to have been him- statement of a false representation by
self deceived. the defend int.
The action is groun led in fraud, and In Singleton r. Bolton, 3 Doug. 293,
therefore fails without proof of the in- it appeared that the plaintiff's father
tention to deceive. The principal case, had sold a medicine called " Dr. .Tohn-
Marsh r. Bdlings ; Crawshiy r. Thomp- son's Yellow Ointment;" and the plain-
son, supra; Rodgcrs r. Xowill. o Com. tiff, after his father's death, continued
B. 1U9; Morison r. Salmon, 2 Man. & to sell the medicine marked in the same
G. 3S.">. It is not enough, therefore, way. The defendant also sold the med-
that the article or mark is an imitation icine (which was not patented) with
of that u<ed by the plaintiff, or even the same mark; and for that the action
that it is the same thing; the goods was brought. The defendant had judg-
must have been sold as of his manu- ment. Lord Mansfield said, that if the
facture. lb.; Singleton v. Bolton, 3 defendant had sold a medicine of his
Doug. -2'J'o. own under the plaintiff's name or mark,
In Morison r. Salmon, supra, there that would be a fraud for which an
was a motion in arrest of judgment for action would lie. But here both the
the plaintiff on the ground that there plaintiff and the defendant had been
was no direct allegation that the de- using the name of the original inventor;
fendant represented the article sold by and there was no evidence that the
him to have been manufactured by the defendant had sold it as of the plain-
plaintiffs ; but the motion was over- tiff's preparation.
70
DECEIT.
On the other hand, if the plaintiff
allege fraud and deception by the de-
fendant, it is no defence that the sim-
ulated article is of equal quality with
that manufactured by the plaintiff. Tay-
lor v. Carpenter, 2 Sand. Ch. 603;
Partridge v. Menck, ib. 622 ; Coats v.
Holbrook, ib. 586. In Taylor v. Car-
penter and in Coats v. Holbrook the
protection of a court of equity was
given to aliens. "So far as the sub-
ject-matter of the suit was concerned,"
said the Chancellor, " there is no dif-
ference between citizens and aliens."
Upon the question of infringement. Mr.
Senator Spencer, formerly Chief Jus-
tice, said: "The right claimed by the
complainant does not partake in any
considerable, if in any, degree of the
nature and character of a patent or
copyright, as urged by the counsel for
the defendant. He is at full liberty to
manufacture and vend the same kind of
thread to any extent he pleases, and
whenever he chooses. He is only re-
quired to depend for his success upon
his own character and fame."
In short, the question in these cases
is not whether the plaintiff was the orig-
inal inventor or proprieter of the arti-
cle made by him, and upon which he
now puts his trademark, or whether the
article made and sold by the defendant
under the former's trade-mark is an
article of the same quality or value.
The courts proceed upon the ground
that the plaintiff has a valuable interest
in the good-will of his trade or busi-
ness ; and that, having appropriated to
himself a particular label, or sign, or
trade-mark, indicating to those who
wish to give him their patronage that
the article is manufactured or sold by
him, or that he carries on business at a
particular place, he is entitled to pro-
tection against any attempts to pirate
upon his trade. Partridge v. Menck,
2 Sandf. Ch. 622, 625, Walworth, Ch.;
Newman v. Alvord, 51 N. Y. 189;
Amoskeag Manuf. Co. v. Spear, 2
Sandf. 599.
In Newman v. Alvord, supra, the
plaintiff had taken the name of the
locality of his business, " Akron,"
as the chief part of his trade-mark;
and it was contended by the defend-
ants, who had adopted the same name,
that, since the name was of a locality,
the plaintiffs could have no exclusive
right to it, so as to enable them to
obtain an injunction for its infringe-
ment. But the court held that it was
not necessary for the plaintiffs to have
an absolutely exclusive right ; the de-
fendants had by deception sold his
goods as those of the plaintiff, and that
was sufficient to entitle the plaintiff to
relief. (That one can acquire a trade-
mark in the name of a locality, the.
following cases were cited : Congress
& E. Spring Co. v. High Rock Con-
gress Spring Co., 45 N. Y\ 291 ; Seixo
v. Provezende, Law R. 1 Ch. 192; Lee
v. Haley, Law R. 5 Ch. 155; Wother-
spoon v. Currie, Law R. 5 H. L. 508.
Brooklyn White Lead Co. v. Masury,
25 Barb. 417; and Delaware & H.
Canal Co. v. Clark, 13 Wall. 311,
were distinguished. See also Candee
v. Deere, 54 111. 439.)
To obtain an injunction in chancery
against the use of a trade-mark closely
resembling the plaintiff's, it seems not
to be necessary to allege that the de-
fendant appropriated the plaintiff's
mark knowingly,, and with the intention
to have his goods pass for the plain-
tiff's. Millington v. Fox, 3 Mylne
& C. 338; Carder v. Carlile, 31 Beav.
292; Bdelsten v. Edelsten, 1 De Gex,
J. & S. 185 ; Dale v. Smithson, 12
Abb. Pr. 237; Coffeen v. Brunton, 4
TRADE-MARKS.
71
McLean. 516. But see Perry v. True-
fitt. 6 Beav. 66 ; Drewrv, Injunctions,
part 2. e. 4, p. 53, contra. See also
Dixon r. Fawcus. 8 El. & E. 537, 546;
Farina r. Silverlock, 6 De Gex, M. &
G. 214. 222. But the court will not
decree an account of profits and dam-
ages before knowledge of the plaintiffs
rights. Edelsten r. Edelsten, 1 De
Gex. J. it S. 1*5. See Millington
r. Fox, supra : Burgess c. Hills, 26
Beav. 244.
Where the mark employed by the
defendant is not the same as that used
by the plaintiff, an allegation is neces-
sary to the effect that the defendant's
mark bears so close a resemblance to the
plaintiff's as to be calculated to de-
ceive. Crawshay r. Thompson, supra;
Gillott r. E>terbrook. 4S X. Y. 374 ;
Partridge v. Menck. 2 Sandf. Ch. 622.
This in fact would seem to be the
proper allegation in all cases where the
defendant has not used the plaintiff's
own stamp or device ; for except in
that case the mark used by the defend-
ant can only resemble that of the plain-
tiff.
In order to entitle the plaintiff to
substantial damages, there must also be
proof of actual deception ; for without
this the plaintiff is not injured. But a
general allegation of injury is suffi-
cient to entitle the plaintiff to a recov-
ery. Rodgers r. Xowill, supra : Marsh
!'. Billings. See Coats r. Holbrook, 2
Sa: If. Ch. 5>0. 597, where the court
held it no defence that the defendants
mav have told the jobbers to whom they
sold that the good* were imitation; for
it was not to be presumed that the job-
bers and retailers would be so honest.
Where the defendant obtains and
uses the plaintiff's stamp for making
the mark, or where he uses the plaintiff's
label, without his consent, an action
will lie without proof of damage.
Blofeld e. Payne, 4 Barn. & Ad. 410.
As to notice, it appeared in Craw-
shay v. Thompson that the plaintiff had
complained to the defendants of their use
of the stamp in question, designating it
as " a palpable fraud." The defendants
replied that they had used the mark for
many years, and that they had a right
to do so. The statement that they had
used the mark for many years was not
true ; but it was shown that the mark
had been adopted by them in the exe-
cution of orders from foreign countries.
The plaintiff now contended that the fail-
ure to respect the notice given the de-
fendants concerning the use of the mark
adopted by them gave him a right of
action. But the court held otherwise,
in the absence of proof of an intention
to deceive. " It appears to me."' said
Coltman, J., "that an intention to de-
ceive is a necessary ingredient in this
case. The intention is for the jury ;
and fraud must be made out by proof of
an intention existing in the mind of the
party, that the iron should pass as the
iron of the plaintiff. If there was such
a similarity as might impose on ordi-
nary persons, and it was shown that
the defendants were aware of the re-
semblance, and that it was calculated
to mislead, the plaintiff would have
been entitled to the verdict, for the
intention to deceive would have been
manifest." Referring directly to the
matter of notice, he said that the notice
was equivocal. If it meant that the
defendants must have known that in-
jury would necessarily result to the
plaintiff from the continued use of the
mark, it would give sonic color to
the plaintiff's position. But he thought
that was not the case, and that it was
onlv a circumstance which with the
whole case was properly left to the
72
DECEIT.
jury. By this the learned judge seems
to have meant that the notice given,
and the reply and action of the defend-
ants, were circumstances bearing on
the allegation of intent to injure the
plaintiff; and that they were not neces-
sarily proof of such intent. Maule, J.,
said: " If a party is merely told that
by continuing to do a certain thing he
may deceive others, and he continues
to do the thing without any intention
to produce that effect, I do not think
that an action will lie again'st him ; at
any rate, certainly not in this form of
declaration." Creswell, J. " What is
the notice here ? It is to the effect
that the defendants were using a mark
similar to that used by the plaintiff.
But such a notice is not equivalent to
knowledge, as the defendants might
dispute the resemblance ; or they might
admit the resemblance, and yet insist
that they had no intention of passing
off their goods as the plaintiff's."
It may be remarked upon the doc-
trine of Sykes v. Sykes, first, that a
declaration alleging that goods were
sold by the dc fendant for the purpose
of being resold as and for the plaintiff's
goods (a mark being used, intended
and calculated to deceive) would be
good. The court in Sykes v. Sykes
said that proof of this kind was no
variation from the allegation of the
declaration that the defendant had sold
the goods as and for the plaintiff's.
And it may be added that though the
defendant in such case do not himself
sell the goods as and for the plaintiff's,
he still closely imitates the plaintiff's
trade-mark for the purpose of deceiv-
ing the public and obtaining the plain-
tiff's trade. And these, we have seen,
are the elements of this action. If
the defendant, to screen himself, pro-
cures or aids others to dispose of his
goods as the goods of the plaintiff, that
will bring him within the rule in Craw-
shay v. Thompson, since it shows an
intention to injure the plaintiff.
■ Secondly, it would seem to follow
that it is not necessary to prove that
the defendant has sold the goods, if
he has put them into the hands of
others who have sold them. And this
is confirmed by cases like Pauley v.
Freeman. It is not necessary in those
eases, as we have seen, that the de-
fendant should have obtained an advan-
tage in order to make him liable for
a false representation.
It should be remarked that the act
of Congress concerning trade-marks,
whatever protection it gives which was
not afforded before, takes away no
rights of parties at the common law.
See Brown, Trade-marks, pp. 232, 233.
It is proper to add, before conclud-
ing the subject of deceit, that cases of
slander of title and fraudulent trade-
marks are only examples of actions
where the representation was made to
third persons. There are doubtless
many other cases of the kind where an
action of deceit can be brought by the
party of whom the false' statement was
made. See, for example, Benton v.
Pratt, 2 Wend. 385.
PEAKE V. OLDHAM. 73
SLANDER AND LIE EL.
Pfake r. Oldham, leading case
Brooker f. Coffin, leading case.
Ward r. Clark, leading case.
Carslake r. Maflkdoram, leading case.
LriiBT !•. Allday, leading case.
Tuorley <\ Kerry, leading case.
Note on Actionable Words.
Historical aspects of the subject.
Doctrine of mitiori sensu.
Imputation of indictable offence.
Imputation of contagious or infectious disorder.
Imputation affecting plaintiff in his office or avocation.
Imputations tending to the disherison of the plaintiff.
Libel.
Truth of charge.
Non-actionable words.
Chalmef.s r. Payne, leading case.
Note on Malice in Law.
Hastings t. LrSK, leading case.
Bhomage i. Prosskr, leading case.
.Toogood r. Spyring, leading case.
De CRhSPiovr r. YVellesi.ky, leading ease.
Note on Malice in Fact. Privileged Communications.
Absolute privilege.
Proceedings before church organizations.
Reports of judicial trials and other public proceedings.
Mister giving character to servant.
Communications made to public authorities.
Communications between persons holding confidential relations.
Publications in vindication of character.
The principle of the cases stated-
Northampton's Case.
Peake v. Oldham, in Error.
(1 Cowp. 275. King's Bench, England, Easter Term, 17To.)
Interpretation of Words. "I am thoroughly convinced that you are guilty (innuendo
of the death of D. D.) ; and, rather than you should go without a hangman, I will
hang you;'" htld, actionable.
" Tou are gtiilry " (innuendo of the murder of D. D.) ; heal, after verdict, a sufficient,
charge of murder, though the colloquium were only of the dvalh.
74 SLANDER AND LIBEL.
Error from the Common Pleas in an action of slander, in which
the plaintiff, now the defendant in error, declared that upon a
colloquium of and concerning the death of one Daniel Dolly, the
said Thomas Peake said to the said James Oldham: 1. " You are
a bad man, and I am thoroughly convinced that you are guilty
(meaning guilty of the murder of the said Dolly) ; and, rather
than you should want a hangman, I would be your executioner."
And being apprized that the said words were actionable, and
being interrogated how he would prove what he said, answered
that " he would prove it by Mrs. Harvey." 2. " You are a bad
man, and I am thoroughly convinced that you are guilty (innu-
endo ut antea) ; and, rather than you should want a hangman, I
would be your executioner." Being interrogated how he could
prove the said James Oldham guilty of the murder of the said
Daniel Dolly, he replied, " I can prove it by Mrs. Harvey."
3. " You are guilty (innuendo ut antea), and I will prove it."
4. " I am thoroughly convinced that you are guilty (meaning
guilty of the death of Daniel Dolly) ; and, rather than you should
go without a hangman, I will hang you." 5. " You are guilty "
(innuendo guilty of the murder of the said Dolly). By reason
whereof, and to clear his character, the said James Oldham was
obliged to procure, and did procure, an inquest in due form of
law to be taken on the body of the said Daniel Dolly.
Upon not guilty pleaded, the jury found a general verdict upon
all the counts, with 500L damages.
The defendant first moved for a new trial in C. B., which was
refused ;^ an/1 afterwards in arrest of judgment, which rule was
likewise discharged by Gould and Blackstone, JJ. (absentib.
De Grey, C. J., and Nares, J.).
Mr. Davenport, for the plaintiff in error.
Mr. Butter, for the defendant, was stopped by Lord Mansfield,
as being unnecessary to give himself any trouble.
Lord Mansfield. It is much to be lamented that in any sort
of action the mere inattention or slip of counsel, who are not
always sufficiently attentive upon what count the verdict is
taken, should be fatal to the party; contrary to the truth and
justice of the case, the opinion of the judge upon the merits who
tried the cause, and the meaning of the jury who pronounced
the verdict. However, in civil cases the rule most certainly is
settled, that where a verdict is taken generally, and any one
PEAKE V. OLDHAM. 10
count is bad, it vitiates the whole. It has always struck me that
the rule would have been much more proper to have said, that
if there is any one count to support the verdict, it shall stand
good, notwithstanding all the rest are bad. In criminal cases
the rule is so : and one cannot, therefore, but lament that the
reverse is adopted in civil eases : because it is as it were catching
justice in a net of form. However, this consideration will make
the court lean against setting aside a verdict upon such an objec-
tion without very good reason, that is, without some apparent
manifest defect ; more especially in a case like the present, where
the words have appeared to the jury to be so scandalous as to
induce them to give a verdict with 500?. damages, and where
that verdict has received the sanction of the court in which the
action was brought, by their refusing to grant a new trial upon
an application to them for that purpose.
Let us consider, then, the grounds upon which the declaration
in the present ease is attempted to be impeached. Two of the
counts are objected to, viz., the fourth and last. In the fourth it
is said thus : '• I am thoroughly convinced that you are guilty
("innuendo that you are guilty of the death of the said Daniel
Dolly) : and, rather than you should go without a hangman, I
will hang you."' Upon this count it is aigued that there are
many innocent ways by which one man may occasion the death
of another ; therefore the words, '• guilty of the death," do not
in themselves necessarily import a charge of murder ; and conse-
quents, as no particular act is charged which in itself amounts to
an imputation of a crime, the words are defectively laid. What!
when the defendant tells the plaintiff " he is guilty of the death
of a person." is not that a charge and imputation of a very foul
and heinous kind? Saying that such a one is the cause of
another\s death, as in the case in 2 Bulstr. 10, 11, is very differ-
ent ; because a physician may be the cause of a man's death, and
very innocently so : but the word " guilty " implies a malicious
intent, and can be applied only to something which is universally
allowed to be a crime. But the defendant does not rest here ;
on the contrary, in order to explain his meaning, he goes on and
says, ••and. rather than vou should be without a hangman, I will
hano- you." These words plainly show what species of death the
defendant meant, and therefore in themselves manifestly import a
charare of murder.
76 SLANDER AND LIBEL.
The innuendo to the words of the next count is, that they
mean " guilty of the murder of Daniel Dolly ; " and the jury by
their verdict have found the fact, namely, that such was the
meaning of the defendant. But that is not all; for the jury find
a special damage sustained by the plaintiff in being obliged, in
consequence of the charge so made by the defendant, to have an
inquest taken on the body of the deceased.
What! after a verdict, shall the court be guessing and invent-
ing a mode, in which it might be barely possible for these words
to have been spoken by the defendant, without meaning to
charge the plaintiff with being guilty of murder ? Certainly not.
Where it is clear that words are defectively laid, a verdict will
not cure them. But where, from their general import, they
appear to have been spoken with a view to defame a party, the
court ought not to be industrious in putting a construction upon
them different from what they bear in the common acceptation
and meaning of them.
I am furnished with a case founded in strong sense and reason
in support of this opinion ; the name of it is Ward v. Reynolds,
Pas. 12, Ann. B. R., and it is as follows: The defendant said to
the plaintiff, "I know you very well; how did your husband
die ? " The plaintiff answered, " As you may, if it please God."
The defendant replied, " No ; he died of a wound you gave
him." On not guilty, there was a verdict for the plaintiff; and
on a motion in arrest of judgment the court held the words
actionable ; because, from the whole frame of them, they were
spoken by way of imputation. And Lord Chief Justice Parker
said : " It is very odd that after a verdict a court of justice should
be trying whether there may not be a possible case in which
words spoken, by way of scandal, might not be innocently said.
Whereas, if that were in truth the case, the defendant might
have justified, or the verdict would have been otherwise." So
here, if shown to be innocently spoken, the jury might have
found a verdict for the defendant ; but they have put a contrary
construction upon the words as laid, and upon the last count
have found that the defendant meant a charge of murder.
Therefore I am of opinion that the judgment of C. B. must be
affirmed.
Aston, Willes, and Ashhuest, JJ., of the same opinion. *
Judgment affirmed.
BR00KER V. COFFIN. 77
Brooker V. Coffix.
(5 Johns. 1S8. Supreme Court, New York, November, 1S09.)
Lewdness. Crime. Criterion of Action. To say of a person " slie is a common prosti-
tute, and I will prove it ; " or, that '• she was hired to swear a child on me ; she
had a child before this when she went to Canada ; she would come damned nigh
going: to the State prison," — is not actiouable, without alleging special damage.
The rule seems to be, that where the charge, if true, will subject the party charged
to an indictment for a crime, involving moral turpitude, or subject him to an infa-
mous punishment, then the words are in themselves actionable.
This was an action for slander. The declaration contained
two counts. The first charged that on the 1st of February,
1S0;>, at Sehagticoke, in the county of Rensselaer, &c, for that
whereas the plaintiff being a person of good name, &c, the
defendant false y and maliciously did speak and utter of and
concerning the plaintiff the following false, scandalous, and
defamatory words : '-She (meaning the plaintiff) is a common
prostitute, and I can prove it." The second count charged that
the defendant afterwards, to wit, on the day and year aforesaid,
at the place aforesaid, in a certain other discourse, etc., did falsely
and maliciously speak and utter the following false, scandalous,
and defamatory words, to wit. •■ She (meaning the plaintiff)
was hired to swear the child on me (meaning the plaintiff
was hired falsely and maliciously to swear a certain child on the
defendant). She (meaning the plaintiff) has had a child before
this (meaning before this child, or the child which the said
defendant had before said the said Nancy had been hired to
swear on him), when she went to Canada (meaning a certain
time when the plaintiff had been at Canada). She (meaning the
plaintiff ) would come damned nigh going to the State prison"
(meaning that the said plaintiff was guilty of such enormous
and wicked crimes as would, if punished according to the laws
and statutes in such cases made and provided, condemn her
to infamous punishment in the State prison). Whereas, in
truth, &c.
There was a general demurrer to the first count, and a special
demurrer to the second count and joinder.
Wendell, in support of the demurrer. In England there are
78 SLANDER AND LIBEL.
various statutes for the punishment of disorderly persons. 4 Com.
Just. B. 76, 83. But the decisions in support of the action have
been where the party shows a special damage, as for calling a
woman a whore, whereby she lost her marriage. Com. Dig. 262,
Action for Defamation, D. 30. Notwithstanding the statutes
against disorderly persons, it has never been held that those
words were actionable, without alleging a special damage. It is
true that, by the act for apprehending and punishing disorderly
persons, a common prostitute is declared to be a disorderly per-
son, and therefore liable to punishment ; but, by the same act,
vagrants, beggars, jugglers, pretenders to physiognomy, palmis-
try, or such crafty sciences, fortune-tellers, discoverers of lost
goods, persons running away from their wives and children,
vagabonds and wanderers, and all idle persons not having vis-
ible means of livelihood, are also declared to be disorderly per-
sons, and are equally liable to be apprehended and punished
under the act. If, then, to call a woman a common prostitute is
actionable, without alleging special damage, on the ground of a
liability to punishment under this act, then to call a person a
juggler, fortune-teller, or physiognomist, would also be action-
able, which will hardly be pretended.
The words, " that the plaintiff was hired to swear a child," are
not actionable (1 Com. 270, F. 12, D. 6), and they are not
helped out by the innuendo. The words are ambiguous, and it
is not said whose child was referred to, so that the defendant
could not come prepared to prove the truth of the words. The
words, that "she would come damned nigh going to the State
prison," are too. vague and general to be the ground of an action.
2 Johns. 12.
Again, in the second count the plaintiff does not aver that she
was of good fame, &c, and free from the crime charged against
her. 1 Com. Dig. 276, G. I.
Sedgwick, contra. 1. The numerous cases to be found in the
books relative to the action of slander, and as to what words are
actionable and what are not, are so contradictory and absurd as
to afford no satisfactory rule on the subject. 1 Com. Dig. Ac-
tion on the Case for Defamation, D. 3, D. 9, F. 20 ; 3 Black.
Com. 124 ; 4 Bac. Abr. 487. Resort must, therefore, be had
to the principle on which the action of slander is founded.
Where the words spoken impute to a person an act of moral
PROOKER I'. COFFIN. 79
turpitude or crime which may subject him to punishment, they
are actionable. Here the words, besides imputing great moral
turpitude, and tending to render tl*e person odious in the opinion
of mankind, may, if tine, also subject the party to an infamous
and disgraceful punishment. Common prostitutes, by the act
■which has been cited, are declared disorderly persons, and may
be sent to bridewell or the house of correction, and be kept to
hard labor for sixty days, or even for six months : and, moreover,
may be whipped at the discretion of the general sessions of the
peace. The first set of words charged in the declaration is.
according to the general principle I have stated on this subject.
actionable.
2. As to the second set of words. I admit that the sense of
them cannot be enlarged by innuendo. The true rule is. that
the words are to be taken in the sense in which they are under-
stood by the generality of mankind. This rule is well laid down
and illustrated by Lord Ellenborough. in the case of Woolnoth
r. Meadows. 5 East. 463 : Cowp. 27.5. "27S : 2 Ld. Raym. 959 :
1 Vent. 117. If the words, then, fairly import the charge of a
crime, and would be so understood by mankind, the injury is
inflicted on the character of the plaintiff, as completely and
deeplv as if the crime had been imputed in the most direct and
positive terms : and the plaintiff is entitled to a remedy. Can
there be any doubt in the mind of any man that the defendant
meant to say that the plaintiff had been guilty of perjury ?
WendrJI. in reply, observed that if to say of a person what, if
true, mi^ht subject him to an indictment, would render the
words actionable, without alleging special damages, then to say
of a person * that he had committed an assaidt and battery on
another, would be actionable.
Spencer. J., delivered the opinion of the court. The first
count is for these words. •• she is a common prostitute, and I can
prove it : '"' and the question arises, whether speaking these
words gives an action without alleging special damages. By the
statute (1 R. L. 1-4), common prostitutes are adjudged disorderly
persons, and are liable to commitment by any justice of the
peace, upon conviction, to the bridewell or house of correction.
to be kept at hard labor for a period not exceeding sixty days, or
until the next general sessions of the peace. It has been sup-
posed that, therefore, to charge a woman with being a common
80 SLANDER AND LIBEL.
prostitute, was charging her with such an offence as would give
an action for the slander. The same statute which authorizes
the infliction of imprisonment on common prostitutes, as disor-
derly persons, inflicts the same punishment for a great variety of
acts, the commission of which renders persons liable to be con-
sidered disorderly; and to sustain this action would be going the
whole length of saying, that every one charged with any of the
acts prohibited by that statute would be entitled to maintain an
action for defamation. Among others, to charge a person with
pretending to tell fortunes, would, if this action is sustained, be
actionable. Upon the fullest consideration we are inclined to
adopt this as the safest rule, and one which, as we think, is war-
ranted by the cases. In case the charge, if true, will subject the
part}7 charged to an indictment for a crime involving moral tur-
pitude, or subject him to an infamous punishment, then the words
will be in themselves actionable ; and Baron Comyns considers
the test to be whether the crime is indictable or not. 1 Com.
tit. Action on the Case for Defamation, F. 20. There is not,
perhaps, so much uncertainty in the law upon any subject, as
when words shall be in themselves actionable. From the con-
tradiction of cases,' and the uncertainty prevailing on this head,
the court think they may, without overleaping the bounds of
their duty, lay down a rule which will conduce to certainty, and
they therefore adopt the rule I have mentioned as the criterion.
In our opinion, therefore, the first count in the declaration is
defective.
The second count is for saying of the plaintiff, " she was hired
to swear the child on me ; she has had a child before this when
she went.to Canada; she would come damned near going to the
State prison." These words are laid as spoken at one time ; if,
then, any of them are actionable, it is sufficient. The innuen-
does enlarge their meaning, and are not justified. One of them
avers that the defendant meant that the plaintiff was hired,
falsely and maliciously, to swear the child on the defendant ; and
another innuendo, in explaining the words, "she would come
damned near going to State prison," alleges that the defendant
meant that the plaintiff was guilty of such enormous crimes as
would, if punished according to the laws, &c, condemn her to
infamous punishment in the State prison. Now I do not perceive
that the charge at all warrants the inference that the plaintiff
WARD V. CLARK. 81
had been guilty of perjury ; and the cases of Hopkins v. Beedle,
1 Caines, 347 ; Stafford v. Green, 1 Johns. Rep. 505 ; and Ward
v. Clark, 2 Johns. Rep. 11, infra, are authorities against sustain-
ing this ease.
The defendant must, therefore, have judgment.
""o
Ward v. Clark.
("2 Johns. 10. Supreme Court, New York, November, 1806.)
Imputation of Crime. To say of a person, " he has sworn falsely," or " he has taken a
false oath against me in Squire Jamison's court," or " he has falsely and maliciously
charged and imposed on me the crime of perjury," is not actionable.
This cause came before the court on a return to a writ of error,
directed to the Court of Common Pleas of the county of Ontario.
The defendant in error brought his action of slander, against the
plaintiff in error, in the court below. The declaration contained
two counts. In the first, the words charged to have been spoken
are, " he has sworn falsely ; he has taken a false oath against me
in Squire Jamison's court." The second count was for "falsely
and maliciously charging and imposing, on the plaintiff below,
the crime of perjury." There was a plea of not guilty; and a
general verdict for ten dollars damages.
JIumford, for the plaintiff in error. The words laid in the
first count are merely that the plaintiff swore falsely, and do not
amount to the crime of perjury. There is no averment that
Squire Jamison was a justice of the peace, or that he was com-
petent to administer an oath. These words, therefore, are not
actionable. 1 Caines, 347, Hopkins v. Beedle; 3 Levinz, 166,
Gurneth v. Derry ; 6 Term, 691, Holt v. Scholefield ; 3 Wilson,
186, Onslow v. Home ; Bac. Abr. tit. Slander, B. 3. 2. The sec-
ond count states the charge of perjury generally. It ought to
have specified the words spoken, for it is impossible that the
defendant can come prepared to defend so general and uncertain
a chaige. Still, if this count be good, and the first bad, there
being a general verdict, the judgment must be reversed. 1 Caines,
347 ; Douglas, 730 ; 1 Term, 153 ; 2 Term, 125.
82 SLANDER AND LIBEL.
Sedgwick, contra. No doubt, if none of the words contained in
the first count be actionable, the judgment must be reversed ; but
if any set of them are actionable, it is sufficient to support the
verdict. Where some of the words are actionable, and others not
so, the court will not arrest the judgment. Willes, 443, Lloyd v.
Morris. To say of a person, he is forsworn on record, or he is
forsworn before a justice of the peace, is actionable. 1 Comyns's
Digest, Action for Defamation, D. 5, 6, 7 ; 6 Bac. Abr. 207, Slan-
der, B. 3. Now the words in the first count appear equally
definite, and import the crime of perjury.
The second count states a general charge of perjury. This is
sufficiently precise for the purpose of pleading. Where the words
were quia crimen felonice imposuit, they were held sufficient to
support an action. 1 Ventris, 264.
Tompkins, J., delivered the opinion of the court.
The plaintiff in error relies on the insufficiency of the declara-
tion in the court below, for the reversal of the judgment rendered
there.
No colloquium, or averment of special damages, is contained in
the declaration. The words in the first count, then, are not action-
able, unless they must necessarily be understood as conveying a
charge of perjury. This is not to be collected from them, because
it does not appear that Jamison had any authority to hold a court
known in law, or to act judicially, or to administer an oath ; and,
therefore, a charge of having taken a false oath before him does
not necessarily impute any crime for which a person may be in-
dicted and punished. Even if the court referred to by the words
were known and recognized by this court, there is no colloquium
of any cause there depending, without which the declaration is
insufficient ; for the words may have been spoken in common dis-
course. Hartwel v. Cole, Freem. 55 ; Yelverton, 27, Core v.
Morton.
These words, " thou art forsworn in 'Collet Court," without
showing any action pending there, and without further description
of the court, were held not to be actionable. Skinner v. Trobe,
Cro. Ja. 190. In Page v. Keble, Cro. Ja. 436, a similar judgment
was given, upon a declaration upon these words, " thou art per-
jured, for thou art forsworn in the Bishop of Gloucester's court."
The doctrine recognized in this court, in the cause of Hopkins v.
Beedle, 1 Caines, 347, goes the length of determining the ques-
WARD V. CLARK. 83
tion upon the count now under consideration. It was there ad-
judged that, to convey the charge of perjury, the words must be
certain and unequivocal, and state the court, or a competent officer,
who administered the oath : and in a more recent ease, Green v.
Stafford, a count for words similar to those in the first count in
this declaration was held to be defective. The rule in relation
to these and similar words is. that where one person calls another
a perjured man, it shall be intended that the same was in a court
of justice, and to have a necessary reference to it : but for a charge
of false swearing no action lies, unless the declaration shows that
the speaking of the words had a reference to a judicial court or
proceeding. 2 Bulstr. 150, Croford v. Blisse ; Yelverton, 27, Core
v. Morton.
The second count appears to me to be equally defective. It is
not alleged what particular words were spoken ; nor does the
plaintiff pretend to set forth the substance of the expressions of
which he complains. Xo precedent, ancient or modern, warrants
this form of pleading. The plaintiff contents himself with draw-
ing his own inference from the declaration made, and alleged such
inference, without apprising the defendant of the words, or sub-
stance of the words, spoken. The rule of evidence in actions of
slander formerly was. that the plaintiff must prove the precise
words : and that rule has been no further relaxed than to admit
proof of the substance of the words laid. With respect to declar-
ing, it has been repeatedly resolved that it is not sufficient to set
forth the tenor, effect, or import of the words used. Xewton v.
Stubbs. 3 Mod. 72, and 2 Show. 436 ; Hale v. Cranfield, Cro.
Eliz. 645 ; ib. S57. Xo precedent for this count was cited upon
the argument, and my researches have furnished me with none.
In Moigan's Precedents. 268. is to be found the only form which
bears a resemblance to this count. It was for charging and im-
posing upon the plaintiff the crime of arson, before a magistrate,
to wit. of maliciously and feloniously setting fire to a certain
house, particularly described thereia. In 2 Richardson's Prac-
tice. K. B. IMS. is the form of a declaration, charging the sub-
stance and import of the particular words used. Without
questioning the correctness of these precedents, it is evident
that the same objections do not lie to them as are presented by
this count. The generality and uncertainty of the charge is a
decisive objection to it. By this mode of declaring, the defendant
84 SLANDER AND LIBEL.
is deprived of an opportunity of pleading matter which he might
properly set up (if he was apprised, by the declaration, of the
specific words), as that they were spoken with reference to a dif-
ferent subject, or in a different sense, than that in which the plain-
tiff thinks proper to apply them. Cromwell's Case, 4 Rep. 13.
This he cannot do if the mode of declaring adopted by the plain-
tiff, in the second count, is allowed. Besides, the defendant may
thereby be deprived of the advantages which might result to him
from a motion in arrest of judgment, or upon a writ of error.
Upon the whole, we are of opinion that the second count violates
the rule of correct pleading, and leads to unnecessary surprise and
vexation. The judgment below, must, therefore, be reversed for
the insufficiency of both counts in the declaration.
Judgment reversed.
Carslake v. Mapledoram.
(2 T. E. 473. King's Bench, England, Easter Term, 1788.)
Contagious Disease. These words spoken of a woman, " I have kept her common
these Beven years ; she hath given me the bad disorder, and three or four other
gentlemen,'' are not actionable, because they may refer to a time past. And no
prohibition will be granted to a spiritual court in which a sentence has been pro-
nounced on a libel for this charge. Charging a person with having had a contagious
disorder is not actionable, because it is no reason why the company of a person
so charged should be avoided.
The defendant libelled the plaintiff in the archdeacon's court of
Exeter, for speaking the following words of her : " I have kept
her common these seven years ; she hath given me the bad dis-
order, and three or four other gentlemen besides ; " thereby
meaning that the said Mapledoram was a whore. A prohibition
was moved for in the last term after sentence, on the ground
that the words spoken were actionable.
Gibbs now showed cause against the prohibition. Tins appli-
cation is made after sentence; and, therefore, unless it appear on
the face of the proceedings that the court below had no jurisdic-
tion over the subject-matter, a prohibition ought not to be granted.
Now, these words are not actionable in themselves, even if the
charge related to the present time ; and a declaration, without
CARSLAKE V. MAPLEDORAM. 85
innuendoes to explain the meaning of them, would be bad. For
there are many disorders which may be termed bad disorders, but
the having of which would not render the person an unfit member
of society, or be any imputation on him ; a bad disorder does not
necessarily mean a contagious one. But even supposing that it
did, still these words only refer to a time past, and therefore are
not actionable. There are two grounds on which words are
actionable, as producing a temporal damage : first, charging a
person with having committed a crime, for which he may be after-
wards punished : and, secondly, charging a person with having at
the time contagious disorder. Charging a man with the first of
these at a time past is actionable, because he is liable to punish-
ment at any distance of time ; but the latter charge does not sub-
ject the person making it to an action, unless it be confined to
the present time ; since the having had a contagious disorder is
no reason why his society should be avoided in future.
Frcuikliti, in support of the rule. The words are actionable
without any innuendo : they sufficiently import a contagious dis-
order, since the plaintiff below is charged with having commu-
nicated it to the defendant himself, and to three or four other
persons. In answer to the second ground of objection, it cannot
be collected that this charge relates to a time past : it is not that
the plaiutiff below had had this disorder, but the words charged
her with having it at the time. But even if the charge did re-
late to a time past, still these words are actionable. In Austin
v. White. Cro. Eliz. 214, these words, " thou wert laid of the
French ' pox,' " were adjudged actionable. In Miller's Case,
Cro. Jac. 430, Back>ter's Case is mentioned, where the words,
"thou wast laid of the kpox,'" were held actionable. So in
Hob. 219. " that he had caught it, and had carried it home to
his wife." In these cases the words clearly refer to a time past.
So that it appears upon the libel itself that the court below had
no jurisdiction.
Ashhcrst. J. No sufficient ground has been laid before the
court to induce us to interpose 'in this case, and grant a prohibi-
tion. This is an application after sentence has been pronounced
in the court below. And it seems, on the whole, that the court
below had a jurisdiction over the subject-matter. If the plaintiff
had called the defendant a whore, such a charge would have
given the court below a jurisdiction ; and these words, " he hath
86 SLANDER AND LIBEL.
kept her common these seven years," are tantamount to it. Then,
notwithstanding the latter words, if the archdeacon's court had a
jurisdiction as to part of the charge, these latter words would not
make any difference. As to those, the distinction has been prop-
erly taken. Charging a person with having committed a crime is
actionable, because the person charged may still be punished : it
affects him in' his liberty. But charging another with having had
a contagious disorder is not actionable ; for unless the words
spoken impute a continuance of the disorder at the time of speak-
ing them, the gist of the action fails; for such a charge cannot
produce the effect which makes it the subject of an action,
namely, his being avoided by society. Therefore, unless some
special damage be alleged in consequence of that kind of charge,
the words are not actionable. That seems to be the case in all
the instances (vide also Taylor v. Hall, 2 Str. 1189) mentioned
except one, where the words were, " thou wert laid of the ' pox ' ; "
but that seems unintelligible from the report of the case, which is
very loosely reported, and, therefore, it is not much to be relied
on. But, on principle, these words are clearly not actionable, if
spoken with a reference to time past. And in this case I think
they do relate to past time.
Buller, J. After sentence, it is incumbent on the party mak-
ing this application to show clearly that the spiritual court had
no jurisdiction. If, therefore, it be doubtful, it is an answer to
the application. Now in this case it is taking the words against
their natural import to suppose that they were spoken of the
present time. If they relate to time past, I do not think they are
actionable. There is no distinction between a charge of this sort
and a charge of the leprosy, which is to be found in the old books.
In those cases it is said that a charge of having had such a dis-
order is no imputation on another, since it does not subject him
to any of the inconveniences attending the having such a disease ;
so of all other diseases which are contagious. The reason why
the making of such a charge is actionable is because the having a
contagious disorder renders the person an improper member of
society ; but there is no reason why the company of a person who
has had a contagious disorder should be avoided, and, therefore,
such a charge is not actionable. The case in Cro. Eliz. which
has been cited is too loosely reported to be relied on.
Grose, J., of the same opinion. Rule discharged.
LUMBT V. ALLDAY. 87
LoiBY V. ALLDAT.
(1 Tyrw. 217 ; s. c. 1 Cromp. & J. 301. Exchequer, England, Hilary Term, 1S31.)
Disqualification for Ojfice. Where words are spoken of a person in an office of profit
which have a natural tendency to occasion the loss of such office, or which impute
the want of some necessary qualification for or some misconduct in it, they are
actionable. Sh-iis, if a clerk to a gas-light company is charged with immoral con-
duct with women, that imputation having no reference to his office, the words not
being laid to have been spoken of him in his office as clerk, nor proved to have
occasioned him any special damage.
Case for words. The first count of the declaration stated that,
before the speaking of the words, the plaintiff was, and hitherto
has been, and still is. clerk to a certain incorporated company, to
wir. the Birmingham and Staffordshire Gas-Light Company, and,
as such clerk, had always behaved himself with great diligence,
industry, and propriety, and thereby had acquired, and was ac-
quiring, great gains and profits in his said situation as clerk to
the said company ; nevertheless, the defendant, well knowing the
premises, but intending to bring the plaintiff into public infamy
and disgrace with and among all his neighbors, and the said per-
sons composing the said company, and to cause it to be suspected
and believed by his neighbors and subjects, and the persons com-
posing the said company, that the said plaintiff was of a bad
character and unfit to hold his situation of clerk to the said com-
pany, and an improper person to be employed by the said com-
pany, and to cause him to be deprived of and lose his situation,
and to vex, &c, him, the said plaintiff, on, <Src, at, &e., in a certain
discourse which the said defendant then and there had with the
said plaintiff of and concerning the said plaintiff, and of and con-
cerning the premises, in the presence and hearing of divers good
and worthy subjects of this realm, then and there, in the presence
and hearing of the said last-mentioned subjects, falsely and mali-
ciously spoke and published of and concerning the said plaintiff,
and of and concerning the premises, these false, scandalous, mali-
cious, and defamatory words following ; that is to say. " You
(meaning the said plaintiff) are a fellow, a disgrace to the town,
unfit to hold your (then and there meaning the said plaintiff's)
situation (then and there meaning the said situation of clerk to
88 SLANDER AND LIBEL.
the Birmingham and Staffordshire Gas-Light Company) for your
conduct with whores ; I will have you in the " Argus ; " you
(then and there meaning the said plaintiff) have bought up all
the copies of the " Argus," knowing you (then and there mean-
ing the said plaintiff) were exposed ; you may drown yourself,
for you (then and there meaning the said plaintiff) are not fit to
live, and a disgrace to the situation you (then and there meaning
the said plaintiff) hold " (then and there meaning the said situa-
tion of clerk to the Birmingham and Staffordshire Gas-Light
Company).
The above words were stated with some variations in several
other counts. Plea, general issue. At the trial before Alex-
ander, C. B., at the Warwick Summer Assizes, in 1830, it ap-
peared that the plaintiff had for three years acted as clerk to the
Birmingham and Staffordshire Gas-Light Company, at a salary of
250Z. per annum. The most defamatory of the words laid in the
first count were proved. The " Argus " was proved to be a
publication appearing at Birmingham monthly. No proof was
given of any written appointment of the plaintiff as clerk. The
Chief Baron directed the jury that if in their opinion the words
used would probably tend to injure the plaintiff in his office of
clerk, he was entitled to a verdict. The jury found a general
verdict for plaintiff. Damages, 40s.
Bayley, B., now delivered the judgment of the court. This
case came before the court on a rule nisi to enter a nonsuit, the
ground of which was, that the words proved on the trial were
not actionable.
Two points were discussed upon this rule : one, whether the
words were actionable or not ; and the other, whether this was
properly a ground of nonsuit.
The declaration stated that the plaintiff was clerk to an incor-
porated company, called the Birmingham and Staffordshire Gas-
Light Company, and had behaved himself as such clerk with
great propriety, and thereby acquired, and was daily acquiring,
great gains ; but that the defendant, to cause it to be believed
that he was unfit to hold his situation, and an improper person to
be employed by the company, and to cause him to be deprived of
his situation, spoke the words in the first count (which the learned
judge here read).
The objection to maintaining an action on these words is, that
LTJMBY v. ALLDAY. 89
it is only on the ground of the plaintiff 's being clerk to the com-
pany that they can he actionable ; that it is not alleged that
they are spoken of him in reference to his character or conduct
as clerk ; that they do not from their tenor import that they
were spoken with any such reference : and that they do not im-
pute to him the want of any qualification which a clerk ought
to have, or any misconduct which would make him unfit to dis-
charge faithfully and correctly all the duties of such a clerk.
The plaintiff relied on the rule laid down by De Grey, C. J., in
Onslow v. Home. 8 TVils. 1S6, that words are actionable Avhen
spoken of one in an office of profit which may probably occasion
the loss of his office, or when spoken of persons touching their
respective professions, trades, and businesses, and do or may
probably tend to their damage. The same case occurs in Sir
William Blackstone's Reports, 753, where the rule is expressed
to be, " if words may be of probable ill consequence to a person
in a trade, or profession, or office."
The objection to the rule as expressed in both reports appears
to me to be. that the word " probably "' or " probable " is too in-
definite and loose, and that unless it is considered as equivalent
with " having a natural tendency to," and is confined within the
limits I have expressed in stating the defendant's objection, viz.,
that of showing the want of some necessary qualification, or some
misconduct in the office, it goes beyond what the authorities
warrant. Every authority I have been able to meet with either
shows the want of some general requisite, as honesty, capacity,
fidelitv, itc, or connects the imputation with the plaintiff 's office,
trade, or business. Immorality only, however gross, is all which
is imputed, as here charged. As at present advised, therefore,
we are of opinion that the charge proved in this case is not action-
able, because the imputation it contains does not imply a want of
any of those qualifications which a clerk ought to possess, and
because the imputation has no reference to his conduct as clerk.1
1 As to the other point in the case, it was held that, as the speaking of the
words alleged was proved, there wa' no ground for a nonsuit ; but liberty
was given to move in arrest of judgment.
90 SLANDER AND LIBEL.
Thorlet v. Lord Kerry.
(4 Taunt. 355. Exchequer Chamber, England, Easter Term, 1812.)
Libel. An action may be maintained for words written, for whicli an action could not
be maintained if they were merely spoken.
This was a writ of error brought to reverse a judgment of the
Court of King's Bench. The plaintiff below declared that he was
a good, true, honest, just, and faithful subject of the realm, and,
as such, had always behaved, and considered himself, and, until
the committing of the several grievances by the defendant
thereinafter mentioned, was always reputed, esteemed, and ac-
cepted, by and amongst all his neighbors, and other good and
worthy subjects of this realm, to whom he was in anywise known,
to be a person of good name, fame, and credit, to wit, in the
parish of Petersham, in the county of Surrey, and also that he
had not ever been guilty, or, until the time, &c, been suspected,
of the offences and misconduct thereinafter mentioned to have
been charged upon and imputed to him ; or of any|such offences
or misconduct, by means of which premises he had before the
committing of the several grievances deservedly obtained the
good opinion and credit of all his neighbors, and other good and
worthy subjects of this realm, to whom he was known, to wit,
at Petersham ; and also that, before and at the time of the com-
mitting of the grievances by the defendant below, as hereinafter
mentioned, the plaintiff below was tenant to the Right Hon. Archi-
bald Lord Douglas, of a messuage and premises, with the appurte-
nances, situate in the parish of Petersham, and he being desirous
and intending to become a parishioner of the same parish, and
to qualify himself to attend the vestry of and for such parish, as
such parishioner, agreed with Lord Douglas to pay the taxes of
and for the said house, which he so inhabited as tenant to Lord
Douglas ; and also that, before and at the time of the committing
of the grievances by the defendant below in the first count men-
tioned, the defendant below was the church-warden of and for
the parish of Petersham, and the plaintiff below, so being desir-
ous and intending to attend such vestry of such parish as such
parishioner, had thereupon, by his certain note in writing, given
THORLEY V. LORD KERRY. 91
notice to the defendant below of his agreement with Lord Dong-
las ; yet the defendant below, well knowing the premises, and
greatly envying the happy state and condition of the plaintiff
below, and contriving, and wickedly and maliciously intending,
to injure him in his said good name, fame, and credit, and to
bring him into public scandal, infamy, and disgrace with and
amongst all his neighbors, and other good and worthy subjects of
this kingdom, and to cause it to be suspected and believed by
those neighbors and subjects, that he has been and was guilty of
the offences and misconduct hereinafter mentioned to have been
charged upon and imputed to him, and to vex. harass, and
oppress him, at Petersham aforesaid, falsely, wickedly, and mali-
ciously did compose and publish, and cause and procure to be
published of and concerning him, and concerning such agreement
with Lord Douglas, and concerning the said note in writing, a
certain false, scandalous, malicious, and defamatory libel in the
form of a letter to the plaintiff below, containing, amongst other
things, the false, scandalous, malicious, and defamatory and libel-
lous matter following (accompanied with the following amongst
other innuendoes), that is to say, " My lord, I conceive, as church-
warden (meaning as church-warden of the parish of Petersham),
I have nothing to say to any private agreement with Lord Doug-
las and yourself; your note (meaning the note sent to the de-
fendant below by the plaintiff below), and the manner it was
conveyed to me, shows your lordship still possesses that perturbed
spirit which I had hoped, for your own sake, after the composi-
tion and publishing of the scurrilous address of the 26th August,
would have been at rest. I had before read the virulent, disre-
spectful, and ungentlemanlike letters to the Rev. Mr. Marsham ;
I sincerely pity the man (meaning the plaintiff below) that can
so far forget what is due. not 011I3- to himself, but to others, who,
under the cloak of religious and spiritual reform, hypocritically,
and with the grossest impurity, deals out his malice, uncharitable-
ness, and falsehoods. X. B. It was my intention never to have
held or had communication with a writer of anonymous letters
(meaning that the plaintiff below was a writer of anonj-inous let-
ters), but it appears I cannot now avoid it '' (thereby meaning that
the plaintiff befrnv had been and was guilty of hypocrisy and dis-
honorable conduct). There were other counts setting out parts
only of the same letter ; and the plaintiff below concluded by
92 SLANDER AND LIBEL.
averring that by means of the committing of the grievances by
the defendant below, the plaintiff below had been and was greatly
injured in his good name, fame, and credit, and brought into
public scandal, infamy, and disgrace with and amongst all his
neighbors and other good and worthy subjects of this realm, inso-
much that divers of those neighbors and subjects to whom the
innocence, candor, truth, integrity, reverence, and respect of the
religion of the plaintiff below was unknown, had, on occasion of
the committing of the said several grievances by the defendant
below, from thence hitherto suspected and believed, and still did
suspect and believe, the plaintiff below to have been guilty of the
offences and improper conduct imputed to him as aforesaid, and to
have been and still to be guilty of hypocrisy, malice, uncharitable-
ness, and falsehood ; and had, by reason of the committing of the
several grievances by the defendant below, from thence hitherto,
and still did refuse to have any acquaintance, intercourse, or dis-
course with the plaintiff below, as they were before used and
accustomed to have, and otherwise would have had. And the
plaintiff below had been and was by means of the premises other-
wise greatly injured, to wit, in the parish of Petersham, to his
damage of 2,000L Upon not guilty pleaded, the cause was tried
at the Surrey Spring Assizes, 1809, when the writing of the letter
by the defendant was proved, and that he delivered it unsealed to
a servant to carry, who opened and read it. A verdict was found
for the plaintiff with 201. damages, and judgment passed for the
plaintiff without argument in the court below. The plaintiff in
error assigned the general errors.
Barnewall, for the plaintiff in error, in Trinity Term, 1811,
argued that there were no words in this case, for which, if spoken,
the action would be maintainable, and he denied that there was
any solid ground, either in authority or principle, for the distinc-
tion supposed to have prevailed in some cases, that certain words
are actionable when written which are not actionable when
spoken. He contended that all actionable words were reducible
to three classes : 1, Where they impute a punishable crime ; 2,
Where they impute an infectious disorder ; 3, Where they tend to
injure a person in his office, trade, or profession, or tend to dis-
herison, or produce special pecuniary damages. 1 Roll. Abr. Action
sur Cas pur Parols, passim ; Com. Dig. Action upon the Case for
Defamation, passim. And these words do not come within either
THORLET V. LORD KERRY. 93
of those classes. Neither of those books recognize the distinction
between written and unwritten slander. All the older cases treat
them on the same footing. Brook v. Watson, Cro. Eliz. 403. " He
is a false knave and keepeth a false debt book, for he chargeth
me with the receipt of a piece of velvet, which is false.*' The
words were held not to be actionable, and no such distinction
was there taken. So Bough ton v. Bishop of Coventry and Lich-
field, Anderson, 119. The words, " he is a vermin in the common-
wealth, a false and corrupt man, an hypocrite in the church of God,
a false brother amongst us." were held not actionable. There is
also a material distinction, which has been overlooked in all the
cases, between those words which, tending to irritate and vilify,
are indictable, because they conduce to a breach of the peace, and
those which are of themselves actionable, the latter class being by
no means so extensive as the former. Comyns, in his Dig. Libel,
A. 3, when he cites Fitzgibb. 121, 253, that it is a libel if he
publishes in writing, though in words not actionable, is consider-
ing this matter wholly in a criminal point of view. The last-
mentioned distinction must necessarily exist, because the ground
of action is the amount of the civil injury sustained by the plain-
tiff, not the immorality of the defendant. In the case of King v.
Lake, indeed, Hardr. 470, which was an action for words in an
answer to a petition preferred by the plaintiff to the House of
Commons against the defendant. Hale, C. B., held, that although
general words spoken once, without writing or publishing them,
would not be actionable, yet there, they being writ and published,
which contains more malice than if they had been once spoken,
they were actionable. And the court being all of that opinion,
judgment was given pro querente nisi causa, &c. But, in that
case, this ground was unnecessary to support the decision, for the
words imputed violence, seditious language, illegal assertions,
ineptitudes, imperfections, gross ignorances, absurdities, and sole-
cisms, and were laid to be spoken to the plaintiff's damage in his
good name and credit and profession as a barrister-at-law. And,
in 2 Vent. 28, another action was brought, within five years after,
between the same parties, for a letter written by the same defend-
ant to the Countess of Lincoln, damnifying the plaintiff in his
profession of a barrister ; but, although Vaughan, C. J., contrary
to Wyld, Tyrrel, and Archer. JJ., held that the action lay not,
the court did not at all advert to the distinction between written
94 „ SLANDER AND LIBEL.
and unwritten slander in support of their judgment. The dis-
tinction was indeed noticed in Harman v. Delany, Fitzg. 254 ; but
the same case is reported by Strange, vol. ii. 898, who was of
counsel in the cause, and who puts it merely on the ground of its
being spoken of the plaintiff in his profession. In Onslow v.
Home, 3 Wils. 186, it is held that even words imputing a crime
are not actionable unless the punishment be infamous. 2 H. Bl.
531, Savile v. Jardine, it was held that the word " swindler," when
spoken, was not actionable, and the distinction was there, indeed,
assumed, and the case is thereupon argued to be reconcilable
with J'Anson v. Stuart, 1 T. R. 748, where the same word writ-
ten was held actionable ; but in the latter case is an innuendo', that
the defendant intended on obtaining money under false pretences,
which incurs an infamous punishment, and is therefore clearly
actionable, without recurring to the support of this disputed dis-
tinction. In the precedents in East. 12, 13, Robins. Ent. 72, the
words are not stated as a libel ; it seems the distinction was un-
known. In Cropp v. Tilney, 3 Salk. 226, the words were certainly
seditious, if not treasonable. The reason assigned, that the print-
ing or writing indicates a greater degree of malice than mere
speaking, is a bad one ; for it is not the object of an action at law
to punish moral turpitude, but to compensate a civil injury: the
compensation must be proportionate to the measure of the damage
sustained ; but it cannot be said that publication of written slan-
der is in all cases attended with a greater damage than spoken
slander ; for if a defendant speaks words to a hundred persons
assembled, he disseminates the slander and increases the damage
a hundred-fold as much as if he only wrote it in a letter to one.
Dampier, in affirmance of the judgment. This action is main-
tainable, first, because the plaintiff is a peer of the realm ; and
many things are actionable when spoken of a peer which are not
actionable if spoken of a private person : as in the Marquis of
Dorchester's Case, Mich. 24, Car. 2, B. R. Bull. N. P. 4, " He is
no more to be valued" than the dog that lies there." So in the
case of the Earl of Peterborough v. Stanton, ib., " The Earl of
Peterborough is of no esteem in this country ; no man of reputa-
tion has any esteem for him ; no man will trust him for twopence ;
no man values him in the country ; I value him no more than the
dirt under my feet." It does not appear that either of these was
an action of scandalum magnatum. The case of the Earl of
THORLEY !'. LORD KERRY. 95
Peterborough v. Williams, Comb. 43, 2 Sho. 505, is, indeed, there
said to be scandal um magnatum. The principle on which actions
may be sustained for words is rather narrowly laid down in the
argument for the plaintiff in error, when the causes of action are
said to be only crime, pecuniary damage, and infectious disease.
The gist of the last is, that the imputation deprives the plaintiff
of society. But what can more deprive a man of society than
this imputation of being one " who, under the cloak of religion
and spiritual reform, hypocritically, and with the grossest im-
purity, deals out his malice, uncharitableness, and falsehoods " ?
If this is not a leprosy of the mind as much to be shunned as
that of the body, the loss of society is not to be much regretted.
If Lake's Case has gone upon his loss as a barrister, there would
have been no room for all the discussion that took place ; and
especially Hale's judgment, taking the distinction between speak-
ing and wilting. [Heath, J. It appears by Skin. 124. that the
judgment in the case of King v. Lake was affirmed in error.]
Austin v. Culpeper, s. c. 2 Sho. 818. The same distinction is
taken in Shower, 314, though it is not taken in Skinner, where
the libel imputed perjury, and was therefore clearly actionable.
1 Ford. MS. 40. the case of Harman v. Delaiiy. is reported more
fully than in the printed report ; and it is there said that it was
so agreed by the court. 2 Ford. 78, 79, Bradley v. Methuen : it
there appears that Lord Hardwicke recognized the distinction,
though it was not absolutely necessary to the judgment, which
there passed for the plaintiff. There is another principle upon
which the action for slander is to be maintained beyond that of
penalty and punishment, viz., of disgrace and discredit ; and
whether that be produced by writing, or by words, if it is punish-
able bv indictment as tending to a breach of the peace, it is also
the subject of a civil action, which may be brought to recover a
compensation for the injury the plaintiff sustains by being de-
prived of society, as for a temporal damage. 2 AVils. 403, Villers
v. Monsley. Bathurst, J., held that writing and publishing any
thincr of a man that renders him ridiculous is a li el, and action-
able ; and fully recognized the distinction be. ween written and
spoken slander. This case continues the chain from the time of
Hale. C. B., 1670. to the time of Wilmott, C. J., within living
memory. Bell i'. Stone, 1 Bos. & P. 331. The court, in the absence
of Evre, C. J., clearly held that written words of contumely were
96 SLANDER AND LIBEL.
actionable. [Macdonald, C. B. " Villain " was the word there.]
This brings us down to Kaye v. Bayley,1 where the amount
of damages made the question of importance, and it was thrice
fully argued. If this series of one hundred and fifty years' deci-
sions (and it was a very learned person, Le Blanc, then sergeant,
who refused to argue the point in Bell v. Stone) will not suffice
to warrant the opinion that an action will lie in such case, there
is no reliance to be placed on authority. If words imputing a
dereliction of every duty of imperfect obligation cannot be made
the subject of an action, the law of libel very imperfectly guards
society.
Barneivall, in reply. The court will not be disposed to extend
the principle laid down in all the books, limiting the cases in
which words are actionable. In 1 Roll. Abr. Case for Slander,
and Com. Dig. Action on the Case for Defamation, the written and
spoken slander are treated of under one title ; and in the older
entries there is no difference made in the declarations between
written and unwritten slander, except using the word " spoken,"
instead of " written." In Villers v. Monsley, the words im-
puted an infectious disorder. In Harman v. Delany, the words
were spoken of the plaintiff in his trade as a gunsmith. De
Grey, C. J., in Wils. 187, says that to impute to any man the
mere defect or want of moral virtue, moral duties, or obligations,
which render a man obnoxious to mankind, is not actionable.
The case in' Anderson is in point, that the words here used are
not actionable. The injury consists in the evil done to the
plaintiff in the minds of others ; and if the words, when spoken,
be not an injury, they cannot be when written. To hold other-
wise would be to make the immorality, and not the damage, the
ground of action. Cur. adv. vult.
Mansfield, C. J., on this day delivered the opinion of the
court.
This is a writ of error, brought to reverse a judgment of the
Court of King's Bench, in which there was no argument. It was
an action on a libel published in a letter, which the bearer of the
letter happened to open. The declaration has certainly some
very curious recitals. It recites that the plaintiff was tenant
to Archibald Lord Douglas of a messuage in Petersham, that
1 One of the parties in that case having died pending the writ of error, no
judgment ever was given.
THORLEY V. LORD KERRY. 97
being desirous to become a parishioner and to attend the vestry,
he agreed to pay the taxes of the said house ; that the plaintiff
in error was church-warden, and that the defendant in error gave
him notice of his agreement with Lord Douglas, and that the
plaintiff in error, intending to have it believed that the said earl
was guilty of the offences and misconducts thereinafter men-
tioned ^offences there are none, misconduct there may be), wrote
the letter to the said earl which is set forth in the pleadings.
There is no doubt that this was a libel, for which the plaintiff in
error might have been indicted and punished ; because, though
the words impute no punishable crimes, they contain that sort of
imputation which is calculated to vilify a man, and bring him, as
the books say, into hatred, contempt, and ridicule : for all words
of that description an indictment lies : and I should have thought
that the peace and good name of individuals were sufficiently
guarded by the terror of this criminal proceeding in such cases.
The words, if merely spoken, would not be of themselves suffi-
cient to support an action. But the question now is. whether an
action will lie for these words so written, notwithstanding such
an action would not lie for them if spoken : and I am very sorry
it was not discussed in the Court of King's Bench, that we might
have had the opinion of all the twelve judges on the point,
whether there be any distinction as to the right of action be-
tween written and parol scandal : for myself, after having heard
it extremely well argued, and especially in this case, by ill*.
Barnewall, I cannot, upon principle, make any difference be-
tween words written and words spoken, as to the right which
arises on them of bringing an action. For the plaintiff in error
it has been truly urged that in the old books and abridgments no
distinction is taken between words written and spoken. But the
distinction has been made between written and spoken slander as
far back as Charles the Second's time, and the difference has been
recognized by the courts for at least a century .back. It does not
appear to me that the rights of parties to a good character are
insufficiently defended by the criminal remedies which the law
chives : and the law gives a very ample field for retribution by
action for words spoken in the cases of special damage, of words
spoken of a man in his trade or profession, of a man in office, of
a magistrate or officer: for all these an action lies. But for
7
98 SLANDER AND LIBEL.
mere general abuse spoken, no action lies. In the arguments both
of the judges and counsel, in almost all the cases in which the
question has been, whether what is contained in a writing is
the subject of an action or not, it has been considered whether
the words if spoken would maintain an action. It is curious
that they have also adverted to the question, whether it tends to
produce a breach of the peace ; but that is wholly irrelevant,
and is no ground for recovering damages. So it has been
argued that writing shows more deliberate malignity; but the
same answer suffices, that the action is not maintainable upon
the ground of the malignity, but for the damage sustained. So,
it is argued that written scandal is more generally diffused than
words spoken, and is, therefore, actionable ; but an assertion
made in a public place, as upon the Royal Exchange, concerning a
merchant in London, may be much more extensively diffused
than a few printed papers dispersed, or a private letter ; it is
true that a newspaper may be very generally read, but that is all
casual. These are the arguments which prevail on my mind to
repudiate the distinction between written and spoken scandal ;
but that distinction has been established by some of the greatest
names known to the law, — Lord Ha'rdwicke, Hale, I believe,
Holt, C. J., and others. Lord Hardwicke, C. J., especially has laid
it down that an action for a libel may be brought on words'
written, when the words if spoken would not sustain it. Com.
Dig. tit. Libel, referring to the case in Fitzg. 122, 253, says,
there is a distinction between written and spoken scandal. By his
putting it down there, as he does, as being the law, without
making any query or doubt upon it, we are led to suppose that he
was of the same opinion. I do not now recapitulate the cases ;
but we cannot, in opposition to them, venture to lay down at
this day that no action can be maintained for any words written,
for which an action could not be maintained if they were spoken.
Upon these grounds we think the judgment of the Court of
King's Bench must be affirmed. The purpose of this action is to
recover a compensation for some damage supposed to be sus-
tained by the plaintiff by reason of the libel. The tendency of
the libel to provoke a breach of the peace, or the degree of
malignity which actuates the writer, has nothing to do with the
question. If the matter were for the first time to be decided at
this day, I should have no hesitation in saying, that no action
ACTIONABLE WORDS.
99
could be maintained for written scandal which could not be
maintained for the words if they had been spoken.
Judgment affirmed.
Actionable Words. — In certain that written defamation has a more
classes of cases an action for deftma- extended circulation than spoken words,
tion may be maintained without proof is frequently untrue. ; nor is the other
of special damage to the plaintiff; and position more correct, that the ten-
in these cases the words are said to be dency of libel to cause a breach of
actionable per se. Mr. Starkie enu- the peace is more direct than that of
slander. Hot words are more apt to
bring men to blows than the cooler
imputations of written defamation. The
presence and speech of the offending
merates fire classes of defamation of
this character, namely : —
1. Where an indictable offence is
imputed.
2. Where a contagious or infectious person stirs the passions to swift pun-
disorder is imputed. ishment ; while in the case of a libel
3. Where an injurious imputation is the blood has opportunity to cool, and
made of the plaintiff in his office, pro- reason to gain control, before the
fession, or business. libeller is met.
4. Where the words tend to the dis- In the article above referred to, the
herison of the plaintiff. author, having further shown how un-
o. Where the defamation is propa- satisfactory are most of the reasons
gated by printing, writing, pictures, or given in particular cases for the lia-
effigy ; in which case the injury is termed bility of a party uttering slanderous
libel. Starkie, Slander, 9S (3d Eng. ed.). words, proceeds to investigate into the
(a.) Historical. — We propose to origin of the doctrine concerning
consider the subject of actionable words actionable words. The argument is
in the same order. But it is proper ingenious; but it bears evidence, cer-
first to examine into the ground of tainly, of probability. It is this : De-
liability in such cases. This is, how- famation was originally a spiritual
ever, one of the most perplexing cause, cognizable only in the ecclesias-
branches of the law. It has well been tical courts. Afterwards, by the Statute
said that there is no simple and gen- of Westminster the Second, process was
eral rule for determining what words invented by which delicts not com-
will and what will not support an mitted with force, such as slander and
action. N. St- John Green, 6 Am.
Law Kev. 594, in a valuable article on
Slander and Libel.
As to the distinction between slander
and libel, making all defamatory writ-
ten words actionable, while only cer-
libel, could be brought before the com-
mon-law courts. Now, according to
Bracton, says Mr. Green, it was the
rule of the courts, ecclesiastical and
civil, that the accessorium must come
under the same law and jurisdiction as
tain classes of spoken words, however the principale ; that is, the jurisdiction
severe, are the subject of an action, over a thing drew to it the jurisdiction
the writer just referred to remarks that over all things accessory. It was by
no entirely satisfactory reason has ever means of this rule that the Court of
been given. The reason often given, King's Bench, by the fiction that the
100
SLANDEE AND LIBEL.
defendant was in its custody, and the
Court of Exchequer, by the fiction that
the plaintiff was indebted to the crown,
were enabled to extend their jurisdic-
tion over most of the matters originally
cognizable only in the Common Pleas.
So, upon this rule, the common-law
courts appear to have worked in getting
from the spiritual courts jurisdiction in
matters of defamation, when after the
establishment of actions upon the case
they themselves had the means of de-
termining such classes of injuries.
But how did it come to pass that
certain words were actionable, while
others equally odious were not? This
inquiry is answered thus : .First, as to
words charging an indictable offence.
The courts of common law having
acquired jurisdiction in matters of
defamation as above indicated, and
having the duty cast upon them of
investigating charges of crime for the
purpose of punishing the offender, this
jurisdiction might well be held to draw
after it as an incident the right to
investigate the charge, for the purpose
of compensating the party injured by
such a charge if it were false. And
this may explain why it was held that
the imputation and charge of crime
must be direct. For example, to call
one a thievish knave imputed a dispo-
sition to commit crime, and not the
actual commission of it ; and as there
was nothing upon which the jurisdic-
tion of the court in such case could
attach, the offender went free, or the
complainant had to resort to the spiritual
courts.
It is next suggested that the reason
why to impute to one the present hav-
ing of the leprosy, the syphilis, or the
plague was actionable, while it was not
actionable to charge upon the plaintiff
the having of other diseases, or even
the having had the diseases named, may
be accounted for in the same way.
"When a person became affected with
the leprosy, he was considered as legally
and politically dead, and lost the priv-
ileges belonging to his right of citizen-
ship. The church took the same view ;
and on the day on which he was sepa-
rated from his fellow-creatures, and
consigned for the remainder of life to
a lazar-house, they performed over
and around the yet living sufferer the
various solemn ceremonials for the
burial of the dead, and the priest ter-
minated the long and fearful formula of
his separation from his fellow-creatures
by throwing upon the body of the poor
outcast a shovelful of earth, in imita-
tion of the closure of the grave."
Encyc. Brittanica, quoted by Mr.
Green. The leper was also subject to
the writ de leproso arnovendo, proceed-
ing from the king to the sheriff of
London ; and therefore the imputation
of a disease coming under the notice of
an officer of justice might well have
been attended with the same conse-
quences as the charge of a crime. And
the same explanation may be true of a
charge of the plague. As to the impu-
tation of syphilis, the explanation is
more difficult. Whether the syphilitic
were also liable to a writ of removal,
because of a resemblance to the leprosy
then prevailing in England, or whether
by reason of the great disgrace it
brought, the imputation of it was held
actionable, is not clear. (It may be
worthy of notice in this connection,
that one of the articles of impeach-
ment of Cardinal Wolsey alleged his
having whispered in the king's ear,
knowing himself to be affected with
venereal distempers. Hume's Hist, of
England, vol. iii. App.)
Thirdly, as to words spoken of a
ACTIONABLE WORDS.
101
person in his office, profession, or busi-
ness. The early cases appear all to
relate directly to the administration of
justice ; and to bring these within the
jurisdiction of the courts would not of
course be difficult. And this would be
true not only where the charge was
against one of the judges, but also
where it was against an attorney, since
attorneys are officers of court.
As to all these cases, the ground of
a pecuniary loss appears to be an idea
which originated after the Reforma-
tion, when the common-law courts had
taken away nearly all the jurisdiction
of the ecclesiastical courts. But upon
this principle (which, the common-law
courts claimed, gave jurisdiction in all
cases, as being a temporal cause) the
number of actionable words in the
third class appears to hare been allowed
to increase and to embrace many words
not regarded as actionable in the early
law ; so that now it has come to be a
general principle that defamatory words
spoken of a man in his occupation are
actionable.
As to libel, this offence appears to
have been indictable from the earliest
times. Before the invention of print-
ing, libels were published by scattering
the papers containing them in the
streets, or by posting them in public
places; and they were generally directed
against the government, or against per-
sons in high authority. "When the
knowledge of reading and writing
became common, "' says Mr. Green,
" and the less injurious kinds of private
libel came to the attention of the courts.
they naturally would be held to be in-
dictable as coming within the definition
of the crime sanctioned by precedent.
. . After the introduction of the
action upon the case, the court could
consistently give a civil action for dam-
ages both upon the ground that the
principal matter (that is to say, the
crime) being within its jurisdiction, that
fact drew after it a civil remedy in dam-
ages as an incident, and also upon the
ground that, having by the usual fiction
the possession of the criminal's person,
it was proper that a civil remedy should
be sought against him in the court
where he was, rather than that the
plaintiff should be sent to the ecclesi-
astical court for a redress which that
court, without the custody of the per-
son of the delinquent, might be power-
less to give."
We now proceed to consider the sub-
ject as actually developed in the cases.
(A.) 31 Mori Stiisu. — It should be
remarked at the outset that the de-
cision of Lord Mansfield in Peake v.
Oldham, exploding the notion that am-
biguous words which were made to cover
almost every charge should be con-
strued mitiori sensu, has been uniformly
followed; and now words of doubtful
import, before as well as after verdict,
are to be taken in their natural sense,
as they would be understood by the by-
standers or readers. Hankinson r.
Bilby, 16 Mees. & W. 442 ; Roberts
f. Camden, 9 East, 93; Dorland p.
Patterson, 23 Wend. 422 ; Tuttle v.
Bishop, 30 Conn. SO ; Hancock c.
Stephens, 11 Humph. 507; F.illenstein
v. Boothe, 13 Mo. 427 ; Duncan r.
Brown, 15 B. Mon. ISO ; post, 119, 120.
It is therefore immaterial whether
the defamatory charge be affirmative
and direct, or only inferential ; as
where it is made ironically : Cooper v.
Greely, 1 Denio, 347 ; or by hieroglyph-
ics, or in allegory : Holt, Libel, 240 ;
or by fictitious names, or any other
artfhl disguise: Commonwealth c.
Child, 13 Pick. 19S. It is enough that
the language is understood to be de-
102
SLANDER AND LIBEL.
famatory by those to whom it is ad-
dressed.
(c.) Wfiere an Indictable Offence is im-
puted.— We should expect to find, from
what has been said above, that the sole
ground of liability in cases of this class
lay in the fact that an offence had been
charged upon the plaintiff, for which, if
true, he was then liable to an indict-
ment; but this is not the case. In
Carpenter v. Tarrant, Cas. temp.
Hardw. 339, the words charged were,
" Robert Carpenter was in Winchester
jail, and tried for his life, and would
have been hanged had it not been for
Leggat, for breaking open the granary
of farmer A., and stealing his bacon."
After verdict for the plaintiff, counsel
for the defendant moved in arrest of
judgment that the words were not
actionable; but the motion was over-
ruled. The words, it will be observed,
implied that the plaintiff had been ac-
quitted ; and the language of Lord
Hardwicke indicates that the early rule
of law had been enlarged. "This,"
said he, " is one of those cases that are
frequent, in which the difference betwixt
the old rules and the modern ones come
in question; and I should think that,
according to all the rules laid down of
late years, these words are actionable,
for they import a scandal. The very
charging a man of having been in jail
is a reproach ; and it must be a very
strong intendment to have them mean
only that he was acquitted by Leggat."
And he referred to the similar case of
Halley v. Stanton, Croke Ch. 268, where
the words were, " He was arraigned
for stealing twelve hogs, and if he had
not made good friends, it had gone hard
with him ; " which words were held ac-
tionable.
In Gainford v. Tuke, Croke Jac.
536, an action of slander was sustained
where the words were, " Thou wast in
Launceston jail for coining." The
plaintiff replied : " If I was there, I
answered it well." "Yea," said the
defendant, " you were burnt in the
hand for it."
Much later, in the case of Fowler v.
Dowdney, the words, "he is a returned
convict," were held actionable by Lord
Denman ; for, said he, though the words
import that the punishment has been
suffered, the obloquy remains. So in
""Boston v. Tatham, Croke Jac. 623, the .
court expressed the opinion that, even
allowing that the words fixed the offence
to a period since which the liability to
punishment must have been discharged
by a general pardon, yet that the words
were actionable, since the scandal of the
offence remained. See also post, p. 112 ;
Helsham v. Blackwood, 11 Com. B. 111.
These cases have been followed in
this country. In Shipp v. McCraw, 3
Murph. 465, where the charge was of a
larceny committed in another State,
Mr. Justice Henderson said that the
gravamen of the action was social
degradation. The risk of punishment
and the rule to test the question,
whether the words were actionable (by
charging an infamous crime), were re-
sorted to in order to ascertain whether
a social degradation was alleged, and
not whether the risk of punishment was
incurred. The cases, which were nu-
merous, where the words imputed a
crime, and, at the same time, stated a
pardon or acquittal, fully proved that
the degradation, and not the danger of
punishment, was the basis of the action.
And this was fortified by the precedents,
where the ground of complaint was the
loss of character, and not the danger of
punishment.
Mr. Townshend has collected many
other cases of this kind to the same ef-
ACTIONABLE WORDS.
103
feet (Slander, § 15S); among them
Smith r. Stewart, 5 Barr, 372, where
the words were, "He is a eonTiet, and
has been in the Ohio penitentiary :"
Wiley v. Campbell, 5 Mon. 396, where
the words were, ■ ' You have been
cropped for felony ; '" and Holley v. Bur-
gess, 9 Ala. 728, where the words were,
" He was whipped for stealing hogs."
Whether the words, to be actionable,
must charge an offence the punishment
of which is infamous, has been a point
of some conflict in the authorities. In
Turner c. Ogden, 2 Salk. 696, the
word?, "thou art one of those that
stole my Lord Shaftesbury's deer," were
held not actionable per se, on the ground
that the punishment of the offence,
though it was by imprisonment, was
not infamous. So in Onslow p. Home,
3 Wils. 186, De Grey, C. J., said that
the words '■ must contain an express
imputation of some crime liable to pun-
ishment, some capital offence, or other
infamous crime or misdemeanor." And
Mr. Justice Lawrence quotes this state-
ment as the true rule (Holt v. Sehole-
field, 6T. R. 691, 694), and says that the
dictum in Smale r. Hammon, 1 Bulstr.
40, — that where the words tend to the
infamy, discredit, or disgrace of the
party, they shall be actionable, — goes
too far.
The doctrine of these cases has been
followed in Pennsylvania. In Andres
v. Koppenheaver, 3 Seig. & R. 2.5.5. the
slanderous words alleged were, " You
have made a libel, and I will prove it
with my whole estate ; " and the action
was sustained. Tilghman, C. J., said
he was inclined to think it was going
too far to say that all words were
actionable which imported an indictable
offence. An action could not be main-
tained for charging one with having
committed an assault and battery. (See
Billings v. Wing, 7 Vt. 439, where the
assault charged was of an aggravated
character.) " It seems," said he, " that
there should be something in the offence
of an infamous or disgraceful nature ;
either a felony or a misdemeanor which
affects one's reputation." And he
thought that the punishment for libel
came within this rule. " The punish-
ment at common law was infamous or
otherwise at the discretion of the court.
It was sometimes punished with fine or
imprisonment, or both, and sometimes
with the pillory." And, as to the view
taken of it in society, it indicated, in its
most favorable light, an unfeeling, mali-
cious heart. But when it rose to the
higher degrees, it was infamous in the
extreme. See also Bloom !•. Bloom, 5
Serg. & R. 391 ; Todd c. Rough, 10
Serg. & R. 18; Beck v. Stitzel, 21
Penn. St. 522.
In Young v. Miller, 3 Hill, 21, this
was held to be the rule though the
offence were a mere misdemeanor, un-
known to the common law. In that
case the words were, "You have re-
moved my landmark, and cursed is he
that removeth my landmark ; " and the
action was sustained. Mr. Justice
Bronson referred to several cases :
to Widrig v. Oyer, 13 Johns. 124, where
counsel proposed to modify the rule in
the principal case, Brooker v. Coffin, by
changing the word " or" to " and," but
without avail; also to Martin r. Stilwell,
13 Johns. 275, where words were held
actionable which charged the plaintiff
with keeping a bawdy-house ; and to
Gibbs r. Dewey, 5 Cow. 503, where the
charge was that the plaintiff had handed
papers to a juror to influence or bribe
the jury ; and to Alexander v. Alexan-
der, 9 Wend. 141, where the charge
was that the plaintiff had forged the
defendant's name to a petition to the
104
SLANDER AND LIBEL.
legislature, — and this, though imputing
only a misdemeanor, was held action-
able. In all these cases, said the
learned judge, the court went upon the
ground that the words imputed a crime
involving moral turpitude, for which the
offender might be proceeded against
by indictment.
These cases are all reviewed in
Smith v. Smith, 2 Sneed, 473, and the
Supreme Court of Tennessee there adopt
the same rule, making no distinction in
favor of misdemeanors, where the words
involve an offence of moral turpitude.
The particular point in the case referred
to was that an action of slander would
lie for words imputing to the plaintiff
'the unlawful selling of spirituous liquors
to his slaves.
The same rule of law is adopted in
New Jersey. Johnson v. Shields, 1
Dutch. 116. See also Colby v. Rey-
nolds, 6 Vt. 489 ; Hoag v. Hatch, 23
Conn. 585; Johnston v. Morrow, 9
Porter (Ala.), 525; Birch v. Benton,
26 Mo. 153.
The court of Massachusetts, how-
ever, have refused to follow the rule in
Brooker v. Coffin. See Miller v. Parish,
8 Pick. 384, where Parker, C. J., thus
stated the rule: Whenever an offence
is charged which, if proved, may sub-
ject the party to a punishment, though
not ignominious, and which brings dis-
grace upon him, , the accusation is
actionable. The offence there charged
upon the plaintiff, a female, was fornica-
tion; and it was held actionable, though
neither a crime at common law, nor
punishable by statute with an ignomin-
ious punishment.
A similar charge of unchastity has
been held actionable in Connecticut,
where the offence is punishable by
statute. Frisbie v. Fowler, 2 Conn.
707. So in Wisconsin. Meyer v.
Schleichter, 29 Wis. 646. But, in
New Hampshire, where it was not pun-
ishable, the court held the contrary.
Woodbury v. Thompson, 3 N. H. 194.
In New York the charge is not only not
actionable, but no mental suffering or
physical prostration and sickness, the
effect of the charge, will be sufficient,
as special damages, to make the action
sustainable. Terwilliger v. Wands, 17
N. Y. 54; Wilson v. Goit, ib. 442.
See also Allsop v. Allsop, 5 Hurl. &
N. 534, to the same effect.
But whatever may be regarded as
the true rule where the charge carries
with it the odium of unchastity in a
female, it is probable that in other cases
the doctrine of Brooker v. Coffin would
be accepted. The expression, " moral
turpitude," was, however, criticised in
Skinner v. White, 1 Dev. & B. 471, as
lacking precision ; while, in Pennsyl-
vania, the court have remarked : ' ' This
element of moral turpitude is necessarily
adaptive ; for it is. itself defined by the
state of public morals, and thus far fits
the action to be at all times accommo-
dated to the common sense of the com-
munity." Mr. Justice Lowrie, in Beck
v. Stitzel, 21 Penn. St. 522.
Upon this point Mr. Starkie is at
variance with the current of American
authorities, at least. He says: "In
many of the cases where charges of
crime have been held actionable, it is
observable that stress has been laid
upon the terms scandalous and infa-
mous, used as descriptive either of the
crime charged or the punishment apper-
taining to it. Although this affords
some reason to infer that the actionable
quality does not extend to all charges
of misdemeanor for which fine and
imprisonment may be inflicted, yet a
distinction of this nature seems unwar-
ranted by the cases, and would afford a
ACTIONABLE WORDS.
105
very dubious rule, the terms scandalous
and infamous being of themselves words
of very indefinite import. It would be
a very difficult task to ascertain the
precise point in the scale of offences
where infamy and scandal cease to at-
tach. From the authorities, perhaps,
it may be inferred generally that to
impute any crime or misdemeanor for
which corporal pnnishment may be in-
flicted is actionable without proof of
special damage. But where the penalty
for an offence is merely pecuniary, it
does not appear that an action will lie
for charging it ; even though in default
of payment imprisonment should be
prescribed by the statute, imprisonment
not being the primary and immediate
punishment for the offence. Ogden c.
Turner, 6 Mod. 104; 2 Salk. 696;
Holt, 40." Starkie, Slander, 111 (3d
Eng. ed.).
(d.) Where a Contagious or Infectious
disorder is imputed. — By the early com-
mon law, as we have already seen, the
rule that the imputation of having a
contagious or infectious disease was
actionable without proof of special
damage embraced three kinds of dis-
ease,— leprosy, the plague, and the
syphilis. The two first named having
nearly or quite disappeared in England,
and having never prevailed to any ex-
tent in America, it may be doubtful
whether an imputation of having either
would have any effect upon a person ;
and therefore, quaere, whether an ac-
tion for such a charge could at the
present time be maintained. To im-
pute to one, however, the having a
venereal disease is still actionable per se.
And though the term usually employed
to designate such disease is syphilis or
pox (lues venerea), the law holds equally
offensive the charge of having the
gonorrhoea. Watson v. McCarthy, 2
Kelly, 57 ; Williams v. Holdridge, 22
Barb. 398.
The doctrine that the charge, to be
actionable, must be made in the present
tense is well settled. Bloodworth e.
Gray, 7 Man. & G. 331 ; Starkie, Slan-
der, 143 (3d Eng. ed.).
(e.) Where an Injurious Imputation is
made of the Plaintiff in his Office, Pro-
fession, or Business. — This class com-
prises a large number of cases. It is
said that words uttered of a person in
his office are actionable as well when
the office is merely confidential and
honorary as when it is productive of
emolument. Starkie, Slander, 146
(3d Eng. ed.). The ground of action,
as the writer referred to suggests, must
be somewhat different in these cases.
Where the office is one of profit, the
ground of action is the pecuniary loss
sustained ; but where the office is merely
one of honor, the ground would seem to
be mainly the danger of exclusion which
the charge, if true, would involve.
Whether the degradation and the im-
probability of the party's being after-
wards placed in offices of trust or profit
might also be a ground for such cases,
qucere. See Walden v. Mitchell, 2
Ventr. 265, 266; Onslow v. Home, 3
AVils. 188; Pridham v. Tucker, Yelv.
153: Tuthil v. Milton, ib. 158; Kerle
v. Osgood, 1 Ventr. 50.
In England this case of words con-
cerning a person in an office of mere
honor or confidence includes words
spoken of justices of the peace, physi-
cians, and barristers. Starkie, ut supra.
In these cases a distinction was for-
merly maintained between a charge of
incompetency and one of corruption.
See the judgment of Lord Holt in Howe
v. Prinn, Holt, 653 ; s. c. 3 Salk. 694.
But this distinction was denied by
De Grey, C. J., in Onslow v. Home,
106
SLANDER AND LIBEL.
3 Wils. 186, and probably no longer
prevails.
The fact that the occupation is menial
is of no importance. Thus, in Seaman
v. Bigg, Croke Car. 480, the words,
" Thou art a cozening knave, and hast
cozened thy master of a bushel of
barley," spoken of a servant in hus-
bandry, to injure him with his master,
were held actionable. See also Terry
v. Hooper, 1 Lev. 115, where Kelynge,
Wyndham, and Twysden, JJ., held
that an action lies for speaking scanda-
lous words of a lime-burner, or of any
man of any trade or profession, be
it never so base, if they are spoken
of him with reference to his profes-
sion.
There seem to be some cases in
which it is not necessary to allege that
the words were spoken of the plaintiff
in his occupation. It is said that this
is true of words spoken of a servant,
like the following : " He is a lazy, idle,
and impertinent fellow ; " for these
words, though without reference to the
person's service, cannot but affect his
character as a servant, since no one
would be willing to employ a person of
idle and impertinent habits. Starkie,
Slander, 157 (3d Eng. ed.).
So, too, it seems that, in some cases
where the office, profession, or employ-
ment of the plaintiff requires great skill
and talent, general words imputing
want of ability are actionable ; as in the
case of words spoken of a barrister or a
physician. Peard v. Jones, Croke Car.
382; Gallwey v. Marshall, 9 Ex. 294,
301 ; Starkie, ut supra. But even in
these cases, if the words clearly show
that they could not have injured the
plaintiff in his profession, they will not
be actionable without special damage.
See Doyley v. Roberts, 3 Bing. N. C.
835, where the words, " He has de-
frauded his creditors,- and has been
horsewhipped off a race-course,'' spoken
of an attorney, were held not action-
able per se.
With the exceptions above men-
tioned, it must appear that the words
complained of were clearly spoken of the
plaintiff in his profession or business.
See Irwin v. Brandwood, 2 Hurl. & C.
960 ; Ayre v. Craven, 2 Ad. & E. 2 ;
Pemberton v. Colls, 10 Q. B. 461;
Gallwey v. Marshall, 9 Ex. 294; Southee
v. Denny, 1 Ex. 196; Edsall v. Rus-
sell, 4 Man. & G. 1090.
Where it is alleged that the slander-
ous words were spoken of the plaintiff
in his occupation, and there is no appar-
ent connection between the words and
the occupation, it may be necessary to
allege how the speaker connected the
words with it. In Ayre v. Craven,
2 Ad. & E. 7, a physician sued for
words imputing adultery to him, the
declaration alleging the words to have
been spoken of him in his profession.
After verdict for the plaintiff, judgment
was arrested on the ground that such
words, though alleged to have been
spoken of the plaintiff in his profes-
sion, were not actionable without special
damage ; and the court said that if the
words were so spoken as to convey an
imputation upon the plaintiff's conduct
in his profession, the declaration ought
to show how the speaker connected the
imputation with the professional con-
duct. To the same effect are James v.
Brook, 9 Q. B. 7; Doyley v. Roberts,
3 Bing. N. C. 835.
(/.) Where the Words tend to the Dis-
herison of the Plaintiff. — If the words
tend to impeach a present title of the
plaintiff, the action, though often called
an action for slander of title, is not
properly speaking an action of slan-
der : it is simply an action for a false
ACTIONABLE WORDS.
107
representation, like that in Pasley r. tend to bring the plaintiff into ridicule,
Freeman, ante, p. 1, in which the plain- hatred, or disgrace are actionable,
tiff must show that the defendant made though if spoken they may not have
the statement falsely and fraudulently, incurred liability without special dam-
and must prove special damages. Ma- age. lb.; Cooper v. Greeley, 1 Denio,
lachy r. Soper, ante, p. 42. 'and note. 847; Woodward u. Dowsing, 2 Man.
Cases of actions for words tending & R. 74; Parmiter v. Coupland, 6
to defeat an expected title are rare, and Mees. & W. 105 ; Bennett v. William-
seem to have been confined to words son, 4 Sandf. 65 ; Cos v. Lee, Law R.
impeaching the legitimacy of the birth 4 Ex. 284.
of an heir apparent. Starkie, Slander, The ground of this distinction is
164 (Sd Eng. ed.) . In Humphreys v. probably that already stated. Libel
Stanfield, Croke Car. 469, the words had been indictable from the earliest
were, •• Thou art a bastard." And it times; and when the courts obtained a
was held by all the court that the action criminal jurisdiction of the subject,
lay without proof of special damage, they drew after it a civil remedy in dam-
For, said the court, by reason of these ages. Libels were, however, at first
words the plaintiff may be in disgrace directed against the officers of govern-
with his father and uncle, and they, mentonly;1 and their publication was
conceiving a jealousy of him touching considered a very grave offence. How
the same, may disinherit him ; and the jurisdiction came in fact to be ex-
though they do not. yet the action lies tended, as libels came to be directed
for the damages which may ensue.
Jones. J., cited two other cases in
which the same decision had been
made, — Vaughan v. Ellis, Croke Jac.
213; Banister r. Banister, Jones, 3SS.
See also Turner v. Sterling, 2 Tentr.
26 : Matthew r. Crasse, 2 Bulstr. 89.
against private citizens, is not clear.
Libels were probably held to be indict-
able within the definition, taken liter-
ally, of the crime as sanctioned by
precedent, as is suggested, ante, p. 101.
Various reasons have since been sug-
gested to account for extending the
(g.) Where the Defamation is prop- jurisdiction, as that libels tend to a.
agated by Printing, Writing, Pictures,
or Ejfigy; that is, in the Case of Libel. —
The distinction between slander and
libel, as laid down in the principal
case. Thorlev r. Kerrv, is well estab-
breach of the peace, and that they indi-
cate great malice ; but it may be ques-
tioned if the real reason, or rather
motive, for thus enlarging the jurisdic-
tion of the courts was not a desire to
lished. Stone v. Cooper. 2 Denio, add to the king's revenue by the fines
299 ; Townshend, Slander, §§ 176, 177 imposed upon the offenders. Butwhat-
(2d ed.). And all written words which ever may have been the ground of the
1 In the Perev Relics, first published in 1765, will be found a libellous ballad of Richard of
Almaigne, written by one of the adherents to Simon de Montfort, Earl of Leicester. Bishop
Percv. in hi? preface to the ballad, say- thnt it affords a curious specimen of the fact that the
liberty assumed bv the good people of England of abusing their kings and princes at pleasure
wns of lonu standing. The ballad was written in the year 1265, seven years before the pas-
sage of the statute of Scandalum Magnatum ; and, in Barrington's Observations on the Stat-
utes, p. 71. it is said to be not improbable that this libel might have occasioned that act. In
later editions of Percy's Belies, however, it is said that there were other satirical poems of the
kind of the same age with that of the libel on Richard of Almaigne.
108
SLANDER AND LIBEL.
distinction between slander and libel,
it now probably rests, though firmly,
upon authority alone.
A few cases will serve to show the
difference between slander and libel, — .
cases of actions for written words which
could not be maintained for oral defa-
mation, without special damage. In
Steele v. Southwick, 9 Johns. 214, the
plaintiff, it appeared, had been a wit-
ness in a certain action against the
defendant; and the latter afterwards
printed the following, directed at the
plaintiff: " Our army swore terribly in
Flanders, said Uncle Toby ; and if
Toby was here now, he might say the
same of some modern swearers. The
man at the sign of the Bible [the plain-
tiff] is no slouch at swearing to an old
story." The language was held libellous.
Though the words may not have im-
ported perjury in the legal sense, the
court observed, they held up the plain-
tiff to contempt and ridicule, as being
so thoughtless or immoral as to be
regardless of the obligations of a wit-
ness. The definition of libel given by
Mr. Hamilton in People v. Croswell,
3 Johns. Cas. 354, was referred to as
drawn with precision, — "a censorious
or ridiculing writing, picture, or sign,
made with a mischievous and malicious
intent towards government, magis-
trates, or individuals."
In a later case in New York it was
held that the words, " Mr. Cooper [the
plaintiff] will have to bring his action
to trial somewhere. He will not like to
bring it in New York, for we are known
here, nor in Otsego, for he is known
there," published in the defendant's
newspaper, were libellous. There was
an innuendo averring the meaning of
the words to be that the plaintiff was
in bad repute in Otsego County; and
the imputation was held to come within
the definition of libel adopted in Steele v.
•Southwick, supra. Cooper v. Greeley,
1 Denio, 347.
In Lindley v. Horton, 27 Conn. 58,
the alleged libel charged the plaintiff
as a school-mistress in having made a
wilful, false statement to the school
visitors in a matter in which it was her
duty to give correct information, and
with general untruthfulness ; and it was
held actionable in both particulars. The
publication, it was said, had charged
the plaintiff with being a liar ; and this,
according to J' Anson v. Stuart, 1 T.
R. 748, was actionable. See also
Adams v. Lawson, 17 Gratt. 250, to
the same effect.
In Woodard v. Dowsing, 2 Man.
& R. 74, the action was for an impu-
tation upon the plaintiff, an overseer of
the poor, of oppressive conduct tow-
ards the paupers, in compelling them
to receive payment of their weekly par-
ish allowance in orders for flour upon a
particular tradesman; and the action
was sustained, though the charge was
not of a criminal offence.
Under the practice in England, how-
ever, since the case of Parmiter v.
Coupland, 6 Mees. & W. 105, it seems
to be a question of fact whether the
words alleged are libellous. In the
case referred to Mr. Baron Parke said
it had long been the practice of the
judges in civil as well as in criminal
cases to define a libel before the jury,
and leave to them the question whether
the language complained of came within
the definition. See also Fray v. Fray,
17 Com. B. n. s. 603; Cox v. Lee,
Law R. 4 Ex. 284, 290; Darby v.
Ouseley, 1 Hurl. & N. 1 ; Baylis v.
Lawrence, 3 Per. & D. 526; Chal-
mers v. Payne, post, p. 113.
This practice grew out of the stat-
ute of 32 Geo. 3, c. 60, called Fox's
ACTIONABLE WORDS.
109
Act, which, however, relates in terms
only to criminal cases of libel. And
its operation is sometimes prevented by
a demurrer to the declaration. In
Reeves v. Templar, 2 Jur. 137, decided
in 1S3S, a few years before Parmiter v.
Coupland, in which the same learned
baron gave an opinion, the court held
on demurrer that the language charged
was not libellous, Parke, B., inclining
to the contrary. See also Shattuck t\
Allen, 4 Gray, 540. If, however, the
decision were against the demurrer,
the ease would go to the jurv. Fray r.
Fray, supra ; Shattuck «. Allen, supra.
So. too, there are cases where verdicts
for the defendant are set aside upon
the ground that the matter was a libel,
though the jury found it was not. Par-
miter f. Coupland; Hearne c. Stowell,
4 Per. & D. 697.
The English practice, though ap-
proved in some American cases, as in
Shattuck i'. Allen, 4 Gray, 540, has
been criticised in others. Snyder r.
Andrews. 6 Barb. 43 ; Matthews v.
Beach, 5 Sandf. 2.56 ; Green v. Telfair,
20 Barb. 11; Hunt v. Bennett, 19 X. 1'.
173; Pittock v. O'STiell, 63 Penn. 2.53.
Referring to Parmiter v. Coupland,
the court in Snyder p. Andrews, supra,
say: "We cannot but remark . . .
how readily one anomaly in practice
leads to another. The judges refuse to
instruct the jury whether a publication,
clear and unambiguous in its terms,
and confessedly a libel, falls within the
definition of a libel, but leave it for
the jury to decide, who find for the
defendants ; and then the court set
aside the verdict as against law. If the
question was properly for the jury, and
fairly submitted, their decision should
on principle be conclusive. If the
court have the power to set aside the
verdict when for the defendant, because
the jury have found against law, it
seems to us the better remedy is to
pursue the old practice of declaring the
law before verdict, as in other civil
cases, and thus preserve consistency in
the system."
It is admitted, however, in Matthews
v. Beach, supra, that there are cases in
which the meaning and application of a
libel ought to be determined bv the
jury ; but this was said to be only where
the meaning and application depended
upon extrinsic facts, or where the terms
of the publication were so ambiguous
that they were as capable of being
understood in an innocent sense as in
one which would make them actionable.
But where no extrinsic facts were
necessary to be proved, and the words
of the publication were not suscepti-
ble of being understood in any other
than a libellous sense, the question was
purely one of law. Dilloway v. Tur-
rill, 26 Wend. 383, was explained on
the ground that the words there in
question were capable of being under-
stood in an innocent sense. See also
the language of Abinger, C. B., in
Reeves v. Temple, 2 Jur. 137, 138.
And this seems to be the principle upon
which the American cases generally
have proceeded.
At common law no immunity is con-
ferred upon the proprietors, publishers,
or editors, as such, of books, news-
papers, or other public prints. They
are responsible for libellous matter in
their columns, though the publication
may have been, made without their
knowledge or against their orders.
Huff r. Bennett, 4 Sandf. 120; Dunn
v. Hall, 1 Ind. 344; Andres v. Wells,
7 Johns. 260; Curtis v. Mussey, 6
Gray, 261; Sheckell v. Jackson, 10
Cush. 25 ; Davison v. Duncan, 7 El. &
B. 229.
110
SLANDER AND LIBEL.
In Dunn v. Hall, supra, the libel
complained of was published in the
absence of the defendant, the proprie-
tor. It was in evidence that just be-
fore his departure for a distant place,
he informed his foreman that the com-
munication complained of would be pre-
sented for publication, and instructed
him to have stricken out of it every
thing of an objectionable, personal, or
abusive character. The communication
was, however, published as written,
though the foreman objected to having
it done; and the defendant was held
liable. "It is plain," said the court,
"from the general context of the de-
cisions in cases of this kind that book-
sellers and publishers of newspapers
are considered as standing in situations
of peculiar responsibility, and [so] far
from relaxing in their favor the general
rule that all persons are bound so to
carry on their trade or business as not
to injure others, the courts of law have
felt the necessity of applying it in their
cases with the utmost stringency. . . .
The law, however, in holding publishers
of books and newspapers responsible
for slanderous attacks upon private
character, only carries out, with respect
to them, the same principles which are
applicable to injuries resulting from the
transaction of other kinds of business.
It is a general rule that a principal is lia-
ble for injuries resulting to others from
his neglect, or the neglect or incompe-
tency of his agent in the course of his
employment, as well as for those result-
ing from his own positive or inten-
tional acts. So it has been repeatedly
held in the case of booksellers that,
when a book or pamphlet containing
slanderous matter was sold from the
shop in the usual course of trade, the
proprietor was responsible, and that it
was no excuse that he was ignorant of
the contents, or that it was sold by a
servant when the master was absent at
a distance, and had no knowledge that
such a book had ever been in his shop
or was sold on his account."
The case of Rex v. Gutch, Moody
& M. 433, was particularly referred to,
where one of the defendants desired to
show that he was innocent of any share
in the criminal publication, as he was
living more than a hundred miles away
from the place of publication, and had
no share in the management of the
newspaper. And Lord Tenterden ruled
that this was no excuse, and that one
who derives a profit from, and who
furnishes the means for carrying on, the
concern, and entrusts the conduct of the
publication to a person whom he selects,
ought to be answerable even criminally,
though it cannot be shown that he was
individually concerned in the particular
publication. The court also referred to
Andres v. Wells, 7 Johns. 260, and Rex
v. Walter, 3 Esp. 21, and then said:
" According to the principles estab-
lished by these cases, and we have no
doubt of their correctness, the circum-
stances detailed in the present case
afford no excuse for the appellants.
If Mr. Dunn himself had been at home,
and suffered one of his journeymen
to insert the libellous article in his
paper, under his own eyes, he certainly
could not have excused himself by prov-
ing that he had given the journeyman
private directions not to do so ; and if
he chose to leave the management of
his business in the hands of a foreman,
he must be held equally responsible for
the neglect or incompetency of the lat-
ter in not obeying his instructions, and
in suffering such a thing to be done.
If publishers could avoid responsibility
by telling their foremen not to admit
any thing personal, and then absenting
ACTIONABLE WORDS.
Ill
themselves while a libel was inserted,
they could very easily make the news-
papers vehicles for the circulation of
the most atrocious slanders with per-
fect impunity."
There are, perhaps, some limitations
to this doctrine. In Smith v. Ashley,
11 Met. 867, the judge at nisi prius
had charged the jury that, although the
(newspaper) article complained of
might have been intended by the writer
to be libellous, and to apply to the
plaintiff, yet if the defendant, as pub-
lisher of the paper, did not know to
whom it applied, and had not heard the
facts and reports in relation to the
plaintiff; and if the article was pub-
lished as a mere fancy sketch, and the
defendant believed it to be so, he was
not liable. And this instruction was
sustained by the Supreme Court. The
case was decided upon the authority of
Dexter v. Spear, 4 Mason, 115. The
facts of that case are not fully stated.
The alleged libel, which is not set out,
was a charge of criminal intercourse
between the plaintiffs before marriage.
The defendant contended, 1, that the
publication was not a libel on any per-
son ; 2, that, if a libel, it did not refer
to the wife; 3, that, if applied to the
wife, it was not a malicious publication,
since the defendant was not the author
of it, and had no acquaintance with the
plaintiffs. The court told the jury that
one of the questions for them was,
whether the publication was made by
the defendant with a knowledge that it
was libellous. And they were also in-
structed that the defendant could not
protect himself from responsibility by
pleading his ignorance of the real par-
ties attacked if he knew the publication
to be libellous.
The effect of these cases seems to
be that if the communication were such
that the defendant, as a man of common
intelligence, could not know that a
libel was intended, and did not, in fact,
know it, he would not be liable. And
this is perhaps a sound limitation of the
liability in such cases ; for if the pub-
lishers of books and newspapers were
required to know the real meaning of
every apparently fanciful or humorous
sentence printed, which might be un-
derstood to be malicious by a few, there
would be an end of some valuable litera-
ture.
In Andres v. AVells, 7 Johns. 260, it
was held that where the defendant had
taken an assignment of a printing-press
to secure the payment of a debt, the
assignor retaining the sole possession
and the entire control and management
of the same, he had not such an owner-
ship as would render him liable to an
action as proprietor.
The foregoing principles are equally
applicable to receivers in chancery of
newspaper establishments ; they be-
come personally liable for any improper
publication made during their manage-
ment. Marten v . Van Schaick, 4 Paige,
479, 480, per Walworth, Ch.
Booksellers also are said to be liable
criminally for defamatory matter con-
tained in publications sold by them;
and, if that be true, it would seem, a
fortiori, that they would be liable in
civil actions. See Dunn t\ Hall, supi-a ;
Townshend, Slander, § 124 ; Starkie,
Slander, pp. 432-434 (3d Eng. ed.). In
the work last cited it is said that the
wilful and intentional delivery of a
libel, byway of sale or otherwise, as by
a bookseller or hawker, is a sufficient
publication, though the party so pub-
lishing did not know the contents, p.
432. And again, that an allegation
that the defendant published the libel is
satisfied by proof that it was published
112
SLANDER AND LIBEL.
by his agent, if an authority can be
proved ; and although an authority to
commit an unlawful act will not in
general be presumed, yet it is otherwise
in the case of booksellers and others,
where the book or libel is purchased
from an agent in the usual course of
trade, p. 433. The author refers to
Nutt's Case, Fitzg. 47, 2 Geo. 2, where
the defendant was tried on an informa-
tion for publishing a treasonable libel.
In that case it appeared in evidence that
the defendant kept a pamphlet shop,
and that the libellous publication was
sold in the shop by the defendant's ser-
vant, for the defendant's use and ac-
count, in her absence, and that she did
not know the contents of it, or of its
presence in the shop. And yet the
court held the defendant guilty of pub-
lishing the libel. The case of Hex v.
Almon, 5 Burr. 2689, was also referred
to as containing an extensive discussion
of the liability of booksellers. The
court there expressed the opinion that
the sale of a libel in a bookseller's shop
was prima facie but not conclusive
evidence of a publication. ' ' It does
not, indeed, appear," says Mr. Starkie,
' " what would have been deemed by the
court to be sufficient to rebut such
prima facie evidence, and to excuse the
owner ; but it seems to be clear, from
the general context of the decisions on
this subject, that a bookseller is con-
sidered as standing in a situation of
peculiar responsibility, and that he is
liable criminally as well as civilly for
libels sold in his shop in the usual
course of business, though without his
particular knowledge."
Whether this broad doctrine, at least
in its criminal aspect, would be accepted
in America may be questioned. And
it is worthy of remark that Mr. Town-
shend cites no American authorities
either as to the supposed criminal or civil
liability of booksellers. Even in Eng-
land it seems that the doctrine has not
always been accepted in its full extent.
See Chubb v. Flanaghan, 6 Car. & P.
431, where it was held that, if the pub-
lication consisted merely in selling a few
copies of a periodical in which the libel
was contained among the articles, it was
a question for the jury whether the de-
fendant knew what he was selling.
(h.) Truth of the Charge. — The truth
of the words complained of, whether
they be spoken or written, is always a de-
fence to a civil action. Baum v. Clause,
5 Hill, 199 ; Foss v. Hildreth, 10 Allen,
76; King v. Root, 4 Wend. 113;
J'Anson v. Stuart, 1 T. R. 748; Al-
corn v. Hooker, 7 Blackf. 58 ; Golder-
man v. Stearns, 7 Gray, 181. This
proceeds upon the ground that such
evidence shows that the charge is not
defamatory. A person has no right to
a false character ; and his real character
suffers no damage from the truth.
In the first case cited it was held, in
an action for slander in accusing the
plaintiff of having stolen an axe several
years before, that the defendant could
justify by proving the truth of the
charge, though the plaintiff, after convic-
tion of the offence, had been pardoned.
It appeared, too, that the plaintiff had
so far retrieved his character as to have
become an inspector of elections ; and
the court, therefore, reached their con-
clusion with regret. "But our laws,"
it was said, " allow a man to speak the
truth, although it be done maliciously."
As to the effect of a pardon, Cudding-
ton v. Wilkins, Hob. 67, 81, was dis-
tinguished and criticised. See Boston
v. Tatham, ante, p. 102.
But under the common-law pleading
the truth of the charge must be specially
pleaded, and cannot be given in evi-:
CHALMERS V. PAYNE.
113
dence under the general issue, either in
bar or in mitigation of damages. J'An-
son v. Stuart, 1 T. R. 748 ; Smith r.
Smith, 8 Ired. 29 ; Van Ankin r. West-
fall, U Johns. 238; Townshend, Slan-
der, p. 327. note 4 (2d ed.).
It is equally well settled that, when
the communication is not privileged,
belief in the truth of the language used
is not a defence to the action. Camp-
bell r. Spottiswoode, 3 Best & S. 769;
Darby c. Ouseley, 1 Hurl. & X. 1;
King r. Root, 4 Wend. 113; Sans <•.
Joerris, 14 Wis. 663 ; Holt v. Parsons,
23 Texas, 9 ; Moore p. Stevenson, 27
Conn. 14; Smart <.. Blanchard, 42
X. H. 137.
And there is no exception in favor
of the editors or publishers of news-
papers ; belief in the truth of scandal
published by them is as unavailing as
if it had been uttered in any other way.
Smart i. Blanchard, 42 X. H. 137 ;
Campbell r. Spottiswoode, supra.
Son - actionable Words. Special
Damage. — The subject of defamatory
words not actionable per se may be dis-
missed with the statement that all such
words become actionable upon proof of
special damage. Townshend, Slander,
§ 197 (2d ed.), and eases cited. And
by special damage is meant damage
which is the natural and usual result of
the injury ; as the loss of consortium of
the husband upon charging the wife with
unchastity • Lynch v. Knight, 9 H. L. <
Cas. 577 ; or, in the case of an unmarried
female, the loss of the hospitality of
friends: Moore v. Meagher, 1 Taunt.
39 ; Williams v. Hill, 19 Wend. 305. See
Beach v. Ranney, 2 Hill, 309; Roberts
v. Roberts, 33 Law J. Q. B. 250. So of
the loss of a marriage. Davis v. Gard-
ner, 4 Coke, 16; Matthew v. Crass,
Croke Jac. 323.
Mere mental or physical suffering,
and expenses of recovery, are not
special damage. Allsop v. Allsop, 5
Hurl. & N. 534; Lynch r. Knight, 9
H. L. Cas. 577; Wilson v. Goit, 17
X. Y. 442 ; Terwilliger v. Wands, ib.
54, overruling Bradt v. Towsley, 13
Wend. 253, and Fuller ». Fenner, 16
Barb. 333.
Chalmers v. Payne et al.
(2 Cromp., M. & R. 156 ; s. c. 5 Tyrwh. 766. Exchequer, England, Easter Term, 1835.)
Report of Trial injurious on its face. Malice in Laic. In an action for a libel, on not
guilty pleaded it appeared that the libel (which was contained in a newspaper) pur-
ported to be the account of the trial of a former action, brought by the same plaintiff
for a libel against third parties ; and, after stating the libel in the original action, and
the facts proved by the then defendants, and the summing up of the judge, stated
that the jury found a verdict for the plaintiff, with 30/. damages. No evidence was
given as to any such trial having, in fact, taken place, or whether the report was
fair or not. The judge left it to the jury to say whether the report, although it con-
tained some allegations injurious to the plaintiff, was, if taken altogether with the
statement of the verdict being in his favor, injurious to the plaintiff on the face of
it; and the jury having found for the defendant, the court refused to grant a rule
for a new trial.
8
114 SLANDER AND LIBEL.
This was an action against the defendants for a libel, published
by them in the " Morning Post" newspaper.
The libel for which this action was brought professed to con-
tain the account of the trial of an action, brought by the present
plaintiff against the proprietors of the " John Bull" for a libel.
After stating what the libel was, and the facts proved at the
trial by the defendants in the original action, under a justifica-
tion, together with the summing up of the Chief Justice in that
action, it stated also that the jury found a verdict for the plain-
tiff, with 801. damages. The defendants in the present action
■ pleaded the general issue.
At the trial before Lord Abinger, C. B., at the Middlesex
sittings after last Hilary Term, the newspaper containing the
report was read in evidence, but no evidence was adduced to
show whether the trial had taken place or not, or whether the
report was or was not a fair and impartial report of the trial.
The learned Chief Baron left it to the jury to say whether the
statement was made in such a manner as to show that it had
been published with a malicious motive, or whether it was injuri-
ous to the plaintiff's character; and if they thought it was, then
to find a verdict for the plaintiff, but if otherwise, for the defend-
dants. The jury found a verdict for the defendants.
Stammers now moved for a new trial, on the ground of misdi-
rection, and of the verdict being against the evidence. It ought
not to have been left to the jury to consider whether this state-
ment was published from malicious motives or not, it not being
in the nature of a privileged communication, and there being no
justification on the record that was not in issue. [Lord Abin-
ger, C. B. There was no evidence that it was a mere pretended
report of a fictitious trial. I told the jury that if they thought
the statement of the facts proved at the trial were misstated, so
as to be injurious to the plaintiff's character, or were published
maliciously, then they ought to find for the plaintiff.] It is sub-
mitted that the question of malice was not a question which
ought to have been left to the jury, but was a necessary infer-
ence of law from the libel itself. Bromage v. Prosser, 4 B. & C.
247. Besides, there was no evidence to show that there had
been any such trial as that reported. [Lord Abinger, C. B.
I put it to the jury, that if they thought that the defendants had
invented it, and that there had in fact been no trial at all, then
CHALMERS V. PAYNE. 115
they must find for the plaintiffs ; but there was no evidence that
it was so.] If there had been such a trial, the defendants were
bound to plead it in justification, and that the report was a correct
account of it ; but it not having been pleaded, must be taken not to
have existed, and the jury ought to have been directed to fiud for
the plaintiff, the publication of the libel having been proved.
Lord Abinger, C. B. I am of opinion that there is no ground
for a rule in this case. The question is, whether the whole pub-
lication taken together is injurious to the character of the plain-
tiff. I apprehend that where a publication is injurious on the
face of it. it is a wrong from which malice will be inferred, and
which makes it actionable whether any injury was intended or
not. That is a principle which is not confined to libel only, but
is a general principle applicable to other cases. A party is not
justified in committing an action injurious to another because the
party does not mean to do any injury. [The learned Chief Baron
here referred to the case of Littledale v. The Earl of Lonsdale.
See "2 H. Bl. 269.] But there may be cases where there is actual
and wilful malice in addition to the injury itself; and that aggra-
vates the wrong, and the jury in such a case ought to award
greater damages. The first question, however, for them to
determine in case of libel is, whether the publication is injurious
to the character of the plaintiff. The statement may be made in
such a manner as to be injurious to the plaintiff's character, or
it may not be calculated to injure him. In criminal cases, in
modern cases, it is expressly provided that the jury shall say
whether the publication is a libel or not. I think most properly
so. Who can tell so well what is the effect of an alleged libel
on a man's character as a jury taken impartially from persons in
his own station and rank of life ? In this case I left it to the jury
to say whether the report, though it might contain some allega-
tions prejudicial to the plaintiff, yet if taken altogether with the
verdict in his favor, was on the face of it injurious to the plain-
tiff ; and if they thought it was not, I directed them to find for
the defendants. If. on the contrary, they thought that the
statement of the verdict being in his favor was no palliation, and
that it was on the whole injurious to his character, to fiud a ver-
dict for him. The jury took the report out with them, and found
it was not.
Bolland, B. In the case of Dicas v. Lawson, which occurred
116 SLANDER AND LIBEL.
here in the last term, this court came to a similar decision to the
present.
Alderson, B. In Dicas v. Lawson I directed the jury to look
to the whole of the publication to see Avhether it was calculated
to injure the plaintiff's character. The publication there com-
plained of was the report of a trial, in which there were strong
observations on the character of the plaintiff, but in which the
plaintiff had recovered a verdict for 30Z. It was said that the re-
port was libellous, because it set forth the charge made on the
trial againt the plaintiff. I left to the jury to say whether, taking
the whole of the publication altogether, they thought it likely to
depreciate his character. The jury thought not ; and, on an
application for a new trial, this court approved of my direction.
I quite agree that where slanderous words are used, which are
actionable in themselves, and no justifiable cause is shown for
uttering them, the law will presume malice from the language
itself. But the question here is, whether the matter be slan-
derous or not, which is a question for the jury, who are to take
the whole together, and say whether the result of the whole is
calculated to injure the plaintiff's character. In one part of this
publication something disreputable to the plaintiff is stated, but
that is removed by the conclusion ; the bane and antidote must
be taken together. Then it is said that there is no evidence of
there having been such a trial in fact. But we cannot suppose
that was a mere invention ; we cannot assume that newspapers
publish mere imaginary accounts of trials. The question being
left to the jury, whether 'there was any thing in the mode of
publication which indicated malice, was an additional advantage
to the plaintiff. Rule refused.1
Malice in Law. — The machinery by learned writer, "is it not as simple to
which an action of slander or libel is say, the speaking defamatory matter
worked out, in the fiction of malice, without legal excuse is actionable as it
has been shown to be cumbersome and is to say, defamatory matter to be
useless. To constitute slander or actionable, must be malicious, but the
libel, the law says that malice implied law implies malice? What need is
or express is essential. The former is there of bringing into the law of slan-
called malice in law ; and this is said to der the cumbrous machinery of malice
consist in speaking defamatory words for the sole purpose of necessitating
without legal excuse. " Why," says a the construction of other machinery —
l As to the English practice of leaving the construction of the language to the jury, see
ante, p. 108. The principal case is here given to illustrate simply the presumption of malice.
MALICE IN LAW.
117
the machinery of legal implication — to
take it out again ? " Mr. N. St. John
Green, 6 Am. Law Rev. 597.
The same writer proceeds to show
how the fiction of implied malice prob-
ably arose. Defamation appears at
first to have been a spiritual cause,
cognizable solely in the ecclesiastical
courts. " Not only defamatory matter
which is now actionable at law was
actionable in the spiritual court, but
that court had jurisdiction over all
injurious language, whether verbal or
written. Indeed, it is hard to see how
courts of law could entertain suits for
defamation ; for such suits could not
(as far as we at the present time have
the means of judging) be brought
within the form of any then known
action.1'
By the statute of 13 Edw. 1, called
the Statute of Westminster the Second,
empowering the chancery clerks to
form new writs, a process was given by
which delicts similar to trespasses not
committed by force, such as slander and
libel, could be brought before the com-
mon-law courts : and this seems to have
laid the beginnings of their jurisdic-
tion.
Now the judges of the spiritual
courts, according to their education,
followed the Roman law; by which to
constitute an injury an animus, or in-
tention, to do wrong was necessary.
Accordingly, in the canon law a bad
intent, called malitia, was necessary to
constitute defamation. "The defend-
ant was punished pro salute anim.cz;
and the matter was not looked at in a
legal, but in a moral point of view, to
see if the speaking of the words was a
sin. When courts of law took juris-
diction of defamation, they seem to
have applied to this animus of the
Roman or malitia of the canon law
the elaborate scholastic structure of
malice which was being framed in the
common law [in homicide] ; and the
doctrine of implied malice was intro-
duced into the law of slander." See
the article above referred to.
Taking now the cases as we find
them, malice in the law of slander and
libel is of two kinds, — malice in law and
malice in fact. The first is presump-
tive ; the second is actual. Malice is,
indeed, presumed in all cases of legal
slander and libel ; but the presumption
may often be rebutted ; and then the
plaintiff can recover only by proof of
actual malice. The presumption in
most cases is only prima facie; and
the general rule may be thus stated :
A false and defamatory statement of
another, made in the presence of
third persons, is presumed, prima facie,
to have been made of malice, and
justifies a verdict for the plaintiff.
Brown i\ Croome, 2 Stark. 297; Cooke
p. Wildes, 5 El. & B. 335, Erie,
J. ; Hooper v. Truscott, 2 Bing. N. C.
457; White r. Nicholls, 3 How. 266;
Hatch v. Potter, 2 Oilman, 725; Long
v. Eakle, 4 Md. 454; McKee v. In-
galls, 4 Scam. 30; King v. Root, 4
Wend. 113; Sansu. Joerris, 14 Wis. 663.
If the words were not uttered upon
a justifiable occasion, or if they were
not true, the defendant will not be
allowed to deny any inference of malice
which they may of themselves clearly
raise. In other words, the defendant,
having no other justification, will not be
permitted to deny that there was mal-
ice in his mind when the language used
is defamatory. This is doubtlrss what
Mr. Justice Bayley means when he
says, "In an ordinary action for a
libel or for words, though evidence of
malice may be given to increase the
damages, it never is considered as es-
118
SLANDER AND LIBEL.
sential; nor is there any instance of a
verdict for a defendant on the ground
of want of malice." Bromage v. Pros-
ser, post.
Upon this point a learned writer
says: "It seems to be clear, as well
upon legal principles as on those of
morality and policy, that where the
wilful [voluntary?] act of publishing
defamatory matter derives no excuse
or qualification from collateral circum-
stances, none can arise from a consid-
eration that the author of the mischief
was not actuated by any deliberate and
malicious intention to injure beyond
that which is necessarily to be inferred
from the very act itself. For if a man
wilfully does an act likely to occasion
mischief to another, and to subject him
to disgrace, obloquy, and temporal
damage, he must, in point of law as
well as morals, be presumed to have con-
templated and intended the evil conse-
quences which were likely to ensue."
Starkie, Slander, 300 (3d Eng. ed.).
The point arose in Hooper v. Trus-
cott, 2 Bing. N. C. 457 ; s. c. 2 Scott,
672. There the defendant, having some
cause for suspicion, went to the plain-
tiff's relatives, and charged the plaintiff
with theft. And though it appeared
that the defendant's object in so doing
was to induce the plaintiff's friends to
compromise the matter, it was held that
the existence of malice must be implied,
and could not be left as a question for
the jury.
In Hatch v. Potter, 2 Gilman, 725,
an ordinary action for slander, in im-
puting fornication to the plaintiff's
wife, counsel for the defence asked a
witness if the defendant spoke the
words in jest or in earnest ; and the
plaintiff then asked, " Did the manner
of the defendant in speaking the words
indicate a desire to be believed or
not ? " The court, on appeal, held
the questions to be improper. " In
point of law," it was remarked, " it is
immaterial whether a party who slan-
ders his neighbor designs or expects to
be believed or not. He cannot be per-
mitted, either carelessly or wantonly, to
sport with the character of another, and
then excuse himself upon the ground
that he was not really in earnest, and
did not intend that his auditors should
credit his unfounded aspersions."
In an action in Maryland, for im-
puting the larceny of a hog to the
plaintiff, the court below had instructed
the jury that if they believed that the
defendant spoke the words in jest, and
without malice, they might find for him ;
which they did. And the instruction
was held erroneous, though there was no
evidence that the words were spoken in
jest. It was manifest to the court that
the jury in finding for the defendant,
in such a ease, had come to the conclu-
sion either that the defendant was jest-
ing, or (which was not pretended) that
he had not used the language imputed
to him. Long v. Eakle, 4 Sid. 454.
But it cannot be true in all cases
that the defendant cannot say that the
words were jestingly uttered. That
can only be the case where the words
are clearly defamatory, and there is
no justification in the attending cir-
cumstances. For instance, if one of
my companions, in sport, pick my
pocket, and, on discovering the trick,
I apply, jestingly, never so severe and
(had the occasion been different) op-
probious epithets, and he, taking of-
fence, bring an action against me,
alleging the words, there is no doubt
but I can plead the circumstances, and
show how the words were understood,
in bar of the action.
The case of McKee v. Ingalls, 4
MALICE IN LAW.
119
Seam. SO. is in point. There, the
words were in themselves excessively
defamatory ; and the court below had
refused to charge the jury that, if
they were spoken in wantonness or
jest, it was no excuse ; and this refusal
was sustained. •' We are unanimously
of opinion," say the court, " that mer-
riment or jesting, without malice, is
not actionable. It would be calculated
to shake the well-settled doctrine that
malice is the gist of this offence." The
language of Hawkins on this point was
quoted and doubted: "Also it hath
been holden that he who repeats part
of a libel in merriment, without malice,
and with no purpose of defamation, is
no way punishable. But it seemeth
that the reasonableness of this opinion
may be justly questioned ; for jests of
this kind are not to be endured, and
the injury to the party grieved is no
way lessened by the merriment of him
who makes so light of it." Pleas of
Crown, 356. c 73, § 13.
It is not to be supposed, however,
that the doubt of Hawkins is to be
taken sweepingly of all eases ; for
where the circumstances show that the
words were called out by sport, and
were plainly meant in joke, and so
understood, it is the common sense of
the matter to say that they should be
taken accordingly. It is enough that
they are to be considered prima facie
as malicious : to hold that they are con-
clusively so would often be oppres-
sively false.
It is to be observed also that the
court of Illinois did not say that it was
always a good defence that the words
were uttered in jest. "If such merri-
ment and jesting be malicious,'''' they
add immediately after their above-
quoted statement, " and wilh a purpose
of defamation, it would certainly be
actionable." And before this, in reply
to the refusal to charge as mentioned,
they say that for want of the whole
evidence they were unable to say
whether there was any thing to support
the instruction asked ; and that courts
could not be required to charge mere
abstract propositions of law upon points
concerning which there was no evi-
dence.
There is an instructive case of Don-
oghue v. Hayes, Hayes (Irish), 265, on
this point. That was an action of
slander ; the words spoken of the plain-
tiff being, "He was detected in taking
dead bodies out of the church-yard.
He was in confinement, and fined twenty
pounds for stealing and sending dead
bodies to England." The judge at
nisi prius told the jury that if they
believed the words to have been spoken
jocularly, they should find for the de-
fendant ; but if they conceived that they
had been spoken maliciously, that is,
with intent to inflict injury, they should
find for the plaintiff. A verdict having
been given for the defendant, the same
was set aside for misdirection.
Joy, C. B., said: " The principle is
clear that a person shall not be allowed
to murder another's reputation in jest.
But if words be so spoken that it is
obvious to every by-stander that only a
jest is meant, no injury is done, and
consequently no action would lie. If
these words were used as conveying a
serious imputation, I know of none
which would injure a man more. Xo
character could be more disgraceful
than that of u body-snatcher. I think
that the case has not been properly
presented to the jury." Smith, B. "If
a man in jest conveys a serious impu-
tation, he jests at his peril. And in
this case we must take it as if a serious
imputation had been intended, no evi-
120
SLANDER AND LIBEL.
dence to the contrary being reported to
us." And he added, that if the jury had
understood the judge to mean by the
term "jocularly " the use of the words
in a way not calculated to do mischief,
the charge would have been correct;
but it was probable that the jury did
not so understand him. "The whole
question is," said Foster, B., " whether
the jocularity was in the mind of the
defendant alone, or was shared by the
by-standers."
The effect of the decision was that
the jury may have . been misled by the
term "jocularly," used as it had been,
without explanation, and that they
might have excused the defendant upon
evidence that he merely was merry.
This might be true while he was stab-
bing the plaintiff's character. The
question should have been whether he
was thus injuring the plaintiff; and
this would be answered by the effect
and impression produced upon the by-
standers. If they understood him,
however merry he might be, as imput-
ing a crime to the plaintiff, he was
liable.
In Hankinson v. Bilby, 16 Mees. &
W. 442, the defendant, it appeared,
had charged the plaintiff with being " a
thief, and a bloody thief," and that he
had "robbed Mr. Lake of SOL, and
would have robbed him of more," if
he had not been afraid ; and the learned
baron told the jury that it was imma-
terial whether the defendant intended
to convey a charge of felony against
the plaintiff. The question was, whether
the by-standers would so understand the
charge. And this direction was sus-
tained. "Words uttered," said the
court, " must be construed in the sense
which hearers of common and reason-
able understanding would ascribe to
them, even though particular individ-
uals, better informed on the matter
alluded to, might form a different judg-
ment on the subject." See Perry ».
Man, 1 R. I. 263 ; Smart v. Blanchard,
42 N. H. 137 ; Leonard v. Allen, 11
Cush. 241 ; Sasser v. Rouse, 13 Ired.
142; Hawks v. Patton, 18 Ga. 52;
Phillips v. Barber, 7 Wend. 439 ; Smith
v. Miles, 15 Vt. 245; Barton v. Holmes,
16 Iowa, 252 ; Smawley v. Stark, 9
Ind. 386 ; Nelson ». Borchenius, 52 111.
236; Curtis v. Mussey, 6 Gray, 261.
The last-named case was an action for
a libel; and the court held that the
want of actual intent to vilify or libel
the plaintiff rendered the publication
no less a libel, if' such was the natural
effect of the words published. See
also O'Brien v. Clement, 15 Mees. &
W. 437 ; Hankinson v. Bilby, 16 Mees.
& W. 442. That words are to be taken
in their natural sense, and not neces-
sarily miliorisensu, see ante, p. 101 . But
see Snell v. Snow, 13 Met. 278 ; Gib-
son v. Williams, 4 Wend. 320 ; White
v. Sayward, 33 Maine, 322, as to show-
ing the sense in which the words were
understood.
The conclusion from these cases is,
that if there be no justification in the
attending circumstances under which the
words were uttered, the defendant will
not be permitted to give evidence that
in point of fact he uttered them without
malice towards the plaintiff. He must
find his defence in the circumstances
and not in the state of his mind.
That the defendant's belief in the
truth of the words is no defence, see
Campbell v. Spottiswoode, 3 Best & S.
769 ; King ,;. Root, 4 Wend. 113.
In those cases (to be noticed here-
after) where the defence offered is
an absolute one, and not merely
prima facie, as in absolutely privi-
leged communications, it is of course
HASTINGS V. LUSK. 121
immaterial that the language was ma- In the following oases and notes the
liciously used. Townshend, Slander, manner in which the presumption of
§ 91 (2d ed.); note on Malice in Fact, malice may be rebutted will be con-
P°st- sidered.
Hastings v. Lusk.
(22 Wend. 410. Court of Errors, New Tork, December, 1S39.)
Privilege. Trials. Language of Counsel. There are two classes of privileged com-
munications, and the privileges of counsel sometimes fall within the one class and
sometimes within the other. In the one class the law protects the defendant so
far as not to impute malice to him from the mere fact of having spoken words
of the plaintiff which are in themselves actionable, though he may not be able to
prove the truth of his allegations. But the plaintiff will be able to maintain his
action for slander if he can satisfy the jury by other proof that there was actual
malice in the defendant, and that he uttered the words for the mere purpose of
defaming the plaintiff. In the other class of cases, the privilege is an absolute
shield to the defendant.
To the second class belongs the case of counsel in advocating the causes of their cli-
ents or their own causes, where they have confined themselves to what was rele-
vant and pertinent to the question before the court.
Action for slander, charging the plaintiff Lusk with perjury in
an examination before a magistrate, 'where the defendant Hast-
ings had been charged with threatening to shoot Lusk. The
defence, inter alia, was that the words were spoken by the
defendant while conducting his own defence in said case, and
that they were relevant and pertinent to the examination. There
was also a plea of no malice. Replication traversing the pleas ;
issues thereon ; and verdict for the plaintiff, with nominal dam-
ages. The jury found specially that the words were spoken
falsely and maliciously, and that they were not relevant, and
were not uttered in the course of his defence before the magis-
trate, but elsewhere.
Motion in arrest of judgment overruled ; whereupon defendant
took a writ of error from the Supreme Court.
M. J. BidicelL for plaintiff in error. W. C. Xoi/es, contra.
The Chancellor. The principle involved in this "case is of
great importance to the community, inasmuch as it involves the
rights and privileges of counsel and of parties in the investiga-
122 SLANDER AND LIBEL.
tion of suits and other proceedings before our judicial tribunals ;
and as I believe it is the first cause of the kind which has been
brought before this court of dernier ressort, and has been very
fully and most ably argued here by the counsel upon both sides,
I have considered it my duty to examine the law on the subject
more fully than would be necessary or proper in an ordinary case
of mere verbal slander ; for it is not only right and proper that
parties and their counsel should know what their privileges are,
but also that the law should be deliberately and correctly settled.
In applying the principles of law to the case under consideration,
we must, therefore, be careful on the one hand that we do not
restrict counsel within such narrow limits that they will not dare
to openly and fearlessly discharge their whole duty to their
clients, or to themselves when they manage their own cases;- and,
on the other hand, we must not furnish them with the shield of
Zeus, and thereby enable them with impunity to destroy the
characters of whomsoever they please.
There are two classes of privileged communications recognized
in the law in reference to actions of slander, and the privileges
of counsel may sometimes fall within the one class and some-
times within the other. In one class of cases the law protects
the defendant so far as not to impute malice to him from the
mere fact of his having spoken words of the plaintiff which are
in themselves actionable, though he may not be able to prove the
truth of his allegations. But the plaintiff will be able to sustain
his action for slander, if he can satisfy the jury, by other proof,
that there was actual malice on the part of the defendant, and
that he uttered the words for the mere purpose of defaming the
plaintiff. In the other class of cases the privilege is an effectual
shield to the defendant ; so that no action of slander can be sus-
tained against him, whatever his motive may have oeen in using
slanderous words.
One of the earliest cases of the first class is Parson Prit's Case,
reported by Rolle. 1 Roll. Abr. 87, pi. 5. Although the report
of this case is very short, it will be perfectly understood by a
reference to Fox's " Martyrology," where the author, in giving an
account of the severe punishments inflicted by the vengeance of
Heaven upon some of the persecutors of the Protestants during
the reign of the Bloody Mary, states that Grimwood or Green-
wood, as he is called by Rolle, one of the perjured witnesses who
HASTINGS V. LDSK. 123
was hired to swear away the life of John Cooper, an innocent
person, who was convicted and hanged, was soon after destroyed
by the terrible judgment of God, being suddenly seized while in
perfect health, so violently that his bowel gushed out. From
the report it appeal's that the defendant, Parson Prit, having
been recently settled in the parish, and not knowing all his
parishioners, in preaching against the heinous sin of perjury cited
this case from the " Book of Martyrs ; " and no doubt commented
severely upon Greenwood, and upon "White, his forsworn com-
panion, who by their perjury had caused an innocent man to be
drawn in quarters and his wife and children to be left desolate.
It turned our, however, that Greenwood was not dead, and that,
being a resident of that parish, he was present in the church and
heard the sermon, and afterwards brought a suit against the par-
son for charging: him with perjury. But the court held that it
was a privileged communication, and the circumstances under
which the words were spoken showed there was no actual malice
towards the plaintiff. See also Cro. Jac. 91. This case has
been followed by a numerous class depending upon the same
principle, in which the speaking of the words is held to be a
privileged communication, the occasion of the speaking being
such, that prima facie there could have been no malicious intent
to defame the person of whom they were spoken, and the inter-
ests of society requiring that the defendant should be permitted
to speak freely in the situation in which he is placed, provided
he confine himself within the bounds of what he believes to be
the truth. In cases of this kind the defendant may avail him-
self of his privilege under the plea of the general issue, even
under the new rules of pleading adopted in England. This was
so decided in the recent case of Lillie v. Price, 2 Harr. & Woll. R.
3S1. in the Court of King's Bench : where Lord Denman, C. J.,
after taking time to consult with the judges, and referring to the
new rule which declares the defence under the general issue in
slander shall be the same as before, says : •• We are all of opinion
that this defence does not require to be pleaded specially. It
goes to the very root of the action. It shows the party not guilty
of malice, and consequently it is open to him without having
pleaded it." The presumption in these cases, that there was no
malice, is not rebutted by the plaintiff's merely showing that the
charge against him was untrue in point of fact ; it must be fur-
124 SLANDER AND LIBEL.
ther shown that the defendant either knew or had reason to
believe it was untrue at the time of the speaking of the words
complained of. Kine v. Sewell, 1 Horn & Hurl. 83 ; 3 Mees. &
Wels. 297, s. c. Proving that the defendant knew the charge
to be false would unquestionably be evidence of express malice,
and would destroy the defence in this class of cases.
As the plaintiff has a right to prove express malice in such
cases, to sustain his action, notwithstanding the privilege, it fol-
lows, of course, that if the defendant attempt to set up his privi-
lege as a defence by a special plea, he must not only plead the
fact which rendered it a privileged communication, but he must
deny the allegation in the declaration, that the words were mali-
ciously spoken, to enable the plaintiff to go to the jury upon the
question of actual malice, if he thinks proper to do so. Smith v.
Thomas, 1 Hodges' R. 353 ; 2 Bing. R. n. s. 372, s. c. It fol-
lows, of course, upon a motion in arrest of judgment, if the
charge of malice was denied in the plea and issue taken thereon,
or if the general issue only was pleaded, so that the plaintiff
would be bound to prove express malice to entitle him to a ver-
dict in this class of cases, the court must presume it was proved
upon the trial ; although it should appear from the declaration
or other pleadings that it was prima facie a privileged commu-
nication.
The second class of privileges embraces words spoken by mem-
bers of Parliament or of Congress or of the State legislature, in
the discharge of their official duties in the House, for which no
action of slander will lie, however false and malicious may be
the charge against the private reputation of an individual. To
this class, also, belong complaints made to grand juries and mag-
istrates, charging persons with crimes, for which no action of
slander will lie, although express malice as well as the absolute
falsity of the charge can be established by proof. But the law
has provided a different remedy in cases of that kind, where, in
addition to what has before been stated, it can be proved that
the party who made the complaint had no probable cause for
believing that the charge was true. Upon a full consideration
of all the authorities on the subject, I think that the privilege of
counsel in advocating the causes of their clients, and of parties
who are conducting their own causes, belongs to the same class
where they have confined themselves to what was relevant and
HASTINGS V. LUSK. 125
pertinent to the question before the court, and that the motives
with which they have spoken what was relevant and pertinent
to the cause they were advocating cannot be questioned in an
action of slander. Thus far it appears to be necessary to extend
the privilege for the protection of the rights of the parties : as
those rights might sometimes be jeoparded if counsel were
restrained from commenting freely upon the characters of wit-
nesses, and the conduct of parties, when such comments were
relevant, for fear of being harassed with slander suits, and
attempts to prove they were actuated by malicious motives in
the discharge of their duty. Such I understand also to be the
conclusion at which the Court of King's Bench arrived in the
case of the present Lord Chief Baron of the Court of Exchequer.
Hodgson v. Scarlett. 1 Barn. & Aid. 232; Holt's N. P. 621.
-Although Mr. Holt has attempted to give a statement of what
occurred in banc, as well as a report of the case at nisi prius, to
understand the decision correctly it is necessary to examine the
case in Barnewall & Alderson, not only as to the final opinion of
the judges, hut also as to what occurred in the course of the
argument. There was no question as to the fact that the plain-
tiff was nonsuited upon the opening, by Baron Wood, who held
the assizes, without permitting him to go to the jury. He, there-
fore, had no opportunity to prove express malice, or to have it
inferred from the manner in which the charge Mas made. His
counsel upon the argument insisted that the learned judge had
stopped the cause too soon, without hearing the evidence. To
this it was answered, that Baron Wood had reported that the
counsel at the assizes admitted that the alleged slanderous words
were used by the defendant as observations in a cause, and were
pertinent to the matter in issue. But as there appeared to have
been a misapprehension on this point, the court heard a state-
ment of the proceedings in the original suit from the notes of
Mr. Justice Bailey, who tried the cause. The plaintiff's counsel
still contended there was a question which ought to have been
left to the jury, as they were to say whether there was not malice
to be inferred from the facts. Upon which Lord Ellenborough
immediately inquired if the words were relevant, whether they
were not within the protection of law ? And it was in answer
to this part of the argument that, in delivering his final decision
in the cause, he said, although he admitted it might have been
126 SLANDER AND LIBEL.
too much for the counsel to say that the attorney was wicked
and fraudulent, " It appears to me that the words spoken were
uttered in the original cause, and were relevant and pertinent to
it, and consequently that this action is not maintainable."
I do not understand from this, however, that every thing that
in any state of facts would be relevant and pertinent to the mat-
ter in question before the court, comes within this rule of protec-
tion, where those facts which would have rendered it relevant
and pertinent do not exist. Thus, if counsel, in the argument
of his client's cause, should avail himself of that opportunity to
say of a party, or of a witness, against whom there was nothing
in the evidence to justify a suspicion of the kind, that he was a
thief or a murderer, it might be a proper case for a jury to say
whether the counsel was not actuated by malice, and improperly
availed himself of his situation as counsel to defame the party or
witness. Such appears to have been the opinion of the judges
in the case of Hodgson v. Scarlett, and such also must have been
the opinion of the Supreme Court of this State in the case of
Ring v. Wheeler, 7 Cowen, 725 ; for the language of the defend-
ant as stated in any of the seven first counts of the declaration
in that case might have been relevant and pertinent, and the
words charged in the fourth and sixth counts probably were
relevant to the matter before the arbitrators, if the counsel was
opening his defence, and merely stating what he expected to
prove, according to the case of Moulton or Boulton v. Clapham,
1 Rolle's Abr. 87, which was so much relied upon by the counsel
for the plaintiffs in error upon the argument of this cause. Upon
the authority of that case, perhaps, they should have been con-
sidered as relevant and pertinent, even after verdict.
I do not, however, consider the case of Moulton v. Clapham
as an authority for holding that every thing which may be said
to the court or jury, by a party or his counsel, in the progress of
a cause, as absolutely protected, although it was not relevant or
pertinent to the matter in question, so as to preclude the party
injured thereby from showing to a jury that the language was
used maliciously, and for the mere purpose of defaming him.
Many of these old cases are very imperfectly reported, and are
therefore apt to mislead us, unless they are examined with care.
This case, although it is to be found in D'Anvers, Sir William
Jones, March, and in Rolle's Abridgment, is not stated by either
HASTINGS V. LUSE. 127
two of them in precisely the same way. As reported by Sir
"ft illiam Jones, it would lead us to the conclusion that the court
meant to decide that any thing said in court by a party in dis-
affirmance of what was sworn against him was absolutely pro-
tected, although found by the jury to have been said maliciously ;
but by referring to Rolle, it will be seen that the language used
by the defendant was addressed to the court, and was a mere
statement that the affidavit was untrue, and that he would prove
to them by forty witnesses that it was so : and therefore it was
holden that the action was not maintainable, as it appeared from
the plaintiffs declaration that the answer as made by the de-
fendant to the affidavit was spoken merely in defence of him-
self, and in a legal and judicial way, •■ inasmuch as he said he
would prove it by forty witnesses."' Xeither is the dictum of
Cromwell's Chief Justice of the upper bench (Style's E. -162) to
be taken as broadly as stated by the reporter, without knowing
the state of facts in reference to which the dictum was applied.
I presume he must have used this language in reference to words
spoken by counsel in opening the defence of his client's cause to
the jury, stating what he should prove. For he immediately
adds, " It is his duty to speak for his client, and it shall be
intended to be spoken according to his client's instructions."
But surely no one can for a moment suppose the learned Chief
Justice intended to say that it was the duty of counsel to say any
thing that was not relevant to the matter in question ; or to go
beyond the case for the purpose of maligning a witness or the
adverse party, although he might have been instructed to do so
by his client. As I understand the case of Brook v. Montague,
Cro. Jac. 90, the plea must have alleged that the words were
spoken by the counsel in relation to the evidence which was to
be given in favor of the jury against Brook, who had attainted
them. He probably was instructed by his client that Brook had
been convicted of felony : and if so. he was probably incapable
of proceeding in the attaint against the jury, as the law then
stood. Coke Litt. 130 a; Sleght v. Kane, 2 Johns. Cas. 2ot3.
The language of the reporter is, that the counsel spoke the
words in evidence. This certainly could not be so, as there was
no pretence that the counsel was a witness on the trial. I have
no doubt, therefore, that the language of the plea was that the
counsel, in reference to the matters to be given in evidence, spoke
128 SLANDER AND LIBEL.
the words mentioned in the plaintiff's declaration, &c, and that
by a slip of the reporter's pen, or otherwise, a part of the sen-
tence is left out in the printed report. The case of Badgley v.
Hedges, 1 Penning. R. 233, is like that of Moulton v. Clapham ; for
it is evident the defendant spoke in reference to the contradic-
tory evidence which he intended to give in the cause, or which
he had already given. If so, what he said was relevant, although
perhaps not said at the right time. I am satisfied, therefore,
that there is no law, either ancient or modern, which affords
complete protection to parties or counsel, so as to bring the lan-
guage used by them in the course of judicial proceedings within
the second class of privileged communications which I have
stated, except whare the words complained of as slanderous
were relevant or pertinent to the question to be determined by
the court or jury.
There may be cases which properly belong to the first class of
privileged communications, arising in the course of judicial pro-
ceedings. Parties, and even counsel sometimes, misjudge as to
what is relevant and pertinent to the question before the court,
and especially parties who are not much acquainted with judicial
proceedings ; and it may be very proper in such cases to leave it
as a matter of fact for the jury to determine, whether the words
were spoken in good faith, under a belief that they were relevant
or proper, or whether the party using them was actuated by
malice and intended to slander the plaintiff. The case of Allen
v. Crofoot, 2 Wendell, 516, appears to be a case of this kind, for
it is evident that words spoken were not relevant in the judicial
proceeding, or pertinent to any question then before the court.
But as circumstances showed that the defendant either supposed
he was bound to answer the question, or that it was relevant
and pertinent to the proceedings, I think the court very prop-
erly decided that it should have been left to the jury to deter-
mine whether the defendant acted in good faith, supposing it
was relevant and proper to answer the question put to him by
the plaintiff, although he had not yet been sworn as a witness on
the examination of the complaint which he had previously made
on oath, or whether he was actuated by malice. In cases belong-
ing to that class of privileged communications, malice in fact
may be inferred from the language of the communication itself,
HASTINGS V. LUSK. 129'
as well as from extrinsic evidence. Wright v. Woodgate, 1
Gale's R. 329.
But though the slanderous words were spoken in the course
of a judicial proceeding, and were relevant and pertinent to the
matter in question, or the defendant may have used them in
good faith supposing them to be pertinent, without actual malice
or any intention of slandering the plaintiff, yet if the facts do
not appear from the pleadings or the finding of the jury, it will
not aid the defendant upon a motion in arrest of judgment. On
such a motion the court cannot know that the slanderous words
were pertinent, or that the plaintiff did not satisfy the jury that
they were not only pertinent to the matter in question before the
court, but also that the defendant spoke them with a malicious
intent, for the mere purpose of defaming the plaintiff and
wounding his feelings. Such is the effect of the decision of the
Supreme Court both in the case of McClaughry v. Wetmore,
t> Johns. R. 82. decided nearly thirty years ago, and the more
recent case of Ring v. Wheeler, to which I have before referred.
Each of the counts in the plaintiff's declaration in this case
contains more or less slanderous expressions, imputing the crime
of perjury, in language which prima facie could not have been
pertinent to any question before the court, for it does not appear
to have been addressed to the court, but to the plaintiff himself,
who was a witness there; and if the plaintiff used all the abusive
language towards or in reference to the witness which is stated
in either of those counts, although some of it might have been
relevant to the matter in question, no jury could hesitate in com-
ing to a correct conclusion whether that which was not pertinent
was uttered in good faith or with a malicious intent to defame
the plaintiff ; although the defendant must have proved that he
had great provocation to excuse all this harsh language, or no
honest jury could have given a verdict of only six cents against
him.
The defence in this case is set up by several special pleas in
addition to the general issue ; and the objection urged by the
third point of the plaintiff in error is. that although the declara-
tion may have been prima facie sufficient, the replications are
bad, and sufficient is admitted upon the whole record to consti-
tute a good defence. On the other hand, it is urged that if there
are any immaterial issues the pleas are bad, and as the defend-
9
130 SLANDER AND LIBEL.
ant committed the first fault in pleading, it is not a ease for a
repleader. I have examined the special pleas particularly, and
think either of them would have been held good upon general
demurrer, if I am correct in the conclusion at which I have
arrived as to the law of the case. It is expressly stated by Mr.
Justice Buller that the defendant may, by way of justification,
plead that the words were spoken by him as counsel in a cause,
and that they were pertinent to the matter in question, or he
may give them in evidence under the general issue, for they
prove him not to have been guilty of speaking the words
maliciously. Bull. N. P. 10. See also Lord Cromwell's Case,
4 Coke's R. 14. The two first special pleas, therefore, showing
that slanderous words stated in the declaration were spoken by
the defendant in the judicial proceeding, while conducting his
own defence without counsel, and that they were 'pertinent to
the matter in question, constituted a good bar to the action, as
they brought the case within the second class of privileged com-
munications which I have noticed. To each of these pleas there
were two replications (as authorized by the Revised Statutes
upon a special application to the court), each of which replica-
tions was a good answer to the plea : one replication traversed
the fact that the words spoken were either -pertinent or material
to the matter in question, and the other traversed the allegation
in the plea that the words were used by the defendant in the
matter in question before the justice, while conducting his defence
therein ; and as the jury found a verdict for the plaintiff on
all the issues, neither of those pleas can aid the defendant. In
the last special plea the defendant, in addition to the facts
stated in the two preceding pleas, also averred that the words
were spoken without any malice towards the plaintiff, and there-
fore, if I am right in supposing that a party is not answerable
for words innocently spoken by him in conducting his defence
in a judicial proceeding, and without malice, although they may
not have been strictly pertinent, perhaps a replication merely
denying the pertinency of the words would not have been a suffi-
cient answer to this plea. The first replication to this plea does,
however, in substance, put in issue the question of malicious intent
as well as the pertinency of the slanderous words, although the
malice is only stated by way of inducement to the traverse of the
malicious intent. As that part of the replication directly nega-
BROMAGE !•. PROSSER. 131
rives the allegation in the plea which ir was material to negative
in connection with the traverse of the pertinency of the slanderous
words, its effect, after verdict, must be different from the case
of a replication which merely sets up new matter as inducement
to the traverse, and then traverses an immaterial allegation in
the plea, leaving that which was most material unanswered. It
is in this case, at most, but a misjoining of the issue, which is
cured after verdict : and the jury have found in terms, in refer-
ence to this issue, that the words were spoken /t^vty and mali-
ciously, and that they were not pertinent and material. Again,
the second replication to this plea is a full answer to it, even if
the first replication is stricken entirely out of the record ; and
upon the last replication the jury have found that the slanderous
words were not uttered by the defendant while conducting his
own defence on the examination before the justice, as alleged in
his last special plea.
For these reasons I think the Supreme Court were right in
refusing to arrest the judgment, and that their decision should be
affirmed.
The court being unanimously of the same opinion, the judg-
ment of the Supreme Court was accordingly
Affirmed.
Bromage and Another v. Frosser.
{i Bam. & C. 247. King's Bench, England, Easter Term. lSij.)
Privilege. Hontst Advice. In an action for words spoken of the plaintiffs in trade as
bankers, it was proved that A. B. met the defendant and said, " I hear that you say
that the plaintiff's bank at M. has stopped. Is it true?" Defendant answered,
"Yes, it is. I was told so. It was so reported at C, and nobody would take
their bills, and I came to town in consequence of it myself." It was proved that
C. D. told the defendant that there was a run upon the plaintiff's bank at M. Upon
this evidence the learned judge, after observing that the defendant did not appear
to have been actuated by any ill-will against the plaintiffs, directed the jury to
find their verdict for the defendant, if they thought the words were not maliciously
spoken. Ht.d, upon motion for a new trial, that although malice was the gist of
the action for slander, there were two sorts of malice, — malice in fact and malice
in law : the former denoting an act done from ill-will towards an individual ; the
latter a wrongful act intentionally done, without just cause or excuse; and that
in ordinary actions for slander, malice in law was to be inferred from the publish-
132 SLANDER AND LIBEL.
ing the slanderous matter, tlie act itself being wrongful and intentional, and with-
out any just cause or excuse ; but in actions for slander, prima fade excusable on
account of the cause of publishing the slanderous matter, malice in fact must be
proved. Held, therefore, in this case, that the judge ought first to have left it as
a question for the jury, whether the defendant understood A. B. as asking for
information, and whether he had uttered the words merely by way of honest
advice to A. B. to regulate his conduct ; and, if they were of that opinion, then,
secondly, whether in so doing he was guilty of any malice in fact.
This was an action for words spoken of the plaintiffs in their
trade and business as bankers at Monmouth. The declaration
stated that the plaintiffs carried on the trade and business of
bankers in partnership, at Monmouth and Brecon, and had always
conducted themselves with credit and punctuality towards their
creditors and customers ; and until the speaking of the words,
&c, had never been suspected of being guilty of any act of insol-
vency, or of having stopped or made default in payment of the
moneys due or owing from them in their said trade and business,
but were in good credit and gaining profits ; yet defendant, con-
triving, &c, spoke the following words: "The bank of Bromage
& Snead (the plaintiffs) at Monmouth is stopped." The sec-
ond count stated that, in a discourse which the defendant had
with one L. Watkins, in the presence and hearing of other sub-
jects of the realm, of and concerning the plaintiffs in the way of
their trade and business, and of and concerning the said bank of
the plaintiffs at Monmouth, he, the defendant, further contriving
and intending as aforesaid, in the presence and hearing of the said
L. Watkins and the said last-mentioned subjects, and in answer
to a certain question and observation put and made by the said
L. Watkins to the defendant, as to the said plaintiffs in their said
trade and business, and as to the said defendant having said that
the bank of the plaintiffs at Monmouth was stopped, falsely and
maliciously spoke and published of and concerning the said plain-
tiffs, in the way of their aforesaid trade and business, and of and
concerning the bank of the plaintiffs at Monmouth aforesaid, the
words following : " Yes, it is. I was told so ; " thereby meaning
that the plaintiffs had stopped, and made default in the payment
of the moneys due and owing from them in their said trade and
business of bankers at Monmouth aforesaid. The third count
stated that, in answer to a question and observation put and made
by Watkins to the defendant, as to the plaintiffs in their trade
and business, and as to their bank at Monmouth aforesaid being
BROMAGE V. PROSSER. 133
stopped, defendant spoke the words, "Yes, it is." Plea, not
guilty. At the trial before Park, J., at the summer assizes for
Monmouth, 1824. it appeared that Watkins, on the 13th of
January, 1824, met the defendant in Brecon, and, addressing him,
said: '-I hear that you say the bank of Bromage & Snead at
Monmouth is stopped. Is it true ? " Defendant answered, " Yes,
it is. I was told so. It was so reported at Crickhowell, and
nobody would take their bills, and I came to town in consequence
of it myself." Watkins then said, " You had better take care
what you say : you first brought the news to town, and told Mr.
John Thomas of it." Defendant repeated, " I was told so.-' It
was proved on the part of the defendant that one George Brown,
to whom the defendant had paid two one-pound notes issued by
the plaintiffs, told the defendant, on the 12th of January, that
there was a run upon the plaintiffs' bank ; and that, if there was
any thing in it, he must take the notes back : and that he, Brown,
afterwards returned the notes to the defendant on that ground ;
but he never told the defendant that the bank had stopped, or
that nobody would take their bills. The learned judge told the
jury that malice was the gist of the action : that it did not ap-
pear from the evidence that the defendant was actuated by any
ill-will against the plaintiffs, and that if the words were not
spoken maliciously, the defendant was not answerable ; that they
ought, therefore, to find their verdict for the defendant, if they
thought that the words were not spoken maliciously : otherwise,
for the plaintiffs. The jury found a verdict for the defendant.
A rule nisi for a new trial was obtained in last Michaelmas term,
by Campbell, on the ground that the learned judge had improp-
erly left to the jury the question of malice : for it was to be in-
ferred in this case from the act of the defendant, inasmuch as
the occasion did not justify the speaking of the words.
W. E. Taunton and Maule showed cause. The question of malice
was properly left to the jury. In Hewer v. Dawson, Bull. X. P. S,
which was an action for saying of the plaintiff, a tradesman, ■* fie
cannot stand it long; he will be a bankrupt soon," it was proved
by a witness that the words were not spoken maliciously, but by
way of warning ; and Pratt. C. J., directed the jury " that, though
the words were otherwise actionable, yet if they should be of
opinion that the words were not spoken out of malice, but in the
manner before mentioned, they ought to find the defendant not
134 SLANDER AND LIBEL.
guilty ; " and they did so accordingly. So in Rogers v. Clifton,
3 B. & P. 592, Lord Alvanley says : " I think I should grievously
have invaded the province of a jury if I had not left it to say
whether, considering all the circumstances of the case, the con-
duct of the defendant was not malicious." [Bayley, J. Under
certain circumstances, words which would otherwise be actionable
are prima facie excusable cases.] All those cases come within
this rule, that the circumstances negative malice. The occasion
may alter the burden of proof, but still the malice is a question
for the jury. If malice is to be presumed, the presumption is to
go to the jury as proof ; therefore, quacunque via, the question
must be decided by them. It cannot be disputed that the evi-
dence given by the defendant tended to negative malice. But
even if that were doiibtful, the plaintiff would not be entitled to
a new trial. Upon the first count, it is clear that the verdict was
properly found for the defendant, for there was no evidence to
support it. The words there set out amount to a positive state-
ment by the defendant that " the bank of Bromage & Snead, of
Monmouth, has stopped ; " the evidence was, that in answer to
questions whether defendant had said so, and whether it was true,
the defendant said it was, and that he was told so, and that it was
so reported at Crickhowell. Now, these words do not amount to
a charge that the bank had stopped ; there is a material variance
between the allegation and the proof. The second count is quite
new in form ; and it alleges that, in answer to a question put by
Watkins to defendant, as to the plaintiffs in their trade and busi-
ness, and as to the defendant having said that the bank of the
plaintiffs at Monmouth had stopped, the defendant spoke of and
concerning the plaintiffs in the way of their trade and business,
and of and concerning the bank of the plaintiffs at Monmouth,
the words, " Yes, it is : I was told so." It is not averred that the
answer had reference to the assertion that the bank had stopped.
If a verdict had been found for the plaintiffs on that count, no
judgment could have been given. The third count. is equally ob-
jectionable. It is quite ambiguous whether the defendant meant
to say that he had used certain words, or that those words were
true. The record is therefore defective : Garford v. Clerk, 2 Cro.
Eliz. 857 ; and on that ground the court will not grant a new trial.
Campbell and Gr. R. Gross, contra. The words spoken by the
defendant were in themselves clearly actionable, and the plaintiff
BROMAGE ('. PROSSER. 135
is entitled to a new trial, unless it is to be decided that in all cases
of slander, without reference to the occasion or circumstances of
uttering it. malice is a question for the jury. It has hitherto
been understood that when slanderous words are spoken, without
any privilege for the communication, the law infers malice from
the probable result, viz., the injury to the defendant. The cases
cited on the other side were instances of privileged communica-
tions, and totally different from the present. Suppose this de-
fendant to have said that the plaintiffs stole a horse, it would be
no answer to say that he had heard so. and believed it to be true ;
no question of malice could, under such circumstances, be left to
the jury. A plea stating such facts would be clearly insufficient ;
the evidence must be likewise insufficient when given under the
general issue. Xow, in this respect, there is no difference between
words imputing felony and insolvency. Even if the words had
been spoken to the defendant under circumstances which justified
them, yet a faithful repetition of them would not be justified
unless the author were named. Davis v. Lewis, 7 T. R. IT. Here
there was not a faithful repetition of what the defendant heard ;
he was told there was a run upon the bank, and he reported that
it had stopped. Then, as to the sufficiency of the evidence, there
certainly was evidence to support the first count. [Littledale. J.
In an action for words you cannot, out of a question and answer,
make an affirmative proposition. You must state the question
and answer.] Still the evidence may be taken as an admission
by the defendant that he said so on a former da}- ; and evidence
of an admission of having spoken words is sufficient to support a
declaration charsinsr those words. To the second and third counts
no objection was made at the trial, and the words were proved as
laid. [Batley. J. Does the question, " Is it true ?" mean, ■* Is
it true that you said so aud so ? '" or, " Is it true that the bank
has stopped?"] That being equivocal, was a question for the
jury. If the defendant, by answering. - Yes, it is." meant that
he had used the words, the second count was proved : if he meant
that the bank had stopped, the third count was proved ; and, in
either case, the plaintiff was entitled to a verdict.
Cur. adv. virft.
Batley, J., now delivered the judgment of the court. This
was an action for slander. The plaintiffs were bankers at Mon-
mouth, and the charge was, that in answer to a question from
136 SLANDER AND LIBEL.
one Lewis Watkins, whether he, the defendant, had said that the
plaintiffs' bank had stopped, the defendant's answer was, " It was
true ; he had been told so." The evidence was, that Watkins
met defendant and said, " I hear that you say the bank of Brom-
age & Snead, at Monmouth, has stopped. Is it true ? " De-
fendant said, " Yes, it is ; I was told so." He added, " It was
so reported at Crickhowell, and nobody would take their bills,
and that he had come to town in consequence of it himself."
Watkins said, " You had better take care what you say ; you first
brought the news to town, and told Mr. John Thomas of it."
Defendant repeated, " I was told so." Defendant had been told at
Crickhowell there was a run upon plaintiffs' bank, but not that it
had stopped, or that nobody would take their bills, and what he
said went greatly beyond what he had heard. The learned judge
considered the words as proved, and he does not appear to have
treated it as a case of privileged communication ; but, as the de-
fendant did not appear to be actuated by any ill-will against the
plaintiffs, he told the jury that if they thought the words were
not spoken maliciously, though they might unfortunately have
produced injury to the plaintiffs, the defendant ought to have
their verdict; but if they thought them spoken maliciously, they
should find for the plaintiff. And the jury having found for the
defendants, the question upon a motion for a new trial was upon
the propriety of this direction. If in an ordinary case of slander
(not a case of privileged communication) want of malice is a
question of fact for the consideration of a jury, the direction was
right ; but if in such a case the law implies such malice as is
necessary to maintain the action, it is the duty of the judge to
withdraw the question of malice from the consideration of the
jury ; and it appears to us that the direction in this case was
wrong. That malice, in some sense, is the gist of the action, and
that therefore the manner and occasion of speaking the words is
admissible in evidence to show they were not spoken with malice,
is said to have been agreed (either by all the judges, or at least
by the four who thought the truth might be given in evidence on
the general issue) in Smith v. Richardson, Willes, 24 ; and it is
laid down, 1 Com. Dig. Action upon the Case for Defamation,
G. 5, that the declaration must show a malicious intent in the
defendant, and there are some other very useful elementary books
in which it is said that malice is the gist of the action ; but in
BROMAGE V. PROSSER. 137
what sense the words " malice " or " malicious intent " are here to
be understood, whether in the popular sense or in the sense the
law puts upon those expressions, none of these authorities state.
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. If I give a perfect stranger a blow
likely to produce death, I do it of malice, because I do it in-
tentionally and without just cause or excuse. If I maim cattle,
without knowing whose they are ; if I poison a fishery, without
knowing the owner, — I do it of malice, because it is a wrongful
act, and done intentionally. If I am arraigned of felony, and
wilfully stand mute, I am said to do it of malice, because it is
intentional and without just cause or excuse. Russell on Crimes,
614, n. 1. And if I traduce a man, whether I know him or not,
and whether I intend to do him an injury or not, I apprehend
the law considers it as done of malice, because it is wrongful and
intentional. It equally works an injury, whether I meant to pro-
duce an injury or not ; and if I had no legal excuse for the slander,
why is he not to have a remedy against me for the injury it pro-
duces ? And I apprehend the law recognizes the distinction
between these two descriptions of malice — malice in fact and
malice in law — in actions of slander. In an ordinary action for
words, it is sufficient to charge that the defendant spoke them
falsely ; it is not necessary to state that they were spoken mali-
ciously. This is so laid down in Style, 392, and was adjudged
upon error in Mercer v. Sparks, Owen, 51, Noy, 35. The objec-
tion there was, that the words were not charged to have been
spoken maliciously ; but the court answered that the words were
themselves malicious and slanderous, and, therefore, the judgment
was affirmed. But in actions for such slander as is prima facie
excusable, on account of the cause of speaking or writing if, as
in the case of servants' characters, confidential advice, or com-
munications to persons who ask it, or have a right to expect it,
malice in fact must be proved by the plaintiff; and in Edmonson
v. Stevenson, Bull. X. P. S, Lord Mansfield takes the distinction
between these and ordinary actions of slander. In Weatherston
v. Hawkins, 1 Term Rep. 110, where a master who had given a
servant a character, which prevented his being hired, gave his
brother-in-law, who applied to him upon the subject, a detail by
letter of certain instances in which the servant had defrauded
188 SLANDER AND LIBEL.
him, "Wood, who argued for the plaintiff, insisted that this case
did not differ from the case of common libels, that it had the two
essential ingredients, slander and falsehood ; that it was not
necessary to prove express malice ; if the matter is slanderous,
malice is implied, it is sufficient to prove publication ; the motives
of the party publishing are never gone into, and that the same
doctrines held in actions for words, no express malice need be
proved. Lord Mansfield said the general rules are laid down as
Mr. Wood has stated, but to every libel there may be an implied
justification from the occasion. So as to the words, instead of
the plaintiff 's showing it to be false and malicious, it appears to
be incidental to the application by the intended master for the
character ; and Buller, J., said this is an exception to the general
rule, on account of the occasion of writing. In actions of this
kind, the plaintiff must prove the words "malicious" as well as
" false." Buller, J., repeats, in Pasley v. Freeman, 3 T. R. 61, that
for words spoken confidentially upon advice asked no action lies,
unless express malice can be proved. So in Hargrave v. Le Breton,
3 Burr. 2425, Lord Mansfield states that no action can be main-
tained against a master for the character he gives a servant, unless
there are extraordinary circumstances of express malice. But in
an ordinary action for a libel, or for words, though evidence of
malice may be given to increase the damages, it never is consid-
ered as essential, nor is there any instance of a verdict for a de-
fendant on the ground of want of malice. Numberless occasions
must have occurred (particularly in cases where a defendant only
repeated what he had heard before, but without naming the
author) upon which, if that were a tenable ground, evidence
would have been sought for and obtained ; and the absence of any
such instance is a proof of what has been the general and univer-
sal opinion upon the point. Had it been noticed to the jury how
the defendant came to speak the words, and had it been left to
them as a previous question whether the defendant understood
Watkins as asking for information for his own guidance, and that
the defendant spoke what he did to Watkins merely by way of
honest advice to regulate his conduct, the question of malice in
fact would have been proper as a second question to the jury, if
their minds were in favor of the defendant upon the first ; but as
the previous question I have mentioned was never put to the
jury, but this was treated as an ordinary case of slander, we are
TOOGOOD V. SPYRING. 139
of opinion that the question of malice ought not to have been left
to the jury. It was, however, pressed upon us with considerable
force that we ought not to grant a new trial, on the ground that
the evidence did not support any of the counts in the declaration ;
but, upon carefully attending to the declaration and the evidence,
we think we are not warranted in saying that there was no evi-
dence to go to the jury to support the declaration ; and, had the
learned judge intimated an opinion that there was no evidence, the
plaintiff might have attempted to support the defect. We there-
fore think that we cannot properly refuse a new trial, upon the
ground that the result upon the trial might have been doubtful. In
granting a new trial, however, the court does not mean to say that
it may not be proper to put the question of malice as a question of
fact for the consideration of the jury ; for if the jury should think
that when Watkins asked his question the defendant under-
stood it as asked in order to obtain information, to regulate his
own conduct, it will range under the cases of privileged communi-
cations, and the question of malice in fact will be a necessary
part of the jury's inquiry; but it does not appear that it was left
to the jury in this case to consider whether this was understood
by the defendant as an application to him for advice, and if not,
the question of malice was improperly left to their consideration.
We are, therefore, of opinion that the rule for a new trial must be
absolute. Rule absolute.
Toogood v. Sptring.
(1 Cromp., 11. & R. 181. Exchequer, England, Trinity Term, 1834.)
Privilege. Master and Servant. A., the tenant of a farm, required some repairs to be
done at the farm-house, and B., the agent of the landlord, directed C. to do the
work. C. did it, but in a negligent manner, and during the progress of it got
drunk, and some circumstances occurred which induced A. to believe that C. had
broken open his cellar-door and obtained access to his cider. A., two days after-
wards, met C, in the presence of D., and charged him with having broken his cel-
lar-door, and with having got drunk and spoiled the work. A. afterwards told D.,
in the absence of C, that he was confident C. had broken open the door. On the
same day, A. complained to B. that C. had been negligent in his work, had got
drunk, and he thought he had broken open his cellar-door. Held, that the com-
plaint to B. was a privileged communication, if made bona fide, and without any
140 BLANDER AND LIBEL.
malicious intention to injure C. Held, also, that the statement made to C. in the
presence of D., was also privileged, if made honestly and bona fide ; and that the
circumstance of its being made in the presence of a third person does not of itself
make it unauthorized, and that it was a question to be left to the jury to deter-
mine from the circumstances, including the style and character of the language
used, whether A. acted bona fide, or was influenced by malicious motives. Held,
also, that the statement to D., in the absence of C, was unauthorized and officious,
and therefore not protected, although made in the belief of its truth, if it were in
point of fact false.
Slander. The first count of the declaration stated that the
plaintiff, at the time of committing the grievance thereinafter
mentioned, was a journeyman carpenter, and accustomed to
employ himself as a journeyman carpenter, and gain his living
t)3r that employment, and had been, and was at the time of com-
mitting the grievance, &c, retained and employed by, and in the
service of, one James Brinsdon, as his journeyman carpenter and
workman, at and for certain wages and rewards by the said
James Brinsdon to him paid in that behalf ; and in that capacity
and character had always behaved and conducted himself with
honesty, sobriety, and great industry and decorum, and never
was, nor, until the time of committing the grievances, was sus-
pected to have been, or to be, dishonest, drunken, dissolute,
vicious, or lazy, to wit, in the county aforesaid ; by means of
which said several premises he had not only acquired the good
opinion of his neighbors and divers other good and worthy sub-
jects, &c, and especially the high esteem of h'is masters and
employers, but had also derived and acquired for himself divers
great gains, &c. That the plaintiff, at the time of committing
the grievances in the first, second, and last counts mentioned,
had been employed by the said James Brinsdon, as his workman
and journeyman, in and upon certain work, to wit, on and about
certain premises of the defendant, and there, upon and through-
out that occasion, and during the whole of his, the plaintiff's,
work in and about the same, had behaved and conducted himself
with honesty, sobriety, and great industry and decorum, and in
a proper and workmanlike manner, yet the defendant, well
knowing, &c, but contriving, &c, and to cause it to be sus-
pected and believed that the plaintiff had been and was guilty
of the offences and misconduct thereinafter stated to have been
charged upon and imputed to him by the defendant, theretofore,
to wit, on the 9th of January, 1834, in the county aforesaid, in
TOOGOOD !'. SPYRTNT,. 141
a certain discourse which the defendant then and there had with
the plaintiff, of and concerning- the plaintiff, and of and concern-
ing him with reference and in relation to the aforesaid work, in
the presence and hearing of divers worthy subjects, &c. ; then
and there, in the presence and hearing of the said last-mentioned
subjects, falsely and maliciously spoke and published to and of
and concerning the plaintiff, and of and concerning him with
reference and in relation to the aforesaid work, the false, scan-
dalous, malicious, and defamatory words following, that is to
say : —
" What a d — d pretty piece of work j-ou (menning the
plaintiff) did at my house the other day." And in answer to the
following question, then and there, in the presence and hearing
of the said last-mentioned subjects, put by the plaintiff to the
defendant, that is to say. '' What, sir ? " then and there, in the
presence and hearing of the said last-mentioned subjects, falsely
and maliciously answered, spoke, and addressed to and published
of and concerning the plaintiff, and of and concerning him in
relation and with reference to the aforesaid work, these other
false, scandalous, malicious, and defamatory words following,
that is to say, '• You broke open my cellar-door, and got drunk,
and spoiled the job you were about " (meaning the aforesaid
work).
The words, as stated in the second count, were, " He broke
open mv cellar-door, and got drunk, and spoiled the job he was
about."
In the third, that in answer to an assertion of the plaintiff
that he had never broken into or entered the defendant's cellar,
the defendant said, ■• What! I will swear it. and so will my three
men."
The fourth count stated, that on, &c, in a certain other dis-
course which the defendant then and there had with a certain
other person, to wit, one Richard Taylor, of and concerning the
plaintiff, in the presence and hearing of the said last-mentioned
person, and of divers other good and worthy subjects, &c, and
in answer to a certain question whereby the last-mentioned per-
son, to wit, the said Richard Taylor, did then and there, in the
presence and hearing of the other last-mentioned subjects, inter-
rogate and ask of the defendant whether he, the defendant,
meant to say that the plaintiff had broken into the cellar of the
142 SLANDER AND LIBEL.
defendant, he, the defendant, then and there, in the presence
and hearing of the last-mentioned subjects, falsely and maliciously
answered, spoke, and published to the last-mentioned person, to
wit, the said Richard Taylor, in his presence and hearing, these
other false, scandalous, malicious, and defamatory words follow-
ing, of and concerning the plaintiff, that is to say, " I (meaning
the defendant) am sure he (meaning the plaintiff) did (meaning
that the plaintiff had broken into his, the defendant's, cellar),
and my (meaning the defendant's) people will swear it."
The words in the fifth count were alleged to be spoken gener-
ally, as in* the first three, and not to any particular individual ;
and they were these : " You got drunk and spoiled the job you
were about" (meaning the aforesaid work). The declaration
then alleged that, by reason of the committing of the grievances,
he, the plaintiff, was greatly injured in his good fame, character,
occupation, and credit, and brought into public scandal, &c,
insomuch that divers of those neighbors and subjects, to whom
the innocence and integrity of the plaintiff in the premises were
unknown, have, on account of the committing of the said griev-
ances by the defendant as aforesaid, from thence hitherto sus-
pected and believed, and still do suspect and believe, him to have
been and to be a person guilty of the offences and misconduct so
as aforesaid charged upon and imputed to him by the defendant ;
and have, by reason of the committing of the said grievances by
the defendant as aforesaid, from thence hitherto wholly refused,
and still do refuse, to have any transaction, acquaintance, or dis-
course with the plaintiff, as they were before used and accus-
tomed to have, and otherwise would have had ; and also by
means of the premises the said James Brinsdon, who before and
at the time of the committing of the said grievances had retained
and employed, and otherwise would have continued to retain and
employ, the plaintiff as his journeyman workman and servant for
certain wages and reward, to be therefor paid to the plaintiff,
afterwards, to wit, on the day and year aforesaid, in the county
aforesaid, discharged the plaintiff from his service and employ,
wholly refused to retain and employ the plaintiff in his said ser-
vice and employ ; and the plaintiff hath from thence hitherto
wholly, by means of the premises, and from no other cause what-
ever, remained and continued and still is out of employ, &c.
The defendant pleaded, first, the general issue ; secondly, that
T00G00D V. SPYRIXG. 1-43
before the committing- of the grievance, to wit, on the 7th Jan-
uary. 1834. the said plaintiff broke open a door of a cellar of the
said defendant, in a house of the said defendant, and then and
there broke into the said cellar, and got drunk, and spoiled the
said work in the introductory part of the said declaration men-
tioned ; wherefore he the said defendant did speak and publish
the said words, as in the said declaration respectively mentioned,
of and concerning and relating to the said house and the said
cellar-door, as he lawfully might for the cause aforesaid. And
this, «fce. Thirdly, as to the first, second, and last counts, and as
to the speaking and publishing of the following words, that is to
say. -I am sure he (meaning the plaintiff) did"* (meaning that
the said plaintiff had broken into his, the defendant's, cellar), as
in the said fourth count of the declaration mentioned, that before
&c. to wit. on the 7th of January. 1S34, the said plaintiff broke
open the door of a cellar of the said defendant, in a house of the
said defendant, and got drunk, and spoiled the said work in the
introductory part of the said declaration mentioned ; therefore,
the said defendant did commit the supposed grievances in the
introductory part of that plea mentioned, as he lawfully might for
the cause aforesaid. And this. >vc.
Replication, de injuria to the second and last plea.
At the trial before Bosanquet. J., at the last spring assizes for
the county of Devon, it appeared that the plaintiff was a journey-
man carpenter, and had been in the employ of Brinsdon, a master
carpenter, in the constant employ of the Earl of Devon, at Pow-
derham Castle ; that the defendant resided on a farm under the
Earl of Devon ; that the defendant required some repairs at his
farm : and that, pursuant to the order of Mr. Brinsdon, the
plaintiff and another workman went to the defendant's residence
on the 7th of January, for the purpose of erecting a new door to
the defendant's tool-house (which adjoined the cellar), and doing
other repairs to the house and premises of the defendant. It was
proved that the work was done in a negligent manner, and not to
Brinsdon's satisfaction, the door being cut so small as not to
answer the purpose for which it was intended ; that, during the
progress of the work, the plaintiff got drunk, and circumstances
occurred which induced the defendant to believe that the plain-
tiff had broken open the cellar-door, and obtained access to his
cider. Brinsdon had requested the defendant to inspect the
144 SLANDER AND LIBEL.
work. It was proved that the plaintiff and one Taylor were at
work, on the 9th of January, at Powderham Castle, and that the
defendant came up, and, addressing himself to the plaintiff, spoke
in his presence the following words : " What a d — d pretty piece
of work you did at my house the other day; " that the plaintiff
said : " What, sir ? " and that the defendant replied, " You broke
open my cellar-door, and got drunk and spoiled the job you were
about ; " that the plaintiff denied the charge, but that the de-
fendant said he would swear it, and so would his three men. It
was also proved that, in a subsequent conversation, when the
plaintiff was not present, the defendant, in answer to a question
put to him by Taylor, whether he really thought the plaintiff had
broken the cellar-door, said : " I am sure he did it, and my peo-
ple will swear to it." The defendant then went away in search
of Mr. Brinsdon. It was proved that the defendant afterwards
saw Brinsdon on the same day, the 9th of January, and that he
said to him that Toogood had spoiled the door, and that the cel-
lar had been broken open, and that Toogood had got drunk ; he
said it had been done with a chisel, and that Toogood did it,
because of the getting drunk. It appeared that Brinsdon went
afterwards to the plaintiff, and told him that he could be no longer
in the employ of the Earl of Devon, until this was cleared up ;
that he must come to the defendant's, with the other workman,
the following morning, to have the matter investigated ; that he,
Brinsdon, went to the defendant's the following morning, and
that the plaintiff and defendant were there, and that he examined
the cellar-door, but doubted whether it had been broken open at
all, though the bolt was broken ; and Brinsdon told the plaintiff
he considered the charge against him was not made out, and that
he thought his character was cleared up, and that he might go to
work again if he thought proper ; but the plaintiff said his char-
acter was not cleared up ; and he did not go to his work after-
wards.
The learned judge, in summing up the case to the jury, said
that he should have thought that the defendant would have been
justified if he had made the complaint to Mr. Brinsdon in the
first instance ; but that he had spoken the words in the presence
of a third person, and that the speaking was not in the nature of
a complaint to the plaintiff's employer; that it appeared to him
that the act of making the imputation to the plaintiff in the pres-
TOOGOOD V. SPTRING. 145
ence of another person gave the plaintiff a right to maintain the
action ; that the plaintiff, also, was not justified in making the
subsequent charge to Taylor, in the absence of the plaintiff, that
he had broken open the cellar-door. The jury having found a
verdict for the plaintiff, with 40s. damages, Follett, in Easter
term last, obtained a rule to show cause why a nonsuit should
not be entered, or a new trial had, on the grounds, first, that the
circumstances under which the words were spoken constituted it
a privileged communication ; and, secondlv, on the ground of
misdirection on the part of the learned judge.
-Pracd showed cause. There are two questions here : first, it
is said that the words in question were spoken under circum-
stances which made it a privileged communication : and, sec-
ondly-, that the case was improperly summed up to the jury.
With regard to the first point, it is submitted that this went
beyond the nature of a privileged communication. Even if the
defendant would have been justified in stating what he did to
Brinsdon, he could not justify speaking the words to the plaintiff
in the presence of a third person. The defendant does not even
say that he comes to complain to Brinsdon. In Macdougall v.
Claridge, 1 Camp. :2o7. Lord Ellenborough, in speaking of a com-
munication as privileged, where it is made by one party interested
to another having an interest in the same matter, complaining of
the conduct of a person whom they had employed to manage
their concerns, expressly puts it on the ground of the communi-
cation not being meant to go beyond those immediately interested
in it. [Aldersox, B. Here the damages were taken generally'.
Now, who can say what damages the jury gave for what was said
to Brinsdon? and what damages they gave for what was spoken
before Taylor?] If the defendant had a right to complain that
the work was improperly done, he had no right to charge the
plaintiff with breaking open the cellar-door and getting drunk, as
that amounts to a charge of felony. It may be said that there is
no allegation in the declaration meant to impute felony to the
plaintiff. That, however, is immaterial, as there is an allegation
and proof of special damage. In Moure v. Meagher, 1 Taunt. 39,
it was held, that if, in consequence of words spoken, the plaintiff
is deprived of substantial benefit arL-ing from the hospitality of
friends, that is a sufficient temporal damage whereon to maintain
an action. [Parke, B. Here there was no special damage
10
146 SLANDER AND LIBEL.
proved.] It is submitted that there was evidence to go to the
jury, as it was proved that Brinsdon would not employ the plain-
tiff until his character was cleared ; and though he told him after-
wards that he might go to his work again, the plaintiff did not do
so, because his character was not clear. [Parke, B. To make
out special damage in this case, you should have shown that the
plaintiff was removed from a beneficial employment, which you
have not done. The jury did not find special damage ; they gave
general damages.] Secondly, it is submitted that the case was
properly left to the jury, as the circumstances under which the
words were spoken showed a malicious intention to injure the
plaintiff. In Dunman v. Bigg, 1 Campb. 269, Lord Ellenborough
said : " It will be for the jury to say whether these expressions
were used with a malicious intention of degrading the plaintiff,
or with good faith to communicate facts to the surety which he
was interested to know." Now, here the words were not spoken
to the party alone, but before another person ; and, as it was not
necessary that the defendant should speak the words in Taylor's
presence, or say what he did to Taylor, his doing so, unnecessarily
and officiously, is a circumstance from which malice may be in-
ferred. Here the defendant was betrayed into a passion, and has
gone beyond what he was justified in saying. In Rogers v. Clif-
ton, 3 B. & P. 587, it was held that, although a master is not in
general bound to prove the truth of a character given by him to
a person applying to him for the character of his servant, yet, if
he officiousty state any misconduct, even of a trivial nature,
which he is not able to prove, the jury might, from these facts,
infer malice. It depends much on the manner in which the
words are spoken whether they are to be deemed malicious or
not. If I go to a tradesman, and, in a spiteful and revengeful
manner, before his other customers, say that he has spoiled my
coat, or sent me a bad joint of meat, that is conduct from which
malice may be inferred. Besides, the plaintiff was not in the
employ of the defendant, but in the employ of Brinsdon, and
therefore the defendant had no right to complain of him. Here
the defendant has, at all events, gone beyond the limits of a con-
fidential communication, in charging the plaintiff with breaking
the cellar-door and getting drunk. In Godson v. Home, 1 Brod. &
B. 7, Richardson, J., says : " If a man giving advice calls an-
other a thief, surely it is not necessary to leave it to the jury
TOOGOOD V. SPYRING. 147
whether such language is a privileged communication or not."
Here, although the word " thief" is not used, the defendant said
what is equivalent to it. It is quite clear the defendant meant
more than to complain of the work being spoiled. If a man say
to his tailor, in the presence of customers, l> You sent me a bad
coat," though he might be. justified in speaking those words, he
cannot be justified in saying, •' You sent me a bad coat, and stole
five of my books."
Folhtt, contra. In this case no special damage was proved, as
the plaintiff was not dismissed by Brinsdon. "When Brinsdon
found that the door had not been broken open, he directed the
plaintiff to go to his work again, but he did not do so; and, there-
fore, if he suffered any damage, it was his own fault. The words
spoken to Taylor were not spoken in the way of his trade.
[Parke, B. Might not the words be spoken of him in his char-
acter of a journeyman carpenter? They might be spoken of him
as having committed felony in the course of his trade. It might
be that he availed himself of his situation to commit the felony. J
It is submitted that such a general proposition cannot be laid
down. Here it was no part of the business of the carpenter to
break open the cellar-door. It is an act totally unconnected
with his business as a carpenter, and those words are not spoken
of him in the character of a carpenter. Words to be spoken of
a man in his trade must relate to something done by him in the
course of his particular calling. Besides, if the plaintiff had
meant to say that the defendant had imputed felony to him, he
should have alleged it in his declaration ; there is, however, no
such allegation or innuendo in this declaration. Suppose the
words had been, " he had cheated his fellow-workmen," would
they be actionable ? It is submitted that they would not, inas-
much as they would have no relation to the plaintiff's trade.
[Aldersox, B. "You are an idle, dissolute workman, and when
employed bv me you robbed me : "' are not these words action-
able?] At all events, it was a question for the jury whether
these words were spoken of the plaintiff in his trade, and that
question was not left to them : therefore the defendant is
entitled to a new trial. Then the learned judge said that the
defendant had no right to make the complaint in the presence of
a third person ; but surely a master has a right to complain of
his servant in the presence of a third person, if it is done bona
148 SLANDER AND LIBEL.
fide. If that were not so, in every case where the master com-
plains of his servant in the presence of a third person, the ser-
vant would have a right of action against the master. Can it be
said that a person who complains to a tradesman has no right to
say in the presence of a third person that the work is badly done,
when the complaint is made bona fide? [Alderson, B. You
say that it is only evidence, more or less, of malice ; but there is
a communication to Taylor alone, which is not justified.] The
complaint to Brinsdon was, at all events, justifiable. The court
cannot know what damages the jury gave for those words, and
what for the others, as the damages are general. If the com-
plaint is made under circumstances that induce the party to
believe in the truth of it, and he makes the complaint to the
other party bona fide, it is privileged. All the cases where it has
been held that the communications were not justifiable, were
made to a third party, and not to the party himself. [Alder-
son, B. There are many cases in which words spoken in the
presence of a third party have been held actionable, where the
transaction was gone by, so that the party complained of was not
able to right himself.] Here, the complaint was made at the
time. It is submitted that the learned judge ought to have non-
suited. [Alderson, B. Surely it was a question for the jury.]
It is only where there is some evidence to show that the defend-
ant is not acting bona fide that it becomes a question for the jury.
But where a party bona fide complains that work is badly done,
it is a question of law whether it is a privileged communication
or not. Cur. adv. vult.
On a subsequent day, the judgment of the court was deliv-
ered by
Parke, B. In this case, which was argued before my brothers
Bolland, Alderson, Gurney, and myself, a motion was made for
a nonsuit, or a new trial, on the ground of misdirection. It was
an action of slander, for words alleged to be spoken of the plain-
tiff as a journeyman carpenter, on three different occasions. It
appeared that the defendant, who was a tenant of the Earl of
Devon, required some work to be done on the premises occupied
by him under the earl, and the plaintiff, who was generally
employed by Brinsdon, the earl's agent, as a journeyman, was
sent by him to do the work. He did it, but in a negligent man-
ner ; and, during the progress of the work, got drunk; and some
TOOGOOD l'. SPTRING. 149
circumstances occurred which induced the plaintiff to believe
that he had broken open the cellar-door, and so obtained access
to his cider. The defendant, a day or two afterwards, met the
plaintiff in the presence of a person named Taylor, and charged
him with having broken open his cellar-door wi^h a chisel, and
also with having got drunk. The plaintiff denied the charges.
The defendant then said he would have it cleared up, and went
to look for Brinsdon ; he afterwards returned and spoke to Tay-
lor, in the absence of the plaintiff; and, in answer to a question
of Taylor's, said he was confident that the plaintiff had broken
open the door. On the same day the defendant saw Brinsdon,
and complained to him that the plaintiff had been negligent in
his work, had got drunk, and he thought he had broken open
the door, and requested him to go with him in order to examine
it. Upon the trial it was objected that these were what are
usually termed " privileged communications." The learned
judge thought that the statement to Brinsdon might be so, but
not the charge made in the presence of Taylor ; and in respect
of that charge, and of what was afterwards said to Taylor, both
which statements formed the subject of the action, the plaintiff
had a verdict. We agree in his opinion, that the communica-
tion to Brinsdon was protected, and that the statement, upon the
second meeting to Taylor, in the plaintiff's absence, was not ;
but we think, upon consideration, that the statement made to
the plaintiff, though in the presence of Tajlor, falls within the
class of communications ordinarily called privileged ; that is,
cases where the occasion of the publication affords a defence in
the absence of express malice. In general an action lies for the
malicious publication of statements which are false in fact and
injurious to the character of another (within the well-known
limits as to verbal slander), and the law considers such publica-
tion as malicious, unless it is fairly made by a person in the dis-
charge of some public or private duty, whether legal or moral,
or in the conduct of his own affairs, in matters where his interest
is concerned. In such cases the occasion prevents the inference
of maljce, which the law draws from unauthorized communica-
tions, and affords a qualified defence depending upon the absence
of actual malice. If fairly warranted by any reasonable occasion
or exigency, and honestly made, such communications are pro-
tected for the common convenience and welfare of society ; and
150 SLANDER AND LIBEL.
the law has not restricted the right to make them within any
narrow limits.
Among the many cases which have been reported on this sub-
ject, one precisely in point has not, I believe, occurred ; but one
of the most ordinary and common instances in which the prin-
ciple has been applied in practice is, that of a former master
giving the character of a discharged servant ; and I am not aware
that it was ever deemed essential to the protection of such a
communication that it should be made to some person interested
in the inquiry, alone, and not in the presence of a third person.
If made with honesty of purpose to a party who has any interest
in the inquiry (and that has been very liberally construed, Child
v. Affleck, 4 Man. & Ryl. 590 5 9 B. & C. 403), the simple fact
that there has been some casual by-stander cannot alter the
nature of the transaction. The business of life could not be well
carried on if such restraints were imposed upon this and similar
communications, and if, on every occasion in which they were
made, they were not protected unless strictly private. In this
class of communications is, no doubt, comprehended the right of
a master bona fide to charge his servants for any supposed mis-
conduct in his service, and to give him admonition and blame ;
and we think that the simple circumstance of the master exercis-
ing that right in the presence of another does by no means of
necessity take away from it the protection which the law would
otherwise afford. Where, indeed, an opportunity is sought for
making such a charge before third persons, which might have
been made in private, it would afford strong evidence of a mali-
cious intention, and thus deprive it of that immunity which the
law allows to such a statement, when made with honesty of pur-
pose ; but the mere fact of a third person being present does not
render the communications absolutely unauthorized, though it
may be a circumstance to be left with others, including the style
and character of the language used, to the consideration of the
jury, who are to determine whether the defendant has acted
bona fide in making the charge, or been influenced by malicious
motives. In the present case the defendant stood in such a rela-
tion with respect to the plaintiff, though not strictly that of mas-
ter, as to authorize him to impute blame to him, provided it was
done fairly and honestly, for any supposed misconduct in the
course of his employment ; and we think that the fact that the
DE CRESPIGNY V. WELLESLEY. 151
imputation was made in Taylor's presence does not, of itself, ren-
der the communication unwarranted and officious, but at most is
a circumstance to be left to the consideration of the jury. We
agree with the learned judge, that the statement to Taylor, in
the plaintiff's absence, was unauthorized and officious, and there-
fore not protected, although made in the belief of its truth, if it
were, in point of fact, false ; but, inasmuch as no damages have
been separately given upon this part of the charge alone, to
which the fourth count is adapted, we cannot support a general
verdict, if the learned judge was wrong in his opinion as to the
statement to the plaintiff in Taylor's presence ; and, as we think
that at all events it should have been left to the jury whether
the defendant acted maliciously or not on that occasion, there
must be a new trial. Rule absolute for a new trial.
Sir W. De Crespignt v. Wellesley.
(5 Bing. 392. Common Pleas, England, Hilary Term, 1829.)
Privilege. Repeating Libel. In an action for a libel, it is no plea that the defendant
had the libellous statement from another, and, upon publication, disclosed the
author's name.
To the ninth count of a declaration for libel, the defendant,
after pleading the general issue, pleaded, secondly, as to the
publishing, and causing and procuring to be published, the fol-
lowing parts of the said supposed libel of and concerning the
said plaintiff, in the said ninth count of the said declaration men-
tioned, with the intent and meaning therein mentioned ; to wit,
" Mr. De Crespigny told Mr. Wellesley he was wrong in suppos-
ing he had spoken to his father, Sir W. De Crespigny (meaning
the said plaintiff) ; he had written a letter to him, and he had
his (meaning the said plaintiff's) answer, in which he admitted
the fact ; and that his wife, Mrs. De Crespigny, and himself had
the letter ; that all the family knew of the circumstance (inti-
macy) that his poor brother William, who is dead, was extremely
jealous of his father (meaning the said plaintiff), and had been
152 SLANDER AND LIBEL.
turned out of his house ; that his mother had told him that a
chM had been born, and that it had been her conclusion that his
brother Herbert had spoken to his father (meaning to the said
plaintiff) upon the subject, who replied that he (meaning the
said plaintiff) entreated that so distressing a subject might not
be again mentioned to him (meaning to the said plaintiff) ; the
Rev. Mr. De Orespigny told Mr. Wellesley he thought he was
quite right not to allow his children to remain with people so
infamously connected. Mr. De Crespigny informed Mr. Wel-
lesley he had seen the Miss Longs yesterday at their house in
Berkshire, and that he had directly accused Miss Emma Long
with her intrigue, upon which she got so confused that she left
the room in the greatest embarrassment ; that he then stated to
Miss Dora Long that Miss Emma Long had intrigued with his
father (meaning with the said plaintiff), and that Mr. Wellesley
(meaning the said defendant) intended to publish the whole
story, unless they immediately gave up his children. Miss Long
replied, that she had nothing to do with her sister's intrigue, and
she must be responsible for her own conduct ; but that no one
would believe what Mr. Wellesley said. Mr. De Crespigny
assured Mr. Wellesley that she never denied her sister's having
committed the fault. Mr. De Crespigny told her his father had
confessed it (not denied it) ; to which she made no reply, but
put herself into a violent passion, and said she did not wish to
see any of Mr. Wellesley's friends within her house ; notwith-
standing such declaration, she invited Mr. De Crespigny to dine
with them, and to sleep at Binfield House ; the above minutes
were shown to Captain De Brooke, and on the part of the Rev.
H. C. De Crespigny he admitted them twice to be correct, with
the exception of one word, viz., that for confessed it the words
not denied it ought to be substituted." The said defendant, by
leave of the court here for this purpose first had and obtained,
according to the form of the statute in such case made and pro-
vided, says, that the said plaintiff ought not to have and main-
tain his aforesaid action thereof against him, because he says that
before the publishing of the said parts of the said supposed libel
in the said ninth count of the said declaration mentioned, to wit,
on the 5th day of December, in the year of our Lord 1827, at,
&c, the said Rev. H. C. De Crespigny told the said defendant
that he was wrong in supposing that he, the said H. C. De Cres-
DE CRESPIGNY V. WELLESLEY. 153
pigny, had spoken to his father, Sir W. De Crespigny ; he had
written a letter to him, and that he had his (meaning the said
plaintiff's) answer, in which he (meaning the said plaintiff)
admitted the fact; and that his (the said H. C. De Crespigny's)
wife and himself had the letter ; that all the family knew of the
intimacy ; that his poor brother William, who was dead, was
extremely jealous of his father (meaning the said plaintiff),
and had been turned out of his house ; that his brother Herbert
had spoken to his father (meaning the said plaintiff) upon the
subject, who had replied that he ^meaning the said plaintiff)
entreated that so distressing a subject might not be again men-
tioned to him (meaning to the said plaintiff) ; and the said
H. C. De Crespigny then and there further told the said defend-
ant he thought he was quite right not to allow his children to
remain with people so infamously connected. And the said
H. C. De Crespigny afterwards, and before publishing the said
libel in the introductory part of this plea mentioned, to wit. on,
&c, at, &c. further told the said defendant that he had seen the
Misses Long yesterday at their house in Berkshire, and that he,
the said H. C. De Crespigny, had directly accused Miss Emma
Long with her intrigue, upon which she got so confused that she
left the room in the greatest embarrassment ; that he then stated
to Miss Dora Long that Miss Emma Long had intrigued with his
father (meaning the said plaintiff), and that Mr. Wellesley
(meaning the said defendant) intended to publish the whole
story unless they immediately gave up his children. That Miss
Long replied, she had nothing to do with her sister's intrigue,
and that she must be responsible for her own conduct, but that
no one would believe what Mr. Wellesley said ; and the said
H. C. De Crespigny assured the said defendant that she never
denied her sister's having committed the fault. Mr. De. Cres-
pigny told her his father had not denied it ; to which she made
no reply, and said she did not wish to see any of Mr. Wellesley's
friends within her house ; notwithstanding such declaration she
invited Mr. De Crespigny to dine with them, and to sleep at
Binfield House. And the said defendant further said, that
before the publishing the said parts of the said supposed libel
in the introductory part of this plea mentioned, to wit, on, &c,
at, &c, certain minutes and statements in writing were made as
and for correct minutes and statements of the said communica-
154 SLANDER AND LIBEL.
tions and representations so made by the said H. C. De Crespigny
as aforesaid, and the same were then and there revised and cor-
rected by the said H. C. De Crespigny ; and when so revised
and corrected contained, and still do contain, the words and
matter following, with the interlineations and alterations as fol-
lows. (Here followed a statement of the minutes as revised and
corrected by the Rev. H. C. De Crespigny. The expression not
denied, was substituted for confessed ; and the statement, that
his mother told him a child had been born, was erased ; in other
respects the minutes corresponded with the foregoing state-
ments.)
And the said defendant further said, that afterwards, and
before the publishing of the said parts of the said supposed libel,
in the said ninth count mentioned, to wit, on, &c, at, &c, the
said H. C. De Crespigny caused the said minutes and statements,
so revised and corrected by him as aforesaid, and containing the
words and matter last aforesaid, to be delivered to him, the said
defendant, as and for a true and correct statement of the conver-
sation he, the said H. C. De Crespigny, had had with the said
defendant as aforesaid ; and the said minutes were theretofore,
to wit, on, &c, at, &c, shown to the said Captain De Brooke, in
the presence of the said Colonel Freemantle, Mr. Saville Lum-
ley, M.P., and Colonel Paterson. And the said defendant fur-
ther said, that, at the time of the publishing the said parts of the
said supposed libel in the said ninth count, and in the introduc-
tory part of this plea mentioned, as therein mentioned, he, the
said defendant, also published that the same had been so pub-
lished to him by the said H. C. De Crespigny, therein mentioned
as aforesaid ; wherefore he, the said defendant, at the said several
times, when, &c, in the said ninth count mentioned, did publish of
and concerning the said plaintiff the said several parts of the said
supposed libel in that count mentioned, as he lawfully might for
the cause aforesaid, and this he is ready to verify, &c.
To this plea there was a demurrer ; many causes of demurrer
were specified and argued ; but as the decision turned altogether
on the general question, it is unnecessary to state the other
points.
Wilde, Serjt., in support of the demurrer. Spankie, Serjt.,
contra.
Best, C. J. Great industry has been bestowed upon this case
DE CRESPIGNY V. WELLESLET. 155
by mr learned brothers by whom it was argued, but no case has
been cited in which the principle, extrajudicially applied by the
fourth resolution in Lord Northampton's case to oral slander, Las
been extended to libel. We might relieve ourselves from the
difficulty of deciding this question by saying that the technical
objections taken to the pleas by the demurrer are sufficient to
entitle the plaintiff to judgment. But we think it more proper
for us to pronounce our judgment on the principal question
raised by these pleadings, namely, whether a man who receives
from the hands of another a libel on any person is justified in
publishing that libel, provided that in his publication the name of
the person from whom he received it is mentioned ? We do not
hesitate to say. that even if we were to admit, what we beg not
to be considered as admitting, that in oral slander, when a man
at the time of his speaking the words names the person who told
him what he relates, he may plead to an action brought against
him that the person whom he names did tell him what he re-
lated, such a justification cannot be pleaded to an action for the
republication of the libel.
If the person receiving a libel may publish it at all, he may
publish it in whatever manner he pleases ; he may insert it in all
the journals, and thus circulate the calumny through every region
of the globe. The effect of this is very different from that of the
repetition of oral slander. In the latter case, what has been said
is known only to a few persons, and, if the statement be untrue,
the imputation cast upon any one may be got rid of : the report
is not heard of beyond the circle in which all the parties are
known, and the veracity of the accuser, and the previous char-
acter of the accused, will be properly estimated. But if the
report is to be spread over the world by means of the press, the
malignant falsehoods of the vilest of mankind, which would not
receive the least credit where the author is known, would make
an impression which it would require much time and trouble to
erase, and which it might be difficult, if not impossible, ever com-
pletely to remove.
The reason which Lord Coke gives, why in the case of oral
slander you should name the author, proves that you must not be
allowed to publish written calumny; he says that, unless you
mention the name of the author, it might be a great slander of
an innocent; "for if one who has Icesam phantasiam, or is a
156 SLANDER AND LIBEL.
drunkard, or of no estimation, speaks scandalous words, if it
shall be lawful for a man of credit to report generally that he had
heard scandalous words without mentioning his author, that
would give greater color and probability that the words were
true in respect of the credit of the reporter than if the author
were mentioned ; for the reputation of every good man is dear
and precious to him." Of what use is it to send the name of the
author with a libel that is to pass into a country where he is
entirely unknown ? The name of the author of a statement will
not inform those who do not know his character whether he is a
person entitled to credit for veracity or not ; whether his state-
ment was made in earnest or by way of joke ; whether it con-
tains a charge made by a man of sound mind, or the delusion of
a lunatic. There is no allegation in this case that the defendant
believed this statement ; on the contrary, it is to be observed that
Mr. De Crespigny struck out a very material part of the state-
ment, and yet the defendant published it, although he must have
known that it was not correct. I allude to that part in which
the defendant makes Mr. De Crespigny say that his mother had
told him that a child had been born. Although he tells you in
his plea that De Crespigny had erased those words, yet he justi-
fies the publishing of them. The declarations of a son and dying
wife are made the means of blasting the character of a father and
husband. If, without any allegation that its contents were true,
or that the publisher had any reason to believe them to be true,
we were to hold that these pleas were a justification, we should
establish a mode by which men might indulge themselves in ruin-
ing the characters of any persons they might be disposed to ca-
lumniate ; there will be no difficulty in getting wretches, who
would be better off within the walls of a prison than they are
without, to furnish such as will pay for them with any statements
they may desire respecting the character of any person whatso-
ever.
Written communications are often made for the information of
those to whom they are given, and for their information only.
Such communications contain facts necessary to be known by
those to whom they are made, but not fit to be divulged to the
whole world. It may be important to the interest of the mem-
bers of a family to know of things which have taken place in
their family, and which having been disclosed with a due regard
DE CRESPIGXY V. WELLESLEY. 157
to the interest of the person to whom the disclosure was made,
although injurious to some other person's character, would not
be libellous. Can it be permitted that persons possessing such
communications should publish them to the world, if they only
give the names of those by whom they were made ? Such a
doctrine might furnish amusement for the lovers of scandal, but
it would cause much misery in man}- families. It is a principle
of our law that whoever wilfully assists in the doing an unlawful
act becomes answerable for all the consequences of such act.
What reason is there to except the circulation of slander out of
this rule ? He who prints and publishes what was given to him
in manuscript has to answer for by fax the greatest part of the
mischief that the statement has occasioned. But it has been said
at the bar that these pleas are prima facie answers, and that the
circumstances that are to show that the publication was not hon-
estly made are to come from the plaintiff in his replication, or to
be proved under the general replication de injuria. The defend-
ant ought to know the state of the author, and the circumstances
in which he wrote the libel. The plaintiff may be ignorant of
those circumstances. The law requires that facts should be
proved by those who ought to have the means of knowing them,
and not by those who must be presumed ignorant of them. But
these pleas do not present a prima facie defence. They offer
nothing which requires an answer. Because one man does an
unlawful act to any person, another is not to be permitted to do a
similar act to the same person. Wrong is not to be justified, or
even excused, by wrong. If a man receives a letter with authority
from the author to publish it, the person receiving it will not be
justified, if it contains libellous matter, in inserting it in the
newpapers. No authority from a third person will defend a man
against an action brought by a person who has suffered from an
unlawful act. If the receiver of a letter publish it without
authority, he is, from his own motion, the wilful circulator of
slander. This seems to be a case of the latter description ; but,
if published either with or without the authority of the writer, it
can never be a justification, nor can the previous publication be
set up in mitigation of damages, without proof that the author
believed it true, and had some reasonable cause for publishing it.
We are not to endure a reproach against our neighbor. What,
then, is our moral duty, if we hear any thing injurious to the
158 SLANDER AND LIBEL.
character of another ? If what we have been told does not con-
cern the public or the administration of justice, we are to lock it
up for ever in our own breasts. We are on no account to report
it to gratify our enmity to any particular person, or, for that more
common cause of slander, to gratify the malice that exists by a
desire to raise ourselves above, or to keep ourselves upon, an
equality with our neighbors by injuring their characters.
The statements published relative to the plaintiff do not con-
cern the public ; they are not disclosed in the course of the
administration of justice ; nor does it appear from the pleadings
that the defendant, in making this virulent attack on the plaintiff,
has the excuse that he published this paper in his own defence ;
but before he used this statement in any manner, he was bound
to satisfy himself that it was true ; and he does not even say that
he believed it. Before he gave it general notoriety by circulating
it in print, he should have been prepared to prove its truth to the
letter ; for he had no more right to take away the character of
the plaintiff, without being able to prove the truth of the charge
that he had made against him, than to take his property without
being able to justify the act by which he possessed himself of it.
Indeed, if we reflect on the degree of suffering occasioned by loss
of character, and compare it with that occasioned by loss of prop-
erty, the amount of the former injury far exceeds that of the lat-
ter. We are warranted in saying that the defendant has made a
very serious charge against the character of the plaintiff, without
being prepared to make it good ; for if he could have proved that
what he published was true, he might have put the truth of the
statement on the record as his justification.
Judgment for the plaintiff.
Malice in Fact. Privileged Oommu- tor of customs. The plaintiff offered
nications. (a.) Absolute Privilege. — to prove express malice in the court
The existence of an absolute privilege below, and was refused. This was held
from liability for defamatory words has to be error by the Supreme Court of
been denied ; and it becomes important the United States. The case clearly
to examine the cases upon this point, belonged to the class of prima facie
In White v. Nicholls, 3 How. 266, the privileged communication, as the libel
defendants were sued for a libel con- was not published in a judicial or legis-
tained in a memorial to the President of lative cause ; and there can be no doubt,
the United States, praying the removal therefore, of the correctness of the de-
of the plaintiff from the office of collec- cision made. The court, however, pro-
MALICE IN PACT. PRIVILEGED COMMUNICATIONS.
159
eeeded to consider the case of language
used in the courts of justice and in the
legislature, and reached the conclusion
that there were no absolutely privileged
communications. " The description,"
say the court, "of cases recognized as
privileged communications must be un-
derstood ... as being founded upon
some apparently recognized obligation
or motive, legal, moral, or social, which
may fairly be presumed to have led to
the publication, and, therefore, prima
facie relieves it from that just impli-
cation from which the general rule of
law is deduced. The rule of evidence
as to such cases is accordingly so far
changed as to impose it on the plaintiff
to remove those presumptions flowing
from the seeming obligations and situ-
ations of the parties, and to require of
him to bring home to the defendant the
existence of malice as the true motive of
his conduct. Beyond this extent no
presumption can be permitted to operate,
much less be made to sanction the in-
dulgence of malice, however wicked,
however express, under the protection
of legal forms.''
Dicta of Mr. Justice Holroyd and
of Mr. Justice Abbott in Hodgson r.
Scarlett, 1 Barn. & Aid. 2o2. were cited
in support of this position. The former
remarked that if the words were fair
comments upon the evidence, and were
relevant to the matter in issue, then,
unless express malice were shown, the
occasion justified them. " If, however,"
said he, " it be proved that they were
not spoken bona fide, or express malice
be shown, then they may be actiona-
ble; at least our judgment in the pres-
ent case does not decide that they
would not be so." The language of the
learned judge thus appears to be to
the effect that the question of express
malice was not involved in the case,
and leaves it open for future consider-
ation.
The language of Mr. Justice Abbott
was to the effect that the action could
not be maintained unless it were shown
that the counsel maliciously availed
himself of his situation to utter words
wholly unjustifiable. " Here," said he,
" the words were pertinent, and there
is no pretence for saying that the de-
fendant maliciously availed himself of
his situation to utter them."
These remarks do not give much
support to the position of the court in
AYIiite v. Xicholls. They appear to
have been made from extreme caution
lest the decision should seem to cover
ground not intended, at least by those
two judges. That Mr. Justice Hol-
royd's dictum cannot be taken farther
than this appears from what he says in
the subsequent case of Flint v. Pike,
4 Barn. & C. 473, 481. " In the course
of the administration of justice," he ob-
serves, "counsel have a .special privi-
lege of uttering matter even injurious
to an individual, on the ground that
such a privilege tends to the better ad-
ministration of justice. And if a coun-
sel in the course of a cause utter
observations injurious to individuals,
and not relevant to the matter in issue
[quizre, if this is not going too far.
Hastings v. Lusk], it seems to me that
he would not, therefore, be responsible
to the party injured in a common action
for slander, but that it would be neces-
sary to sue him in a special action on
the case, in which it must be alleged in
the declaration and proved at ihe trial
that the matter was spoken maliciously,
and without reasonable and probable
cause." And, showing that this obser-
vation is made deliberately, he adds :
" This may be illustrated by the com-
mon case of a false charge of felony
160
SLANDER AND LIBEL.
exhibited before a justice of the peace ;
there an action upon the case, as for
defamation, will not lie, because the
slander is uttered in the course of the
administration of justice; but the party
complaining is bound to allege that it
was made without reasonable or prob-
able cause." See Johnstone v. Sutton,
1 T. R. 544, 545.
The court in White v. Nicholls
further refer to Curry v. Walter, 1
Bos. & P. 525, where it is held that a
true report of what passed in a court
of justice is not actionable ; and say
that this doctrine has been modified by
later cases. Rex v. Creevey, 1 Maule
& S. 273; Rex e. Carlile, 3 Barn. &
Aid. 1G7 ; Delegal v. Highley, 3 Bing.
N. C. 950; Fairman v. Ives, 5 Barn.
& Aid. 642. But the doctrine of Curry
v. Walter has more recently been con-
sidered, and has been confirmed. Hoare
v. Silverlock, 9 Com. B. 20. This was
an action for an alleged libel, which
consisted ofa*report of a trial of a case
between the plaintiff and another. On
the part of the defendant (who pleaded
not guilty), it was proposed to prove
that the report in question was a fair
and substantially correct report. This
the plaintiff contended was not admis-
sible, at all events under the general
issue. The evidence, however, was
admitted ; and the jury were instructed
that if they were satisfied that the pub-
lication was no more than a fair and
impartial report of the trial, they must
find for the defendant. On a motion
for a new trial, the plaintiff contended
that the defence should have been
specially pleaded, so that he could meet
it ; but the motion was denied, and the
instruction sustained by the full court.
The effect of the decision, therefore,
was that the defence was a complete
one, and not merely prima facie. See
also Ryalls v. Leader, Law R. 1 Ex.
296, where Pollock, C. B., said that
where the report of a trial was fair there
was no foundation for an action for
libel.
It was conceded in White v. Nicholls
that Lake v. King, 1 Saund. 131 b, was
opposed to the view maintained. It
was there held that the printing of a
false and scandalous petition to a com-
mittee of the House of Commons, and
delivering copies of the same to the
members of the committee, was justifi-
able, because it was published in the
order and course of proceedings in
Parliament. It was, indeed, agreed
that no action lay for exhibiting the
petition to a committee of Parliament,
however false and scandalous it was ;
and the only question was, whether the
manner of the publication was justifi-
able. But this may have been on the
ground that Parliament was a court of
justice, competent to examine into such
matters. And, in a subsequent case,
some doubt is thrown upon the doctrine
that petitions to Parliament are abso-
lutely privileged. Fairman v. Ives, 5
Barn. & Aid. 642.
Two other eases were cited by the
learned judge in White v. Nicholls
(Commonwealth v. Clap, 4 Mass. 169,
and Bodwell v. Osgood, 3 Pick. 379),
but in neither of them was the defama-
tion published in the courts or legis-
lature.
There are many cases, besides those
above mentioned, opposed to White
v. Nicholls. In Cutler v. Dixon, 4
Coke, 14 6, it was adjudged that no
allegation contained in articles of the
peace exhibited to justices was action-
able. So, too, in case for exhibiting a
scandalous bill against the plaintiff in
the Star Chamber, it was resolved by the
whole court that for any matter contained
MALICE IN FACT. PRIVILEGED COMMUNICATIONS. 161
in the bill that was examinable before the case by A. against B., the plaintiff
the court no action lay. Buckley r. declares that he took his oath in this
\\ ood, 4 Coke, 14 6, pi. 3. >>"or can court against B. of curtain matters, to
an action be maintained against a wit- bind him to his good behavior ; and
ness for a false charge, Harding v. thereupon B. said, falsely and tnali-
Bodman, Hutt. 11; s. c. Brownl. 2. ciously, intending to scandalize the
!Nor can a presentment of a grand jury plaintiff, " there is not a word true in
be libellous. Moor. 027 ; Hawk. P. C. that affidavit, and I will prove it by
e. To. § 2 ; S Chitty, Pleading, S70. forty witnesses.'1 And it was held in
And it is said to be the better opinion arrest of judgment (the jury having
that no want of jurisdiction in the court found the words false and malicious)
before which a complaint is preferred that the action was not maintainable ;
will take away this protection ; because for the answer which B. made to the
the mistake of the court is not attribu- affidavit was a justification in law. and
table to the party himself, but to his spoken only in defence of himself, and
legal adviser. lb. ; note to Cutler r. in a legal and judicial way.
Dixon, supra. (But Hawkins says The American cases on this point are
that where it appears from the whole not so numerous : but the weight of
circunistaiues of the case that the prose- authority here is also against the doc-
cution is commenced for the mere pur- trine of White e. Xicholls. Besides the
pose of libelling, and without any principal case, Hastings v. Lusk, see
intention to proceed in it, such an also Holmes c. Johnson, Busb. 44 ;
abuse and mockery of public justice Shelter v. Gooding, 2 Jones, 175. In
should not become a shelter for the the first case the question was, whether
guilt which they in reality increased, the defendant could be sued in an ac-
P. C. c. 73, § 2.) tion for malicious prosecution for merely
In Astlev r. Younge, 2 Burr. 807, the taking out a warrant against the plain-
declaration charged that the defendant tiff, charging him with larceny. And it
did maliciouslv make, exhibit, and pub- was held that the action would lie; the
lish to the Court of King's Bench a court saying that if the plaintiff could
malicious, fal?e, and scandalous libel, not avail himself of that action, he would
contained in an affidavit. Plea, that be entirely without remedy, for that he
the defendant made the affidavit in his could not sue for the slanderous words
own defence, against a complaint made " because they were spoken in the
to the court against him for his refusal course of a judicial proceeding."
to grant an ale license, and in answer In the other case (Shelfer r. Good-
thereto, and to an affidavit of the plain- ing), the court held that an action could
tiff. There was a demurrer to this ; and not be maintained against a master for
after argument, in which counsel for the words spoken while acting as counsel for
plaintiff urged that the defendant had ad- his slave in a judicial proceeding, pro-
initted that" the affidavit was made inali- vided the words were material and perti-
ciously, judgment was given for the de- nent to the matter in question. This
fendant conclusion, based principally upon Hast-
In this case Lord Mansfield mentions ings v. Lusk, was reached after a review
the following case, which he says is of the cases, including White v. Xicholls.
"vastly stronger." In an action upon The protection afforded to judicial
11
162
SLANDER AND LIBEL.
proceedings embraces, according to the
better opinion, the pleadings in the
cause; for the power to strike out scan-
dalous matter, and to punish as for a
contempt, is considered a sufficient
guaranty against the abuse of the privi-
lege. Townshend, Slander, § 221;
Henderson v. Broomhead, 4 Hurl. & N.
577. So, of affidavits made in the
course of a trial, especially if pertinent :
Garr v. Selden, 4 N. Y. 91; Doyle v.
O'Doherty, Car. & M. 418; Warner
v. Payne, 2 Sandf. l9o; and even
though the person making it be not
a party to the cause : Henderson v.
Broomhead, supra; Revis v. Smith,
18 Com. B. 126. Nor does an action
lie against a witness for what he may
have said: Revis v. Smith, supra;
Lewis v. Few, 5 Johns. 13; though (it is
said) the testimony be irrelevant, or in-
fluenced by malice : Calkins v. Sumner,
13 Wis. 193. But see White v. Carroll,
42 N. Y. 161; Allen v. Crofoot, 2
Wend. 515 ; Lea v. White, 4 Sneed,
111. So, too, judges, while exercising
judicial functions, are privileged. Scott
v. Stansfield, Law R. 3 Ex. 220. So
of coroners holding an inquest. Thomas
v. Churton, 2 Best & S. 475. And so,
in general, of words uttered in the bona
fide discharge of official duty. Goode-
now v. Tappan, 1 Ohio, 60 ; Wilson v.
Collins, 5 Car. & P. 373; Rector
v. Smith, 11 Iowa, 302 ; Dunham v.
Powers, 42 Vt. 1 ; Sands v. Robison,
12 Smedes & M. 704.
(6.) Proceedings before church or-
ganizations, against members of the
church, for violation of their creed, are
quasi judicial, and afford a protection '
to the utterance of defamatory language,
if it be pertinent to the matter in ques-
tion. Farnsworth v. Storrs, 5 Cush.
412; York v. Pease, 2 Gray, 282;
Dunn v. Winters, 2 Humph. 512.
The case first cited was an action for
an alleged libel against a clergyman.
The female plaintiff, while a member of
the defendant's society, had committed
fornication : and for this offence she
was, by the alleged libel, excommuni-
cated from the church, after sundry un-
successful attempts towards bringing her
to an acknowledgment of her faultand to
repentance. The society, having finally
voted to exclude her from further mem-
bership, authorized the pastor to draw
up the communication complained of,
and to read the same before the con-
gregation, which he did. The plain-
tiff claimed that the libel charged the
offence of adultery, which was denied.
No proof of express malice was offered ;
and it was held that the action would
not lie. Whether the communication,
therefore, was absolutely privileged does
not clearly appear ; and the court care-
fully distinguished the case from a charge
of adultery, which is indictable by stat-
ute. It is, however, to be inferred
from the language of the Chief Justice
that the protection against the charge
of fornication was complete. After
giving the opinion that the offence
charged was fornication, he said that,
even upon the ground taken by the
plaintiff, that the offence charged was
adultery (which charge would not have
been true), the defendant was justified.
Amongst the powers and privileges of
churches given by statute and established
by immemorial usage, they had authority
to deal with their members for immoral
and scandalous conduct ; and for that
purpose to hear complaints, to take
evidence, and to decide; and, upon
conviction, to administer proper pun-
ishment by way of rebuke, censure,
suspension, and excommunication." The
proceedings of the church were quasi
judicial, and, therefore, those who com-
MALICE IN FACT. PRIVILEGED COMMUNICATIONS.
163
plained, or gave testimony, or acted
and voted, or pronounced the result,
orally or in writing, while acting in
good faith, and within their jurisdiction,
were protected by law.
In York v. Pease, 2 Gray, 282. the
defendant, while on trial for dishonesty
before a church meeting, spoke certain
defamatory words of the plaintiff; and
the judge instructed the jury that if the
words were spoken during the progress
of the trial, and in good faith, for the
purpose of defence, they were privi-
leged. On appeal, this was held correct.
In Dunn v. Winters, 2 Humph. 512,
the defendant pleaded to an action for
a libel, charging the plaintiff, in certain
certificates of third persons, with being
a party concerned in the malicious kill-
ing of the defendant's horses ; that the
parties were both members of a Baptist
church; and that the plaintiff had ac-
cused him before the church of falselv
accusing him concerning the death of
his horses ; and that, in defence to this
charge, he had produced the certificates
containing the alleged libel; and that he
had done so honestly and bona Jide,
and not maliciously. To this a demurrer
was sustained, on the ground that the
communication was privileged.
The case did not raise the question
of the extent of the privilege ; and
nothing was said upon the point. It
seems very clear, however, that if the
defendant in cases of this kind confines
himself to that which is relevant in sup-
port of bis defence, no inquiry can be
made into the motives which may have
actuated him in doing so. If the de-
fence be a proper one, it cannot be
material that he intended to injure the
plaintiff, as well as to protect himself.
(c.) Reports of Trials and other Pub-
lic Proceeding*. — • As to reports of judi-
cial trials in the public prints, it is settled
law that they must be full, — or at least
full enough to give a correct impression
of the proceedings, — and without
comments. If they be partial, or be
followed by comments containing de-
famatory charges, the presumption of
malice will stand.
In Flint v. Pike, 4 Barn. & C. 473,
the declaration alleged that the defend-
ant had published of the plaintiff a libel,
professing to give a short summary of
the facts of a certain case in which the
plaintiff was attorney. The libel stated
that the defendant's counsel in that case
was both extremely severe and amusing
at the expense of the present plaintiff;
and it then professed to give a few out-
lines of the speech of the said counsel
for the defendant ; and the part of the
speech set out contained some very
severe reflections on the conduct of the
plaintiff in connection with the suit in
which he was then engaged. Plea, that
the supposed libel was, in substance, a
true report of the trial of the said issue ;
to which a demurrer was sustained.
Mr. Justice Bayley said that the
speeches of counsel were privileged,,
because they were made for the purpose
of influencing the jury in their decision.
The auditors and jury had an opportunity
to judge how far the observations made
were warranted by the evidence; but
here the publisher of the libel, not hav-
ing published the evidence in full, had
given his readers no such opportunity.
And he referred to cases in which it
had been held indictable for parties to
publish in the newspapers speeches
made by themselves in Parliament, con-
taining defamatory matter. Rex v.
Creevey, 1 Maule & S. 27:3 ; Rex v.
Abingdon, 1 Esp. 226. He cited also
Lake r. King, 1 Saund. 120. where a
petition presented for the use of mem-
bers of a committee of the House of
164
SLANDER AND LIBEL.
Commons had been circulated else-
where, which was held unjustifiable.
And he was inclined to go even further
than the case required, and to hold that
the speeches of counsel reflecting on the
character of others should not be pub-
lished even in connection with a full
report of the facts.
Mr. Justice Holroyd said that it by-
no means followed that, because coun-
sel were privileged in argument to utter
injurious language, a third person might
repeat it to all the world. The repeat-
ing of such slander was not done in
the course of the administration of jus-
tice.
Mr. Justice Littledale thus stated
his objection to the plea: "By sub-
stance, I apprehend, is meant the infer-
ence which the person who published
the libel draws from the whole of what
passed at the trial. The plea, therefore,
amounts to this, that the libel, in his
judgment, is a true account and report
of the trial. Now, in my judgment, it
appears upon the face of the declaration
that the libel does not contain a true
and accurate report of the trial, be-
cause it neither details the speech of
the counsel for the plaintiff nor the
evidence, nor even the whole of the
speech of the counsel for the defendant.
But even supposing that this had not
appeared on the face of the declaration,
and that the libel professed to give the
speeches of both counsel, and the evi-
dence, still I think that this plea, which
states that the libel contained in sub-
stance a true and accurate report of the
trial, is not good in point of form. In
an action for a libel it is necessary to
set out in the declaration the words of
the libel itself, in order that the court
may see whether they constitute a good
ground of action. In Wright v. Cle-
ments, 3 Barn. & Aid. 503, a declara-
tion stating that the defendant published
a libel, containing false and scandalous
matter, ' in substance as follows,' and
then setting out the libel with innuen-
does, was held to be bad in arrest of
judgment, because it professed to give
only the general import and effect of
the libel, and not a copy of it. For the
very same reason it appears to me that
it is not sufficient to state in a plea that
the libel is in substance a true and ac-
curate report of the trial. I think the
plea ought to show the libel to be a true
account and report of the trial."
In Stiles v. Nokes, 7 East, 493, it
was held to be libellous to publish a
highly colored account of judicial pro-
ceedings, mixed with the party's own
observations and conclusions upon what
passed in court, which contained an
insinuation that the plaintiff had com-
mitted perjury. And it was de-
cided to be no justification for such
insinuation against the plaintiff (who
had sworn to an assault upon him by
A. B.), that it did appear (this being
the suggestion in the libel), from the
testimony of every person in the room,
except the plaintiff, that no violence
had been used by A. B. ; for non con-
stat, thereby that what the plaintiff
swore was false. Neither was it a
sufficient justification for such a libel,
where the extraneous matter was so
mingled with the account of the trial
as to make it uncertain whether it could
be separated, to justify the publication
by general reference to such parts of
the supposed libel as purport to con-
tain an account of the trial, and that
the said parts contained a just and
faithful account of the trial. See also
Thomas v. Croswell, 7 Johns. 264,
272 ; Lewis v. Walter, 4 Barn. & Aid.
612 ; Roberts v. Brown, 10 Bing. 519 ;
Delegal v. Highley, 3 Bing. N. C.
MALTCE IN FACT. PRIVILEGED COMMUNICATIONS.
165
950 ; Blake v. Stevens, 4 Fost. & F.
282.
In a case at nisi prius (Turner
t\ Sullivan, 6 Law T. s, s. 130) the
judge charged the jury that a news-
paper has a right to publish an abridged
or condensed report of what passes in
a court of justice, if it were fair, so as
to convey a just impression of what
took place ; and of this the jury were
to judge.
It is equally objectionable if the
injurious comments be placed at the
head of the report, as a title to the
same. In Lewis i. Clement, 8 Barn.
& Aid. 702, the plaintiff declared for a
libel concerning himself as an attorney.
The libel began. " Shameful conduct
of an attorney ; '' and then proceeded
to give an account of proceedings in a
court of law, which contained matter
injurious to the plaintiff's professional
character. The defendant pleaded that
the supposed libel contained a true
account of the proceedings in the court
of law. But it was held, after verdict
for the defendant, that the plea was
bad, inasmuch as the words " shame-
ful conduct of an attorney "' formed no
part of the judicial proceedings. See
also Bishop r. Latimer, 4 Law T.
x. s. 775 : Edsall r. Brooks, 2 Rob.
($. Y.) 29 ; Mountney v. Wotten, 2
Barn. & Ad. 673 ; Hunt r. Algar, 6 Car.
& P. 245.
But of course the editor may use a
heading indicative of the nature of the
trial. In Lewi? r. Levy, El., B. & E.
537. the heading of a report was,
"Wilful and corrupt perjury;" and
the court, after verdict, said that this
was merely stating the charge made
against the plaintiff. "It may be a
heading," it was said, " entirely inno-
cent, simply indicating what is to
follow ; and it would be a question for
the jury whether it is a fair and bona
Jide report of the proceedings.''
If the proceeding be a preliminary
and ex parte one, it will not, if it be
private, be privileged. In Duncan v.
Thwaites, 8 Barn. & C. 556, the plain-
tiff sued for a libel published in a news-
paper, charging him with having under-
gone a long examination before a
magistrate for an alleged indecent as-
sault upon a young girl, for which he
was held to bail. The libel stated that
the evidence displayed a complication
of indecencies that could not be de-
tailed. One of the pleas was that the
alleged libel was a true, fair, and just
report of the proceedings before the
magistrate, which proceedings were
held publicly and openly at the police
office. On demurrer the plea was held
bad.
Abbott, C. J., said that the ease
which most nearly resembled the pres-
ent was Curry r. Wright, 1 Esp. 456,
s. c. 1 Bos. & P. 523, where a similar
plea had been held good. After re-
marking that that case had not received
the sanction of subsequent judges, he
said it was distinguishable from the
present. That was an account of a
proceeding in the King's Bench, a court
instituted for final determination as
well as for preliminary inquiry, a court
whose doors were open to the public.
The proceeding now in question was
before justices of the peace, and of a
kind which they might lawfully conduct
in private, whenever the)' thought
proper. The proceeding in Curry ».
Wright terminated in a refusal of the
application, and not by putting the
subject into a train for further inquiry
and trial. The present proceeding
terminated finally by holding the ac-
cused to bail for trial.
The court, however, did not wish it
166
BLANDER AND LIBEL.
to be inferred from these distinctions
that they thought that the publication
of ex parte proceedings even of the
King's Bench were allowable.
But in a recent case this intimation
that preliminary proceedings in the
public courts might not safely be re-
ported is overturned, as is also the dis-
tinction suggested between proceedings
before magistrates and the superior
courts, the statute of 11 & 12 Vict.
c. 43, ■§ 12, having made the proceed-
ings before magistrates public. Lewis
v. Levy, EL, B. & E. 537.
The declaration in that case set
out reports of three separate days'
proceedings respectively (on two ad-
journments) before a magistrate ; the
report of the first day stating that the
plaintiff was charged with perjury, and
an adjournment, but reserving the re-
port ; the report of the second day
also stating an adjournment in lan-
guage intimating that there would be a
report of the proceedings of the day to
which the adjournment was made ; and
the report of the third stating the dis-
charge of the party charged. The jury
found generally that the reports were
fair and correct ; and the court held that
the reports of the first two meetings did
not lose their privilege by reason of
the proceedings there reported being
final.
To the position of counsel that the
privilege of reporting legal proceed-
ings was to be confined to those of the
superior courts, the reply was that on
such a question the dignity of the court
could not be regarded. No distinction
could be made between a court of pie
poudre and the House of Lords. " As
to magistrates," said the courts, " if,
while occupying the bench from which
magisterial business is usually adminis-
tered, they, under pretence of giving
advice, publicly hear slanderous com-
plaints over which they have no juris-
diction, although their names may be in
the commission of the peace, reports
of what passes before them are as little
privileged as if they were illiterate
mechanics, assembled in an alehouse."
See Duncan v. Thwaites, 3 Barn. &
C. 556.
Duncan v. Thwaites, supra, was dis-
tinguished on the ground that there the
alleged libel contained a highly colored
statement of the reporter, insinuating
the guilt of the accused in the assault
upon the child ; and also on the ground
that the result of the examination in
the present case was the discharge of
the plaintiff, as in Curry v. Walter,
1 Bos. & P. 525.
The court proceed to say: "We
are not prepared to lay down for law
that the publication of preliminary
inquiries before magistrates is univer-
sally lawful ; but we are not prepared
to lay down for law that the publica-
tion of such inquiries is universally
unlawful. Although there are numerr
ous obiter dicta, there is no decision to
this effect. In the cases relied upon to
establish the general doctrine, it will
be seen that there were vituperative
comments accompanying the statement
of the evidence, or some aggravation
attending the publication of the re-
port, or some peril which was likely to
be caused to the person complaining of
it. Here we have a preliminary inquiry
before a magistrate, which turned out to
be unfounded, and was dismissed. If the
whole inquiry had taken place before a
magistrate during one hearing, would
an impartial and correct report of the
proceeding, published in a newspaper
next morning, have been actionable?
We think not." Curry v. Wright was
then referred to ; and the court con-
MALICE IN FACT. PRIVILEGED COMMUNICATIONS.
167
tinued : "The difference to be relied
upon [between that case and the pres-
ent] must be the difference of the tri-
bunals. But although a magistrate
upon any preliminary inquiry respect-
ing an indictable offence may, if he
thinks fit,* carry on the inquiry in pri-
vate, ... we conceive that, while he
continues to sit foribus apertis, . . .
the court in which he sits is to be con-
sidered a public court of justice."
The doctrine of this case of Lewis
i. Levy, was followed by Martin, B.,
at nisi prius, in Pinero r. Goodlake,
15 Law T. x. s. 676, to the effect that
reports of public preliminary proceed-
ings before magistrates are privileged,
when impartial and correct.
In this country it is held that there
is no privilege in publishing an a parte
affidavit, made to obtain the plaintiff's
arrest. Cincinnati Gazette Co. p. Tim-
berlake, 10 Ohio St. 548.
In Stanley r. Webb, i Sandf. 21, it
was held that the privilege pertaining to
reporting the proceedings of the courts
of justice did not extend to the publi-
cation of ex parte preliminary proceed-
ings before police magistrates ; but in
that case the report bore the heading,
" Extorting money to hush up a com-
plaint," which would of itself, it would
seem, have taken away any privilege.
The court, however, took the broad
position that publications of this sort
were not privileged ; and the case was
soon after followed in Matthews v.
Beach, 5 Sandf. 256.
It may be doubted, however, if the
later English doctrine of Lewis r. Levv
be not more consistent with American
ideas of the liberty of the press : giv-
ing protection to fair and full reports
of the proceedings of inferior courts,
sitting with open doors, in cases where
the defendant is discharged.
At common law no privilege is con-
ferred upon the proprietors, publishers,
or editors, as such, of the public prints,
beyond that of reporting the judicial
proceedings of courts of justice, and
perhaps the proceedings of the legislat-
ure. Davison v. Duncan, 7 El. & B.
229; Sheckell r. Jackson, 10 Cush.
25 ; Hoare r. Silverloek, 9 Com. B. 20 ;
Gathercole r. Miall, 15 Mees. & W.
819 ; ante, p. 109.
In the case first cited the libel com-
plained of was contained in a news-
paper report of a public meeting of the
Commissioners of the West Hartlepool
Improvement Commission. It pur-
ported to give an account of the pro-
ceedings of the meeting, in the course
of which a license from the Bishop of
Durham to a gentleman as chaplain of
the West Hartlepool Cemetery was laid
before the commissioners. Several of
the commissioners Commented on this,
and in so doing used injurious expres-
sions regarding the plaintiff, who, it
appeared, had been the late bishop's
secretary, and whom they accused of
procuring the license by misrepresen-
tations to the present bishop. The
defendant pleaded that the meeting
was a public one, of a body acting
under powers granted by Parliament,
and that the report complained of was
a fair and truthful statement of what
had occurred at the meeting. To this
there was a demurrer, on the ground
that there was no allegation of the
truth of the injurious expressions used
by the commissioners ; and the de-
murrer was sustained.
Lord Campbell, C. J., said, that a
fair account of judicial proceedings was
privileged ; but this privilege did not
extend to reports of all public meet-
ings. In the former case, the incon-
venience arising from the chance of
168
SLANDER AND LIBEL.
injury was infinitesimally small com-
pared to the convenience of publicity ;
but to extend the privilege would be
extremely inconvenient, exposing per-
sons to great calumnies. " There is no
difference in law," said Mr. Justice
Coleridge, " whether the publication is
by the proprietor of a newspaper or by
some one else. There is no legal duty
on either to publish what is injurious
to another; and if any person does so,
lie must defend himself on some legal
ground. Now, if the publication be a
fa*ir account of a proceeding, not ex
parte, in a court of justice, it is priv-
ileged. The principle on which that
proceeds is, as my lord says, that the
balance of advantage in having such
proceedings public is great. But that
principle does not extend to this case ;
and it never has been laid down that
whatever is said at any meeting held for
a public purpose, however injurious to
an individual, is public property, and
may be repeated with impunity."
In Sheckell v. Jackson, 10 Cush. 25,
the plaintiff sued for a libel in tho
defendants' newspaper, charging him
with treachery and bad faith in regard
to money received by him to obtain the
manumission of a fugitive slave ; and it
was held that the fact that there was a
general anxiety in the community con-
cerning the fate of the slave was inad-
missible in evidence. Without an offer
to prove that the plaintiff had been
guilty of the deception imputed to him,
the general anxiety, it was said, afforded
no justification or excuse for charging
such misconduct upon the plaintiff.
In Gathercole v. Miall, 15 Mees. &
W. 319, it was held that the conduct
and management, by the clergyman of
a parish, of a charitable society in the
parish, from the benefits of which dis-
senters were by his sanction excluded,
was not a lawful subject of comment
in a newspaper so as to excuse, under
the plea of not guilty, the publication
of untrue and injurious matter respect-
ing the clergyman's relation to the
charity.
The same principles prevail where
the defamatory matter is published in
the absence of the proprietor or editor
of the publication, and without his
knowledge, or contrary to his orders.
Dunn v. Hall, 1 Ind. 345 ; Andres v.
Wells, 7 Johns. 260; Rex v. Gutch,
Moody & M. 433; ante, pp. 109,
110.
It is proper to add in this connec-
tion that literary criticism, however
severe, can in no case be ground for an
action of defamation, unless the writer
departs from the proper object of such
criticism, and attacks directly or cov-
ertly the character of another, or seeks
to bring his person into contempt and
ridicule. The author's writings may be
ridiculed, but not his person or char-
acter. See Carr v. Hood, 1 Camp. 355,
358, note, where Lord Ellenborough
directed the jury that if the writer of
the criticism complained of (on a book
written by the plaintiff) had not trav-
elled out of the work he had criticised
for the purpose of slander, the action
would not lie ; but if they could dis-
cover in it any thing personally slan-
derous against the plaintiff, unconnected
with the works he had given to the pub-
lic, in that case he had a good cause of
action. See also Thompson v. Shack-
ell, Moody & M. 187 ; Cooper v. Stone,
24 Wend. 442; Stuart v. Lovell, 2
Stark. 93 ; Eraser v. Berkeley, 7 Car. &
P. 621; Dihdin v. Swan, 1 Esp. 28
Kelly v. Tinling, Law R. 1 Q. B. 701
Hibbs v. Wilkinson, 1 Fost. & F. 610
Tabart v. Tipper, 1 Camp. 350 ; Dunne
v, Anderson, 3 Bing. 88 ; Paris v. Levy,
MALICE IN FACT. PRIVILEGED COMMUNICATIONS.
169
9 C. B. n. s. 342 ; Seymour o. Butter-
worth, 3 Fost, & F. 884; Reade v.
Sweebier, 6 Abb. Pr. k. s. 9, note.
(d.) Master giving a " Character" to
his Servant. — The subject of privilege
has often been considered, especially in
England. In actions between servant and
master for false characters given. The
general rule is, that where the master
gives a character to his servant, it will
be presumed, prima facie, that the
character was given without malice.
Edmonson ». Stevenson, Buller N. P. 8 ;
Weatherston v. Hawkins, 1 T. R. 110;
Fountain v. Boodle, 3 Q. B. 11; Rogers
v. Clifton, 3 Bos. & P. 587 ; Child t>.
Affleck, 9 Barn. & C. 403.
The case of Fountain v. Boodle,
supra, illustrates the point, and also
shows that, if there is any evidence
that the statement complained of was
false to the knowledge of the defend-
ant, the plaintiff establishes a case for
the jury. This case was an action for
a libel. It appeared that the plaintiff
had been employed as governess in the
defendant's family for upwards of a
year, during which time the defendant
had twice recommended her for other
similar positions, and that she was now
dismissed in an abrupt manner, without
cause assigned, and had lost a new en-
gagement in consequence of the defend-
ant giving the following answer to an
inquiry respecting her qualifications : " I
parted with her on account of her in-
competency, and not being lady-like
nor good-tempered," to which this post-
script was added : ** May I trouble you
to tell her that this is the third time I
have been referred to. I beg to decline
any more applications." The plaintiff
gave general evidence of her lady-like
manners and good temper. No evidence
was given for the defendant. And Lord
Denman instructed the jury that the
communication was privileged unless
there was direct evidence that it was
influenced by some malicious feeling;
but if a p>*ima facie case of intentional
falsehood had been made out, the de-
fendant ought to have shown the asser-
tion to have been made under a belief
of its truth. The question was, there-
fore, whether there was sufficient proof
that the defendant had been influenced
by an improper feeling in making a
false statement knowingly. And the
direction was held right, there being
some evidence of malice.
The mere fact that the communica-
tion was voluntarily made does not
necessarily prevent its being priv-
ileged; but the manifestation of for-
ward and officious zeal in giving a
character, uninvited, to the prejudice
of his former servant would be a
material guide to a jury in ascertaining
the real motive of the defendant. In
Pattison i>. Jones, 8 Barn. & C. 578, a
master had written a letter giving a
character to his servant, without ap-
plication, but afterwards wrote another
in answer to inquiries made concerning
the plaintiff's character, stating the
grounds on which he had discharged
him. And it was held that, assuming
the second letter to have been privi-
leged, it was proper for the jury to say
whether it was a bona fide communica-
tion.
Mr. Justice Bayley said that it was
not necessary to a privileged communi-
cation that the party who makes the
communication should be put into ac-
tion in consequence of a third party's
putting questions to him. He was of
opinion that the master, when he
thought that another was about to take
into his service one whom he knew
ought not to be taken, might set him-
self in motion, and do some act to in-
170
SLANDER AND LIBEL.
duce that other to seek information from
and put questions to him. The answers
to such questions, given bona fide with
the intention of communicating such
facts as the other party ought to know,
would, though containing slanderous
matter, come within the scope of privi-
leged communications.
In another case Col tin an, J., said:
" If a neighbor make inquiry of another
respecting his own servants, that other
may state what he believes to be true.
But the case is different when the state-
ment is a voluntary act; yet even in
this case the jury is to consider whether
the words were dictated by a sense of
the duty which one neighbor owes to
another." Rumsey v. Webb, Car. &
M. 104. See also Dixon v. Parsons, 1
Fost. & F. 24; Fryer v. Kinnersley,
15 C. B. n. s. 429 ; Gardner v. Slade,
13 Q. B. 796 ; Bennett v. Deacon, 2
C. B. 628 ; Picton v. Jackman, 4 Car.
& P. 257; Coxhead o. Richards, 2
C. B. 569; Krebs v. Oliver, 12 Gray,
239.
In Coxhead v. Richards, just cited,
two of the judges expressed the opin-
ion that though a defamatory communi-
cation were made to a third party without
previous inquiry, yet if it was of impor-
tance to the interests of that party that
such communication should be made,
it was privileged if made bona fide, in
the reasonable belief that it was true.
The other two judges thought that
where there was no relation between
the parties which created a duty to
make the defamatory communication,
and it was not required for the interest
of the person who made it, the impor-
tance of it to a third party to whom it
was made would not confer any privi-
lege upon it, if made voluntarily, and
not in answer to any inquiry. See
Davis v. Reeves, 5 Irish Com. L. 79,
90, where the Chief Baron concurred in
the doctrine first mentioned ; Smith v.
Higgins, 16 Gray, 251, where it is said
that no one can be held responsible for
a statement or publication tending to
disparage the reputation of another, if
it is made in the discharge of a social
or moral duty, or is required in order
to protect one's own interest or that of
another. In such cases it often happens
that the communication must be made
voluntarily, if at all.
On the other hand, the fact that the
communication was made upon request
will not always justify it. In Joannes
v. Bennett, 5 Allen, 169, it was held
that a letter to a woman, containing
libellous matter concerning her suitor,
could not be justified on the ground
that the writer was her friend and
former pastor, and that the letter was
written at the request of her parents.
(e.) Communications made to the
proper public authorities, upon occa-
sions of seeking redress for wrongs or
injuries suffered, or upon matters in'
which the public are concerned, or in
which the party making or receiving
the communication is interested, will be
presumed to have been made bona fide,
until malice is proved. As where the
defendant charged the plaintiff before a
constable with being a thief, and trying
to rob him of part of her wages ; it
appearing that the words had been
spoken to the officer in his character as
constable, after having sent for him to
take the plaintiff into custody. Lord
Eldon, C. J., said that the evidence
given of the speaking of the words laid
in the declaration was not such as to
induce him to direct the jury to find a
verdict for the plaintiff. Words used in
the course of a legal proceeding, how-
ever hard they might bear upon the
party of whom they were used, were
MALICE IX FACT. PRIVILEGED COMMUNICATIONS. 171
not such as would support an action for been imported into New York, contrary
slander. In this case they had been to law. Thereupon the board of trus-
spoken under a belief of the fact, and tees appointed the defendants a corn-
when die defendant was seeking redress, inittee to investigate such complaints,
But it is held in England that, though and report to the board. They pro-
it may be the duty of all persons to ceeded to do so, and made a joint re-
give inlormation to the crown's proper port in writing to the board, intending
officers concerning abuses of offices of to have it presented to the Secretary of
trust, still the falsehood and absence of the Treasury, which was done. The
all ground for a communication of the report contained the statement charged
kind is sufficient proof of malice when as libellous, which narrated several in-
no excuse is offered in evidence on the stances in which impure and adulterated
part of the defendant. Robinson v. drugs had been passed through the eus-
May, 2 Smith, 3. torn-house upon the plaintiff's certificate
At a town-meeting, having under to their genuineness and good quality,
consideration an application from the The answer further averred that said
assessors of the town for reimburse- report was forwarded to the secretary
nient for expenses incurred in defend- for the purpose of procuring the en-
ing a suit, on the ground that it was forcenient of the act of Congress ; that
brought against them for acts done in it was forwarded with reasonable cause,
their official capacity, a statement of in good faith ; and that the defendants
a voter and tax-payer that they had were moved solely by a conscientious
therein perjured themselves is privi- desire to discharge their duties to the
leged if made in good faith, with a public, to prevent the unlawful importa-
belief in its truth, and without actual tion and use of adulterated medicines,
malice. Smith e. Higgins, 16 Gray, and without malice towards the plaintiff.
-51. A demurrer to the answer was over-
In a c.ise in Xew York (Tan Wyek ruled. Xo action could be maintained
r. Aspinwall, 17 X. Y. 190), the plain- upon such a publication, said the court,
tiff sued the defendants for a libel without proof of malice and want of
alleged to have been contained in a probable cause. The occasion for the
report made by them to the Secretary publication repelled the inference of
of the Treasury. The plaintiff was in malice, which, but for the privilege,
examiner and inspector of drugs for the would have been drawn from its in-
port of Xew York, under appointment jurious character. And the doctrine of
of said secretary. The defendants an- Lord Campbell in Harrison r. Bush, 5
swered that they were trustees of the El. & B. SH ; s. c. 32 Eng. Law & E.
College of Pharmacy in the city of Xew 173. was quoted with approval, to the
York, — an institution incorporated for effect that a communication made bona
the purpose, among other things, of cul- fide, upon any subject-matter in which
tivating and improving pharmacy, and the party communicating has an inter-
of making known the best modes of est, or in reference to which he has a
preparing medicines, with a view to the duty, whether legal or only moral and
public benefit. Complaints had been of imperfect obligation, is privileged, if
made to the trustees that spurious and made to a person having a correspond-
adulterated drugs and medicines had ing interest or duty, though it contain
172
SLANDER AND LIBEL.
criminatory matter which, without this
privilege, would be slanderous and ac-
tionable.
In Vanderzee v. McGregor, 12 Wend.
545, also an action for libel, it appeared
that the statement complained of was
contained in a memorial signed by the
defendant and others, inhabitants of the
town of Wilton, presented to the board
of excise of the town, remonstrating
against the granting to the plaintiff a
license to keep a tavern there ; in which
it was stated that the plaintiff was a pro-
fessional pettifogger ; that he stirred up
suits ; that he endeavored to have jus-
tice's courts held at his house ; and that
he demanded juries, when unnecessary :
for the purpose of bringing large num-
bers of people together at his tavern.
The court held the memorial privi-
leged.
This case was decided upon the au-
thority of Thorne v. Blanchard, 5 Johns.
508. The libel in that ease was a peti-
tion to the council of appointment of
New York, praying the removal of the
plaintiff from the office of district attor-
ney, and assigning as the ground of such
request that the plaintiff grossly abused
and perverted the powers of his office.
It was held, upon a review of the early
cases, that the communication was privi-
leged.
Gray v. Pentland, 4 Serg. & R. 420,
was also referred to, where the plain-
tiff complained of an alleged libel con-
tained in an affidavit to the Governor of
Pennsylvania concerning his conduct in
an office held at the governor's will;
and it was held necessary to prove ex-
press malice.
In Lawler v. Earle, 5 Allen, 22, it
was held that statements made by the
owner of a building which had been set
on fire to persons employed by him in
it, accusing a certain person of being
the incendiary, and cautioning them
against him, were, if made in good
faith, privileged So, too, if the owner
of stolen goods, in a search for them at
the house of the suspected thief, accuse
him of the larceny in answer to a ques-
tion as to his object, the words are
privileged. Brow v. Hathaway, 13
Allen, 239.
But if the communication, though
made to a public officer, be made to
one who has no authority over such
matters, it will not be privileged so as
to require proof of malice. Blagg v.
Sturt, 10 Q. B. 899; ib. 906 ; Simpson
v. Down, 16 Law T. N. s. 391. See
Harrison v. Bush, 5 El. & B. 344.
Though if the defendant, by mistake,
have made the communication to the
wrong person, quaere, as to whether the
privilege be removed. See Harrison
v. Bush, supra. There is a nisi prius
case deciding that where a timekeeper
employed on public works, on behalf of
a public department, having written a
letter to the secretary of the depart-
ment (the wrong person), imputing
fraud to the contractor, the question for
the jury is, Was the letter written in
good faith, and in the discharge of
duty ? if it was, it was privileged. Scarll
v. Dixon, 4 Post. & F. 250.
Whether a communication which,
if addressed to competent authority,
would be privileged, loses its privilege
by being published in the newspapers,
is not in all cases clear. In Simpson v.
Down, 16 Law T. N. s. 391, the plain-
tiffs alleged that the defendants had
published in a local newspaper a letter
in which they charged the plaintiffs with
serious breaches of duty which they
owed as contractors for the erection of
a jail in H. The defendants were
members of the town council, and,
from their business, competent judges
MALICE IN FACT. PRIVILEGED COMMUNICATIONS.
173
of the work. It was held that the
communication was not privileged,
though it would have been if it had
been made by the defendants as coun-
cillors to the town council.
But where the plaintiff held the office
of wey warden, and a rate-paver of the
district, in a letter published in a news-
paper, imputed that the plaintiff had
paved and drained his own premises
with the public money, it was held, in
an action against the proprietors of the
newspaper, that there was no limit to
comments on the public acts of a man
who held or claimed a public office,
unless the jury found that such com-
ments were made maliciously. Harle
r. Catherall, 14 Law T. x. s. SOI.
It is not altogether clear whether
the learned judge in this case regarded
the communication privileged ; but the
report shows no proof of malice outside
of the communication. The inference,
therefore, is that the jury were allowed
to find malice in the newspaper article
itstlf, or in some lack of inquiry by the
defendant; which they did, apparently,
the verdict having gone for the plaintiff.
This inference is confirmed (in connec-
tion with the ruling that criticism on a
public officer was not libellous without
proof of malice) by a remark of the
judge that, while he was not to decide
that matter, his impression was that the
communication was libellous.
It was said in this connection that,
had the action been brought against the
u-riter of the alleged libel, the commu-
nication clearly would not have been
privileged.
Perhaps the proper distinction is
this: Where the plaintiff is direetly
amenable to the appointing power,
charges through a newspaper are not
privileged, and (if faUe) are prima
facie malicious ; but where the plaintiff
cannot be directly reached by the power
that gave him his position, as in the case
of a public officer elected for a year,
without a provision for removal, the
newspaper, being the proper and usual
medium for informing the public of the
shortcomings of its servants, is a privi-
leged organ of communication ; and
whether the action be against the writer
of the alleged libel, or against the pub-
lisher or editor of the paper, express
malice must be proved.
In Hatch c. Lane, 105 Mass. 394, it
appeared that the defendant, a baker,
employing several drivers in delivering
bread iu T. and adjoining towns, had
inserted in a newspaper published in T.
a card that the plaintiff, " having left
my employ, and taken upon himself
the privilege of collecting my bills, this
is to give notice that he has nothing
further to do with my business." The
plaintiff requested the judge to rule
that the community had no sucb interest
in the subject-matter of the card as
would authorize the defendant to make
it through the medium of a newspaper ;
but the judge refused so to rule, and
instructed the jury that tlie publication
was privileged if made in good faith.
And the instruction was upheld. The
court said that the fact that a communi-
cation was made in the hearing of others
than the parties immediately interested
would not of itself defeat the defence of
privilege. See Brow d. Hathaway, 18
Allen, 2S9.
See in this connection Taylor v.
Church, 8 N. Y. 452, where it was held
that one who undertook, for an associ-
ation of merchants in New York, to
ascertain the pecuniary standing of
merchants aud traders residing in other
places, who were customers of some of
the members of the association, and who
furnished reports to all the members of
174
SLANDER AND LIBEL.
the association, irrespectively of the
question whether they had an interest in
the question of the standing of such mer-
chants and traders, was liable for any
false report made by him prejudicial to
the credit of the subject of it, though
made honestly and from information
upon which he relied. The publication
could not be considered privileged.
(y.) Communications between per-
sons holding confidential relations to
each other are also privileged. B atson
v. Skene, 5 Hurl. & N. 855; Davis v.
Reeves, 5 Irish Com. L. 79 ; Picton v.
Jackman, 4 Car. & P. 257.
In Davis v. Reeves, supra, it was
held that a person's general attorney,
though not employed in any legal pro-
ceedings for him, is a proper person to
give information in his client's interest ;
and that such, though defamatory of
third persons, will be protected if bona
fide.
So a defamatory communication
made by the owner of a house to his
tenant, the occupier, imputing disgrace-
ful and immoral conduct to some of the
inmates, may be privileged if made
bona fide, as between landlord and
tenant. Knight v. Gibbs, 3 Kev. &
M. 469. See also Cockayne ». Hodg-
kisson, 5 Car. & P. 543.
Communications to auctioneers by
persons interested in the property to be
sold have sometimes been held privi-
leged. In Blackham v. Pugh, 2 C. B.
611, the defendant had given notice to
an auctioneer not to part with the pro-
ceeds of a certain sale, as the plaintiff
had committed an act of bankruptcy.
A majority of the court held that the
communication, having been honestly
made by the defendant in a matter con-
cerning his own interest as a creditor
of the plaintiff, was privileged.
When a confidential relation is es-
tablished between two persons with re-
gard to an inquiry of a private nature,
whatever takes place between them,
relevant to the same subject, though at
a time and place different from those at
which the confidential relation began,
may be entitled to protection, as well
as what passed at the original inter-
view; and it is a question for a jury
whether any further conversation on
the same subject, though apparently
casual and voluntary, did not take
place under the influence of the confi-
dential relation already established be-
tween them, so as to be entitled to the
same protection. Beatson v. Skene, 5
Hurl. & N. 838.
(<?.) Publications in vindication of
character sometimes come within this
class of cases of privileged communica-
tions. As where an attorney published
a letter in vindication of the character
of one of his clients, the letter contain-
ing defamatory imputations upon an-
other who had preferred charges of
conspiracy against the client. In an
indictment for libel, Cockburn, C. J.,
instructed the jury that if they were of
opinion that the defendant published
the letter honestly, and for the vindica-
tion of his client's character, in answer
to scandalous charges published against
him, then the occasion was privileged;
and if the jury were further of opinion
that the terms used in the letter were
such as, under all the circumstances,
might well be deemed warranted, then
the publication would be protected.
That the privilege may also extend to
civil actions, see Koenig v. Ritchie, 3
Fost. & F. 413.
This doctrine is, indeed, always to
be understood with the limitation sug-
gested above, that the time and mode
of the publication are suited to the oc-
casion. For it seems to be clear that
MALICE IN FACT. PRIVILEGED COMMUNICATIONS.
175
whether the occasion and circumstances
supply an absolute or mei ely qualified
justification, dependent on the question
of actual malice, they do not extend to
justify publication not warranted by the
occasion and circumstances. Starkie
Slander, 2S7.
Indeed, it is a general principle that
communications otherwise privileged
lose their protection if they be made in
a manner unnecessarily injurious to the
plaintiff, or with undue exaggeration
and excess of defamatory language.
See Brown r. Croome, 2 Stark. 297 ;
Toogood <,-. Spy ring, ante; Fryer v.
Kinnersley, 15 C. B. x. s. 422 ; Cooke
v. Wildes, 5 El. & B. 32S.
In Brown v. Croome, supra, the de-
fendant had published in a newspaper
an advertisement strongly reflecting
upon the plaintiff, who had been ad-
judged a bankrupt : and Lord Ellen-
borough held the same libellous, though
the advertisement had been published
with the avowed purpose of convening
a meeting of the creditors for the pur-
pose of consulting upon the measures
proper to be adopted for their own
security. Counsel for the defence then
proposed to show that this was the only
mode that could have been adopted,
since the creditors were numerous and
scattered. To this Lord Ellenborough
said that if it could be shown that an
advertisement in the newspaper was the
only possible means of communicating
notice of the circumstances, that might
be sufficient to vindicate the mode ; but
a communication sufficient for the pur-
pose might have been made in measured
language. The mode, he further ob-
served, made an essential distinction
which applied to all the cases ; as in
the case of a brief to counsel, the pub-
lication between the attorney and the
counsel might not be libellous, and yet,
if it were to be printed and published,
there might be a libel in every line.
Every unauthorized publication to the
detriment of another was, in point of
law, to be considered malicious.
(h.~) The principle in all these cases
seems to be, that defamatory words are
prima facie malicious. Some occasions
rebut the presumption of malice ; and
those are called cases of privileged com-
munication. And if the words be more
defamatory than the occasion requires,
that again raises the presumption of
malice. Cooke v. Wildes, 5 El. & B.
328, 335, Erie, J. ; Wright v. Wood-
gate, 2 Cromp., M. & R. 573.
Whether the occasion for writing
or speaking the defamatory language,
which would otherwise be actionable,
repels the inference of malice and con-
stitutes it a privileged communication,
is a question of law ; but whether the
defendant was prompted by external
malice must, in these as in other cases,
be decided by the jury. Cooke a.Wildes,
5 El. & B. 328 ; Somerville i\ Hawkins,
10 Com. B. 583 : Taylor r. Hawkins,
16 Q. B. 308. Thus, in Fryer v. Kin-
nersley, 15 Com. B. x. s. 422, the jury
had negatived (external?) malice; but
it was held that, as the communication
complained of (which would otherwise
have been privileged) contained exces-
sive language, its protection was gone,
and that malice, therefore, must be in-
ferred from the words.
(i.) Xorthampton's Case. Repeating
Defamation. — The doctrine of the fourth
resolution in Northampton's Case, 12
Coke, concerning the repetition of def-
amation, has been generally overruled
both in Enghind and in America ; and
the ride of law now is that, whether the
words be written or spoken, it is neither
a justification for the defendant to say
that he heard or received them from
176
SLANDER AND LIBEL.
another person, naming him, nor does
this make the words privileged so as
to cast the burden upon the plaintiff
of proving them to have been repeated
maliciously. They are still, if defama-
tory, prima facie malicious, justifying
a verdict for the plaintiff; and if he
would rebut the presumption, he must
show that he repeated the words on a
justifiable occasion, believing them to
be true, or that the rumor was in fact
true. In other words, he must either
rebut the presumption of malice, or
prove the truth of the report. Mc-
Pherson v. Daniels, 10 Barn. & C. 270 ;
Ward v. Weeks, 7 Bing. 211 ; Tidman
v. Ainslie, 10 Ex. 63 ; Watkin v. Hall,
Law R. 3 Q. B. 396 ; Maitland o. Bram-
well, 2 Fost. & F. 623 ; Dole v. Lyon,
10 Johns. 447 ; Inman v. Foster, 8
Wend. 602; Stevens v. Hartwell, 11 Met.
542 ; Sans v. Joerris, 14 Wis. 663. Con-
tra, Haynes v. Leland, 29 Maine, 233.
The point is well illustrated in the
recent case of Watkin v. Hall, above
cited. The declaration in that case
stated that the defendant had spoken
of the plaintiff (who was chairman of
the South-eastern Railway Company)
the words, " You have heard what has
caused the fall [in the stocks of the said
railway company] , — I mean the rumor
about the South-eastern chairman hav-
ing failed ; " meaning thereby that the
plaintiff had become embarrassed in his
pecuniary affairs and insolvent. The
defendant pleaded that he meant, and
was understood by the by-standers to
mean, that there had been and was then
a rumor current on the Stock Exchange
about the chairman of the South-eastern
Railway Company having failed, and
not that the plaintiff had become em-
barrassed and insolvent ; and that it was
true there had been and then was a
rumor on the Stock Exchange that the
chairman of the said railway company
had failed.
The court held, on demurrer, that
the plea was not an answer to the
declaration, since the existence of the
rumor did not justify the repetition of
the slander contained in it, without
proof that the defendant believed it to
be true, and that he spoke the words
on a justifiable occasion.
Mr. Justice Blackburn quoted with
special approbation the following lan-
guage of Littledale, J., in McPherson
D. Daniels, 10 Barn. & C. 263, 272 : "It
is competent to a defendant, upon the
general issue, to show that the words
were not spoken maliciously, by proving
that they were spoken on an occasion or
under circumstances which the law, on
grounds of public policy, allows, as in
the course of a parliamentary or judi-
cial proceeding, or in giving the char-
acter of a servant. But if the defend-
ant relies upon the truth as an answer
to the action, not because it negatives
the charge of malice (for a person may
wrongfully or maliciously utter slander-
ous matter, though true, and thereby
subject himself to an indictment), but
because it shows that the plaintiff is not
entitled to recover damages. For the
law will not permit a man to recover
damages in respect of an injury to a
character which he either does not or
ought not to possess. Xow. a defend-
ant by showing that he stated, at the
time when he published slanderous mat-
ter of a plaintiff, that be heard it from
a third person, does not negative the
charge of malice, for a man may wrong-
fully and maliciously repeat that which
another person may have uttered upon
a justifiable occasion. Such a plea does
not show that the slander was published
on an occasion or under circumstances
which the law, on grounds of public
MALICE IN FACT. PRIVILEGED COMMUNICATIONS.
177
policy, allows. Nor does it show that
the plaintiff has not sustained, or is not
entitled in a court of law to recover,
damages. As great an injury may ac-
crue from the wrongful repetition as
from the first publication of slander.
The first utterer may have been a per-
son insane or of bad character. The
person who repeats it gives greater
weight to the slander. A party is not
the less entitled to recover damages in
a court of law for injurious matter pub-
lished concerning him, because another
person previously published it. That
shows, not that the plaintiff has been
guilty of any misconduct which renders
it unfit that he should recover damages
in a court of law, but that he has been
wronged by another person as well as
the defendant, and may consequently,
if the slander was not published by the
first utterer on a lawful occasion, have
an action for damages against that per-
son as well as the defendant."
12
178 MALICIOUS PROSECUTION.
MALICIOUS PROSECUTION.
Vanderbilt v. Mathis, leading case.
Byne v. Moore, leading case.
Grainger v. Hill, leading case.
Note on Malicious Prosecution.
Historical aspects of the subject.
Termination of the prosecution.
Want of probable cause.
Malice.
Damage.
Malicious abuse of process.
Vanderbilt v. Mathis.
(5 Duer, 304. Superior Court, New York City, February, 1856.)
To maintain an action for malicious prosecution, three facts, if controverted, must
be established: 1. That such prosecution was determined in favor of the plaintiff
before the action was commenced. 2. The want of probable cause. 3. Malice.
Consideration of these three elements. An acquittal of the plaintiff held, not prima
facie evidence of want of probable cause.
The plaintiff complained that the defendant had falsely, mali-
ciously, and without any reasonable or probable cause, charged
him with committing perjury in a certain case before R. E.
Stilwell, a commissioner of the United States for the Southern
District of New York, whereupon the plaintiff was arrested
and brought before said commissioner, and upon examination
acquitted.
The errors of law alleged are stated in the opinion.
L. B. Shephard, for plaintiff. J. S. Williams, for defendant.
Bosworth, J. To maintain an action for malicious prosecu-
tion, three facts, if controverted, must be established : 1. That
the prosecution is at an end, and was determined in favor of the
plaintiff. 2. The want of probable cause. 3. Malice.
In such an action it is necessary to give some evidence of
the want of probable cause. It is insufficient to prove a mere
acquittal ; that, alone, is not prima facie evidence of the want
of probable cause. Gorton v. De Angelis, 6 Wend. 418.
VANDERBILT V. MATHIS. 179
It is equally essential that the former prosecution should
appear to have been maliciously instituted. Malice may be
inferred from the want of probable cause, but such an inference
is one which a jury is not required to make, at all events, merely
because they may find the absence of probable cause.
Unless the evidence, in relation to the circumstances under
which the prosecution was ended, and that given to establish
the want of probable cause, justify the inference of malice, other
evidence, in support of it, must be given.
Evidence as to the conduct of the defendant, in the course of
the transaction, his declarations on the subject, and any forward-
ness and activity in exposing the plaintiff by a publication, are
properly admitted to prove malice. Such evidence must be
given as will justify a jury in finding the existence of malice.
The rule is uniformly stated, that, to maintain an action for a
former prosecution, it must be shown to have been without prob-
able cause, and malicious. Vanduzer v. Linderman, 10 Johns. R.
106 ; Murray v. Long, 1 Wend. 140 ; 2 Stark. Ev. 494 ; Willans
v. Taylor, 6 Bing. 183.
The judge, at the trial, charged that the fact that the plaintiff
was discharged before the magistrate showed, prima facie, that
there was no probable cause for the arrest, and shifted the bur-
den of proof from the plaintiff to the defendant, who was bound
to show affirmatively that there was probable cause.
He was requested to charge "that the discharge of Vanderbilt
was not prima facie evidence of the want of probable cause."
This he refused to do. To this refusal to charge, and to the
charge as made, the defendant excepted.
He also charged " that, if probable cause is made out, the
question of malice becomes immaterial, except as bearing on the
, question of damages."
" This question of malice in fact, supposing that probable cause
did not exist, is material only as affecting the question of dam-
ages."
He was requested to charge " that the jury could not find a
verdict for the plaintiff, unless he has proved that there was no
probable cause for the complaint, and not even then, unless they
believe, from the evidence, that, in making the complaint, the de-
fendant acted from malicious motives." This the judge declined
to do, and to his refusal so to charge the defendant excepted.
180 MALICIOUS PROSECUTION.
Although the evidence which establishes the want of probable
cause may be, and generally is, such as to justify the inference
of malice, yet we understand the rule to be, that when it is a
just and proper inference from all the facts and circumstances
of the case, upon all the evidence given in the cause, " that the
defendant was not actuated by any improper motives, but only
from an honest desire to bring a supposed offender to justice, the
action will not lie, because such facts and circumstances disprove
that which is of the essence of the action, viz., the malice of the
defendant in pressing the charge."
In Bulkeley v. Smith, 2 Duer, 271, the court stated the rule to
be, "that, in order to maintain a suit for a malicious prosecution,
the plaintiff is bound to prove the entire want of a probable cause
for the accusation, and the actual malice of the defendant in
making it. Malice is a question of fact, which, when the case
turns upon it, must be decided by the jury."
Story, J., in Wiggin v. Coffin, 3 Story, 1, instructed the jury that
two things must concur to entitle a plaintiff to recover in such an
action. " The first is, the want of probable cause for the prose-
cution ; the second is, malice in the defendant in carrying on the
prosecution. If either ground fail, there is an end of the suit."
In Vanduzer v. Linderman, 10 Johns. R. 106, the court said:
" No action lies merely for bringing a suit against a person without
sufficient ground. To maintain a suit for a former prosecution,
it must appear to have been without cause and malicious."
If the charge must be understood to mean, that if the want
of probable cause was established, the plaintiff was entitled to
recover, although the jury should believe, from the whole evi-
dence, that in making the complaint the defendant did not act
from malicious motives, then we deem it to be erroneous. This
construction is the only one of which the language of the instruc-
tion appears to be susceptible ; for the judge, in charging the
jury, stated that the " question of malice in fact, supposing that
probable cause did not exist, is material only as affecting the
question of damages."
Malice in fact is that kind of malice which is to be proved.
When malice may be, and is inferred, from the want of probable
cause, it is actual malice which is thus proved.
There is no theoretical malice which can satisfy this rule, and
which can coexist with the established fact, that the prosecution
BYXE V. MOORE. 181
was instituted in an honest belief of the plaintiff's guilt, and with
no other motives than to bring a supposed offender to justice.
The question of malice may be a turning-point of the contro-
versy, in tin action of this nature.
The want of probable cause may be shown ; and yet, upon the
whole evidence, in any given case, it may be a fair question for
the determination of a jury, whether the defendant was actuated
by malice. If the whole evidence is such that a jury cannot
properly doubt the honesty and purity of the motive which
induced the former prosecution, and if they fully believe that it
was instituted from good motives, and in the sincere conviction
that the plaintiff was guilty of the offence charged, and without
malice, the defendant would be entitled to a verdict.
The charge made, and which was excepted to, must be deemed
to have been made to give the jury a rule of action, in disposing
of the case upon the whole evidence. We think it was not only
calculated to mislead, but was erroneous.
A new trial must be granted, with costs to abide the event.
Btne v. Moore.
(5 Taunt. 1ST. Common Pleas, England, Michaelmas Term, 1813.)
Damages not proved. Where, in an action for maliciously indicting for an assault, the
plaintiff gave no other evidence than the bill returned " not found," and was there-
upon nonsuited, the court refused to set aside the nonsuit.
This was an action for a malicious prosecution. The declara-
tion alleged that the defendant, maliciously intending to injure
the plaintiff and bring him into public scandal, infamy, and dis-
grace, and to cause him to be imprisoned for a long space of time,
and thereby to impoverish, oppress, and ruin him, went before
Dr. Rose, being one of the justices of the peace assigned, &c,
for the county of Surre}', and before him, being such justice,
falsely and maliciously, and without an}- reasonable or probable
cause whatever, charged the plaintiff with having assaulted and
beat the defendant ; and upon such charge the defendant falsely
and maliciously, and without any reasonable or probable cause,
182 MALICIOUS PROSECUTION.
caused and procured the said Dr. Rose, being such justice, to
grant his warrant under his hand and seal for apprehending the
plaintiff and bringing him before Dr. Rose, or some other justice
of the peace for Surrey, to be dealt with according to law, for the
said supposed offence ; and the defendant, by virtue of that war-
rant, afterwards, wrongfully and unjustly, and without any rea-
sonable or probable cause, procured the plaintiff to be arrested
and imprisoned, and to be detained until he was carried before
the Lord Mayor of London, being one of the justices of the
peace for the city of London, to be examined before him touch-
ing the said supposed crime, and further caused the plaintiff to
be carried or conveyed in custody before a certain other magis-
trate at the public office, Union Street, assigned to -keep the
peace for the county of Surrey, to be examined before him touch-
ing the supposed crime, and to be by the said justice obliged to
find sureties to enter into a recognizance to the king, before some
justice, for the plaintiff's personal appearance at the then next
general quarter sessions of the peace for Surrey, and then and
there to answer the complaint of the plaintiff for assaulting and
beating him, by reason whereof the plaintiff, in pursuance of the
recognizance so entered into, at the next general quarter sessions
of the peace for Surrey, on the 14th of January, 1812, before
Randle Jackson; Esq., and certain justices of the peace for that
county, did personally appear pursuant to the said recognizance;
and the defendant did further falsely and maliciously, and with-
out any reasonable or probable cause, cause a bill of indictment
to be preferred against the plaintiff (which the declaration set
out), for an assault on the defendant ; and the defendant falsely
and maliciously, and without any reasonable or probable cause
whatsoever, at the said sessions exhibited and preferred the said
indictment against the plaintiff to the jury of the grand inquest
then and there at the said sessions sworn to inquire for the king
and the body of the county, and then and there maliciously and
falsely gave evidence before the same jurors, of and concerning
the matters contained in that indictment, and endeavored and
strove, as much as in him lay, to cause and procure the said
indictment to be found a true bill by the same jurors against the
plaintiff, when in truth the whole matter contained in that
indictment was false, scandalous, and contrary to truth, and so
it then and there after their examination of witnesses thereon
BYNE r. MOORE. 183
returned the indictment to the court of the said session "not
found," whereupon the plaintiff and his sureties were then and
there discharged of their recognizance, and the prosecution
became and was ended and determined. There was a second
count for preferring the indictment only. The defendant pleaded
the general issue. Upon the trial of this cause at the Surrey-
Lent Assizes. 1812, before Macdonald, C. J., it appeared that the
warrant issued by Dr. Rose stated the charge to be for violently
assaulting the defendant. The charge which the defendant in
fact made was for assaulting and striking. It was objected that
there was a variance between the offence described in the war-
rant, the offence described in the charge made, and the offence
averred in the allegation of a charge for assaulting and beating,
and the Chief Baron, considering the variance as fatal, nonsuited
the plaintiff.
Best, Serjt., for plaintiff. ShepJnrd, Serjt., for defendant.
Mansfield, C. J. I feel a difficulty to understand how the
plaintiff could recover in the present action, wherein he could
recover no damages, because he clearly has not proved that he
has sustained any. I can understand the ground upon which an
action shall be maintained for an indictment which contains scan-
dal, but this contains none, nor does any danger of imprisonment
result from it ; this bill was a piece of mere waste paper. All
the cases in Buller's Nisi Prius, 13, are directly against this
action, for the author speaks of putting the plaintiff to expense,
and affecting his good fame, neither of which could be done here.
If this action could be maintained, every bill which the grand
jury threw out would be the ground of an action. The judge,
too, might certify in this cause against the costs, if the damages
had been under 40s.
Heath J., concurred.
Chambre, J. It would he a very mischievous precedent if the
action could be supported on this evidence.
Ride discharged.
18-4 MALICIOUS PROSECUTION.
Grainger v. Hill and Another.
(4 Bing. N. C. 212. Hilary Terra, 1838.)
Malicious Abuse of Process. In an action for abusing the process of the court, in order
illegally to compel a party to give up his property, it is not necessary to prove that
the action in which the process was improperly employed has been determined, or
to aver that the process was sued out without reasonable or probable cause.
The declaration stated that the plaintiff, before the time of the
committing of the grievances by the defendants hereinafter men-
tioned, was master and proprietor of a certain smack or vessel,
hereinafter mentioned ; and the plaintiff, being such proprietor,
and having occasion to borrow a certain sum of money to meet
his needs, applied to and requested the defendants to lend and
advance to him the sum of 80Z., which they, the defendants,
agreed to do, upon having the repayment thereof secured to
them by a mortgage of the said smack or vessel ; and it was
thereupon agreed by and between the plaintiff and defendants
that a mortgage of the said vessel should be accordingly made
and given; and that the sum of money so to be advanced and
lent by the defendants to the plaintiff should afterwards be
repaid by the plaintiff to the defeudants on a certain time then
agreed upon, and not yet elapsed, to wit, the 28th of September,
1837 ; and that in the mean time the plaintiff should retain the
command of the said smack or vessel, and prosecute and make
voyages therein for his own profit and advantage ; and there-
upon, afterwards, to wit, on the 30th of September, 1836, the
defendants accordingly lent and advanced to the plaintiff, upon
and in pursuance of the said agreement, and upon the security
aforesaid, the said sum of 801. ; and the plaintiff also thereupon,
in pursuance also of the said agreement, by a certain indenture
then made, signed, sealed, and delivered by the defendants of
the one part and the plaintiff of the other part (the indenture
was here set out), mortgaged the said vessel, subject to a proviso
of redemption on payment of 80Z., together with interest for the
same in the mean time, at and after the rate of five per cent per
annum, on the 28th of September, 1837, then and now next
ensuing; and the plaintiff did, in and by the said indenture, cov-
enant, promise, and agree to and with the defendants that the
GRAINGER V. HILL. 185
plaintiff should well and truly pay, or cause to be paid, to the
defendants the said sum of 80?., with interest for the same, after
the rate aforesaid, at or on the day and time therein and herein-
before expressed and appointed for payment of the same. That
the defendants wrongfully, illegalty, and maliciously contriving
to injure, harass, and distress the plaintiff, and to compel the
plaintiff, by and through fear and duress of imprisonment, to
give up and relinquish to them certain goods and chattels of and
belonging to the plaintiff, and not included in the said mortgage
security, to wit, a certain register and a certain certificate of the
register of the said smack or vessel, and without the possession
of which the plaintiff could not go to sea or prosecute his said
voyages in manner aforesaid as agreed upon by and between
the plaintiff and defendants, as the defendants well knew, long
before the said time so appointed as aforesaid for the payment of
the said sum of SO?., to wit, on, &c, called upon and requested
payment of and from the plaintiff of the said sum of 80?., and
then threatened to arrest him for the same unless he immedi-
ately paid to them the amount thereof. That, upon the plain-
tiff's refusing so to do, the defendants wrongfully and unjustly
contriving and intending as aforesaid, and to imprison, harass,
oppress, injure, and impoverish the plaintiff, and to cause and
procure him to be arrested and imprisoned, and to prevent his
making and prosecuting any voyages whatsoever in his said
smack or vessel, and wholly to ruin the plaintiff thereby, well
knowing that the plaintiff was wholly unprepared and unpro-
vided with bail, heretofore, to wit, on the 26th of November,
1836, falselv and maliciously caused and procured to be sued and
prosecuted out of the court of our lord the king of the bench
at Westminster, for the said sum of 80?., a certain writ of our
lord the king called a capias (setting it out). That the
defendants, contriving and intending as aforesaid, afterwards, to
wit, on, &c wrongfully, illegally, and maliciously caused and
procured the said writ to be. and the same was then, marked and
indorsed for bail for 95?. 17s. 6<?., being the sum of 80?. and cer-
tain alleged costs, charges, and expenses, making together the
sum of 95?. 17a. 6c7. ; and the said writ being indorsed for bail
as aforesaid, the defendants afterwards and before the return
thereof, to wit, on, &c., contriving and intending as aforesaid,
wrongfully and maliciously caused the plaintiff to be, and he
186 MALICIOUS PROSECUTION.
then was, arrested by his body, under and by virtue of the said
writ, and was thereupon imprisoned, and kept and detained in
prison for a long time, to wit, for the space of twelve hours then
next following, until he, the plaintiff, not being prepared or pro-
vided with bail to the said action, by and through fear and
duress of imprisonment, was forced and compelled to give up
and relinquish to them the goods and chattels before mentioned,
to wit, the said register and certificate, of registry, and did so
give up and relinquish the same ; and the defendants thence
hitherto wrongfully and unjustly, and against the consent and
will of the plaintiff, forcibly and against law kept and detained
the same from the plaintiff. By means of which said several
premises, the plaintiff being, as the defendants before and after
the time of the said arrest well knew, wholly unprepared and
unprovided with bail, whilst he was so imprisoned as aforesaid,
not only suffered great pain of body and mind, and was greatly
exposed and injured in his credit and circumstances, and was
hindered and prevented from performing and transacting his
lawful business and affairs by bim during that time to be per-
formed and transacted, but especially was prevented and deterred
from making and prosecuting with the said smack or vessel,
divers, to wit, four several voyages with and in the said smack or
vessel, to wit, from London to Caen and back again, and lost and
was deprived thereby of all the benefits, profits, and advantages
which would have otherwise flowed and accrued to him the
plaintiff therefrom, and was by means of the premises otherwise
greatly injured and damnified.
There was a count in trover for a ship's register. The defend-
ants pleaded the general issue.
At the trial it appeared that in September, 1836, the plaintiff,
by deed, mortgaged to the defendants for 801. a vessel of which he
was owner as well as captain. The money was to be repaid in
September, 1837 ; and the plaintiff was to retain the register of
the vessel in order to pursue his voyages.
In November, 1836, the defendants, under some apprehension
as to the sufficiency of their security, resolved to possess them-
selves of the ship's register, and for this purpose, after threaten-
ing to arrest the plaintiff unless he repaid the money lent, they
made an affidavit of debt, sued out a capias indorsed for bail in
the sum of 95Z. 17s. Qd. in an action of assumpsit, and sent two
GRAINGER f. HILL. 187
sheriff's officers with the writ to the plaintiff, who was lying ill
in bed from the effects of a wound. A surgeon present, perceiv-
ing he could not be removed, one of the defendants said to the
sheriff's officers, '• Don't take him away ; leave the young man
with him." The officers then told the plaintiff that tliey had not
come to take him, but to get the ship's register ; but that if he
failed to deliver the register, or to find bail, they must either take
him. or leave one of the officers with him.
The plaintiff being unable to procure bail, and being much
alarmed, gave up the register.
The plaintiff afterwards came to an arrangement with the
defendants, was discharged from the arrest, paid the costs,
repaid the money borrowed on mortgage, and received from the
defendants a release of the mortgage deed. No further steps
were taken in the action of assumpsit.
L pen this arrangement a caption fee. which had been charged
and paid by the plaintiff to the sheriff's officers, was repaid by
the defendants to the plaintiff.
A verdict having been given for the plaintiff, Taddy, Serjt.,
moved for -a nonsuit.
Talfourd. Serjt., and James, showed cause. Taddy, Serjt., and
i?. V. Richards, in support of the rule.
Tixdal, C. J. This is a special action on the case, in which
the plaintiff declares that he was the master and owner of a ves-
sel, which, in September, 1S36, he mortgaged to the defendants
for the sum of 80?., with a covenant for repayment in September,
ISoT. and under a stipulation that, in the mean time, the plaintiff
should retain the command of the vessel, and prosecute voyages
therein for his own profit ; that the defendants, in order to com-
pel the platiniff through duress to give up the register of the ves-
sel, without which he could not go to sea, before the money lent
on mortgage became due, threatened to arrest him for the same
unless he immediately paid the amount : that, upon the plaintiff
refusing to pay it, the defendants, knowing he could not provide
bail, arrested him under a capias, indorsed to levy 95?. 17s. 6d.,
and kept him imprisoned, until, by duress, he was compelled to
give up the register, which the defendants then unlawfully de-
tained, by means whereof the plaintiff lost four vo3ages from
London to Caen. There is also a count in trover for the register.
The defendants pleaded the general issue ; and, after a verdict
188 MALICIOUS PROSECUTION.
for the plaintiff, the case comes before us on a double ground,
under an application for a nonsuit, and in arrest of judgment.
The first ground urged for a nonsuit is, that the facts proved
with respect to the writ of capias do not amount to an arrest.
It appears to me that the arrest was sufficiently established.
The second ground urged for a nonsuit is, that there was no
proof of the suit commenced by the defendants having been ter-
minated. But the answer to this, and to the objection urged in
arrest of judgment, namely, the omission to allege want of rea-
sonable and probable cause for the defendants' proceeding, is the
same ; that this is an action for/ abusing the process of the law,
by applying it to extort property from the plaintiff, and not an
action for a malicious arrest or malicious prosecution, in order to
support which action the termination of the previous proceeding
must be proved, and the absence of reasonable and probable cause
be alleged as well as proved. In the case of a malicious arrest,
the sheriff at least is instructed to pursue the exigency of the
writ. Here the directions given, to compel the plaintiff to yield
up the register, were no part of the duty enjoined by the writ.
If 'the course pursued by the defendants is such that there is no
precedent of a similar transaction, the plaintiff's remedy is by an
action on the case, applicable to such new and special circum-
stances ; and his complaint being that the process of the law has
been abused, to effect an object not within the scope of the pro-
cess, it is immaterial whether the suit which that process com-
menced has been determined or not, or whether or not it was
founded on reasonable and probable cause.
As to the count in trover, if the taking of the register was
wrongful, that taking was of itself a conversion, and no demand
and refusal was necessary as a preliminary to this action. It
seems to me that taking the property of another without his
consent, by an abuse of the process of the law, must be deemed
a wrongful taking, and, therefore, this rule must be discharged.
Park, J. I am of the same opinion. According to the au-
thority in Buller's Nisi Prius this was a good arrest.
The argument as to the omission to prove the termination of
the defendants' suit, and to allege want of reasonable and proba-
ble cause for it, has proceeded on a supposed analogy between
the present case and an action for a malicious arrest. But this is
GRAINGER V. HILL. 189
a case primes impressionis, in which the defendants are charged
with having ahused the process of the law, in order to obtain
property to which they had no color of title ; and, if an action
on the case be the remedy applicable to a new species of injury,
the declaration and proof must be according to the particular cir-
cumstances. I admit the authority of the cases which have been
cited, but they do not apply to the present.
As to the count in trover, the compulsion under which the
register was obtained was tantamount to a conversion, and a
demand and refusal was not necessary in order to support this
action. In Parker v. Patrick, 5 T. R. 175, where the defendant
had regained possession of goods of which he had been deprived
by a fraud, and the plaintiff, who had given value for them with-
out notice of the fraud, sued him in trover, and obtained a ver-
dict, it was never objected that he should have demanded the
goods in order to commence his action. So, in Wyatt v. Blades,
3 Campb. -396, the act of bankruptcy was committed the 8th of
December ; the goods were seized on the 8th of February follow-
ing, and carried to a broker's ; on the 12th of the same month
the commission issued ; and notice was afterwards served upon
the sheriff not to sell the goods, as they belonged to the assignees.
In consequence, the goods were never sold, but still remained at
the broker's, and no demand of them was ever made. But Lord
Ellenborough said : •' Had the goods not been removed, it would
have been difficult to say there was an}- conversion ; but I think
the removal of them after the act of bankruptcy is a sufficient
conversion to maintain the action, notwithstanding the subsequent
notice." That is a strong case to show that, where the cir-
cumstances attending the taking are tantamount to an actual
conversion, a demand is not necessary to support an action of
trover.
Vaughan, J. I think that in law this was clearly an arrest.
If the party is under restraint, and the officer manifests an inten-
tion to make a caption* it is not necessary there should be actual
contact. With respect to the termination of the defendants' suit,
all the facts in the declaration were proved. The termination of
that suit is not alleged, nor was it necessary, because what the
plaintiff complains of is an abuse of the process of law, for the
purpose of extorting property to which the defendants had no
claim ; that abuse having been perpetrated, and the defendants
190 MALICIOUS PROSECUTION.
having attained their end by it, it is immaterial whether their suit
was terminated or not. The case is altogether distinct from cases
of malicious prosecution or arrest, in which it is alwaj's the course
to allege and prove that the former proceeding is at an end.
So, with respect to the argument in arrest of judgment, this
case stands on its own peculiar circumstances. It is an action for
abusing the process of law, by employing it to extort property to
which the defendants had no right ; that is of itself a sufficient
cause of action, without alleging that there was no reasonable or
probable cause for the suit itself.
With respect to the count in trover, if there be a tortious tak-
ing, no previous demand is necessary to support the plaintiff's
action. Whether such taking be by force or fraud makes little
or no difference in the right to maintain the action ; but this tak-
ing was as much a forcible taking as if a pistol had been pre-
sented at the plaintiff's head.
Bosanquet, J. I thought at the trial, and am still of the same
opinion, that these circumstances amounted to an arrest. The
plaintiff resigned his personal liberty under the authority of the
writ, and actual contact was not necessary to complete the arrest.
Then, as the record stands, it was not necessary to prove, and,
I think, under the circumstances of this case, it was not necessary
either to allege or prove, the termination of the defendant's suit.
This is not an action for a malicious arrest or prosecution, or for
maliciously doing that which the law allows to be done. The
process was enforced for an ulterior purpose, — to obtain property
by duress, to which the defendants had no right. The action is
not for maliciously putting process in force, but for maliciously
abusing the process of the court. And that distinction is an
answer as well to the argument in arrest of judgment as to the
argument in support of a nonsuit.
As to the count in trover, if the register was obtained by
duress of imprisonment, a demand and refusal were not necessary
to establish a conversion. And as it is clear that the register was
illegally obtained by duress, under an abuse of the process of this
court, this rule must be Discharged.
Historical. — The action for mali- it grew out of that action. As will be
cious prosecution is intimately related seen in the note on Conspiracy, various
to that for conspiracy ; so much so as statutes were passed in aid of persons
at first to lead to the supposition that who had been falsely and maliciously
HISTORICAL.
191
indicted or appealed of crimes by a
conspiracy among the defendants ; and
when, therefore, several were concerned
in the prosecution of the plaintiff, the
writ of conspiracy was employed in
seeking redress. So, too, the lawyers
had become so accustomed to the use of
this writ, in the frequency of fraudu-
lent combinations and conspiracies to
move trials, that it was often, if not
always, resorted to when the prose-
cution had been instigated by a single
parly ; in which case the conspiracy
was alleged to have been entered into
inter the defendant et quendam B. 1
Saund. 230, note; Heme's PI. 1-17.
In the latter case, however, the aver-
ment of a conspiracy was unnecessary,
and was rejected as surplusage. The
action was then regarded as an action
upon the case, says Fitzherbert. Nat.
Brev. 116. See also Muriel v. Tracy,
6 Mod. 169, per Lord Holt; Skinner
v. Gunton, 1 Saund. 228, and note,
230.
And the same was true when the
writ was brought against several de-
fendants who were alleged to have
falsely and maliciously indicted the
plaintiff of a trespass, and the plaintiff
failed in his proof as to all but one.
This would have been fatal had the
original prosecution been for a felony ;
but, being for a trespass, it was con-
sidered that the case was not properly
conspiracy, and the plaintiff was al-
lowed to recover as in an action upon
the case. lb. (This subject is con-
sidered at length in the note on Con-
spiracy, post.)
Now, actions on the case originated
in the St. of Westm. 2, c. 2-1 (13 Edw.
1), in which statute are also found the
earliest definite provisions concerning
the rio-ht of action for malicious prose-
cutions. This statute antedates the
first act concerning conspiracies by
eight years ; but actions Qpr conspiracy
lay at common law, as appears in the
note on that subject ; while no trace of
an action for a simple malicious prose-
cution (that is, in any other form than
by writ .of conspiracy) is to be found
before the Statute of Westminster the
Second. Indeed, for a long time after-
wards, as well as before (2 Inst. 383,
infra), the writ of conspiracy was
resorted to in such cases, as we have
stated.
The twelfth chapter of the stat-
ute just mentioned is entitled "Mali-
cious Appeals." It provided that,
"forasmuch as many, through malice,
intending to grieve others, do procure
false appeals to be made of homi-
cides and other felonies by appellors,
having nothing wherewith to make
satisfaction to the king for their false
appeal, nor to the parties appealed for
their damages ; it is ordained that when
any so appealed of felony surmised
upon him doth acquit himself in the
king's court in due manner, either at
the suit of the appellor, or of our lord
the king, the justices before whom such
appeal shall be heard and determined
shall punish the appellor by one year's
imprisonment. And such appellors
shall, nevertheless, restore to the par-
ties appealed their damages, according
to the discretion of the justices', having
respect to the imprisonment or arrest-
ment that the p.irty appealed hath sus-
tained by reason of such appeals, and
to the infamy that they have incurred
by the imprisonment or otherwise, and
shall, nevertheless, make a srievous
fine to the king. And if, peradventure,
such appellor b> not able to recompense
the said damages, it shall be inquired by
whose abetment or malice such appeal
was commenced, if the party appealed
192
MALICIOUS PROSECUTION.
desire it ; and if it be found by that in-
quest that any man is abettor through
malice, at the suit of the party appealed,
he shall be distrained by a judicial writ
to come before the justices ; and, if he
be lawfully convict of such malicious
abetment, he shall be punished by im-
prisonment, and shall be bound to
restitution of damages, as before is said
of the appellor."
In the thirty-sixth chapter of the
same act (relating to Distresses upon
Malicious Suits in Courts Baron) it is
provided that, " forasmuch as lords of
courts, and others that keep courts, and
stewards, intending to grieve their in-
feriors [those within their jurisdiction],
where they have no lawful means of
grieving them, do procure others to
move matters against them, and to put
in surety and offer pledges, or to pur-
chase writs, and, at the suit of such
plaintiffs, compel them to follow the
county, hundred, wapentake, and other
like courts, until they have made fine
with them at their will ; it is ordained
that it shall not be so used hereafter.
And if any be attached upon such false
complaints, he shall replevy his distress
so taken, and shall cause the matter to
be brought afore the justices, before
whom, if the sheriff, or other bailiff, or
lord, after that the party distrained
hath framed his plaint, do avow the
distress lawful by reason of such com-
plaints made before them, and it be
replied that such plaints were moved
maliciously against them by the solici-
tation or procurement of the sheriff,
or other bailiffs, or lords, that replica-
tion shall be admitted ; and, if they
be convict hereupon, they shall make
fine to the king, and, nevertheless, re-
store treble damages to the parties
grieved."
Chapter thirty-seven provides that
sheriffs should not send strangers to
take distresses; and that no distress
should be taken but by bailiffs sworn
and known.
Chapter forty-three contained a pro-
vision that hospitallers and templars
(orders of religious knights) should
draw no man into suit unduly, upon
pain of damages to the parties aggrieved
and a grievous punishment unto the
king.
These are the earliest provisions as
to malicious suits that we have definite
knowledge of. There are later stat-
utes, 1 Edw. 3, st. 1, c. 7, and 1 Rich.
2, c. 13 ; and there were earlier acts,
which are not wholly preserved. In the
Mirror, c. 4, § 16, it is said that there
were those who condemned men by cor-
rupt judgment, though they did not
directly kill them; and so there were
"wilful manslayers who appeal or in-
dict innocent persons of mortal offence,
and prove not their appeals or their in-
dictments-; and, although these used to
be judged to death, nevertheless, King
Henry 1 ordained this mitigation, that
they be not judged to die, but that they
have corporal punishment ; and of those
who wrongfully appeal," continues the
Mirror, "ye are to distinguish; for
if any one hath appealed another so
falsely that there was no color of appeal
by judgment, or other reasonable proof,
in such case he was to be adjudged to
make satisfaction to the party, and
afterwards to suffer corporal punish-
ment." And it is added, that King
Canute used to judge mainprisors ac-
cording as the principals, when their
principals appeared not in judgment,
which law was somewhat modified by
Henry 1. See also 2 Inst. 383. As to
the punishment of unjust judges, see
Ancient Laws and Institutes of Eng-
land, p. 385, c. 15, Laws of King
HISTORICAL.
193
Canute; ib. p. 483, c. 39, Laws of
William the Conqueror; ib. pp. 524,
586. c. 34, Laws of Henry 1. As to the
punishment of false accusers, see ib. p.
3S5, c 16; ib. p. 58S, c. 3-t, § 7, and
note; 2 Inst. 3S3, 384., ^As to the
Roman law, see Paullus, tit. 12, § 1 ;
Dig. lib. 48, tit. 18, 22. '
Staundforde, the earliest writer on
the criminal law, says that damages were
awarded at common laic to the defend-
ant in a false appeal of felony, " as ap-
pears by M. 48 Edw. 3, fol. 22 [pi. 3],
and by the recital of the [above] St. of
Westm. 2, c. 12. For,'' says he, " com-
mon law and common reason agree that
when a man has sustained a prosecution
by which bis goods, land, life, and good-
wife are in jeopardy without cause or
any other foundation than the malicious
accusation of a person, and is found a
true and loyal man, and is duly acquitted
of that of which he is appealed, he ought
to have amends for this against his false
accuser; and if the accuser is not able
to pay, then against those who procured
or abetted him in prosecuting the ap-
peal." P. C. 167 6. But he adds that,
before the statute, the damages were re-
covered by writ of conspiracy, and not
otherwise. See also 2 Inst. 383, to the
same effect. This act of Westm. 2,
c. 12, however, gave a speedier remedy
to the injured party than he had before.
Ib. Damages seem to have been taxed
in favor of the defendant, upon his ac-
quittal, if he prayed for them. 8 Edw. 4,
p. 3; Staundf. P. C. 171. But the
advantage of this speedy remedy ex-
tended only to appeals ; and in the case
of indictments redress was still by writ
of conspiracy.
From all this it appears that, though
rights of action and punishments for
malicious prosecutions were recognized
and given in the written law in far
earlier times than were writs of con-
spiracy, the redress for the former
injury was at first, and for a long time,
pursued by the latter remedy. But what
is still more interesting, we have clear
evidence that, from the very twilight
of the English law, it has been unlawful
for men to harass each other with vexa-
tious suits. How much of the very
early law, however, was mere declara-
tion, and how much was real and carried
into execution, is another question.
Lord Coke comments much in his 2d
Inst. pp. 383-387, upon chapter twelve
of the above St. of Westm. ; and it will
be useful to observe how the law was
understood in his day, founded, as it
largely was, upon the cases in the Year-
Books. The words, per malitiam, at
the beginning of the act, he says, " open
divers windows for the better under-
standing and enlightening of the general
words of this statute. 1. If the appellee
be first indicted of the felony whereof
he is appealed, the appeal shall not be
understood to be commenced per mali-
tiam, because the plaintiff [prosecutor]
hath a foundation to build upon, viz.,
an indictment by the oath of twelve or
more men, so as it shall be presumed'
that the plaintiff was moved to his ap-
peal by the indictment, et non per mali-
tiam ; for in those days (as yet it ought
to be) indictments taken in the absence
of the party were formed upon plain
and direct proof, and not upon proba-
bilities or inferences. But if the in-
dictment be insufficient, then it is in
judgment of law as no indictment; and
then the appeal may, notwithstanding,
be commenced per malitiam, et sic in
similibus : or, if it be a good indict-
ment, and found after the appeal
commenced, yet may the appeal be
commenced per malitiam. 2. If one
be appealed of murder, and it is found
13
194
MALICIOUS PROSECUTION.
by verdict that he killed him se defend-
endo, this shall not be said to be per
malitiam, because he had a just cause,
for quod quisque ob tutelem corporis sui
fecerit, jure id fecisse videtur ; et sic
de similibus. 3. The heir, or other
near of kin, may abet the wife plain-
tiff in the appeal." Hoyland's Case, 6
Edw. 3, 33. "This statute doth ex-
tend both to acquittals in deed and to
acquittals in law. Acquittals in deed,
as either by verdict or by battle ; and in
that case, when the plaintiff yields him-
self ' creant,' or vanquished in the field,
the judgment shall be that the appellee
shall go quit, and that he shall recover
his damages against the appellor ; but,
if the plaintiff had been slain, then no
judgment can be given against a dead
person. Acquittals in law, as if two be
appealed in felony, the one as principal,
and the other as accessary, and both of
them plead not guilty, &c, and the
jury doth acquit the principal; in this
case by law the accessary is acquitted,
and shall recover damages by this act
against the appellant, &c, or may have
his writ of conspiracy at the common
law. ... If one be appealed as acces-
sary to two principals, and one of the
principal is acquitted, the accessary
shall recover no damages until the other
principal be acquitted. . . . This writ
[the judicial writ of the statute] is
given in lieu of the writ of conspiracy
at the common law ; the abettors com-
ing in upon this process may traverse
the abetment, because they were
strangers to the verdict ; and if the
defendant that sueth the distress shall
be nonsuit, yet may he have a new
writ, and it is not peremptory to him.
And albeit the jury find neither the time
nor the place where the abetment was,
yet, if ihey find the abettors, it is suf-
ficientj for, when the plaintiff appeareth,
the defendant may show time and place
in good time."
No distinct writs of malicious prose-
cution, as we have said, are to be
found in the books ; if an action were
brought, the writ of conspiracy seems
always to have been used while the
pleadings were oral (at which time the
writ answered the purpose of the mod-
ern declaration). But, after written
pleadings came into use, we find dis-
tinct declarations for malicious prosecu-
tions upon the statute for this purpose
"made and provided," referring ap-
parently to the Statute of Malicious
Appeals, supra. In these declarations
there is no allegation of conspiracy or
deceit, and they evidently derive their
force from the Statute of Westm. 2,
c. 24, supra, as actions on the case.
Declarations of this kind appear in
Rastell's Entries, 43 6, 44, in cases of 7
Hen. 7, rot. 59, and 10 Hen. 7, rot. 38.
The latter case was an action against
several for abetting the false appeal of
the plaintiff; thus showing that it was
not necessary at this time, even in such
a ease, to sue in conspiracy.
In the later abridgments the modern
term " malicious prosecution " is used;
and it is said that this injury gives rise
to a writ of conspiracy or to an action
upon the ease in the nature of conspir-
acy. 1 Comyns's Dig. 338, Action upon
the Case for a Conspiracy, A. ; 1 Rolle's
Abr. 114, 1. 30; 1 Bacon's Abr. 117,
118, Action on the Case, II. See also
Cranbanck's Case, 2 Rolle's Rep. 49,
where in arrest of judgment it was
vainly moved that the title of the plain-
tiff's bill was trespass upon the case,
while the whole record was that of
conspiracy.
In these times, it was sufficient,
whether the remedy adopted was by
writ of conspiracy or by an action upon
HISTORICAL.
195
the case in the nature of a writ of con-
spiracy, to prove malice and the acquit-
tal of the plaintiff. And if the latter
form of redress was employed, it was
not even necessary to prove an acquit-
tal, malice being sufficient. Doddridge,
J., in Cranbanck's Case, 2 Rolle'sRep.
48 ; 1 Rolle's Abr. 112, 1. 50, 114, 1.
20; 1 Comyns's Dig. 339. But it was
otherwise of conspiracy, where there
had been a valid indictment. lb.
Comyns, tit supra, gives the follow-
ing cases where an action on the case
lies without an acquittal; where an
ignoramus is found ; where the party is
not indicted; where the indictment is
insufficient; where the party was im-
prisoned or received other damage,
though the defendant proceeded no
further; or where a nolle prosequi was
entered. See also 1 Bacon's Abr.
117.
In a writ of conspiracy, however, for
a false indictment, it was necessary that
the party should be acquitted by a ver-
dict such as would enable him to plead
autrefois acquit if again indicted for the
same crime. 2 Selw. N. P. 1062 (11th
ed.). But if there were no indictment,
and a nonsuit in appeal was ordered,
the writ lay. Fitzh. >T. B. 114, 115.
See note on Conspiracy, where the writ
is given.
Thus far we have no mention of
the doctrine concerning reasonable and
probable cause, as applied at the present
time. It is now a part of the plaintiff's
case to allege and prove (besides malice)
a want of probable cause for the prosecu-
tion, as will appear more fully below.
But formerly this was not required of
him ; the defendant had the burden of
proving that he had acted upon prob-
able cause. In Knight u. Jermin, Croke
Eliz. 13-4, Gawdy, J., said that if the
defendant had acted upon good pre-
sumptions, " he ought to plead them, as
that he found him in the house, &c, or
the like cause of action." And VVray,
C. J., agreed. So in Pain v. Rochester,
2 Croke Eliz. 871, the plaintiff declared
in conspiracy for procuring himself
falsely and maliciously to be indicted of
robbery ; and the defendants in their
plea alleged facts showing that they had
cause for arresting the plaintiff.
Savil v. Roberts, 1 Salk. 13, seems
to be the first case in which it was de-
clared to be the duty of the plaintiff to
show want of probable cause. In this
case Lord Holt said that the action for
malicious prosecution, by indictment,
was not to be favored ; and, therefore,
said he, "if the iudictment.be found by
the grand jury, the defendant shall not
be obliged to show a probable cause,
but it shall lie on the plaintiff's side to
prove an express rancor and malice."
From the time of this case (a.d.
1699), which is often referred to as
the leading modern authority, the rule
has prevailed that the plaintiff must
give some evidence that the prosecution
was instituted without reasonable and
probable cause; and this, as will here-
after appear, is true in all cases, what-
ever the nature of the prosecution.
Malicious suits, generally for civil
causes, were sometimes sued by a writ
of deceit. Fitzh. N. B . 98 ; 2 Inst. 444 ;
Register, Judicial Writs, 37, where such
a writ of deceit is given upon the Stat-
ute of Merchants. See also 1 Comyns,
Dig. 347, Action upon the Case for a
Deceipt, A. 4, where several cases are
given, among them one or two criminal
cases.
Lord Coke informs us that the thirty-
sixth chapter of the Statute of West-
minster the Second, as to distresses
upon malicious suits in courts baron
(supra), was made in affirmance of the
196
MALICIOUS PROSECUTION.
common law, and to add a greater pun-
ishment than was given at common law.
And lie says that the act extended only
to replevins, and not to any other form
of redress. 2 Inst. 444.
Termination of the Prosecution. —
The action for a malicious prosecution
cannot be maintained until the prosecu-
tion has terminated ; for otherwise the
plaintiff might obtain judgment in the
one case and yet be convicted in
the other, which would of course dis-
prove the averment of a want of proba-
ble cause. See Fisher v. Bristow, 1
Doug. 215; Cardival v. Smith, 109
Mass. 158; O'Brien v. Barry, 106
Mass. 300. And it is a part of the
plaintiff's case to show that the prose-
cution has terminated. lb.
It is necessary that the prosecution
should have terminated with an acquit-
tal of the plaintiff, if carried through,
even though the tribunal be one from
which there is no appeal. For to allow
the action after a conviction in such a
case would virtually be to allow an ap-
peal. Besebe v. Matthews, Law R. 2
C. P. 684; Bacon v. Towne, 4 Cush.
217; Parker v. Huntington, 7 Gray, 37;
Boyd v. Cross, 35 Md. 194. See Her-
man v. Brookerhoff, 8 Watts, 240;
Jones v. Kirksey, 10 Ala. 839 ; Driggs
v. Burton, 44 Vt. 124. The last-named
case holding that where a magistrate
can neither acquit nor convict, but only
bind over or discharge, and discharges
the accused, the prosecution is at an
end, so far as to warrant an action for
malicious prosecution. See Cardival v.
Smith, 109 Mass. 158 ; Sayles v. Briggs,
4 Met. 421, 426. But if the proceed-
ing ended in a compromise, there is
no ground for the action. Clark v.
Everett, 2 Grant, 416; Mayer v. Wal-
ter, 64 Penn. St. 283.
But it has been doubted whether a
conviction is conclusive evidence of
probable cause, so as to bar an action
for malicious prosecution. 1 American
L. C. 270 (5th ed.). " The true prin-
ciple," say the editors of the work cited,
" appears to be that a verdict of guilty
is strong prima facie evidence, but
capable of being rebutted, by showing
that it was obtained exclusively or
mainly by the false swearing of the
defendant, or by other corrupt or un-
due means;" citing Witham v. Gowen,
14 Maine, 362 ; Payson v. Caswell, 22
Maine, 212.
The learned editors, however, refer
with approval in the same note to the
cases which have decided that if the
prosecutor acted bona fide upon legal
advice in preferring the charge, the
action cannot be sustained. See infra.
If this be true, how can it be that, after
the advice pf counsel has been ratified
by a conviction of the prisoner, the
prosecutor is liable to this action ? He
is then in a worse position, notwith-
standing the verdict of the jury, than
he would have been had his charge been
denied by the jury and the prisoner ac-
quitted ; for-in that case he could have
securely relied upon the advice of coun-
sel.
Nor do we see how the action can be
sustained after a conviction, though the
prosecutor did not prefer the charge
upon legal advice. The verdict of
twelve men, with all the facts, pro and
contra, before them, is quite as strong
evidence of probable cause as the ad-
vice of an attorney. And it is not upon
grounds of estoppel that this view is
sustained. It could not be thus sus-
tained, as the editors referred to sug-
gest, since the parties to the two actions
are not the same. The object of the
evidence is not to show the party
guilty ; to attempt to show that con-
WANT OF PROBABLE CAUSE.
197
clusively by the record of conviction
would be impossible, for the reason just
stated. The object is merely to prove
probable cause ; and a conviction upon
trial may well prove that conclusively.
The criterion of probable cause is to
be found in the conduct of the prudent
man ; and when it is ascertained what
the prudent man would have been justi-
fied in doing, the court decide (where
nothing else is in the way) upon the lia-
bility of the defendant. Now whether
a prudent man would have deemed him-
self to have probable cause is a ques-
tion of law ; but the court must judge
of this from personal observation or the
testimony of others. The latter is the
usual course in such cases, as is seen in
their view of the advice of counsel. But
the jury also represent the prudent man ;
their opinion then should also be ac-
cepted. See Resenstein v. Brown, 7
Phil. 144; Herman r. Brookerhoff, 8
Watts, 240.
It may be, however, that, where the
conviction was before a magistrate or
justice of the peace, and on appeal the
then defendant was acquitted, this pre-
vents the first verdict from being con-
clusive of probable cause. See Witham
v. Gowen, 14 Maine, 362; Burt r. Place,
4 Wend. 591; Mayer v. Walter, 64
Penn. St. 283, 288. But see Reynolds
v. Kennedy, 1 Wils. 232; Herman v.
Brookerhoff, 8 Watts, 240.
It is not necessary to show an
acquittal in ex parte proceedings that
are based upon affidavits, the truth of
which is not controvertible ; as in an
action for maliciously, and without rea-
sonable or probable cause, going before
a magistrate and procuring the plaintiff
to be held to bail to keep the peace.
Steward e. Gromett, 7 C. B. n. 8.
191.
And it is held in the case of a civil
action that the failure of the plaintiff to
enter in court his writ, upon which he
has caused the arrest, is such a final
determination of the case as to enable
the defendant to bring suit. Cardival
v. Smith, 109 Mass. 158.
Want of Probable Cause. — The want
of reasonable and probable cause, suffi-
cient to sustain the plaintiff's case, is so
much a matter of fact in each individual
case as to render it impossible to lay
down any general rule on the subject ;
but there ought to be enough to satisfy
a reasonable man that the accuser had
no ground for proceeding but his desire
to injure the accused. Tindal, C. J.,
in Willans p. Taylor, 6 Bing. 183, 186.
In Busst v. Gibbons, 80 Law J. Ex.
75, it was held sufficient for the plaintiff
to show that the defendant, in causing
the plaintiff's arrest, had acted on very
slight circumstances of suspicion. The
case was this : A robbery had been com-
mitted by S., who had immediately ab-
sconded. The plaintiff, who had been
a fellow-workman with him, had been
heard to say that he (the plaintiff) had
heard a few hours before the robbery
that S. had absconded, and that S. had
previously told him (the plaintiff) that
he intended to go to Australia. S. had
also been seen, early in the morning
after the robbery, coming from a public
entry leading to the back-door of the
plaintiff's house. The defendant, who.
was the plaintiff's employer, having
been informed of these circumstances,
caused the plaintiff to be apprehended,
and charged before magistrates with the
robbery. The charge was dismissed. In
the action for this prosecution the judge
told the jury that these facts showed a
want of probable cause for making the
arrest ; and he was sustained on appeal.
See also Holburn v. Neal, 4 Dana, 120;
Swaim v. Stafford, 4 Ired. 392 ; ib. 398.
198
MALICIOUS PROSECUTION.
The question of probable cause, too,
is to be judged by the circumstances ex-
isting at the time of the arrest for the
offence charged; and it is immaterial
that the prosecutor subsequently ascer-
tained his mistake. Swaim v. Stafford,
supra. In the case cited the prosecu-
tion was for the alleged larceny of cer-
tain ribbons which the plaintiff had been
examining in the defendant's store; and
it was held that, if the facts were suffi-
cient to excite in the mind of a rea-
sonable man suspicion that the person
charged with the offence was guilty
(and the court held that, if the evi-
dence was true, there was probable
cause) , it was not a good reply that the
defendant had afterwards found the rib-
bons in the folds of a bolt of cloth that
had lain on the counter at the time of
the alleged larceny.
The question, in short, in these cases
is, not whether there was in fact a suffi-
cient cause for the prosecution (for the
acquittal shows that there was not), but
whether the prosecutor, as a reasonable
man, believed there was. The very term,
' ' reasonable and probable cause," neces-
sarily implies this.
But the belief must be that of a rea-
sonable man, else the most baseless
prosecutions would be safe, owing to
the difficulty of disproving the prosecu-
tor's belief in the truth of the charge ;
and hence it is necessary that the facts
should be stated upon which the prose-
cutor based his action.
That the test is the belief of a rea-
sonable or prudent man, see Muns v.
Dupont, 3 Wash. C. C. 31, where Mr.
Justice Washington thus defined proba-
ble cause : "A reasonable ground of
suspicion, supported by circumstances
sufficiently strong in themselves to war-
rant a cautious man in the belief that
the person accused is guilty of the
offence with which he is charged." So,
in Bacon v. Towne, 4 Cush. 238, Shaw,
C. J., said that probable cause meant
such a state of facts as would lead a
man of ordinary caution and prudence
to believe or entertain an honest and
strong suspicion that the accused is
guilty. In Barron v. Mason, 31 Vt.
189, 197, Eedfield, C. J., said : " It is
not enough to show that the case ap-
peared sufficient to this particular
party; but it must be sufficient to in-
duce a sober, sensible, and discreet per-
son to act upon it, or it must fail as a
justification for the proceeding upon
general grounds." See also Braveboy
v. Cockfield, 2 McMull. 270; Burlin-
game v. Burlingame, 8 Cowen, 141 ;
Travis v. Smith, 1 Barr, 234 ; Boyd v.
Cross, 35 Md. 194 ; Cole v. Curtis, 16
Minn. 182; Spangler v. Davy, 15 Gratt.
381; Carl v. Ayers, 53 N. Y. 14 ; Mowry
v. Whipple, 8 R. I. 360; Shaul v. Brown,
28 Iowa, 37 ; Bauer v. Clay, 8 Kans.
580.
And it is held that, though there was
in point of fact ground for the prosecu-
tion, if this w^s not known to the prose-
cutor, or was disbelieved by him, there
is evidence qf the want of probable
cause. Delegal v. Highley, 3 Bing. N.
C. 950 ; Broad v. Ham, 5 Bing. N. C.
722 ; Bell v. Pearcy, 5 Ired. 83.
In Delegal v. Highley, supra, the
defendant pleaded that he had caused
the plaintiff to be arrested " upon and
with a reasonable and probable cause,"
and then proceeded to state the facts
upon which that cause was alleged. To
this plea there was a demurrer, alleging
that it contained no statement that the
prosecutor, at the time he caused the
charge to be made, had been informed
of or knew, or in any manner acted on,
the facts stated in his plea. And the
demurrer was sustained. " If the de-
WANT OF PROBABLE CAUSE.
199
fendant," said Tindal, C. J., " instead
of reiving on the plea of not guilty,
elects to bring the facts before the
court in a plea of justification, it is
obvious that he must allege as a ground
of defence that which is so important in
proof under the plea of not guilty, viz.,
that the knowledge of certain facts and
circumstances which were sufficient to
make him or any reasonable person be-
lieve the truth of the charge which he
instituted before the magistrate existed
in his miud at the time the charge was
laid, and was the reason and inducement
for his putting the law in motion."
In Broad r. Ham, supi-a, it appeared
that the defendant, having in fact a
prima facie ground for his charge, did
not believe it at the time ; and this was
held some evidence of want of probable
cause. " In order to justify a defend-
ant," said the same Chief Justice, " there
must be a reasonable cause, — such as
would operate on the mind of a discreet
man ; there must also be a probable
cause, — such as would operate on the
mind of a reasonable man : at all events
such as would operate on the mind of
the party making the charge, otherwise
there is no probable cause for him. I
cannot say that the defendant acted on
probable cause if the state of the facts
was such as to have no effect on his
mind." See also Ravenga v. Mackin-
tosh, 2 Barn. & C. 693 ; Blachford v.
Dod, 2 Barn. & Ad. 179 ; Huntley v.
Simson, 2 Hurl. & X. 600 ; Williams v.
Banks, 1 Fost. & F. 5.57 ; Haddrick
r. Heslop, 12 Q. B. 207.
In Haddrick v. Heslop, supra, the
plaintiff complained of a prosecution
for perjury, which the defendant had
instituted against him for the purpose,
•as the plaintiff alleged, of suppressing
evidence ; and it was proved that the
defendant, on being told that there was
not sufficient ground for the indictment,
declared it was no matter, and that it
would stop the plaintiff's mouth in a
proceeding in which he would be likely
to give evidence against the defendant.
It was held that the judge was right in
asking the jury whether the prosecutor
believed at the time he preferred the in-
dictment that the defendant had really
been guilty of perjury, and whether he
instituted the prosecution bona fide,
under such a belief, or from an im-
proper motive.
But in some cases it has been held
that the question of the defendant's lia-
bility for the prosecution depends upon
the actual non-existence of probable
cause ; so that if there was in fact
probable cause, whether he knew it or
not, he cannot be liable. Mowry v. Mil-
ler, 3 Leigh, 561; Hickman v. Griffin,
6 Mo. 37 ; Adams v. Lisher, 3 Blackf.
241.
In Mowry v. Miller, supra, the court
said : "The law requires the plaintiff in
this action to set forth that the prosecu-
tion was without probable cause. But
as this is merely because no man can
maintain an action for a malicious pros-
ecution where there was probable cause,
it is obvious that those words should
be made to refer to the state of fact as
it respects the person prosecuted, and
not to the degree of knowledge of that
fact in the party prosecuting."
The court, in Adams v. Lisher, supra,
state the ground of decision thus : "This
suit is founded on a prosecution set on
foot by the defendant against the plain-
tiff for a wrong that affects the public ;
and therefore the defendant stands on
the footing of the most favored class of
prosecutors. It was an action of tres-
pass for cutting and carrying away, from
lands belonging to the public, timber.
. . . The gist of that action was the
200
MALICIOUS PROSECUTION.
trespass ; and proof of cutting and car-
rying away any one of those trees would
be sufficient to sustain the action. And
if he were guilty of the trespass, he can-
not maintain this action, although he
may have been acquitted in the District
Court where he was prosecuted ; and
it is immaterial whether the defendant
knew him guilty or not, if he can now
prove the fact that he was guilty, or if
he can even prove that there was proba-
ble cause to suspect him of being guilty,
it is sufficient for him."
The ground taken in Mowry v. Mil-
ler is clearly petitio principii ; for the
very question is, whether the action can-
not, in the case under consideration, be
maintained, notwithstanding the actual
existence of a cause of prosecution.
The case referred to was overruled in
Spengler v. Davy, 15 Gratt. 381, 388.
The same is true, perhaps, of the
position assumed in Adams v. Lisher.
The defendant, say the court, was doing
the public a service in instituting the
prosecution, and should therefore be
protected. He should be protected if
he was acting legally; otherwise, not.
But to attempt to do a public service
is not necessarily a legal thing. The
difficulty, therefore, is not solved.
The substance of the declaration is
that the defendant has preferred against
the plaintiff a false charge, maliciously
and without sufficient ground. Now it
must be observed that the plaintiff is
an innocent man, as his acquittal has
established ; and if the prosecutor had
no knowledge of the facts which might
have (clearly) justified him, — that is,
if he did not have an affirmative reason-
able belief that the accused was guilty,
— he has preferred a false charge, know-
ing it to be false. How, then, can he
escape liability? Probable cause in
fact existed ; but the prosecutor, bent
as he is on mischief to a man whom he
knows, or is bound to presume, to be
innocent, prefers his charge entirely
regardless of his existence, or, as in
Broad v. Ham, positively disbelieving
in its existence. Upon what principle
of law can one who has assumed such
a wicked position afterwards, when he
sees that he has involved himself in
trouble, claim a protection which he
either directly rejected or had not the
decency, in his haste and malice, to
attempt to discover?
But if probable cause can be strained
in any way to cover such a case, the
difficulty may be obviated, it would
seem, by framing the declaration, like
that in Pasley v. Freeman, ante, p. 1,
for the making a false charge, knowing
it to be false, and intending thereby to
injure the plaintiff.
It is a good defence to this action
that the defendant, before preferring
the charge, laid the matter before pro-
fessional counsel, and has acted bona
fide upon the advice given, however
erroneous. Snow v. Allen, 1 Stark.
502 ; Ravenga v. Macintosh, 2 Barn.
& C. 693; Hewlett v. Cruchley, 5
Taunt. 277 ; Hall v. Suydam, 6 Barb.
84; Walter v. Sample, 25 Penn. St.
275 ; Cooper v. Utterbach, 37 Md. 282 ;
Olmstead ». Partridge, 16 Gray, 381.
In Snow v. Allen, supra, it appeared
that the plaintiff's attorney had notified
the prosecutor, before the arrest, that
the proceeding was illegal; but the
prosecutor's attorney, relying, though
erroneously, on judicial authority and
the opinion of a special pleader, per-
sisted in his course ; and the result was
the action for malicious prosecution, in,
which the plaintiff failed. Lord Ellen-
borough said: "How can it be con-
tended here that the defendant acted
maliciously? He acted ignorantly."
WANT OP PROBABLE CAUSE.
201
The Attorney-General: "He pro-
ceeded to arrest after full notice of the
irregularity of his proceedings.'' Lord
Ellenborough : " But he was acting un-
der what he thought was good advice.
It was unfortunate that the attorney was
misled by Higgins's Case; but unless
you can show that the defendant was
actuated by some purposed malice, the
plaintiff cannot recover."'
But the prosecutor must have acted
bona fide in obtaining and following the
advice given, or his defence mav fail.
Ravenga i. Macintosh, 2 Barn. & C.
693 ; Sappington v. Watson, 50 Mo. S3 ;
Cooper v. Utterbach, 37 Md. 282. In
Ravenga v. Macintosh, Mr. Baron Bay-
ley said : " I have no doubt that in this
ease there was a want of probable cause.
I accede to the proposition that if a party
lays all the facts of his ease fairly before
counsel, and acts bona fide upon the
opinion given by that counsel (however
erroneous that opinion may be), he is
not liable to an action ot this descrip-
tion. A party, however, may take the
opinions of six different persons, of
which three are one way and three an-
other. It is therefore a question for
the jury whether he acted bona fide on
the opinion, believing that he had a
cause of action. The jury in this case
have found, and there was abundant '
evidence to justify them in drawing the
conclusion, that the defendant did not
act bona fide, and that he did not be-
lieve that he had any cause of action
whatever. Assuming that the defend-
ant's belief that he had a cause of ac-
tion would amount to a probable cause,
still, after the jury have found that he
did not believe that he had any cause
of action whatever, the judge would
have been bound to say that he had
not reasonable or probable cause of
action."
The finding of the jury in this case
established both malice and want of
probable cause in the prosecutor; the
former, in that he did not act bona fide
upon the advice given, and the latter,
in that he did not believe he had any
cause of action. See supra. But had
the jury merely found that he had im-
properly obtained or improperly acted
upon the advice, the plaintiff would
only have established the malice of the
defendant. The facts in Ms possession
at the time of the charge might still
have given a reasonable and probable
cause for the prosecution ; and since, if
he had this, he was justified, notwith-
standing his malice, the action would
not lie.
If this be true, there is ground for
criticising the remark in Walter «. Sam-
ple, 25 Penn. St, 275, that suppres-
sion of facts, evasion, or falsehood, in
stating the case to counsel, would make
the prosecutor liable. This would, at
most, only show malice (see Cooper v.
Utterbach, 37 Md. 282) ; and it may be
that, had he stated the case as he un-
derstood it, he would have been deemed
to have probable cause. Or, he may
have come into possession of other
facts after asking the advice and before
preferring the charge. And the plain-
tiff must disprove the presumption of
probable cause which the law accords to
public prosecutions. Walter v. Sample,
supra.
To put the case in more direct form,
if the defendant plead that he preferred
the charge upon the advice of counsel,
after stating fully the facts, it will- not
be sufficient for the plaintiff to reply
that the defendant did not obtain or
act on the advice in good faith. He
must also show that he did not believe
the advice, or other facts showing that
he was not in possession of reasonable
202
MALICIOUS PROSECUTION.
and probable cause. We have there-
fore stated supra that the defence may
fail if the prosecutor do not act in the
matter bona fide.
This defence of having acted upon
professional advice is held to be a
peculiar one, and strictly confined to the
case of advice obtained from lawyers.
Beal v. Robeson, 8 Ired. 276; Olm-
stead v. Partridge, 16 Gray, 381 ;
Straus v. Young, 36 Md. 246. In the
case first cited, the defendant, to rebut
the plaintiff's allegation of malice,
offered to prove that, before preferring
the charge complained of, he had con-
sulted with a certain justice of the
peace, with whom he had been in the
habit of advising on legal matters ; and
that he had followed his advice. The
testimony was held inadmissible. " We
have neither seen," said the court, " nor
heard of any case where the opinion of
an unprofessional man, taken by the
defendant, has been admitted to show
that he acted in good faith and without
malice." And, after quoting the lan-
guage of Story, J., in Blunt v. Little,
3 Mason, 102, to the effect that to ad-
mit the evidence even of counsel was
going a great way, the court add con-
cerning the rule: "We do not feel at
liberty to carry it further by admitting
testimony of the opinion of any gentle-
man, however respectable, who has not
qualified himself for giving advice upon
questions of law by studying it as a
science, and pursuing it as a profes-
sion." See Leigh v. Webb, 3 Esp.
165; Hey ward ». Cuthbert, 4 McCord,
354-, McNeely v. Driskill, 3 Blackf.
259 ; Bartlett v. Brown, 6 R. I. 37, of
magistrates issuing wrong warrants of
their own motion, on a true statement
of facts.
The difference between acting upon
legal and non-legal advice appears very
clearly in respect of the defence of
probable cause. The evidence of this
is obviously stronger when asserted by
a lawyer than when asserted by a lay-
man. Indeed, it is so strong in the
former case that the courts do not
examine if it be a reasonable cause ;
the opinion of counsel is conclusive, so
far as the defence based on it is con-
cerned. If, therefore, the defendant
answer that he acted bona fide upon
legal advice, his defence is perfect.
But if he should say that he had acted
upon the advice of a discreet friend, it
would be necessary to set forth fully
the facts, so that the court might judge
whether they constituted probable
cause, precisely as he would have to
do if he had acted without the advice of
others, because one layman is as com-
petent to judge of such a matter as
another. It is clear, therefore, that
such an averment of itself would be of
no avail.
And it does not follow in every case
that because a party makes a full and
correct statement of a case, as he hon-
estly believes, to his counsel, and re-
ceives and acts upon his advice, that
his action is properly prosecuted ; for
he may, after the advice, and before the
accusation, have been informed of facts
which would satisfy a cautious man that
the accused was not guilty. Cole v.
Curtis, 16 Minn. 182.
That the mere abandonment of the
prosecution and the acquittal of the
defendant are not even prima facie evi-
dence of a want of probable cause has
often been decided. Willans v. Taylor,
6 Bing. 186; Purcell v. McNamara,
9 East, 361 ; Wallis v. Alpine, 1 Camp.
204, note ; Johnson v. Chambers, 10
Ired. 287. So of an entry of nolle pros. :
Yocum v. Polly, 1 B. Mon. 358 ; and
of a dismissal for want of prosecution :
MALICE.
203
Purcell v. McNainara, supra ; Braveboy
v. Cockfield, 2 McMull. 270.
But the circumstances of the aban-
donment may be such as to constitute a
prima facie case of want of probable
cause, as in Willans v. Taylor, supra.
There, it appeared, the defendant had
presented two bills for perjury against
the plaintiff, but did not himself appear
before the grand jury ; and the bills
were ignored. He presented a third;
and, on his own testimony, the bill was
found. This prosecution he kept sus-
pended for three years, when the plain-
tiff, taking the record down for trial,
was acquitted ; the defendant then de-
clining to appear as a witness, though
in court and called on. This was held
prima facie evidence of want of probable
cause. See also Xicholson v. Coghill,
4 Barn. & C. 21 ; Brown v. Randall,
36 Conn. 56.
So a voluntary discontinuance of a
civil suit is prima facie evidence of
want of probable cause. Xicholson r.
Coghill, supra ; Burhans t>. Sanford,
19 "Wend. 417 ; Cardival v. Smith, 109
Mass. l.">8 : Pierce v. Street, 3 Barn. &
Aid. 397. Otherwise, of suffering a judg-
ment for the defendant as in case of
nonsuit, or a non pros. Burhans v.
Sanford, supra; Sinclair v. Eldred, 4
Tannt. 7 ; Kirkpatrick v. Kirkpatrick,
39 Penn. St. 288; Driggs v. Burton,
44 Vt. 124.
A discharge of the plaintiff by a
committing magistrate, authorized to
commit or hold to bail upon circum-
stances warranting suspicion, is held
prima facie evidence of the want of
probable cause. Bostick v. Rutherford,
4 Hawks, 83 ; Johnson r. Chambers, 10
Ired. 287 ; Williams v. Norwood, 2
Yerg. 329 ; Josselyn v. McAllister, 25
Mich. 45. Contra, Israel t. Brooks,
23 111. 575. The converse is also held,
that a commitment of the plaintiff is
prima facie evidence of probable cause.
Grahani v. Noble, 13 Serg. & R. 233 ;
Braveboy v. Cockfield, 2 McMull. 270 ;
Bacon v. Towne, 4 Cush. 217. So of
the finding of the grand jury, notwith-
standing the acquittal. Cardival v.
Smith, 109 Mass. 158.
The want of probable cause cannot
be implied from proof of malice, how-
ever clear ; for a person may prosecute
a guilty person out of mere personal
ill-will. Turner v. Ambler, 10 Q. B.
252, 257, Paterson, J. ; Boyd v. Cross,
35 Md. 194; Mitchinson v. Cross, 58
111. 366.
These and many other cases show
that the question whether the facts con-
stitute reasonable and probable cause
is for the court to decide.
Malice. — Malice may be inferred
from the want of probable cause, though
it is not a necessary deduction ; and
the question of its existence, unlike
that of probable cause, is one of fact
for the jury. Griffin v. Chubb, 7 Tex.
603. There is no presumption of
malice in this action ; the plaintiff
must prove it. lb. ; Lev)' v. Brannan,
39 Cal. 485 ; Boyd v. Cross, 35 Md.
194 ; Dietz o. Langfitt, 63 Penn. 234 ;
Merkle v. Ottensmeyer, 50 Mo. 49.
But malice may be inferred from the
activity and zeal displayed by the de-
fendant in conducting the prosecution.
Straus v. Young, 36 Md. 246.
It is not necessary to prove malice
in the ordinary sense of the term : it is
enough that any improper or sinister
motive be shown. Stockley v. Hornidge,
8 Car. & P. 11; Jones v. Nicholls, 3
Moore & P. 12 ; Page i>. Cushing, 38
Maine, 522; Barron v. Mason, 30 Vt.
189.
In Stockley v. Hornidge, supra, the
court expressed the opinion, but with-
204
MALICIOUS PEOSECCTION.
out directly deciding the point, that an
action lies for maliciously arresting the
plaintiff, and taking him in execution at
the defendant's suit, though the plaintiff
was taken in execution at the instance
of the defendant's attorney, and without
the knowledge or assent of the defend-
ant. To the objection that there could
be no evidence of malice in such a case,
Best, C. J., said: " But malice may be
inferred. Malice in law means an act
done wrongfully, and without reason-
able or probable cause, and not, as in
common parlance, an act dictated by
angry feeling or vindictive motives."
But see Burnaps v. Albert, Taney,
244, holding the doctrine of respondeat
superior not to apply to such a case.
In Page v. Gushing, supra, the
Supreme Court of Maine said that, " in
a legal sense, malice has a meaning
different from its popular signification.
Acts wilfully and designedly done,
which are unlawful, are malicious in
respect to those to whom they are in-
jurious. One may prosecute a laudable
purpose with an honest intention, but
in such a manner, and in such disregard
of the rights of others, as to render his
acts unlawful. Prosecutions may be
instituted and pursued with pure mo-
tives to suppress crimes, but so regard-
less of established forms of law and of
judicial proceedings as to render the
transactions illegal and malicious. The
general motive may be upright and
commendable, while the particular acts
in reference to others may be malicious
in the legal acceptation of the term. So
that an act may be malicious in a legal
sense, which is not prompted or charac-
terized by malevolence or corrupt
design."
Damage. — Aside from the matters
of malice a'hd want of probable cause,
the ground of this action for malicious
prosecution is " injury sustained by the
plaintiff either in his person by imprison-
ment, his reputation by the scandal, or
in his property by the expense. If the
plaintiff cannot prove any such injury,
he cannot maintain the action." Sel-
wyn's N. P. 1026 ; Savil ». Roberts, 1
Salk. 13 ; Jones v. Gwynn, 10 Mod.
214.
If, therefore, the charge complained
of be not scandalous, so that an action
of slander could not be maintained for
a similar verbal imputation, it is neces-
sary for the plaintiff to aver and prove
special damages, as was decided in the
principal case, Byne v. Moore.
In Frierson v. Hewitt, 2 Hill
(S. Car.), 499, an action for mali-
ciously indicting the plaintiff for killing
cattle, the court, by Mr. Justice O'Neall,
after stating that the indictment had
only charged a trespass, said: "The
indictment must charge a crime ; and
then the action is sustainable per se, on
showing a want of probable cause. . . .
There is another class of cases which
are popularly called actions for mali-
cious prosecution, but they are mis-
named ; they are actions on the case in
which both a scienter and a per quod
must be laid and proved. I allude now,
first, to actions for false and malicious
prosecutions for a mere misdemeanor,
involving no moral turpitude ; secondly,
to an abuse of judicial process, by pro-
curing a man to be indicted as for a
crime when it is a mere trespass ; , third,
malicious search-warrants. In all these
cases it will be perceived that they can-
not be governed by the ordinary rules
applicable to actions for malicious pros-
ecutions. It is said by most of our
law-writers that, in such cases, you
must not only prove want of probable
cause, but also express malice and
actual injury or loss, as deprivation of
DAMAGE.
205
liberty, and money paid in defence.
The express malice necessary to sus-
tain such actions ought to be laid and
proved ; and this is what I understand
by the scienter. As in an action for a
false and malicious prosecution for a mis-
demeanor, it must be laid and proved
that the party, knowing the defendant's
innocence, still, of his mere malice,
preferred the charge; so, in the second
class of cases, it will not do to sav that
you indicted me as for a crime, for a
trespass, without any probable cause ;
for, in such case, no injury is done to
the plaintiff, and no fault is established
against the defendant for which he
can be punished. But when to this
statement we superadd the facts that
the defendant, knowing that the tres-
pass complained of was no crime, yet
procured the plaintiff to be indicted as
for a crime ; and if the plaintiff has
sustained any injury, the action will
lie. [See Dennis r. Ryan, 63 Barb. 145 ;
Streight r. Bell. 37 Lid. 550.] There
can be no neces-ary and consequen-
tial injury in such cases ; it may or may
not arise. In other words, there is no
implied injury [as in the case of action-
able words] ; for there can be no slan-
der, inasmuch as no crime is imputed.
Actual injury must be stated and proved ;
and this constitutes the per quod. De-
privation of liberty, or expense of de-
fence, will con*titute sufficient ground
to sustain this part of the action. Ac-
cording to these views, the plaintiff's
action was not made out, and the non-
suit was properly ordered."
The editors of the American Leading
Cases, p. 258 (5th ed.), also say that
it is certainly only in the case of a
crime, or, at least, an indictable of-
fence, involving moral turpitude, the
verbal imputation of which would be
slander, that the mere preferring an in-
dictment, or issuing a warrant, or other-
wise instituting a criminal proceeding,
without arrest or special damage is ac-
tionable. And they suggest, as to what
was said in Gregory v. Derby, 8 Car. &
P. 749, to the effect that no action would
lie for a charge of stealing, on which a
warrant was issued, if the party was not
apprehended ; and the remark of the
court in O'Driscoll r. McBurney, 2 Xott
& M. 54, that there can be no prosecu-
tion without an arrest (see Mayer i\
Walter, 64 Peun. St. 2S3, 2S9); that
this should probably be confined to cases
where the charge was not slanderous, or,
at least, where arrest is specially made
the gravamen in the declaration ; " for,"
they say. " if a slanderous charge be
made before a magistrate and a warrant
demanded, and a warrant thereupon
issue, it is believed that this form of
action is the appropriate remedy. But
if no warrant issue, the remedy is slan-
der, in the form of ' imposing the crime
of felony.' '' See Fuller v. Cook, 3 Leon.
100 ; Heyward v. Cuthbert, 4 McCord,
354.
So. too, if the court issuing the war-
rant exceed its jurisdiction, or if the
warrant or indictment be defective, the
better opinion seems to be that an
action for slander is the proper remedy
if the charge were of a scandalous of-
fence, and trespass if there were an
arrest. 1 Amer. L. C. 259 (5th ed.) ;
Braveboy ». Cockfield, 2 McMull. 270;
Tarpin v. Remv, 3 Blackf. 211 ; Bod-
well t. Osgood, 3 Pick. 379. But see
Jones v. Gwynn, 10 Mod. 214; Wicks
v. Fentham, 4 T. R. 247; Pippet v.
Hearn, 5 Barn. & Aid. 634; Morris v.
Scott, 21 Wend. 281 ; Shaul v. Brown,
28 Iowa, 37.
There are, then, several distinct
classes of cases commonly embraced
under the head of malicious prosecu-
206
MALICIOUS PROSECUTION.
tion, which may be thus enumerated:
1. Where the declaration charges an
indictment for an offence involving
scandal, in which case it is necessary
for the plaintiff to prove malice,
want of probable cause, and the ter-
mination of the prosecution ; 2. Where
the indictment was for a misdemeanor
or an offence not involving scandal, in
which case the plaintiffmustprove, in ad-
dition to the three facts just mentioned,
special damage; 3. Where the action
is for the malicious abuse of process, in
which case the plaintiff need only prove
malice and special damage ; 4. Where
the action is for the malicious issuance
of a search-warrant, in which case it
would seem that the plaintiff need
only prove malice and want of probable
cause, since the charge would involve
scandal. See Elsee v. Smith, 1 Dowl.
& R. 97 ; Miller v. Brown, 3 Mo. 127.
And although, in general, an action can-
not be maintained for preferring a false
claim of title or of right to damages for
an alleged injury, still it seems that if
the claim be set up without the slightest
foundation, to the defendant's certain
knowledge, as if he should forge a
promissory note, signing the plaintiff's
name, to it, and bring suit upon it
against the plaintiff, an action in the
nature of an action for malicious prose-
cution might be sustained. See Green v.
Button, 2 Cromp., M. & R. 707 ; Wren
v. Weild, Law E.4Q.B. 730, 735, so
deciding of a claim not made in court.
In such a case, however, it would
seem that the plaintiff might declare
either upon the analogy of Pasley
v. Freeman, alleging a false charge,
knowingly made, with intent to injure
the plaintiff, followed by special dam-
age, or in the form of malicious prose-
cution, alleging malice, want of probable
cause, and damage. The latter was the
form in Green v. Button and Wren v*
Weild, supra.
Malicious Abuse of Process. — The
principal case, Grainger v. Hill, is an
example of the action for a malicious
abuse of process in compelling a party
illegally to give up his property.
Among other examples may be named
the vexatious suing out of a second
capias, pending a former writ, as in
Heywood v. Collinge, 9 Ad. & E. 268;
the levying of execution of double the
amount of the debt, Sommer v. Wilt, 4
Serg. & R. 19; the fraudulent inducing
a person to come within the jurisdiction
of a court, Wanzer v. Bright* 52 111. 35;
the arrest of the plaintiff on a ca. sa.
for a larger sum than is due, Jenings
v. Florence, 2 C. B. n. s. 467 ; and the
wrongful suing out of an attachment,
Spengler v. Davy, 15 Gratt. 381. In
this case, it was held that an allegation
of malice was necessary, but its omission
was said to be cured by verdict. In
Stewart v. Cole, 46 Ala. 646, it seems
to have been supposed that proof of
malice was unnecessary, except for the
purpose of obtaining exemplary dam-
ages. But this is believed to be incor-
rect. It is difficult to see how the
making a false charge, believing it to
be true, can be actionable. The plain-
tiff's injury in such case is damnum
absque injuria. Preston v. Cooper,
1 Dill. 589 ; Fullenwider v. McWilliams,
7 Bush, 389.
It may be added that the old practice
of making an allegation of conspiracy,
where the action was brought against
two or more, is now obsolete; and, if
the allegation be inserted in the decla-
ration, it may be rejected as surplusage.
Parker v. Huntington, 2 Gray, 124.
However, all who voluntarily partici-
pate in the prosecution are liable.
Stansbury v. Fogle, 37 Md. 369.
HUTCHIXS V. HUTCHINS. 207
CONSPIRACY.
Hctchiss v. Hctchixs, leading case.
Mote on Conspiracy.
Historical aspects of the subject.
Modern doctrines.
HUTCHINS ('. HUTCHIXS.
( 7 Hill, KU. Supreme Court, New York, January, lSio )
Damage. The declaration alleged that the defendants, by fraudulently, maliciously,
and wrongfully combining, confederating, and conspiring together, and, by fraud,
deceit, and misrepresentation, had induced the father of the plaintiff to revoke a
will, wherein he bad devised certain real estate to the plaintiff. Held, that no cause
of action was alleged.
Thi> was an action for an alleged conspiracy by the defend-
ant?, whereby they had induced the plaintiff's father to revoke
a will, in which certain real estate was devised to the plaintiff.
The declaration alleged that the defendants, by fraudulently,
maliciously, and wrongfully combining, confederating, and con-
spiring together, and by fraud, deceit, and misrepresentation, had
induced the father of the plaintiff to revoke the said will.
Demurrer to the declaration.
>'. Stevens, for the defendant. F. M. Haiglit, for the plaintiff.
The opinion of the court was delivered by
Nelson. C. J. The allegation of a conspiracy between the
defendants, for the purpose and with the intent of committing the
wrong complained of in the several counts of the declaration, is of
no importance, so far as respects the cause and ground of the
action. A simple conspiracy, however atrocious, unless it resulted
in actual damage to the party, never was the subject of a civil
action ; not even when the old form of a writ of conspiracy, in
its limited and most technical character, was in use. Then,
indeed, the allegation of a conspiracy was material and substan-
tive, because, unless established by the proof, the plaintiff failed,
as it was essential that the verdict should be against two at least
in order to be upheld.
The writ of conspiracy, technically speaking, did not lie at
208 CONSPIRACY.
common law in any case, except where the conspiracy was to
indict the party either of treason or felony, by which his life was
in danger, and he had been acquitted of the indictment by ver-
dict. All the other cases of conspiracy in the books were but
actions on the case ; and though it was usual to charge the con-
spiracy in the declaration, the averment was immaterial, and
need not be proved. The action could always be brought
against one defendant ; or if brought against more, one might
be found guilty and the rest acquitted. Saville v. Roberts, 1
Ld. Raym. 374; s. c. 12 Mod. 208 ; 1 Salk. 13 ; Skinner v. Gun-
ton, 1 Saund. 228 ; ib. 230, note (4), and the cases there cited ;
Jones v. Baker, 7 Cowen, 445.
Where the action is brought against two or more as concerned
in the wrong done, it is necessary, in order to recover against all
of them, to prove a combination or joint act of all. For this
purpose it may be important to establish the allegation of a
conspiracy. But if it turn out on the trial that only one was
concerned, the plaintiff may still recover, the same as if such one
had been sued alone. The conspiracy or combination is nothing
so far as sustaining the action goes, the foundation of it being
the actual damage done to the party. In Saville v. Roberts, 1
Ld. Raym. 378, Holt, C. J., said : " An action will not lie for
the greatest conspiracy imaginable, if nothing be put in execu-
tion ; but if the party be damaged, the action will lie. From
whence it follows that the damage is the ground of the action,
which is as great, in the present case, as if there had been a con-
spiracy." That was an action against one only, for maliciously
procuring the plaintiff to be indicted of a riot, by reason whereof
he was subjected to costs and expense in defending himself.
We may therefore lay out of consideration altogether the con-
spiracy charged against these defendants, in endeavoring to ascer-
tain if any foundation is laid for the action, and regard it the
same as if the defendant Hutchins had alone committed the sev-
eral grievances for which redress is sought. The case would
then be substantially this : The father of the plaintiff devised to
him, in due form of law, a farm consisting of one hundred and
fifty-one acres of land. The defendant, being aware of the fact,
and intending to deprive the plaintiff of the benefit and advan-
tage of the devise, and of his expected estate and interest in the
farm, falsely and maliciously represented to the father, that, after
HUTCHINS V. HUTCHINS. 209
his decease, the plaintiff intended to set up a large demand
against the estate, which would absorb the greater part of it,
and thus deprive the other children of their just share ; at the
same time defaming and calumniating the character of the
plaintiff in several particulars. By these fraudulent means
the defendant prevailed upon the father to revoke and cancel
the will, and to make and execute a new one, by which tKe
plaintiff was excluded from all participation in his father's estate.
This is the substance of the case in its strongest aspect, as pre-
sented by the pleadings ; and the question arises whether any
actual damage, in contemplation of law, is shown to have been
sustained by the plaintiff.
Fraud without damage, or damage without fraud, gives no
cause of action, but, where both concur, an action lies. Dam-
age, in the sense of the law, may arise out of injuries to the per-
son or to the property ; as any wrongful invasion of either is a
violation of his legal rights, which it is the object of the law to
protect. Thus, for injuries to his health, liberty, and reputation,
or to his rights of property, personal or real, the law has fur-
nished the appropriate remedies. The former are violations of
the absolute rights of the person, from which damage results as
a consequence. As to the latter, the party aggrieved must not
only establish that the alleged tort or trespass has been com-
mitted, but must aver and prove his right or interest in the prop-
erty or thing affected, before he can be deemed to have sustained
damages for which an action will lie.
Now, testing the plaintiff's declaration by these principles, has
he made out a case from which it can be said that damage has
resulted to him ? I think not. In respect to the farm devised
to him by the first will, he fails to show that he had any such
interest in it as the law will recognize. The only foundation of
his claim rests upon the mere unexecuted intention of his father
to make a gift of the property ; and this cannot be said to have
conferred a right of any kind. To hold otherwise, and sanction
the doctrine contended for by the plaintiff, would be next to
saying that every voluntary courtesy was matter of legal obliga-
tion ; that private thoughts and intentions, concerning benev-
olent or charitable distributions of property, might be seized
upon as the foundation of a right which the law would deal with
and protect.
14
210 CONSPIRACY.
I have not overlooked the causes referred to on the argument,
of actions of slander, where special damage must be shown in
order to make the words actionable, and where the deprivation
of any present substantia] advantage, even though gratuitous,
such as the loss of customers, of a permanent home at a friend's,
or advancement in life, and such like, if the immediate and direct
consequence of the words, will sustain the action. 1 Starkie on
Slander, 158-186, ed. of 1843. If this description of special
damage is to be regarded as the gist and foundation of the action,
I rather think the principle should be regarded as peculiar to
that special injury. I am not aware of any class of remedies
given for a violation of the rights of property, where so remote
and contingent a damage has been allowed as a substantial
ground of action.
But the law applicable to the case referred to proceeds upon
the ground that the plaintiff, by the wrongful act complained of,
has been deprived of the present actual enjoyment of some pecun-
iary advantages. No such damage can be pretended here. At
best, the contemplated gift was not to be realized till after the
death of the testator, which might not happen until after the
death of the plaintiff ; or the testator might change his mind or
lose his property.
In short, the plaintiff had no interest in the property of which
he says he has been deprived by the fraudulent interference of
the defendant, beyond a mere naked possibility, an interest
which might, indeed, influence his hopes and expectations, but
which is altogether too shadowy and evanescent to be dealt with
by courts of law.
I am of opinion that the defendant is entitled to judgment.
Ordered accordingly.
Historical. — In the 21st year of tain day, and justice was to be speedily
Edw. 1, a.d. 1293, an act of Parlia- done. If thff defendants were con-
ment was passed concerning conspira- victed, they were to be severely pun-
tors, to the effect that those who desired ished, in the discretion of the judges,
to complain of such persons for pro- Or, the complainants, if they preferred,
curing pleas to be maliciously moved were to wait until the Iter of the. jus-
against them should come before the tices, and then prosecute. 1 Rot. Pari.
justices appointed to hold the pleas of 96.
the king and give security to prosecute Seven years afterwards, in the Ar-
the complaint. The defendants were tides upon the Charters, 28 Edw. 1,
to be attached to appear upon a cer- c. 10 (1 St. at Large, 283), it was de-
HISTORICAL.
211
dared, in regard to conspirators, false
informers, and evil procurers of dozens,
assizes, inquests, and juries, that the
justices, when they went into the coun-
try to do their office, should, upon every
plaint made to them, award inquests
without writ and without delay, and " do
right unto the plaintiffs "
About the same time, another stat-
ute was passed, declaring that whoever
would complain of conspirators, invent-
ors, and maintainers of false quarrels,
and their abettors and supporters, should
come to the chief justices of the king,
and have a writ to attach such offenders
to answer the parties aggrieved. And
a writ, framed by Gilbert de Rouberie,
was given by this act, which writ com-
manded the sheriff that if the plaintiff
made him secure for prosecuting his
complaint "tunc pone per vadium et
salvos plegios G. de C. quod sit coram
nobis in Octobris sancti Johannae Bap-
tistte. ubicunquetuncfuerimusin Anglia,
ad respondendum prsedicto A. de pla-
cito conspirationis et transgressionis,
secundum ordinationem nostram nnper
inde provisam," &c. And it was added,
that if any one was convicted, he should
be imprisoned until he had made satis-
faction to the plaintiff, and had paid a
heavy fine to the king. 1 St. at Large,
399. From this it appears that this
statute (which is classed among those
of uncertain date) was subsequent to
that of the 21 Edw. 1, and that the first
act above mentioned was designed to
afford an ample private remedy to the
person aggrieved, as well as a public
prosecution.
A few years later (33 Edw. 1, St 1),
an act was passed defining the term
"conspirators" thus: "Conspirators
be they that do consider or bind them-
selves by oath, covenant, or other alli-
ance, that every of them shall aid and
support the enterprise of each other
falsely and maliciously to indict, or
cause to be indicted, or falsely to ac-
quit people, or falsely to move or main-
tain pleas ; and also such as cause
children within age to appeal men of
felony, whereby they are imprisoned
and sore grieved ; and such as retain
men with their liveries or fees for to
maintain their malicious enterprises,
and to suppress the truth, as well the
takers as the givers ; and stewards and
bailiffs of great lords which, by their
seigniory, office, or power, undertake to
maintain or support quarrels, pleas, or
debates for other matters than such as
touch the estates of their lords or them-
selves." There are also some later stat-
utes concerning conspiracies, which need
not be set forth. 4 Edw. 3, c. 10 ; 8
Hen. 6, c. 10 ; 18 Hen. 6, c. 12; 3 Hen.
7, c. 1.
These statutes are sometimes sup-
posed to have given rise to the writs
of conspiracy with which the old books
so much abound. 1 Saund. 2:50, note.
See also Parker v. Huntington, 2 Gray,
124. But this is probably a mistake.
In Staundforde's P. C. p. 172, Brief de
Conspiracy, in which the author treats
of the civil as well as criminal aspects
of the subject, it is said that " at com-
mon laic this writ lay as well in the case
of an acquittal upon appeal [of felony
or murder] as it does at this day in the
case of an acquittal upon indictment;
but," the writer adds, "since the Statute
of Westminster 2, u. 12 [ante, p. 191],
it is a question whether the writ lies
in the first case [appeal] or not." Fitz-
herbert speaks of the statute of West-
minster 2, as taking away the right of
action by writ of conspiracy in cases
of acquittal by verdict upon appeal of
felony or murder. Nat. Brev. 114.
See Register, 134 6, part i. ace. But
212
CONSPIRACY.
see Staundf. P. C, ut supra; Pulton
De Pace Regis, 232. Now this statute
(which relates to malicious prosecutions)
was passed in the 13th year of Edward 1,
some eight years before the statute first
above mentioned; which shows that ac-
tions of conspiracy were not first given
by that act.
Coke also says that the act of 28
Edw. 1, c. 10 (Articles upon the Char-
ters), was but in affirmance of the com-
mon law, both in its criminal and civil
aspects. 2 Inst. 562, referring to the
Register, and to Fitzherbert anil Staund-
forde. (But the Register, it may be ob-
served, is not conclusive, for much of
the book is of quite modern date.
And, besides, all the writs given there
in full conclude upon the statute, contra
formam ordinationis in hvjusmodi casu
provisce. Register, 13-4, 134 6.) That
conspiracies were the subject of criminal
inquiry before the 21st year of Edw. 1,
see 1 Nichols's BrittQn, 95, the date of
which work is placed by Mr. Nichols in
the 20th year of that reign. See Introd.
p. xviii.
As to the nature of this old writ
or action, Fitzherbert says that it lies
where two or more persons, of malice
and covin, conspire and devise to indict
any person falsely, and the party is
afterwards acquitled. But if one per-
son, of malice and false imagination,
cause another to be falsely indicted, the
party so indicted shall not have the writ,
but must bring /an action on the case
against the party. Nat. Brev. 114.
But this was only required, it seems,
where the plaintiff had been appealed
or indicted of crimes as distinguished
from misdemeanors, or, as it was com-
monly expressed, of treason, felony, or
murder ; in other cases, this writ was
allowed when the action was against but
one. "A writ of conspiracy lor indict-
ing for felony doth not lie but against
two persons at the least ; but a writ of
conspiracy for indicting one of trespass
or other falsity made lietb against one
person.'' lb. 116. And, therefore,
where the writ was against several for
a false indictment or appeal of felony,
if all but one were acquitted, the action
failed. Com. Dig. Action upon the
Case for a Conspiracy, C. 1. But where
the writ was brought against but one
person, Fitzherbert says that it was only
an action on the case for the falsity and
deceit, '■ because one person cannot con-
spire with himself." Nat. Brev. 116.
The writ could be brought for deceit
and trespass against several as well as
against one, but it still remained in
effect an action on the case. The alle-
gation of conspiracy, however, was sur-
plusage; and the result was that judg-
ment could be obtained against one,
while the writ as to the rest was dis-
missed. Muriel v. Tracy, 6 Mod. 169,
per Lord Holt; Pollard v. Evans, 2
Show. 50; Skinner v. Gunton, 1 Saund.
228 and note, 230. It appears, indeed,
from several of the old precedents, that
it was usual in actions upon the case
in the nature of conspiracy to insert in
the declaration the words per conspira-
tionem inter eos, if the action was against
several, or inter the defendant et quen-
dam R., if the action was against but
one. 2 Saund. 230, note ; Winch's En-
tries, 104 ; Robinson's Entries, 104 ;
Heme's Pleader, 147.
An accessary, upon the acquittal of
his principal, was entitled to the writ
equally with his principal. Fitzh. N. B.
115, giving the form of the writ.
Except where there was no such
place in the county as that named in
the indictment (see infra), the writ did
not lie against indictors. lb.; Register,
134 b. Though, quaere, if the jurors pro-
HISTORICAL.
213
cured themselves to be impanelled. lb. ;
2 Reeves's Hist. Eng. Law, 207, Finl.
ed. So, if jurors were sworn to inquire,
and afterwards one of them was dis-
charged by the justices, he could not be
punished for what he did when he was
sworn ; but if he conspired afterwards,
he might be charged in a writ of con-
spiracy, lb. So, one who came into
court and discovered felonies, being
sworn to give evidence to the jury, was
protected. lb. See 27 Edw. 3, p. 134,
pi. 12 ; 27 Hen. $. p. 2, pi. 5 ; So Hen.
8, p. 15.
If a man were indicted or appealed
of treason or felon}-, or a trespass done
in aforeign country, and were acquitted,
he should have the. writ of conspiracy
against him who procured him to be in-
dicted or appealed, and should recover
treble damages, upon the St. 8 Hen.
6, c. 10. lb. ; 11 Hen. 7, 25 6. So, if
a man were indicted of felony or trea-
son where there was no such place in
the county as that named, he could have
the writ against the indictors, abettors,
procurers, or conspirators, upon the St.
18 Hen. 6, c. 12. So, if the justices of
jail-delivery arraigned, a prisoner for
murder within the year, where an ap-
peal was depending against the same
prisoner for the same murder, which
they knew, and yet proceeded and ac-
quitted him, he could have the writ,
though he was not acquitted or dis-
charged of the appeal. lb.
The most interesting case, perhaps,
was this : If a man were falsely indicted
of felony, and afterwards, by act of Par-
liament, a general pardon were granted
of all felonies, the party should not have
a writ of conspiracy, though he should
plead to the indictment and be acquit-
ted , and would not plead the act ; be-
cause his life was not in danger, and the
felony was discharged by the act. lb.
In order to show precisely the nature
of this writ, we give the following forms
from Fitzh. Nat. Brev. 115: —
Where the plaintiff was acquitted by
verdict the writ was thus : —
" The king to the sheriff, &c. If A.
shall make you secure, &c, then put,
&c, B. and C. that they be before us,
&c, to show wherefore, having before
conspired together at N., they falsely
and maliciously procured the aforesaid
A. to be indicted of stealing, taking,
and leading away a certain beast at
N. , and him to be taken upon that oc-
casion and to be detained in our prison
of Warwick, until in our court, before
our beloved and faithful R. and S , our
justices assigned to deliver our jail of
Warwick, according to the law and
custom of our realm, he was acquitted,
to the great damage of him, the said A.,
and contrary to the form of the ordi-
nance in such case provided. And have
there the names of the pledges and this
writ. Witness," &c.
Where there was a nonsuit in ap-
peal (without indictment) the writ was
thus : —
Beginning as above. "Wherefore,
having before had conspiracy between
them at N., they falsely and maliciously
procured the aforesaid A. to be appealed
of the death of D., lately slain at E.,
and him, the said A., to be taken upon
that occasion and to be detained in our
prison of L., until in our court before
us the same A., Sec., by the consider-
ation of our court, departed quitted,
thereof," &c.
The form of the writ for one charged
as an accessary was thus : —
" Wherefore, having before conspired
together, &c, they falsely and mali-
ciously procured the aforesaid A. to be
indicted because he had abetted and
procured D., who was the wife of E. F.»
214
CONSPIRACY.
and G. to be appealed of the death of
E. F., her late husband, before J. and
his companions, lately our justices, to
hear and determine that appeal, and
him to be taken and imprisoned upon
that occasion, and to be detained in our
prison of Lincoln until he was acquitted
thereof before our aforesaid justices,
according to the law and custom of our
realm," &c.
It will be observed that the substance
of the writ was that the plaintiff had
been falsely and maliciously appealed
or indicted, and had been acquitted,
or, in the case of an appeal without in-
dictment, nonsuited. No allegation is
made in any of the writs of ' ' want of
reasonable and probable cause." This
allegation appears to be of modern ori-
gin. See ante, p. 195.
The old writ of conspiracy lay only
in cases of false trials of the plaintiff,
as appears from the statutes above
mentioned, and from the absence of
writs of this kind not founded upon the
statutes. But it is not to be inferred
that confederacies to injure a person in
other ways were not actionable. There
is a case in the Year-Books, 16 Edw. 2,
p. 492, of the Prior of Coventry, who
brought a writ of trespass — a distinct
writ from the earliest times — against
John de Nevill and many others, for a
confederacy and riotous assembly, by
which they beat him and his servants,
and carried off his goods. It was ob-
jected, that the thing was an offence
against the crown, so that the action be-
longed only to the king; but Herle, J.,
said that the plaintiff only mentioned
the riot as matter to aggravate the fine
to the king, and that he relied upon
the trespass to himself, and for that he
should recover damages. .And though
the king could pardon the fine, he
could not the damages. See 2 Reeves's
Hist. Eng. Law, p. 160, note, Finl.
ed.
We are therefore justified in infer-
ring that actions for injuries from fraud-
ulent combinations and conspiracies,
whether by false prosecutions or other-
wise, have been maintainable from the
earliest times.
Modern Doctrines. — In modern times
we have broken away from the old writ
of conspiracy, as it was properly used,
and it would no longer be considered
as fatal to the plaintiff's case, in an
action of conspiracy against several for
falsely and maliciously indicting him of
a felony, that all but one should be ac-
quitted. The proceeding would doubt-
less be regarded as in substance an
action for a malicious prosecution ; and
the plaintiff would be entitled to recover
accordingly. A fortiori, if but one were
sued for conspiracy. Savile v. Roberts,
1 Ld. Raym. 374 ; 8. c. 12 Mod. 208 ; 1
Salk. 13. See note on Malicious Pros-
ecution, ante, p. 191.
The effect of the principal case is,
that the fact of conspiracy becomes ac-
tionable only when the act would be a
ground of suit if done by a single per-
son ; and so it has been elsewhere held.
Kimball v. Harman, 34 Md. 407. " It
is clear," say the court in this case, ' ' as
well upon the authority of other cases
as»that of Savile ». Roberts [1 Ld.
Raym. 374], that an act which, if done
by one alone, constitutes no ground of
an action on the case cannot be made
the ground of such action by alleging
it to have been done by and through a
conspiracy of several." For which the
court cite the principal case and Wel-
lington v. Small, 3 Cush. 145 ; Adler
v. Fenton, 24 How. 407 ; Cotterell o.
Jones, 11 Com. B. 713. And, e con-
verso, if the act is unlawful when com-
mitted by one, it will be unlawful when
MODERN DOCTRINES.
215
committed by a combination of several ;
as in the case of a conspiracy (carried
out) for a malicious prosecution. Dreux
r. Domec, 18 Cal. S3 ; Swan v. Saddle-
mire, S Wend. 676 ; Griffith v. Ogle,
1 Binn. 172; Haldeman i. Martin, 10
Penn. St. 869; Davenport t>. Lynch,
6 Jones (N. Car.), 545; Hinchman ».
Richie, Brightl. 143. Or a combination
to entice a citizen of one State into the
jurisdiction of another for the purpose
of his arrest, though there be a cause of
action against him. Phelps v. Goddard,
1 Tyler, 60. Or a combination to de-
fraud. Bulkier v. Storer, 2 Day, 531 ;
Cowles v. Coe, 21 Conn. 220; Adams
.'. Paige, 7 Pick. 542 ; Talbot r. Cains,
5 Met. 520 ; Penrod v. Morrison, 2
Penn. 126; Whitman l. Spencer, 2 R. I.
124; Johnson e. Davis, 7 Tex. 173;
Sheple r. Page, 12 Vt. 519.
The conspiracy in itself, as was de-
cided in the principal case, is not so
unlawful as to be actionable. The ac-
tion lies for doing the (or at least some)
unlawful act, not for conspiring to do
it. Kimball r. Harman, supra ; Cas-
trique r. Behrens, 30 L. J. Q. B. 163 ;
Kirkpatrick v. Lex, 49 Penn. St. 122;
Parker p. Huntington, 2 Gray,124 ; Her-
ron v. Hughes, 25 Cal. oo5 ; Hall v.
Eaton, 25 Vt. 458 ; Eason c. Petway,
1 Dev. & B. 44; Bowen v. Matheson,
14 Allen, 499. But if any damage is
sustained in consequence of the con-
spiracy, an action lies though the act
designed was not committed. Patten
v. Gurney, 17 Mass. 186. In the case
of Swan v. Saddlemire, 8 Wend. 676,
it is said to be sufficient that the de-
fendants' act has caused trouble, incon-
venience, or expense. In cases where
the act is actionable per se, as in libel
and certain cases of slander, it is not
necessary, of course, to prove any spe-
cial damage. Hood v. Palm, 8 Barr, 237 .
In Parker v. Huntington, 2 Gray,
124, the plaintiff declared against the
defendants for maliciously conspiring to
have him indicted for perjury ; and there
was a demurrer, on the ground that the
declaration did not set out any agree-
ment to do an unlawful act, or a lawful
act by unlawful means. The demurrer
was overruled ; and the court said that
as the action was not for a malicious
prosecution for treason or for a capital
felony, it was in no sense an action for
conspiracy. It was simply an action on
the case, and the charge of conspiracy
was mere surplusage, intended as mat-
ter of aggravation.
In some cases, however, the allega-
tion of a conspiracy to injure the plain-
tiff, when followed by actual injury,
becomes important ; as where the injury
in itself is one for which the law gives
no redress. Thus, in Burton v. Fulton,
49 Penn. St. 151, the plaintiff sued the
defendants as directors of a school board
for maliciously conspiring to secure her
removal from the position of teacher in
one of their schools ; and it was held
that inasmuch as the defendants had the
power of removal, the injury which may
have resulted to the plaintiff from their
action was not a ground of civil redress
without proof of actual malice. See
also Wellington v. Small, 3 Cush. 145;
Leavitt v. Gushee, 5 Cal. 152 ; Newall
v. Jenkins, 26 Penn. St. 159 ; Johnson
v. Davis, 7 Tex. 173 ; Gaunce v. Back-
house, 37 Penn. St. 350 ; Hinchman v.
Richie, Brightl. 143.
In cases of this kind, where the fact
of conspiracy is essential (in order to
show the unlawfulness of the act and
injury complained of) to the plaintiff's
case, it is necessary, of course, to prove
an actual combination or participation.
See Gaunce v. Backhouse, 37 Penn. St.
350; Benford v. Sanner, 40 Penn. St. 9.
216
CONSPIEACT.
It is not, however, necessary to prove
an actual participation in the act in
every case. See Page v. Parker, 43
N. H. 363, 367, where the court say
that if the jury found that Reding (one
of the defendants), with the other two,
had combined and conspired to effect
a common object, and it was arranged
that each should do certain acts and
perform certain parts, with a view to
the attainment of the common result,
or that one or two were to be the active
agents while the other one or two re-
mained in the background and took no
open or visible part in the transaction,
they would still all be alike liable for
the acts of all or either of them. So,
too, in Tappan v. Powers, 2 Hall, 277,
it was held, on demurrer to the plain-
tiff's declaration, that whatever is done
in pursuance of a fraudulent combina-
tion by any of the parties concerned in
it may be averred to be the act of all.
In Livermore v. Herschell, 3 Pick. 33,
it was held in an action on the case in
the nature of conspiracy against three
for obtaining goods upon credit by false
and fraudulent representations, evidence
that the representations were made by
one alone in pursuance of a previous
agreement and confederacy with the
other two, though in their absence,
would sustain the declaration charging
the three with the wrong. See also
Bredin v. Bredin, 3 Barr, 81 ; Hinch-
man b. Richie, Brightl. 143.
But if as to one of the defendants
there be no collusion or participation
in the scheme or in its execution, he
cannot be found guilty by evidence of
mere silent observation and approval
of the act. Brannock ». Bouldin, 4 Ired.
61. See Johnson v. Davis, 7 Tex. 173.
It has been supposed that since hus-
band and wife are in law but one per-
son, the charge of conspiracy cannot be
sustained against them alone. Kirtley
v. Deck, 2 Munf. 10, 15. But this was
upon the authority of Fitzh. Nat. Brev.
116, which, as we have seen, treats
mainly of the ancient writ of conspir-
acy ; and this rule is there spoken of
as applying to the case of a writ of
conspiracy for indicting the plaintiff
of felony. In cases of trespass, an ac-
tion for a false and malicious prosecu-
tion would clearly lie against husband
and wife, though alleged to have been
per conspirationem, &c.
STEPHENS V. MYERS. 217
ASSAULT AND BATTERY.
Stephens ./. Myers, leading case.
Cole v. Turner, leading case.
Elliott v. Brown, leading case.
Note on Assault and Battery.
Historical aspects of the subject.
Assault.
Battery.
Son assault demesne.
Master and servant.
Stephens v. Myers.
(4 Car. & P. 349. Common Pleas, England, Nisi Prius, Trinity Term, 1830.)
Assault. A. was advancing in a threatening attitude, with an intention to strike B.,
so that his blow would have immediately reached B. if he had not been stopped.
Held, an assault, though at the particular moment when A. was stopped he was
not near enough for his blow to take effect.
Assault. The declaration stated that the defendant threat-
ened and attempted to assault the plaintiff. Plea, not guilty.
It appeared that the plaintiff was acting as chairman at a
parish meeting, and sat at the head of a table, at which table the
defendant also sat, there being six or seven persons between him
and the plaintiff. The defendant, in the course of some angry
discussion which took place, having been very vociferous, and
having interrupted the proceedings of the meeting, a motion was
made that he should be turned out, which was carried by a veiy
large majority. Upon this the defendant said he would rather
pull the chairman out of the chair than be turned out of the
room, and immediately advanced with his fist clenched toward
the chairman, but was stopped by the church-warden, who sat
next but one to the chairman, at a time when he was not near
enough for any blow he might have meditated to reach the plain-
tiff ; but the witnesses said that it seemed to them that he was
advancing with an intention to strike the chairman.
Spankie, Serjt., for the defendant, upon this evidence con-
218 ASSAULT AND BATTERY.
tended that no assault had been committed, as there was no
power in the defendant, from the situation of the parties, to exe-
cute his threat. There was not a present ability ; he had not
the means of executing his intention at the time he was stopped.
Tindal, C. J., in his summing up, said: It is not every threat,
when there is no actual personal violence, that constitutes an
assault ; there must in all cases be the means of carrying the
threat into effect. The question I shall leave to you will be,
whether the defendant was advancing at the time, in a threaten-
ing attitude, to strike the chairman, so that his blow would
almost immediately have reached the chairman, if he had not
been stopped. Then, though he was not near enough at the
time to have struck him, yet if he was advancing with that
intent, I think it amounts to an assault in law. If he was so
advancing that, within a second or two of time, he would have
reached the plaintiff, it seems to me it is an assault in law. If you
think he was not advancing to strike the plaintiff, then only can
you find your verdict for the defendant ; otherwise, you must
find it for the plaintiff, and give him such damages as you think
the nature of the case requires.
Verdict for the plaintiff . Damages Is.
Cole v. Turner.
(6 Mod. 149 ; s. c. Holt, 108. King's Bench, England, Nisi Prius, Easter Terra, 1705.)
Battery. To touch another in anger, though in the slightest degree, or under pretence
of passing by, is in law a battery.
Holt, C. J., upon evidence in trespass for assault and battery,
declared,
First, that the least touching of another in anger is a battery.
Secondly, if two or more meet in a narrow passage, and, without
any violence or design of harm, the one touches the other gently,
it will be no battery.
Thirdly, if any of them use violence against the other, to force
his way in a rude, inordinate manner, it will be a battery ; or any
struggle about the passage to such degree as may do hurt will be
a battery.
elliott v. brown. 219
Elliott v. Brown.
(2 Wend. 497. Supreme Court, New York, May, 1829.)
.Son Assault Demesne. The party first attacked, in a personal rencontre between two
individuals, is not entitled to maintain an action for an assault and battery, if he
uses so much personal violence towards the other party, exceeding the bounds of
self-defence, as could not be justified under a plea of son assault demesne, were
lie the party defendant in a suit.
Error from the Xew York Common Pleas. Brown sued Elliott
in an action of an assault and battery. The defendant pleaded
not guilty, and subjoined a notice of son assault demesne. On
the trial of the cause, the plaintiff proved that the defendant
struck him in the face, or put his fist in his face ; upon which, as
it appeared by the evidence on the part of the defendant, the
plaintiff threw the defendant down on the pavement with vio-
lence, and when he arose again clenched him and threw him
down, his head striking the curb-stoiie ; his head was badly cut,
and bled; he was greatly hurt and bruised, and was confined to
his room for sixteen or seventeen days, and was attended by a
physician, who testified that he found him very ill on the night
he received the injury, that he was laboring under a concussion
of the brain, and a wound in his head, which was bleeding. It
appeared that the plaintiff was a very large and powerful man,
and that the defendant was a small elderly man, and that it was
with difficulty the former was torn from the latter when lying on
the ground. The testimony was conflicting as to the fact whether
the defendant struck the first blow.
The judge charged the jury that they must determine who
commenced the affray by committing the first personal violence ;
that the defendant had been much hurt, but yet the inquiry
must be, who committed the first act of violence ; and if they
found that it was the defendant, their verdict must be for the
plaintiff; but that in such case the injuries sustained by the
defendant ought to be considered in mitigation of damages.
The counsel for the defendant insisted that the judge should
charge the jury, that, though they should believe that the
defendant had put his fist in the plaintiff's face, yet if the plain-
tiff provoked it, and followed it up by unnecessary violence, he
220 ASSAULT AND BATTERY.
became a trespasser, and the defendant would stand justified ; to
which the judge replied, that if one man commences an assault
upon another, and he in defending himself does violence to the
person assaulting him, not necessary to his own defence, he
thereby gives a cause of action for such violence on his part, yet
be loses not his own cause of action, which accrued to him from
the first assault and battery which had been committed on him ;
to which opinion the defendant excepted.
The jury, after having retired, came into court and requested
to be instructed what amount of damages would carry costs.
The judge told them their inquiry ought to be, whether or not
an assault and battery had been committed by the defendant
upon the plaintiff; if they found that it had not been committed,
their verdict should be for the defendant, otherwise for the
plaintiff, {o whom they should award such damages as the wrong
required, without reference to the costs ; that it was his dutjr to
give them all proper information in matters of law necessary to
aid them in the illustration or determination of the facts before
them, but that the information sought was not necessary for that
purpose. The counsel for the defendant again excepted.
D. Graham, for plaintiff in error. J. JUdivards, for defendant.
By the court, Savage, C. J. The first question is an impor-
tant one, and it is rather strange that no case is to be found, as
far as my researches have extended, where the point has been
adjudicated. It has been decided by this court, though I cannot .
find the decision reported, that there cannot be a recovery by
both parties in cross-actions. The party who first recovers may
plead that recovery in the suit against himself for the same affray.
Had the parties been reversed in this case, upon the same testi-
mony which was given, the court would no doubt have charged
the jury, that although Elliott might have committed the first
assault, yet if Brown used more violence than was necessary to
his own defence he became a trespasser, and was liable to pay
damages to the plaintiff. Such unquestionably is the law. It
was so laid down by Holt, C. J., in Cockcroft v. Smith, Salk.
642, where he says, " That for every assault he did not think it
reasonable a man should be banged with a cudgel; that the
meaning of the plea (son assault demesne) was, that he struck
in his own defence." The facts of the case are not given, but
from what appears in 1 Ld. Raym. 177, it was an action for
ELLIOTT V. BROWN. 221
mayhem, in biting off the plaintiff's finger, and the first assault
by the plaintiff was tilting the form on which the defendant sat,
whereby the defendant fell: or, according to 11 Mod. 48, in a
scuffle the plaintiff ran his finger towards the defendant's eyes,
whereupon the defendant bit off a joint. It was held in that
case a good defence. But the principle is laid down by the
court, though they say, contrary to common practice, that for a
small assault there must not be an unequal return ; but the
question should be, what was necessary for a man's defence, not
who struck first. This case of Coekcvoft v. Smith is referred to
by all subsequent writers.
The same principle was recognized in South Carolina, in the
case of The State v. "Wood, 1 Bay, 351. The defendant was
indicted for an assault and battery on a woman. He proved that
she struck him first with a cowskin, whereupon he gave her sev-
eral severe blows with a large stick, and left her speechless on
the ground. The court directed a verdict against the defendant.
They agreed that the general rule of law is, that it is a justifica-
tion to the defendant that the prosecutor or plaintiff gives the
first blow : but the resistance ought to be in proportion to the
injury offered. Where a man disarms the aggressor, or puts it
out of his power to do further- injury, he ought to desist from
further violence : and if he commits any further outrage, he be-
comes the aggressor. The case in Salk. 642, is cited as sound
law. So the master of a vessel has a right to use proper chastise-
ment for disobedience of orders ; but if it be excessive and out of
proportion to the offence, he becomes a trespasser. 15 Mass. R.
347, 3t>5. And so in all cases where the right of chastisement
is given by law, if unnecessary severity is used, an action or an
indictment lies. The plaintiff in this case had no greater rights
than those who are permitted by law to chastise others under
their control. Admitting that the defendant gave the first blow,
this authorized the plaintiff to resist force by force, and to disarm
or disable his adversary ; but it did not authorize an athletic,
gigantic man to crush almost to death a little, feeble old man.
There can be no manner of doubt, then, that had Elliott sued
Brown, he would have been entitled to recover exemplary dam-
ages ; and from former decisions, should this recovery be sus-
tained, it is a bar to any action which Elliott may bring. Can
the law tolerate such injustice? How can the plaintiff be in
222
ASSAULT AND BATTERY.
any better situation in the eye of the law and of reason by being
plaintiff, than he would be in were he the defendant? If the
law is as stated in the court below, any person who is assaulted
ever so slightly, and that too upon his own provocation, may turn
upon his assailant and beat him as much as he pleases without
killing him, and yet recover damages from the man whom he has
thus abused. The law is not chargeable with such injustice. It
is true that both parties may be guilty of a breach of the peace,
and may be liable to punishment by indictment at the suit of the
people, whose laws they have both offended ; but a civil action
cannot surely be sustained by each of them against the other.
The judge should have told the jury, that although the defendant
might have given the first blow, yet if the plaintiff had used not
only more force than was necessary for self-defence, but had
unnecessarily abused the defendant, that then he was not entitled
to recover damages ; but was liable to pay damages, should Elliott
prosecute him.
Historical. — Actions for assault and
battery have passed through three
stages. At first they were of a civil
nature only ; afterwards they were
both civil and criminal (probably) at
the same time ; and finally they became
subjects of separate civil and criminal
jurisdiction.
The first condition prevailed in the
Anglo-Saxon period, as probably among
all the early Germanic races. It was so
among the Salian Franks, as the Salic
law shows. See Lex Salica, c. 17 ;
Laws of iEthelbirght, of Alfred, and
of William the Conqueror, 1 Thorpe's
Ancient Laws and Inst. pp. 1-21, 95-
101, 471-473.
The existence of the second stage is
a matter of probability rather than cer-
tainty. It is the natural link between
the first and third stages.
By the time of Bracton, the third
stage was reached.
A purely criminal proceeding was
now developed for the punishment of
batteries, — in the name of the king.
This was either by indictment or by
appeal of felony. But the latter mode
of prosecution, which had been the
ancient proceeding, could still be used
as a civil remedy by omitting the word
" feloniously " from the charge ; other-
wise the appeal belonged to the king
alone. Bracton, 154 6, § 3; Home's
Mirror, p. 92. Or the writ of trespass
could, it seems, be used. See infra.
In the time of Edward the First, the
same forms of redress were given to the
injured party ; but it was said that, for
avoiding the perilous risk of battle, it
was better to proceed by writ of tres-
pass than by appeal. If the latter
redress were employed, the plaintiff
himself ran the risk of imprisonment,
and of being compelled to make satisfac-
tion to the defendant in case there was
a variance between the appeal as en-
tered in the roll of the coroner and as
set forth in the county court, or if
there was any omission or interruption
HISTORICAL.
223
or any error in the latter court. If the
appeal were maintained, and the defend-
ant put himself upon the country and
was found guilty, the strict law was
that he should suffer the same punish-
ment as if he had chosen the trial by
battle and been vanquished, "to wit,
wound for wound, imprisonment for
imprisonment, and trespass for tres-
pass." But this severity was so far
mitigated in practice that the defend-
ant was sent to prison, there to remain
in irons until satisfaction was made to
the plaintiff. 1 Nichols's Britton, pp.
123, 124. This, however, was not a
bar to a proceeding by the king for a
breach of his peace. lb. p. 12-t.
Tbe judgment imposed in the pro-
ceeding by trespass was the same as
the (mitigated?) judgment in an ap-
peal ; except where the trespass was
committed in time of peace (i.e., not at
jousts, tournaments, and such like con-
tests) against knights or other honor-
able persons by ribalds or other worth-
less people, in which case the hand
that had struck the party was to be cut
off. lb.
The appeal of wounds and mayhem
was as follows: "A. appellat B. quod
cum esset in pace domini regis tali loco,
tali die, tali hora, tali anno, etc. ;
venit idem B. cum vi sua [et in felonia]
et assultu prsemedito, etc., fecit ei
quandam plagam in capite, vel in
brachio, vel in alio loco corporis, ita
quod mahemiatus est. Et quod hoc
fecit nequiter [et in felonia], offert
disrationare versus eum, sicut homo
mahemiatus, prout curia domini regis
consideraverit." Bracton, 114 b.
The following is given in the Mirror
as the form of an appeal of wounding :
"Barnings here appealeth Olif there,
that whereas the said Barnings, &c,
the said Olif with such a weapon
struck him, and wounded him in such
a part of his body, which wound con-
tained so much in length, so much in
breadth, and so much in depth ; and
this wound he gave him feloniously."
Ch. 2, § 20.
No mention is made in Bracton or
the Mirror, so far as we can discover,
of mere assaults without battery. But
in the reign of Edward the Third, as-
saults began to be considered as distinct
causes of action. 22 Lib. Ass. 60 ; 40
Lib. Ass. 40. See 2 Reeves's Hist. Eng.
Law, 392, Finl. ed.
The first writ of trespass given in
the Register is for an assault and bat-
tery. Fitzberbert gives the same writ,
translating it thus: " The King to the
Sheriff of Lincolnshire, greeting:
VV. of B. hath complained unto us that
C. made an assault upon him, the said
W., at N., and beat, wounded, and ill-
treated him, and other enormous things
to him did, to the no small damage and
grievance of him, the said W. And
therefore we command you that you
hear that plaint, and afterwards justly
cause him to be thereupon brought
before you, that we may hear no more-
clamor thereupon for want of justice.
Witness," &c. N. B. 85 ; Register, 92.
This, it will be observed, was a writ
oijusticies, commanding the sheriff him-
self to hear and determine the cause ;
and the Register adds, " Nota quod non
debet dici vi et armis vulneravit, neque
contra pacem nostram ; quia vicecomes
(the sheriff) non potest terminare ea."
If, however, the writ was returnable
before the king's court, it contained
the words vi et armis, and was abat-
able without them. The writ then ran :
" The King to the Sheriff, &c. If A. *hall
make you secure, then put, &c, B. that
he be before us or our justices at West-
minster, &c, to show wherefore, with
force and arms, he made an assault, &c,
and beat, wounded, and ill-treated,"
224
ASSAULT AND BATTERY.
&c. Fitzh. N. B. 86. See further,
Register (Original Writs), 93, 94 6,
102, 108. These writs were evidently in
use in the time of Bracton, for he uses
the same descriptive terms in speak-
ing of the injury. The action therefore
antedated the statute authorizing ac-
tions on the case (13 Edw. 1, c. 24) ; and
it has come down to the present time
without any essential change in form.
The usual allegation still is, as it was
when Bracton wrote, that the defendant
made an assault upon the plaintiff, and
beat, wounded, and ill-treated him.
Actions for the beating of servants
were also maintainable in these early
times ; but the law was peculiar. In
the time of Bracton (Henry 3), a.
master could bring an action for the
insult and disgrace inflicted upon him
in the person of his servant or slave,
though no loss of service .followed;
and though the servant himself with-
drew from his action, or refused to
prosecute. Bracton, 115. But for the
mere wounds inflicted, the servant alone
had a right of action. lb. 155 6.
Iu the following reign the law was
somewhat different. "If the plaintiff
complains," says Britton, "of a dam-
age done to himself and to his men, or
only on behalf of his men, the defend-
ant may say that every man has a sep-
arate action ; and in such cases we
will that the plaintiffs recover noth-
ing by their plaints beyond the dam-
ages which they can reasonably show
they have sustained by the loss of the ser-
vices of their men who have been beaten
or imprisoned, or so treated as to be
incapable of service. And their action
shall not be brought until after convic-
tion of the trespass committed against
the servants.'' 1 Nichols's Britton,
p. 131.
We have here, as in Bracton, the
very distinction which now prevails
between the injury by loss of service,
redress for which belongs to the mas-
ter, and the personal injury of the
battery, for which the servant alone
can sue ; but why the servant's action in
Britton's day must have preceded does
not appear, nor does it appear when
the change back to the law of Bracton
took place. But according to Bracton,
if the slave or servant upon whom
violence had been inflicted, sued first
and failed in his proof, the master lost
his right of action, on the ground that
the latter right was dependent upon
the existence of an injury inflicted upon
the slave, and this had been disproved;
" quia si factum non probetur quod est
principale, valere non debeat aliquid
quod dependeat ex eo, et proinde quod
talis non verberatur ad dedecus ipsius,
nee ad damnum." Book 3, c. 12, § 6,
p. 115. At the present time, a judg-
ment against the servant in such case
would, of course, be inadmissible in evi-
dence in an action by the master, as
being res inter alios.
The principle stated by Bracton of
the master's right to sue for an insult
done to him through the person of his
slave or servant was evidently derived
from the Roman law. Gaius says,
"Now we appear to suffer injury not
only in our own person, but also in the
persons of our children, whom we have
under the potestas, and in the persons
of our wives, although they may not be
in our manus. . . . But on the slave
himself no injury seems to be inflicted,
for it was regarded as done to the
master through him. Yet in this case
we do not seem to suffer an injurv in
the same manner as in the persons of
our children or our wives, but then
only when something more shameful has
been done, which appears manifestly to
be intended as an insult to the master
of the slave." Book 3, §§ 221, 222,
HISTORICAL.
225
p. 573, Tompkins & Lemon's ed. ; (3). upon the locality of the wound,
Inst. Just, book 4, tit. 4, §§ 2, 3. as in the forehead or eye, rather
It is interesting to observe that than in a place covered; (4) upon
a slave was not held to be in the the person on whom it is committed,
same absolute subjection to his master as upon magistrates, officers, parents,
under the English law as under the or patrons, loo 6; Inst. Just, book
Roman. Braeton, though drawing his 4, tit. 4, § 9. See also Fleta, p. 63.
doctrines directly and almost literally Braeton adds that not only the per-
from the latter source, changes the son who directly did the act is liable,
statement when he comes to speak of but he also who accomplished it by
the rights of the slave, saying that the fraud or procured it so to be done. lb.
slave himself sued for wounds and The action, he says, was extinguished
blows, and not the master (except when if the party dissembled his injury ; and
the injuries were inflicted to insult him) ; one who took no notice of the wrong at
" habent enini servi personam standi in the time, could not afterwards change
judicio contra omnes de injuriis sibi his mind and bring an action. lb. ;
factis contra pacem domini regis." And Inst. Just, book 4, tit. 4, § 12. Ac-
he adds. " mul to fortius servientes." cording to the Digest, if the person
Braeton further says that slaves had injured did not take steps for redress
a right to come into court even against within a year his right of action was
their masters in cases of sedition gone, though he expressed indignation
against the king, and for other things at the time it was committed. Dig.
done against the king's peace. 155 6. lib. 47, tit. 10. 17, § 6.
So. too, under the Roman law, if the It would be interesting to know
injury was done to a freeman employed whether these doctrines concerning the
in the service of another, the latter amount of damages ever received a
could sue if the injury was intended as practical recognition in the courts of
a mere insult to him; otherwise, the England; and if they did, how and
person upon whom the act was done when they became obsolete as points
could alone maintain an action. Inst, of law. The truth probably is, that
Just, book 4, tit. 4, § 6. As to the they have always received a practical
modern doctrines concerning master recognition from the juries, and that
and servant in cases of assault and the courts would not discountenance an
batterv see post, p. 232. award of damages according to some
Braeton, transcribing the provisions such very natural standard.
of Justinian, says that the punishment In Pulton De Pace Regis, 2 o, a work
is sometimes light and sometimes of the beginning of the seventeenth
heavy, and its severity depends (1) century, we find the following defini-
upon the character of the deed itself, tions and statements of the law, drawn
as where a man is severely wounded, from the eases of the Year-Books :
beaten, and ill-treated; (2) upon the "Menaces, assaults, and batteries be
place where the injury is done, as in things of several natures, and yet for
the court of the king, or of the lords, the most part they tend to one effect,
or before the justices, or in the county viz., to hurt him against whom ihey are
before the sheriff, or in the theatre, bent. Menacing is a threatening of
or elsewhere before all the people ; some hurt to be done or procured by
15
226
ASSAULT AND BATTERY.
the speaker, or some other by his
means, to the person of the hearer, or
his wife, servant, tenant, or other,
whereby he receiveth loss or hurt.
Assault is an attempt to execute the
thing menaced by force and violence.
Battery is the performing of the thing
before threatened, viz., the beating of
him that was first menaced and then
assaulted. Menacing beginneth the
quarrel, assaulting doth increase it,
and battery accomplisheth it." Men-
acing, whereby a person was restrained
from pursuing the law, was a criminal
offence, subjecting the party to arrest
and imprisonment. St. 2 Edw. 3,
c. 30.
The author (who begins his book
with the subject of menaces, as the
" very root and principal cause " of
breaches of the peace) then proceeds
to say that the law hath given and
provided for him who is only menaced
an action of trespass, whereby he shall
recover his damages (40 Edw. 3, p. 40) ;
so that (i.e., provided that) the same
menacing do tend to the hurt of him
who was menaced, his servant, tenant,
or any other person by whom he liveth
or receiveth benefit. And therefore
the plaintiff in an action of menace
may declare: That he is an attorney,
and that in respect of the defendant's
menace, he durst not attend his client's
suits from such a day until such a day ;
or that he is a husbandman, and could
not attend or oversee his husbandry ;
or that he is a bailiff, or collector of
rents, and could not, in respect of such
menace, by the space of many months,
attend his bailiwick, collection of rents,
or other businesses (37 Hen. 6, p. 2) ;
or that in regard of such menacing he
was not able to nor durst travel, to
apply his trade or get his living without
such force and defence as his estate
was not able to maintain. 30 Lib. Ass.
pi. 14.
The collector of a fifteen accord-
ingly brought an action of trespass for
the king and himself, and declared that
the defendant did so rebuke him that
he durst not tarry in the town to gather
up the fifteen, for fear that the defend-
ant would have beaten him ; and though
the defendant did not beat him, yet
this rebuke was adjudged an assault,
and the plaintiff recovered damages.
27 Lib. Ass. pi. 11.
And upon the authority of Liber In-
trationum, 692, and 22 Lib. Ass. pi. 76,
and 20 Hen. 7, p. 5, Pulton says of
menaces of servants, that if one man
do menace or threaten the servant of
another of life, or member, so that the
servant depart from his master, whereby
the master for a time loses the service
of his said servant, the master shall
have an action of trespass against him
that did so menace his servant, declar-
ing that he made assault upon his ser-
vant, did beat him, wound him, and
evil entreat him, and so often menaced
to kill and dismember him, and did him
so many injuries and wrongs, that his
said servant durst not for such menaces,
and for fear of being killed or maimed,
attend his business (viz., the bailiwick
of his husbandry, his service in hus-
bandry, or keeping of his beasts, horses,
sheep, &c). And so his said business
and service lay undone, and the said
plaintiff lost the service of his said ser-
vant from such a day to such a day then
next following, to his great damage, and
against the king's peace, whereof he
complaineth that he is endamaged 201.
To which Pulton adds, " And so note,
that a man shall not have an action of
trespass for menace only, unless he
hath thereby some other loss or hurt ;
for the menace and the hurt which the
HISTORICAL.
1-21
party doth sustain thereby do make the
trespass, and do give cause of the ac-
tion of trespass. But it is otherwise if
a man beat the wife or villain of another,
for in those cases the party wronged,
viz., the husband or lord, shall have an
action of trespass, though he have re-
ceived no loss nor hindrance in com-
modity. For he may join in suit with
his wife to recover recompense for the
battery and wrong done unto her by
the trespasser ; and also he may punish
him by action of trespass who beateth
his villain, as he may him who beateth
his horse, cow,v «S:e. Xo authority,
however, is cited for this opinion ; and
that concerning the battery of the plain-
tiff's villain, it will be observed, is con-
trary to Britton and Bracton, unless the
battery was done in disgrace of the
master. And if that were ground of
action for the master at this time
(which is very doubtful, since no men-
tion is made of such a thing), the fact
indicates a retrograde doctrine since the
time of Britton.
Cases are also referred to as hold-
ing that menaces of tenants (at will,
paying rent) . whereby they were caused
to depart, afforded ground for an action
of trespass. Liber Intr. oi»i ; 20 Hen.
7, p. 5; 9 Hen. 7, p. 7.
A mere menace, however, though
followed by loss, was not actionable
unless it was a threat of life or limb, or
breach of the peace. Pulton De Pace
Regis, 3 b, 5. As if a man die seised
of certain lands, and a stranger will
abate, and then the heir of him who
died seised will enter upon the stranger
and menace and threaten him that if he
will not depart from the possession of
the same land, then he shall repent it,
as the law will allow; this is menace
justifiable, for that he bath said no more
than the law will allow him to perform.
lb. ; 22 Hen. 6, p. 48 ; 21 Hen. 6, p. 26 ;
Hen. 7, p. 7.
But in trespass for assault and bat-
tery, says Pulton, where it is found that
the offender did make an assault only
(as where one did strike at another with
a hatchet), but did make no battery, or
hurt the person of any other, it is other-
wise (22 Lib. Ass. pi. 60; 42 Edw.o, p. 7 ;
40 Edw. 8, p. 40 ; 6 Hen. 7, p. 1). For,
he says, seeing assaulting doth tend to
the breach of the peace, and he that mak-
eth an assault doth his endeavor to hurt,
the law doth give to him that is as-
saulted an action of trespass to re-
cover his damages, and to the king a
fine.
The plea of son assault demesne was
a good defence in the old law, as it is
now. " In that case [where the attack
was made by the plaintiff] the defend-
ant doth answer the plaintiff's declara-
tion, and pleadeth in bar that the
plaintiff did assault him, and would
have beaten him, and he defended him-
self, and the hurt which the plaintiff re-
ceived was by his own assault." Pult.
P. R. 5 6. If issue was joined upon the
plea and the defendant found guilty, he
was to pay damages to the plaintiff and
a fine to the king; " for at all times in
an action of trespass n ct armis brought
against any person, if the defendant be
convict, he shall pay a fine to the king."
lb. But if the issue was found for the
defendant, the plaintiff was amerced to
the king for Lis false suit, and the de-
fendant paid neither damages nor fine,
notwithstanding the blows indicted upon
the plaintiff. lb.
The defendant could also justify a
battery by alleging that it was done in
defence of the party's wife, or husband,
or parent, or child (19 Hen. 6, pp. 81,
66; Liber Intr. 553, 554); or, in the case
of a servant, that it was done in defence
228
ASSAULT AND BATTERY.
of his master (35 Hen. 6, p. 51 ; 11 Hen.
6, p. 19; 12Edw. 4, p. 6); or, in the case
of a lord, that the battery was done in
defence of his villain. But a servant
could not justify for a battery done to the
father, mother, brother, sister, son, or
daughter of his master, because he owed
no duty or obedience to them. lb. ; 21
Hen. 8, p. 39; 9 Edw. 4, p. 48. Nor
could a mere master justify the beating of
one who assaulted his servant. " But,"
says Pulton, " though the master cannot
assault and beat another that doth as-
sault, and would beat, wound, or other-
wise evil entreat bis'servant, yet he may
with a sword, staff, or other weapon,
aid and defend his servant assaulted
from being beaten, and that in respect
of the loss of his service. 19 Hen. 6,
pp. 30, 66 ; 22 Hen. 6, p. 43 ; 21 Hen. 6,
p. 9. [See infra, f. 233.] And also after
his servant is beaten, he may have an
action of trespass against him that did
beat, wound, or evil entreat his said
servant (unless it were upon the same
servant's own assault), and recover so
much damages against the offender as
he received prejudice or hindrance by
the loss of his said servant's service ;
for if the servant be but so beaten that
he is able to do his service as well as
he was before, the master shall recover
no damages for that beating. And as
the master may have an action of tres-
pass against the offender, and recover
so much in damages as he doth lose by
the want of his said servant's service ;
so likewise the same servant may have
another action of trespass against the
offender, and recover so much in dam-
ages as he shall receive hurt on his
body by the said assault and beating."
lb. And in action by a master for the
battery of his servant, "he need not
declare of the retainer of the same ser-
vant, for if he did but serve his master
at his pleasure, yet the master shall
have an action of trespass for the loss
of his service." lb. ; 22 Hen. 6, p. 43.
Among the other justifications al-
lowed the defendant in the time of the
Year-Books were the following: that
the battery was committed in the defence
of the party's own goods (9 Edw. 4, p.
28 ; 19 Hen. 6, pp. 31, 65), or of goods
which were put into his possession as
bailee (Liber Intr. 553), or in defence
of his land or way. Pulton De Pace
Regis, 6 6. Under the last-named de-
fence, the following case is given : If
one hath a mill whereunto a river or
spring of water doth run, and hath run
time out of the remembrance of man,
and another would stop the course of
that water and turn it another way, and
the owner of the mill doth disturb him
therein, whereupon that other doth as-
sault and attempt to beat him ; in this
case, if the owner of the mill, for his own
safeguard and for the defence of his
own watercourse, doth beat him again,
it is justifiable. lb. ; 3 Hen. 4, p. 9. So,
too, a justice of the peace could justify
that the plaintiff was beaten while re-
sisting an arrest. So one could justify
that he was a school-master, and the
plaintiff a scholar'who was negligent in
his books, or that he had beaten and
abused his school-fellows. Or, the de-
fendant could say that the plaintiff was
his apprentice, and was negligent in
learning his trade ; or that the plaintiff
was frantic, furious, or mad, and was
attempting to burn a house, or to do
some other mischief, or to hurt himself
or others, in which case it was lawful
for the parents, kinsmen, and other
friends to take the plaintiff, put him
into a house, and bind him, and beat
him with rods, and to do any other
forcible act to reclaim him, or to keep
him in a house or place alone where he
HISTORICAL.
229
should do no hurt. lb. p. 7 ; 22 Lib.
Ass. pi. 56 ; 22 Edw. 1, p. 45.
As to the right of a mister to beat
his servant, upon which point there has
been some question in modern times
(Smith, Master and Servant, 110, Sd
ed.), the following ease is given: In
an action of trespass of assault and
battery, the defendant pleaded that the
plaintiff was his servant retaiued (that
is, bound by contract), and departed
out of his service, and that the plaintiff
laid hold upon him, and led him home
to his house to do his service. But this
was adjudged no plea ; for that it was
not lawful for the master in this case to
beat or forcibly compel his servant, to
return to his service. But he should
require him to do it, and if he will not,
the master may have an action of cove-
nant against his servant. lb. ; 38 Hen.
6, p. 25. " And as the master cannot by
beating, nor by force, compel his ser-
vant to serve him against his will ; no
more can a lord compel his ward by
beating, or by force, to come unto him,
nor to tarry with him against his will.
But if he do depart from him, then the
lord is to have his action against him."
lb. p. 7 b; 38 Hen. 6, p. 25 ; 22 Lib.
Ass. pi. So. If the party was the defend-
ant's slave or villain, that was a good
plea. Bracton, 145 o.
If one commanded, procured, or
aided another to assault or beat the
plaintiff, the latter could maintain tres-
pass against either or both. lb. ; 22
Lib. Ass. pi. 59 ; 27 Lib. Ass. pi. 4 ;
21 Hen. 6, p. 39.
The law as to injuries received in
games and sports was, and (as far as
the games are lawful) doubtless is still,
thus : "If two or more do agree to-
gether to run at tilt, joust, barriers, or
to play at backsword, bucklers, foot-
ball, or such like, and one of them doth
beat, bruise, or wound another, the
party grieved shall not have an action
of trespass of assault and battery
against the other ; for that it was a
combat by consent, and put in practice
to try their strength, valor, or agility,
and not to break the peace. But if the
same day or some other after that the
pastime is at an end, and they departed
asunder, one will assault or beat an-
other in respect of some wrong con-
ceived to be received in the time of the
said play, then an action of trespass of
assault and battery may be pursued by
him that is so beaten against the tres-
passer." lb. See infra, p. 231, as to
boxing matches at the present time.
It was a good justification also that
the defendant was a rogue, vagabond,
or sturdy beggar, under the St. 39
Eliz. c. 4, and that he was taken beg-
ging, vagrant, and misordering himself,
and that upon his apprehension, by the
appointment of a justice, constable,
headborough, or tithing-man, he was
stripped and whipped until the blood
came. lb.
To a plea of not guilty, it was at
this time adjudged a good replication
that the defendant had been convicted
of the offence at the suit of the king;
the judgment, though res inter alios,
being held conclusive in favor of the
plaintiff. And in the same case the de-
fendant having next pleaded son assault
demesne, the plaintiff demurred because
the defendant had set up the same plea
in the criminal trial ; and the plea was
withdrawn. lb. p. 10 6; 11 Hen. 4,
p. 65; 9 Hen. 6, p. 60; 27 Lib. Ass. pi. 57.
Within the action of trespass for as-
sault and battery all torts to the person
were formerly embraced, and might still
be embraced. But at the present time
the term is generally applied only to
voluntary, wilful injuries of one's per-
230
ASSAULT AND BATTERY.
son; while those torts which arise out
of negligence have come to be consid-
ered as a distinct group.1 As a matter
of convenience, especially in view of
the fact that there is a large number of
torts arising from negligence to prop-
erty, it has been thought advisable to
present the subject of negligence by
itself. Under assault and battery we
shall therefore consider injuries of a
wilful character only. And in view of
the fact that in this aspect the law is
more frequently put into force on the
criminal side, and has been extensively
considered by all of the writers on
criminal law, it will not be necessary
to present it at great length.
Assault. — The principal case, Steph-
ens v. Myers, and many other cases,
show that an action is maintainable for
a mere assault, though that term, when
used in contradistinction to battery,
means something less than actual con-
tact. Thus, every attempt to offer,
with force and violence, to do hurt to
another, though not carried out, con-
stitutes an assault ; such as striking at
a person within reach, with or without
a weapon ; holding up the fist in a
threatening attitude sufficiently near to
be able to strike the plaintiff; present-
ing a gun or pistol, whether loaded or
unloaded (see infra), in a hostile and
threatening manner, within gunshot or
pistol-shot range, and near enough to
create terror and alarm ; riding after a
man with a whip, threatening to beat
hiin, or shaking a whip in a man's face;
or, finally, any gesture or threat of
violence , exhibiting an intention to as-
sault, with the means of carrying that
intention into effect. Addison, Torts,
569 (4th ed.) ; Read v. Coker, 13 Com.
B. 860. But the parties, in the last
case mentioned, must be near enough
to each other to make contact possible.
Cobbett v. Grey, 4 Ex. 744.
The intention of the party making a
threatening gesture is important. In
Tuberville v. Savage, 1 Mod. 3, the
defendant offered to prove as a provo-
cation that the plaintiff put his hand
upon his swcrd and said : " If it were
not assize time, I would not take such
language from you ; " and the question
was, if that showed an assault. The
court agreed that it was not, on the
ground that the intention "as- well as
the act makes an assault. " There-
fore," it was said, " if one strike an-
other upon the hand, or arm, or breast,
in discourse, it is no assault, there be-
ing no intention to assault. , But if one,
intending to assault, strike at another
and miss him, this is an assault. So, if
he hold up his hand against another in
a threatening manner, and say nothing,
it is an assault."
So, in Blake v. Barnard, 9 Car. & P.
626, Lord Abinger, C.'B., instructed
the jury with reference to an alleged
assault with a pistol, that if the defend-
ant, at the time he presented it, added
words showing that it was not his in-
tention to shoot the plaintiff, that would
be no assault. See also State v. Crow,
1 Ired. 376 ; Handy v. Johnson, 5 Md.
450.
But the intention to assault does not
seem to be the test in every case. In
the case just referred. to, indeed, the
learned Chief Baron told the jury that
if the pistol was not loaded it would be
no assault, because, apparently, there
could be no intention to shoot in such
case; but in the same volume of Re-
1 One important result in the change to the present common mode of declaring in negli-
gence for personal injuries is, thnt the plaintiff takes upon himself the burden of proving the
defendant's negligence, — a thing which he would escape by declaring in assault and battery.
BATTERY.
231
ports there is a similar criminal case, in
which, in reply to counsel, Mr. Baron
Parke said : " It seems to me that it is
an assault to point a weapon at a per-
son, though not loaded, but so near
that, if loaded, it might do injury. I
think the offence of pointing a loaded
gun at another does involve an assault,
unless it is done secretly ; and I think
that the presenting a fire-arm, which
has the appearance of being loaded, so
near that it might produce injury if it
was loaded and went off, is an assault."
Regina v. St. George, 9 Car. & P.
483.
The point has been decided in the
same way in this country. Beach v.
Hancock, 27 X. H. 223 ; Richels v.
State, 1 Sneed, 606; State v. Smith,
2 Humph, 467. In Beach v. Hancock,
it appeared that the defendant, while
engaged in an angry altercation with
the plaintiff, aimed a gun at him in an
excited and threatening manner, and
snapped it twice. It was not, in fact,
loaded ; but the plaintiff did not know
whether it was loaded or not. It was
held that there had been an assault.
The ground of decision was thus stated
by Gilchrist, C. J., speaking for the
court: "We have a right to live in
society without being put in fear of
personal harm. But it must be a rea-
sonable fear of which we complain.
And it surely is not unreasonable for
a person to entertain a fear of personal
injury, when a pistol is pointed at him
in a threatening manner; when, for
aught he knows, it may be loaded, and
may occasion his immediate death.
The business of the world could not
be carried on with comfort if such
things could be done with impunity."
Battery. — A battery consists in a
violent, angry, rude, or insolent strik-
ing or touching of a person, either by
the defendant or by any substance
put in motion by him. Addison, Torts,
571 (-1th ed.) ; Hawkins, book 1, c. (32,
§2-
Mr. Addison gives the following ex-
amples from the cases : When a man is
violently jostled out of the way or spit
upon (ReginS v. Cotesworth, 6 Mod.
172), or has water, stones, or dirt rudely
thrown upon him (Pursell v. Horn, 8
Ad. & E. 604), or has his hat insolently
knocked off, or his hair forcibly cut
(Forde v. Skinner, 4 Car. & P. 239), or
if his horse has been struck, so that it
ran away and threw him on the ground
(Dodwell v. Burford, 1 Mod. 24).
From this language and the exam-
ples given, it will be seen that the test
of liability lies in the nature of the de-
fendant's conduct, and not in the doing
of actual harm. An actual injury to
the person is not a battery if the de-
fendant was at the time free from fault;
as where he was engaged in assisting a
drunken man, or preventing him from
going without help. Buller, N. P. 16.
But if the battery be the result of
negligence, the defendant will be liable;
as in Weaver v. Ward, Hob. 134, where
it was held on demurrer that if one sol-
dier hurt another through negligence,
though it be done in the lawful practice
of arms, he is liable in trespass for as-
sault and battery. (It is worthy of
note that this case illustrates the fact
that negligent injuries of the person
were formerly declared upon as cases
of assault and battery.)
So, if the defendant, while engaged
in an unlawful affair, hurt another,
though wholly without intention, he
will be liable for the battery; as where
one of two parties in fight unintention-
ally hits another. James v. Campbell,
5 Car. & P. 372. So, if two men en-
gage in a boxing match or prize-fight,
232
ASSAULT AND BATTERY.
an action can be maintained by either
of them against the other, if an assault
be made ; because the act of boxing or
prize-fighting is unlawful, and the con-
sent of the parties to fight cannot ex-
cuse the injury. Stephens N. P. 211 ;
Bell v. Hansley, 3 Jones, 131. The
maxim volenti non fit injuria does not
apply to unlawful agreements of this
kind. lb. And the case is not differ-
ent if the plaintiff had agreed to clear
the defendant from the law. Stout v.
Wren, 1 Hawks, 420. As to the old law
concerning injuries received in games
and sports, see supra, p. 229.
Son Assault Demesne. — It is a prin-
ciple of plain common sense that a man
when attacked should be permitted to
defend himself. The plea of son assault
demesne means that the assault com-
plained of was the effect of the plain-
tiff's own attack ; that is, the blow was
given in defending the party's person,
family, or property from the trespass of
the plaintiff.
But the defendant is justified only in
making defence ; and if he replied to
the plaintiff's assault or trespass with a
force and spirit altogether dispropor-
tionate to the provocation, the plaintiff
may reply de injuria sua propria.
This excess of force is, as it were, a
new assault. And therefore it is, that, in
connection with son assault demesne
the defendant's plea says, molliter ma-
nus imposuit, he gently laid his hands
upon the plaintiff. This is a good plea,
because it shows that the defendant has
not used more force than was necessary
in resisting the plaintiff. If, however,
the action be for an assault and bat-
tery and wounding, this plea would
not be good, for it would not justify
the wounding. Boles v. Pinkerton, 7
Dana, 453 ; French v. Marstin, 24
N. H. 440; Brubaker v. Paul, 7
Dana, 428 ; Scribner v. Beach, 4 Denio,
448.
As to defences of property, there is a
distinction in respect of possession.
The plea of son assault is good if the
defendant was in possession, but if not
it is bad, though he have a perfect right
of possession. Parsons v. Brown, 15
Barb. 590 ; Andre v. Johnson, 6 Blackf.
375 ; Suggs v. Anderson, 12 Ga. 461.
In Suggs v. Anderson the defendant
was owner of the house in which the
trespass was committed; the house
being occupied by a third person, by
whose permission the plaintiff was there.
And the plaintiff had judgment.
And as to a person in possession, if
the trespass is unaccompanied with
violence, the party in possession will
not be justified in assaulting the tres-
passer in the first instance, but must
request him to depart or desist, and
then, if he refuses, he may gently lay
his hands upon him for the purpose of
removing him; and, if he resist, force
sufficient to expel him may be exercised.
Scribner v. Beach, 4 Denio, 448.
Master and Servant. — If a servant
be beaten by a stranger, so that any
loss of service is incurred by the mas-
ter, the law has always given a right
of action to the latter, even from the
earliest times, as we have seen. Ante,
p. 222. See Gilbert v. Schwenck, 14
Mees. & W. 488; Duel v. Harding,
1 Strange, 595; Smith, Master and
Servant, 137 (3d ed.). The master,
however, is not allowed to sue for the
battery, and never was ; damages for
this belong to the servant. The master
can only recover in case he can prove a
loss of service. If, therefore, the ser-
vant was incapable of service, by reason
of tender years, physical infirmity, or
other cause, the master would have no
right of action for the assault or battery;
MASTER AND SERVANT.
233
though it would probably be otherwise
if the servant were carried away. But
in this case the ground of action would
be an invasion of the master's right to
the possession of the servant, and not a
loss of service.
If there be a capacity to render ser-
vice, evidence of very slight services
■will be sufficient to enable the master to
recover. See Dixon v. Bell, 1 Stark.
2S7 ; s. c. 5 Maule & S. 198. Indeed,
in modern cases, where there is proved
to be a capacity to serve, the tendency
of the courts has been to infer service
from residence with the master or par-
ent, without proof of actual service.
Smith, Master and Servant, 138 (3d
ed.) ; Jones v. Brown, Peake, 233 ;
s. C. 1 Esp. 217; Maunder r. Venn,
Moody & M. 323 ; Torrence v. Gib-
bins, 5 Q. B. 300. Where a child is_
of such tender years as to be incapable
of service, or where, from infirmity,
there is an inability to perform ser-
vice, the action must be brought by
the child or servant. lb. And it is
immaterial whether the relation be that
of master and servant strictly or parent
and child. A parent, suing for a mere
assault and battery, can only recover
for loss of service, actual or presumed
(from the capacity of the child) ; he has
no legal claim to damages for wounded
feelings. Flemington v. Smithers, 2
Car. & P. 292. If, however, he sues
for seduction also, juries are allowed,
as will be seen in the note on Seduction,
to award exemplary damages.
It matters not in these cases that
there is no binding engagement to ser-
vice; if a person be willing to serve
another gratuitously, third persons
have no right to prevent the master
from enjoying the benefit of the ser-
vice. Martinez v. Gerber, 3 Man.
& G. 88; Evans v. Walton, 36 Law
J. C. P. 307. See note on Seduction,
post.
" It is laid down in all the books,"
says Mr. Reeve, " that when a servant
is so beaten that he dies, the master has
no remedy ; for the civil injury is merged
in the felony. On what principle does
this doctrine rest ? When one man has
done another an injury, because it is of
such a nature that he deserves death,
surely this is not a reason 'why the
injured person shall have no remedy. I
apprehend that the figurative language
that the civil injury is merged in the felony
is incorrect. The real ground on which
this doctrine exists is, that both the life
and estate of a felon are forfeited. An ac-
tion would therefore be fruitless. If this
be the principle which governs in such
cases, then in this country, where there
is no such forfeiture, the civil injury is
not merged." Dom. Rel. 537 (3d ed.).
Mr. Smith states the rule in England
to be that if the servant die, the master
must proceed first by indictment, as
public policy will not allow him to re-
cover damages for a private injury until
public justice is satisfied by the trial of
the offender. After trial, the master
may bring his action for damages
whether the offender be convicted or
not, as the private right is only sus-
pended until public justice is vindicated.
Master and Servant, 139, citing Crosby
v. Leng, 12 East, 409 ; Stone v. Marsh,
6 Barn. & C. 551; White v. Spettigue,
13 Mees. & W. 608.
A servant may justify a battery in
favor of his master ; that is, he may do
any thing in his master's defence which
his master might himself lawfully do.
Reeve, Dom. Rel. 538 (3d ed.). But
whether the master may justify a battery
in defence of his servant is an unsettled
question. Mr. Reeve says that the
better opinion, in his view, is that the
234
ASSAULT AND BATTERY.
right is reciprocal. It is the servant's
duty to defend his master ; and it is the
master's interest to defend his servant.
lb. See Leward v. Basely, 1 Ld.
Raym. 62, where it was held that the
master could not justify in such case, on
the ground that he would have a right
of action against the offender per quod
servitium amisit. But see 1 Black.
Com. 429 ; 1 Hawk. P. C. book 1, c. 60.
As to the law in the time of the Year-
Books, see supra, p. 228.
As to the right of a master to inflict
corporal punishment upon a servant, see
supra, p. 229 ; also Smith, Master and
Servant, 110 (3d ed.), where it is said
that there is no such right except in the
case of servants who are under age.
BARKER V. BRAHAM. 235
FALSE IMPRISONMENT.
Barker v. Braham, leading case.
West v. Smallwood, leading case.
Savacool v. Bobghton, leading case.
Fox t;. Gaunt, leading case.
Hogg v. Ward, leading case.
Timothy v. Simpson, leading case.
Allen v. Wright, leading case.
Note on False Imprisonment.
Historical aspects of the subject.
Arrest.
Arrests with warrant.
Arrests without warrant.
Barker, Administratrix v. Braham and Norwood.
(2 W. Black. 866 ; s. c. 3 Wils. 368. King's Bench, Hilary Term, 1773.)
Void ca. sa. sued out by Attorney. Action of false imprisonment lies against the plain-
tiff's attorney, who sues out an illegal and void ca. sa. against the defendant, and
delivers it himself to the officer, who by his order arrests the defendant thereon.
Trespass and false imprisonment. Joseph Barker, the hus-
band of the plaintiff, was indebted on bond to Jenny Braham
in 400?., conditioned for the payment of 200Z. Braham, on the
death of Barker, brought her action in the King's Bench against
the plaintiff, his administratrix, and recovered judgment for want
of a plea, the 31st of January, 1769. On the 1st of February, a
fieri facias issued, marked to levy 239Z. lis. 2d., debt and costs
of the goods of Joseph Barker, if, &c. ; if not, then damage de
bonis propriis. The sheriff levied 164Z. 9s. of the intestate's
goods, out of which he paid 38Z. for rent, and on settling the
account there remained due to the plaintiff Braham 102Z. 18s. Id.,
for which (without suggesting any devastavit) Norwood (as
attorney for Braham) sued out a ca. sa. against Barker on the
13th of February, reciting what had been levied under the fi. fa.,
and directing the sheriff to take her body for the residue of the
debt and damages. This was personally delivered by Norwood
to Armstrong, the bailiff, with orders to execute it immediately.
236 FALSE IMPRISONMENT.
He accordingly arrested her the 15th March, 1769, and she lay-
in custody till the 18th of November following, when, upon
motion to the Court of King's Bench, the ca. sa. was set aside
for irregularity, and the then defendant, Barker, discharged out
of custody. For this illegal imprisonment Barker brought this
action against Braham, the plaintiff, and Norwood, the attorney
in the original cause ; and, on the general issue pleaded, the jury
gave her 150Z. damages. And in last Michaelmas Term, Sayer
moved for a new trial, because the damages were given against
Norwood, the attorney, as well as against Braham ; and no
action, he alleged, lay against the attorney for such false impris-
onment by a mistake in the conduct of a cause.
Davy and Burland showed cause. Sayer and Grlyn, in sup-
port of the rule.
De Grey, C. J. It is clear the plaintiff Barker has been in-
jured, the ca. sa. being illegally taken out (1 Lev. 95 ; Raym. 73) ;
which is recognized as good law in Prigg and Adams, Carth.
274 ; Salk. 674 ; 12 Mod. 178 ; 2 Wilson, 385. The persons
injuring are either the officer arresting, Braham, the original
plaintiff, or Norwood, the attorney, or some, or all of them.
The officer is not sued. If he had been, he might clearly have
justified under the writ, though that be not set aside. 1 Roll.
Rep. 403. The plaintiff, when sued for imprisonment by process,
which he had procured to be taken, must plead the general issue,
and give in evidence the judgment, and a regular writ. Sir T.
Jones, 215 ; Stra. 509 : he is answerable for the act of his
attorney as if his own. So held the last term in the case of
Parsons and Lloyd. The attorney has also denied the fact of
false imprisonment, by pleading the general issue. Indeed he
could not justify by so qualifying the act as to show there was
no assault or imprisonment ; but he says that what he has done
is not by law a trespass. To establish this, it is said that the act
of an attorney in such a case is only the act of a servant or mes-
senger, who conveys the plaintiff's orders. But attorneys were
always of a higher estimation in the law than this construction
would make them ; and their powers are very great, as stated
in Bracton, 369. Now, there being no accessaries in trespass
(Co. Litt. 57), the attorney must either be guilty as a principal or
not at all. And it is held, that a trespasser may be not only he
who does the act, but who commands or procures it to be done
WEST V. SMALLWOOD. 237
(Bro. Trespass, 148, 307) ; who aids or assists in it (Bro. Trespass,
232 ; Salk. 409 ; Pulton De Pace, 22, 4, 49) ; or who assents
afterwards (Bro. Trespass, 113). According, then, to this doc-
trine, Brahani virtually (by the medium of her attorney, whose
acts are imputable to her), but Norwood actually, by command-
ing the arrest, is guilty of the present trespass. I allow that an
attorney is not chargeable to the defendant for bringing an
action, be it ever so groundless or vexatious, for therein he pur-
sues his instructions, and the plaintiff only knows the true
merits. 36 Hen. 6, 37; 26 Hen. 6, 34 ; 2 Keb. 88. (Add 1
Roll. R. 408, 1 Mod. 209). But in the conduct of a cause, if he
does an injury to the plaintiff by suing out a void process, an
action on the case will lie at the common law (for the writ of
deceit was added by stat. Edw. 1), in case the injury be done to
his property. And of course if the injury be to the person, tres-
pass will lie against him. In the present case, the evidence of
the personal injury is extremely strong ; for Norwood gave this
void writ to the officer with his own hands, and ordered him
to arrest Mrs. Barker. And the permitting this action to be
brought against Norwood in the first instance prevents that cir-
cuity which is disgraceful to justice ; for it is allowed that
Braham is answerable to Barker, and Norwood to Braham. No
reason, therefore, that Norwood should not be immediately an-
swerable to Barker.
Gould, Blackstone, and Nares, JJ., concurred that this action
well lay against the attorney ; whereupon the
Rule was discharged.
West v. Smallwood.
(3 Mees. & W. 418. Exchequer, England, Easter Term, 1838.)
Jurisdiction. Officer's Liability. Where a party lays a complaint before a magistrate
on a subject-matter over which he has a general jurisdiction, and the magistrate
grants a warrant, upon which the party charged is arrested, the party laying the
complaint is not liable as a trespasser, although the particular case be one in which
the magistrate had no authority to act.
The complainant having accompanied the constable charged with the execution of
the warrant, and pointed out to him the person to be arrested, held, that this was
evidence to go to the jury of a participation in the arrest.
238 FALSE IMPRISONMENT.
Trespass for assault and false imprisonment. Plea, the gen-
eral issue.
At the trial before Lord Abinger, C. B., at the Middlesex
sittings after Hilary Term, it appeared that the plaintiff was a
builder, and had been employed by the defendant to build some
houses for him under a specific contract. Whilst the work was
going on a dispute arose between the plaintiff and defendant,
and the plaintiff in consequence discontinued the work, upon
which the defendant went before a magistrate and laid an infor-
mation against him, under the Master and Servant's Act, 4 Geo. 4,
c. 34, § 3. The magistrate having granted a warrant, the defend-
ant accompanied the constable who had the execution of it, and
pointed out the plaintiff to him. Upon being brought before
the magistrate, the complaint was heard and dismissed. Lord
Abinger, C. B., was of opinion that the action was misconceived,
and should have been in case ; and thought that the evidence of
interference in the arrest by the defendant was too slight to make
him a trespasser ; and the plaintiff's counsel not having pressed
his lordship to lay that question before the jury, the plaintiff was
nonsuited.
Kelly now moved to set that nonsuit aside, and for a new trial.
It is conceded, that when an information is laid before a magis-
trate in a case over which he has jurisdiction, and the magistrate
grants a valid and legal warrant, on which the party is appre-
hended, the party cannot bring trespass, but must sue in case.
In such case the magistrate is bound to issue his warrant, and is
not a trespasser, because he is acting within his jurisdiction ; nor
is the officer a trespasser, because he acts under the warrant.
But that rule only applies to a case where the magistrate has
jurisdiction. If a complaint be made, and the magistrate be put
in motion by the party complaining, in a matter over which he
has no jurisdiction, he is a trespasser, and all who act with or
under him are trespassers also, because in trespass there is no
distinction between principals and accessaries. There is, perhaps,
no decision in point on this particular statute, but the case of
Moravia v. Sloper, Willes, 30, may be applied by analogy. It
was there held, that when a party pleads a justification under the
process of an inferior court he must show that the cause of action
arose within the jurisdiction of that court. In Rafael v. Verelet,
Sir W. Black. 983, 1055, where the defendant had made a com-
WEST V. SMALLW00D. 239
plaint to a sovereign prince in India, who had in consequence
imprisoned the plaintiff, it was held that trespass was maintain-
able. [Lord Abinger, C. B. I do not see in what way the
defendant can be a trespasser. He goes to a magistrate, and calls
upon him to exercise his judgment, and though the magistrate, if
he exceeds his authority, may be liable as a trespasser, the party
who lays the complaint is not. Alderson, B. The complainant
has nothing to do with the assumption of jurisdiction by the mag-
istrate. Lord Abinger, C. B. The party does no more than lay
the facts before the magistrate, who exercises his discretion judi-
cially in granting a warrant. This distinguishes it from the case
of a sheriff, who is put in motion by the part}-, as he does not act
judicially ; but in this case the defendant does not put the mag-
istrate in motion ; he applies to a magistrate having a general
jurisdiction over the subject-matter, and makes his complaint,
and the magistrate acts upon it or not, at his discretion. Alder-
son, B. In Rafael v. Yerelet, Lord Chief Justice De Grey says,
Sir W. Black. 1085 : " I consider the Nabob as not being the
actor in this case ; but the act to be done in point of law by those
who procured or commanded it, and in them it doubtless is a tres-
pass ; "' so. that he considers the Nabob not as the actor.] There
is another ground upon which the case ought to have gone to the
jury, because here the defendant acted personally in the arrest,
and pointed out the plaintiff to the constable. Hardy v. Ryle, 9
B. & Cr. 603, and Lancaster v. Greaves, ib. 628, are authorities
to show that the statute 4 Geo. 4, c. 34, gives the magistrate
authority only in cases where the relation of master and servant
exists, and does not extend to such a case as the present. The
magistrate, therefore, had no right to grant a warrant, unless he
was clearly satisfied that the relation of master and servant
existed. The onus of justifying the participation by the defend-
ant in making the arrest lies on the defendant, and the plaintiff
may maintain the action without producing the warrant. Hol-
royd v. Doncaster, 11 Moore, 441 ; 3 Bing. 492 ; Elsee v. Smith,
1 Dowl. & Ry. 97 ; 2 Chit. 304.
Lord Abinger, C. B. I retain the opinion which I expressed
at the trial. Where a magistrate has a general jurisdiction over
the subject-matter, and a party comes before him and prefers a
complaint, upon which the magistrate makes a mistake in think-
ing it a case within his authority, and grants a warrant which is
240 FALSE IMPRISONMENT.
not justifiable in point of law, the party, complaining is not liable
as a trespasser, but the only remedy against him is by an action
upon the case, if he has acted maliciously. The magistrate act-
ing without any jurisdiction at all is liable as a trespasser in many
cases, but this liability does not extend to the constable, who acts
under a warrant, and the statute 24 Geo. 2, c. 44, was passed
with this very object of protecting such officers. As to the other
part of the case, I do not deny that the fact of the defendant's
presence when the plaintiff was taken, and his pointing him out
to the constable, might make it a case to go to the jury, but that
was not pressed on the part of the plaintiff.
Bolland, B. I am of the same opinion, and for the same rea-
sons. With regard to the case of the sheriff, that is clearly dis-
tinguishable from the present, because the party puts the sheriff
in motion, and the latter acts in obedience to him. In the case
of an act done by a magistrate, the complainant does no more
than lay before a court of competent jurisdiction the grounds on
which he seeks redress, and the magistrate, erroneously thinking
that he has authority, grants a warrant. As to the subsequent
conduct of the defendant, all he does is to point the plaintiff out
to the constable as the person named in the warrant, but this
does not amount to any active interference. If any malice could
be shown, it might have formed the ground of an action on the
case.
Alderson, B. As to the first point, the party must be taken
to have merely laid his case before the magistrate, who thereupon
granted a warrant adapted to the complaint. Then, what has
been done by the defendant to make him liable as a trespasser ?
He would be liable only in case, if he was actuated in what he
did by malice. Then comes the second question ; and I agree in
the doctrine, that if the defendant took an active part with the
constable in apprehending the plaintiff, he must have failed on
the state of these pleadings, because it would have been incum-
bent on him to show that he had a right so to do, which he could
only have done under a special plea, and could not do under the
general issue. But all that the defendant did in this instance
was to point out to the constable the party who was to be
arrested. And though undoubtedly that was evidence for the
jury, yet where counsel submits to the view taken of the evidence
by the judge at nisi prim, and does not claim to have it left to
the jury, I think we ought not to interfere. Mule refused.
SAVACOOL V. BOUGHTON. 241
SAVACOOL V. BOUGHTON.
(5 Wend. 170. Supreme Court, New York, July, 1830.)
Jurisdiction. A ministerial officer is protected in the execution of process, whether the
same issue from a court of limited or general jurisdiction, although such court
hare not in fact jurisdiction in the case, provided that on the face of the process
it appears that the court has jurisdiction of the subject-matter, and nothing appears
in the same to apprise the officer but that the court also has jurisdiction of the per-
son of the party to be affected by the process.
Demurrer to replication. The plaintiff declared in trespass
for an assault, battery, and false imprisonment. The defendant
pleaded, 1. The general issue ; 2. A justification, for that he as
a constable, by virtue of an execution issued by a justice of the
peace, on a judgment rendered against the plaintiff in assumpsit
for $7.38, arrested the plaintiff and committed him to jail ; and,
3. A similar justification, setting forth the judgment. The
plaintiff replied to the second and third pleas precludi non,
because, previous to the rendition of the judgment set forth by
the defendant, the justice who rendered the same did not issue
any process for the appearance of him (the plaintiff) in the suit
in which the judgment was rendered, and that he (the plaintiff)
did not direct or authorize the justice to enter a judgment by con-
fession in favor of the plaintiffs in the suit, against him (the
plaintiff in this cause), nor did the parties in the said suit appear
before the justice and join issue, pursuant to the provisions of
the $50 act ; and this, &c, wherefore, &c. To this replication
the defendant demurred, and the plaintiff joined in demurrer.
M. Taggart, for defendant. P. L. Tracy, for plaintiff.
By the court, Marct, J. What an officer is required to show
to justify himself in the execution of process is not very clearly
settled. There is considerable contrariety of authority on the
subject. Where it appears on the face of the process that the
court or magistrate that issued it had not jurisdiction of the sub-
ject-matter of the suit, or of the person of the party against
whom it is directed, it is void, not only as respects the court or
magistrate and the party at whose instance it is sued out, but it
affords no protection to the officer who has acted under it.
Where the court issuing the process has general jurisdiction,
16
242 FALSE IMPRISONMENT.
and the process is regular on its face, the officer is not, though
the party may be, affected by an irregularity in the proceedings.
Where a judgment is vacated for an irregularity, the party is
liable for the acts done under it ; but the officer has a protec-
tion by reason of his regular writ. 1 Lev. 95; 1 Sid. 272; 1
Strange, 509.
More strictness has been required in justifying under process
of courts of limited jurisdiction. Many cases may be found
wherein it is stated generally that when an inferior court exceeds
its jurisdiction, its proceedings are entirely void, and afford no
protection to the court, the party, or the officer who has executed
its process.
This proposition is undoubtedly true in its largest sense where
the proceedings are coram non judice, and the process by which
the officer seeks to make out his justification shows that the
court had not jurisdiction ; but I apprehend "that it should be
qualified where the subject-matter of the suit is within the juris-
diction of the court, and the alleged defect of jurisdiction arises
from some other cause. A court may have jurisdiction of the
subject-matter, but not of the person of the parties. If it does
not acquire the latter, its proceedings derive no validity from
the former. A justice of the peace who should give judgment
against a person on a promissory note under $50, without having
issued process of any kind against him, or taken his confession,
or without his voluntary appearance in court, would exceed his
jurisdiction and be responsible to the party injured ; so would
the party who procured the court to exceed its authority. But
would the officer to whom an execution on this judgment had
been issued be liable for acts done in obedience to it, if nothing
appeared to show that the justice had not jurisdiction of the
defendant's person? This is the question presented by the
demurrer in this case.
A distinction has long existed in cases of this kind, between
the court which exceeds its jurisdiction and the party at whose
instance it takes place, and a mere ministerial officer who exe-
cutes the process issued without authority. This prevails, as we
have seen, where a judgment has been obtained in a court of
general jurisdiction which is subsequently set aside for irregu-
larity. The officer has a protection that the party has not, and
that, whether the court from which the process issues is a court
SAVACOOL V. BOUGHTON. 243
of general or limited jurisdiction. The right of a mere ministe-
rial officer to justify under his process where the court or party
cannot, was considered, but not settled, in the case of Smith v.
Bouchier and Others, decided in 1734. This case is found in
2 Strange, 993 ; 2 Barnard. 331 ; Cunn. 89, 127 ; Cases temp.
Hardwieke, 62 ; 2 Kelyn. 144, pi. 123. The reports agree as to
the facts, but not as to some points in the opinion of the court.
Process was issued from the chancellor's court of Oxford against
Smith, who was arrested and committed to jail. The proceed-
ings were instituted without proving what was requisite to give
the court jurisdiction. The plaintiff who procured the proceed-
ings, the vice-chancellor who held the court, and the officers who
executed the process, were all sued by the defendant Smith for
false imprisonment. They united in their plea of justification,
and were all pronounced guilty. Sir John Strange makes the
court say that some of the defendants, namely, the officer and
jailer, might have been excused if they had justified without the
plaintiff and vice-chancellor. The Court of Common Pleas in
England, in their opinion in the case of Perkin v. Proctor and
Green, 2 Wilson, 3S2, say that Lord Hardwicke denied that such
could have been the case. It appears from the case, as reported
in Hardwiekes Cases. 69, that the point of the officer's liability
was not settled ; for it is there said that there was no need of
giving a distinct opinion as to the action lying against them.
In Hill v. Bateman, 2 Strange, 710, the distinction in favor of
the officer is clearly taken. The plaintiff had been fined under
the game laws, and was immediately sent to bridewell, without
any attempt to levy the penalty upon his goods. This the jus-
tice had not a right to do, and was held liable for the imprison-
ment ; but the constable was justified, because the matter was
within the jurisdiction of the justice. I understand by this case
that the justice had not authority, or, in other words, had not
jurisdiction, to issue process to commit the party until he had
attempted to levy the fine upon his goods ; but that after he had
made that attempt without success, he had authority to commit
him. The process, though unauthorized by the circumstances of
the case, would, under other circumstances, have been proper.
The issuing of the process was a matter within the justice's juris-
diction. This was enough for the officer's justification. It is
further said in this case, if the justice makes a warrant which is
244 FALSE IMPRISONMENT.
plainly out of his jurisdiction, it is no justification. This I under-
stand to mean a warrant which appears on its face to be such as
the justice could in no case issue.
The views I have of this case are confirmed by that of Sher-
gold v. Holloway, 2 Strange, 1002. There the justice issued a
warrant on a complaint for not paying wages, and the defend-
ant, a constable, arrested Shergold on it. He was sued for
this arrest. The court said the justice had no authority in
any instance to proceed by warrant, a summons being the only
process. The constable could not therefore justify ; he was pre-
sumed to know that under no circumstances could a warrant be
issued in such a case ; therefore the court say there was " no
pretence for such a justification." This decision would doubt-
less have been different if it had appeared that under any state
of things a proceeding by warrant was allowable in such a case ;
for then the court would assume for the officer's protection that
such a state of things did exist, or, at least, he should not be
required to judge whether it did or not. His duty and his pro-
tection both depend upon the assumption that the justice had
determined correctly, that those circumstances had happened
which called for a warrant, if under any circumstances a war-
rant could issue. In the case of Moravia v. Sloper, Willes, 30,
the same distinction which has been noticed in the cases before
referred to is still more distinctly put forth. It is there said
that " though in case of an officer who is obliged to obey the
process of the court, and is punishable if he does not, it may
not be necessary to set forth that the cause of action arose within
the jurisdiction of the court ; it has always been holden, except in
one case (the correctness of which C. J. Willes controverted in
another part of his opinion), and we are all clearly of opinion that
it is necessary in the case of a plaintiff himself."
Lord Kenyon says, in the case of The King v. Danser,6 T. R.
242, " A distinction indeed has been made with respect to the
persons against whom an action may be brought for taking the
defendant's goods in execution by virtue of the process of an
inferior court, where the cause of action does not arise within its
jurisdiction ; the plaintiff in the cause being considered a tres-
passer, but not the officer of the court." A court of admiralty, I
apprehend, will not be considered a court of general jurisdiction.
In relation to its proceedings, Buller, J., says, in the case of
SAVACOOL V. BOUGHTON. 245
Ladbroke v. Crickett, 2 T. R. 653, if upon their face " the court
had jurisdiction, the officer was bound to execute the process,
and could not examine into the foundation of them ; and that
will protect him."
There are several cases in our own Reports which are supposed
to militate against the distinction recognized in the foregoing
cases ; I apprehend, however, that most of them may be recon-
ciled with those decisions which support it. The decision in the
case of Borden v. Fitch, 15 Johns. R. 121, was, that a court must
not only have jurisdiction of the subject-matter, but of the per-
son of the parties, to render its proceedings valid ; and if it has
not jurisdiction of the person, its proceedings are absolutely
void. It will be recollected that the person who wished to avail
himself of the proceedings of the court whose jurisdiction was
impeached, was a party to them. There was no occasion or
opportunity afforded by that case of considering the question
involved in this, the liability of the officer, who, as a minister of
the court, has executed its process issued on such proceedings.
The case of Cable v. Cooper, 15 Johns. R. 152, deserves a
more minute consideration. One Brown was committed on a
ca. sa. to the custody of the defendant, who was sheriff of Oneida
County, and discharged by a Supreme Court commissioner under
the habeas corpus act. The defendant, when prosecuted for the
escape of Brown, offered to justify by showing the discharge ;
but a majority of the court decided that the proceedings under
the habeas corpus act before the commissioner were coram non
judice, and therefore void. The principle of this decision is, that
the power to discharge under that act does not apply to the case
of a prisoner who "is convict or in execution by legal process."
Brown was in execution by legal process, and this was well
known to the defendant, for he had the ca. sa., and held the
prisoner. Whatever appeared upon the face of the discharge,
he knew, if he rightly understood the powers of the commis-
sioner, it was no authority for him to release Brown. If the dis-
charge did not relate to the imprisonment on the ca. sa., it was
certainly no authority to release him from confinement thereon ;
and if it did relate to that imprisonment, then it showed on its
face a want of jurisdiction in the officer who granted it ; for he
could not discharge a person in execution by legal process.
Again, the sheriff who held the prisoner might well be regarded
246 FALSE IMPRISONMENT.
as a party to the proceeding before the commissioner for the dis-
charge ; for the habeas corpus must have been directed to him,
and his return thereto showed the true cause of Brown's deten-
tion.
The cases of Smith v. Shaw, 12 Johns. R. 257, and Suydam and
Wyckoff v. Keys, 13 ib. 444, have a tendency to obliterate, or at
least confound, the distinction which the other eases seem to me
to raise in favor of the officer. I am free to confess that the
reasoning and conclusion of the judge who delivered the dissent-
ing opinion in the former case are more satisfactory to me than
those contained in the opinion adopted by a majority of the
court. Smith, in that case, was not looked upon in the light of
a mere ministerial officer. He was superior in authority to Hop-
kins and Findley, who had illegally imprisoned the plaintiff ; and
his liability was put expressly upon the ground that he had rati-
fied and confirmed their acts, and exercised other restraint over
the plaintiff than merely continuing tbe original imprisonment.
If he had only refused to discharge the prisoner, he would not,
as is strongly intimated by the court, have been held liable. This
case was not considered by the court as presenting the question
which arises in the one now before us, and therefore it can afford
but little authority to guide our present determination.
It seems to me somewhat difficult to reconcile the decision in
the case of Suydam and Wyckoff v. Keys, with the doctrine I am
endeavoring to establish, or with the principles of some other
cases which have been decided here. The defendant was a
collector of a tax which had been voted by a school district
in Orange County, and assessed by the trustees. They had
authority to assess, but were confined in their assessments to the
resident inhabitants of the district. The plaintiffs, having prop-
erty in the district, but actually resident in New York, were
included among the persons assessed, and designated on the war-
rant issued to the defendant as inhabitants of the district. He
took their property by virtue of this warrant, and was held liable
in an action of trespass. It appears to me the defendant, acting
merely as a ministerial officer, should have been allowed the pro-
tection of his warrant, which did not show upon the face of it an
excess or want of jurisdiction in the trustees. I cannot distin-
guish this case from a whole class of cases, beginning with the
earliest reports and coming down to this, holding that such a
SAVACOOL V. BOUGHTON. 247
warrant is a protection to the officer executing it, unless it is to
be distinguished from cases otherwise similar, by the fact that
the want of jurisdiction in the trustees to make the assessment
on the plaintiffs was to be presumed to be within the knowledge
of the officer, and that he was bound to act on this knowledge,
in opposition to the statements of his warrant. The decision,
however, is not put on such ground, but upon the broad prin-
ciple that the officer must see that he acts within the scope of
the legal powers of those who commanded him. This principle
requires a ministerial officer to look beyond his precept, and
examine into extrinsic facts beyond the fact of jurisdiction of the
subject-matter generally, or under certain circumstances. Such,
I apprehend, was not the doctrine applied to the case of Warner
v. Shed, 10 Johns. R. 138. There the officer was justified by his
process, as that showed the justice's jurisdiction of the subject-
matter. " He was not bound," the court say, " to examine into
the validity of the proceedings and of the process." The col-
lector's warrant in the former case, as well as the constable's
mittimus in the latter, showed jurisdiction of the subject-matter
in the officers issuing the process. In the former case it appeared
upon the face of the process that the plaintiffs were resident
inhabitants, and as such they were liable to be assessed ; and I
should think that the collector was no more bound to examine
into the fact of residence which had been passed on by the trus-
tees, than the constable was to look into the proceedings of the
special sessions under whose authority he acted.
I find still greater difficulty in reconciling the case of Suydam
and "Wyckoff v. Keys with that of Beach v. Furman, 9 Johns. R.
229. The court assume, though they do not directly decide,
that Sarah Furman was not, by reason of being a female, liable
to be assessed to work on the highways ; yet they held that the
justice who issued, at the instance of the overseer of the high-
ways, the warrant on which her property was taken and sold for
this illegal assessment, and the constable who executed it, both
protected, because they acted ministerially and in obedience to
the commissioners and overseer of highways, who had jurisdic-
tion over the subject-matter, the assessment of highway labor.
Let us compare this case with that of Suydam and Wyckoff v.
Keys, and see if they can stand together. The commissioners
had jurisdiction of the subject-matter, the assessment of labor.
248 FAL8E IMPRISONMENT.
The trustees had jurisdiction of the subject-matter, the assess-
ment of a district tax. The commissioners assessed a person
who, by reason of her sex, was not liable to be assessed, as the
court in giving their opinion conceded. The trustees assess per-
sons who, by reason of their residence out of the district, were
not liable to be assessed ; the justice and constable who enforce
the commissioner's assessment, by taking the property of the per-
son illegally assessed, are protected ; the constable who enforces
the illegal assessment of the trustees, by taking the property of
the persons illegally assessed, is held liable as a trespasser. I
think these cases cannot well stand together, and if one must
be given up, I do not hesitate to say it should be Suydam and
Wyckoff v. Keys.
The remark of this court in the case of Gold v. Bissell, 1 Wen-
dell, 213, " that where a warrant cannot legally issue without
oath, but is so issued, all the parties concerned in the arrest
under such process are trespassers," was not intended, I pre-
sume, to apply to an officer who had no knowledge, from the
warrant or otherwise, that it had not been duly sued out. A
remark somewhat similar is made by Trimble, J., in Elliott v.
Peirsol, 1 Peters' U. S. Rep. 340 ; but the decision of that case
did not call for any such distinction as is raised in the one now
under consideration. I have felt that the case of Wise v.
Withers, 3 Cranch, 331, is a direct authority against giving to
the officer the protection that is now claimed for him. The
plaintiff in that case was a magistrate in the District of Columbia,
and, as such, not subject to do military duty. He was fined for
neglect of such duty, and a warrant for the collection of the fine
issued to the defendant, who seized his property thereon ; for
this act he was prosecuted. The only point much considered in
that case was that which involved the question as to the plain-
tiff's exemption from military duty ; but that which related to
the defendant's protection under his warrant was only glanced
at in the argument of counsel and in the decision by the court.
The distinction contended for in this case was scarcely raised
there, and the attention of the court does not appear to have
been drawn to a single case in which it has ever been noticed.
The Chief Justice, in the opinion of the court, merely observes,
that it is a principle that a decision of such a tribunal (a tribunal
of limited jurisdiction), clearly without its jurisdiction, cannot
SAVACOOL V. BOUGHTON. 249
protect the officer who executes it. I would, with deference,
ask whether there is not an error in the application of the prin-
ciple which the Chief Justice lays down to the case then before
the court. He must mean, by a decision being clearly without
the jurisdiction of the court, a sentence or judgment on a matter
not within its cognizance. "Was the subject-matter of that cause
beyond the cognizance of a court-martial? It appears to me that
it was not. The power and duty of the court was to punish and
fine delinquents ; consequently, it had jurisdiction over the sub-
ject-matter, but not over the person. There was nothing in the
process which the ministerial officer executed to apprize him that
the court had not jurisdiction of the person. It seems to me
that it was not a case to which the principle laid down by the
court was applicable ; but it would have been such a case if
there had been a want of jurisdiction over the subject-matter. I
can scarcely consider, therefore, the determination of the Supreme
Court of the United States in the case of Wise v. Withers a delib-
erate decision on the question now before us. If it was to be
viewed in that light, we should be called upon, by the great
learning and high character of that court, to hesitate long and
examine carefully before we decided a point conflicting with such
decision.
There is certainly high authority for the distinction which I
am disposed to recognize in this case ; and, in my judgment, the
same principle which gives protection to a ministerial officer who
executes the process of a court of general jurisdiction, should
protect him when he executes the process of a court of limited
jurisdiction, if the subject-matter of the suit is within that juris-
diction, and nothing appears on the face of the process to show
that the person was not also within it.
The following propositions, I am disposed to believe, will be
found to be well sustained by reason and authority : —
That where an inferior court has not jurisdiction of the sub-
ject-matter, or, having it, has not jurisdiction of the person of the
defendants, all its proceedings are absolutely void; neither the
members of the court nor the plaintiff (if he procured or assented
to the proceedings) can derive any protection from them when
prosecuted by a party aggrieved thereby.
If a mere ministerial officer executes any process, upon the
face of which it appears that the court which issued it had not
250 FALSE IMPRISONMENT.
jurisdiction of the subject-matter, or of the person against whom
it is directed, such process will afford him no protection for acts
done under it.
If the subject-matter of a suit is within the jurisdiction of a
court, but there is a want of jurisdiction as to the person or place,
the officer who executes process issued in such suit is no tres-
passer, unless the want of jurisdiction appears by such process.
Bull. N. P. 83 ; Willes, 32, and the cases there cited by Lord Ch.
J. Willes.
I am therefore of opinion that the execution issued by the
justice to the defendant, it being on proceedings over the sub-
ject-matter of which he had jurisdiction, and the execution, not
showing on its face that he had not jurisdiction of the plaintiff's
person, was a protection to the defendant for the ministerial acts
done by him in virtue of that process.
Judgment on demurrer for the defendant, with leave to the
plaintiff to amend his replication on payment of costs.
Fox v. Gaunt.
(3 Bam. & Ad. 798. King's Bench, England, Trinity Term, 1832.)
Warrant. Misdemeanor. Suspicion that a party has, on a former occasion, committed
a misdemeanor, is no justification for giving him in charge to a constable without
a justice's warrant; and there is no distinction in this respect betweeu one kind of
misdemeanor and another, as breach of the peace and fraud.
Trespass for an assault and false imprisonment.
The defendant pleaded the general issue, and several pleas in
justification : one of which was, that an evil-disposed person and
common cheat, to the defendant unknown, had obtained goods
from him on false pretences (the particulars of which offence
were, set out in the plea) ; that the plaintiff afterwards, and just
before the time when, &c, passed by the defendant's shop, and was
pointed out to him by the defendant's servant as the person who
had so obtained the goods, whereupon the defendant, having good
and probable cause of suspicion, and vehemently suspecting and
believing that the plaintiff was the person who had committed the
FOX V. GAUNT. 251
offence, for the purpose of having him apprehended and examined
touching the same, at the time when, &c, gave charge of him to
a peace officer, and requested such officer to take and keep him
in custody till he should be carried before a justice, and to carry
him before such justice, to be examined touching the premises,
and dealt with according to law ; on which occasion the peace
officer, at the defendant's request, did so take him, &c, and
brought him before a justice to be examined, &c. ; and the jus-
tice, not being satisfied of the plaintiff's identity, discharged him
out of custody, &c. Replication, de injuria. At the trial before
Lord Tenterden, C. J., at the Middlesex sittings after Michaelmas
Term, 1831, the defendant had a verdict on the above special plea.
A rule nisi was obtained in the following term for judgment
non obstante veredicto, on the ground that a private person could
not justify giving another into custody on suspicion of a misde-
meanor.
Hutchinson and Heaton now showed cause. It is true the
books which treat of arrests by private persons make a distinction
between misdemeanor and felony, but that seems applicable to
misdemeanors which merely constitute a breach of the peace,
where it is clear that, after the offence is over, the arrest cannot
be justified ; but offences partaking of the nature of felony (as a
fraud, which borders upon theft) may come under a different rule.
[Lord Tenterden, C. J. The distinction between felony and mis-
demeanor is well known and recognized, but is there any author-
ity for distinguishing between one kind of misdemeanor and
another?] There is no direct authority, but in Hawk. P. C.
book 2, c. 12, § 20, it is said (after stating that " regularly no
private person can, of his own authority, arrest another for a bare
breach of the peace after it is over"), "Yet it is holden by some,
that any private person may lawfully arrest a suspicious night-
walker, and detain him till he make it appear that he is a person
of good reputation. Also it hath been adjudged, that any one
may apprehend a common notorious cheat going about the coun-
try with false dice, and being actually caught playing with them,
in order to have him before a justice of peace ; for the public good
requires the utmost discouragement of all such persons ; and the
restraining of private persons from arresting them without a war-
rant from a magistrate would often give them an opportunity of
escaping. And from the reason of this case it seems to follow
252 FALSE IMPRISONMENT.
that the arrest of any other offenders by private persons, for
offences in like manner scandalous and prejudicial to the public,
may be justified." The same doctrine may be inferred from
Hale's P. C. part 2, c. 10, and c. %1, p. 88, 89.
Lord Tenterden, C. J. The instances in Hawkins are where
the party is caught in the fact, and the observation there added
assumes that the person arrested is guilty. Here the case is only
of suspicion. The instances in Hale, of arrest on suspicion after
the fact is over, relate to felony. In cases of misdemeanor, it is
much better that parties should apply to a justice of peace for a
warrant than take the law into their own hands, as they are too
apt to do. The rule must be made absolute.
Littledale, Parke, and Taunton, JJ., concurred.
Rule absolute.
Hogg v. Ward.
(3 Hurls. & N. 417. Exchequer, England, Trinity Term, 1858.)
Warrant. Felony. Suspicion. A constable is not justified in arresting a supposed
offender for felony, without warrant, at the instigation of a third party, unless
there exists a reasonable charge and suspicion.
In June, 1857, the cart of the plaintiff, who was a butcher, was being driven by his
servant, when J., a person in the habit of attending fairs, stopped the cart and said
to the defendant, a constable, " These are my traces which were stolen at the peace
rejoicing in 1856." The defendant sent for the plaintiff, who immediately attended,
and asked how he accounted for the possession of the traces. The plaintiff said
that he had seen a stranger pick them up in the road, and he had bought them of
him for a shilling. The defendant then took the plaintiff into custody, and brought
him before a magistrate, by whom he was discharged. Held, that under these cir-
cumstances there was no reasonable charge, and that the defendant was liable in
an action for arresting the plaintiff.
Qucere, whether the question of reasonable charge is one for the court or the jury.
Trespass for false imprisonment. Plea, not guilty (by statutes
7 Jac. 1, c. 5, § 1 ; 21 Jac. 1, c. 12, § 5 ; 19 & 20 Vict. c. 69,
§ 1 ; 2 & 3 Vict. c. 93, § 8 ; 1 & 2 Wm. 4, c. 42, § 19).
At the trial before Martin, B., at the Spring Assizes for the
county of York, it appeared that on the 9th of June, 1857, the
plaintiff, a butcher residing at South Cave, was arrested by
the defendant, the superintendent of police for the district, for
HOGG V. WARD. 253
having in his possession some traces alleged to have been stolen
from one Johnson, who was a person in the habit of attending
fairs as an itinerant showman. The traces were on the horse
in the plaintiff's cart, which was being driven by his servant at
Cave fair. Johnson stopped the cart and said to the defendant,
" These are my traces which were stolen at the peace rejoicing
in 1856." The defendant sent for the plaintiff, who at once
attended. The defendant asked the plaintiff how he accounted
for the possession of the traces. The plaintiff stated that he had
seen a stranger pick them up in the road, and that he had bought
them of him for a shilling. ' The defendant then handcuffed the
plaintiff and detained him in custody till the next morning, when
he was taken before a magistrate, who immediately discharged
him. According to the evidence of the plaintiff and another
witness, Johnson was not present when the defendant took the
plaintiff into custody, but the defendant, who was called as
witness on his own behalf, stated that Johnson said to him, when
the plaintiff arrived, " These are my traces, and I insist upon your
taking him into custody." The defendant resided about three
miles from South Cave, and had known the plaintiff for many
years.
At the conclusion of the evidence, the counsel for the defend-
ant submitted to the learned judge that, upon the facts admitted
by the plaintiff to be true, the defendant was entitled to have the
verdict entered for him. The learned judge intimated that he
rather thought there was a question for the jury ; and the result
was that it was agreed that the opinion of the jury should be
taken upon the amount of damages, and the question reserved
for the court both upon the law and the fact.
Hugh Hill, in last Easter Term, obtained a rule to show cause
why the verdict should not be entered for the defendant pursuant
to the leave reserved.
Temple and W. S. Cross now showed cause. There was no
reasonable ground for arresting or detaining the plaintiff. He
had not been directly charged with felony by Johnson. A con-
stable is not justified in arresting a person upon a charge which
is not reasonable. The instructions issued to police constables
are, that " the constable must arrest any one whom he sees in
the act of committing a felony, or one whom another positively
charges with having committed a felony, or whom another sus-
254 FALSE IMPRISONMENT.
pects of having committed a felony, if the suspicion appear to the
constable to he well founded, and providing the person so suspect-
ing go with the constable." In McCloughan v. Clayton, Holt,
N. P. C. 478, Bayley, J., held that the constable was not bound
in all events to take the alleged offender before a magistrate.
He said : " If a felony be committed in the presence of the con-
stable, he is bound to act ; so, if a charge of felony be made with
reasonable circumstances, it is his duty to act." Isaacs v. Brand,
2 Stark. Rep. 167, is a strong authority that the charge must be
a reasonable one. In Samuel v. Payne, 1 Doug. 359, it was taken
for granted that the charge was reasonable. In Hedges v. Chap-
man, 2 Bing. 523, Best, C. J., did not advert to the reasonable-
ness of the charge, but the mode in which the question arose
rendered it unnecessary for him to do so. When an innocent
person has been arrested by a constable, the question is whether
the circumstances made it reasonable that the constable should
arrest him at the time when the arrest was made. In the present
case, the facts that the plaintiff was a householder, and that his
residence was known to the constable, afford strong evidence that
the arrest was not reasonable.
Hugh Hill and Perronet Thompson, in support of the rule.
A constable is justified in arresting if a charge be made bona fide
and not collusively ; that is, if the constable does not make him-
self a party to the wrong. The charge must be taken to be rea-
sonable if the constable had no means of knowing that it was not
true. In Samuel v. Payne, 1 Doug. 359, Lord Mansfield said :
" If a man charges another with felony, it would be most mis-
chievous that the officer should be bound first to try, and, at his
peril, exercise his judgment on the truth of the charge." [Pol-
lock, C. B. In a note by Mr. Chitty, in Blackstone's Commen-
taries, vol. 1, p. 292, it is said, " A constable may justify an
imprisonment without warrant, on a reasonable charge of felony
made to him, though he afterwards discharge the prisoner with-'
out taking him before a magistrate."] In White v. Taylor, 4
Esp. 80, Le Blanc, J., held that the constable may, " if he please,
exercise his own judgment on a charge made before him ; but if
the plaintiff cannot make out such a case as amounts to collusion,
or that makes the constable a party to the wrong, if a regular
charge be made before him, he is warranted in committing the
party charged." In Hobbs v. Branscomb, 3 Camp. 420, the fact
HOGG V. WARD. 255
of a charge having been made was held a sufficient justification to
the constable. The charge in the present case was made under
circumstances not inconsistent with its truth. [Bramwell, B.,
referred to Hale's Pleas of the Crown, p. 93.J In the case of a
constable, the charge constitutes reasonable and probable cause ;
and, moreover, in this case, there was evidence of reasonable and
probable cause. The fact of non-recent possession is no ground
of discharge. A constable may act on a reasonable charge ; or
he may act on circumstances within his own knowledge, or on
the information of others, but, in the two latter cases, there must
be reasonable and probable cause. When a charge is made, the
constable acts ministerially, and it is no part of his duty to inquire
into the merits of the case. [Pollock, C. B. If, upon a rea-
sonable charge of felony, or other crime for which a constable
may arrest without warrant, the constable refuse to arrest or
make hue-and-cry, he may be indicted and fined. Burn's Jus-
tice, vol. 1, p. 275 (29th ed.).J If the circumstances afford reason-
able ground of suspicion that the party charged has committed a
felony, the constable is justified in arresting him : Davis v. Rus-
sell, 5 Bing. 354 ; and if, in resisting, the constable is killed, he
would be guilty of murder : Rex v. Ford, Russ. & Ry. 329 ; Rex
v. Woolmar, Moo. C. C. 334.
Pollock, C. B. We are all of opinion that the rule must be
discharged. I abstain from expressing any opinion, except what
is necessary for disposing of this particular case. The general
law and authorities have established that, in order to justify an
arrest, there must be a reasonable charge. Whether that is to be
decided by the judge as a matter of law, or by the jury as a mat-
ter of fact, is not important on the present occasion, because it
was expressly reserved for the court to decide. It appears to me
in this case there was not a reasonable charge, and that the ver-
dict for the plaintiff ought to stand.
Martin, B. I am of the same opinion. The law is correctly
laid down in Burn's Justice, vol. 1, p. 273 (29th ed.), where it is
said that a constable may " apprehend a supposed offender for
a felony without warrant upon a reasonable charge made by a
third party, and this although, upon investigating the charge, it
turn out that no felony has been committed. But there must
in all cases exist a reasonable charge and suspicion." Therefore
the constable is bound to ascertain whether the charge is reason-
256 FALSE IMPRISONMENT.
able. I am of opinion that the charge in this case was not rea-
sonable. The traces, which were on the plaintiff 's horse, were
alleged to have been stolen. The plaintiff was not present at the
time the charge was first made, but, on being sent for, he came
and gave an account of how he came possessed of the traces ;
but, in defiance of that, the defendant arrested and imprisoned
him. Looking at all the circumstances, I cannot think that the
charge was reasonable, or that there was any real suspicion that
the plaintiff had stolen the traces.
Bramwell, B. I am of the same opinion. The law is correctly-
laid down in Burn's Justice. It is not every idle and unreason-
able charge which will justify an arrest, but there must be a
charge not unreasonable. The Metropolitan Police Act, 2 & 3
Vict. c. 47, § 64, authorizes " any constable belonging to the
metropolitan police to take into custody, without a warrant, all
persons whom he shall have good cause to suspect of having com-
mitted or being about to commit any felony, misdemeanor, or
breach of the peace." This does not say that any charge is
enough, but by implication says only such a charge as gives the
constable good cause to suspect the person charged. If a person
comes to a constable and says of another simpliciter, " I charge
this man with felony," that is a reasonable ground, and the con-
stable ought to take the person charged into custody. But if
from the circumstances it appears tolte an unfounded charge, the
constable is not only not bound to act upon it, but he is respon-
sible for so doing. Here the question is, whether the charge was
not unreasonable. In my opinion it was a charge most unrea-
sonable. I agree with Mr. Thompson that the case must be
treated as if it were a case of recent possession ; but then the
other circumstances must be looked at. The plaintiff used
the traces in the most open manner ; and, when asked, he told
how he got possession of them, and, moreover, the person who
claimed them was a person not unlikely to have lost them.
Watson, B. I am of the same opinion. There is no. doubt
about the law on the subject. So far as my experience goes,
it always has been laid down by the judges and in the text-
books that a constable may arrest without warrant where
there is a reasonable charge of felony. The question here is,
whether there was a reasonable charge. I think there was not.
The argument as to reasonable and probable cause has no appli-
TIMOTHY V. SIMPSON. 257
cation : the question is, whether a reasonable charge was made.
Now, every case must be governed by its own circumstances, and
the charge must be reasonable as regards the subject-matter and
the person making it. If an idiot made a charge, the constable
ought not to take the person so charged into custody. In
Isaacs v. Brand, 2 Stark. N. P. 167, Lord Ellenborough said
that the declaration of the thief did not justify a constable in
taking a person into custody upon a charge of receiving the
stolen goods. I have attentively considered whether the charge
in this case was reasonable, because it is of the utmost importance
that the police throughout the whole country should be sup-
ported in the execution of their duty, — indeed, it is absolutely
essential for the prevention of crime ; on the other hand, it
is equally important that persons should not be arrested and
brought before magistrates upon frivolous or untenable charges.
Whether the question of reasonable charge is a matter of law for
the judge, or a matter of fact for the jury, I do not express an
opinion, as that was left to us, and I come to the conclusion that
this was not a reasonable charge. It is not necessary to repeat
the facts, but, taking them strongly in the defendant's favor, I
think that this was not a reasonable charge, and that the defend-
ant acted contrary to his duty and contrary to law in arresting
the plaintiff. Mule discharged.
Timothy v. Simpson.
(1 Cromp., M. & R. 757. Exchequer, England, Hilary Term, 1835.)
Warrant. Felony. Arrest by Private Citizen. Trespass for assault and false impris-
onment, and taking the plaintiff to a police-station. Plea, that the defendant was
possessed of a dwelling-house, and that the plaintiff entered the dwelling-house,
and then and there insulted, abused, and ill-treated the defendant and his servants in
the dwelling-house, and greatly disturbed them in the peaceable possession thereof,
in breach of the peace ; whereupon the defendant requested the plaintiff to cease
his disturbance, and to depart from and out of the house; which the plaintiff refused
to do, and continued in the house, making the said disturbance and affray therein ;
that thereupon the defendant, in order to preserve the peace and restore good order
in the house, gave charge of the plaintiff to a certain policeman, and requested the
policeman to take the plaintiff into his custody, to be dealt with according to law ;
and that the policeman, at such request of the defendant, gently laid his hands on
the plaintiff, for the cause aforesaid, and took him into custody.
It appeared in evidence that the plaintiff entered the defendant's shop to purchase an
17
258 FALSE IMPRISONMENT.
article in the shop, when a dispute arose between the plaintiff and the defendant's
shopman ; that the plaintiff refusing on request to go out of the shop, the shopman
endeavored to turn him out, and an affray ensued between them ; that the defend-
ant came into the shop during the affray, which continued for a short time after
he came in ; that the defendant then requested the plaintiff to leave the shop qui-
etly ; but he refusing to do so, the defendant gave him in charge of a policeman,
who took him to a station-house. Held, first, that the defendant was justified,
under the circumstances, in giving the plaintiff in charge of a policeman, for the
purpose of preventing a renewal of the affray. Held, secondly, that the plea was
not substantially proved, inasmuch as the alleged assault on the defendant himself
was not proved.
Trespass for assaulting the plaintiff, and taking him to a
police station-house. Pleas : first, not guilty ; secondly, that
the defendant was possessed of a dwelling-house in the city of
London, and that the plaintiff entered and came into the said
house and made a great disturbance and affray therein, and
insulted, abused, and ill-treated the defendant and his servants
in the said dwelling-house, and disquieted them in their posses-
sion thereof, against the king's peace ; whereupon the defend-
ant requested the plaintiff to cease his disturbance and depart
from the said house, which the defendant refused to do, and con-
tinued in the said house making the said disturbance and affray
therein; whereupon the defendant, in order to preserve the
peace and restore good order and tranquillity in the said house,
then and there gave charge of the plaintiff to a policeman to take
the plaintiff- into custody, to be dealt with according to law.
The plea then alleged that the policeman took the plaintiff into
custody, and conducted him out of the said house to the police-
station for examination, and to be dealt with according to law.
To this there was the general replication, de injuria.
At the trial before Parke, B., at the London sittings after last
Trinity Term, the plaintiff obtained a verdict on the general
issue, with 15Z. damages ; but the jury found a verdict for the
defendant on the issue upon the special plea, the learned judge
giving the plaintiff leave to move to enter a verdict for him, if
the court should be of opinion that the facts proved in evidence
did not support that plea. Thesiger having, in Michaelmas
Term last, obtained a rule accordingly, or for judgment non
obstante veredicto,
Bompas, Serjt., showed cause; and Thesiger was heard in sup-
port of the rule in the same term ; and the court took time to
consider. But the facts of the case and the arguments are so
TIMOTHY V. SIMPSON. 259
fully stated in the judgment of the court, that it has been
thought unnecessary to state them here. Cur. adv. vult.
Parke, B., now delivered the judgment of the court. This was
an action of trespass and false imprisonment, tried before me at
the sittings after Trinity Term last, at Guildhall. The declara-
tion was for an assault and false imprisonment, to which there
was a plea of not guilty, and a special plea of justification, on the
ground that the plaintiff was guilty of a breach of the peace in
the defendant's dwelling-house, and that he thereupon gave him
in charge to a policeman, who was not averred to have had view
of the breach of the peace. To this special plea there was a
replication of de injuria sua propria absque tali causa. On the
trial, the jury found a verdict for the plaintiff on the general
issue, and for the defendant on the special plea, as I was of
opinion that the material parts of it were proved ; but, as it
appeared to me that the plea was bad in law, I directed the jury
to assess the damages on the general issue, and I also gave the
plaintiff permission to move to enter a verdict for him on the
special plea, if the court should be of opinion that it was not
substantially proved. A rule nisi having been obtained to enter
a verdict for the plaintiff, or judgment non obstante veredicto, the
case was fully argued before my brothers Bolland, Alderson,
Gurnev, and myself last term. We have since considered the
case, and are of opinion that the rule ought not to be made
absolute, but that there should be a new trial, unless the parties
will consent to enter a stet processus.
The facts of the case, as to which there was little or rather
no contradictory evidence, may be very shortly stated. The
defendant was a linen-draper ; the plaintiff was passing his shop,
and, seeing an article in the window with a ticket apparently
attached to it denoting a low price, sent his companion in to buy
it : the shopman refused, and demanded a larger price ; the
plaintiff went in himself and required the article at the lower
rate. The shopman still insisted on a greater price ; the plaintiff
called it " an imposition." Some of the shopmen desired him
to go out of the shop, in a somewhat offensive manner ; he
refused to go without the article at the price he bid for it ; the
shopmen pushed him out. Before they did so, he declared he
would strike any one who laid hands on him. One of the shop-
men really supposing, or pretending to suppose, this to be a dial-
260 FALSE IMPRISONMENT.
lenge to fight, stepped out and struck the plaintiff in the face,
near the shop-door ; the plaintiff went back into the shop and
returned the blow, and a contest commenced, in which the other
shopmen took a part, and fell on the plaintiff. There was a great
noise in the shop, so that the business could not go on ; many
persons were there, and others about the street-door. The noise
brought down the defendant, who was sitting in the room above.
When he came down he found the shop in disorder, and the
plaintiff on the ground struggling and scuffling with the shop-
men, and this scuffle continued in the defendant's presence for
two or three minutes. The defendant sent for a policeman, who
soon afterwards came ; in the mean time, the plaintiff was taken
hold of by two of the shopmen, who, however, relinquished their
hold before the policeman came; and, on his arrival, the plaintiff
was requested by the defendant to go from the shop quietly; but
he refused, unless he first obtained his hat, which he had lost in
the scuffle. He was standing still in the shop insisting on his right
to remain there, and a mob gathering round the door, when the
defendant gave him in charge to the policeman, who took him to
the police station. The defendant followed ; but, on the recom-
mendation of the constable at the station, the charge was dropped.
Upon these facts the plaintiff appears to have been, in the first
instance, a trespasser, by refusing to quit the shop when re-
quested, and so to have been the cause of the affray which sub-
sequently took place ; but the first act of unlawful violence and
breach of the peace was committed by the shopman. That led
to a conflict in which there were mutual acts of violence clearly
amounting to an affray, the latter part of which took place in the
defendant's presence ; and the plaintiff was on the spot on which
the breach of the peace occurred, persisting in remaining there
under such circumstances as to make it probable that the breach
of the peace would be renewed, when he was delivered by the
defendant to the police-officer in the very place where the affray
had happened.
The first question which arises upon these facts is, whether the
defendant had a right to arrest and deliver the plaintiff to a con-
stable, the police-officer having, by the stat. 10 Geo. 4, c. 44, § 4,
the same powers as a constable has at common law. It is not
necessary for us to decide in the present case whether a private
individual, who has seen an affray committed, may give in charge
TIMOTHY V. SIMPSON. 261
to a constable who has not, and such constable may thereupon
take into his custody the affrayers, or either of them, in order to
be carried before a justice, after the affray has entirely ceased,
after the offenders have quitted the place where it was commit-
ted, and there is no danger of its renewal. The power of a con-
stable to take into his custody upon the reasonable information of
a private person under such circumstances, and of that person to
give in charge, must be correlative. Now, as to the authority of
a constable, it is perfectly clear that he is not entitled to arrest,
in order himself to take sureties of the peace, for he cannot ad-
minister an oath : Sharrock v. Hannemer, Cro. Eliz. 376 ; Owen,
105, S. C. nomine, Scarrey v. Tanner; but whether he has that
power, in order to take before a magistrate, that he may take
sureties of the peace, is a question on which the authorities differ.
Lord Hale seems to have been of opinion that a constable has
this power. 2 Hale's Pleas of the Crown, 89. And the same
rule has been laid down at nisi prius by Lord Mansfield, in a
case referred to in 2 East's Pleas of the Crown, 306 ; and
by Buller, J., in two others, one quoted in the same place, and
another cited in 3 Campb. N. P. C. 421. On the other hand,
there is a dictum to the contrary in Brooke's Abr. Faux Impt. 6,
which is referred to and adopted by Lord Coke, in 2 Inst. 52.
Lord Holt, in The Queen v. Tooley, 2 Ld. Raym. 1301, expresses
the same opinion. Lord Chief Justice Eyre, in the case of Coupey
v. Henley, 1 Esp. 540, does the same. And many of the modern
text-books state that to be the law: Burn's Justice (26th ed.),
Arrest, 258 ; Bacon's Abr. D. Trespass, 53 ; 2 East's Pleas of the
Crown, 506 ; Hawkins's Pleas of the Crown, book 2, c. 13, § 8.
Upon the present occasion, however, we need not examine and
decide between these conflicting authorities ; for here the defend-
ant, who had immediately before witnessed an affray, gave one
of the affrayers in charge to the constable on the very spot where
it was committed, and whilst there was a reasonable apprehension
of its continuance ; and we are of opinion that he was justified in
so doing, though the constable had seen no part of the affray.
It is unquestionable that any by-stander may and ought to inter-
fere to part those who make an affray, and to stay those who are
going to join in it till the affray be ended. It is also clearly laid
down that he may arrest the affrayers, and detain them until the
heat be over, and then deliver them to a constable. Lambard, in
262 FALSE IMPRISONMENT.
his Eirenarcha, c. 3, p. 130, says : " Any man also may stay the
affrayers until the storm of their heat be calmed, and then may
he deliver them over to a constable to imprison them till they
find surety for the peace ; but he himself may not commit them
to prison, unless the one of them be in peril of death by some
hurt ; for then may any man carry the other to the jail till it be
known whether he, so hurt, will live or die, as appeareth by the
stat. 3 Hen. 7, c. 1." In Hawk. P. C. book 1, c. 63, § 11, it is
said, that it seems agreed that any one who sees others fighting
may lawfully part them, and also stay them until the heat be
over, and then deliver them to the constable, who may carry
them before a justice of the peace, in order to their finding sure-
ties for the peace ; and pleas founded upon this rule, and signed
by Mr. Justice Buller, are to be found in 9 Went. Plead. 344,
345 ; and De Grey, C. J., on the trial, held the justification to be
good. It is clear, therefore, that any person present may arrest
the affrayer at the moment of the affray, and detain him till his
passion has cooled, and his desire to break the peace has ceased,
and then deliver him to a peace officer. And, if that be so, what
reason can 'there be why he may not arrest an affrayer after the
actual violence is over, but whilst he shows a disposition to renew
it, by persisting in remaining on the spot where he has committed
it? Both cases fall within the same principle, which is, that, for
the sake of the preservation of the peace, any individual who
sees it broken may restrain the liberty of him whom he sees
breaking it, -so long as his conduct shows that the public peace is
likely to be endangered by his acts. In truth, whilst those are
assembled together who have committed acts of violence, and the
danger of their renewal continues, the affray itself may be said to
continue ; and, during the affray, the constable may not. merely
on his own view, but on the information and co?nplaint of another,
arrest the offender ; and, of course, the person so complaining is
justified in giving the charge to the constable. Lord Hale, P. C.
vol. 2, p. 89. The defendant, therefore, had a right in this case,
the danger continuing, to deliver the plaintiff into the hands of
the police-officer, unless the circumstance that the plaintiff was
not guilty of the first illegal violence make a difference. Now,
at the time the defendant interfered, he was ignorant of that fact;
he saw the plaintiff and others in a mutual contest, and that
mutual contest the law gave him power to terminate, for the sake
TIMOTHY V. SIMPSON. 263
of securing- the peace of his house and neighborhood, and the
persons of all those concerned, from violence ; and if he had the
power to arrest all, he was justified in securing any one, not abso-
lutely, but only until a magistrate could inquire into all the cir-
cumstances on oath, and bind over one party to prosecute, or the
other to keep the peace, as upon a review of all the circumstances
he might think fit. If no one could be restrained of his liberty,
in cases of mutual conflict, except, the party who did the first
wrong, and the by-standers acted at their peril in this respect,
there would be very little chance of the public peace being pre-
served by the interference of private individuals, nor, indeed, of
peace officers, whose power of interposition on their own view
appears not to differ from that of any of the king's other subjects.
For these reasons we are of opinion that the defendant was, upon
the facts in evidence, justified in delivering the plaintiff to the
police-officer.
This brings me to the second question, whether the plea upon
the record was substantially proved. I thought upon the trial
that it was ; but, upon further consideration, I concur with the
rest of the court in thinking that it was not. The plea was as
follows : '• And the defendant says, that before and at the said
time when, &c, the said defendant was lawfully possessed of a
certain dwelling-house in the city of London ; and the said de-
fendant being so possessed thereof, the said plaintiff just before
the said time when, &c, entered and came into the said dwelling-
house, and then and there, with force and arms, made a great
noise, disturbance, and affray therein, and then and there insulted,
abivsed, and ill-treated the defendant and his servants in the said
dwelling-house, and greatly disturbed and disquieted them in the
peaceable and quiet possession of the said dwelling-house, in
breach of the peace of our said lord the king ; whereupon the
defendant then and there requested the plaintiff to cease his noise
and disturbance, and to depart from and out of the said house,
which the plaintiff then and there wholly refused to do, and con-
tinued in the said house, making the said noise, disturbance, and
affray therein ; whereupon the defendant, in order to preserve the
peace and restore good order and tranquillity in the said house,
then and there gave charge of the plaintiff to a certain policeman
of the city of London, and then and there requested the said
policeman to take the plaintiff into his custody, to be dealt with
264 FALSE IMPRISONMENT.
according to law ; and the said policeman, so being such police-
man as aforesaid, at such request of the defendant, then and there
gently laid his hands on the plaintiff for the cause aforesaid, and
did then and there take the plaintiff into his custody." The
replication puts in issue all the allegations constituting the ground
of the arrest, and of these it is not necessary to prove all. It is
enough to establish so many of them as would justify the arrest.
It is not enough to prove facts which justify the imprisonment :
it is necessary to prove such of the facts alleged as would do so.
The allegations which were proved were the entry into" the
defendant's house, the assault on his servants, the disturbance of
the defendant in his possession of the house, by an affray in it, in
which the plaintiff bore a part, just before the time of the arrest,
and that the defendant gave the plaintiff in charge in order to
preserve the public peace ; but the fact of an assault on the plain-
tiff himself was not proved, and that is the only breach of the
peace which in the plea appears by necessary implication to have
been committed in the defendant's presence ; for in none of the
other alleged facts is the defendant's presence inserted or neces-
sarily implied before the moment of actual interference. The
disturbance of the defendant in the possession of his dwelling-
house might have occurred by an entry in his absence, and there-
fore that averment does not by necessary implication affect the
defendant's presence. If so, the substance of this plea, that is,
so many of the allegations in it as constituted a defence, was not
proved, as the assault on the defendant himself was not proved.
For this reason we think that the proof failed ; but, as this is a
case in which an amendment would have been allowed by virtue
of the last statute, as it is clear upon the facts that there was a
defence, on the ground of the defendant's right to arrest for a
breach of the peace in his presence ; and as the declaration of my
opinion, that the plea was substantially proved at the time, prob-
ably prevented an application to amend, — we think that there
should be a new trial, when, or before which, the plea may be
amended. And as ultimately there will be a verdict for the
defendant, if the same evidence is adduced, the best course will
be for the parties to agree to enter a stet processus.
Mule accordingly.
allen v. wright. 265
Allen v. Wright.
(S Car. & P. 522. Common Pleas, Xisi Prius, England, Trinity Term, 1838.)
Warrant. Felony. Suspicion. In an action for false imprisonment, the defendant
justified on the ground that the plaintiff had been his lodger, and after she had left
her apartments, he discovered that some feathers were missing from a bed which
she had occupied, and he, suspecting her to be the person who had stolen them,
caused her to be apprehended, &c. It appeared that the defendant took a police-
man at night to the new lodgings of the plaintiff, a few days after she had left his
house, and had her apprehended and taken to the station-house, and the next day
she was examined before the magistrate and discharged.. Held, that as the defend-
ant had taken the law into his own hands, and not adopted, as a prudent person
would, under such circumstances, the cautious course of having a previous inves-
tigation by a magistrate, and obtaining a warrant from him, it was incumbent on
him to make out to the entire satisfaction of the jury not only that a felony had
been committed, but that the circumstances of the case were such that they or any
reasonable person, acting without passion or prejudice, would fairly have suspected
the plaintiff of being the person who had committed it.
The declaration stated that the defendant, on the 19th of
March, 1838, assaulted the plaintiff, and forced and compelled
her to go into the public street, and through several lanes, &c,
to the police station-house in Tower Street, Lambeth, and there
imprisoned and kept her, without any reasonable or probable
cause, for twenty hours, contrary to law and against her will ;
and that on the 20th of March he again assaulted her, and com-
pelled her to go from the station-house to Union Hall Police
Office, and there kept and detained her for six hours, whereby
she was not only hurt and injured in her body and mind, but
also exposed and injured in her credit and circumstances. The
defendant pleaded, first, not guilty ; and, secondly, a special
plea, to the following effect : that the plaintiff was a lodger in
the defendant's house, and was supplied with a feather-bed,
which, during a portion of the time, was made by the plaintiff
and a servant of the defendant ; that the plaintiff, while she was
such lodger, demeaned herself in an improper, irregular, and dis-
reputable manner, and particularly in receiving the visits of and
cohabiting with one G. D., and that, after a certain time, she
refused to allow the servant to assist in making the bed, and
always locked the door of the room when she went out. It then
averred that while the plaintiff continued as lodger, as aforesaid,
266 FALSE IMPRISONMENT.
seventy pounds weight of feathers were stolen from the bed ;
and that the defendant having good and probable cause of suspi-
cion, and vehemently suspecting the plaintiff to be the person
who stole them, caused her to be apprehended, &c.
From the evidence on the part of the plaintiff, it appeared that
she resided for some time in the house of the defendant with a
gentleman named Davison, who passed with her by the name
of Gordon. They left in the evening of Friday, the 16th of
March, between six and seven o'clock ; and, after they were
gone, that same evening a friend of the gentleman paid the
defendant for him several claims for damage to furniture, &c,
and at that time nothing was said about any loss of feathers
from the bed. On the evening of Monday, the 19th of March,
about ten o'clock, the defendant and his wife were observed
by a policeman on duty watching the house No. 12 in the
Waterloo Road. The defendant addressed the policeman, and
told him he wished to ascertain whether a young woman named
Gordon was living there. The policeman inquired what he
wanted her for, and was told of the damage sustained, which
had been paid for, and also that there was a large quantity of
feathers missing out of the bed. The policeman knocked at the
door and gained"' admittance to the house, together with the
defendant. The plaintiff inquired who wanted her, and on being
told, said she could not see Mr. Wright that night. It was then
about twenty minutes past ten. The policeman and Mr. Wright
followed the servant upstairs. They saw the plaintiff, and the
policeman asked the defendant if that was the person. He said
yes, it was, and then charged her with stealing the feathers out
of the bed in his house while she was lodging there. The police-
man told her that she must go with him to the station-house.
She at first objected, but afterwards went, and the defendant
made his charge to the inspector, and she was locked up in a cell,
where she remained till between ten and eleven the next morn-
ing. A duplicate for a bed was found upon her. After the
plaintiff had been locked up, the policeman went back with the
defendant's wife to the plaintiff's lodgings, but nothing belong-
ing to the defendant was found there. The plaintiff was taken
on the next day before Mr. Trail, at Union Hall, who discharged
her. The defendant wished him to remand her, but he would
not.
ALLEN V. WRIGHT. 267
It was also proved that the gentleman with whom the plaintiff
lived supplied her with adequate means of support ; and a wit-
ness stated that he had examined the bed, and found it to be a
very old one, and expressed it as his opinion that the quantity of
feathers in it was sufficient for its size.
Stammers, for the defendant. The plaintiff has been charged
with felony upon just ground of suspicion. The defendant
undertakes to prove, not that she actually committed the offence,
but that she was arrested under such circumstances of suspicion
as justified the examination before the magistrate. The ques-
tion is, did the plaintiff place herself in such a situation of sus-
picion as to justify the defendant in taking her before the
magistrate? and the disputes between the defendant and Mr.
Davison had nothing to do with the matter. The plaintiff's
leaving her lodgings before the expiration of the notice to quit,
and between six and seven in the evening, was calculated to
excite suspicion. The finding of the duplicate on her was also
a circumstance of suspicion. It will be injurious to society if
you allow it to go forth to the world that a tradesman who has
lost his property, and causes an investigation to take place before
a magistrate, shall be held to be dragged into court by the para-
mour of the party charged.
On the part of the defendant, his servant was called as a wit-
ness, and said, that for about three weeks after July, 1837, when
she went to live at the defendant's, she assisted the plaintiff in
making her bed : that it was quite a full bed, and the plaintiff
used to call her up and tell her that one person could not make
it properly ; that during the three weeks when the plaintiff went
out, she used to leave the door of the room open, but afterwards
she used to lock it, and go out with bundles under her arm, and
refused to allow her to help her in making the bed; that she saw
the bed the next morning after the plaintiff left, and found it
half empty.
An upholsterer also proved that he examined the bed, and
found about one-half of the feathers deficient.
Wilde, Serjt., in reply. The plaintiff had no motive to induce
her to steal the feathers ; she had her wants supplied by Mr.
Davison. If the defendant had any bona fide charge of felony,
would he not have applied for a warrant? But he knew he
268 FALSE IMPRISONMENT.
could not get a warrant, and his object was to gratify his malice ;
and so he went at night and took her from her own house and
lodged her in the station-house.
Tindal, C. J., after stating the complaint in the declaration
and the defendant's answer to it, said : That is an answer which
it is incumbent on him to make out to your satisfaction, because
he has taken the law into his own hands, by not acting as any
prudent person would have done, viz., going before a magistrate
and taking out a warrant. At all events, the defendant acted in
a very indiscreet manner (as there was no reason to conclude
that the plaintiff had any intention to abscond) in not taking the
usual and cautious step of having the case investigated by a mag-
istrate before imprisoning the party. The only two points upon
which you must be satisfied before you can find a verdict for the
defendant are, 1st, that a felony had actually been committed ;
that some person or other had stolen, according to the evidence,
about half the feathers from the bed ; and 2d, that the circum-
stances were such that you yourselves, or any reasonable person,
acting withot passion and prejudice, would have fairly suspected
the plaintiff of being the person who did it. If you think the
circumstances were such, you will find your verdict for the de-
fendant ; if you do not, you will find your verdict for the
plaintiff, and give her such reasonable damages as you think she
is entitled to.
Verdict for the plaintiff. Damages, 51.
Historical. — The earliest mention sicut fuit in pace domini regis, etc.,
of actions for imprisonment, as in the venit idem B. cum vi sua contra pacem,
case of assault and battery, is found etc., et duxit eum ad talem curiam,
in Bracton, and in the same connec- vel ad talem locum et ibi eum posuit in
tion with that subject. Chapter 25 of Yinculis, et in ferro, et in cippo, et in
Bracton's 3d Book (p. 145) is entitled prisona ibi eum tenuit per tantura
De appello de pace el imprisonarnento. tempus, et plagas ei fecit et mahemium,
The criminal aspect of the injury seems donee deliberatus fuit per ballium dom-
to have been of more importance than ini regis, vel donee tantum ei dedit
the civil, as was the case with assault pro redemptione sua, et quod hoc fecit
and battery. Bracton gives the form nequiter [et in felonia] offert probare
of the criminal appeal and passes over per corpus suum, vel alio modo, sicut
the civil remedy by stating that this curia domini regis consideraret." The
might be had by omitting the charge of defendant pleaded thus : " Et B. venit
felony from the former. The appeal et defendit vim et injuriam, et pacem
was as follows : " A. appellat B. quod domini regis infractam, et captionem,
HISTORICAL.
269
et imprisonamentum, et detentionem in
prisona, et redemptionem tot solidorum,
plagam et mahemiurn, et quicquid ei
imponitur, secundum quod ei imponitur
per corpus suum, vel alio modo, secun-
dum quod curia doraini regis consid-
erat." Bracton, 145 6.
Bracton says that the defendant
might be doubly guilty ; iri one way by
an unjust taking, and in another by an
unjust detention, both of which acts, it
will be noticed, are alleged and denied
in the above appeal and plea. And he
defines imprisonment to be where a
freeman has been taken and imprisoned
contra pacem, in a court or within the
liberty of any one, or has been shut up
in a house or castle, in a city, ville, or
burgh, and detained in iron, chains, or
the stocks, contra pacem, until he has
been liberated by a servant of the king,
or by the king's writ. lb.
In the Mirror the appeal is given
thus: "Darling here appealeth, Wiloc
there, for that whereas the said Dar-
ling, &c, the said Wiloc came and
arrested the said Darling, and brought
him to such a place, or at such a day,
and put him into the stocks, or in
irons, or in other pain or inclosure,
from such a day until such a day, &e. ;
or thus, contrary to sufficient bail
offered by him, in a case bailable,
detained him, or after judgment given
for his deliverance, from such a day
to such a day. This felony he did
feloniously." Ch. 2, § 18.
It was a good plea to the appeal
that the appellor was the slave and
villain of the appellee : Bracton, ut
supra ; or the defendant might say that
he did the act complained of by force
of a rightful judgment of such a judge.
But to this plea, as is above indicated,
it was a good replication that after
there came a warrant to deliver the
appellor, the appellee kept him in
prison for the time named in the ap-
peal. Mirror, c. 8, § 22.
Whether a false imprisonment could
be civilly redressed in trespass at the
time of Bracton does not appear, but
n the following reign, while the rem-
edy by appeal still remained, that by
trespass was advised as preferable.
1 Nichols's Britton, 123; note on As-
sault and Battery, ante, p. 222.
In the Register there are many writs
of trespass for assault and battery
and false imprisonment, much in the
form of the modern declaration ; the
writs running thus: "The king to
the sheriff, greeting. If A. shall make
you secure, &c, then put B. in pledges,
&c, to show why with force and arms
he took the said A. and beat, wounded,
and imprisoned, and ill-treated him,
and detained him in prison until he
made such a fine of lands, or paid such
a ransom, &c, and other enormous
things committed," &c. See Register,
Original Writs, 93, 95 6, 96, 99, 99 6,
102, 106, 108, 109; Fitzh. N. B. 86
K. The gist of the action, then as
now, was the imprisonment, and the
other acts were only aggravation.
Fitzh. N. B. 86 K.
Thus far we have no mention of
any thing but an actual imprisonment
within physical boundaries. The first
mention we find of any other kind of
imprisonment appears in a note in a
case in the Liber Ass. 22 Edw. 3,
p. 104, pi. 85, where Thorpe, C. J.,
says, that imprisonment occurs in any
case where a man is arrested by force
and against his will, though it be in a
highway or elsewhere, and not within
walls.
In Pulton De Pace Regis, 10 6
(ed. 1615), the term is thus defined-
and commented upon : '" Imprisonment
270
FALSE IMPRISONMENT.
is where a man is arrested by force and
against his will, and is restrained of
his liberty, and put in a common jail
or other jail, in a cage, or in the
stocks, or otherwise kept in the high
street or open field, if he be in restraint
and cannot go at liberty when he will,
but is bound to become obedient to
the will of the law, and is in the cus-
tody of the law. And in all the cases
aforesaid the party so restrained is
said to be a prisoner so long as he
hath not his liberty freely to go at all
times when he will, without bail, main-
prise, or other restraint. And, there-
fore, if one person do arrest, imprison,
or otherwise restrain another person of
that liberty, without sufficient and law-
ful cause, the party grieved may have
an action of false imprisonment, or an
action of trespass [i.e., it would seem,
for the assault and battery] against him
that doth so arrest or imprison him, and
recover damages against him. And the
king shall also have a fine of him, for
that his law is contemned, and his peace
broken, in that one of his subjects pre-
sumeth to imprison another without
sufficient warrant of him or his law."
A man's previous consent could not
take away his right of action for an
illegal imprisonment ; for, says Pulton,
p. 11, the liberty or imprisonment of a
man's body resteth in the censure and
judgment of the law, and not in his
own disposition. " As if B. do prom-
ise C, or be bound by obligation unto
him, that if he do not pay unto the
same C. a sum of money within six
months, then C. shall take and im-
prison him until he hath paid it ; not-
withstanding B. do not pay to C. the
money at the time assessed, C. may not
imprison B. for it, though it was his
own promise, agreement, or bond ; for
that B. is not judged by his peers, or
condemned by the law of the land,
according to the statute of Magna
Charta."
It was at this time, as it is now, a
justification that the defendant was as-
sisting an officer in making an arrest
for which the latter had a lawful pre-
cept (19 Hen. 6, pp. 43, 56) ; " for any
stranger may assist a sheriff, his bailiffs,
or any other that hath authority to
execute the king's writs or process, and
he that will not assist him, being re-
quired, shall pay a fine to the king.
And the sheriff may take as many per-
sons as he will to aid him to execute
the king's writs ; for it is in furtherance
of justice, and no breach of the peace."
Pulton, p. 12 6.
If the sheriff arrested a man under
a capias, and did not return his writ,
the party arrested could maintain an
action against the sheriff, and' recover
as for a wrongful arrest or imprison-
ment. But if the sheriff's bailiff
arrested a man, and the sheriff did not
return the writ, no action could be
maintained against the bailiff; " for the
sheriff's offence shall not prejudice
the bailiff, and the bailiff cannot com-
pel the sheriff to return the writ." lb.
A sheriff or bailiff who was known,
might make an arrest without showing
his warrant. lb. p. 13.
The law as to arrests on suspicion
was at this time much the same as it is
now. Pulton (p. 13), on the author-
ity of the cases, 7 Hen. 4, p. 35, and 27
Hen. 8, p. 23, says that in an action for a
false imprisonment it is no plea for the
defendant to say that it was told him
that the plaintiff had brought cattle to
the town, and put them in a blind
corner, and that there was great cause
of suspicion that the plaintiff had
stolen them, whereupon he did arrest
him; "for suspicion only, without
HISTORICAL.
271
a felony committed, is no cause to
arrest another." But if a felony had
been committed in the neighborhood,
and a particular person were suspected
of committing the offence, he might
be lawfully arrested ; "for," says Pul-
ton, "a justice of the peace cannot
arrest another of suspicion of felonv
unless he himself doth suspect him to
have committed felony; and so much
another may do that doth suspect
another to have committed felony, viz.,
if he himself doth suspect him to have
committed the felony." (As to the
present law upon this point, see infra.}
Accordingly, where a. felony had
been committed, the common voice and
fame of the country, pointing to a par-
ticular person as the offender, could be
set up in defence to an action by such
person. lb. ; 2 Hen. 7, p. 15 ; 5 Hen. 7,
p. 4; 11 Edw. 4, p. 4; 7 Edw. 4, p. 10;
Dyer, 236.
It was a good justification to a sher-
iff that the imprisonment had been
made under a warrant from a justice
of the jumcc, provided there had been
an indictment ; otherwise not. But
even in the latter case a bailiff was
safe in serving the warrant. " And
the same law is, if the sheriff doth
err in any warrant that he doth direct
to the bailiff of a liberty." Pulton,
p. 13 b.
The defendant was also allowed to
show that he knew that the plaintiff
had committed a felony, and had accord-
ingly arrested him and delivered him
to a con:>table to be taken to jail ; and
it was not a good reply that the latter
had set the plaintiff at liberty, or that
he had been rescued out of the posses-
sion of the constable. lb. ; 14 Edw.
4, p. 17.
A sheriff could not arrest by virtue
of the then common writ of justicies,
since that writ simply gave him juris-
diction to try causes. Nor could the
sheriff make a valid capias while sit-
ting under a writ of justicies ; the writ
of arrest must have come from a court
of record. lb. p. 14 ; 2 Hen. 4, p. 24.
" By which foresaid cases, and many
more," says Pulton (14 6), "it appear-'
eth that imprisonment is lawful, and
sufficiently authorized by the common
laws and statutes of this realm in di-
vers respects, and for many crimes,
and there is by it no breach of the
peace, nor offence to the law when it
is inflicted by the warrant of the law.
. . . But the imprisonment which tend-
eth to the breach of the peace and the
offence of the law is when one person
or more, upon his or their own author-
ity, either in revenge of some supposed
wrong received, or in hope of a private
gain expected, or for some other cause,
will of his or their own authority im-
prison or arrest another ; for the re-
dress thereof the party aggrieved shall
have an action of false imprisonment,
or an action of trespass, and recover
his damages. And the same offender
which before did wrongfully imprison
another shall then, upon his conviction
by verdict, or his own confession, be
himself lawfully imprisoned until he
hath paid to the king a fine."
In the same connection it is stated
that the law notes four classes of per-
sons as " worthy for their offences to be
imprisoned." The first were those who
committed acts that were "wrongful,
injurious, and prohibited by the com-
mon laws or statutes of the realm."
The second were those who attempted
and prosecuted unjust and wrongful
actions to molest, trouble, or charge
others. The third were those who,
being pleaded upon just and good
causes, pleaded "false or dilatory
272
FALSE IMPRISONMENT.
pleas, in retardation of justice and
hindrance of the due and ordinary
course of the law." The fourth were
those "who upon stubbornness, con-
tumacy, or wilfulness, refuse to do
that which they know the law doth
require at their hands, and may enforce
them unto." Among cases of the first
class is mentioned the case of a man
entering by disseizin contrary to his
lease. 27 Hen. 6, p. 8. Of those of the
second is mentioned the case of one
who brought an appeal against another
which was abated by the nonsuit of
the plaintiff; as where a woman brought
an appeal against a man of the death
of her husband, and her said hus-
band was brought into court, and she
was examined if that were her hus-
band, and she said yes, but she sup-
posed that he was dead, whereupon
she was imprisoned. 8 Hen. 4, p. 18.
Of cases of the third class an example
is given of a man denying his own
deed, or pleading a false deed made
to himself, or a deed that was ' ' rased,"
interlined, or was otherwise suspicious.
So of a false plea of joint tenancy, or
of failing to show a record pleaded.
Of the fourth class was the case of a
tenant owing homage or fealty, and
refusing to do the same or to plead in
bar thereof; and so of one who refused
to perform the ordinary's sentence.
From all of this it appears that
though the law was in some respects
peculiarly jealous of the liberty of its
free subjects, it also imposed upon
them many duties and restraints of a
most oppressive character, the infraction
of which was good ground for imprison-
ment. But it is to be observed that in
the above cases the defendant in the
action for imprisonment must have jus-
tified as an officer of the law (or an
assistant of one), acting under its pre-
cept. As appears from Pulton, in the
quotation mpra, p. 271, it was not law-
ful for the injured party to take the law
into his own hands and seek amends
by imposing restraint upon the liberty
of the offender. We now turn to the
modern law.
The Arrest. — False imprisonment is
a trespass committed by one man against
the person of another, by unlawfully ar-
resting him, and detaining him without
legal authority. Every confinement of
the person is an imprisonment, whether
it be in a common prison, or a private
house, or by forcibly detaining one in
the public streets. 3 Black. Com. 127 ;
Addison, Torts, 575 (4th ed.) ; Buller,
N. P. 22.
Actual contact is not necessary to
constitute an imprisonment. Brushaben
v. Hegeman, 22 Mich. 266 ; Grainger v.
Hill, ante, p.'18-t. Any general restraint
put upon the freedom of another by show
of authority or by force, is sufficient ; so
that, if a person be restrained from leav-
ing a room, or from going out of a house,
without the presence of a constable, this
is an imprisonment. lb. ; Warner v. Rid-
diford, 4 Com. B. N. s. 180.
It is difficult to ascertain just where
the line lies. In Warner v. Kiddiford,
just cited, an instruction to the jury to
this effect was held substantially cor-
rect : To constitute an imprisonment,
it was not necessary that the person
should be locked up within four walls ;
if he was restrained in his freedom of
action by another, that was an imprison-
ment. The way in which the plaintiff
had been constrained in his own house,
and the restraint put upon his person
by refusing him permission to leave the
room and go upstairs in his own house,
was in itself an imprisonment, inde-
pendent of his being conveyed before
a magistrate.
THE ARREST.
273
In this case the doctrine of Arrow- given, the defendants, fearing for the
smith v. Le Mesurier, -2 Bos. & P. X. R. sufficiency of the security, resolved to
111, is denied. It appeared in that case possess themselves of the ship's regis-
that a warrant having been granted by ter ; and for this purpose, after threat-
a magistrate for apprehending the plain- ening to arrest the plaintiff unless be
tiff upon a charge of conspiracy to sue repaid the sum loaned, made an affida-
out a fraudulent commission of bank- vit of debt, sued out a capias, and sent
rupt, a constable went with the warrant officers with the writ to the plaintiff,
to the plaintiff's house and showed it to who was lying ill in bed from the effects
him; that after conversing some time of a wound. A surgeon present seeing
with the constable, the plaintiff desired that he could not be removed, one of the
to have a copy of the warrant, which defendants said to the officers, " Don't
the constable permitted him to take, take him away; leave the young man
after which the plaintiff attended the with him." The officers then told the
constable to the magistrate, and, after plaintiff that they had not come to take
being examined upon the subject of the him, but to get the ship's register ; but
charge, was dismissed, only about six if he failed to deliver that, or to find
hours having elapsed since the warrant bail, they must either take him or leave
was first shown to him, and the consta- one of the officers with him. The plain-
ble not having touched him. A verdict tiff, being unable to procure bail, and
having been found for the defendant, being much alarmed, gave up the reg-
Manstield, C. J., in discharging a. rule ister; and the court held that this
for a new trial, said: " I can suppose amounted to an arrest. Tindal, C. J.,
that an arrest may take place without an said : "Without actual contact, the offi-
actual touch, as if a man be locked up cer's insisting that the plaintiff should
in a room; but here the plaintiff went produce the register, or find bail, shows
voluntarily before the magistrate. The that the plaintiff was in a situation in
warrant was made no other use of than which bail was to be procured ; that was
as a summons. The constable brought a sufficient restraint upon the plaintiff's
a warrant, but did not arrest the plain- person to amount to an arrest. The
tiff. How can a man's walking freely to authority in Buller's Xi*i Prius, p. 62,
a magistrate prove him to be arrested ? " goes the full length. ' If the bailiff who
Mr. Justice Willes. in the case above has a process against one says to him,
referred to, Warner v. Riddiford, says when he is on horseback or in a coach,
that the law was stated more accurately " You are my prisoner; I have a writ
bv the court in Grainger r. Hill, i against you," upon which he submits,
Binor. X. C. 212. In this case the facts turns back, or goes with him, though
in brief, as stated by Mr. Justice the bailiff never touched him, yet it is
Willes, were, that the plaintiff had an arrest, because he submitted to the
mortgaged to the defendants a vessel, process.' " Mr. Justice Willes then
of which he was owner and captain. The proceeds to say of the case before the
money was to be repaid within a year; court, " In the present case, if the door
and the plaintiff in the mean time was of the room had been locked, nobody
to retain the register of the vessel, in could doubt that that would have been
order to pursue his voyages. About an imprisonment. The defendant com-
two months after the mortgage was ing to the house with two officers, the
18
274
FALSE IMPRISONMENT.
plaintiff being there, and submitting to
their control, it was the same as if he
had actually been locked up in the
room. That being the proper view of
the facts, the judge observes that ' the
way in which the plaintiff had been con-
strained in his own house, and the re-
straint put upon his person by refusing
him permission to leave the room and
go upstairs in his own house, was in
itself an imprisonment, independent of
his being conveyed before a magistrate.'
I think the judge must be considered as
having here adopted the view of the case
taken by the defendant's advocate ; and
though it would have been more correct
to have told the jury that, if the sub-
stance of the transaction was that the
plaintiff was restrained from leaving the
room without permission, or without the
attendance of the constable, it amounted
to an imprisonment, yet, giving a fair
and reasonable construction to the sum-
ming up, it seems to me that it is not
open to exception. The judge does not
profess to be laying down a principle,
but rather to be discussing and explain-
ing the law with reference to the facts
of the case."
Upon the same point, Mr. Justice
Baldwin says : " The submission to the
threatened and reasonably to be appre-
hended force is no consent to the ar-
rest, detention, or restraint of the
freedom of his motions ; he is as much
imprisoned as if his person was touched,
or force actually used. The imprison-
ment continues until he is left at his own
will to go where he pleases, and must
be considered as involuntary till all
efforts at coercion or restraint cease,
and the means of effecting it are re-
moved." Johnson v. Tompkins, Baldw.
601. See also Bird v. Jones, 7 Q. B.
742 ; Wood v. Lane, 6 Car. & P. 774.
But the plaintiff, it seems, must have
felt under a complete restraint of his
freedom of action. In Bird v. Jones, 7
Q. B. 742, it appeared that part of a
public highway was inclosed by a tem-
porary fence, and appropriated for spec-
tators of a boat-race, paying a price for
their seats. The plaintiff was desirous
of entering this part, and was opposed
by the defendant ; but after a struggle,
during which no momentary detention
of his person took place, he succeeded
in climbing over the inclosure. Two
policemen were then stationed by the
defendant to prevent, and they did pre-
vent, him from passing in the direction
in which he declared his wish to go ; but
he was allowed to remain unmolested
where he was, and was at liberty to go,
and was so told, in the only other direc-
tion by which he could pass. This he re-
fused for some time to do, and during
that time remained where he had thus
placed himself. No actual force or re-
straint on his person was used, unless the
obstruction mentioned amounted to that.
The court, Lord Denman, C. J., dis-
senting, held that there was no impris-
onment. The majority of the court
thought that unless the restraint was
total, so that the plaintiff could not
escape without a breach of the re-
straint, there was no imprisonment.
Mr. Justice Coleridge said that the
idea implied boundary. As to the
statement in Comyns's Digest, Impris-
onment, G, that " every restraint of
the liberty of a free man will be im-
prisonment," he said that the object of
the authorities upon which the state-
ment was based (2 Inst. 482, and Hobert
and Stroud's Case, Croke Car. 209) was
to point out that a prison was not neces-
sarily what is commonly so called, — a
place locally denned and appointed for
the reception of prisoners. Lord Den-
man, however, thought that the fact that
ARRESTS WITH WARRANT.
275
the plaintiff Lad liberty to go one way
was not material. " As long," said he,
" as I am prevented from doing what I
have a right to do, of what importance
is it that I am permitted to do some-
thing else? ... If I am locked in a
room, am I not imprisoned because I
might effect my escape through a win-
dow?" But the answer to this last
query is, that such an escape would be
a prison-breach, — that is, a breach of
the restraint ; while for the plaintiff to
have departed by the way open to him
would have been no breach. It would
not have been an escape at all, for that
implies hindrance.
The question seems to come to this,
whether it is actionable to place a par-
tial restraint upon the liberty of an-
other; and it is hardly satisfactory to
say that the notion of imprisonment
itself implies a circumscribing restraint.
The designation of the action was doubt-
less given from the fact that it was at
first brought only for wrongful confine-
ment within walls. But it is difficult to
see how an action can be sustained for
any thing less than a substantially total
restraint of freedom. It cannot be be-
cause the plaintiff is put in terror when
he knows that no resistance will be
offered to his proceeding in some way ;
and if it is because his freedom of mo-
tion is sacred, the answer is that in so-
ciety no man can enjoy perfect freedom
of action. The movements of some are
constantly being restrained against their
will an3 to their discomfort, by the nec-
essary movements of others; and though
the restraint be purposely imposed, it
cannot be ground for an action if the
party complained of had a right to be
where he was. If, for instance, a per-
son should see one against whom he
owed a grudge coming in the highway
in a carriage, and between them there
was a mud-hole or dangerous place on
the right-hand side (or in England on
the left-hand side) of the approaching
carriage, the former might drive his
horse so as to cause a meeting at the
spot, and compel the latter to turn aside
at the troublesome place, however dis-
agreeable and unnecessary it might have
been.
It is not uncommon to join counts
for malicious prosecution with those of
this action ; but there is an essential
difference between the two injuries. In
support of the counts for malicious
prosecution the plaintiff must prove that
the arrest was made maliciously, with-
out reasonable and probable cause, and
that the prosecution has terminated,
and in his favor. But, as to the counts
for false imprisonment, it is enough to
allege and prove the assault and the
imprisonment. The plaintiff has then
made out a, prima facie case, and it is
for the defendant to excuse himself.
We have stated the law as to assaults
and imprisonments ; it remains to pre-
sent the defendant's justification ; and
this point will occupy the rest of the
present note.
Arrests with Warrant. — -It is, in
general, a justification in this action
that the imprisonment complained of
was made bona fide under a legal war-
rant, upon the ground that the arrest
was made under compulsion of law. In
England this justification of the officer
is made under the statute of 24 Geo. 2,
c. 44. By the common law, an officer
who executed the warrant of a magis-
trate was, it is said, answerable for the
consequences in all cases, if the magis-
trate acted without authority; and one
object of the legislature was to relieve
him from that inconvenience, and to
provide that, except in certain cases to
be mentioned hereafter, if he acted
276
FALSE IMPRISONMENT.
strictly in obedience to the warrant of
the magistrate, he should be protected.
See Parton v. Williams, 3 Bam. & Aid.
330. This statute, which was passed
before the American Revolution, is, per-
haps, in force in this country ; at any
rate, the cases founded upon it have
been generally followed here. It is,
indeed, worthy of note that the statute,
as construed by the courts, only enunci-
ated, in this particular, the doctrines of
the celebrated case of the Marshalsea,
10 Coke, 68 6.
The officer, in executing his writ,
must arrest the person named in the
warrant ; and if he do not, though the
arrest of the plaintiff be a pure mistake,
it is a case of false imprisonment. If,
however, the person arrested caused
the mistake by a false representation
that he was the party intended, he can-
not bring an action for false imprison-
ment, unless the officer detained him
unnecessarily after the discovery that
he had arrested the wrong person.
Dunston v. Paterson, 2 Com. B. N. s.
495, was a case of this kind. If, indeed,
the plaintiff has made contradictory
statements, he may be detained long
enough to ascertain the truth of the
matter ; and this on the ground that
he has voluntarily misled, the officer
in making the arrest. Volenti nonfit
injuria. lb. But the detention must
be a reasonable one ; for the general
rule is that a warrant will not justify a
subsequent detention. Doyle v. Rus-
sell, 30 Barb. 300. If the officer have
reason for holding the prisoner after
the original warrant has expired, he
must procure a new writ. lb.
And the officer's writ must so de-
scribe the person to be arrested that he
may know whom to arrest, and that the
party restrained of his freedom may
know whether to resist or submit ; and
it is no defence, in such case, that the
person intended was arrested: Miller
v. Foley, 28 Barb. 630 ; Scott v. Ely,
4 Wend. 555 ; unless he was known as
well by the name given in the writ as
by his real name : Griswold v. Sedg-
wick, 1 Wend. 126.
An officer may vitiate the protection
of his warrant by oppression and cru-
elty, and render himself liable for false
imprisonment. Doyle v. Russell, 30
Barb. 300. As, where he unites with
the party who caused his arrest in ex-
torting money from the plaintiff, by
working upon his fears. Holley v. Mix,
3 Wend. 350.
A question has been raised of the
right of the officer, in a criminal case,
to retake, upon the original warrant, a
prisoner whom he has allowed to es-
cape. In civil cases, the rule is settled
that he may thus retake the party if ar-
rested upon mesne process, but not
where he was arrested in execution.
Atkinson v. Matteson, 2 T. R. 172;
Arnold v. Steeves, 10 Wend. 514.
The reason of the difference is that, in
the latter case, if the prisoner escape
by the voluntary permission of the of-
ficer, the plaintiff's debt is paid, and-
the sheriff is chargeable in his stead;
so that, if he retake the party on the
old writ, he is liable for false imprison-
ment. But, in the former case, the
bailiff may suffer the prisoner to go at
large, provided he has him at the return
of the writ, for this is the only object
of the writ. Atkinson v. Matteson,
supra.
In criminal cases there has been some
conflict as to the right to retake the
prisoner without new process. In Clark
v. Cleveland, 6 Hill, 344, it was held
that the prisoner might be so retaken.
In this case the prisoner was let to
bail in the wrong county, and was re-
ARRESTS WITH WARRANT.
277
leased from custody ; and, in case for
malicious prosecution, it was held that
the plaintiff was still liable to arrest
under the original warrant, and that,
therefore, the proceedings not being
terminated, the action would not lie.
In a later decision this case was de-
nied to be law, and said to be unsup-
ported by the authorities cited for it.
Doyle v. Russell, 30 Barb. 300, Hoge-
boom, J., dissenting. This was an
action for false imprisonment, with
counts for malicious prosecution.
Gould, J., in delivering the judgment
of the court, referred to Hawkins, who
says: " If a constable, after he hath
arrested the party by force of any war-
rant of a justice of the peace, suffer him
to go at large, upon his promise to
come again at such a time and find
sureties, he cannot afterwards arrest
him by force of the same warrant.
However, if the party return, and put
himself again under the custody of the
constable, the constable may lawfully
detain him." And this voluntary re-
turn was said to be the distinction upon
which the cases cited in Clark c. Cleve-
land proceeded. The statement of the
reporter in Dickinson v. Brown, 1 Esp.
218, was referred to, that " it appeared
to be rather on the ground of the plain-
tiff's having consented that the warrant
should remain in force until the second
surety to the parish was perfected than
as holding the second arrest under the
warrant to be legal."
Where an arrest has been made on a
valid writ, the sheriff may detain the
person arrested on any number of valid
writs which he has at the time against
him, or which afterwards reach him ;
but if the sheriff make the arrest on
a forged or a feigned writ, or a writ
which has never been sealed, or a writ
otherwise invalid, he has no right to
detain the party on any other valid
writs which may at the time be in his
hands, for the sheriff cannot avail him-
self of a custody brought about by
illegal means to execute the other writs.
Thus, if an arrest be made on Sunday,
or in a way not authorized by law, the
officer cannot afterwards make that
valid by detaining the person under j.
legal writ, but must first give him an
opportunity to go at large, and then
execute the legal writ. And, in gene-
ral, if the first arrest be a false im-
prisonment, no subsequent conduct of
the officer can make it otherwise, or
legalize the continuance of the im-
prisonment. Addison, Torts, 658
(4th ed.) ; Humphrey v. Mitchell, 3
Scott, 61 ; Hooper v. Lane, 6 H. L.
Cas. 443, 497 ; Burratt v. Price, 9
Bing. 566; Pearson v. Yewens, 5 Bing.
N. C. 489 ; Robinson v. Yewens, 5
Mees. & W. 151; Collins u. Yewens,
10 Ad. & E. 570.
As to the much-discussed subject of
the distinction between void and irreg-
ular or voidable process, it is commonly
said that an arrest under void process
is no justification to the officer ; while
an arrest under irregular, as well as
under regular, process excuses him.
And there is little or no conflict thus
far; the difficulty, as is shown in
Savacool v. Boughton, has been in ap-
plying or defining the terms "void"
and " irregular."
When it is said that the officer is
liable if the process under which the
arrest was made is void, we understand
the meaning to be that he is liable if his
writ show upon its face that it is void.
This may appear in either of three
ways : 1. It may appear by defective
language ; as in Carratt v. Morley, 1
Q. B. 18. But there must, of course,
be a material defect to vitiate the pro-
278
FALSE IMPRISONMENT.
cess. In such cases the process may
have issued in a proceeding within the
jurisdiction of the court. 2. It may
appear, in showing that the whole pro-
ceeding was beyond the jurisdiction of
the court ; as in Pearce v. Atwood, 13
Mass. 324, and in Stephens v. Wilkins,
6 Barr, 260. The officer is presumed
to know, and is bound to ascertain, the
extent of the jurisdiction of the court
for which he acts ; and if his writ issue
from a proceeding beyond the general
jurisdiction of the court, he acts at his
peril in executing it. 3. It may appear
in showing that the corrt had no power
to issue a warrant in such a cause ; as in
Shergold v. Holloway, 2 Strange, 1002,
where a justice issued a warrant on a
complaint for not paying wages, when
he should have issued a summons. In
all of these cases the sheriff is liable at
common law if he execute the writ.
When it is said that the officer is
excused if the process is merely irreg-
ular or voidable, we understand the
meaning to be, not an irregularity of
form, since if there were a material de-
fect of this kind the process would, as
we have seen, be void, and any thing
less than that would not affect it ; the
meaning is that the writ has been
granted in an irregular manner, in a
proceeding from which it might itself
have been regularly issued ; as in Hill
v. Bateman, 2 Strange, 710. Cases of
this kind are always within the general
jurisdiction of the court ; and the officer
is not liable, since, though bound to
know the extent of jurisdiction, he is
not presumed to know the nature of all
the proceedings in a cause.
The principal case, Savacool v.
Boughton, has been often followed.
Lewis v. Palmer, 6 Wend. 367 ; Shel-
don v. Van Buskirk, 2 Comst. 473 ;
Chegaray o. Jenkins, 5 N. Y. 376;
Kerr v. Mount, 28 N. Y. 659 ; Porter v.
Purdy, 29 N. Y. 106 ; Paton v. Wester-
velt, 2Duer, 362, 382.
The case of The Marshalsea, 10
Coke, 68 6, a venerable authority, sup-
ports most of the points above stated.
It was there held that the court
of the Marshalsea had no jurisdiction
in assumpsit where neither the plaintiff
nor the defendant was of the king's
household ; and that, in such case, if
judgment had been obtained against the
principal, and one of the bail was ar-
rested by process from the Marshalsea,
such bail might maintain an action for
false imprisonment against the party
who sued, the marshal who directed the
execution of the process, and the offi-
cer who executed the same. One of
the resolutions was, that when a court
has jurisdiction of the cause, and pro-
ceeds inverso ordine or erroneously, no
action lies against the party who sues,
or the officer or minister of the court
who executes the process. But where
the court has not jurisdiction of the
cause, then the whole proceeding is
coram non judice, and actions will lie
against them without any regard to the
precept or process. And the explana-
tion given of this was that when the
magistrate, having no jurisdiction, is-
sued process, he was not a judge ; and
"it is not of necessity to obey him who
is not a judge of the cause, no more
than it is a mere stranger, for the rule
is judicium a non suo judice datum nul-
lius est momenti. . . . As if the Court
of Common Pleas holds plea in an ap-
peal of death, robbery, or any other
appeal, and the defendant is attainted,
it is coram non judice, quod omnes con-
cesserunt. But if the Court of Common
Pleas in a plea of debt awards a capias
against a duke, earl, &c, which, by the
law, doth not lie against them, and that
ARRESTS WITH WARRANT.
279
appears in the writ itself; and if the
sheriff arrests them by force of the
capias, although the writ be against
law, notwithstanding, inasmuch as the
court has jurisdiction of the cause, the
sheriff is excused."
The same doctrines are held in the
modern English cases. In Carratt v.
Morley, 1 Q. B. 18, the warrant did not
truly describe the court from which it
issued, nor did it follow the form pre-
scribed by the act of parliament ; and
the officer executing it was, therefore,
held liable. "As the warrant here,"
said the court, " was such as no law
authorized, it can be considered as no
more than waste paper, and can afford
no justification."
In such a case the clerk who executed
the writ would also be liable. lb. ; An-
drews v. Marris, 1 Q. B. 3. And the
clerk is liable though the warrant be
regular, so as to justify the officer, if he
(the clerk) exceeded his power in exe-
cuting it. Andrews <.-, Marris. supra.
The distinction upon this point is, that
the officer is bound only to show his
writ, while all others concerned in its
procurement are bound to show the
judgment as well as the writ. lb.
In Andrews v. Marris, 1 Q. B. 3,
an action for false imprisonment was
brought against the clerk of an inferior
court and against a Serjeant, whose duty
it was to execute the precepts of the
court. The clerk in executing the writ
in question had exceeded his power ;
and it was contended that as in such
case the writ was the clerk's only, and
not that of the court, the rule excusing
the officer did not apply. But it was
held otherwise. Morse v. James, Willes,
122, was explained as being a case where
the officer had joined in pleading with
the party who obtained the writ, and had
with him set out the whole proceedings;
so that he was bound by the defects ap-
parent on the plea. The principle was,
the court observed, that where an offi-
cer, for whom the writ or warrant alone
would have been a justification, joins in
pleading with the party for whom it
would not, he foregoes the benefit of the
warrant. Philips v. Biron, 1 Strange,
509 ; Smith v. Bouchier, 2 Strange, 993.
In Tarlton v. Fisher, 2 Doug. 671,
the plaintiff was privileged from arrest ;
and yet the case being within the general
jurisdiction of the court, the officer was
held excused by his process. And this
would probably be true though the offi-
cer knew that the plaintiff was privi-
leged. Chase v. Fish, 16 Maine, 132.
See Stokes v. White, 1 Cromp., M. &
R. 223; Cameron v. Lightfoot, 2 W.
Black. 1190 ; Tarlton v. Fisher, 2 Doug.
671; Sewell c. Lane, 1 Smith (Ind.),
167. See also Deyo i>. Van Valken-
burgh, 5 Hill, 242 ; Farmers' Bank v.
McKmney, 7 Watts, 214.
Both the clerk and the officer will be
protected where the writ, disclosing no
fatal defect on its face, is made out and
executed regularly ; and if the magis-
trate has exceeded his jurisdiction, he
alone will be liable. Carratt v. Morley,
1 Q. B. 18; Lewis v. Palmer, 6 Wend.
367. But the want of jurisdiction must
appear upon the face of the record.
Crepps v. Durden, 2 Cowp. 640; Gray
v. Cookson, 16 East, 13 ; Brittain v.
Kinnaird, 1 Brod. & B. 432. See also
Basten v. Carew, 3 Barn. & C. 652 ;
Pike v. Carter, 3 Bing. 78 ; Wickes v.
Clutterbuck, 2 Bing. 483.
If the warrant be set aside, the at-
torney who procured it, and his client
who authorized him to procure it, will
be liable for false imprisonment, as was
held in the principal case, Barker v.
Braham. See also Parsons v. Lloyd, 2
W. Black. 844 ; Chapman v. Dyett, 11
280
FALSE IMPRISONMENT.
Wend. 31 ; Deyo v. Van Valkenburgh,
5 Hill, 242 ; Collett v. Foster, 2 Hurl.
6 N. 356. But the sheriff is still pro-
tected if the writ was merely irregu-
lar, lb.
In civil cases it would seem that this
liability of the client could not arise
before the writ was set aside, unless it
was absolutely void, so that its exist-
ence as a writ would not be recognized;
for while the writ is in force, to sue for
false imprisonment, if judgment had
been entered, would be to discredit a ju-
dicial proceeding in a collateral action ;
and if the case had not terminated, it
could not be known that it would not
terminate in favor of the plaintiff in that
action. The writ must therefore be set
aside before suit is brought for false im-
prisonment. But where the judgment
has ceased to exist, as by payment or
discharge, it is not necessary to have
the writ set aside. Deyo v. Van Val-
kenburgh, 5 Hill, 242.
Quaere as to the rule in the case of an
arrest for crime ? See Crepps v. Dur-
den, 2 Cowp. 640, where an action was
sustained against a magistrate, after an
illegal conviction, before the same was
quashed. See also Gray v. Cookson,
16 East, 13.
Upon this point of the liability of the
client it is difficult to understand the
case of Carratt v. Morley, above cited,
except upon the hypothesis that it was
supposed to be a necessary preliminary
step to this action that even a void war-
rant should be set aside ; which is too
improbable. A void judgment even may
be collaterally impeached ; a fortiori, a
void warrant. In the case referred to,
it was held that the party who insti-
tuted the suit in which the void warrant
was issued was not liable to this action ;
and for this Cohen v. Morgan, 6 Dowl.
& K. 8, was cited. But that case was
an action for an arrest in a criminal pro-
ceeding ; while in Carratt v. Morley the
arrest was made in a civil action. There
is a wide difference, it is submitted, be-
tween such cases. In a criminal case
the party who prefers the charge passes
out of sight upon the issuance of the
warrant. He relates the facts and cir-
cumstances upon which he bases his
charge, and the magistrate then takes
the matter out of his hands and gives it
to the State as plaintiff. In a civil case
the party instituting the suit manages it
throughout, through his attorney, who
is presumed to understand the law, and
for whom the plaintiff therefore is re-
sponsible.
In criminal cases the party who pre-
fers the charge is not liable unless it is
made maliciously (though it is other-
wise of the officer who makes the ar-
rest) ; for the law encourages the
exposure of crime. But if a person
procure the arrest of another in a civil
cause, a proceeding for his own benefit,
and not for that of the public, and which
he himself conducts, he acts at his peril
if the process be irregular. Carratt v.
Morley, supra, and Johnson v. Maxon,
23 Mich. 129, are in conflict with the
principal case, Barker v. Braham, and
with the more recent decision in Collett
v. Foster, 2 Hurl. & N. 356, in which
the principal case was followed. See
also Painter v. Liverpool Gaslight Co.,
3 Ad. & E. 433, where in an action
against the defendants for a false arrest
in an action of trover the plaintiff had
judgment. In answer to the protection
of the warrant which the defendants
claimed, Littledale, J., said: " But this
is an action against the company them-
selves ; they are the persons who put
Parkinson, the collector, in motion, and
cause him to demand the rent and seize
the goods. It is not he that justifies,
ARRESTS WITHOUT WARRANT.
281
but they who allege that he acted under
their authority ; they adopt the warrant,
and they identity themselves with him
throughout the transaction. It was
their duty, then, to see that the war-
rant was a proper one ; and as it is not
so, for want of a summons, the judg-
ment must be against them."
As to the rule in criminal cases, see
"Von Latham v. Libby, 38 Barb. 339 ;
Brown t . Chadsey, 39 Barb. 253 ; Peck-
ham u. Tomlinson, 6 Barb. 253 ; Coupal
v. Ward, 106 Mass. 289; Josselyn v.
McAllister, 22 Mich. 300.
As to the rule in civil cases, see
Bonesteel v. Bonesteel, 28 Wis. 245 ;
s. c. 30 Wis. 511.
But these distinctions have some-
times been overlooked, as in Bauer v.
Clay, 8 Kans. 580, and Letzler v. Hunt-
ington, 24 La. An. 330.
If, however, the process be set aside
for error in granting it, it is otherwise ;
and the action for false imprisonment is
not maintainable. The Marshalsea, 10
Coke, 68 6 ; Williams v. Smith, 14 Com.
B. X. s. 596 ; Cooper v. Harding, 7 Q. B.
928; Smith v. Sydney, Law R.5Q.B.
203 ; Simpson v. Hornbeck, 3 Lans. 53.
See Gillett v. Thiebold, 9 Kans. 427.
"If the 'attachment [for contempt] in
this case," said Williams, J. , in Williams
v. Smith, supra, "had been set aside on
the ground of irregularity, or that it was
issued in bad faith, or in any other way
equivalent to irregularity, I should have
thought that both the attorney and the
client would be liable for any imprison-
ment which took place under it. But
upon the facts which appeared at the
trial, it is not true that the attachment
was set aside for irregularity, or on the
ground that it was issued in bad faith.
The affidavit upon which it issued was
sworn by Smith in the ordinary course
of justice; and the Master of the Rolls
[before whom the proceedings for con-
tempt had taken place] was satisfied that
it was a proper one upon which to found
an attachment. It was not suggested,
when the application was made to that
learned judge to set aside the attach-
ment, that there was any fault in the
affidavit ; but merely that the issuing of
the attachment was not warranted by
the circumstances. The Master of the
Rolls, however, came to the conclusion
that the facts did warrant the attach-
ment. That opinion of the Master of
the Rolls was pronounced by the Lords
Justices to be erroneous. That brings
the case within that class of cases where
it has been held that the party causing
process to be issued is not responsible
for any thing that is done under it, where
the process is afterwards set aside, not
for irregularity, but for error."
This judgment of Mr. Justice Wil-
liams was pronounced to be a correct
exposition of the law in a very recent
case before the Queen's Bench. Smith
v. Sydney, Law R. 5 Q. B. 203, 206.
The question in that case was whether
the defendant had acted in bad faith,
the plaintiff contending that the judg-
ment upon which the arrest had been
made had been set aside for irregular-
ity. But this imputation was negatived,
the court held, by the fact that the judge
had set aside the judgment upon pay-
ment of costs by the present plaintiff;
showing that it had been done as a favor.
And the court took occasion again to
enforce the distinction between the case
of an arrest under a judgment set aside
for error, and a judgment set aside for
irregularity. The former was the act
of the court, for which a party could not
be liable ; the latter was the act of the
party himself.
Arrests without Warrant. — At com-
mon law no valid arrest can be made
282
FALSE IMPRISONMENT.
for a misdemeanor, either by an officer
or a private person, except on the spot.
An arrest on suspicion renders the
party liable for false imprisonment.
Bowditch v. Balchin, 5 Ex. 378 ; Grif-
fin v. Coleman, 4 Hurl. & N. 265, 270.
See Rohan v. Sawin, 5 Cush. 281,
where the court held that the act for
which the arrest had been made was a
felony, recognizing the rule that other-
wise the officer's act could not be jus-
tified.
So, too, the arrest must be made
before the affray has ended. InBaynes
u. Brewster, 2 Q. B. 375, the defend-
ant pleaded in justification to this
action that the plaintiff had been dis-
turbing his premises in the night-time,
and that he had refused, on request,
to desist ; that the defendant then sent
for a constable for the purpose of tak-
ing the plaintiff into custody, and
thereby preventing him from making
further disturbance; that the plaintiff
thereupon ran away and was pursued
by the defendant and overtaken near
by; and that, for the purpose of pre-
gervin g the peace and preventing further
disturbance, he then gave him into the
hands of the constable. It was held
that the plea disclosed no defence ;
since it did not appear that the con-
stable had a warrant, or that the breach
of the peace had been seen by him, or
was likely to be continued or repeated.
" No averment," said Lord Denman,
" is made as to the plaintiff's inten-
tion at the time when he was overtaken ;
but it is alleged that defendant, in
order to preserve the peace and pre-
vent the plaintiff from continuing to
disturb the tranquillity of defendant's
dwelling-house, and making the noise
there during the whole night, gave
charge of him to the constable. That
is, after the plaintiff has gone from the
dwelling-house, the defendant tells the
constable to prevent the plaintiff from
doing what it was impossible he should
do in the place where he then was."
Williams, J. : "No principle is more
generally assumed than that a Warrant
is necessary to entitle him [a consta-
ble] to interfere after the affray is
over. It is otherwise where the facts
show that the affray is practically going
on. That is on account of the obvious
distinction as to public danger between
a riot still raging and one no longer
existing. The language of the plea
here falls infinitely short of showing
those facts upon the supposition of
which alone the argument for the de-
fendant is sustainable. The disturb-
ance appears to have been discon-
tinued before any act was done of
which the plaintiff complains. After
that, according to the plea, with a view
of preventing a renewal of the dis-
turbance, the defendant followed the
plaintiff and gave him into custody.
This we cannot hold to be a good de-
fence, unless we are prepared to main-
tain that, wherever a breach of the
peace has taken place, the party who
has committed it may, no matter at
what distance of time and place, be
apprehended without a warrant."
The rule in regard to felonies, as
the principal case, Hogg v. Ward,
decides, is different ; and an officer is
justified in taking into custody, without
a warrant, one whom he has reasonable
ground to suppose guilty of having
committed a felony, though in fact none
has been committed. Bohan v. Sawin,
5 Cush. 281; Beckwith v. Philby, 6
Barn. & C. 635 ; Perryman v. Lister,
Law R. 3 Ex. 197.
In this particular, that reasonable
and probable cause for the arrest is a
good defence in felonies, the action
ARRESTS WITHOUT WARRANT.
283
for false imprisonment bears some re-
semblance to that for malicious pros-
ecution; but the resemblance is
superficial. Prosecutions are presumed
to have been properly instituted ; and
hence in an action for malicious pros-
ecution the plaintiff, in order to over-
come this presumption, must allege and
prove the want of probable cause for
the proceeding. In an action for false
imprisonment, however, it is not nec-
essary to allege or prove that the act
was done without probable cause (un-
less, perhaps, the declaration allege the
imprisonment to have been made in
the course of some judicial proceed-
ing) ; for the act of itself is wrongful,
and may not have been committed
under legal authority. The presump-
tion, therefore, which arises in the case
of an action for malicious prosecution
cannot exist ; and the defendant, to
succeed, must show that he acted upon
reasonable and probable cause, where
that is a good defence.
In the action for false imprisonment
there has been some doubt whether the
question of probable cause be one of
law or of fact. It has been tacitly
assumed in some cases that the question
is for the jury; in others, that it is for
the court. Rohan v. Sawin, 5 Cush.
281, a leading American case, belongs
to the first class ; and so do Beckwith
v. Philby, 6 Barn. & C. 635, and Brock-
way v. Crawford, 3 Jones, 433. To the
other class belongs perhaps Perryman
v. Lister, Law R. 3 Ex. 197. See also
the principal case, Hogg v. Ward, where
the point was referred to, but not con-
sidered.
The point has, however, been ex-
pressly decided in several English cases,
in accordance with the rule in actions
for malicious prosecution, — that the
question, where the facts are found, is
one of law; and if the facts are not
found, the jury are to be instructed that
if they find such and such facts, probable
cause is made out. See Hill v. Yates,
2 B. Moore, 80 ; S. c. 8 Taunt. 182 ;
Davis v. Russell, 5 Bing. 354 ; 8. c. 2
Moore & P. 590 ; Perryman v. Lister,
Law R, 3 Ex. 197.
In Swinton «. Molloy, 1 T. R. 537,
note, an action of false imprisonment
was brought by the plaintiff as purser
of a man-of-war against the defendant,
who was his captain; and the latter
pleaded a justification. But it appeared
in evidence that the defendant had im-
prisoned the plaintiff for three days,
without inquiring into the matter ; and
Lord Mansfield therefore ruled that
such conduct on the part of the de-
fendant did not appear to have been a
proper discharge of his duty, and that
the justification failed.
In Hill v. Yates, above cited, the
court followed the law of malicious
prosecution as it had been settled in
Sutton v. Johnstone, 1 T. R. 493, 794 ;
Mr. Justice Dallas, saying, " Since
the case of Sutton v. Johnstone, the
question of probable cause is a matter
of law, and cannot be left to the jury."
This was said upon an application for a
new trial, made on the ground of mis-
direction on this point by the judge at
nisi prius.
In Davis v. Russell, supra, the point
was again raised, and was elaborately
argued. The question of probable
cause had been left to the jury; but in
such a way, as the direction was con-
strued on appeal, as to show that if
the evidence were believed, the defend-
ant had established probable cause for
the arrest. Best, C. J., said: "The
question of probable cause is, no doubt,
a question for the judge; but the jury
must find the facts which are supposed
284
FALSE IMPRISONMENT.
to constitute the probable cause, and it
is sometimes difficult to draw the line
between the law and the fact. It has
been argued in effect that if the jury-
had intimated their belief of the facts,
the plaintiff ought to have been non-
suited. But on these facts the judge
could not properly have directed a
nonsuit. It was necessary to leave to
the jury whether, admitting the facts,
the defendant acted honestly ; for if
he did not, . . . the verdict ought to
have been against him, and with heavy
damages. But the learned judge tells
them, ' If you believe the facts, and
thence infer that the defendant was
acting honestly, you must find for him.'
This was saying in substance that, in
his opinion, the facts, if believed, fur-
nished a probable cause for the defend-
ant's conduct. But if the direction to
the jury were on the whole substan-
tially right, a mere inaccuracy of ex-
pression will not render it necessary to
have recourse to a new trial. This
direction was substantially right. It
was for the jury to say whether they
believed the facts ; and if they believed
them, whether the defendant were act-
ing honestly ; in other words, whether
the jury, under the same circumstances,
would have done as he did." Mr. Jus-
tice Park said he had never had a
doubt that it was the province of the
court to decide the question of prob-
able cause. " But," said be, " as that
must be compounded of the facts, and
as the jury must decide on them, my
practice has been to say, You are to
tell me whether you believe the facts
stated on the part of the defendant,
and if you do, I am of opinion that
they amount to a reasonable and prob-
able cause for the step he has taken."
And Mr. Justice Gaselee, before whom
the case had been tried at nisi prius,
said that he had never meant to leave
to the jury the question of probable
cause.
In Perryman v. Lister, Law R. 3 Ex.
197, the question was whether the fact
that the defendant had neglected to
make certain very natural inquiries
(there being a ready and obvious mode
of ascertaining the truth) before mak-
ing the arrest was a proper element in
determining the question of probable
cause. The judge at the trial had con-
sidered the neglect as important, and
had ruled upon it that there was no
probable cause for the arrest ; and his
ruling was sustained in the Exchequer
Chamber. Though there had been
some difference of opinion in the Court
of Exchequer upon the precise point in
issue, it was conceded by all of the
judges that the general question of
probable cause was a question of law.
The weight of authority is clearly
this way ; and on principle there is no
ground for diversity on this point be-
tween the two actions. (For a consid-
eration of the subject of probable
cause in other aspects, reference may
be made to the note on Malicious
Prosecution.)
But while an officer may arrest for
felony, without warrant, where none has
been committed, if he has reasonable
ground for his action, a private citizen
can only so arrest on suspicion when a
felony has been committed. He may
arrest without warrant on the spot,
personally or by calling an officer ; but
he can only justify for an arrest on
suspicion by showing that a felony had
actually been committed, and that he
had probable cause for arresting the
plaintiff for the crime. See the princi-
pal cases, Timothy v. Simpson and Allen
v. Wright ; also Beckwith v. Philby, 6
Barn. & C. 635, Lord Tenterden.
ARRESTS WITHOUT WARRANT.
285
The prisoner can only be detained
for the purpose of being taken before
a magistrate for examination, and only
for a reasonable length of time. Wright
v. Court, 4 Barn. & C. 596. In this
case it was held under this rule that a
plea was bad which justified a detention
for three days, in order that the party
whose goods had been stolen might
have an opportunity for collecting his
witnesses and bringing them to prove
the felony. See also Burke v. Bell,
36 Maine, 317 ; Brock v. Stimson, 108
Mass. 520.
286 SEDUCTION AND ENTICING AWAY.
SEDUCTION AND ENTICING AWAY.
Martin v. Payne, leading case.
Note on Seduction of Child.
Historical aspects of the subject.
The fiction of service.
Eights of widow. Daughter in service of third person.
Return and support of child through confinement.
Lttmley v. Gte, leading case.
Note on Doctrine of enticing to break Contracts.
Winsmoke v. Geeenbank, leading case.
Note on enticing away and on seducing "Wife.
Enticing wife away from husband.
Seduction of wife.
Proof of marriage.
Martin v. Payne.
(9 Johns. 387. Supreme Court, New York, October, 1812.)
Daughter in Employ of Another. A daughter of the age of nineteen years, with the
consent of her father, went to live with her uncle, for whom she worked when she
pleased, and he agreed to pay her for her work ; but there was no agreement for
her continuance in his house for any time. While at her uncle's, she was seduced
and got with child, and immediately afterwards returned to her father's house,
where she was maintained, and the expense of her lying-in paid by him ; though,
had not the misfortune happened to her, she had no intention of returning to her
father. Held, that an action on the case for debauching and getting his daughter
with child, per quod servitium amisit, was maintainable by the father against her
seducer, the father not having divested himself of his power to reclaim the ser-
vices of his daughter ; and the supposed relation of master and servant was pre-
sumed from his right to her services, arising from his liability to maintain and
provide for her while under age.
This was an action of trespass on the case for debauching and
getting with child Lanah, the daughter and servant of the plain-
tiff, by which he lost her service, and was obliged to pay a
large sum of money for the expenses of her lying-in, &c.
The cause was tried at the Washington Circuit, in June, 1811,
before Mr. Justice Spencer. At the trial the daughter of the
plaintiff was produced as a witness, and proved the seduction
and pregnancy, &c. ; that at the time of the seduction, which
MARTIN V. PAYNE. » 287
was in the spring of the year 1810, she was nineteen years of
age, and lived in the house of her uncle, with whom she had
resided from the autumn of 1809. She worked for her uncle
when she pleased, and was to receive from him, for her work,
one shilling per day. She also worked for herself, and expended
all her earnings in clothes and necessaries for herself, as she saw
fit. There was no agreement for her continuance in her uncle's
house for any particular time ; but she went to reside with him
on the terms above mentioned, with the consent of her father.
The defendant paid his addresses to her while she was at her
uncle's, and she expected to have married him, and had at that
time no expectation of returning to her father's house to reside.
During the period of her residence with her uncle she occasion-
ally visited her father's house, remaining there a week at a time.
Immediately after she was debauched she returned to her father,
who supported her, and was at the expense of her lying-in, &c.
It did not appear that the father had done any act dispensing
with his daughter's service, other than consenting to her remain-
ing with her aunt.
The defendant's counsel objected that the plaintiff was not
entitled to recover ; but the judge, without deciding the ques-
tion, permitted the cause to go to the jury, who found a verdict
for the plaintiff, subject to the opinion of the court, on the facts
in the case, as above stated.
Skinner, for the plaintiff. If, at the time of her seduction, the
daughter can be considered as in the service of her father, the
action is maintainable. The only evidence to the contrary is
the declaration of the daughter that she did not expect to return
to her father's house to reside ; but this must be taken in con-
nection with her previous language, that she was courted by the
defendant, and expected to be married to him. The fair infer-
ence from the whole testimony is, that she grounded her expec-
tation of not returning again to live with her father on the belief
that she was soon to be married to the defendant. It cannot,
therefore, be said that here was, in truth, no animus revertendi.
This case is clearly distinguishable from that of Dean v. Peel,
5 East, 45, which will no doubt be relied upon by the defend-
ant's counsel. Here the daughter went to live with her uncle
by consent of her father, under a contract with the uncle to pay
her for her services. The father was bound to maintain her, and
288 SEDUCTION AND ENTICING AWAY.
permitted her to go out to earn wages. In case her uncle had
refused to pay her, the father only could have maintained an
action against the uncle to recover the wages. She must, there-
fore, in presumption of law, be considered as in the service of
her father. He is responsible for her maintenance while she is
under age, and is, therefore, entitled to her services and earn-
ings. 1 Bl. Com. 446.
The case of Dean v. Peel is a recent decision of the English
Court of King's Bench, and is opposed to the principle of prior
adjudications. It is not a binding authority on this court.
Henry, contra. This is an action for a loss of service. A
father cannot maintain an action against another for debauching
his daughter and getting her with child. 2 Ld. Raym. 1032 ; 6
Mod. 127, S. C. He can only maintain an action of trespass quare
clausum f regit for entering his house, and assaulting and getting
his daughter with child, per quod servitium amisit. The only
ground on which the action is sustainable is a loss of service ; the
rest is matter of aggravation. 3 Burr. 1878, Postlethwaite v.
Parkes.
The plaintiff must make out an actual and subsisting relation-
ship of master and servant. There must be an actual service,
and under the paternal roof. If at the time of the seduction
the daughter is not in the actual service of her father, he cannot
maintain this action. The case of Dean v. Peel is in point. This
case is not new law : it only recognizes principles before set-
tled. The facts of this case are stronger against maintaining the
action.
The mere circumstance that the father is legally entitled to the
wages earned by his child will not give him a right to this action.
The right of the father to those services is founded on the fact of
his protecting and maintaining his child. He is entitled to this
action, because he is the protector and guardian of the morals and
virtue of his child ; but if he suffers her to depart from his house,
or withdraws his protection, he has no right to an action. If the
daughter remains under his roof and protection, he may maintain
an action for entering his house, and debauching her, per quod
servitium amisit, though the daughter is an adult ; but some acts
of service, however slight, must be proved, though there need not
be a contract of service. 2 Term Rep. 166.
Hussel, in reply, insisted, that if the relationship of master
MARTIN V. PAYNE. 289
and servant existed at the time of the seduction, or at the time of
the alleged loss of service, the action Avas maintainable ; for the
daughter being under age, and having returned to the house of
her father, while pregnant, and there lain in, an actual loss of
service had happened. A service de facto is not necessary to be
shown. It is enough that the father is entitled to the services of
his daughter, while under age, and has a right to control her con-
duct. Her secret determination to marry, and not return to her
father's house, cannot change the relationship, nor affect his
rights. The principle of the decision in Dean v. Peel, that the
daughter had expressed an intention not to return to her father's
house, is not founded in reason ; and the case of Postlethwaite v.
Parkes merely decides that this action is not maintainable where
the daughter is of full age, and resides abroad out of her father's
house.
Spen'cer, J., delivered the opinion of the 'court. The case of
Dean v. Peel, 5 East, 49. is against the action. It was there held
that the daughter being in the service of another, and having no
animus revertendi, the relationship of master and servant did not
exist. In the present case, the father had made no contract hir-
ing out his daughter, and the relation of master and servant did
exist, from the legal control he had over her services ; and
although she had no intention of returning, that did not termi-
nate the relation, because her volition could not affect his rights.
That is the only case which has ever denied the right of the father
to maintain an action for debauching his daughter whilst under
age ; and I consider it as a departure from all former decisions
on this subject. It has frequently been decided that where the
daughter was more than twenty-one years of age there must exist
some kind of service ; but the slightest acts have been held to
constitute the relation of master and servant in such a case. In
Bennett v. Allcott, 2 Term Rep. 166, the daughter was thirty years
of age : and Buller, Justice, held that even milking cows was
sufficient. But where the daughter was over twenty-one, and in
the service of another, as in Postlethwaite v. Parkes, 3 Burr. 1878,
the action is not maintainable. In Johnson v. XT Adam, cited by
Topping in Dean v. Peel, Wilson, J., said that where the daughter
was under age he believed the action was maintainable, though
she was not part of the father's family when she was seduced ; but
when she was of age, and no part of the father's family, he thought
19
290 SEDUCTION AND ENTICING AWAY.
the action not maintainable. In Fores v. "Wilson, Pealce N. P.
Cas. 55, which was an action for assaulting the maid of the plain-
tiff, and debauching her, per quod, &c, Lord Kenyon held that
there must subsist some relation of master and servant ; yet a very
slight relation was sufficient, as it had been determined that when
daughters of the highest and most opulent families have been
seduced, the parent maj' maintain an action on the supposed rela-
tion of master and servant, though every one must know that such
a child cannot be treated as a menial servant.
Put the case of a gentleman's daughter at a boarding-school
debauched and gotten with child : on what principle can the father
maintain the action, but on the supposed relation of master and
servant arising from the power possessed by the father to require
menial services ? for in such a case there is no actual existing
service constituting the relation of master and servant. Would
it not be monstrous to contend that, for such an injury, the law
afforded no redress ? The case is perfectly analogous to the one
before us : here the father merely permitted his daughter to re-
main with her aunt ; he had not divested himself of his power to
reclaim her services, nor of his liability to maintain and provide
for her. She was his servant dejure, though not de facto, at the
time of the injury, and being his servant de jure, the defendant
has done an act which has deprived the father of his. daughter's
services, and which he might have exacted but for that injury.
We are of opinion that the action is maintainable under the cir-
cumstances of this case, and, therefore, deny the motion for a new'
trial. Motion denied.
Historical. — There is little of his- caused the damage to the master (ex-
torical interest concerning the right of cept that it was necessary to prove the
action of a parent for the seduction of scienter in respect of the service) . It
his daughter, except in the tendency was all one whether the servant had
of the modern cases to break away, to been actually "beaten, wounded, and
some extent, from the only ground upon evil-entreated," or thus injured in a
which it was formerly supposed the ac- mere legal sense, as by seduction ; the
tion could be maintained, to wit, the master recovered in either case for the
loss of the child's service ; and this loss of service sustained,
point is considered infra. The action It may be worthy of mention, how-
was fashioned after the claim of a master ever, that in the time of Bracton it was
for injuries to his servant whereby a loss said to be the law (following the doc-
of service was sustained ; in which case trine of the Roman law) that" a master
it mattered not how the defendant had had a right of action against a stranger
THE FICTION OP SERVICE.
291
for the beating of his servant, done as
an insult to the plaintiff. Bracton,
p. 115 6 ; ante, p. 224, In such case,
therefore, if there was also a loss of ser-
vice, the master was entitled to recover
for two distinct kinds of damage, the one
for the pecuniary injury, the other for the
injury to his pride. Not wholly unlike
this is the modern rule in actions for se-
duction (presented inf'ra), that juries
are allowed to give damages not merely
for the parent's pecuniary loss, but also
for the mental suffering, mortification,
and disgrace brought upon him and his
family by the act of the defendant.
The Fiction of Sen-ice. — The doc-
trine of Dean v. Peel, 5 East, 15, which
makes the criterion of recovery in an
action for seduction to depend upon the
animus revertendi, where the daughter
was living out at service (though still
subject to the parent's authority and
control) when seduced, has been gen-
erally repudiated in this country, and
the principal ease, Martin v. Payne, fol-
lowed. But the allegation of service,
though generally but little more than a
fiction, is still held indispensable; and
it must appear that the parent, what-
ever or wherever the situation of the
daughter, had at the time of the seduc-
tion the rig'.t to control the daughter's
service. If his power over her is gone
at that time, whether by his own con-
sent in emancipating her or by the act
of the law in taking her away from him,
he cannot maintain the aclion ; though
there has been some conflict upon this
point, in case of the return of the infant
to the parent after seduction, as we shall
hereafter sec. Sargent v. . 5
Cowcn, 1UG. 116. But if he be not
divested of his authority, the action will
be maintainable though the daughter be
away from home at the time, and have,
no intention of returning. So, if the
parent was divested of his daughter's
service by the defendant's fraud, the
action may be maintained. Speight v.
Oliviera, 2 Stark. 493 ; Dain v. Wycoff,
7 N. Y. 191.
In Hornketh v. Barr, 8 Serg. & R.
36, the Supreme Court of Pennsylvania
reached the same conclusion as did the
court in Martin v. Payne, upon similar
facts. And the Supreme Court of New
York reaffirmed their position in Clark
v. Fitch, 2 Wend. 459, in Stiles r. Til-
ford, 10 Wend. 338, Hewitt v. Prime,
21 Wend. 79, 82, and in Ingersoll v.
Jones, 5 Barb. 661. And later still the
Court of Appeals have sustained the
same doctrine. Mulvehall v. Millward,
11 N. Y. 343. And the same doctrine
prevails in Massachusetts. Kennedy v.
Shea, 110 Mass. 147.
In these and in other cases the fic-
tion is spoken of with disfavor; but it is
nevertheless upheld, and proof of the
right of the plaintiff to the child's ser-
vices hel'd necessary. Proof of acts of
service is, indeed, unnecessary. The
right to the service is enough. And
this is true even in England, where the
courts have always been more strict in
requiring proof of service than in this
country. See Terry v. Hutchinson,
Law R. 3 Q. B. 599, 602, Blackburn, J.
Though this was a case in which the
daughter was in fact returning to her
father when seduced, after having been
dismissed from the service of another.
See also the language of Bronson,
C. J., in Bartley v. Richtmyer, 4 Comst.
39, 47. After stating that several un-
successful attempts had been made in
England to maintain this action upon
other grounds than the right of service,
he says: "Our cases stand upon the
same foundation, with only this differ-
ence, that we go further than the
English courts in making out the con-
292
SEDUCTION AND ENTICING AWAY.
structive relation of master and ser-
vant, and hold that it may exist for the
purposes of this action, although the
daughter was in the service of a third
person at the time of the seduction, pro-
vided the ease be such that the father
then had a legal right to her services,
and might have commanded them at
pleasure." See Roberts v. Connelly,
14 Ala. 235, where the daughter had
been sent away from her mother be-
cause the latter was a prostitute, and
the right of action was denied; the
mother being an improper person to
act as guardian of her child.
It follows, a fortiori, that where the
infant daughter, when seduced, is only
absent from her father upon a visit, the
action is maintainable. See Griffiths v.
Teetgen, 15 Com. B. 344 ; Bartley v.
Richtmyer, 4 Comst. 38, 44. So, where
the daughter returns at night from her
employment, and lodges at her father's
house, assisting in the household duties.
Rist v. Faux, 4 Best & S. 409 ; Ogden
v. Lancashire, 15 Week. R. 158. (But
as to the limits of the rule in England
upon this latter point, see Thompson v.
Ross, 5 Hurl. & N. 16; Manly v. Field,
7 Com. B. n. s. 96; Hedges v. Tagg,
Law R. 7 Ex. 283.)
And this is true even of an adult
daughter, if the relation of master and
servant continue to exist. Sutton v.
Huffman, 3 Vroom, 58. It was said in
this ease that the arrival at majority
does not emancipate the child if the
parent continue to exercise authority,
and the child to submit to it ; emanci-
pation being a question of fact, to be
determined by the circumstances of the
case and the intention of the parties.
And the same doctrine was held in Lipe
v. Eisenlerd, 32 N. Y. 229. See also
Brown v. Ramsey, 5 Dutch. 117.
Upon this point Parker v. Meek, 3
Sneed, 29, went too far, since in that
case the (adult) daughter was seduced in
the lifetime of her father, and the action
was brought afterwards by her mother ;
upon which point see infra, p. 305.
Of course, where the daughter is of
age when seduced, no action can be
maintained if she no longer continues
to submit to the authority of the parent;
which shows again that the right of ser-
vice is at the foundation of the action.
See Nickleson v. Stryker, 10 Johns.
115 ; Millers. Thompson, 1 Wend. 447 ;
Lee v. Hodges, 13 Gratt. 726 ; Manly
o. Field, 7 Com. B. N. s. 96 ; Sutton v. •
Huffman, 3 Vroom, 58.
How strictly the English courts ad-
here to the necessity of the existence of
the relation of master and servant in
these cases ma)' be seen in Thompson
v. Ross, 5 Hurl. & N. 16. In that case
the daughter when seduced was living
with a third person for wages, but occa-
sionally, with the consent of her mis-
tress, performed services for her parent,
the plaintiff. There was nothing to show
that the daughter had been bound out
to service; and under the American rule
the parent would have bten entitled to
an action for her seduction. But the
English court, following the logic of
Dean v. Peel, held the contrary. " We
are all agreed," said Pollock, C. B.,
" that there was no service in this case.
The service must be a real, genuine ser-
vice, such as a parent, master, or mis-
tress may command. Here the girl did
work for her mother by consent of the
lady who was her true mistress. It was
argued that if a daughter making tea in
the house of her parent is a sufficient
service to entitle the parent to sue for
the loss of such service, a parent might
sue in the case of a domestic servant
going home on Sunday evenings and
making tea there. But here, as in that
THE FICTION OF SERVICE.
293
case, there was merely a permission
which at any moment might have been
withdrawn."
The very recent case of Hedges v.
Tagg, Law R. 7 Ex. 283, was similar,
except that the daughter (who was
under the employ of another as gover-
ness) had been seduced while on a three
days' visit at her mother's; and the same
decision was reached.
The court seem to have fallen into
error in Eager v. Griinwood, 1 Ex. 61.
It was there held that the seduction by
the defendant must have resulted in
pregnancy ; and the jury having found
that the child had not been begotten by
the defendant, it was held that the ac-
tion could not be maintained. And
this, on the ground that there could be
no loss of service in such case.
The contrary was held in Abrahams
v. Kidney, 104 Mass. 222. In this case
the court at ?!m prius had ruled that
the action could not be sustained unless
the seduction was followed by preg-
nancy or sexual disease ; and this was
held to be error. Mr. Justice Morton,
in delivering the opinion of the court,
said: "The rule which governs the
numerous cases upon this subject is,
that where the proximate effect of the
criminal connection is an incapacity to
labor, by reason of which the master
loses the services of his servant, such
loss of service is deemed to be the im-
mediate effect of the connection, and
entitles the master to his action. The
same principle which gives a master an
action where the connection causes
pregnancy or sexual disease applies to
all cases where the proximate conse-
quence of the criminal act is a loss of
health resulting in a loss of service.
There may be cases in which the seduc-
tion, without producing pregnancy or
sexual disease, causes bodily injury,
impairing the health of the servant, and
resulting in a loss of services to her
master. So, the criminal connection
may be accomplished under such cir-
cumstances, as, for instance, of violence
or fraud, that its proximate effect is
mental distress or disease, impairing
her health and destroying her capacity
to labor. In either of these cases the
master may maintain an action, because
the loss of service is immediately caused
by the connection* as much as in cases
of pregnancy or sexual disease. Van
Horn v. Freeman, 1 Halst. 322."
Eager v. Grimwood is also doubted
in 1 Smith's Lead. Cas. 260 (6th Eng.
ed.), and again by Bovill, C. J., in
Evans v. Walton, Law R. 2 C. P. 615,
617 ; though Mr. Justice Willes in this
case thought the court bound by that
decision. See also White v. Nellis, 31
N. Y. 405, where it was held that the
action would lie without proving preg-
nancy. The intej'couse in that case had
resulted in disease.
It is not necessary, of course, that
the party suing should be the parent of
the child ; wherever the relation of mas-
ter and servant, actual or constructive,
exists, the action will lie. Fores v.
Wilson, Peake, 55. Thus, it is held
that an uncle or aunt who has brought
up a niece may sue for her seduction.
Manvell v. Thomson, 2 Car. & P. 303.
Though, it seems, the parent be living.
Edmonson v. Machell, 2 T. R. 4. So,
of one who has adopted and bred the
daughter of another. Irwin v. Dear-
man, 11 East, 23; Ingersoll v. Jones,
5 Barb. 661. But a step-father cannot
sue for the seduction of a child who has
left him and entered the service of an-
other, though she returns to his house
and is there nursed through confine-
ment. Bartley v. Richtmyer, 4 Comst.
38. It would, probably, be otherwise
294
SEDUCTION AND ENTICING AWAY.
■where the step-father is bound by stat-
ute to support his step-children. But
there should in all eases be an allega-
tion of loss of service. Grinnell v.
Wells, 7 Man. & G. 1033.
With respect to the damages to be
allowed in this action, there has been,
apparently, a departure from the prin-
ciple upon which the action is based,
this loss of service; for it was said, as
long ago as in Lord Ellenborough's
time, that the practice had become
" inveterate " of giving damages far
beyond the value of the daughter's ser-
vices as a well person. Irwin v. Dear-
man, 11 East, 23. In this case the
only actual damage proved by the
plaintiff was the loss of the young
woman's service for five weeks, during
the time of her absence in the parish
workhouse, where she was confined.
But the jury gave £100 damages, and
the verdict was upheld, though the
young woman was only an adopted
child.
Mr. Justice Blackburn, approving
of the doctrine of this case, says : " In
effect, the damages are given to the plain-
tiff as standing in the relation of parent ;
and the action has at present no refer-
ence to the relation of master and ser-
vant, beyond the mere technical point
on which the action is founded." And
further on, in the same opinion: " As
to the amount of damages, I hold that
now the jury are to consider the injury
as done to the natural guardian, and all
that can be referred to that relation. I
do not say that they ought to calculate
the actual cost of the maintenance of
the grandchild, though they cannot well
exclude that fact ; but they may con-
sider not only that the plaintiff has a
daughter disgraced in the eyes of the
neighbors, but that there is also a living
memorial of the disgrace in a bastard
grandchild. Considering this, are £150
damages loo much ? I cannot say that
they are.'' And the other judges were
of a like opinion. Terry v. Hutchinson,
Law R. 3 Q. B. 599, 602. But it was
still considered necessary that the rela-
tion of master and servant should exist
to give the right of action ; that is, that
the parent should, at the time of the
seduction, have the right to the child's
services.
The principle seems to be that the
matter of service is essential to the ac-
tion, but that, when this has been es-
tablished by showing the parent's right
of control, the court has jurisdiction to
proceed beyond the mere loss of ser-
vices, and award damages for the dis-
grace brought upon the family. See
Ingersoll v. Jones, 5 Barb. 661; Bart-
ley v. Richtmyer, 4 Comst. 38 ; Damon
v. Moore, 5 Lans. 454 ; Sargent v.
. 5 Cowen, 106 ; Badgley v.
Decker, 44 Barb. 577 ; Moran v. Dawes,
4 Cowen, 412; Stiles v. Tilford, 10
Wend. 338.
It has been held that if there be no
seduction, and the intercourse be ef-
fected without objection or the use of
insinuating arts, this will be admissible
evidence in mitigation of damages.
Hogan v. Cregan, 6 Rob. (N. Y.) 138.
But qucere if even then the plaintiff can
never recover damages beyond the loss
of service. The disgrace to the family
would usually be greater in such a case
than where an unwillingness of the
daughter had to be overcome. If this
disgrace can be taken into considera-
tion at all, what difference can it make
whether the daughter was quite willing
or not, unless she was notoriously loose,
and had already disgraced her family?
The above case of Hogan v. Cregan
was disapproved in Damon v. Moore,
5 Lans. 454, as to the ruling that actual
EIGHTS OF WIDOW. DAUGHTER IN SERVICE OF THIRD PERSON. 295
seduction was necessary to the giving
of exemplary damages. Iu Damon v.
Moore tbe alleged seduction was ac-
companied with force.
Evidence of a promise to marry,
after the seduction, which the plaintiff
refused, is inadmissible in mitigation,
though the daughter would have con-
sented. Ingersoll v. Jones, 5 Barb.
661.
The. loss of service must, of course,
be the proximate cause of the seduc-
tion. Knight u. Wilcox, U X. Y. 413.
If no pregnancy follow, but only loss
of health, caused by mental suffering
which is not the consequence of the
seduction, but is produced bv subse-
quent intervening causes, such as
abandonment by the seducer, shame
resulting from exposure, or other
similar causes, the loss of service is
too remote a consequence of the act.
lb. ; Abrahams v. Kidney, 101 Mass.
22:?, Morton, J. ; Boyle v. Brandon,
13 Mees. & W. 73S.
So it is held that evidence is inad-
missible in this action that the defend-
ant procured an abortion upon the
female, on the ground that the result-
ing damages were too remote. Klop-
fer v. Bromme, 26 Wis. 372.
Bights of Widow. Daughter in Ser-
vice of Third Person. — Some of the
cases have swung far away from Dean
v. Peel. In Sargent v. , 5
Cowen, 106, the declaration stated
that E. B., daughter of the plaintiff,
had been bound by indenture as servant
to P. F. ; that she had been debauched
by the defendant while at service with
P. F. ; that, pregnancy having followed,
the indentures were . cancelled by the
parties, and the daughter then returned
to the service of the plaintiff; and that
afterwards, while yet an infant, and in
the service of the plaintiff, she was de-
livered of a child, per quod, &c. It
was not proved that there was, in fact,
any seduction ; the daughter, it ap-
peared, had been extremely loose and
indecorous in her habits; and yet the
jury returned a verdict for the plaintiff
with $920 damages. On a motion for
a new trial, on the ground that there
had been no loss of service to the plain-
tiff, since she had signed the indent-
ures, and because of excessive damage,
the Supreme Court held these grounds
insufficient to justify the motion. The
case, however, went off upon other
grounds, and a new trial was granted.
Mr. Justice Sutherland, who de-
livered the judgment, said: "It must
be conceded that if the indentures of
apprenticeship had not been cancelled
or voluntarily rescinded by the parties,
the mother could not have maintained
this suit. It is not founded upon the re-
lation of parent and child, but of master
and servant ; and where the latter re-
lation does not exist, either in fact or
in judgment of law, no loss of service
can be alleged or proved, without which
an action on the case for seduction can-
not be sustained. ... In an action of
trespass on the case for an injury like
this, the real cause of action is the ex-
penditure of money, and the loss of
service consequent upon the seduction.
Hence, tbe action cannot be sustained
for seduction unless it is followed by
pregnancy, or the loss of health, and
consequently of service. 3 Bl. Com.
142, note. The per quod is the gist of
the action. But trespass may be main-
tained where the defendant illegally
enters the father's house ; and debauch-
ing his daughter may be stated and
proved as an aggravation of the tres-
pass, although it may not have been
followed by the consequences of preg-
nancy. Where the action is trespass,
296
SEDUCTION AND ENTICING AWAY.
whether it be followed by pregnancy or
not, the illegal entry is considered the
gist of the action, and the loss of ser-
vice, &c, merely as consequential. If
the trespass, therefore, be not proved,
the plaintiff cannot in such case recover.
2 Ld. Kaym. 1032 ; Bennett v. Allcott,
2 T. R. 168, per Buller, J. ; 3 Bl.
Com. 143, note. It would seem, ac-
cording to these principles, not to be
material who was entitled to the ser-
vices of the female at the time of the
seduction, when the action is case.
But the real inquiry is, upon whom has
the consequential injury fallen, — the
expense attending her confinement, and
the loss of her services ? Suppose a
daughter hired out by her parent for a
month, or six months, and debauched
during her service, but the fact not
known nor the consequences of it ap-
parent until after the expiration of her
term of service, and her return to her
father's house ; is there no remedy in
such a case ? If there is, it must be-
long to the parent ; for, if the circum-
stances of the case would support
trespass in the name of the master, the
recovery would be nominal merely, as
he could not aver or prove the conse-
quential injury by way of aggravation.
Or, suppose the case put by counsel
upon the argument, that an indented or
hired servant is debauched by her mas-
ter; has the parent no redress? The
supposition is not to be endured. It
cannot, therefore, be necessary, ac-
cording to the theory or just principles
by which this action is regulated, that
the parent, in order to sustain it,
should be entitled to the services of the
daughter at the very instant when the
act is committed, which subsequently
results in a loss of service or necessary
pecuniary disbursements. The latter
circumstances constitute the real grava-
men ; and if that fall upon the parent,
it entitles him to the legal redress."
This case, while accepted in the more
general principles laid down by the
court, has been denied to be law in
deciding that a right of action in such
cases belongs to the mother, especially
under the circumstances of the case.
South v. Denniston, 2 Watts, 474;
Roberts v. Connelly, 14 Ala. 235.
In South v. Denniston, Gibson,
C. J., said that, while the doctrine of
Dean v. Peel had been justly repudi-
ated, since, as to the father, his right
to his daughter's service was indepen-
dent of her will, the rule was otherwise
as to the power of a widowed mother.
" A mother," said he, " being at best
in the category of a father who has
parted with his right, can maintain an
action but on proof of actual service at
the time of the seduction. Not being
bound to the duty of maintenance, she
is not entitled to the correlative right
of service ; and standing as a stranger
to her daughter in respect to these, the
relation of mistress and servant can be
constituted between them but as it may
be constituted between strangers in
blood, save that less evidence would
perhaps be sufficient to establish it."
Referring directly to Sargent's Case,
the learned Chief Justice continued :
"But nothing is more sure than that a
mother is not entitled to the service of
her child by the common law ; and the
decision, therefore, obviously rests on
some statutory provision, devolving the
parental rights of the father upon his
widow, which is not in force here."
And he then suggested a doubt whether,
even under a statutory provision of that
kind, a right of action existed for a
seduction which had taken place after
the widow had parted with her right,
without reservation or recall ; and even
EIGHTS OF WIDOW. DAUGHTER IN SERVICE OP THIRD PERSON. 297
taking it for granted that it reverted to
her upon the cancellation of the indent-
ures. He said that it required but
little aid from authority to sustain the
principle that a party could not entitle
himself to an action for what was no
wrong to him by employing a disabled
servant. " An action for loss of ser-
vice,'' he observed, "would certainly
not lie for beating one who was not in
the plaintiff's service at the time, be-
cause it would be esteemed an act of
folly in him to employ an unfit person;
and it must necessarily be indifferent,
in point of principle, whether the unfit-
ness were caused by beating or impreg-
nation. It was so considered in Logan
v. Murray, 6 Serg. & R. 175, where the
daughter had come pregnant into the
mother's service, after the death of her
father, in whose service she had been
debauched. As to the childbed ex-
penses, assuming that the mother is
liable to bear them (though we certain-
ly have no law for it), these, though,
proper to swell the damages, are not a
substantive ground of the action, as
was held in Logan v. Murray ; and as
to the argument so earnestly pressed
upon us, that she is entitled to compen-
sation for the increased risk of be-
coming chargeable for the daughter's
maintenance as a pauper, it is enough
to say that it would make the mother's
right depend on the contingent inability
of the daughter to maintain herself,
which is not the foundation of the
action by a father, whose duty to main-
tain is an immediate one, and indepen-
dent of all consideration of the child's
own means."
The learned judge who delivered the
opinion in Sargent's Case answered,
by anticipation, the objection presented
above, that a party could not claim
damages when he had taken a disabled
servant into his service, by stating, at
some length, that the seduction was
good ground for the master to require
the cancellation of the indentures ; and,
therefore, if the position tacitly assumed
was correct, that the widow was bound
to maintain the daughter, it followed
that she must receive her upon the can-
cellation of the articles of indenture.
The confident assertion of Gibson,
C. J., that the widow is not entitled to
the services of her infant children, is
repeated by the Court of Appeals of
New York in Bartley v. Richtmyer, 4
Comst. 38, 46. See also 2 Kent, Com.
191. And in this case of Bartley v.
Richtmyer, the further point in Sar-
gent's Case, doubted by Chief Justice
Gibson, that the defendant was liable to
the plaintiff though the seduction had
occurred while the infant was in the
legal service of another, was also de-
nied to be law. We propose to ex-
amine these questions at some length.
It is conceded that in the lifetime of
both parents the father has full control
over the services of his children, until
he has been adjudged incompetent by
process of law, and that his control is
exclusive. Chambers, Infancy, 89.
The father is entitled to the custody
and care of the children, even infants
at the breast, as against the mother.
lb. 86, 89; De Manneville v. De
Manneville, 10 Ves. 62. The common
law recognizes no division of rights
between them. The question, then, is,
whether upon the father's death this
power and authority devolve upon the
mother, either as succeeding to the
rights of her husband quasi an heir, or
by reason of their previous dormant
existence in her, which only required
the death of the husband to enable
them to spring into full force.
It is pretty clear that the widowed
298
SEDUCTION AND ENTICING AWAY.
mother does not acquire the same
extent of authority in all respects as
the father possessed ; she cannot, for
instance, compel them to change the
religion in which the father desired them
to be educated. Talbot v. Shrewsbury,
reported in Chambers, Infancy, 118 ;
Reynolds v. Teynham, 9 Mod. 140.
Nor does the mother become guardian
necessarily, upon the death of her hus-
band, even if, where she is appointed
such, she succeeds entirely to the posi-
tion of the deceased parent (upon which
see infra). The infant, if fourteen
years of age, may select his own guar-
dian, regardless of the competency of
the mother for such position. In Hey-
sham v. Heysham, 1 Cox, 179, the
mother was refused the guardianship
because of ber insolvency ; and in
Roach v. Garvan, 1 Ves. 157, the
mother was removed on account of
disputes between her and the infants,
and accusations of endeavoring to
marry one improperly, — facts which,
it is believed, would not have sufficed
to cause the father to be superseded in
his natural guardianship. Besides, she
is bound, when appointed guardian, to
conform to the father's wishes about the
education of the children.
The duty of maintenance is often
spoken of as the ground of the liabil-
ity of the father's right to the services
of his children ; and it is said to follow
that if the mother is not bound to sup-
port them after his death, she cannot
compel their services, and therefore
cannot maintain this action.
It may be doubted if the (assumed)
duty to support his minor children be
the reason why the father is entitled to
their services. He is certainly under
no duty, moral or legal, to support
grown-up children when he lacks the
ability, pecuniary or physical, to do so,
especially if they possess the means or
ability to support themselves. Indeed,
the duty is by statute often the other
way. The statute of .43 Eliz. c. 2, § 7,
which is generally in force in this coun-
try, except as to grandparents (2 Kent,
190), enacts that the father and grand-
father, and the mother and grandmother,
and the children, of every poor, old,
blind, lame, and impotent person, or
other poor person not able to work,
being of sufficient ability, shall at their
own charges relieve and maintain every
such poor person. Under this law the
parent can require the aid of his chil-
dren, though wholly unable to recipro-
cate the benefit in any pecuniary way.
The statute looks towards some other
obligation on the part of children than
that arising from support. And it is to
be observed that in cases under this
wise provision of law a widowed mother
must clearly be entitled to sue for the
seduction of a daughter able to help
her, possibly though the daughter be
of age; for by that wrong she is de-
prived of support which she might
otherwise have by law required.
This statute expresses only the nat-
ural sense of filial obligation ; and it is
absurd and untrue to rest the duty of
children to their parents upon what
often cannot be given. The child's
service belongs to his father, because
his father is the author of his being.
The Roman law carried this idea to
an extent which could not now be tol-
erated. It at one time gave the father
the power of life and death over his
children ; they were his property, as
much so as were his slaves, and con-
tinued such until his death, unless he
had previously emancipated them. 2
Kent, Com. 203-205. And the Jewish
law was similar. Deut. xxi. 18. Our
law is pervaded by juster ideas ; but
EIGHTS OP -WIDOW. DAUGHTER IN SERVICE OP THIRD PERSON. 299
the ground of the child's duty is doubt-
less the same as it was considered to
be in the Roman law, — the fact that
the father has brought the child into
the world. The child in a qualified
sense belongs to his father during minor-
ity; and for this reason the father is
entitled to his services. See upon this
point a case cited by Coleridge, J., in
Lumley v. Gye, 2 El. & B. 216, 250,
257, from the Year-Book of 11 H. 4,
a, fol. 23 A, pi. 46, where it was said
by Hankford, J., that the reason why
one should have a writ of ravishment
of ward where a man procured the
ward to go away, was that the ward
'" is a chattel, and vests in him who has
the right."
That the supposed duty of main-
tenance is not the ground of this action
may also be inferred from Grinnell v.
Wells, 7 Man. & G. 1033, 1042, where
Tindal, C. J., speaking directly upon
the point there in issue, says that where
there is an absence of any allegation of
loss of service to the parent, the action
is not maintainable, though there might
be, as there was in the case before him,
an allegation that the parent was com-
pelled to pay the expenses arising from
the defendant's wrongful act.
Besides, it appears to be settled
that there does not exist any legal duty
on the part of even a father to support
his children, in the absence of statute,
except under the act of Eliz., above
cited. There are, it is true, many cases
in which a duty of maintenance is spoken
of; but it will be found that a mere moral
duty is generally meant. Thus, in Smee
v. Martin, Bunb. 136, it is said that the
parent ought, " by the law of nature,"
to support the child. In Wallis v. Hod-
son, 2 Atk. 115, Lord Hardwicke uses
the same expression. In Butler v. Dun-
comb, 1 P; Wms. 454, Lord Maccles-
■field indeed spoke of the duty of the
mother, on the death of the father, as
one existing " by the law of the land and
of nature ; " but he refers to no authority
to show that the duty is a legal one.
It is not to be denied, however, that
there are cases which have been de-
cided upon the assumed position that
the father is legally bound to support
his minor children without reference to
the poor laws. Such are cases decid-
ing that the father is liable for neces-
saries furnished his children without his
authority ; but this class of cases has
recently been under serious and care-
ful consideration ; and the result has
been that their soundness has been
greatly shaken, if not entirely over-
turned. In Urmston v. Newcomen,
4 Ad. & E. 899, the point was left a
query whether a father who had deserted
his child was liable in assumpsit for
necessaries furnished him without au-
thority. It was conceded that could
be no liability had there been no deser-
tion ; and Coleridge, J., referred to
Blackburn v. Mackey, 1 Car. & P. 1,
as having so decided.
In Mortimore v. Wright, 6 JMees. &
W. 482, also an action to recover for
necessaries supplied the defendant's
minor child, the language of Lord Ten-
terden, in Nichole v. Allen, 3 Car. &
P. 36, was referred to, who there said,
" There is not only a moral but a legal
obligation on the defendant to support
his child." To this Lord Abinger, C.B. ,
replied, " That is only a nisi prius de-
cision; and I cannot assent to any such
doctrine." A similar decision in Law
v. Wilkin, 6 Ad. & E. 718, was also
denied ; and the plaintiff was non-
suited. Mortimore v. Wright was soon
after confirmed by the judges of the
Common Pleas in Shelton v. Springett,
11 C. B. 452.
300
SEDUCTION AND ENTICING AWAY.
In the late case of Bageley v. Forder,
Law R. 3 Q. B. 559, the necessaries
were supplied to the defendant's wife
(who was living apart from her hus-
band) for the child. The case was
argued on the ground of the wife's
authority ; and was decided upon that
ground. There was no suggestion that
the defendant was otherwise liable.
The majority of the court thought the_
wife, under the circumstances, had
authority to pledge her husband's credit
for the necessaries, on the ground that,
as she was justified in living apart from
her husband, and had been given the
legal custody of the infant, they might
be regarded as her own necessaries.
Upon this point Cockburn, C. J., dis-
sented, but said it was admitted that
there was no direct liability on the
father in respect of articles supplied on
credit as necessary to the child. "It
is now well established," said he, " that,
except under the operation of the poor
law, there is no legal obligation on the
part of the father to maintain his child,
unless, indeed, the neglect to do so
should bring the case within the crim-
inal law;" referring doubtless to the
duty of the parent to care for his infant
children of tender years.
This doctrine has more recently still
been declared in this country. Kelley
v. Davis, 49 N. H. 187. " Our statute
laws," said Mr. Justice Foster, in
delivering judgment in the case cited,
"like the English statutes of 43 Eliz.
and 5 Geo. 1, from which they were
borrowed, are intended only for the
indemnity of the public against the
maintenance of paupers, and not for
the reimbursement of an individual who
may have relieved the necessities of a
poor person in suffering and distress ;
and under our statutes no action can be
sustained against a parent to recover
for necessaries furnished to his child,
except by the town, and after notice to
the person chargeable.''
The same doctrine is held in Ver-
mont. Gordon v. Potter, 17 Vt. 348.
However, if the child comes within
the terms of the poor laws, and the
mother has the ability to support her,
she will be bound to do so ; but we
conceive that this is not the true ground
of her right to sue for the child's se-
duction, even in this case, where she
clearly has the right. It is only an a
fortiori reason.
But it is said that upon the death of
the father the mother becomes, or is
entitled, if there is no objection, to be
appointed guardian of the minor chil-
dren. Reeve says she is guardian in
such case. Domestic Relations, 220.
Chambers and Forsyth say she is enti-
tled to the position. Chambers, In-
fancy, 97; Forsyth, Infants, 10, 11.
Macpherson says : ' ' The guardianship
of the mother, if not superseded either
by election or by the appointment of a
new guardian by the court, is the proper
and legitimate custody till the infant
attains twenty-one." Infants, 65.
While Kent says : "In case of the
death of the father during the minority
of the child, his authority and duty, by
the principles of natural law, would
devolve upon the mother ; " the mean-
ing of which seems to be that she is
entitled by nature to the appointment
of guardian.
If, upon the death of the father the
mother becomes ipso facto guardian of
the minor children, which is doubtful,
the Pennsylvania cases are not in accord
with each other ; for it has been held
in that state that a guardian is entitled
to the services of his wards, so as to be
able to sue for the seduction of a fe-
male. Fernsler v. Moyer, 3 Watts &
RIGHTS OF WIDOW. DAUGHTER IN SERVICE OF THIRD PERSON. 301
S. 416. This case was decided upon the child's property for his support. In
the authority of Denison v. Comwell, all of the cases which speak of the
17 Serg. & R. 374. father's duty to support his children,
We must dissent from this doctrine, the statement is that he must do so out
Though there are dicta in Denison v. of his own property, when able, and
Cornwell to the effect that a guardian, cannot use the child's property for that
standing in loco parentis, is entitled to purpose though the child have a fortune
the services of his ward, the case only of his own. Chambers, Infancy, 112;
decided that assumpsit could not be Butler v. Butler, 3 Atk. 60. But the
maintained in the Common Pleas by guardian always resorts to the infant's
the ward against his guardian for ser- estate, whether property was left him
vices rendered. " All we mean to by his father, or whether he had an
say,'" said the court, " is, that the com- independent estate. " It may be laid
pensation cannot be ascertained in an down," says Chambers, "that neither
action like the present in the Court of law nor equity imposes any obligation
Common Pleas. In this case the upon guardians to maintain their wards
guardian has not settled any account in that character, or out of their own
of the ward's estate in the Orphan's property." And this was admitted in
Court of the proper county. He can Fernsler v. Mover. The court say that
be cited to do so : it is not too late, the guardian is subject to all the duties
That court is, in our opinion, the appro- of the father "except that of main-
priate tribunal to settle the accounts of taining the ward out of his own estate.''
guardians and wards." And there is a If we are correct in supposing that
strong dissenting opinion by Tod, J., the guardian cannot claim the services
both as to the dicta referred to and as of his ward, he must then claim them,
to the actual decision, that the ward if at all, in right of his ward; and any
had gone to the wrong court. " In my wrong to the ward, whereby the ward
opinion," said the learned justice, " the is disabled from prosecuting his labors,
law gives to a guardian no right to any must be claimed in the same way.
services whatever from his ward." When, .therefore, he sues for the ward's
The guardian does indeed stand in seduction, the action is properly for the
loco parentis for some purposes ; but if ward's benefit, and is brought as by
support of the infant be any test of her next friend; that is, it is brought
the guardian's right to his services, as substantially by the infant herself. But
was supposed in Fernsler v. Mover, the she cannot maintain an action for her
guardian's position is wholly different own seduction where there was no
from that of the father. The father, promise of marriage ; for volenti non Jit
whatever his legal duties may be, can- injuria.1 Hamilton v. Lomax, 26 Barb,
not, when himself of ability, draw upon 615. It follows, if this reasoning be
1 See a case in Pennsylvania, in which there was evidence that the seduction occurred while
the parties were "bundling," to the knowledge of the plaintiff, the girl's father. The custom
was snid to be general where the parties resided. The court, however, doubted this, but thought,
at any rate, that it should not be encouraged, and, for the plaintiff's knowledge of the " bund-
ling," gave judgment for the defendant. Hollis v. Wells, 3 Penn. Law J. Rep. 16b. See also
Reddie v. Scoolt, Peake, 240, where it was held that if the plaintiff, by his misconduct, con-
tribute to the seduction of his daughter, he cannot sue for her seduction. Seagero. Sligerland,
2 Caines, 219; Travis v. Barger, 24 Barb. 614; Graham v. Smith, 1 Edm. Sel. Cas. 267.
302
SEDUCTION AND ENTICING AWAY.
correct, that the guardian cannot sue.
It is therefore immaterial whether the
mother be actually guardian upon her
husband's death, or only entitled to
the appointment ; provided her suit be
brought as guardian. It seems, how-
ever, that under the old abolished writ
of ravishment of ward the guardian
could sue where the ward was procured
to leave him. See the case cited from
the Year-Books, ante, p. 299. But it is
to be observed that the Statute of
Merton as to ravishment of wards re-
lated to heirs under the age of four-
teen, when the infant ceased to be in
ward. Before that time the child could
give no valid consent to marriage as
against the guardian, and hence per-
haps the ravishment of the infant could
not be by consent, since such a mar-
riage was a ravishment. See Coke
Lift. 79 b ; 2 Inst. 202, 203. Thus, the
guardian could sue, because there could
be no consent to the wrong. The ques-
tion is now narrowed down to this :
Can the widow sue in her own right, as
having acquired to this extent the situ-
ation of the father ?
It seems difficult to affirm that the
widow succeeds legally to the position
of the father ; though Chancellor Kent,
as above quoted, says that the father's
rights would " by natural law," devolve
upon the mother. So far as succession
or descent is concerned, the rights of
the father would fall upon the child, as
his heir, giving him control over his
own services, and working, pro tanto,
his emancipation. See George v. Van
Horn, 9 Barb. 523, where it was held
that the personal representatives of the
father could not sue for a seduction
which had taken place in his lifetime.
If the widow possesses the power of
controlling the services of her infant
children, it would seem, from the above
consideration, that she must possess it
as of her own inherent right, — a right
which, dormant while the father lives,
comes into force upon his death. We
are inclined to think tin's the correct
view. Every consideration which
favors the natural or legal right of
the father to the services of his minor
children applies to the mother; and,
while the law cannot tolerate coequal
powers during the lifetime of both
parents, there is strong reason why the
power of the widow should be upheld,
aside from the reasons (if there are
more than one) in common with those
applying to the father. The mother
has not the physical strength of the
father, and she is in greater need of the
protection and support of her children.
She has endured suffering in the birth
and nursing of the children which the
father has not felt, and perhaps, from
absence, has scarcely known. Other
things being equal, the tie between the
mother and child is stronger than that
between father and child, especially
during minority. The mother's care
and influence during this period are
far more powerfully exerted than the
father's ; and it is safe, to say that
the child feels under stronger obliga-
tions to the former than to the latter, a
greater solicitude as to her comfort and
welfare, and a livelier willingness to
provide for her wants.
These considerations lead us to the
opinion that the widowed mother is en-
titled to sue for the seduction of her
minor daughter while the daughter
remains under her roof. And it was
lately so held in Gray v. Durland, 50
Barb. 100, s. c. 51 N. Y. 424, upon a
review of the cases, and in Damon v.
Moore, 5 Lans. 454.
But if it be not true that the widow
is legally entitled to her minor child's
RIGHTS OF WIDOW. DAUGHTER IN SERVICE OP THIRD PERSON. 803
services, we still think the action main-
tainable. Why should it be an excuse
to the seducer that the child was not
legally bound to serve her mother? If
she was trilling to serve her mother,
and, following her natural obligation,
preferred not to assert her indepen-
dence, how shall the seducer be justified
in preventing the mother from enjoying
this benefit ? If one will relinquish a
doubtful right under a strong moral
duty, shall a third person be permitted
to wickedly defeat the accomplishment ?
There are some strong analogies in
the law in favor of the right of action of
the widow under this view. The bor-
rower of goods retained beyond the
time allowed, or a tenant at will, or a
bailee of goods found, has a right of
action against any one interfering with
his possession, so long as the rightful
owner permits him to retain it ; and yet
the party so in possession has no legal
right to it. The owner is willing that
he should retain it ; and that is enough.
So of the infant female. Though
(possiblv) owner of her services, she is
willing, or, rather, generally desires
that her mother should have them ; and
that should be a sufficient reason why
the man who has prevented her mother
from enjoying them should pay her their
value. And Sutton v. Huffman, 3
Yroom, 58. and Lipe v. Eisenlerd, 32
>T. Y. 229, already referred to, are
direct authorities for this position.
There is a case which was tried be-
fore Lord Holt which also sustains this
view. Barber u. Dennis 2 Mod. 69 ;
s. c. 1 Salk. 68. In this case the widow
of a waterman had her apprentice taken
from her and put on board a Queen's
ship, where he earned two tickets,
which came to the defendant's hands,
and for which the mistress brought
trover. It was agreed that the action
would well lie if the apprentice were
a legal apprentice, for his possession
would be that of his mistress, and
whatever he earned would belong to
her. But it was objected that the com-
pany of watermen was a voluntary so-
ciety, and that the custom of London
for persons under age to bind them-
selves apprentices did not extend to
watermen ; which was agreed by all.
Then it was said that the supposed ap-
prentice was no legal apprentice if the
indentures were not enrolled according
to the act of Parliament ; and if he were
not a legal apprentice, the plaintiff had
no title. But Holt, C. J., said he
would understand him an apprentice
or servant de facto, and that would
suffice against them, being wrong-doers.
So, in Fitzh. N. B. 91 G., it is stated
that " if a man ought to have toll in a
fair, &c, and his servants are dis-
turbed in gathering the same, he shall
have trespass for assault of his servants,
and for the loss of their service ; "' to
which there is a note by Lord Hale, as
follows: "Trespass for beating his
servants, per quod servitium amisil, lies,
although he was not retained, but served
only at will. 11 H. 4, fo. 2, per Hull,
accordant. And so, if A. retains B. to
be his servant, who departs into another
county, and serves C, A., before any
request or seizure, cannot beat B. ;
and if he does, C. shall have trespass
against him (21 H. 6, fo. 9), and re-
cover damages, having regard to the
loss of service (22 Ass. 76) ; and the
retainer is traversable. 11 II. 6, fo.
30."
In the very late case of Furman v.
Van Size, 10 Albany L. J. 2.51, the
question was set at rest in Xew York
in favor of the widow's right of action.
The daughter was there in the employ
of another, under an agreement made
304
SEDUCTION AND ENTICING AWAY.
■with the mother, and was herself re-
ceiving the wages earned and applying
them to her own purposes, with the
mother's assent. And the fact that the
mother has remarried is not material.
Lampman v. Hammond, 3 N. Y. Sup.
Ct. Rep. 293. See 10 Albany L. J.
35-4, 400.
There is also direct authority to this
effect in England. In Harper v. Suff-
kin, 7 Barn. & C. 387, a married
woman, separated from her husband,
returned to her father's house and lived
with him, performing various acts of
service ; and it was held, in an action
by the father, for her seduction, that, as
against a wrong-doer, it was sufficient to
prove that the relation of master and ser-
vant existed de facto at the time of the
seduction, and that, in the absence of any
interference on the part of the husband,
it was not competent for the defendant
to set up the husband's right to the ser-
vices of the wife as an answer to the
action. See also Martinez v. Gerber,
3 Man. & G. 88 ; Gray v. Durland, 51
N. Y. 424.
In the late case of Evans v. Walton,
Law R. 2 C. P. 15, which was an ac-
tion for enticing away the plaintiffs
daughter, who was of age, and had
been assisting the plaintiff in his busi-
ness, the point was again raised by the
defendant that as there was no allega-
tion of a binding engagement to service
between the daughter and plaintiff, or
that the daughter had been debauched,
the action was not maintainable ; but
the court held the contrary, principally
upon the above authorities. "No
authority is to be found," said Bovill,
C. J., " where it has been held that in
an action for enticing away the plain-
tiff's daughter a binding contract of
service must be alleged and proved.
But there are abundant authorities to
show the contrary." As to Cox c.
Muncey, 6 Com. B. N. 8. 375, and
Sykes v. Dixon, 9 Ad. & E. 693, which
had been referred to by counsel as de-
ciding the contrary, the learned Chief
Justice distinguished them on the
ground that from the form of the dec-
laration in those cases it became neces-
sary to prove some contract of service
beyond that which the law would imply
from the relation of the parties. And
the same might be said of Lumley v.
Gye, 2 EI. & B. 216, post, p. 306.
Several recent American authorities
go still further, and hold that the widow
is legally entitled to the services of her
minor children, and may maintain as-
sumpsit for work and labor done by
them. Hammond v. Corbett, 50 N. H.
501 ; Matthewson v. Perry, 37 Conn.
435. And of this opinion is Mr.
Schouler. Domestic Rel. 325, 326.
Return and, Support of Child through,
Confinement. — As to the other question
raised by the conflict between Sargent's
Case and South v. Denniston, — whether
an action for seduction is maintainable
by the parent when the daughter was
at the time of the alleged injury in the
service of another, but had returned to
the parent before confinement, and was
supported until recovery, — we think
the Pennsylvania court right in decid-
ing it in the negative.
It will be observed that we have not
confined the question to the right of the
widow ; for if it be true that the father
is not bound to support his child (ex-
cept under the poor laws) , he stands in
no different relation to this question
from the widow. We submit, there-
fore, that an action under such circum-
stances cannot be maintained by either
parent.
The contrary involves an argument
such as this : True, the parent was
RETURN AND SUPPORT OP CHILD THROUGH CONFINEMENT. 305
under no legal obligation to support
the child, and was not therefore bound
to receive her back to his house ; but he
elected to do so, and as the child in
fact returned, and as he could have
compelled her service had it not been
for the wrongful act of the defendant,
the latter is liable to him for the loss
sustained.
This cannot be sound. It proceeds
upon the notion either that the defend-
ant has injured the plaintiff in respect
of a legal right, or that he has pre-
vented him from acquiring such a right.
But the case supposes that the parent
had divested himself of his right to his
daughter's services. He had no such
right when the act was committed; and
the defendant has not interfered with
the right which he acquired on receiv-
ing his daughter back to his house.
The-only right which the plaintiff has is
to the service of a disabled servant,
whom he has voluntarily received ; and
the'defendant has done nothing to im-
pair the value of this service, since that
would require an injury to be done after
the return of the daughter.
The other position, that the defend-
ant has prevented the plaintiff from
from acquiring the full benefit of the
daughter's services as a well person, is
equally untenable. It perhaps might
be true, if the plaintiff had previously
engaged his daughter to return to him,
and the defendant had seduced her with
knowledge of the fact, and intending to
prevent the plaintiff from enjoying the
services expected; but where there is
no such engagement or understanding,
it cannot be that the defendant is liable.
Xo one would suggest that one who
knocks down and disables a person
whom another would have employed,
and intended to employ, in his service,
could be liable to the latter, even
though the latter afterwards should
take the person for what he can still
do; at least, unless there was an en-
gagement to service known to the as-
sailant at the time.
This might all be different if the
parent were bound to provide for the
child, or if the case were within the act
of Elizabeth ; for the defendant would
be liable for all the natural damages
flowing from his act, of which the plain-
tiff's injury in such case would be one.
In the case, supposed it would not be
an injury to the plaintiff.
These propositions would cover the
case of an action by the widow for a
seduction of her daughter in the life-
time, and in the service, of the husband.
And so we find it held in Logan o.
Murray, 6 Serg. & R. 175, referred to
by Chief Justice Gibson, supra : also in
Vossel v. Cole, 10 Mo. 634. A con-
trary doctrine, which had been held by
a majority of the court in Coon v. Mof-
fitt, I Pennington, 583, was in this
case denied to be law. See also Parker
v. Meek, 3 Sneed, 29, in which such an
action was upheld, though the daughter
was of age when seduced.
So in Davies u. Williams, 10 Q. B.
725, where the daughter was seduced
by the defendant while in his service,
and, in consequence of her pregnancy,
returned to her mother, who maintained
her until after her confinement, it was
held by the whole court that the action
could not be maintained. Coleridge, J.,
said: "Where such relation is con-
tracted after the seduction, the state of
the case is, that the master employs a
servant who is less valuable by reason
of an antecedent occurrence ; there is
no consequential injury of which he can
complain."
20
306 SEDUCTION AND ENTICING AWAY.
LUMLEY V. GYE.
(2 El & B. 216. Queen's Bench, Trinity Term, 1853.)
Enticing to break Contract. 1st and 2d counts of the declaration, by lessee of a the-
atre, for maliciously procuring W. (who had agreed with plaintiff to perform and
sing at his theatre, and nowhere else, for a certain term) to break her contract,
and not to perform or sing at plaintiff's theatre, and to continue away during the
time for which W. was engaged. 3d count, averring that W. had engaged with
plaintiff to be, and had become and was, plaintiff's dramatic artiste for a certain
term, and complaining that defendant maliciously procured her to depart out of
her said employment during the term. On demurrer, held, by Wightman, Erie,
and Crompton, JJ., that the counts were all good, and that an action lies for
maliciously procuring a breach of contract to give exclusive personal services for
a time certain, equally whether the employment has commenced or is only in fieri,
provided the procurement be during the subsistence of the contract, and produce
damage ; and that, to sustain such an action, it is not necessary that the employer
and employed should stand in the strict relation of master and servant. Semble,
by the same judges, that the action would lie for the malicious procurement
of the breach of any contract, though not for personal services, if by the procure-
ment damage was intended to result, and did result, to the plaintiff. Coleridge, J.,
dissentiente.
The first count of the declaration stated that plaintiff was
lessee and manager of the Queen's Theatre, for performing
operas for gain to him ; and that he had contracted and agreed
with Johanna Wagner to perform in the theatre for a certain
time, with a condition, amongst others, that she should not sing
nor use her talents elsewhere during the term without plaintiff's
consent in writing. Yet defendant, knowing the premises, and
maliciously intending to injure plaintiff as lessee and manager of
the theatre, whilst the agreement with Wagner was in force, and
' before the expiration of the term, enticed and procured Wagner
to refuse to perform; by means of which enticement and pro-
curement of defendant, Wagner wrongfully refused to perform,
and did not perform during the term.
Count 2, for enticing and procuring Johanna Wagner to con-
tinue to refuse to perform during the term after the order of
Vice-Chancellor Parker, affirmed by Lord St. Leonards,1 restrain-
ing her from performing at a theatre of defendant's.
Count 3. That Johanna Wagner had been and was hired by
plaintiff to sing and perform at his theatre for a certain time, as
the dramatic artiste of plaintiff, for reward to her, and had
1 See Lumley v. Wagner, 1 De G., M. & G. 604.
LUMLEY V. GYE. 307
become and was such dramatic artiste of plaintiff at his theatre.
let defendant, well knowing, &c, maliciously enticed and pro-
cured her, then being such dramatic artiste, to depart from the
said employment.
In each count special damage was alleged. Demurrer; joinder.
The demurrer was argued in the sittings after Hilary Term last,
before Coleridge, Wightman, Erie, and Crompton, JJ.
Willis, for the defendant. The counts disclose a breach of
contract on the part of Wagner, for which the plaintiff's remedy
is by an action on the contract against her. The relation of
master and servant is peculiar ; and, though it originates in a
contract between the employer and the employed, it gives rise
to rights and liabilities on the part of the master different from
those which would result from any other contract. Thus, the
master is liable for the negligence of his servant, whilst an ordi-
nary contractor is not liable for that of the person with whom he
contracts. And a master may lawfully defend his servant, when
a contractor may not defend his contractee. And so a master
may bring an action for enticing away his servant. But these
are anomalies, having their origin in times when slavery existed;
they are intelligible on the supposition that the servant is the
property of his master ; and, though they have been continued
long after all but free service has ceased, they are still confined
to cases where the relation of master and servant, in the strict
sense, exists. In the present case "Wagner is a dramatic artiste,
not a servant in any sense. (It is unnecessary to report the
argument for the defendant further in detail, as the points made
in it, and the authorities relied upon, are fully stated in the judg-
ments of Crompton and Wightman, JJ.)
Cowling, contra. The general principle is laid down in
Comyns's Digest, Action upon the Case (A) : " In all cases
where a man has a temporal loss or damage by the wrong of
another, he may have an action upon the case, to be repaired in
damages." In Comyns's Digest, Action upon the Case for Mis-
feasance (A 6), an instance is given : " If he threaten the ten-
ants of another, whereby they depart from their tenures," citing
1 Rol. Abr. 108, Action but Case (N), pi. 21. An action lies for
procuring plaintiff's wife to remain absent. Winsmore v. Green-
bank, Willes, 577, post. An action lay for ravishment of ward ;
and, if " a man procureth a ward to go from his guardian, this is
308 SEDUCTION AND ENTICING AWAY.
a ravishment in law." 2 Inst. 440. Now, as neither the ten-
ants, the wife, nor the ward are servants, it cannot be said that
the action for procurement is an anomaly confined to the case of
master and servant. " Every master has by his contract pur-
chased for a valuable consideration the services of his domestics
for a limited time ; the inveigling or hiring his servant, which
induces a breach of this contract, is therefore an injury to the
master ; and for that injury the law has given a remedy by a
special action on the case. And he may also have an action
against the servant for the non-performance of his agreement."
3 Bl. Com. 142. Blackstone thus treats the action by a master
as an example' for a general rule, that "inducing a breach of
contract " is an injury for which an action lies. And surely any
one, not a lawyer, would agree that the malicious and intentional
procurement of a breach of contract was a wrong, and that the
breach of contract intended to be procured was the direct con-
sequence of that wrongful procurement. Green v. Button, 2
C, M. & R. 707, is apparently an authority for that larger prop-
osition ; and so is Sheperd v. Wakeman, 1 Sid. 79. It is not
accurate to say that the remedy for breach of contract is confined
to those privy to the contract. Levy v. Langridge, 4 M. & W.
337 ; affirming the judgment of the Exchequer in Langridge v.
Levy, 2 M. & W. 519. In that case the son recovered, though
the warranty was to the father. It is true that the damage to
the plaintiff must be the natural and immediate consequence
of the wrong of the defendant, and that it is not often that the
unjustifiable act of an independent party is the natural conse-
quence of that wrong ; but when, as on this demurrer must be
taken to be the fact, the defendant uses the contracting party as
his tool to break the contract to the damage of the plaintiff, why
should he not be answerable for the damage he thus intentionally
produces ? The procurement may in some cases be privileged,
just as a libel or slander may be ; but here it is malicious. It is,
however, unnecessary to go so far in this case, as the contract is
for exclusive personal services, and the authorities are clear that
in such cases the action lies. (The arguments for the plaintiff on
this part of the case, and the authorities cited, are so fully stated
in the judgment that it is unnecessary to repeat them here.)
Willes, in reply. The averment of malice can make no differ-
ence. If the action does not lie without malice, it does not lie
LUMLEY V. GYE. 309
with it ; and malice is never averred in actions for seducing ser-
vants. The passage cited from Comyns's Digest, Action upon the
Case (A), does not throw much light on the matter. It is not dis-
puted that damage resulting from a wrong gives a cause of action ;
but the defendant's point is, that the act complained of is not a
wrong within the technical meaning of the word ; and this is an
instance of the rule, ex damno sine injuria non oritur actio. The
instances cited, as supporting the general proposition, all range
themselves under some well-known class of wrongs. The refer-
ence in Comyns's Digest, Action upon the Case for Misfeasance
(A 6 ). is to 1 Roll. Ab. 108, Action sur Case (N), pi. 21 ; where
it appears that the menaces were to " tenants at will, of life and
limb." The tenants, therefore, were not bound, to remain ; and the
threats of life and limb must have been an interference with
the plaintiff's property. Ravishment of ward also proceeds on
the ground that the guardian had a property in his ward. Wins-
more v. Greenbank, Willes, 577, extends the law as to enticing
servants to enticing a wife ; but the principle is the same. The
common law considers the wife the property and servant of the
husband. In Sheperd v. Wakeman, 1 Sid. 79, the action was for
asserting that the plaintiff was already married per quod she lost
her marriage ; but to assert that a woman is about to commit
bigamy is actionable per se. Levy v. Langridge, 4 M. & W. 337,
was decided on the ground that there was what was equivalent to
a fraudulent representation to the plaintiff as an article which he
was to use. The act complained of in Green v. Button, 2 C, M.
& R. 707, was also a wrong in itself. The injury done was anal-
ogous to slander of title. (The argument in reply, as to the effect
of the contract being for exclusive service, is sufficiently shown
by the judgments.) Cur. adv. vult.
In this term (June 3) the learned judges, being divided in
opinion, delivered their judgments seriatim.
Crompton, J. The declaration in this case consisted of three
counts. The first two stated a contract between the plaintiff, the
proprietor of the Queen's Theatre, and Miss Wagner, for the per-
formance by her for a period of three months at the plaintiff's
theatre ; and it then stated that the defendant, knowing the
premises and with a malicious intention, whilst the agreement
was in full force, and before the expiration of the period for
which Miss Wagner was engaged, wrongfully and maliciously
310 SEDUCTION AND ENTICING AWAY.
enticed and procured Miss "Wagner to refuse to sing or perform
at the theatre, and to depart from and abandon her contract with
the plaintiff and all service thereunder, whereby Miss Wagner
wrongfully, during the full period of the engagement, refused
and made default in performing at the theatre ; and special dam-
age arising from the breach of Miss Wagner's engagement was
then stated. The third count stated that Miss Wagner had been
hired and engaged by the plaintiff, then being the owner of Her
Majesty's Theatre, to perform at the said theatre for a certain
specified period as the dramatic artiste of the plaintiff for reward
to her in that behalf, and had become and was such dramatic
artiste for the plaintiff at his said theatre for profit to the plaintiff
in that behalf ; and that the defendant, well knowing the prem-
ises and with a malicious intention, whilst Miss Wagner was such
artiste of the plaintiff, wrongfully and maliciously enticed and
procured her, so being such artiste of the plaintiff, to depart from
and out of the said employment of the plaintiff, whereby she
wrongfully departed from and out of the said service and em-
ployment of the plaintiff, and remained and continued absent
from such service and employment until the expiration of her
said hiring and engagement to the plaintiff by effluxion of time ;
and special damage arising from the breach of Miss Wagner's
engagement was then stated. To this declaration the defendant
demurred ; and the question for our decision is, whether all or
any of the counts are good in substance.
The effect of the first two counts is, that a person, under a bind-
ing contract to perform at a theatre, is induced, by the malicious
act of the defendant, to refuse to perform and entirely to abandon
her contract ; whereby damage arises to the plaintiff, the proprie-
tor of the theatre. The third count differs, in stating expressly
that the performer had agreed to perform as the dramatic artiste
of the plaintiff, and had become and was the dramatic artiste of
the plaintiff, for reward to her, and that the defendant maliciously
procured her to depart out of the employment of the plaintiff as
such dramatic artiste, whereby she did depart out of the employ-
ment and service of the plaintiff, whereby damage was suffered by
the plaintiff. It was said, in support of the demurrer, that it did
not appear in the declaration that the relation of master and ser-
vant ever subsisted between the plaintiff and Miss Wagner ; that
Miss Wagner was not averred, especially in the first two counts,
LUMLEY V. GYE. 311
to have entered upon the service of the plaintiff; and that the
engagement of a theatrical performer, even if the performer has
entered upon the duties, is not of such a nature as to make the
performer a servant, within the rule of law which gives an action
to the master for the wrongful enticing away of his servant. And
it was laid down broadly, as a general proposition of law, that no
action will lie for procuring a person to break a contract, although
such procuring is with a malicious intention, and causes great and
immediate injury. And the law as to enticing servants was said
to be contrary to the general rule and principle of law, and to be
anomalous, aud probably to have had its origin from the state of
society when serfdom existed, and to be founded upon, or upon
the equity of, the Statute of Laborers. It was said that it would
be dangerous to hold that an action was maintainable for persuad-
ing a third party to break a contract, unless some boundary or
limits could be pointed out ; and that the remedy for enticing
away servants was confined to cases where the relation of master
and servant, in a strict sense, subsisted between the parties ; and
that in all other cases of contract the only remedy was against
the party breaking the contract.
Whatever may have been the origin or foundation of the law
as to enticing of servants, and whether it be, as contended by the
plaintiff, an instance and branch of a wider rule, or whether it be,
as contended by the defendant, an anomaly and an exception from
the general rule of law on such subjects, it must now be consid-
ered clear law that a person who wrongfully and maliciously, or,
which is the same thing, with notice, interrupts the relation sub-
sisting between master and servant, by procuring the servant to
depart from the master's service, or by harboring and keeping him
as servant after he has quitted it, and during the time stipulated
for, as the period of service, whereby the master is injured, com-
mits a wrongful act for which he is responsible at law. I think
that the rule applies wherever the wrongful interruption operates
to prevent the service during the time for which the parties have
contracted that the service shall continue ; and I think that the
relation of master and servant subsists, sufficiently for the purpose
of such action, during the time for which there is in existence a
binding contract of hiring and service between the parties ; and I
think that it is a fanciful and technical and unjust distinction to
say that the not having actually entered into the service, or that
312 SEDUCTION AND ENTICING AWAY.
the service not actually continuing, can make any difference. The
■wrong and injury are surely the same, whether the wrong-doer
entices away the gardener, who has hired himself for a year, the
night before he is to go to his work, or after he has planted the
first cabbage on the first morning of his service ; and I should be
sorry to support a distinction so unjust, and so repugnant to com-
mon sense, unless bound to do so by some rule or authority of law
plainly showing that such distinction exists. The proposition of
the defendant, that there must be a service actually subsisting,
seems to be inconsistent with the authorities that show these
actions to be maintainable for receiving or harboring servants
after they have left the actual service of the master. In Blake v.
Lanyon, 6 T. R. 221, it was held by the Court of King's Bench, in
accordance with the opinion of Gawdy, J., in Adams v. Bafeald,
Leon. 240, and against the opinion of the two other judges who
delivered their opinion in that case, that an action will lie for con-
tinuing to employ the servant of another after notice, without
having enticed him away, and although the defendant had re-
ceived the servant innocently. It is there said that " a person
who contracts with another to do certain work for him is the ser-
vant of that other till the work is finished, and no other person
can employ such servant to the prejudice of the first master ; the
very act of giving him employment is affording him the means of
keeping him out of his former service." This appears to me to
show that we are to look to the time during which the contract of
service exists, and not to the question whether an actual service
subsists at the time. In Blake v. Lanyon, 6 T. R. 221, the party,
so far from being in the actual service of the plaintiff, had aban-
doned that service, and entered into the service of the defendant
in which he actually was ; but inasmuch as there was a binding
contract of service with the plaintiff, and the defendant kept the
party after notice, he was held liable to an action. Since this
decision, actions for wrongfully hiring or harboring servants after
the first actual service had been put an end to have been frequent.
See Pilkington v. Scott, 15 M. & W. 657 ; Hartley v. Cummings,
5 Com. B. 247. In Sykes v. Dixon, 9 A. & E. 693, where the dis-
tinction as to the actual service having been put an end to was
relied upon for another purpose, it does not seem to have occurred
to the bar or the court that the action would fail on account of
there having been no actual service at the time of the second hir-
LUMLEY V. GYE. 313
ing or the harboring ; but the question as to there being or not
being a binding contract of service in existence at the time seems
to have been regarded as the real question.
The objection as to the actual employment not having com-
menced would not apply in the present case to the third count,
which states that Miss Wagner had become the artiste of the
plaintiff, and that the defendant had induced her to depart from
the employment. But it was further said that the engagement,
employment, or service, in the present case, was not of such a
nature as to constitute the relation of master and servant, so as
to warrant the application of the usual rule of law giving a
remedy in case of enticing away servants. The nature of the
injury and of the damage being the same, and the supposed
right of action being in strict analogy to the ordinary case of
master and servant, I see no reason for confining the case to
services or engagements under contracts for service of any par-
ticular description ; and I think that the remedy, in the absence
of any legal reason to the contrary, may well apply to all cases
where there is an unlawful and malicious enticing away of any
person employed to give his personal labor or service for a given
time under the direction of a master or employer who is injured
by the wrongful act, more especially when the party is bound
to give such personal services exclusively to the master or em-
ployer : though I by no means say that the service need be exclu-
sive. Two nisi prius decisions were cited by the counsel of the
defendant in support of this part of the argument. One of
these cases, Ashley v. Harrison, 1 Peake's N. P. C. 194,
s. c. 1 Esp. N. P. C. 48, was an action against the de-
fendant for having published a libel against a performer, where-
by she was deterred from appearing on the stage ; and Lord
Kenyon held the action not maintainable. This decision appears,
especially from the report of the case in Espinasse, to have pro-
ceeded on the ground that the damage was too remote to be
connected with the defendant's act. This was pointed out as
the real reason of the decision by Mr. Erskine in the case of
Tarleton v. M'Gawley, 1 Peake's N. P. C. 207, tried at the same
sittings as Ashley v. Harrison, 1 Peake's N. P. C. 194, s. c. 1
Esp. N. P. C. 48. The other case, Taylor v. Neri, 1 Esp. N. P.
C. 386, was an action for an assault on a performer, whereby the
plaintiff lost the benefit of his services ; and the Lord Chief
314 SEDUCTION AND ENTICING AWAY.
Justice Eyre said that he did not think that the court had ever
gone further than the case of a menial servant; for that, if a
daughter had left the service of her father, no action per quod
servitium amisit would lie. -He afterwards observed that, if such
action would lie, every man whose servant, whether domestic or
not, was kept away a day from his business could maintain an
action ; and he said that the record stated that Breda was a ser-
vant hired to sing, and in his judgment he was not a servant at
all ; and he nonsuited the plaintiff. Whatever may be the law
as to the class of actions referred to, for assaulting or debauching
daughters or servants per quod servitium amisit, and which differ
from actions of the present nature for the wrongful enticing or
harboring with notice, as pointed out by Lord Kenyon in Fores
v. Wilson, 1 Peake's N. P. C. 55, it is clear from Blake v. Lan-
yon, 6 T, R. 221, and other subsequent cases, Sykes v. Dixon,
9 A. & E. 693, Pilkington v. Scott, 15 M. k W. 697, and Hart-
ley v. Cummings, 5 Com. B. 247, that the action for maliciously
interfering with persons in the employment of another is not
confined to menial servants, as suggested in Taylor v. Neri. In
Blake v. Lanyon a journeyman who was to work by the piece,
and who had left his work unfinished, was held to be a servant
for the purposes of such an action ; and I think that it was most
properly laid down by the court in that case that a person who
contracts to do certain work for another is the servant of that
other (of course with reference to such an action) until the
work be finished. It appears to me that Miss Wagner had con-
tracted to do work for the plaintiff within the meaning of this
rule ; and I think that, where a party has contracted to give his
personal services for a certain time to another, the parties are in
the relation of employer and employed, or master and servant,
within the meaning of this rule. And I see no reason for nar-
rowing such a rule ; but I should rather, if necessary, apply
such a remedy to a case " new in its instance, but " " not new
in the reason and principle of it " (per Holt, C. J., in Keeble
v. Hickeringall, 11 East, 573, 575, note (a) to Carrington v. Tay-
lor, 11 East, 571) ; that is, to a case where the wrong and damage
are strictly analogous to the wrong and damage in a well-recog-
nized class of cases. In deciding this case on the narrower
ground, I wish by no means to be considered as deciding that
the larger ground taken by Mr. Cowling is not tenable, or as
LUMLEY V. GYE. 315
saying that in no case except that of master and servant is an
action maintainable for maliciously inducing another to break a
contract to the injury of the person with whom such contract has
been made. It does not appear to me to be a sound answer to
say that the act in such eases is the act of the party who breaks
the contract ; for that reason would apply in the acknowledged
case of master and servant. Nor is it an answer to say that
there is a remedy against the contractor, and that the party
relies on the contract ; for, besides that reason also applying to
the case of master and servant, the action on the contract and
the action against the malicious wrong-doer may be for a different
matter ; and the damages occasioned by such malicious injury
might be calculated on a very different principle from the amount
of the debt, which might be the only sum recoverable on the
contract. Suppose a trader, with a malicious intent to ruin a
rival trader, goes to a banker or other party who owes money to
his rival, and begs him not to pay the money which he owes him,
and by that means ruins or greatly prejudices the party. I am
by no means prepared to say that an action could not be main-
tained, and that damages, beyond the amount of the debt, if the
injur)' were great, or much less than such amount if the injury
were less serious, might not be recovered. Where two or more
parties were concerned in inflicting such injury, an indictment or
a writ of conspiracy at common law might perhaps have been
maintainable ; and, where a writ of conspiracy would lie for an
injury inflicted by two, an action on the case in the nature of
conspiracy will generally lie ; and in such action on the case the
plaintiff is entitled to recover against one defendant without
proof of any conspiracy, the malicious injury and not the con-
spiracy being the gist of the action. See note (4) to Skinner v.
Gunton, 1 Wins. 230. In this class of cases it must be assumed
that it is the malicious act of the defendant, and that malicious
act only, which causes the servant or contractor not to perform
the work or contract which he would otherwise have done. The
servant or contractor may be utterly unable to pay any thing like
the amount of the damage sustained entirely from the wrongful
act of the defendant ; and it would seem unjust and contrary to
the general principles of law, if such wrong-doer were not respon-
sible for the damage caused by his wrongful and malicious act.
316 SEDUCTION AND ENTICING AWAY.
Several of the cases cited by Mr. Cowling on this part of the
case seem well worthy of attention.
Without, however, deciding any such more general question, I
think that we are justified in applying the principle of the action
for enticing away servants to a case where the defendant mali-
ciously procures a party, who is under a valid contract to give
her exclusive personal services to the plaintiff for a specified
period, to refuse to give such services during the period for
which she had so contracted, wherebjr the plaintiff was injured.
I think, therefore, that our judgment should be for the plain-
tiff.
Erle, J. The question raised upon this demurrer is, whether
an action will lie by the proprietor of a theatre against a person
who maliciously procures an entire abandonment of a contract to
perform exclusively at that theatre for a certain time, whereby
damage was sustained. And it seems to me that it will. The
authorities are numerous and uniform that an action will lie by
a master against a person who procures that a servant should un-
lawfully leave his service. The principle involved in these cases
comprises the present ; for there the right of action in the master
arises from the wrongful act of the defendant in procuring that
the person hired should break his contract, by putting an end
to the relation of employer and employed ; and the present case is
the same. If it is objected that this class of actions for procuring
a breach of contract of hiring rests upon no principle, and ought
not to be extended beyond the cases heretofore decided, and that,
as those have related to contracts respecting trade, manufactures,
or household service, and not to performance at a theatre, there-
fore they are no authority for an action in respect of a contract for
such performance, — the answer appears to me to be that the class
of cases referred to rests upon the principle that the procurement
of the violation of the right is a cause of action, and that, when
this principle is applied to a violation of a right arising upon a con-
tract of hiring, the nature of the service contracted for is im-
material. It is clear that the procurement of a violation of a right
is a cause of action in all instances where the violation is an ac-
tionable wrong, as in violations of a right to property, whether
real or personal, or to personal security ; he who procures the
wrong is a joint wrong-doer, and may be sued, either alone or
LUMLEY ('. GYE. 317
jointly with the agent, in the appropriate action for the wrong
complained of. "Where a right to the performance of a contract
has been violated by a breach thereof, the remedy is upon the
contract against the contracting party ; and if he is made to
indemnify for such breach, no farther recourse is allowed ; and, as
in case of the procurement of a breach of contract, the action is for
a wrong, and cannot be joined with the action on the contract ;
and as the act itself is not likely to be of frequent occurrence
nor easy of proof, therefore the actions for this wrong, in respect
of other contracts than those of hiring, are not numerous ; but still
they seem to me sufficient to show that the principle has been rec-
ognized. In Winsmore v. Greenbank, Willes, 577 [post], it was
decided that the procuring of a breach of the contract of a wife is
a cause of action. The only distinction in principle between this
case and other cases of contracts is that the wife is not liable to be
sued. But the judgment rests on no such grounds ; the procuring
a violation of the plaintiff's right under the marriage contract is
held to be an actionable wrong. In Green v. Button, 2 C, M. &
R. 707, it was decided that the procuring a breach of a contract
of sale of goods by a false claim of lien is an actionable wrong.
Sheperd v. Wakeman, 1 Sid. 79, is to the same effect, where the
defendant procured a breach of a contract of marriage by assert-
ing that the woman was already married. In Ashley v. Harrison,
1 Peake's X. P. C. 194, s. c. 1 Esp. N. P. C. 48, and in Taylor
v. Xeri, 1 Esp. N. P. C. 386, it w-as properly decided that the
action did not lie, because the battery in the first case, and the
libel in the second case, upon the contracting parties were not
shown to be with intent to cause those persons to break their con-
tracts, and so the defendants, by their wrongful acts, did not
procure the breaches of contract which were complained of. If
they had so acted for the purpose of procuring those breaches, it
seems to me they would have been liable to the plaintiffs. To
these decisions, founded on the principle now relied upon, the
cases for procuring breaches of contracts of hiring should be
added ; at least, Lord Mansfield's judgment in Bird v. Randall,
3 Burr. 1345, is to that effect. This principle is supported by
good reason. He who maliciously procures a damage to another
by violation of his right ought to be made to indemnity ; and that,
whether he procures an actionable wrong or a breach of contract.
He who procures the non-delivery of goods according to contract
318 SEDUCTION AND ENTICING AWAY.
may inflict an injury, the same as he who procures the abstraction
of goods after delivery ; and both ought, on the same ground, to
be made responsible. The remedy on the contract may be in-
adequate, as where the measure of damages is restricted ; or, in
the case of non-payment of a debt, where the damage may be
bankruptcy to the creditor who is disappointed, but the measure
of damage against the debtor is interest only ; or, in the case of
the non-delivery of the goods, the disappointment may lead to a
heavy forfeiture under a contract to complete a work within a
time, but the measure of damages against the vendor of the goods
for non-delivery may be only the difference between the contract
price and the market value of the goods in question at the time
of the breach. In such cases he who procures the damages
maliciously might justly be made responsible beyond the liability
of the contractor.
With respect to the objection that the contracting party had
not begun the performance of the contract, I do not think it a
tenable ground of defence. The procurement of the breach of
the -contract may be equally injurious, whether the service has
begun or not, and, in my judgment, ought to be equally action-
able, as the relation of employer and employed is constituted by
the contract alone, and no act of service is necessary thereto.
The result is that there ought to be, in my opinion, judgment
for the plaintiff.
Wightman, J.1 This was a demurrer to a declaration in an action
against the defendant for maliciously, and with intent to injure
the plaintiff, causing, procuring, and enticing Miss Wagner, who
had contracted with the plaintiff to sing at his theatre, to break
her contract and refuse to sing, by which he sustained damage.
The declaration contained three counts. The first two are
for wrongfully and maliciously enticing and procuring Miss Wag-
ner to refuse and make default in the performance of an executory
contract, entered into by her with the plaintiff, to sing and other-
wise perform at his theatre, and to depart from and abandon
her contract with the plaintiff and all service thereunder, with-
out alleging that Miss Wagner was in the service and employ of
the plaintiff, and that she left such service and employ by the
procurement and enticement of the defendant. The third count
1 Lord Campbell, C. J., read this judgment, Wightman, J., being absent in
consequence of indisposition.
LUMLEY V. GYE. 319
states that Miss Wagner, before the committing the grievances
complained of by the plaintiff, had been and was hired and en-
gaged by the plaintiff to sing and perform at his theatre from the
15th April, 1S52, to 15th July following, as the dramatic artiste of
the plaintiff, and that she had become and was such dramatic
artiste of the plaintiff, and that the defendant, well knowing the
premises, wrongfully and maliciously enticed and procured the
said Miss Wagner to depart from and out of the said employment
of the plaintiff, and to continue absent from it until the end of
the period for whiclushe was engaged. The first two counts are
for maliciously procuring Miss Wagner to break a contract for ser-
vices, and to refuse to perform it ; and the third is for maliciously
procuring her to depart from the employment of the plaintiff.
It was contended, for the defendant, that an action is not
maintainable for inducing another to break a contract, though the
inducement is malicious and with intent to injure ; and that the
breach of contract complained of is, in contemplation of law,
the wrongful act of the contracting party, and not the consequence
of the malicious persuasion of the party charged which ought not
to have had any effect or influence ; and that the damage is not
the legal consequence of the acts of the defendant. It was
further urged that the cases in which actions have been held
maintainable for seducing servants and apprentices from the em-
ploy of their masters are exceptions to the general rule, and are
not to be extended ; and that the present case, as it appears upon
the declaration, is not within any of the excepted cases.
With respect to the first and second counts of the declaration,
it was contended for the plaintiff, that an action on the case is
maintainable for maliciously procuring a person to refuse to per-
form a contract into which he has entered, and by which refusal
the plaintiff has sustained an injury ; and, though no case was
cited upon the argument in which such an action had been brought
or directly held to be maintainable, it was said that on principle
such action was maintainable ; and the authority of Lord Chief
Baron Comyns was cited that in all cases where a man has a tem-
poral loss or damage by the wrong of another, he may have an
action on the case. In the present case there is the malicious
procurement of Miss Wagner to break her contract, and the con-
sequent loss to the plaintiff. Why, then, may not the plaintiff
maintain an action on the case ? Because, as it is said, the loss
320 SEDUCTION AND ENTICING AWAY.
or damage is not the natural or legal consequence of the acts of
the defendant. There is the injuria, and the damnum ; but it is
contended that the damnum is neither the natural nor legal con-
sequence of the injuria, and that, consequently, the action is not
maintainable, as the breaking her contract was the spontaneous
act of Miss Wagner herself, who was under no obligation to yield
to the persuasion or procurement of the defendant. And the case
of Vicars v. Wilcocks, 8 East, 1, which, though it has been much
brought into question, has never been directly overruled, was
relied upon as an authority upon this point for the defendant.
That case, however, is clearly distinguishable from the present,
upon the ground, suggested by Lord Chief Justice Tindal in Ward
v . Weeks, 7 Bing. 211, 215, that the damage in that case, as well
as in Vicars v. Wilcocks, 8 East, 1, was not the necessary conse-
quence of the original slander uttered by the defendants, but the
result of spontaneous and unauthorized communications made by
those to whom the words were uttered by the defendants. The
distinction is taken in Green v. Button, 2 C, M. & R. 707, in which
it was held that an action was maintainable against the defendant
for maliciously and wrongfully causing certain persons to refuse
to deliver goods to the plaintiff, by asserting that he had a lien
upon them, and ordering these persons to retain the goods until
further orders from him. It was urged for the defendant in that
case, that, as the persons in whose custody the goods were, were
under no legal obligation to obey the orders of the defendant, it
was the mere spontaneous act of these persons which occasioned
the damage to the plaintiff ; but the court held the action to be
maintainable, though the defendant did make the claim as of right,
he having done so maliciously and without any reasonable cause,
and the damage accruing thereby. In Winsmore v. Greenbank,
Willes, 577, the plaintiff in his first count alleged that, his wife
having unlawfully left him and lived apart from him, during
which time a considerable fortune was left for her separate use,
and she being willing to return to the plaintiff, whereby he would
have had the benefit of her fortune, the defendant, in order to
prevent the plaintiff from receiving any benefit from the' wife's
fortune and the wife from being reconciled to him, unlawfully and
unjustly persuaded, procured, and enticed the wife to continue
absent from the plaintiff, and she did by means thereof continue
absent from him, whereby he lost the comfort and society of the
LUMLEY V. GYE. 321
wife and her aid in his domestic affairs, and the profit and advan-
tage he would have had from her fortune. Upon motion in arrest
of judgment this count was held good, and that it sufficiently ap-
peared that there was both damnum and injuria. It was prima
facie an unlawful act of the wife to live apart from her husband ;
and it was unlawful and therefore tortious in the defendant to
procure and persuade her to do an unlawful act ; and, as the dam-
age to the plaintiff was occasioned thereby, an action on the case
was maintainable. This case appears to me to be an exceedingly
strong authority in the plaintiff's favor in the present case. It
was undoubtedly prima facie an unlawful act on the part of Miss
Wagner to break her contract, and therefore a tortious act of the
defendant maliciously to procure her to do so ; and, if damage to
the plaintiff followed in consequence of that tortious act of the
defendant, it would seem, upon the authority of the two cases
referred to of Green v. Button, 2 C, M. & R. 707, aud Winsmore
v . Greenbank, Willes, 577, as well as upon general principle, that
an action on the case is maintainable. A doubt was expressed by
Lord Eldon, in Morris v. Langdale, 2 Bos. & Pul. 284, 289, whether
in an action on the case for slander the plaintiff could succeed
upon an allegation of special damage that, by reason of the speak-
ing of the words, other persons refused to perform their contracts
with him ; Lord Eldon observing that that was a damage which
might be compensated in actions by the plaintiff against such per-
sons. It has, however, been remarked with much force by Mr.
Starkie, in his Treatise on the Law of Libel, vol. 1, p. 205 (2d ed.),
that such a doctrine would be productive of much hardship in
many cases, as a mere right of action for damages for non-perform-
ance of a contract can hardly be considered a full compensation
to a person who has lost the immediate benefit of the performance
of it. The doubt, indeed, is hardly sustainable on principle ; and
there are many cases in which actions have been maintained for
slanderous words, not in themselves actionable, on the ground of
the speaking of the words having induced other persons to act
wrongfully towards the plaintiff ; as in the case of Newman v.
Zachary, Aleyn, 3, where an action on the case was held to be
maintainable for wrongfully representing to the bailiff of a manor
that a sheep was an estray, in consequence of which it was wrong-
fully seized. Upon the whole, therefore, I am of opinion that,
upon the general principles upon which actions upon the case are
21
322 SEDUCTION AND ENTICING AWAY.
founded, as well as upon authority, the present action is main-
tainable.
It is not, however, necessary for the maintenance of the third
count of the declaration, at least, to rely upon so general a prin-
ciple ; for the case, at all events, appears to me to fall within
the cases which the defendant considers are exceptions to a
general rule, and in which actions have been held maintainable
for procuring persons to quit the service in which they had been
retained and employed. The defendant contends that the excep-
tion is limited to the cases of apprentices and menial servants
and others to whom the provisions of the Statute of Laborers
would be applicable. It appears to me, however, upon consid-
eration of the eases cited upon the argument, that the right of
an employer to maintain an action on the case for procuring or
inducing persons in his service to abandon their employment is
not so limited ; but that it extends to the case of persons who
have contracted for personal service for a time, and who during
the period have been wrongfully procured and incited to aban-
don such service, to the loss of the persons whom they had con-
tracted to serve. The right to maintain such an action is by
the common law, and not by the Statute of Laborers, which,
however, gives a remedy, which the common law does not, in
cases where persons, within the purview of the statute, have
voluntarily left the service in which they were engaged, and
have been retained by another who knew of their previous em-
ployment. In Brooke's Abridgment, tit. Laborers, pi. 21, it is
said : " In trespass it was agreed that, at common law, if a man
had taken my servant from me, trespass lay vi et armis ; but if he
had procured the servant to depart and he retained him, action lay
not at common law vi et armis, but it lay upon the case upon the
departure by procurement." In the case of Adams v. Bafeald, 1
Leo. 240, where the plaintiff declared that his servant departed his
service without cause, and the defendant knowing him to be his
servant retained him, two judges out of three held that the action
did not lie at common law unless the defendant procured him to
leave the service. In all these cases the words " servant " and
" service " are used ; but there is nothing to indicate the kind
of servant or of service in respect of which the dicta and deci-
sions occurred. There is a case in the Year-Book, Mich. 10 H. 6,
pi. 30, fol. 8 B, in which it is said that an action does not lie
LUMLET V. GYE. 323
against a chaplain upon the Statute of Laborers for not chant-
ing the mass ; for it is said he may not be always disposed to
sing, and can no more be coerced by force of the statute than a
knight, esquire, or gentleman. There is no doubt but that the
Statute of Laborers only applied to persons whose only means of
living was by the labor of their hands. It was passed in the
25th year of Edward the Third, stat. 1, and recites that so many
of the people, especially workmen and servants, had died of the
plague, that those that remained required excessive wages, and
that there was lack of ploughmen and such laborers, and then
obliged every person within the age of sixty, not living in mer-
chandise, nor exercising any craft, nor having of his own whereof
he may live, nor proper land which he may till himself, to serve
whoever might require him to such wages as were paid in the
twentieth year of the king's reign, or five or six other years
before. The remedies and penalties given by this and the next
subsequent Statute of Laborers were _ limited to the persons
described in them ; but the remedies given by the common law
are not in terms limited to any description of servant or service.
The more modern cases give instances, and contain dicta of
judges, which appear to warrant a more extended application of
the right of action for procuring a servant to leave his employ-
ment than that contended for by the defendant. In Hart v.
Aldridge, 1 Cowp. 54, the plaintiff brought an action for enticing
away the plaintiff's servants, who worked for him as jour-
neyman shoemakers. It appeared that they worked for the plain-
tiff for no determinate time, but only by the piece, and had, at
the time of the enticing away, each a pair of shoes of the plain-
tiffs unfinished. It was contended that a journeyman, hired not
for time but by the piece, was not a servant ; but Lord Mans-
field said that by being found to be the plaintiff's "journeymen "
they were found to be the plaintiff 's servants. " The point
turned upon the jury finding that the persons enticed away were
employed by the plaintiff as his journeymen. It might perhaps
have been different if the men had taken work for everybody."
In the present case, Miss Wagner was, as stated in the third
count and admitted by the demurrer, employed by the plaintiff
as his dramatic artiste. Can it make any real difference that in
Hart v. Aldridge, 1 Cowp. 54, the persons enticed were em-
ployed by the plaintiff as his journeymen shoemakers, and that
324 SEDUCTION AND ENTICING AWAY.
in the present case Miss Wagner was employed by the plaintiff as
his dramatic artiste ? In both cases the services were the per-
sonal services of the persons engaged ; and though the description
of the services was very different, the personal service being in the
one case to make shoes, and in the other to sing songs, it seems to
me difficult to distinguish the cases upon any principle ; it is the
exclusive personal service that gives the right. In Blake v. Lan-
yon, 6 T. R. 221, which was a case very similar in respect to the
nature of the service to that of Hart v. Aldridge, 1 Cowp. 54, it
was stated by the court, as a general proposition, " a person who
contracts with another to do certain work for him is the servant of
that other till the work is finished." These cases appear to me
to be very strong authorities in favor of the plaintiff, as far at
least as regards the third count. Two cases, however, were
cited for the defendants, as direct authorities against the main-
tenance of the present action. The first was that of Ashley v.
Harrison, 1 Peake, 194, s. c. 1 Esp. N. P. C. 48, in which the
plaintiff declared that he had retained Madam Mara to sing pub-
licly for him in certain musical performances which he exhibited
for profit at Covent Garden Theatre, but that the defendant,
contriving to lessen his profits and to deter Madam Mara from
singing, published a libel concerning her which deterred her from
singing, as she could not sing without danger of being assaulted
and ill-treated in consequence of the libel. Lord Kenyon held,
at nisi prius, that the action was not maintainable, as the injury
was too remote. The case does not appear to have undergone
much discussion ; it was only a decision at nisi prius ; but it is
clearly distinguishable from the present, as Madam Mara was
deterred from singing, not directly in consequence of any thing
done by the defendant, but in consequence of her fear that what
he did might induce somebody else to assault and ill-treat her.
The injury in that case may have been well held to be too
remote ; but it does not at all resemble this, where the loss is the
direct consequence of the defendant's act. The other case was
that of Taylor v. Neri, Esp. 386, which certainly bears more
directly upon the present. The declaration stated that the plain-
tiff, being manager of the opera-house, had engaged Breda to
sing; that the defendant beat him, whereby the plaintiff lost his
service. Lord Chief Justice Eyre expressed a doubt whether
the action was maintainable, observing that, if such an action
ENTICING TO BREAK CONTRACTS.
825
could be supported, every person whose servant, whether domes-
tic or not, was kept away a day from his business could main-
tain an action. He was of opinion that Breda was not a servant
at all. The case was very little discussed, was a decision at
nisi prius, and does not appear to have undergone much consid-
eration ; and, -without adverting to some distinctions between that
and the present case, it can hardly be considered as an authority
of much weight for the defendant.
I am therefore of opinion that upon the whole case, as it
appears upon these pleadings, the plaintiff is entitled to our
judgment.
Coleridge, J., dissented, holding that the action for procur-
ing a third person to depart from his engagement is founded on
the Statute of Laborers, and is strictly confined to cases where
the employer and employed stand in such relation of master and
servant as was within that statute ; and that, in all other cases,
the remedy for a breach of contract is only on the contract, and
against those privy to it. And that, as a dramatic performer is
not a servant, the counts were all bad.
This important case, containing as
it does a complete epitome of the law
concerning the enticing away of con-
tractees and servants, scarcely needs
annotation.
Mr. Justice Coleridge, as is stated
supra, dissented, taking the position
in an elaborate opinion (too lengthy
for this work), that actions of this kind
are founded upon the Statute of Labor-
ers, and are confined strictly to cases
where the employer and employed
stand in such relation of master and
servant as comes within the terms
of that statute. The learned judge re-
fers to the second section of the statute
in support of his opinion, and to the
form of the writ given by Fitzh. N. B.
167, B, as always reciting the statute.
Mr. Smith thus comments upon this
view: "The first writ given by Fitz-
herbert is founded upon the third sec-
tion of the statute, and is to recover
the penalty there given to the party
grieved. The other writs are against
the servant; and it would hardly be
contended at the present day that such
actions must be confined to the class of
servants referred to by the Statute of
Laborers. It would seem, also, from
the rule given in Lutw. 1548, that the
mere recital of the statute would not
show that the action lay not at common
law. It is there said that where an ac-
tion lay both at common law and by
statute, if you proceed under the statute
you must recite the statute, ' for, without
rehearsal, non patet whether he uses the
action by the common law, sicut potest,
or the action on the statute.' It is also
added, ' If there were no action at com-
mon law, the statute should be re-
hearsed.' So, the recital of the statute
in a writ does not prove that the action
did not lie at common law, but only
that the plaintiff is not using the action
326
SEDUCTION AND ENTICING AWAY.
at common law in this instance ; thus
leaving . the matter where it was.
Again, it may be asked, if this form
of action is founded entirely upon the
Statute of Laborers, why did it not
cease when that statute was repealed,
5 Eliz., 26 & 27 Vict. c. 125 ? More-
over, if the judgment of Coleridge, J.,
is right, what becomes of the common
action for seduction of a daughter and
servant ? Is that to be only brought in
cases within the Statute of Laborers ?
It is notoriously otherwise." Master
and Servant, 126, 127 (3d ed.).
To this it may be added that the
position taken by Coleridge, J., that
the right of a master to sue another
for causing a breach of the servant's
contract of service dates from the
Statute of Laborers, is incorrect. The
law permitted masters, from the ear-
liest times, to recover for batteries of
their servants', in respect of the loss
of service (see note on Assault and
Battery, ante, p. 224) ; and there is no
suggestion that the case was otherwise
where the beating was so severe as to
result in a breach of the servant's en-
gagement.
So, too, Pulton states the law to
be that if a servant depart from the
service of his master by reason of
menaces of life or limb, the master has
a right of action against the menacer
(De Pace Regis, 3) ; for which, among
other authorities, he cites a case that
may be found in 22 Lib. Ass. (Edw. 3)
pi. 76, decided three years prior to the
above-named statute.
Under the term " servant," in this
connection, Pulton includes a bailiff;
and the statute clearly did not extend
to officers. But what is quite conclu-
sive that Mr. Justice Coleridge was
mistaken is stated immediately after-
wards by the writer referred to. " And
the same law is," says Pulton, " if one
man do so menace of life and member
the tenants of another, which do hold of
him certain lands and tenements at will,
paying to him therefor certain yearly
rent and services ; in respect of which
menace the same tenants do depart
from their said tenements, and leave the
said rents unpaid, and the same ser-
vices undone ; in this case, the lord or
owner of the same tenements may have
an action of trespass against such
menacers in the King's Bench or Com-
mon Pleas, and declare of the said men-
acing of his tenants at will, of their
departure from his tenancies thereby,
and the loss and prejudice that he hath
sustained by his rents unpaid and ser-
vices undone, and he shall recover
damages accordingly." And for this is
cited Liber Intrationum, 592 ; 20 Hen.
7, p. 5; 9 Hen. 7, p. 7. It was other-
wise, however, if the tenants were free-
holders, or held for term of years. lb.;
21 Hen. 6, p. 31.
The doctrine of the dissenting opin-
ion in the principal case, so far as it
rests upon the ground that-none but
the parties to a contract have a right of
action for its breach, requires that there
should be an enforceable contract, the
breach of which is complained of; and
whether the learned judge would have
held the same view where the services
were to be performed gratuitously
does not appear. Now, it has been
held from very early times that it is
not necessary for a master, in suing a
stranger for injuring his servant and
thereby causing a loss of service to the
plaintiff, to allege or prove a binding
engagement to service. " If the ser-
vant did but serve his master at his
pleasure, yet the master shall have an
action of trespass for the loss of his ser-
vice." Pulton De Pace Regis ; 22 Hen.
ENTICING TO BEEAK CONTRACTS.
327
6, 43, pi. 25. And the law is so still.
Martinez r. Gerber, S Man. & G. 88.
See ante, pp. 228, 229.
It must be so in the case of one who
cannot properly be called a servant,
and renders services gratuitously. Sup-
pose, in the principal case, it had ap-
peared that Miss Wagner had agreed
to sing gratuitously, for the benefit of
some charity, the managers of which
had incurred the expense of securing a
hall for the occasion, could it be sup-
posed for a moment that they could not
have maintained an action against the
defendant for enticing her to break
her engagement ? And what is the
ground upon which the defendant would
be liable ? Simply that he has know-
ingly and intentionally caused the plain-
tiffs a loss, and prevented them from
making » positive gain. But he has
done the same thing in the case under
consideration; and what right has he to
set up the fact that the plaintiff has
a cause of action against some one
else, or to demur to the declaration if
such fact there appears ? A railroad
company, whose cars have run over and
killed a man, cannot, in an action by
his widow, allege that she has a right
of action upon an accident insurance
policy which she holds upon the life of
the deceased (Bradburn v. Great "West-
ern Ry. Co., Law R. 10 Ex. 1) ; and
yet it is the act of the defendant which
gave her the right to recover of the in-
surers. Nor can a defendant whose
negligence has caused the burning of
the plaintiff's house set up in defence
that the plaintiff has a right of action
for the loss upon a fire insurance policy ;
nor, e converso, can the insurance com-
pany in either case set up the plaintiff's
recovery, or right of recovery, against
the wrong-doer. The wrong-doer has
nothing to do with the plaintiff's rights
against others ; it is nothing to him that
the plaintiff may have a right of action
against a dozen other persons by reason
of his act or theirs.
It is, however, said that the defend-
ant's act is too remote, and is not the
legal cause of the injury. The breach
of the contract, says Mr. Justice Cole-
ridge, is the. cause of damage in both
cases. (2 El. & B. 249.) But the act
of Miss Wagner was not the cause of
the breach; it was the breach itself.
The act of the defendant was the cause
of the breach. It is not, therefore, a
case of near and remote causes. The
plaintiff's position is that of one who is
suing in respect of the proximate (since
there is no other) cause of the breach.
It is true that the breach of the con-
tract is the cause of the damage, as the
learned judge says ; but that is not
material ; for the plaintiff would have
had an action against Miss Wagner,
though he could have proved no dam-
age whatever. The damage may there-
fore be left out of the case, so far as
the matter of proximate cause is con-
cerned ; and the true question is, was
the act of the defendant the legal
cause (not of the damage, but) of the
breach ?
If this, however, is too great a re-
finement, we apprehend that the de-
fendant's act is as much the legal cause
for the action as is the act of a man who
has beaten » servant or tenant, and
thereby caused him to leave the plain-
tiff.
The doctrine of Lumley v. Gye, that
an action is maintainable against one
who has knowingly caused the breach
of a contract between the plaintiff and
a third person, is not, perhaps, con-
sistent with the converse position taken
in certain English cases, that the breach
of a contract gives no right of action to
328 SEDUCTION AND ENTICING AWAY.
a third person injured thereby. Win- sion to consider the soundness of these
terbottom v. Wright, 10 Mees. & VV. cases in a subsequent note. (Consult
109 ; Collis v. Selden, Law R. 3 C. P. the Table of Cases for the page.)
495. We shall, however, have occa-
WlNSMORE V. GREENBANK.
(Willes, 577. Common Pleas, England, Trinity Term, 1745.)
Enticing Wife away. Verdict not set aside for excessive damages, in an action for
enticing away the plaintiff's wife.
In an action on the case for inducing the plaintiff's wife to continue absent, it is suffi-
cient to state that " the defendant unlawfully and unjustly persuaded, procured,
and enticed the wife to continue absent, &c, by means of which persuasion, &c,
she did continue absent, &c. ; whereby the plaintiff lost the comfort and society of
his wife; " without setting forth the means, &c, used by the defendant.
Case. Skinner, Willes, and Hayward, Serjts., moved for a new
trial upon several affidavits, setting forth (as they opened) that
the verdict was against evidence, and the damages excessive,
being 3,000Z.
The action was an action on the case for enticing away and
detaining the plaintiff's wife, which were laid in the declaration,
with several other particular circumstances ; but my brother
Abney, who tried the cause, being in court, and certifying that
the verdict was not against evidence, nor the damages excessive,
and that he was not dissatisfied with it, we would not make any
rule, nor did we suffer the affidavits to be read.
Counsel, after objecting to the wife's declarations, then moved
in arrest of judgment.
In order to understand the grounds of the motion in arrest of
judgment, it is necessary to state some parts of the record.
The declaration contained four counts. The first stated that
on the 1st of January, 1741, Mary, then and until the 24th
of December, 1742, being the wife of the plaintiff (but since
deceased), unlawfully and without leave and against his consent
departed and went away from him, &c, and lived and continued
absent and apart from him from thence until and upon the 8th
of August, 1742, and during the said time that the said Mary
so lived and continued absent, a large estate, both real and
WINSMORE V. GREENBANK. 329
personal, to the value of 30,000Z. was devised to her by W.
Worth, D.D., her late father, for her sole and separate use, and
at her sole and separate disposal ; that thereupon she was desir-
ous of being and intended to be again reconciled to the plaintiff,
and to live and cohabit with him, whereby he would have had
and received the benefit and advantage of the said real and per-
sonal estate (the plaintiff being willing and desirous to be recon-
ciled, &c), yet the defendant knowing the said premises and
having notice of the said Mary's intention, but contriving to
injure the plaintiff, and to prevent Mary the wife from being
reconciled to him, &c, and to prevent the plaintiff receiving any
advantage from the said real and personal estate, &c, on the
8th of August, 1742, unlaufully and unjustly persuaded, pro-
cured, and enticed the said Mary to continue absent and apart
from the plaintiff, and to secrete, hide, and conceal herself from
the plaintiff, by means of which persuasion, procuration, and
enticement the said Mary, from the said 8th of August, 1742,
until the time of her death on the 24th of December, 1742, con-
tinued absent and apart and secreted herself, &c. ; whereby the
plaintiff during all that time totally lost the comfort and society of
his said wife, and her aid and assistance in his domestic affairs,
and the profit and advantage that he would and ought to have
had of and from the said real and personal estates, &c, and was
put to great charges and expenses in endeavoring to find out and
gain access to his said wife, in order to persuade and procure her
to be reconciled to him.
The second count stated that on the 7th of August, 1742,
Dr. Worth died, on whose death the plaintiff's wife became
seised and possessed of real and personal estates to the value
of 30,000L to her sole and separate use, and at her sole and
separate disposal, yet the defendant maliciously and wickedly
intending to injure the plaintiff, and to deprive him of the aid,
assistance, and comfort of his wife, and to raise, foment, and
continue discords and quarrels between the plaintiff and his wife,
and to alienate the affections of the wife from the plaintiff, and
to deprive the plaintiff from having or receiving any advantage
or benefit from the said estates, &c, on the 8th of August, 1742,
unlawfully and unjustly persuaded, procured, and enticed the •
said wife to depart and absent herself from the plaintiff, and to
secrete herself from him, by means of which persuasion, procu-
330 SEDUCTION AND ENTICING AWAY.
ration, and enticement the said Mary on the said 8th of August
departed and absented herself from the plaintiff without the
plaintiff's consent, and continued absent until her death, &c. ;
whereby the plaintiff, &c. (as in the first count).
The third count stated that on the 8th of August, 1742, the
plaintiff's wife, without and against his consent, went away from
him, and went to the defendant ; yet the defendant, well know-
ing the said Mary to be the wife of the plaintiff, received her,
and concealed her from the plaintiff, and kept her so concealed
from him until the time of her death, and wholly refused to
deliver her to the plaintiff or to discover her place of residence
(although on, &c, at, &c., he was requested, &c), but unlaw-
fully entertained, harbored, concealed, and secreted her from
the plaintiff from the 8th of August, 1742, until the time of her
death ; whereby the plaintiff, &c. (as before, only omitting that
the plaintiff was deprived of the benefit of the fortune, &c).
The fourth count stated that the defendant harbored and con-
cealed the plaintiff's wife until her death, and also caused her to
be buried secretly, and kept her death a secret from the plaintiff
for a year after her death, &c, whereby the plaintiff lost the
comfort and society of his wife from the said 8th of August until
the time of her death, and the benefit of her fortune, &c.
The defendant pleaded not guilty ; and the jury found a ver-
dict for the plaintiff on the first three counts, and gave 3,000Z.
damages, and a verdict for the defendant on the last.
This case was argued on the 18th and 26th of November,
1745, aud the 29th of January following, by Skinner and Willes,
King's Serjeants, and Draper and Hayward, Serjeants, for the
defendant, in support of the motion in arrest of judgment, and
by Prime and Birch, King's Serjeants, and Booth, Serjeant, for
the plaintiff ; and on the 1st of February following the rule to
arrest the judgment was discharged.
Willes, Lord Chief Justice, delivered his opinion to the fol-
lowing effect : —
Several objections have been taken by the defendant to this
declaration in arrest of judgment ; two general ones, and three
to the particular penning of the declaration. I admit the rules
• laid down in most of the cases that were cited, and therefore
shall have occasion to mention only a few of them, because they
are not applicable to the present case.
WINSMORE V. GEEENBANK. 331
The first general objection is, that there is no precedent of any
such action as this, and that therefore it will not lie ; and the
objection is founded on Lit. § 108, and Co. Lit. 81 b, and sev-
eral other books. But this general rule is not applicable to the
present case ; it would be if there had been no special action on
the ease before. A special action on the case was introduced for
this reason, that the law will never suffer an injury and a damage
without a remedy ; but there must be new facts in every special
action on the case.
The second general objection is, that there must be damnum
cum injuria, which I admit. I admit likewise the consequence,
that the fact laid before per quod consortium amis it is as much
the gist of the action as the other ; for though it should be laid
that the plaintiff lost the comfort and assistance of his wife, yet
if the fact that is laid by which he lost it be a lawful act, no
action can be maintained. By injuria is meant a tortious act ;
it need not be wilful and malicious ; for though it be accidental,
if it be tortious, an action will lie.
This rule, therefore, being admitted, the only question is
whether any such injury may be laid here ; and this rule will
properly come to be considered under the several objections
made to the particular counts ; for if any of them hold, then
no injury is laid. I admit, also, that as the verdict is on the three
counts, and the damages are entire, if either of the counts be bad,
the judgment must be arrested. To the second count no objec-
tion was taken.
But the counsel for the defendant began with the third count,
to which they took several objections, which are all false in fact.
1st. That it is not laid that the wife went away without the
husband's consent ; but it is expressly so laid.
2d. That it is not laid that the defendant knew of it ; but it
is laid in express terms that he did, and that knowing it he con-
cealed and detained her.
3d. That no request by the plaintiff to the defendant to
deliver up the wife and refusal by the defendant are laid. It
is not necessary to determine in this case whether a request and
refusal were necessary, because both are expressly laid here ;
but, according to my present thoughts, in the case of a detainer
I think them necessary. And as not guilty to the whole is
pleaded in special actions on the case, it puts every fact that is
332 SEDUCTION AND ENTICING AWAY.
laid in issue, I think it is like-wise necessary to prove the request
and refusal ; and we must take it that this was so proved at the
trial, the jury having found a verdict for the plaintiff.
The principal objections were to the first count, and they were
three : —
1st. That procuring, enticing, and persuading, are not suffi-
cient, if no ill consequence follows from it.
2d. That unlawfully and unjustly will not help the case ; but
the particular methods made use of should have been stated by
which the defendant procured, &c, otherwise this is leaving the
law to a jury.
3d. That no notice or request is laid, which is necessary in the
case of the continuance, though it be not necessary if the defend-
ant had at first persuaded her.
To the first there were two answers : —
1st. That here is a consequence laid, that by means thereof
the plaintiff lost the comfort and society of his wife, and the
profit and advantage of her fortune, &c.
2d. Whether "enticing" goes so far or not I will not nor
need determine, because " procuring " is certainly " persuading
with effect." I need not cite any authorities for this ; because
every one who understands the English language knows that this
is the common acceptation of that word.
But, to be sure, it must be an unlawful procuring, and that
brings me to the second objection. It is not necessary to set
forth all the facts to show how it was unlawful ; that would
make the pleadings intolerable, and would increase the length
and expense unnecessarily. It was said, however, that at least
it was necessary for the plaintiff to add " by false insinuations ; "
but it is not material whether they were true or false ; if the
insinuations were true, and by means of those the defendant per-
suaded the plaintiff's wife to do an unlawful act, it was unlawful
in the defendant. t
In answer to the objection that this is leaving the law to the
jury, it must be left to them in a variety of instances where the
issue is complicated, as burglariter, feloniee, proditore, devisavit
vel non, demisit vel non. But the judge presides at tire trial for
the very purpose of explaining the law to the jury, and not to
sum up'^the evidence to them.
As to the distinction between the beginning and continuance
ENTICING WIFE AWAY FROM HUSBAND. 333
of a nuisance by building a house that hangs over or damages
the house of his neighbor, that against the beginner an action
may be brought without laying a request to remove the nuisance,
but that against the continuer a request is necessary, for which
Penruddock's Case, 5 Co. 100, 101, was cited, and many others
might have been quoted, — the law is certainly so, and the reason
of it is obvious. But that reason does not extend to the present
case ; because every moment that a wife continues absent from
her husband without his consent, it is a new tort, and every one
who persuades her to do so does a new injury, and cannot but
know it to be so.
Several arguments were urged and several cases were cited on
both sides on the question whether defects in this declaration
were or were not aided by the verdict ; but I shall not take
notice of them, because I am of opinion that there are no defects
to be cured, and that the declaration would have been good even
on a demurrer. Had the words "unlawfully and unjustly" been
omitted, this question might have been material, because it is
lawful in some instances for the wife to leave the husband ; but
as the declaration is framed, it is not necessary to enter into the
consideration of that question. Many observations were like-
wise made on the quantum of the damages given by the jury,
and it was said that it was uncertain whether or not the husband
had sustained any. Those were proper observations on the motion
for a new trial (which has been already disposed of), but cannot
have any weight on this motion in arrest of judgment, where
every thing laid in the declaration must be taken to have been
proved. I can see no reason to arrest this judgment, and there-
fore I am of opinion that the rule must be discharged.
Abxey and Burnett, JJ., gave their opinions seriatim, agreeing
with the Lord Chief Justice. Rule discharged.
Enticing Wife away from Husband, early common law the wife was consid-
Actions for injuries of this class be- ered as the mere servant and property
gan with the principal case. The decla- (in some sense) of the husband; but
ration was doubtless suggested by that the damages allowed in the above case,
in use in actions for enticing away and as well as some of the chief allegations
harboring servants, as will be further of the declaration, show that this had
seen upon a comparison with Lumley ceased to be true at least a hundred
v. Gye, ante, p. 306. Indeed, by the and thirty years ago.
334
SEDUCTION AND ENTICING AWAY.
We have omitted from Winsmore v.
Greenbank one point very shortly de-
cided and scarcely argued, to wit, that
the declarations of the wife, apparently
as to the cause of ber leaving the plain-
tiff, were inadmissible. In other cases,
letters written by the wife before the
seduction have been held admissible to
show the affection of the wife for her
husband. Edwards v. Crock, 4 Esp.
39; Trelawney v. Coleman, 1 Barn. &
Aid. 90 ; Houliston v. Smith, 2 Car. &
P. 22, 24; 8. c. 3 Bing. 127. And the
same is held where the letters were
written to a third person and not to the
husband, notwithstanding a strong op-
position of counsel to extending the
rule. Willis v. Bernard, 8 Bing. 376.
And in Gilchrist v. Bale, 8 Watts, 355,
it was held that the wife's declarations,
made immediately before and at the
time she left her husband, were admis-
sible in favor of the defendant, to show
that the plaintiff had treated her cru-
elly. See also Bennett v. Smith, 21
Barb. 439. Evidence of the wife's feel-
ings towards the plaintiff after the crim-
inal conversation are not admissible.
Wilton v. Webster, 7 Car. & P. 198.
Indeed, the evidence must relate to a
period anterior to the existence of any
facts tending to raise suspicions of her
misconduct, and when there existed no
ground for collusion. Edwards v. Crock,
4 Esp. 39. And in the case of letters,
the time when they were written must
be accurately shown, which may be
proved by the postmarks, but not by
the dates. lb. ; 2 Greenleaf, Evidence,
§56.
It is also to be observed of Wins-
more v. Greenbank, that the dictum
upon the third count of the declaration
— that a request for the wife is neces-
sary before suit, where she goes away
of her own accord and tarries with the
defendant without any "enticing" or
"procuring" of his — has met with
some disapproval. In Gilchrist v. Bale,
supra, the point was raised ; but the
court did not deem it necessary to ex-
amine the question, since the case be-
fore them was one of an actual enticing
away by the defendant. In Ferguson
v. Tucker, 2 Har. & G. 182, which was
an action for harboring an absconding
apprentice, after knowledge of his ap-
prenticeship, the opinion of Willes.C. J.,
was denied. " Although at the time of
the hiring," said the court, "Ferguson
[the defendant below] may have been
ignorant of the apprenticeship of Hol-
land, yet if, after obtaining that infor-
mation, he continued to harbor him, he
is liable to an action at the suit of the
master, without any proof of either de-
mand or refusal. Whether the knowl-
edge be possessed before the hiring or
after the hiring is immaterial, either as
we regard the nature of the injury or
its consequences upon society. As soon
as the new master acquires the knowl-
edge, he is bound to discharge the ap-
prentice, that he may not hold out to
him an inducement not to return to his
original master. And his obligation is
equally imperious whether the master
remain in total ignorance where his ap-
prentice may be found, or, knowing that
fact, make a regular demand of him."
This, indeed, seems to be the Eng-
lish law concerning the harboring of
servants who have wrongfully left their
masters. SeeHBlake v. Lanyon, 6 T. R.
221, cited by the Maryland court, and
Lumley v. Gye, ante, and especially the
cases reviewed in the dissenting opin-
ion of Coleridge, J., 2 El. & B. 244.
But these cases come within the Stat-
ute of Laborers, 25 Edw. 3, st. 1 ; and
ENTICING WIFE AWAY FEOM HUSBAND.
335
it is prettv clear from those considered
by Coleridge, J., as above cited, that
before the statute no artion lay for
merely receiving the servant. Qucere,
then, whether the dictum of Willes, J.,
is wrong, if indeed any analogy can be
found in the case of harboring abscond-
ing servants ; as to which see Philp v.
Squire, infra, per Lord Kenyon, and
the grave remark of Lord Ch. Camp-
bell, that a wife is not a servant. Lynch
v. Knight, 9 H. L. Cas. 577, 589.
However this may be, the main point
decided in Winsmore v. Green.bank, the
ruling upon the first count, for which
the case is principally presented, has
been often followed, and is settled law.
Weedon v. Timbrell, 5 T. R. 357;
Hutcheson r. Peck, 5 Johns. 196; Bar-
bee v. Armstead, 10 Ired. 530; Ben-
nett v. Smith, 21 Barb. 439; Friend
v. Thompson, Wright, 636; Rabe v.
Hanna, 5 Ohio, 530 ; Barnes v. Allen,
1 Keyes, 390; Hermance v. James, 32
How. Pr. 1-12 ; s. c. 47 Barb. 120.
In Barber v. Armstead, one ot the
defendants, who was the mother of
the plaintiff's wife, had enticed away
the wife, and afterwards the other de-
fendant entered into an agreement with
the plaintiff to keep his wife and child
at his own house, and to raise, educate,
and provide for the child ; and that he
should not be liable for the enticing
away. The mother was not a party to
the agreement, though she appeared
to have approved of it. The agreement
was afterwards rescinded bv the plain-
tiff, and a demand made foT«his wife.
Upon refusal he brought an action, and
the court held bim entitled to recover.
The agreement, it was said, was not a
contract for separation, but merely a
license to harbor the wife and child,
securing the party from responsibility
until it should be revoked ; even if it
was not void as against public policy.
In Hutcheson v. Peck, which was an
action against the wife's father for en-
ticing away the plaintiff's wife, the evi-
dence was not clear in support of the
declaration ; but a majority of the court
held that, admitting the proof to be
strong enough to support an action
against any one else than a parent, it
required stronger evidence of bad mo-
tives to support an action against the
wife's father. " I should require," said
Kent, C.J. , "more proof to sustain the
action against the father than against
a stranger. It ought to appear either
that he detains the wife against her will,
or that he entices her away from im-
proper motives. Bad or unworthy mo-
tives cannot be presumed. . . . The
quo animo ought, then, in this case( to
have been made the test of inquiry and
the rule of decision. The judge told
the jury that if the defendant was not
actuated by improper motives, it would
go very far in mitigation of damages.
I think the instruction should have gone
farther, and the jury have been informed
that in such a case the i^rdict should
be for the defendant." A new trial was
accordingly granted. See Bennett v.
Smith, 21 Barb. 4:')9, where it was held
that a father is justified in advising his
daughter to leave her husband, though
the advice be given upon information
which subsequently turned out to be
untrue. The liability in such cases was
to be determined by the motives which
prompted the parent's action.
The difference, then, between an ac-
tion against a parent and one against
another for enticing away the wife,
seems to be that in the former case
the act may be justified, while in the
latter it cannot be. But qucere, whether
336
SEDUCTION AND ENTICING AWAY.
merely advising a wife to leave her hus-
band upon her representations of ill-
treatment by her husband, would be
actionable ? Of course, evidence is ad-
missible to show whether the defendant
intended to entice away the wife ; as
where she had been accustomed to ride
with him to his house to visit his fam-
ily, to whom she was related. Schune-
man v. Palmer, 4 Barb. 225.
The doctrine of Kent, C. J., above
quoted, that bad motives on the part of
a parent will not be presumed, seems,
however, objectionable. See also Camp-
bell v. Carter, 6 Abb. Pr. N. s. 151.
The effect of it is to cast the burden
upon the defendant of proving more
than the mere enticement. But as the
plaintiff is, prima facie, entitled to the
consortium of his wife, he who deprives
him of it must be at least prima facie
in the wrong. And this must be equally
true of the wife's parents ; for they have
no more right to interfere with the
husband's marital relations than have
others. The burden should therefore
be upon the parent to justify his con-
duct by proving both the ill-treatment
and also thaUhis own conduct was actu-
ated by proper motives. It is probably
otherwise where the daughter was not
enticed away, but merely sheltered,
since such an act is not wrongful.
Rabe v. Hanna, 6 Ohio, 530 ; Barnes
v. Allen, 1 Keyes, 390.
Indeed, it is difficult to see any dis-
tinction in favor of the parent over any
other person in this particular. It is
laid down as a general rule that every
person who receives a married woman
into his house, and suffers her to con-
tinue there after he has received notice
from the husband not to harbor her, is
liable to an action for damages, unless
the husband has, by his cruelty or mis-
conduct, forfeited his marital rights, or
has turned his wife out of doors, and
compelled her to leave him. Addison,
Torts, 905 (4th ed.) . It is clearly to be
implied from this that, when the wife
has thus been compelled to leave her
husband, any one may receive her with-
out incurring liability. And so it was
held by Lord Kenyon in Philp v. Squire,
Peake, 82. In this case it appeared
that the plaintiff's wife had gone to the
house of the defendant, to whose wife
she was related, and had represented
that she had been very ill-treated by
her husband, and turned out of doors.
Upon this representation merely (there
was no proof of ill-treatment) the de-
fendant received her, and, at her re-
quest, suffered her to remain there
after he had received notice from the
plaintiff not to harbor her. Lord Ken-
yon observed : " The ground of this ac-
tion is that the defendant retains the
plaintiff's wife against the inclination of
her husband, whose behavior he knows
to be proper, or from selfish and crimi-
nal motives. But where she is received
from principles of humanity, the action
cannot be supported. If it could, the
most dangerous consequences would
ensue ; for no one would venture to
protect a married woman. It is of no
consequence whether the wife's repre-
sentation was true or false. This kind
of action materially differs from that of
harboring an apprentice, the ground of
the action in that case being the loss
of the apprentice's service."
And in a subsequent case of the same
kind, Lord Kenyon held that if a hus-
band ill-treat his wife, so that she is
forced to leave his house through fear
of bodily injury, a person may safely,
nay, honorably, he added, receive and
protect her. See also Turner v. Estes,
SEDUCTION OF WIFE.
337
3 Mass. 317 ; Schunenian v. Palmer, 4
Barb. 225.
The gist of the action is the loss of
the co7isortium of the wife, under which
are commonly included her affection,
comfort, society, and assistance ; but
it is not necessary to the maintenance
of the action that there should be anv
pecuniary injury to the husband. It
was so decided upon demurrer to the
declaration in Hermance v. James, 47
Barb. 120, s. C. 32 How. Pr. 146, upon
the authority of Ashburst, J., in Weedon
v. Timbrell, 5 T. R. 357. See also
Barnes v. Allen, 1 Keyes, 390, 394.
Seduction of Wife. — The action for
seducing a man's wife, implying, as se-
duction does, an alienation of the wife's
affection for her husband, rests upon
the same ground, of the loss of con-
sortium, and can therefore be main-
tained without proving any pecuniary
damage. See Weedon e. Timbrell, 5
T. R. 357 ; 2 Greenleaf, Evidence, § 40,
note, where the form of the declaration
is given. In Weedon v. Timbrell, it was
held that an action for criminal conver-
sation with the plaintiff's wife, which
had taken place after a separation of
the husband and wife by mutual con-
sent, could not be maintained ; though
an unreported case before Lord Mans-
field (Warrington v. Brown) was re-
ferred to on the agreement, apparently
inconsistent with such a decision.
The doctrine of the judges in Weedon
v. Timbrell would probably be true if
the separation had been made upon ar-
ticles of agreement, in which the hus-
band released all claim to the person
of his wife. Chambers v. Caulfield, 6
East, 244; Winter v. Henn, 4 Car. &
P. 494; Wilton v. Webster, 7 Car.
& P. 198 ; Harvey v. Watson, 7 Man.
& G. 644. But if the separation was
without any relinquishment by the hus-
band of his right to the society of the
wife, and he could still sue for a resti-
tution of conjugal rights, it is no bar to
the action. Harvey v. Watson, supra;
s. c. 2 Roper, Husb. and Wife, 323,
note ; Chambers v. Caulfield, supra ; 2
Greenleaf, Evidence, § 51, and note.
In Wyndham v. Wycombe, 4 Esp.
16, Lord Kenyon laid down the rule
that if a husband neglect the society of
his wife, and live openly in (apparent)
adultery with other women, he could
not bring an action for criminal con-
versation with his wife ; and he said he
had previously so ruled in an unre-
ported case. Sturt v. Blandford. But
subsequently Lord Alvanley overruled
this doctrine, and held that such evi-
dence went only in mitigation of the
damages. Bromley v. Wallace, 4 Esp.
237. He was of opinion, as he is re-
ported, that the infidelity or misconduct
of the husband could never be set up as
a legal defence to the adultery of the
wife. That alone which struck him as
furnishing a defence was, where the hus-
band was accessary to his own dishonor;
he could not then complain of an injury
which he had brought upon himself, and
had consented to ; but the fact that the
wife had been injured by the husband's
misconduct' could npt warrant her in
injuring him in that way, which was the
keenest of all injuries.
It might be added to this, that the
husband might afterwards cease his in-
fidelity and desire to return to the com-
panionship and comfort of his wife ;
which the defendant has perhaps ren-
dered impossible.
But though the criminal conversa-
tion be effected without any seduction,
as where the wife is a woman of loose
character, an action may, it seems, be
maintained for the ravishment without
alleging per quod consortium amisit.
22
338
SEDUCTION AND ENTICING AWAY.
Rigaut ». Gallisard, 7 Mod. 78, 82;
Sanborn v. Neilson, 4 N. H. 501. The
previous character of the wife would,
however, be proper evidence in mitiga-
tion of damages : Conway v. Nicol, 34
Iowa, 533 ; 2 Greenleaf, Evidence, § 56 ;
and if the husband suffered no pecuniary
injury, as from the wife's sickness, de-
sertion, or loss of assistance, it would
seem that the damages could only be
nominal. lb. The subsequent conduct
of the wife cannot be proved. Elsam v.
Faucett, 2 Esp. 562. But prior acts of
intercourse, even beyond the period of
limitation, are admissible if the suit is for
a wrong within the period. Conway v.
Nicol, supra.
And, of course, if the husband per-
mits the wife to live as a prostitute, he
cannot maintain an action for criminal
conversation with her. Sanborn v. Neil-
son, 4 N. H. 501. And the same is true
where there is collusion or connivance
on his part. Rea v. Tucker, 51 111. 110.
But mere negligence, inattention, con-
fidence, or dulness of apprehension, are
not sufficient; the plaintiff's conduct
must amount to at least a passive ac-
quiescence and consent. 2 Greenleaf,
Evidence, § 51.
If the evidence falls short of actual
connivance and onjy establishes negli-
gence, or even loose and improper con-
duct, not equivalent to consent, in the
husband, though this is no bar to the
action, it may be received in mitigation
of damages. lb. § 56 ; Foley v. Peter-
borough, 4 Doug. 294. But see Duber-
ley v. Gunning, 4 T. R. 651. As to
the damages in the latter case see
Jones v. Sparrow, 5 T. R. 257 ; Cham-
bers B. Caulfleld, 6 East, 244 ; Blunt v.
Little, 3 Mason, 102, 106. In Duberley
v. Gunning, the defendant had proved
many indecent familiarities between
himself and the wife in the presence
of the plaintiff; but though $5,000
damages had been awarded, the court
mistakenly refused to set aside the
verdict. It seems clear, however,
where there has been no improper
conduct on the part of the plaintiff,
that exemplary damages may be given,
whether the action be for criminal con-
versation or for enticing away ; upon
the analogy of the action for the se-
duction of a minor daughter. See
ante, p. 294.
Condonation, though a sufficient an-
swer to a suit for divorce brought on
the ground of adultery, is not a defence
to an action for criminal conversation.
Sanborn v. Neilson, 4 N. H. 501. And
the action lies though the husband did
not know of his wife's dishonor until it
was disclosed to him by her while lying
fatally sick, and though he continued
to attend kindly until her death. In
such case the jury may give damages
for the shock to his feelings and for
the implied loss of society down to the
wife's decease. Wilton v. Webster, 7
Car. & P. 198.
Proof of Marriage. — In actions for
criminal conversation it is necessary, in
England, at least, for the plaintiff to
prove a marriage in fact between him-
self and the woman. Morris v. Miller,
4 Burr. 2057 ; Birt v. Barlow, 1 Doug.
171 ; Hemmings v. Smith, 4 Doug. 33.
And it is apprehended that the same
rules prevail as to marriage in an ac-
tion for merely enticing away; but
quaere in this case if the plaintiff, fail-
ing in his proof, could not amend his
declaration, as for loss of service, and
recover upon proof of service, though
rendered gratis. See Harper v. Luff-
kin, 7 Barn. & C. 387; Evans v. Wal-
ton, Law R. 2 C. P. 615 ; and ante,
p. 303, note.
In Morris v. Miller, the plaintiff
PROOF OF MARRIAGE.
339
proved articles between himself and
the woman, made after the alleged
marriage, for the settlement of the
wife's estate; also cohabitation, name,
and reception of the woman as his wife.
But this was done aliunde the register
(which was supposed to be unavailable)
and without the minister, who had been
transported, or the clerk, who was dead.
There was also evidence of a confession
by the defendant to a third person that
the woman was the plaintiff 's wife. But
the court held that all this was not suffi-
cient. The action was said to be a sort
of criminal case, and was compared to a
prosecution for bigamy, in which it was
said there must be proof of something
more than had been proved in this
case, a marriage in fact being neces-
sary.
In the subsequent case of Birt v.
Barlow, it was held that a copy of the
register was admissible evidence of the
marriage ; though the judge at nisi
prius had supposed the law to be
otherwise.
In this case Lord Mansfield explains
what was meant by the term " marriage
in fact " as used by him in Morris v.
Miller. "I say marriage in fact, be-
cause marriages are not always regis-
tered. There are marriages among
particular sorts of dissenters, where the
proof by a register would be impossible ;
and Denison, J., in a case of that kind
which became before him admitted other
proof of an actual marriage." See also
Catherwood u. Caslon, 13 Mees. & W.
261, that the marriage must be actu-
ally, and not merely prima facie, valid
where it was celebrated.
The doctrine, therefore, seems to be
merely this, that what is by law the best
evidence should be produced when prac-
ticable. When this cannot be done (the
fact not being imputable to the plain-
tiff), secondary evidence may be given.
But Professor Greenleaf agrees with
Lord Mansfield, that evidence of co-
habitation, reputation, and the like cir-
cumstances, from which marriage is
only to be inferred, is incompetent.
2 Evidence, § 49.
It should be observed that in Morris
v. Miller counsel objected to the admis-
sion of marriage by the defendant, on
the ground that it only amounted to
an inference from reputation. But the
learned writer last cited expresses a
doubt whether such admissions are not
sometimes evidence; and he cites sev-
eral cases where admissions of mar-
riage have been received. Dickinson
v. Coward, 1 Barn. & Aid. 679 ; Rigg
v. Curgenven, 2 Wils. 399 ; Forney v.
Hallacher, 8 Serg. & R. 159 ; Cather-
wood v. Caslon, 13 Mees. & W. 261.
But the evidence must be direct and
clear; and, therefore, where the de-
fendant, being asked where the plain-
tiff's wife was, replied that she was in
the next room, this was held insufficient
to prove a marriage. Bull. N. P. 28.
Where, however, the defendant delib-
erately declared that he knew that the
woman was married to the plaintiff, and
that with full knowledge of that fact he
had seduced her, this was held com-
petent evidence of marriage. Forney
v. Hallacher, 8 Serg. & R. 159.
Evidence of reputation has been held
admissible in this country in an indict-
ment for incest, to prove the relation-
ship of the parties. Ewell v. State, 6
Yerg. 364. So, in prosecutions for
bigamy or adultery, it is held that
proof of marriage in fact is not neces-
sary, admissions of the defendant being
sufficient. Cook v. State, 11 Ga. 53;
State v. McDonald, 25 Mo. 176 ; State
v. Medbury, 8 R. I. 543. See also
Warner 8. Commonwealth, 2 Va. Cas.
340
SEDUCTION AND ENTICING AWAY.
95 ; Commonwealth v. Horton, 2 Gray,
354; Commonwealth v. Belgard, 5
Gray, 95.
To establish the identity of the re-
puted wife, evidence of a marriage de
facto and . cohabitation, followed by
proof of a criminal intercourse between
the defendant and the female, is suffi-
cient to go to the jury without absolute
proof of identity. Hemmings ». Smith,
4 Doug. 33. See also Birt v. Barlow,
1 Doug. 170.
CDTTS V. SPRING. 341
TRESPASSES UPON PROPERTY.
Cutis i -. Spring, leading case.
Murray v. Hall, leading case.
Note on Trespasses upon Property.
Historical aspects of the subject.
Possession and property.
Possession as to wrong-doers.
Injuries to reversion.
Constructive possession.
Cotenants.
Mesne profits. Entry.
Injuries to personalty.
Williams l ■. Esling, leading case.
As-thosy r. Hajjev, leading case.
Malco3i v. Spoor, leading case.
Xote on what constitutes a Trespass.
*.
Thomas Cutts and Others v. Thomas Spring and Others.
(15 Mass. 135. Supreme Court, Massachusetts, May Term, 1818.)
Possession under Invalid Tide. A grantee of land from the Commonwealth takes pos-
session of more land than he is entitled to hold under his grant. A trespass is
committed on a part of the premises afterwards resumed by the Commonwealth.
Held, that the grantee was entitled to his action for the trespass, he being answer-
able to the Commonwealth in a suit for the mesne profits, or in some other way.
Trespass quare clausum /regit, and for cutting timber on a
tract of land in Hiram, in the county of Oxford. On the gen-
eral issue joined, trial was had at the last October term, before
Thatcher, J. The plaintiffs proved the cutting of the trees on
the land described, their title to which they derived as follows :
In 1771 the government of this then province granted to one
Benjamin Prescott a certain tract of land, which he caused to
be surveyed, and upon which he entered. In 1809, his son,
Henry P., conveyed the south-easterly half thereof to the plain-
tiffs, who entered, and became seized and possessed thereof,
including the locus in quo.
The defendants offered to prove that, since the trespass was
committed, the Commonwealth had recovered judgment upon an
342 TRESPASSES UPON PROPERTY.
inquest of office against the plaintiffs, upon the ground that they,
as assignees of said Benjamin, held and claimed more lands than
they were entitled to hold under the said grant; and that com-
missioners, appointed pursuant to law, had assigned to the plain-
tiffs a tract of land, being part of what they claimed to hold, but
not including the locus in quo. The judge refused to admit this
evidence ; and a verdict was returned for the plaintiffs, which
was to be set aside and a new trial had, if the said evidence
ought to have been admitted.
Mellen and Adams, for the defendants, argued that the plain-
tiffs, although in possession at the time of the trespass, were to
be considered merely as tenants at will to the Commonwealth ;
and that the Commonwealth being the party injured, the plain-
tiffs could claim at most but nominal damages. 11 Mass. Rep.
519, Starr & al. v. Jackson. In the case referred to, the court
say : " A disseizee may maintain trespass for injurious acts subse-
quent to the disseizin, and while he was out of possession, after
he has re-entered." But the case at bar is still stronger ; for the
Commonwealth cannot be disseized, and is still entitled to its
action against the defendants for this trespass done to its land
while in the wrongful possession of the plaintiffs.
Longfellow, for the plaintiffs. The defendants are mere stran-
gers to the title in this land. The plaintiffs were not tenants at
will. They were seized in fee against all the world, except the
Commonwealth. They, and those under whom they claimed, had
been in the undisputed possession of the land for more than
thirty years, which gave them the right of possession, which
nothing short of an inquest of office could lawfully disturb. The
Commonwealth could not have trespassed for this injury, while
the plaintiffs were thus possessed of the land : 1 East's Rep. 244,
Graham v. Peat ; for possession is necessary to support such
action. The case of Starr & al. v. Jackson shows only that a
tenant of the freehold can maintain trespass, although there be
a tenant at will. It is not known to have been decided here
that the Commonwealth cannot be disseized. The plaintiffs,
however, always considered themselves as holding adversely to
the Commonwealth, and not as tenants at will to it.
By the Court. The grant of the government to B. Prescottin
1771, and his surveying, fixing the bounds, and entering upon
the land, gave him a seizin, 4although he included more land
MURRAY V. HALL. 343
within his location than his grant conveyed to him. His title
descended, with the possession, to his son, and the deed of this
latter conveyed the seizin to the plaintiffs in 1809.
It is wholly immaterial to the defendants whether the location
covered more land than the terms of the grant would warrant.
The plaintiffs were seized as well as possessed, in regard to every
one but the Commonwealth, who might, or might not, reclaim
part of the land located, as not conveyed.
The action, therefore, is rightly brought, and the value of the
trees is the proper measure of the damages. For the Common-
wealth has a right to call the plaintiffs to account, by a suit for
the mesne profits, or in some other way ; and as the defendants
were wrong-doers to the plaintiffs, these latter ought to be in
possession of the value of the trees, as a fund to meet the ' claim
of the Commonwealth. If not called upon, they have a right to
keep the money for their own use, being accountable to none but
the Commonwealth. Judgment on the verdict.
Murray v. Hall.
(7 C. B. 441. Common Pleas, England, Hilary Vacation, 1849.)
Cotenants. Trespass quare dausum fregit lies by one of sereral tenants in common
against his cotenant, where there has been an actual expulsion.
This was an action of trespass for breaking and entering the
dwelling-house of the plaintiffs, and expelling them therefrom,
and seizing and converting their goods.
The defendant pleaded, first, not guilty ; secondly, as to the
breaking and entering the dwelling-house, leave and license;
thirdly, that the premises were not the premises of the plaintiffs ;
fourthly, as to the goods, leave and license ; fifthly, that the
goods were not the goods of the plaintiffs : upon which issue was
joined.
The cause was tried before Maule, J., at the sittings at West-
minster, in Easter Term, 1847. The facts that appeared in evi-
dence were as follows : The three plaintiffs and one Hart had
jointly become tenants of the premises in question — a room
344 TRESPASSES UPON PROPERTY.
used as a coffee-room by the members of a temperance society —
to one Hall. On the 23d of November, 1846, the defendant and
Hart forcibly expelled from the premises a person named Adams,
who had been placed there by Murray.
On the part of the defendant it was proved that Hart, on the
5th of November, 1846, surrendered his interest to the defendant
by a document of which the following is a copy : —
"Mr. W. Hall.
" Sir, — The premises I and my copartners hold of you, being
situated No. 11 Stacey Street, St. Giles's, I, in the name of the
same, give up, as we cannot pay you the rent due, my copartners
having misapplied the same. Yours, &c,
" John Hart.
" P.S. — I have given the key to Mr. Gr. for you."
It was then insisted for the defendant that the surrender by
Hart at all events inured as a surrender of Mb own interest, and
made Hall tenant in common with the three plaintiffs ; and that
one tenant in common could not maintain trespass against his
companion, even for an actual expulsion. Cubitt v. Porter
8 B. & C. 257 ; 2 Mann. & R. 627. And see Wiltshire v. Sid-
ford, 1 Mann. & R. 403. On the part of the plaintiffs it was
objected that, since the new rules; a surrender must be pleaded
specially. The learned judge told the jury that, if the evidence
satisfied them that there had been an actual expulsion of the
plaintiffs from the premises by the defendant, their verdict ought
to be for the plaintiffs. The jury returned a verdict for the
plaintiffs ; damages 35?.
Wallinger, in the course of the same term, obtained a rule nisi.
to enter a nonsuit, pursuant to leave reserved.
Parry showed cause.
Channell, Serjt., and Wallinger, in support of the rule.
Coltman, J., now delivered the judgment of the court.
This was an action for breaking and entering the plaintiffs'
dwelling-house, and expelling them therefrom, to which the
defendant pleaded, first, not guilty ; secondly, leave and license ;
thirdly, a denial that the dwelling-house. was the plaintiffs'.
At the trial before Maule, J., one ground of defence was that
the defendant was tenant in common of the house with the plain-
HISTORICAL. 345
tiffs, and that therefore the notion was not maintainable. The
learned judge told the jury that, if the evidence satisfied them
that there had been an actual expulsion of the plaintiffs from the
house by the defendant, their verdict ought to be for th,e plain-
tiffs. The jury found for the plaintiffs ; damages 35Z.
The defendant afterwards obtained a rule to show cause why
a nonsuit should not be entered (pursuant to leave given at the
trial), on the ground that one tenant in common cannot maintain
trespass against another, even though there has been an actual
expulsion.
On showing cause, it was argued (before the Lord Chief Jus-
tice, and Justices Coltman, Cresswell, and V. Williams) that
this defence, even if sustainable, ought to have been specially
pleaded. It is unnecessary to give any opinion on this point,
for we are of opinion that the defence is not sustainable.
The court has felt some difficulty on the question, by reason
only of the doubts expressed by Littledale, J., in his judgment
in Cubitt v. Porter, 8 B. & C. 269. That learned judge there
said, that although if there has been actual ouster by one tenant
in common, ejectment will lie at the suit of the other, yet he was
not aware that trespass would lie ; for that in trespass the
breaking and entering is the gist of the action, and the expulsion
or ouster is a mere aggravation of the trespass ; and that, there-
fore, if the original trespass be lawful, trespass will not lie. It
appears, however, to us difficult to understand why trespass
should not lie, if ejectment (which includes trespass) may be
maintained (as it confessedly may) on an actual ouster. And,
as it has been further established, in the case of Goodtitle v.
Tombs, 3 Wils. 118, that a tenant in common may maintain an
action of trespass for mesne profits against his companion, it
appears to us that there is no real foundation for the doubts
suggested.
We are, therefore, of opinion that the direction of Maule, J.,
at the trial, was right ; and consequently this rule must be dis-
charged. Mule discharged.
Historical. — Whether trespasses the trespass operated, or could be
upon lands, not in the nature of a dis- treated by election, as a disseizin, re-
seizin, were subjects of civil redress dress was obtained by an assize of novel
before the time of Bracton we are not disseizin. So, too, for certain nui-
able certainly to determine. Where sances to a man's freehold an assize
346
TRESPASSES UPON PROPERTY.
was the remedy. Glanvill, lib. 13, c. the assize itself was turned into a jury
34, 35. See note on Nuisance. (assiaa vertitur in juratam) to try the
In the time of Glanvill, questions question; and we now find the first
relating to lands, when not tried by mention of trespasses upon land. Brac-
battle, we're tried by an assize; ' the ton (lib. 4, c. 34, § 5, p. 216 6) says,
assize being a jury to decide the right " Vertitur etiam assisa quandoque in
to seizin. The term "trial by jury " juratam propter transgressionem ; " as
had then a technical signification, and where a person made use of another's
embraced only issues not tried by an land against the owner's will, or
assize. The latter was itself a trial by where he kept out his cotenants, in the
jurors, like the former, but it signified case of land held in common, or where
the trial of a real action. Trial by -he was guilty of an abuse of land not
jury, however, or, as it was more com- his own ; such acts were both a disseizin
monly called, a recognition, often oc- and a trespass. If the defendant bad
curred in the course of an assize ; as entered without a claim of right, says
where certain issues were formed on Bracton, the act was only a trespass
matters preliminary to the question of and not a disseizin. But since it was
seizin. In such cases the sheriff was uncertain with what intent the entry
commanded to summon other jurors had been made, the plaintiff brought an
(recognitors) to try the issue. But assize, in which case the judge would
whether every issue that might be determine of the intent, and if it ap-
raised in the course of an assize could peared that the defendant had been led
be so tried does not appear. Glanvill into the act errore probabili vd ignoran-
himself mentions only a few cases for a tia, sed non crassa, and had so cut down
recognition ; such incidental issues be- trees or grass, but not in the name of
ing generally tried by battle. He makes seizin, the disseizin was excused, and
no mention of issues of trespass under the act considered only as a trespass ;
either mode of trial ; and it does not for which, if he confessed, he was to
appear whether at this time, if the act make amends ; but if he denied the
complained of were only a trespass, and trespass, the assize was turned into a
could not be treated as like a disseizin, jury to inquire of the trespass, and by
the demandant could recover judgment this the defendant was to stand or
of damages. See as to the above, book fall. See also 1 Nichols's Britton, 343.
13 of Glanvill, and 1 Reeves's Hist. Eng.
Law, pp. 352-354, Finl. ed.
In the time of Bracton, however, a
considerable advance had been made.
From which it appears that at this time,
whatever may have been the case when
Glanvill wrote, damages for trespass
could be recovered in the assize, sitting
Besides the frequent substitution of the as such ; and this was probably so when
recognition for the trial by battle, a the trial proceeded per juratam. At
new and less cumbersome, method of all events, punishment {poena) could be
trying incidental questions in an assize inflicted. 216 6.
had been adopted. Instead of sum- There was thus no need of a dis-
moning new jurors for the trial of every tinct action for mesne profits ; which
issue of fact that was raised in an assize, fact appears more fully from what is
1 Or, after the time for the assize had passed, by a writ of right in the Lord's Court.
Glanvill, lib. 9, c. 11-14.
HISTORICAL.
347
stated in Britton. This author says
that after judgment for the plaintiff in
the assize, " let it be inquired of the
jurors what damages the disseizors and
the tenants have committed in houses,
woods, gardens, warrens, vivaries,
parks, rabbit-warrens, and elsewhere,
and how much has or might have been
by good husbandry received in the
mean time of all kinds of issues of the
tenement, and what profit in value the
plaintiff might have had if he had not
been disseized ; and it shall be awarded
accordingly that the plaintiff recover
his full damages. And if the justices
perceive that the jurors are disposed to
relieve the disseizor by assessing light
damages, because, on the other hand,
they have made him suffer by the loss
of the tenement, let the lands be ex-
tended by the same jurors at their true
value in the presence of the parties, if
they will be there ; and according to
the yearly value let the damages be
taxed by the justices, single or double,
according to the ordinance of our stat-
utes, and according as the assize shall
have been falsely defended or not."
1 Nichols's Britton, 357.
And it is added that if the disseizors
have taken away or detained any thing
from the plaintiff, he may have damages
for this also in the assize, or bring an
appeal of robbery or a writ of trespass.
lb. p. 358. See infra. (In Glanvill, a
special writ is given, founded on the
recovery of the land. Lib. 12, u. 18.)
And damages could be taxed for injuries
to the tenement which had happened
without the fault of the disseizor, as for
houses which had been burnt by acci-
dent, lb.
In the time of Bracton the law was
similar ; and we are told that a triple
punishment might follow the judgment in
an assize of novel disseizin, to wit, cor-
poral punishment for the spoliation,
pecuniary punishment for the unjust
detention, and the same for the dam-
ages which the demandant had sus-
tained medio tenipore spoliationis.
Bracton, 161 b. See also ib. 218 b.
But until the Statute of Gloucester,
c. 1 (6 Edw. 1), passed about fifteen
years before Britton wrote, the de-
mandant's remedy was confined to the
disseizor only ; and the consequence
was that, if he aliened or was disseized,
his alienee or disseizor escaped. This
statute remedied the defect in the com-
mon law, by providing that, " if the
disseizors do aliene the lands, and have
not whereof there may be damages
levied, they to whose hand such tene-
ments shall come shall be charged with
the damages, so that every one shall
answer for his time.'' This act also
provided that the disseizee should re-
cover damages as well in a writ of
entry upon disseizin against the alienee
of the disseizor. (The above act is
further interesting as making the first
provision for the recovery of costs.
" And, whereas beforetime damages
were not taxed but to the value of the
issues of the land, it is provided that
the demandant may recover against the
tenant the costs of his writ purchased,
together with the damages abovesaid.
And this act shall hold place in all cases
where the party is to recover damages."
See 2 Inst. 283, 288).
The injured party was now fully
protected, and there was no special
need of the action of trespass for the
breaking and entering, or for mesne
profits, which in subsequent times be-
came the common forms of remedy.
There was, indeed, a writ of trespass
quare clausum /regit in existence in
the time of Bracton, but it was rarely
used. Bracton disapproved of it, as
348
TRESPASSES UPON PROPERTY.
being a writ by which the mode of the actions at the same time. In one case
fact was to be inquired of instead of the
fact itself. 2 Reeves's Hist. Eng. Law,
216, 217, Finl. ed. (The passage in
Bracton is not cited, and we have not
been able to find it.) Assize was the
ancient, and had been the universal,
remedy for injuries to land. It was
resorted to back in the time of Glanvill
as well for indirect disseizins, by nui-
sance, for example, as for the ordinary
disseizin of actual entry (see note on
Nuisance) ; and now it was so much
the defendant, to trespass for breaking
and entering the plaintiff's house and
carrying away his goods, pleaded that
an assize of novel disseizin was then
pending in respect of the very same
land and injury ; and the plea was held
good. 8 Edw. 2, p. 272.
There were some advantages in a
proceeding by trespass over the assize,
which may account for the general
preference for the former action. If
the sheriff returned nihil habet upon the
favored as to be brought even in cases of distress warrant, a process of capias
wrongful distress. Bracton, 217. And so
it was afterwards in the time of Britton.
1 Nich. Brit. 344. See also Bracton,
210 6, c. 30, for other cases of assize.
In the reign of Edward 2 the action
of trespass had gained ground, and
numerous cases are reported where it
was brought for injuries to lands ;
cases, too, in which the issue was upon
soil and freehold in the plaintiff. Thus,
in trespass for beating down a dove-
house, the defendant pleaded that it
was within his soil and freehold. The
issued, upon application, and if the
defendant could not be found in the
county, a process of outlawry followed.
16 Edw. 2, p. 478 ; 1 Nichols's Britton,
129 ; Bracton, 440 6, 441 ; 1 Reeves's
Hist. 454, 455, Finl. ed. ; 2 ib. 218.
(But trespass could not be maintained
against a corporation, since a capias
could not issue against it. 22 Lib. Ass.
pi. 67.)
Trespass now began to be the com-
mon remedy where the injury was not
a disseizin; and long before the time
plaintiff objected that the question of of Lord Coke it appears to have been
freehold could not be tried in an action the usual mode of redress for mesne
of trespass ; and therefore he averred profits after a disseizin. See Liford's
his writ, that the defendant had torn Case, 11 Coke, 45, 516. And when the
down his dove-house. The defendant old real actions came to be superseded
then set forth his title ; and the plaintiff by the action of ejectment,1 trespass, or
was driven to reply to the special mat- assumpsit for use and occupation, was
ter thus, that the defendant beat down
the plaintiff's dove-house, in the plain-
tiff's soil, and not in the defendant's.
15 Edw. 2, p. 457. See also 3 Edw.
2, p. 63 ; 2 Reeves's Hist. Eng. Law,
ut supra.
the only mode of obtaining satisfaction
for the loss of the issues of the land
during the disseizin. 1 Chitty, Plead-
ing. See infra. The wisdom, how-
ever, of the early law in allowing a
recovery in the real action of damages
Trespass thus became in actual prac- for such loss, thus saving the expense
tice a concurrent remedy with assize for and delay of a double litigation, is ob-
injuries to real property. But the in- vious ; and comparatively recent stat-
jured party could not maintain both utes have, in some of the States at
1 It is curious to observe the transformation by which ejectment, from a simple action of
trespass, in which damages only were sought, came finally to be an action for the recovery of
the land only. See 3 Reeves's Hist. Eng. Law, 177-1 SO, 759-762, Finl. ed.
HISTORICAL.
349
least, put the law again where it stood
in the thirteenth century.
Of the many writs of trespass to
lands the following may be selected as
fairly representing the action : ' ' The
king to the sheriff, greeting. If A.
shall make you secure, &c, then put,
&c, B., &c, wherefore with force and
arms he broke the close of him the
said A., at N., and therein, without his
license and will, chased, and took and
carried away so many conies, of such a
price, and other enormous things to him
did, to the great damage of him the said
A., and against our peace. And have
there the names of the pledges and this
writ. Witness," &c. Fitzh. Xat. Brev.
87. (The trespass was for the breaking
and entering, and not for the conies. lb.)
Where grass or crops were injured
the writ ran: "Wherefore, &c, the
herbage of him the said A., at N.,
lately growing, or the corn of him the
said A., at N., lately growing, to the
value often pounds, with certain cattle
he depastured, trod down, and con-
sumed, and other," &c.
Several acts of trespass were often
united, thus: " Wherefore, &c, he
broke the houses of him the said A., at
N., and cut down his trees there lately
growing, and fished in his fish-ponds
there, and took and carried away the
fish thereof and the trees aforesaid, and
there took and impounded his beasts of
the plough, and detained them so long
time impounded that forty acres of land
of the same A. for a great while re-
mained unfilled, and took and carried
away the doves of his dove-cot there,
with nets and other engines, whereby
the same A. wholly lost a flight of his
dove-cot, and other," &c. lb. 88.
The gist of the action in these cases
was the entry, and the other acts were
only aggravation ; and, therefore, it
was but mitigation of damages for the
defendant to show that the plaintiff had
not lost the goods: ib., note a; ib. 87,
note a; the law upon this point being
the same as now.
In Bracton's time (as ever since)
the possession of a wrong-doer was pro-
tected against strangers. 165, 1666, 184,
184 b, 196. Comp. Dig. lib. 43, tit. 17, 2.
As to injuries to a man in respect of
his goods, if the property was detained
or stolen, the law (apart from redress in
a real action) gave restitution in the one
case by the writ of detinue or replevin,
and in the other by an appeal of felony
or by a writ of trespass. As to larcenies
and robberies committed in time of
peace, where the offenders were not
freshly pursued with hue-and-cry, Brit-
ton says that the owners of the things
should have their suit by appeal of
felony within the year and day as in other
felonies, but after that time their right
of appeal was to cease, and the suit to
belong to the king only. If the plain-
tiffs brought their suit in form of tres-
pass, they were to be heard if they had
not before begun suit in form of felony;
and the judgment in trespass was a
bar to an appeal by the king, though if
the plaintiff abandoned his suit, it was
otherwise. 1 Nichols's Britton, 118.
The difference between the two pro-
ceedings, in the result, was that in the
appeal of robbery the thing taken was
to be restored : 3 Reeves's Hist. 330,
Finl. ed. ; while in trespass, the plaintiff
sought damages for the loss of his goods.
The property could not, however, be re-
covered in the case of an indictment,
until by the St. 21 Hen. 8, u. 11, the
rule of the common law was extended.
Ib. This statute provided, that if a
man robbed or took away any money,
goods, or chattels, from the person or
otherwise, and was indicted, arraigned,
and found guilty, or otherwise attainted,
the person robbed or the owner of the
350
TRESPASSES UPON PROPERTY.
goods should have them restored. And
similar statutes have been passed in
more modern times in England. lb.,
note.
It is a reasonable conjecture that,
where there was no recaption of the
stolen goods, the earlier mode of redress
and restitution was through this appeal
of felony, and that trespass for such pur-
pose was an after invention. See note
on Conversion, post.
Trespass for goods taken and carried
away was, however, a well-recognized
action in the time of Edward 1, as ap-
pears from a record given in Ryley's
Pleadings of Parliament, p. 125. This
record contains a full recital of the pro-
ceedings in a case of this kind, from the
writ to the award of the venire. It will
also be found in 2 Reeves's Hist. 160,
161, Finl ed.
As in the case of injuries to lands,
trespass for damage done to goods grew
in frequency and in extent of applica-
tion in subsequent reigns, and became
one of the most common actions. Its
history, however, presents little of pecu-
liarity or interest, and it need not be
further pursued.
The following are some of the old
writs of trespass to goods : " The king,
&c. If W. of S., master of the hos-
pital of St. Michael of C, shall make
you secure, &c, then put, &c, where-
fore with force and arms he took and
carried away the goods and chattels of
the aforesaid hospital, to the value of
one hundred shillings, found at R."
&c. Fitzh. Nat. Brev. 89 G. If the
chattel were a living thing, the allegation
was cepit et abduxit, and not asporiant.
For wrongfully distraining and im-
pounding beasts the writ ran thus :
" Wherefore with force and arms he
took the beasts of him the said A., at
N., in your county, and chased them
from that county into the county of
Kent, and impounded and there de-
tained them impounded, contrary to
the law and custom of our realm, and
against our peace," &c.
The following writ lay for distraining
a man by his beasts of the plough, or
by his sheep : " Wherefore, seeing that
it is appointed for the common profit
of our realm that no man of the same
realm may be distrained by the beasts
of his plough, or by his sheep, for our
or another's debt, or on another occa-
sion whatsoever, by our or another's
bailiffs or ministers, so long as he hath
other beasts by which reasonable dis-
tress may be made upon him for levy-
ing those debts, except only those beasts
which being found doing damage to any
one shall happen to be impounded ac-
cording to the law and custom of our
realm ; the aforesaid W. took and im-
pounded the sheep of the aforesaid A.,
at N. , or the beasts of him the said A.,
of his plough, at If., against the form
of the statute aforesaid, and yet detains
them there impounded against the law
and custom, &c, and against the peace,
&c. And have, &c. And in the mean
time cause those beasts to be delivered
to him, the said A." &c. " And so
note," says Fitzherbert, p. 90, "that in
this writ of trespass the sheriff shall
make deliverance unto the party, as he
shall do upon a replevin ; and if the
party hath the beasts delivered unto
him before the writ sued, then this
clause, ' cause those beasts in the mean
time to be delivered to him the said A.,'
shall not be in the writ."
For chasing sheep with dogs the writ
was thus: "Wherefore with force and
arms he chased one hundred sheep of
him the said A., found at T., with cer-
tain dogs, inciting those dogs to bite
the sheep aforesaid, insomuch that by
the chasing and biting of the dogs afore-
said the said sheep were greatly injured,
HISTORICAL.
351
and a great part of them cast their young,
and made an assault upon T., his servant
there, &c, by which," &c. lb. To this
there is the following note : " If my dog
kills your sheep, and I freshly after the
fact tender you the dog, you are without
remedy. 7 Edw. S, Barr. 290." See
note on Dangerous Animals.
As to trespass in general, accessaries
were not liable in the time of Britton
(1 Xich. Brit. 130) ; but in the time of
Edward 3, the rule prevailing in modern
times was laid down, that there were no
accessaries in trespass, all being princi-
pals. And it was held that, if a person
assented to a trespass, after its commis-
sion, he was liable to the action. 38
Edw. 3, p. 18.
Previous to the passage of the St. of
Westm. 2, c. 24 (13 Edw. 1), the writs
of trespass in use were inadequate to
many of the injuries to property ; and
one of the results of that statute was to
remedy this defect. The writ of assize,
as we have seen, was extended by the
St. of Gloucester so as to give a right
of recovery against alienees of the
wrong-doer ; but that act, as the term
" assize " implies, was limited to cer-
tain cases of injuries to land, and other
legislation was desired.
The St. of Westm. 2 was general,
and provided that where a writ existed
in one case and a thing happened in
consirnili casu, and needing a similar
remedy, a writ should be made accord-
ingly. A writ of nuisance against an
alienee of the wrong-doer was given as
an instance ; the writ having previously
lain only against the wrong-doer him-
self. Hence arose actions on the case ;
and though the examples given in the
statute are of actions for injuries to
land, the act was considered as extend-
ing to all classes of wrongs, and actions
greatly multiplied under it.
Under this act reversioners now found
a remedy for injuries to the inheritance
committed by strangers, while before,
the only writ which was in use was the
writ of waste, which was directed against
the tenant only. So, in the case of chat-
tels which were in the possession of
another, the owner now had an ade-
quate mode of redress for injuries done
by third persons. And so of all other
infractions of legal rights to the damage
of a man, for which there had previously
been no writ.
In theory, a man's right of property
(as well as other legal rights) was now
secure, whether he was in possession or
not, provided the injury extended to
him. But how' greatly the benefits of
the statute were frittered away in endless
and fruitless refinements as to the pre-
cise difference between the old writs
and the new is too fresh in the memory
of living lawyers to need comment. In
some parts of this country, indeed, it
has not yet become a memory : Winkler
v. Meister, 40 111. 349 (1866) ; Powers
v. Wheeler, 63 111. 29 (1872) ; for which
there is far less excuse than there was
when the difference between the use or
omission of the words vi et armis might
involve the right to a capias or a wager
of law. (The process of capias did not
issue in trespass on the case ; and the
defendant might wage his law under
this class of writs, which he could not
do in trespass vi et armis. 2 Reeves's
Hist. 397, Finl. ed.)
In the remainder of this note, dis-
carding the nearly obsolete distinctions
between trespass and case, so far as
they relate to the mere form of action,
we propose to consider the circum-
stances under which a right of action ,
whether in trespass or case^ may now be
maintained for such injuries to property
as are not the result of negligence ; of
352
TRESPASSES UPON PROPERTY.
which hereafter. And, first, of questions
pertaining to —
Possession and Property, (a.) Posses-
sion as to Wrong-doers. — The doctrine
of the principal case, Cutts v. Spring,
that possession is in general sufficient
foundation for an action for an inter-
ference with one's enjoyment of prop-
erty against all persons except the
rightful owner, is abundantly sustained
by the authorities. Asher v. Whitlock,
Law R. 1 Q. B. 1 ; Graham v. Peat,
1 East, 244; Demick v. Chapman, 11
Johns. 132 ; Cook v. Howard, 13
Johns. 276 ; Burrows v. Stoddard, 3
Conn. 160, 431 ; Outcalt v. Durling, 1
Dutch. 443 ; Brown v. Manter, 22 N. H.
468 ; Barnstable v. Thacher, 3 Met. 239;
Slater v. Rawson, 6 Met. 439 ; Town-
send v. Kerns, 2 Watts, 180 ; ante, 349.
And these cases show that the rule
is the same whether the property be
real or personal.
This point is illustrated in those
cases beginning with Trevelian v. Pyne,
1 Salk. 107, and Chambers v. Donald-
son, 11 East, 65; in the latter of which
it was held that in trespass upon land
the justification of a command from the
owner is traversable. Mr. Smith says
that long after the decision in Trevelian
v. Pyne (which was replevin for cattle)
it was still thought, in accordance with
the opinion expressed in that case, that
in trespass quare clausum fregit, if the
defendant justified under the command
of A., in whom he alleged the freehold
to be, the plaintiff could not in his rep-
lication traverse the command, because
that would admit the freehold to be in
A. ; and, if the freehold were in A., the
plaintiff ought not to have the action.
1 Smith's L. C. 471. But the law was
settled otherwise in Chambers v. Don-
aldson. In that case, which was tres-
pass quare clausum, the defendant
pleaded that the locus in quo was the
freehold of P., and that by his command
they broke and entered. The plaintiff
traversed the command, and, on de-
murrer, the plea was held traversable ;
the ground taken being that otherwise
a mere wrong-doer could interfere with
another's possession, and by justifying
under the owner save himself harmless;
and this was not to be allowed, though
the plaintiff in possession himself had
no title as against the owner. See
Finch v. Alston, 2 Stewt. & P. 83.
But the cases above cited show that it
is no defence to show title in a stranger ;
and the same is equally true in trespass
de bonis asportatis. Cooke v. Howard,
13 Johns. 276, 284. The defendant
must go further, and show that the act
complained of was done under the au-
thority of the owner.
If there are two persons in a field,
each asserting that the field is his, and
each doing some act in the assertion of
the right of possession, and the question
is which of the two is in actual posses-
sion, the answer is that the person who
has the title is in actual possession,
and the other person is a trespasser.
Maule, J., in Jones v. Chapman, 2
Ex. 803. See also - Barr v. Gratz, 4
Wheat. 213; Anonymous, 1 Salk. 246;
Butcher v. Butcher, 7 Barn. & C. 399 ;
Codman v. Winslow, 10 Mass. 146;
Brimmer v. Proprietors of Long Wharf,
5 Pick. 131 ; Hunting v. Russell, 2 Cush.
145. And if neither had title, it would
seem, upon the principles already stated,
that the one who first entered, if his
possession were continuous, would be
entitled to the possession as against
the other. But quare, if the one who
first entered had been actually evicted
by the other, could he maintain an ac-
tion for trespass committed subsequently
by the latter ?
POSSESSION AND PROPERTY.
353
Upon this subject see Barnstable v.
Thacber, 3 Met. 239. In tbat case the
plaintiffs had taken possession of a tract
of unenclosed cranberry land, to which
they had no title, forbidding all persons,
by public notice, to take cranberries
therefrom, except on certain prescribed
terms, with which most persons had
complied for several years. Before the
plaintiffs took possession, one Hallett
had claimed a right in the land, though
he could show no title, and had been
accustomed to take cranberries growing
thereon, and continued to do so after
the entry of the plaintiffs. The de-
fendants claimed under a license from
Hallett. It was held that the plaintiffs
could not maintain an action for the in-
terruption of their alleged right of pos-
session. " Xow, when two parties,"
said Mr. Justice Wilde, in ■delivering
the judgment, " have a concurrent or
mixed possession, and neither party has
any other title, nor the exclusive pri-
ority of possession, neither party can
maintain trespass against the other.
We think, therefore, that, as Hallett
had prior possession, he had a right to
maintain it, notwithstanding the entry
and claim of the town ; and if he had
entered claiming title, at the same time
the town entered, and had continued to
maintain concurrent possession, neither
partv, it seems, could maintain tres-
pass/' See also Tappan v. Burnham,
8 Allen, 70. But qucere whether, as
against the defendants, the plaintiff
could not recover, for the former
claimed only as licensees of Hallett.
See Wood v. Leadbitter, 13 Mees. &
W. 838, infra.
In cases of mixed possession, held in
ignorance of the true boundary line, he
in whom the title actually exists may
maintain trespass against the other for
injuries committed upon the land.
Leach v. Woods, 14 Pick. 461.
The devisee of one who had only a
bare possession may also, it seems,
maintain an action against a wrong-
doer for disturbing his occupancy. See
Asher v. Whitlock, Law R. 1 Q. B. 1,
where the heir of such a devisee was
held entitled to maintain ejectment
against a stranger who had entered
upon the land.
The doctrine of Cutts v. Spring does
not apply, it seems, as to rights and
things not capable of full possession.
The editors of Smith's Leading Cases,
indeed, say that it may, perhaps, be laid
down generally that to rights lying in
grant, and not susceptible of posses-
sion or seizin, there can be no title as
against a wrong-doer where there is
none against the party capable of grant-
ing such rights; excepting only where
the right claimed is a natural incident
of property which is in the possession
of the claimant. And they give the
following illustrition : Thus, as a mere
license confers no right at common law
against the licensor, but only excuses
that which, if not done under the
license, would have been a wrong to
him (Wood v. Leadbitter, 13 Mees. &
W. 838), the licensee of that which
might have been conferred as an ease-
ment or projit-lt-prendre, cannot, it is
apprehended, maintain an action against
a wrong-doer for depriving him of the
benefits which he might or would have
enjoyed under the licensee. 1 Smith's
L. C. 318 (6th Eng. ed.).
Hill r. Tupper, 2 Hurl. & C. 121, is
cited in support of this proposition, and
appears to sustain it. In that case an
incorporated canal company bad grant-
ed by deed to the plaintiff the sole and
exclusive right or liberty to put or use
354
TRESPASSES UPON PROPERTY.
boats on the canal, and let them for
hire; and the action was brought
against the defendant for disturbing the
exclusive right claimed under this deed.
The court held that the plaintiff could
not recover. Pollock, C. B., said:
' ' After the very full argument which
has taken place, I do not think it nec-
essary to assign any other reason for
our decision than that the case of
Ackroyd ». Smith, 10 Com. B. 164,
expressly decided that it is not compe-
tent to create rights unconnected with
the use and enjoyment of land, and an-
nex them to it so as to constitute a
property in the grantee. This grant
merely operates as a license or covenant
on the part of the grantors, and is
binding on them as between themselves
and the grantee, but gives him no right
of action in his own name for any in-
fringement of the supposed exclusive
right."
It is doubtful, too, if this doctrine
that bare possession avails against a
wrong- doer is true of rights or things
which are not capable of full possession,
even in favor of the owner of the soil.
See Whaley v. Laing, 27 Law J. Ex.
327 ; s. c. 2 Hurl. & N. 476 ; 3 Hurl.
& N. 675, 901. In this case, the decla-
ration alleged that the plaintiffs were
possessed of mines and of engines and
boilers for working the mines, and used,
had, and enjoyed the benefit and ad-
vantage of the waters of a branch canal,
near the engines and boilers, to supply
them with water ; and that the water
" used and ought to run and flow with-
out being fouled or polluted, but that
the defendant wrongfully fouled and
polluted the water, and thereby injured
the plaintiffs' engines." The defendant
pleaded not guilty, and also traversed
the allegation that the water ought to
run and flow without being fouled or
polluted. The plaintiffs alleged no
right to the water. The case was much
litigated, and there was great diversity
of opinion among the judges ; but it was
finally held by four judges against two
(3 Hurl. & N. 901) that the declaration
was bad in arrest of judgment, for want
of an allegation that the plaintiffs were
entitled to the full enjoyment of the
water.
In Hilton v. Whitehead, 12 Q. B.
734, the declaration alleged that the
plaintiff was possessed of a dwelling-
house, and the defendant, of coal-mines
near to and under it ; that the dwelling-
house was supported in part by land
between the same and the mines ; and
that the plaintiff " of right was entitled
to and of right ought to have had his said
dwelling-house so supported by the said
land without the hindrance or disturb-
ance of any person." It then alleged
that the defendants so wrongfully and
injuriously worked the mines as to
loosen and disturb the support of the
house. The declaration was held bad,
after verdict, for not stating how it
was that the plaintiff was entitled to
have his house supported by the land
above the mines.
In Jeffries v. Williams, 5 Ex. 792,
however, which was decided two years
later, a similar declaration was held
good ; but this was because there was
nothing to show that the defendant
owned the soil in which the mines were
situated, for which reason he was con-
sidered, prima facie, a wrong-doer.
The case appears to have been decided
independently of Hilton v. Whitehead,
that authority not being cited. See
also Wyatt v. Harrison, 3 Barn. &
Ad. 871 ; Bibby v. Carter, 4 Hurl. &
N. 153.
(6.) Injuries to Reversion. — It is not
necessary in all cases that the plaintiff
POSSESSION' AND PROPERTY.
355
should have actual possession in order
to maintain a suit for trespass. One
who has a reversionary interest in lands
or chattels may have an action for an
injury to his interest. It was so held
in Aver v. Bartlett, 9 Pick. 156, as to
chattels. That the same is true as to
lands, see Lienow v. Ritchie, S Pick.
235 ; Cannon v. Hatcher, 1 Hill (S. Car.),
260; Livingston v. Mott, 2 Wend. 605;
Baxter v. Taylor, 4 Barn. & Ad. 72.
And this, too, against a licensee of the
tenant; for such an injury is waste,
which determines the tenancy. Daniels
v. Pond, 21 Pick. 367, was the case of
a removal of manure. See also Lewis
v. Lyman, 22 Pick. 437, 442. So, too,
an action lies by a mortgagee against
one who removes trees under authority
of the mortgagor, or a building erected
on the land by the mortgagor after the
execution of the mortgage. Page o.
Robinson, 10 Ciish. 99 ; Cole v. Stew-
art, 11 Cash. 181.
It is not material whether the prop-
erty be in the possession of a tenant
holding at will or otherwise. The nature
of the tenancy does not affect the right
of action of the reversioner ; though
under the old system of pleading it
affected the form of his action. If the
tenancy was at will, the owner sued in
trespass ; otherwise, in case. See Star
v. Jackson, 11 Mass. 520; Hingham v.
Sprague, 15 Pick. 102; Livingston v.
Mott, 2 Wend. 605. That is, every
trespass to the possession of a tenant
at will is at common law as much an
injury to the owner as to the tenant.
It is otherwise now by statute in Mas-
sachusetts. See Hastings v. Livermore,
7 Gray, 194.
If the injury does not affect the re-
version, the landlord cannot sue ; the
right of action belongs to the tenant.
Baxter v. Taylor, 4 Barn. & Ad. 72 ;
Tobey v. Webster, 3 Johns. 468 ; Da-
vis v. Clancy, 3 McCord, 422.
In Baxter v. Taylor, the plaintiff
sued in case for an injury to his rever-
sion. It appeared in evidence that the
defendant had entered the close with
horses and carts, and, after notice from
the plaintiff to discontinue so doing, had
claimed to do it in exercise of an un-
founded right of way. The judge at
nisi prius was of opinion that although
there might be ground for an action by
the plaintiff's tenant, the evidence did
not show an injury to the reversion ;
and this ruling was held correct. The
case of Young t>. Spencer, 10 Barn. &
C. 145, having been cited for the plain-
tiff, Taunton, J., said: "That was an
action on the case in the nature of waste
by a lessor against his own lessee. Here
the action is by a reversioner against a
mere stranger; and a very different rule
is applicable to an action on the case in
the nature of waste brought by a land-
lord against his tenant and to an action
brought for an injury to the reversion
against a stranger. Jackson v. Pesked,
1 Maule & S. 234, shows that if a plain-
tiff declare as reversioner for an injury
done to his reversion, the declaration
must allege it to have been done to the
damage of his reversion, or must state
an injury of such a permanent nature
as to be necessarily prejudicial thereto ;
and the want of such an allegation is
cause for arresting the judgment. If
such an allegation must be inserted in
a count, it is material, and must be
proved. Here the evidence was, that
the defendant went with carts over the
close in question, and a temporary im-
pression was made on the soil by the
horses and wheels. The damage was
not of a permanent, but of a transient,
nature ; it was not, therefore, necessa-
rily an injury to the plaintiff's rever-
356
TRESPASSES UPON PROPERTY.
sionary interest." As to the claim of
a right of way, to the assertion that,
if the action was held improper, this
would be evidence of a right against
the plaintiff in case of further contro-
versy, the learned justice replied, " Acts
of that sort could not operate as evi-
dence of right against the plaintiff, so
long as the land was demised to ten-
ants, because, during that time, be had
no present remedy by which he could
obtain redress for such an act. He
could not maintain an action of tres-
pass in his own name, because he was
not in possession of the land, nor an
action on the case for injury to the re-
version, because in point of fact there
was no such permanent injury as would
be necessarily prejudicial to it. As,
therefore, he had no remedy by law for
the wrongful acts done by the defend-
ant, the acts done by him or any other
stranger would be no evidence of right
as against the plaintiff so. long as the
land was in possession of a lessee."
See Dougherty v. Stepp, 1 Dev. & B.
371.
(c.) Constructive Possession. — An
action may also be maintained where
the possession of the plaintiff is only
constructive. In Davis v. Clancy, 3
McCord, -±'22, it was held that evidence
was proper which should make it appear
that the person in actual possession of
the premises had been put there merely
as agent of the plaintiff, for the purpose
of holding possession for the plaintiff
and to protect the property from depre-
dation. And it was said that though
such agent were allowed to cultivate a
part of the land for himself, while the
part so cultivated might be considered
as in his possession, so as to prevent an
art.ion by the owner for an injury not
affecting the reversion, the rest was to
be regarded as in the possession of the
.landlord, so as to enable him to sue for
any, the slightest, injury.
In Bulkley v. Dolbeare, 7 Conn. 232,
the plaintiff sued in trespass for the cut-
ting down and carrying away certain
trees from his land which, it appeared,
was in the actual possession of another;
whether as a disseizor or tenant was not
clearly shown. The action was upheld.
The general property in the trees, it
was said, was, after severance, in the
plaintiff, the owner of the land. (See
Gordon v. Harper, 7 T. R. 9,11.) And
it was established law that the person
who had the general property in a per-
sonal chattel might maintain trespass
for the taking of it by a stranger,
though he never had the possession in
fact ; for a general property in a per-
sonal chattel draws to it a possession in
law. Bro. Abr. Trespass, pi. 303, 341;
Latch, 214; 2 Bulst. 268; Bac. Abr.
Trespass, C. 2.
In accordance with the doctrine of the
above cases, a party in possession of an
enclosed piece of land may have an ac-
tion for a trespass committed in his ad-
joining, though unenclosed, woodland.
Penn v. Preston, 2 Rawle, 14; Machin v.
Geortner, 14 Wend. 239. See also Gam-
bling v. Prince, 2 JSTott & McC.138 ; Jeph-
erson v. Dryden, 18 Pick. 385. (In the
last named case it was held that a con-
veyance of land and a mill privilege by
metes and bounds, " together with the
privilege of a dam," gave the grantee
such an interest in that part of the
grantor's land not included within the
metes and bounds, but upon which the
dam extended, as would sustain tres-
pass quare clausum against the grantor
for cutting that part of the dam away.)
Another example of constructive pos-
session is found in Phelps v. Willard,
16 Pick. 29. There the plaintiffs agreed
to furnish one Burbank with a machine,
POSSESSION AND PROPEKTY.
357
and to put it up in perfect order in the
latter's mill. The latter was to cart
the machine to his mill, and, if satisfied
with it, to pay for it ; otherwise the
plaintiffs were to take it away. Before
it was entirely put up and completed,
it was tried, and did not in that condi-
tion give satisfaction. It was objected
that the plaintiffs had not sufficient pos-
session to maintain an action against
an officer for attaching the machine as
the property of the mill-owner; but the
court ruled otherwise. According to
the defendant's agreement, it was ob-
served, the plaintiffs had a right to go
into the mill to finish the machine, and
the defendant could not maintain tres-
pass quare clausum against them. "If
a watchmaker," said the court, by way
of illustration, "puts up a clock in a
house, under an agreement that if it
shall keep good time the owner of the
house will purchase it, we think that
until the trial is mad^ the watchmaker
remains in possession so as to be able
to maintain trespass."
So, too, the proprietor of lands ad-
joining a. public highway has such a
possession of the way as to enable him
to maintain an action for an unlawful
ploughing of the same. The right of
the public is merely that of an ease-
ment ; while the owner retains his right
in the soil. Robbins v. Borman, 1 Pick.
122. See also Conner v. New Albany,
1 Blackf. 88. And the owner of lands
through which a turnpike road has been
run may also maintain trespass against
the turnpike corporation or it-> servants
acting for it for the removal of herbage
spontaneously growing by the road^de
after the completion of the road. Ad-
ams v. Emerson, 6 Pick. 57. The locus
in quo, the court observed in this case,
although part of a turnpike road, is the
soil and freehold of the adjacent owner,
subject merely to the public easement
and the right of the turnpike corpora-
tion to construct a convenient pathway,
and to keep it in good repair. To ac-
complish these purposes the corporation
might dig and remove from place to
place, within the limits laid out for the
road, sand and gravel and turf; but
the right of herbage, and the right to
trees, mines, &c, belonged to the owner
of the soil.
The owner of the land cannot main-
tain an action for the mere temporary
and not improper obstruction of the
road, however. Mayhew v. Norton, 17
Pick. 857; O'Linda v. Lothrop, 21 Pick.
292.
In Bradish v. Schenck, 8 Johns. 151,
the defence to an action of trespass was
that the plaintiff had let the locus on
shares to a third person, and therefore
had not possession. But the court held
that the letting of land on shares, if for
a single crop, did not amount to a lease;
and the action was therefore considered
proper.
It has been held that a widow remain-
ing in the manMon-house, as allowed by
statute, but having had no allotment of
dower, cannot maintain an action for
trespasses committed outside of the en-
closure, though within the boundaries
of the tract belonging to her late hus-
band. Carey v. Buntain, 4 Bibb, 217.
"Instances no doubt are frequqpt,"
said the court, "where an entry on part
of a survey will operate to give a pos-
session in fact of the whole, and proof
of such an entry will be suffirient evi-
dence of possession to maintain an ac-
tion for trespass committed on any part.
The present case appears not, however,
to be of that character. Mrs. Buntain,
the widow and plaintiif in the court be-
low, cannot, according to any principle,
have been possessed beyond the limits
358
TRESPASSES UPON PROPERTY.
of the plantation. At common law, it
is true, she would be entitled to dower
of the lands of the deceased husband,
but she could thereby have had no sev-
eral interest in any particular part; and
according to the most approved author-
ities., until dower assigned, she had no
right of entry. See 2 Bac. Abr. 375,
and the authorities there cited. The
statute of this country, it is true, has
permitted the widow to tarry in the
mansion-house and plantation, rent free,
until dower is assigned ; but as at com-
mon law she would have had no right
of entry until then, her remaining in
the mansion-house should be taken con-
sistent with the statute, and her pos-
session consequently to the limits of the
plantation."
A party who is in possession of land
without title can have no constructive
possession beyond the limits of his
actual occupation; and therefore where
a man, having possession of the south
end of a lot, but without title, cut tim-
ber on the north end of the lot, the
whole of which he contended was within
his constructive possession, it was held
that he was liable to the owner in tres-
pass. Aikin v. Buck, 1 Wend. 466.
(d.) Cotenants. — One of several
cotenants cannot maintain an action
against the others for trespasses not
amounting to an ouster, because all
have equal rights of possession and
property. Keay v. Goodwin, 16 Mass.
1 ; Allen v. Carter, 8 Pick. 175 ; Wil-
kinson v. Haygarth, 12 Q. B. 837; s. c.
16 Law J. Q. B. 103. If the act amounts
to an ouster, an action will lie ; as in the
case of the destruction of the common
property, the effectual carrying away of
a chattel (Jacobs v. Seward, Law R. 5
H. L. 464), and the digging of turf.
Wilkinson v. Haygarth, supra. Other-
wise of taking the vestura terra; or other
growing profits. lb. The reason why
the turf cannot be taken was stated in
Wilkinson v. Haygarth to be that, if
this could be done, the court must also
say that a tenant in common could carry
all the brick earth from the surface ; and
it would be impossible to say where he
must stop.
In this case the action (for digging
and carrying away turf) was brought
against the licensee of a cotenant ; and
one of the pleas was " not possessed."
In overruling the plea, Lord Denman
said that, if possession in such cases im-
ported exclusive possession, one tenant
in common might destroy the subject-
matter for his own benefit, and his co-
tenant be without this remedy. If the
plaintiff had joined the cotenant in
bringing the action, the latter would
have released the defendant, whose act
was committed under his orders. The
plaintiff, he added, could recover such
damages only as<pwere proportionate, to
his interest in the property ; but the
wrong-doer had no right to put him to
the proof of more than was necessary
to show him injured by the wrong
done.
The old authorities hold that tres-
pass will not lie between cotenants for
any thing short of a destruction of the
common property ; and this is still the
rule in trover, according to the weight
of authority. See note on Conversion,
post. " Where two hold the wardship
of lands or tenements during the non-
age of an infant, if the one oust the
other of his possession, he which is
ousted shall have a writ of ejectment
de gard of the moiety, &c, because
that these things are chattels real, and
may be apportioned and severed, &c,
but no action of trespass ... for that
each of them may enter and occupy in
common, &c, per my et per tout, the
POSSESSION AND PROPERTY.
359
lands and tenements which they hold in
common." Littleton, § 323. and com-
mentary thereon, Coke, Litt. 200 a;
Shepard v. Ryers, 15 Johns. 501.
But this doctrine has been departed
from, and it is now held, as was held in
the principal case, Murray i\ Hall, and
as was said by Lord Denman in Wilkin-
son v. Haygarth, supra, that trespass
will lie against a cotenant for an ouster.
(Goodtitle v. Tombs, 3 Wils. US, re-
ferred to in Murray v. Hall, stands upon
the ground that a recovery in ejectment,
as well between cotenants as in other
cases, is conclusive of the right to mesne
profits. Bennet c. Bullock, 35 Penn.
St. 36-1; Camp v. Homesley, 11 Ired.
211; Carpentier t. Mitchell, 29 Cal.
330. See the consideration of this point
infra. Before the St. of 4th Anne, c. 16,
§ 27, there was no remedy for the profits
even through an ejectment. Coke Litt.
199 6. That statute gave the remedy
by account, where the defendant had
taken all of the profits or more than his
share of them. lb., note; Silloway v.
Brown, 12 Allen, 30, 38.) See also
Silloway v. Brown, 12 Allen, 30 ; Ben-
nett i*. Clemence, 6 Allen, 18 ; Marey
v. Marcy, 6 Met. 360; Filbert v. Hoff,
42 Penn. St. 97; Dubois v. Beaver, 25
N. Y. 123 ; Odiorne v. Ljford, 9 K. H.
511.
According to Littleton and Coke, as
above cited, there was a distinction be-
tween chattels real that were severable
and chattels real entire. In the latter
case there was no remedy by law for an
ouster; and it is, therefore, worthy a
qucere whether the doctrine of Murray
v. Hall, which is placed upon the ground
that an ejectment is maintainable, would
extend to chattels real which cannot be
severed, or to chattels personal, — as
to both of which Littleton and his com-
mentator make the rule the same. See
Bennot v. Bullock, 35 Penn. St. 364,
367, where the court suggest that tres-
pass lies only for mesne profits or where
there has been a total destruction of the
common property.
The court of Vermont, it is to be ob-
served, have expressed the opinion, in ac-
cordance with the view of Littledale, J.,
in Cubit v. Porter and the old authorities,
that trespass quare clausum will not lie
between cotenants. Wait v. Richard-
son, 33 Vt. 190. And that was the case
of a chattel real which was severable,
and had in fact been several ; the action
being for the cutting and carrying away
timber from a lot held in common by
the parties. But, as Mr. Freeman sug-
gests (Cotenancy, § 299), there is,
probably, a distinction between those
cases where the severance and carrying
away of the chattel real amounts to a
practical destruction, or severance of
the common property, — that is, where
the chattel carried away is the essential
part of the common property, — and
where the act has no substantial effect
upon it. And the carrying away must
be effectual, so as to place the chattel
bevond the lawful reach or control of
the plaintiff. Jacobs v. Seward, Law
R. 5 H. L. 464, where the defendant
carried away hay from an enclosure and
put a lock upon the gate, and it was
held that this was not a sufficient
ouster.
The withholding of possession by
one cotenant from his companion is
considered as equivalent to an ouster ;
and an action will lie for this equally
with the case of an expulsion. Sillo-
way v. Brown, 12 Allen, 30; Marcy v.
Marcy, 6 Met. 360 ; Bigelow v. Jones,
10 Pick. 101 ; Doe v. Prosser, 1 Cowp.
218 ; Jacobs v. Seward, Law R. 5 H. L.
404; Clason v. Rankin, 1 Duer,oii7;
Noble ». McFarland, 51 111. 220 ; Har-
360
TRESPASSES UPON PROPERTY.
rison v. Taylor, 33 Mo. 211; Peterson
». Laik, 24 Mo. 541 ; Ewald v. Corbett,
32 Cal. 493 ; Tevis v. Hicks, 38 Cal.
234; Freeman, Cotenancy, §§292, 301.
In Marcy v. Marcy a cotenant made
a conveyance of the premises with war-
ranty to the defendant ; and it was
urged for the latter, in a writ of entry
by the injured tenant, that the convey-
ance was void as against the plaintiff,
and that the grantee, though he had
refused, on request, to give up to the
plaintiff a moiety of the premises, was
not a disseizor, because he had a right
under one of the tenants, his grantor.
But the court held otherwise, saying
that it had been determined upon great
authority, and by repeated decisions in
Massachusetts, that one cotenant might
disseize another. Among other authori-
ties the language of the court in Doe v.
Prosser, supra, was quoted : ' ' The pos-
session of one tenant in common, eo
nomine, as tenant in common, can never
bar his companion ; because such pos-
session is not adverse to the right of his
companion, but in support of their com-
mon title ; and by paying him his share,
he acknowledges him cotenant. Nor,
indeed, is a refusal to pay, of itself, suffi-
cient without denying his title. But if,
upon demand by the cotenant of his
moiety, the other denies to pay, and
denies his title, saying he claims the
whole and will not pay, and continues in
possession, such possession is adverse
and ouster enough." But a mere denial
of the plaintiff's title is not enough if
the plaintiff himself be in possession.
Filbert v. Hoff, 42 Penn. St. 97. The
ouster, it is said, must be unequivocal,
lb.; McGill v. Ash, 7 Barr, 397;
Trauger v. Sassaman, 14 Penn. St.
514.
As to what constitutes evidence of an
ouster, see Jacobs v. Seward, Law R. 5
H. L. 464; Bennett v. Clemence, 6
Allen, 18 ; Keay v. Goodwin, 16 Mass.
1; Filbert v. Hoff, 42 Penn. St. 97;
McGill v. Ash, 7 Barr, 397; Harman v.
Gartman, Harper, 430.
The plaintiff is relieved of the neces-
sity of proving an ouster or destruction
if the defendant plead that the whole
property is his own in severalty or to
the exclusion of the alleged right of the
plaintiff. Clayson v. Rankin, 1 Duer,
337; Peterson v. Laik, 24 Mo. 541;
Harrison v. Taylor, 33 Mo. 211 ; Noble
v. McFarland, 51 111. 226 ; McCallum
v. Boswell, 15 Up. Can. Q. B. 343.
"Blackstone (2 Com. 182) fell into a
verbal difficulty as to the relations of
cotenants to each other by an incorrect
apprehension of the French my in the
designation per my et per tout of the
manner in which joint tenants hold ; as
has been pointed out in a note to Mur-
ray v. Hall, as originally reported in 7
Com. B. 455. The term does not sig-
nify " moiety," but is a negative word,
meaning " not in the least." See the
epitaph on La Fontaine's Picard Wolf,
cited in 7 Man. & G. 172, note. " And,
therefore, Lord Coke gives the exact
force of the expression seized per my
et per tout, by describing the party so
seized as one qui nihil habet et totwm
Tiabet." And the same force is given to
the expression by Houard, in Anciennes
Loix des Francois, vol. 1, p. 362. The
fact is also noticed that Blackstone him-
self quotes the language of Bracton to
the same effect : " Quilibet totum tenet
et nihil tenet ; scilicet, totum in communi
et nihil separatim per se.n
With respect to occupation and the
right to occupy, there is no difference
between tenants in common and joint
tenants. Daniel v. Champlin, 7 Man.
& G. 167, 172, note.
(e.) Mesne Profits. Entry. — There
POSSESSION AND PROPERTY.
361
is an important qualification to the rule
requiring possession at the time of the
trespass in order to the maintenance of
an action therefor, arising in the case of
a suit for mesne profits. That an ac-
tion is maintainable against a disseizor
for the rents due and damages done by
him is clear. Liford's Case, 11 Coke,
46, 51 ; Morgan v. Variek, 8 Wend.
587: Leland v. Tousey, 6 Hill, 828.
And the courts, unwilling to admit an
exception to the rule, have resorted to
the doctrine of relation to support the
action in such cases. The disseizee
must, however, have obtained posses-
sion before bringing his action ; and
then it is said that the law supposes
that there has been no interruption of
the plaintiff's seizin. lb. The plain-
tiff's re-entry operates by relation to
give him a possession at the time the
trespass was committed, and thereby
gives him the necessary footing for his
action. lb. And this doctrine operates
as well against the servants of the de-
fendant as against the defendant him-
self, lb.
There has been considerable doubt
whether an action for mesne profits
can be maintained against one whom
the law has called a stranger; that is,
one who claims by descent or purchase
from the disseizor. And this doubt
arose from an unsettled state of the
early law. Upon this point there is a
well-known dictum of Lord Coke in
Liford's Case, supra. " If one dis-
seizes me," said he, "and during the
disseizin he cuts down the trees or
grass, or the corn growing upon the
land, and afterwards I re-enter, I shall
have an action of trespass against him
vi et armis for the trees, gra«s, corn,
<&e. ; for after my regress the law as to
the disseizor and his servants supposes
the freehold alwavs continued in me.
But if my disseizor make a feoffment in
fee, gift in tail, lease for life, years, &c,
and afterwards I re-enter, I shall not
have trespass vi et armis against those
who came in by title ; for this fiction of
the law, that the freehold continued
always in me, shall not have relation
to make him who comes in by title a
wrong-doer vi et armis, for in Jiciione
juris semper eqvitas ezistat." And again,
" If my disseizor is disseized, I shall
not have an action against the second
disseizor, and I shall recover all my
mesne profits against my disseizor."
This didum of Lord Coke, though
much criticised, has often been referred
to as good law; by Parke, B., in Barnett
v. Guildford, 11 Ex. 19, 30, and by the
courts of Xew York in Case v. De Goes,
3 Caines, 261, 263, in Van Brunt v.
Sehenck, 11 Johns. 377, 385, and in
Dewey v. Osborn, 4 Cowen, 320, 338.
But in these cases the reference to
Liford's Case was extra-judicial.
In Barnett v. Guildford, the question
before the court was of the right of the
customary heir of a copyholder to main-
tain an action for mesne profits, accru-
ing after the descent but before entry,
against the lord of the manor, who had
wrongfully withheld possession ; and it
was decided that the entry of the heir
operated by relation, and the action
was upheld. Mr. Baron Parke found
it necessary to overrule an opinion ex-
pressed by him in Litchfield c. Ready, 5
Ex. 939, to the effect that the doctrine
of relation was confined to cases of dis-
seizin ; but added, by way of caution,
that in cases of disseizin the doctrine
did not extend to strangers.
In Case v. De Goes the defendant
justified under a license from one who
had been put into possession under a
writ of restitution ; which writ was
afterwards quashed. It was not, there-
362
TRESPASSES . UPON PROPERTY.
fore, a case of an originally wrongful
possession ; though the court state that
the licensor could be held as a tres-
passer by relation. See Cummings v.
Noyes, 10 Mass. 433; Munroe v. Luke,
1 Met. 459, 468.
Van Brunt v. Schenck was a similar
case. A vessel had been seized by a
custom-house officer for violation of the
revenue laws ; and while the vessel was
under seizure the defendant, a surveyor
of the port, and interested with the
other officers of custom in seizures,
made use of the same by consent of
the party who had caused the seizure.
The defendant had not been concerned
in the seizure. The vessel was finally
acquitted, and trespass was brought by
the owner against the surveyor. It was
held that the defendant could not be
considered a trespasser by relation, and
that the plaintiff had not, after seizure,
such possession of the. vessel, or right
to reduce it to his possession, as was
essential to the maintenance of the ac-
tion. It is to be observed of this case,
however, that the question arose con-
cerning personal property ; and there
was a dissenting opinion based upon
this fact. It was said that in the case
of trespasses on real property, the gist
of the action is the injury to the posses-
sion; while for an injury done to per-
sonal property the party who has the
general property may, if entitled to im-
mediate possession, have an action of
trespass although he has not the actual
possession. And it was said that when
the seizing officer gave the vessel into
the possession of the defendant, the
right to resume possession at once
arose in the plaintiff. See this point
considered in the note on Conversion,
post. See also, as to Van ■ Brunt v.
Schenck, the criticism in Story, Agency,
§ 311, note.
The question in Dewey v. Osborn
was simply whether a plaintiff in eject-
ment might bring trespass against the
defendant or his servants for injuries
committed between the time of the ver-
dict and the habere facias possessionem ;
and it was held that he could.
The point was again adverted to in
Bacon v. Sheppard, 6 Halst. 197, but
was left without expression of opinion.
That case involved the question of the
right of action against a stranger com-
ing in under one who had been put
into possession by virtue of a writ of
lidb.fac. pos., which had been subse-
quently set aside. The case was there-
fore like Case v. De Goes ; and follow-
ing that decision and Morril's Case, 13
Coke, 21, it was held that the action
could not be maintained. But it was
said that the case would have been
otherwise against the party under whom
the defendant claimed.
In all of these cases the defendant
claimed under one who had been lawfully
let into possession : and there seems good
reason why in such cases the defendant
should not be liable for mesne profits,
since one who has obtained possession
by process of law may well be presumed
by third persons to be rightfully pos-
sessed while the process, with the pos-
session under it, continues in force. See
Bacon v. Sheppard, 6 Halst. 197, 200.
It would seem that purchasers, third
parties, under judicial sales, would be
strangers within this rule ; since, though
they do not acquire title from parties
let into possession under legal process,
they take through the sheriff, who may
be reasonably presu med to be acting law-
fully. And so it has been decided. Dab-
ney v. Manning, 3 Ohio, 321. Indeed,
if purchasers at judicial sales were re-
quired to know that the judgment was
not erroneous and liable to be set aside,
POSSESSION AND PROPERTY.
363
it would be a barrier in most cases to
all such proceedings. But if the party
who instituted the erroneous proceed-
ings should become the purchaser, it
would seem by analogy to the cases of
plaintiffs in ejectment who have been
put into possession under process which
has afterwards been set aside (of which
several of the above cases are examples)
that he would be liable in trespass for
the mesne profits.
In Sanderson v. Price, 1 Zabr. 637,
however, there was a dissenting opinion
of four against six of the New Jersey
Court of Errors against thus restricting
the right of action. In that case rne
dissenting members of the court thought
that, upon recovering possession in
ejectment by a mortgagee against a ten-
ant of the mortagor (under a lease exe-
cuted after the mortgage), the mortga-
gee could recover mesne profits from
the tenant from the time of. the service
in ejectment. This doctrine has been
upheld by the Court of Vermont. In
that State it is decided that the mortga-
gee is entitled to recover the rents and
profits against an assignee of the mort-
gagor from the time of notice to quit by
the plaintiff, or, in the absence of such
notice, from the commencement of the
action of ejectment. Babcock v. Ken-
nedy, 1 Vt. 457 ; Lyman " Mower,
6 Vt. 345. And this seems to be the
general common-law doctrine. See Tay-
lor, Land, and Ten. § 121, and notes.
According to the law of Massachu-
setts, the mortgagee cannot recover
mesne profits from the mortgagor ac-
cruing before actual entry; and there-
fore he cannot recover them from his
assignee. Wilder v. Houghton; 1 Pick.
89. See Boston Bank v. Reed, 8 Pick.
459 ; Mead v. Orrery, 3 Atk. 244 ;
Higgins v. York Buildings Co., 2 Atk.
107.
Where, however, the mortgagee can
recover against his mortgagor by rela-
tion, it would seem that the doctrine of
the minority in Sanderson v. Price was
correct ; for the mortgagor's tenant or
assignee, against whom the ejectment
is brought, can in no sense be consid-
ered a stranger.
These cases, therefore, do not touch
the doctrine of Lord Coke's dictum ;
though it is to be observed that in the
dissenting opinion in Sanderson v.
Price that doctrine was denied.
The dictum in Liford's Case -is op-
posed to Holcomb v. Rawlins, 2 Croke
Eliz. 540 ; but this case was decided
some twenty years earlier. It was an
action of trespass quart clausum ; to
which the defendant pleaded that, long
before, Thomas Clerk was seized in fee,
and had let to him for years. The
plaintiff replied that he himself was
seized until disseized by Clerk, and
that after the lease to the defendant he
re-entered ; to which the defendant de-
murred. The demurrer was overruled ;
Popham, Gawdy, and Fenner, JJ.,
saying, "By the re-entry of the dis-
seizee he is remitted to his first posses-
sion, as if he had never been out of
possession. And then all who occu-
pied in the mean time, by what title
soever they came in, shall answer unto
him for their time ; as if a disseizor had
been disseized by another, [and] the
first disseizee re-enters, he shall in
trespass punish the last disseizor."
Clench, J., dissented.
There is also a modern case opposed
to Lord Coke's dictum. Morgan v.
Varick, 8 Wend. 587. This was an
action of trespass for mesne profits and
for goods carried away. The plaintiff
had recovered in ejectment against the
defendant as a disseizor, and now, be-
sides demanding mesne profits, claimed
364
TRESPASSES UPON PROPERTY.
the right to recover for machinery and
boilers severed from the freehold by the
defendant and sold to another who had,
at the defendant's request, carried the
same away. It was contended that the
purchaser became the owner of the
property, and had the right to remove
it with the constnt of the defendant, and
that, being a purchaser, he could not be
a trespasser ; and, if he was not a tres-
passer, the defendant did not become
a trespasser by requesting the removal.
That is, according to Lord Coke, the
defendant's vendee could not be a tres-
passer ; and the defendant could not be
a trespasser for severing and requesting
the removal of the goods which belonged
to the vendee. But this reasoning was
held unsound. The court, however,
were careful to say that the case had no
connection with the class of cases (above
presented) where the party in posses-
sion had acquired possession lawfully ;
but referring to the dictum of Lord
Coke, as cited by the New York judges
in the above cases, it was said, " If that
be law, an irresponsible person may
turn the owner forcibly out of posses-
sion of his real estate, sell the buildings
and the timber, and thereby destroy the
value of the property ; he may sell it,
too, under ever so suspicious circum-
stances, as in this case, for less than
one-quarter of its value, and, according
to the doctrine quoted, the purchaser is
safe, and the owner has no remedy but
against the trespasser. Fortunately for
the owners of real estate, such is not
now the law, whatever it might have
been in the time of Lord Coke."
Again: "The disseizor, being in pos-
session by wrong, has no legal right to
the possession, nor to any thing belong-
ing to the inheritance. Having no
title, he can convey none. If, under
such circumstances, the disseizor sells
timber or buildings, or any thing at-
tached to the freehold, the severance of
such property is a trespass, and the ar-
ticle when severed becomes the personal
property of the disseizee, the owner of
the inheritance. . . . No title having
passed out of the plaintiff, all who
were concerned in the removal were
trespassers. The defendant, Varick,
by requesting Leavenworth to remove
the property, became a party to the
trespass, and is liable to this ac-
tion."
The dictum of Lord Coke was prob-
ably founded in part on the common-
law doctrine of the peculiar tortious
operation of a disseizin. So important
was the fact of seizin held that if the
disseizee failed to enter before the dis-
seizor deceased, his right of entry was
lost, and he was driven to prove his title
at law. Coke Litt. 238 a ; 3 Washb.
Real Prop. 120. This rule had, how-
ever, been so far changed by St. 32
Henry 8, c. 33, that no descent cast
would bar the right of entry unless the
ancestor should have been in possession
for five years after the disseizin. Coke
Litt. ut supra. So, too, if one should
wrongfully enter as tenant in tail and
make a feoffment, or at least if a ten-
ant in tail should make a wrongful feoff-
ment, this operated in Coke's time to
bar the reversioner or remainder-man
(as well as the heir in tail) of his right of
entry : Coke Litt. 327 6 ; and, the right
of entry being gone, he could not enter
without being himself guilty of trespass,
though the title had accrued in posses-
sion (by the death of tenant in tail with-
out issue) ; which shows that. the party
in possession had what the law termed
the jus possessionis . It follows that in
these eases trespass could not be main-
tained ; and as these were the cases that
would most frequently arise, the dictum
POSSESSION AND PROPERTY.
365
of Lord Coke was generally beyond
dispute correct.
In other cases which might have
arisen, as where the disseizor enfeoffed
another for life, the right of entry of
the disseizee was not lost ; and if the
rule in Liford's Case still held good, it
can only be explained on the ground
that it was not » trespass to receive a
feoffment from the disseizor.
But this doctrine of the operation of
a disseizin has been abolished, by statute
in England. See 1 Stephens, Com.
510 (7th ed.). And it is said that the
effect of a descent cast in tolling the en-
try of the disseizee does not prevail in
this country. 3 Washb. Real Prop.
120. But this, it seems, is not true in
Massachusetts. See Emerson c. Thomp-
son, 2 Pick. 473. In this case it was
decided that the St. of 32 Hen. 8, c.
33, above referred to, was in force in
Massachusetts, so that the disseizee's
right of entry was not tolled unless the
disseizor had had five years peaceable
possession before his death ; but it was
conceded that after five ye^rs the right
of entry would be lost.
This case of Emerson v. Thompson
was trespass against the heirs of a
disseizor (who had not held peaceably
for five years) for mesne profiis from
the time of the descent, or at least
from the time of the issuance of a writ
of entry, until judgment of possession
and actual entry thereunder, a period
of nearly two years. Judgment was
given for the profits accruing from the
date of the writ; thus establishing a
relation from the actual entry. The
defendants had entered only the day
before the writ of entry was issued,
and (the point being of such slight im-
portance) it was left undecided whether
1 In very early times the right of entry was
after a year and a day. Coke Litt. 238 a.
the right of action related to the time
of their entry.
The case therefore did not touch the
doctrine of the dictum in Liford'sCase,
though the majority of the court seem
to have thought that rule rather harsh,
and not to be extended. The ground
of the decision in favor of the relation
was, that the proceedings under the
writ of entry were regarded as equiv-
alent to those in the action of eject-
ment, except that in the former the
right of possession was not in issue
(Cox v. Callender, 9 Mass. 533) , which
right had been established in the pres-
ent action for mesne profits ; and as
judgment in ejectment was conclusive
of the right to the profits from the
commencement of the action, the same
would be true under the evidence of
the present case. This was, however,
strongly controverted in a dissenting
opinion by Putnam, J.
All of the old authorities bearing
upon the dictum of Coke are incident-
ally considered in this case. Among
those which sustain the dictum are the
following : Symons v. Symons, Hetley,
66; Bro. Abr. Trespass, pi. 35; Bac.
Abr. Trespass, G. 2 ; and several cases
from the Year-Books. In Gilbert, Ten-
ures, 50, it is said that the old law was
in conformity with the opinion of Lord
Coke ; and he assigns as a reason why
the feoffee's title was formerly allowed,
though he came in by wrong, or color-
able title, that the feoffee anciently paid
a fine to the lord.1 The law as declared
in Holcomb v. Rawlyns, supra, is, on
the other hand, thought correct in 2
Rol. Abr. 554, Trespass by Relation ;
Gilbert, Tenures, 47, 50; Com) ns's
Dig. Trespass, B. 2; Buller, X. P. 87.
The doctrine of Lord Coke is again
gone in all cases of feoffment by the disseizor,
366
TRESPASSES UPON PROPERTY.
cited with approval in Stanley v. Gay-
lord, 1 Cush. 53G, 557, by the same
learned judge who delivered the opin-
ion of the court in Emerson v. Thomp-
son ; and though this was in a dissent-
ing opinion, it was upon a point not
controverted by the majority.
And it may still be a question in
those States in which the common-law
doctrine of the bar of entry by descent
cast has not been adopted, whether an
action for mesne profits can be main-
tained against the heir or alienee of a
disseizor; in other words, whether the
fiction of relation by entry should be
extended to such cases. It is difficult
to see how such a party can be regarded
as a trespasser, even by the use of the
fiction. The proper function of the re-
lation is simply to give the plaintiff the
requisite possession at the time of the
trespass, and not to change the charac-
ter of the defendant's act. There must
have been a trespass ; and unless the
acquisition of title from a disseizor can
be regarded as a trespass, the defendant
cannot be liable.
The case is unlike that of personal
property conveyed by one having no
title or authority, for such purchaser
acquires no interest and may well be
held a trespasser for refusing to sur-
render it to the owner ; but a disseizor
has an actual estate, — an estate which
may become indefeasible by the lapse
of time.
But though at common law the
alienee of a disseizor could not, as the
weight of authority inclines, be held
liable in trespass for mesne profits, it
did not follow that the title to the prof-
its, not consumed by him, were in him ;
and the contrary was decided in Liford's
Case. " If the feoffee or lessee,'' said
the court, " or the second disseizor sows
the land, or cuts down trees or grass,
and severs and carries away, or sells
them to another, yet after the regress
of the disseizee, he may take as well
the corn as the trees and grass, to what
place soever they are carried ; for the
regress of the disseizee has relation as
to the property, to continue the freehold
against them all in the disseizee ab initio,
and the carrying them out cannot alter
the property. And if the disseizee takes
them, they shall be recouped in dam-
ages against the disseizor.''
Though the law favors the owner
of lands who has been dispossessed of
them to such an extent as to give him
a S-ight of action for mesne profits by
relation against the party who origi-
nally entered, he must have actually
entered or have become placed in a
situation equivalent to an entry. In
Allen v. Thayer, 17 Mass. 29.9, the
plaintiff sought to recover mesne profits
of the defendant, who had originally
been a tenant of the plaintiff. While
the defendant was in this situation, cer-
tain creditors of the plaintiff levied
upon the land and had it appraised and
set off to them. The defendant was
expelled, but was permitted to re-enter
as tenant of the creditors, and finally
purchased the reversion of them in fee.
Afterwards it was discovered that the
deed to the creditors was defective and
void ; and thereupon other creditors of
the plaintiff levied upon the premises,
and held it against the first creditors
and the defendant. The plaintiff sup-
posed the defendant liable to him for
the mesne profits between the two lev-
ies, either in assumpsit for the use and
occupation or in trespass ; but the court
held the contrary. The ground of
decision was that the defendant was not
liable in assumpsit because after the
first levy he no longer held of the
plain'iff; and the defect in the title did
POSSESSION AND PROPERTY.
367
not restore him to privity with the
plaintiff. And he could not maintain
trespass, because he had been disseized,
and had never reentered, though he
might have done so. The effect of the
decision is, that such a party must enter
himself, and can take no benefit from
the levy and entry of another, who
acts upon the invalidity of the original
dispossession and conveyance. So,
too, a judgment against the tenant in a
writ of entry brought in the name of
several coheirs, at their joint expense,
to try the title, will not enure to the
benefit of another of those coheirs in
an action of trespass for mesne profils.
Allen v. Carter, 8 Pick. 175.
But it is held that a regular and
complete levjr under an execution will
give such a possession as will be suffi-
cient to maintain trespass without an
actual entry by the creditor. Langdon
v. Potter, 3 Mass. 215; Gore v. Brazier,
ib. 523; Muuroe v. Luke, 1 Met. 459,
462.
Langdon v. Potter was an action of
trespass quare claiisitm. It did not
appear that the plaintiff had any other
possession of the close, or right to the
issues and profits, than such as he
derived from a due levy against the
defendant, and a proper return and
register of the execution. The de-
fendant, the execution debtor, had con-
tinued in the actual possession ever
since the levy; and it was accordingly
argued for the defendant, upon the sup-
posed analogy of the extent of an
elegit, that the plaintiff could not main-
tain trespass. But the objection was
overruled.
The opinion of the court in this case
is both interesting and important for
the purposes of this note, and we quote
at lengtb from it. " The objection to
the sufficiency of the plaintiff's evi-
dence," said Parsons, C. J., speaking
for the court, " is founded on the posi-
tion that the levy of the execution and
its return and registry do not amount to
an actual livery of seizin and of posses-
sion, to enable the plaintiff to maintain
trespass against the defendant Potter
for continuing his possession ; but that
the plaintiff, after the levy, ought to
have made an actual entry before he
commenced his suit. And this position
is supposed to be justified by the princi-
ples of the common law which apply to
the extent of an elegit on a moiety of the
debtor's lands. For the sheriff returns
on the elegit that he had delivered a
moiety of the lands to the plaintiff,
which delivery does not give the plain-
tiff the actual possession, but only a
right of entry and of possession. In
the levy of an execution on lands two
things are to be considered, — the au-
thority of the sheriff, and the rights of
the plaintiff resulting from the legal
exercise of that authority. In the case
of an elegit, the plaintiff's right under
the extent is correctly stated in the ob-
jection ; and this right results from the
authority of the sheriff, and from the
manner in which it is exercised. It is
the sheriff's duty to impannel a jury,
who, on oath, inquire what freehold
lands the defendant holds within his
bailiwick, and fix the yearly value of
them. When the jury have ascertained
the lands, and appraised their yearly
value, the sheriff delivers just one
moiety, according to that appraisement,
to the plaintiff, to held until out of the
annual profits, as valued by the jury,
he receive his debt and interest. The
inquisition is then returned and entered
of record in the court whence the elegit
issued. If the sheriff had in fact put the
defendant out of, and the plaintiff in,
possession under the inquisition, which
368
TRESPASSES UPON PROPERTY.
seems anciently to have been the prac-
tice, it was supposed that the defendant
had no remedy, if the sheriff's proceed-
ings were irregular, but by moving to
set aside the inquisition, because the
plaintiff was in possession by a title on
record. The rule was therefore estab-
lished that the delivery by the sheriff of
the lands to the plaintiff was a complete
execution of his authority, without dis-
possessing the defendant; and that the
plaintiff's right was a right of entry
and of possession. The plaintiff, hav-
ing this right, might bring an ejectione
Jirmce, and eject the defendant; or he
might enter peaceably and retain the
possession without being considered
as a wrong-doer. . . . Let us now ad-
vert to our statutes making real estate
liable to pay debts, and providing for
the taking of it in execution [which
statutes are probably the same in sub-
stance as those that prevail in other
States]. The execution may be levied
on all the freehold estate of the defend-
ant, and in one case on the rents and
profits. When the execution is levied
on real estate, all the defendant's title
to and interest in the estate is trans-
ferred to and becomes the property of
the plaintiff, at a reasonable appraise-
ment of the value. In levying the exe-
cution, the sheriff proceeds without the
intervention of a jury. The plaintiff
shows him certain lands as the estate of
the defendant, and directs the sheriff to
satisfy the execution by a levy on those
lands. Three freeholders are then se-
lected, one by the plaintiff and two by
the sheriff, if the defendant neglect to
choose one, which he may do. These
freeholders on oath appraise the land,
or so much thereof as is equal in value
to the execution and the charges of
levying, describing by metes and bounds
the lands thus appraised. The officer
is then expressly directed to deliver
possession and seizin of the appraised
lands to the creditor. It is also pro-
vided that the execution, when returned
and registered, pursuant to the statute,
shall make as good a title to such
creditor, his heirs and assigns, as the
debtor had therein. The creditor,
therefore, is the purchaser of the estate
for the full value, according to the ap-
praisement of it by disinterested free-
holders ; he has the possession and
seizin of it, and his title is as good
as the debtor had. Although there may
be a concurrent possession, there cannot
be a concurrent seizin of lands [except
in cases of disseizin by election. See
Slater v. Rawson, 6 Met. 439, 444] ;
and, as livery of seizin is made to the
plaintiff, the defendant can no longer
continue seized, and he [the plaintiff]
only being seized, the possession must
be adjudged to be in him because he
has the right [see per Maule, J., in
Jones v. Chapman, 2 Ex. 803 ; supra,
p. 362] ; and, having the actual and
rightful possession, he is immediately
entitled to the profits against the
defendant. If the defendant shall,
notwithstanding, continue his former
possession, it will be an injury to the
possession of the plaintiff, who may
maintain trespass for that injury. This
conclusion results from construing the
statute according to the natural import
of the words. But justice to the plain-
tiff requires this construction. "He has
purchased and paid for the land in the
state in which it was in, with all the
crops growing at the time of the ap-
praisement ; and his execution is satis-
fied. To consider him, therefore, as
not actually seized, and entitled to re-
ceive the profits by force of the levy,
but driven to an action if the defendant
choose to resist his entry, will be to
POSSESSION AND PROPERTY.
369
deprive him of the profits for -which he
has paid, and to permit the defendant
to receive them ; and for this injury the
plaintiff must be remediless, or seek a
remedy by a suit at law to recover
damages." That is, if the defendant
should resist the plaintiff's entry, the
plaintiff would be driven to two actions
by the position taken by the defendant's
counsel ; one to obtain possession and
another to recover for the mesne pro-
fits. (But now by statute in Massachu-
setts the demandant in a real action
recovers for the rents and profits in the
same suit ; and a subsequent action for
them cannot be maintained. Raymond
v. Andrews, 6 Cush. 265. See also
Richards v. Randall, 4 Gray, 53; Judd
v. Gibbs, 8 Gray, 435. So it is in New
York. Jackson v. Leonard, 6 Wend.
534 ; Broughton r. Wellington, 10
Wend. 566 ; Leland v. Tousey, 6 Hill,
328. And this, it is believed, is now
generally the ease in this country. If,
however, possession be regained with-
out suit, an action may then be main-
tained for the mesne profits and for the
wrongful entry. Leland v. Tousey,supra.
But possession is still necessary. lb.
In this case, Cowen, J., said that the
statute which took away the right of a
• separate action for mesne profits was to
be understood of mesne profits strictly,
the right to which results from a re-
covery in ejectment. The original
entry is still the subject of an action of
trespass ; and so are mesne profits where
the plaintiff obtains possession without
suit. The statute, moreover, was to
be restricted to cases where the claim
for mesne profits was against the same
person or persons who were made
defendants in the ejectment; such as
would be concluded by the judgment in
that action.)
See also in this connection Poole v.
Mitchell, 1 Hill (S. Car.), 404. There
the plaintiff had purchased property at
sheriff's sale, and, as an act of kindness,
had permitted it to remain in the pos-
session of the debtor. It was after-
wards levied upon in execution against
the debtor by a subsequent creditor who
had notice of the plaintiff's title ; and
for this act the plaintiff brought tres-
pass, and recovered.
Nor is an actual entry necessary by
the grantee of one in possession so as
to enable him to maintain an action for
trespass committed by a person who
had been upon the land by license of
the grantor, and had remained after the
license had expired and the plaintiff had
purchased. Reed v. Merrifield, 10 Met.
155. In this case one Chamberlain con-
veyed to the assignor of the defendant
all the timber on his land, the assignor
" to have five years to get off the tim-
ber, and to have no right to the wood
which might arise from cutting the
timber." Chamberlain afterwards con-
veyed the land to the plaintiff's father,
"excepting a lease of all the timber
thereon given," as above stated. The
grantee conveyed to the plaintiff, who
had not made an entry. It was con-
tended, in trespass for entering and
carrying away timber after the lapse of
the five years, that the (so-called) lease
of Chamberlain conveyed an interest in
the land, and that, after its expiration,
he became tenant at sufferance, and
that the action therefore would not lie ;
but the court ruled otherwise. The in-
strument, it was held, was not a grant
of any interest in the land so as to give
to the defendant any exclusive posses-
sion. The learned judge observed that
a mistake was sometimes made by not
distinguishing between a right to enter
on land for specified purposes, under a
license or contract, and a right of pos-
24
370
TRESPASSES UPON PROPERTY.
session by a lessee, to the exclusion of
the owner in fee. The first is not only
consistent with the possession of the
owner, but does not alter or affect it.
The latter is a grant of the possession,
which cannot be resumed without entry.
The plaintiff was in possession by force
of his deed, and there was no necessity
of an entry by him to terminate any right
on the part of the defendant. And the
defendant was not a tenant at suffer-
ance. (That an entry is necessary be-
fore a tenant at sufferance can be liable
in trespass, see Rising v. Stannard, 17
Mass. 282 ; Mayo v. Fletcher, 14 Pick.
525, 532).
(_/".) Injuries to Personalty. — The
cases and principles discussed in the
foregoing pages are sufficient to illus-
trate the doctrine of possession in ac-
tions for injuries committed upon lands.
For a consideration of questions of
possession in actions concerning per-
sonalty the learned reader is referred
to the note on Conversion, post. The
difference between an action for con-
version and an action merely for tres-
pass concerns mainly the nature of the
act, and not the matter of possession ;
the rule which generally prevails being
that trespass to goods cannot be main-
tained where the taking was lawful, on
the ground that in such an action the
jury might give damages for the mere
taking, aside from the value of the
goods. Baline v. Hutton, 9 Bing. 471;
Smith ». Milles, 1 T. R. 480 ; Wilson
v. Barker, 4 Barn. & Ad. 614 ; Cooper
v. Chitty, 1 Burr. 20 ; Barrett v. War-
ren, 3 Hill, 348. See, however, Stan-
ley v. Gaylord, 1 Cush. 536. But it
is clear that trover may be maintained
though the taking was lawful, if there
was afterwards a conversion. lb.
Where, then, there was a tortious tak-
ing, the possession which will be suffi-
cient for trover will doubtless be suf-
ficient for trespass.
The distinction between real and
personal property in respect of ques-
tions of possession, it may be observed,
is that in the case of personalty the
property draws to it the possession, so
that there can be no adverse posses-
sion of a chattel which shall defeat the
right of action in trespass ; and it is
not necessary, therefore, that the owner
should regain the actual possession be-
fore he can maintain the action. Thus,
if A. in London gives J. S. his goods
at York, and another takes them away
before J. S. obtains actual possession,
J. S. may maintain trespass for them.
Bac. Abr. Trespass, C, 2. But if the
goods be taken from one to whom the
plaintiff had leased them, the principle
does not apply ; for the rule simply
means that the property draws to it the
possession when the owner has the right
to possession. If, then, the property be
taken from one who has merely a gra-
tuitous custody, the owner having still
the right of possession, it is held that
he may maintain trespass against the
taker. Walcot v. Pomeroy, 2 Pick. 121,
where an attaching officer and the cred-
itor were held liable under such circum-
stances.
williams v. esling. 371
Williams v. Esling.
(4 Barr, 486. Supreme Court, Pennsylvania, 1846.)
Entry upon Land. Damage. An action lies for a trespass upon a right of way with-
out proof of actual damage.
Trespass on the case for obstructing a right of way over a
court. The judge charged the jury that the plaintiff must show
some actual hindrance or obstruction to his passage ; and that
a mere deposit of articles in the court, if removed before causing
any obstruction to the plaintiff, would not give a cause of action.
J. W. Biddle, for plaintiff in error. Mcllvaine, contra.
Gibson, C. J. An action was maintained in Kirkham v.
Sharp, 1 Whart. Rep. 333, by the grantee of a private way,
against the owner of the soil, standing in the place of the
grantor ; and avowedly without proof of special damage, or
actual obstruction in any particular instance. The necessity of
such proof was not even alleged. The difference between that
case and this is, that the action here is not, as it was there,
against the owner of the soil, but against an intruder without
any pretence of title whatever, a difference that will scarce be
thought to be unfavorable to the present plaintiff. The English
courts seem to have wavered as to the application of the prin-
ciple to analogous cases ; but the only thing like a conflicting
authority in the case of a way is the dictum in Woolrych on
Ways, p. 283, that it is usual for the plaintiff to prove some dam-
age from an obstruction of a private way, though to the smallest
amount, merely to satisfy the jury that he has been unable, in
consequence of the defendant's conduct, to use his right in so
ample and beneficial a manner as he had been accustomed to do.
But it is not said that proof of special damage is indispensable,
or that it is the basis of the action. The case cited for the dic-
tum is Pindal v. Wadsworth, 2 East, 154, which, however, is the
case of an action, not for obstructing a private way, but for
injuring a common by taking away the manure dropped on it by
the cattle ; and the court certainly did say, that if the commoner
who sued for it was not injured by it, he would not have a right
to reparation ; but it was also said, that the act was a necessary
372 TRESPASSES UPON PROPERTY.
and an immediate damage. In no English case has there been
raised a question about the necessity of special damage in an
action like the present ; but analogies from actions for surcharg-
ing a common bear strongly upon it. Hobson v. Todd, 4 Term
Rep. 71, was such an action ; and Mr. Justice Buller said that
the plaintiff was entitled to recover without proof of specific
damage. That was one ground of his opinion; "but there is
another ground," said he, "on which the action may be sup-
ported, which is, that the right has been injured." The solution
of the difficulty is in that one word. In Pastorius v. Fisher,
1 Rawle, 27, it was said that the law implies damage from the
violation of every right ; but that, without proof of actual detri-
ment, it implies the smallest appreciable quantity. Now, the
grant of a way is exclusive, at least as to strangers ; and that
every intrusion into the enjoyment of an exclusive right subjects
the wrongful participant to an action by the owner of it, was
directly adjudged in the case of the clippers at Tunbridge "Wells
(Weller v. Baker, 2 Wils. Rep. 422), who recovered on an action
against one who had usurped the office of a dipper, not having been
duly chosen at the court baron. The court held that the very act
of intrusion was both an injury and a damage, — an injury, by
disturbing the plaintiffs in the exercise of their right; and a
damage, in depriving them of gratuities which they might have
received ; and it was held that an action on the case lies for
merely a possibility of damage. Yet the dippers were not more
impeded in their functions by the intrusion there, than was the
plaintiff in the actual use of the alley by the intrusion here ; for
they were left to get all they could earn, and it was not certain
they would have earned a farthing of what the intruder got.
But their exclusive right was violated, and a possibility of detri-
ment from it was held to be a subject of compensation. In Hob-
son v. Todd, Mr. Justice Buller applied the same principle to an
action by a commoner, saying that had it not been for the sur-
charge, the plaintiff's cattle might have eaten every blade of
grass that had been eaten by the supernumerary cattle of the
defendant. Such a plaintiff might undoubtedly recover without
proof that the surcharge had occasioned a scarcity ; and why not
the plaintiff before us, without proof that ground enough had
not been left for the convenient enjoyment of his right ? There
is an error in forgetting that he is entitled to the exclusive use
WILLIAMS V. ESLING. 373
of the whole of it, which would equally justify any usurpation of
a man's right of property that left him enough for a comfortable
subsistence. The very breaking in upon the defendant's privacy
was a damage ; and if the plaintiff could not sue for it because
the extent of it was inappreciable, the defendants might estab-
lish a right of participation in the use, by acts of intrusion
repeated for twenty years, just as a wrong-doer, it was said by
Mr. Justice Buller, in Hobson v. Todd, and by Mr. Justice
Grose, in Pindar v. "Wadsworth, might establish a right of com-
mon, because the cattle of the commoners had been left enough
of grass to keep them from starving. With much more force is
that principle applicable to the case before us. The legal title
to the soil is in the common-law heir of the purchaser of it, who
annexed the use of it to the Chestnut Street lots, with which
he subsequently parted ; and as he has no beneficial interest
involved in it, or motive to burden himself with a lawsuit, for a
trespass on it, the defendants would certainly gain a concurrent
right to the easement by adverse user of it, if no one else could
sue for any thing short of an actual hindrance in the enjoyment
of it. AVho would contest the matter with them? The plaintiff
would scarce bring a separate action for each obstruction, or sue
for damage to the amount of a few cents, for the detention of his
carriage or his cart for a few minutes ; for though these petty
annoyances are exceedingly irksome in the aggregate, not one of
them, singly, would be worth the trouble of a lawsuit. He
mio-ht as well give up his right at once, as attempt to maintain it
by repeated actions for repeated hindrances. But the measure
of damages is not the extent of each particular loss. The right
being established, a jury is at liberty to enforce it, by making
the offender smart for any further violation of it. When the
plaintiff showed that impediments were placed in the alley which
might have prevented him from attempting to use it, he showed
enough to entitle him to a remedy without proof of an attempt
actually frustrated ; and an intruder can ask no more.
Judgment reversed, and venire de novo awarded.
371 TRESPASSES UPON PROPERTY.
Anthony v. Haney and Harding.
(8 Bing. 187. Common Pleas, England, Hilary Term, 1832.)
Trespass quare clausum fiegit. Trespass for entering plaintiff's close. Plea, that cer-
tain goods of defendants' were there, and that they entered to take them, doing no
unnecessary damage. Held, ill.
Trespass. The declaration stated that defendants, on the
8th of November, 1830, and on divers other days, &c., between
that day and the commencement of the suit, broke and entered
plaintiff's close at Much Haddon, in the county of Hertford ; and
with feet in walking trod down, trampled upon, and consumed
and spoiled plaintiff's grass, and with cattle and wheels of divers
carts, &c, crushed, damaged, and spoiled other grass ; and with
the feet of the cattle and the wheels of the carts subverted, &c,
the earth and soil of the close, and then and there put, placed,
and laid down divers quantities, to wit, 5,000 bricks, &c, in and
upon the said close, and kept and continued the same without
leave or license and against the will of the plaintiff, and thereby
greatly encumbered tbe close, and pulled down, prostrated, and
destroyed one barn, three out-houses, and three leantos of plain-
tiff, and in so doing dug up and subverted the earth, and made
divers holes therein, and seized, took, and carried away the
materials of the said barn, out-houses, and leantos.
There was a second count, for seizing, taking, and carrying
away a cart and divers goods and chattels of plaintiff; and a
third count, for breaking and entering a certain other barn, out-
houses, and leantos of plaintiff, &c.
Plea, first, the general issue, on which issue was joined ; sec-
ond, that before and at the said time when, &c., in the said first
count mentioned, the defendant, John Haney, was the owner of
and entitled unto a certain barn, three out-houses, and three
leantos, and divers goods and chattels, to wit, 10,000 bricks,
10,000 tiles, 5,000 planks of wood, 5,000 joists, 5,000 ties, 5,000
girders, 5,000 pieces of wood, 5,000 loads of timber, and 1,000
weight of iron, of great value, to wit, of the value of 200Z., then
respectively standing and being in and upon the said close of the
said plaintiff, in which, &c. ; wherefore the said defendant, John
Haney, in his own right, and James Haney and Joseph Harding,
ANTHONY V. HANEY. 375
as the servants of the said John Haney, by his command, at the
said several times when, &c, in the said first count mentioned,
entered into and upon the said close in which, &c, in order to
pull down, remove, take, and carry away the said barn, out-
houses, and leantos, and to take and carry away the said goods
and chattels, and did then and there pull down the said barn,
out-houses, and leantos, and did take and carry away the mate-
rials thereof, and the said goods and chattels, in the said carts,
wagons, and other carriages drawn by the said cattle, from and
out of the said close in which, &c, and in so doing, they, the
said defendants, at the said several times when, &c, in the said
first count mentioned, did necessarily and unavoidably, with their
feet in walking, a little tread down, trample upon, consume, and
spoil a little of the grass there then growing and being, and did,
with the wheels of the said carts, wagons, and other carriages, a
bttle crush, damage, and spoil the said grass there also growing,
and with the feet of the said cattle, and with the wheels of the
said carts, wagons, and other carriages, did a little subvert, dam-
age, and spoil the earth and soil of the said close, and did neces-
sarily and unavoidably put, place, and lay in and upon the said
close in which, &c, the said bricks, tiles, wood, and rubbish in
the said first count mentioned, being part of the materials of the
said barn, out-houses, and leantos, and there keep and continue
the same for a short time, to wit, until the same could be put
in the said carts, wagons, and other carriages to be removed from
the said close, doing no unnecessary damage to the said plaintiff
on the occasions aforesaid, as they lawfully might for the cause
aforesaid, which are the said several supposed trespasses in the
introductory part of this plea mentioned. Demurrer and joinder.
Stephen, Serjt., for the demurrer, was not called. Bompas,
Serjt., supported the plea.
Tindal, C. J. The second plea in this case cannot be sup-
ported in law ; and it is bad on a ground much short of that
which has been argued to-day. The defendant Haney states, as
the ground of his right for entering the plaintiff's close, that he
was the owner of a certain barn, three out-houses, three leantos,
and certain chattels standing and being on the plaintiff's close,
and then goes on to justify the trespass in question. I cannot
collect from this statement but that the barn, leantos, &c, were
standing on the close in the ordinary acceptation of the term,
that is, were affixed to the freehold; and the rather, because the
376 TRESPASSES UPON PROPERTY.
defendant admits that he dug up the soil of the plaintiff in order
to remove the barn ; in other words, that he entered the soil of
another and broke it up to get what he claimed as his own.
That would be to take the law into his own hands, and to ren-
der an action of ejectment unnecessary. If so, the plea, which is
bad in part, is, under the common rule, bad for the whole, and
judgment must be given for the plaintiff. But we are unwilling
to decide the case on so narrow a ground ; for even if the barn
had not been affixed to the freehold, the defendant has shown on
this plea no justification of his entering to take it away. In
none of the cases referred to has the plea been allowed, except
where the defendant has shown the circumstances under which
his property was placed on the soil of another. Here the defend-
ant has confined himself to the statement that they were there,
without attempting to show how. To allow such a statement to
be a justification for entering the soil of another would be open-
ing too wide a door to parties to attempt righting themselves
without resorting to law, and would necessarily tend to breach
of the peace. Let us examine two or three of the cases which
have been cited on the part of the defendant. And first, that of
fruit falling into the ground of another ; that falls under the
head of an accident, for which the defendant is not responsible,
and which he shows by his plea before he can make out a right
to enter. So in the case of a tree which is blown down, or
through decay falls into the ground of a neighbor, the owner
may enter and take it. But the distinction is taken by Latch,
who says that if it had fallen in that direction from the owner's
cutting it, he could not justify the entry. As to the cases where
goods have been feloniously taken, and the owner pursues to
obtain possession, the principle is laid down by Blackstone, 3
Comm. 4, who says: " As the public peace is a superior consider-
ation to any one man's private property, and as, if individuals
were once allowed to use private force as a remedy for private
injuries, all social justice must cease, the strong would give law
to the weak, and every man would revert to a state of nature ;
for these reasons it is provided that this natural right of recap-
tion shall never be exerted where such exertion must occasion
strife and bodily contention, or endanger the peace of society.
If, for instance, my horse is taken away, and I find him in a
common, a fair, or a public inn, I may lawfully seize him to my
own use ; but I cannot justify breaking open a private stable, or
ANTHONY V. HANEY. 377
entering on the grounds of a third person, to take him, except he
be feloniously stolen, but must have recourse to an action at
law." A case has been suggested in which the owner might
have no remedy, where the occupier of the soil might refuse to
deliver up the property, or to make any answer to the owners'
demand ; but a jury might be induced to presume a conversion
from such silence, or, at any rate, the owner might in such a case
enter and take his pr6perty, subject to the payment of any dam-
age he might commit.
Parke, J. I am of the same opinion. The distinction is
clearly laid down by Blackstone in the case of goods feloniously
taken, who says, " If my horse is taken away, and I find him in
a common, a fair, or a public inn, I may lawfully seize him to
my own use; but I cannot justify breaking open a private stable,
or entering on the grounds of a third person, to take him, except
he be feloniously stolen, but must have recourse to an action at
law." Upon these pleas it rather appears that the property
claimed by the defendant was attached to the freehold, than that
it was a chattel in the nature of a Dutch barn ; for it is admitted
that he dug holes in order to remove it. The defendant is not,
as it has been contended, without remedy ; for he might sue in
trover after a proper demand, and if his application were met
with continued silence, the jury might from that presume a con-
version.
Bosanquet, J. I am of opinion that this plea is no answer to
the trespass with which the defendant is charged. It is put
broadly and nakedly that the defendant has a right to enter the
soil of another to take his own property, without showing the
circumstances under which it came there. The case has been
argued on the ground of necessity ; but on that ground, at least,
the necessity should be shown. There are, no doubt, various
cases in which it has been held that the party is entitled to enter ;
but in all of them the peculiar circumstances have been stated
on which the party has rested his claim to enter. It would be
too much to infer that the party may enter in all cases where his
goods are on the soil of another, because he may enter in some
where he shows sufficient grounds for so doing.
Alderson, J. I am of the same opinion. The difficulty sug-
gested as to an action of trover would apply to all cases of trover
where a demand is necessary. Judgment for plaintiff .
378 TRESPASSES UPON PROPERTY.
Nancy Malcolm v. Elijah K. Spoor.
(12 Met. 279. Supreme Court, Massachusetts, March Term, 1847.)
Trespass ab initio. An officer who enters a house by authority of law, and attaches
goods therein, becomes a trespasser ab initio by placing there an unfit person, as
keeper of the goods, against the remonstrance of the owner of the house.
Shaw, C. J. This was an action of trespass, in which the
plaintiff declared against the defendant for breaking and entering
her house, &c. The defendant justified under a writ directed to
him, as constable, and commanding him to attach the plaintiff's
household furniture.
The case comes before us on exceptions, from which it appears
that the defendant was a constable, and that he entered the
plaintiff's house, having a writ against her, and attached her fur-
niture ; that he took with him into the house a man who was
intoxicated, whom he made keeper of the attached furniture,
and left in the house in charge of the furniture, although the
plaintiff objected to his remaining there as keeper, on account of
his intoxication.
The exceptions also set forth the violent conduct of the keeper,
and other matters, which are not material to the decisions of the
question that is brought before us.
The Court of Common Pleas, in which the trial was had, in-
structed the jury that if the defendant, under color of his
process, took with him a grossly intoxicated and clearly unfit
person into the plaintiff's house, and left him therein as keeper,
this was such an abuse of his authority as made him a trespasser
ab initio ; and that the defendant was answerable for all the acts
of such keeper, done in pursuance of previous concert between
them, or by direction of the defendant. A verdict was returned
for the plaintiff; and the question whether these instructions were
right has been submitted to us without argument.
It has been held as a rule of the common law, ever since the
Six Carpenters' Case, 8 Co. 146, that where one is acting under
an authority conferred by law, an abuse of his authority renders
him a trespasser ab initio. Melville v. Brown, 15 Mass. 82. In
the case before us, the defendant had authority by law to enter
WHAT CONSTITUTES A TRESPASS.
379
the plaintiff's house, to serve legal process ; but placing there
an unfit and unsuitable person, to keep possession of the attached
goods in his behalf, until he could remove them, against the
remonstrance of the plaintiff, was an abuse of his authority, which
rendered him liable as a trespasser ab initio.
An officer cannot legally stay in another's building, to keep
attached goods therein, nor authorize any other person to remain
therein, as keeper, for a longer time than is reasonably necessary
to enable him to remove the goods, unless he has the consent,
express or implied, of the owner of the building, without ren-
dering himself liable as a trespasser. See Rowley v. Rice, 11
Met. 331
Exceptions overruled.
What constitutes a trespass (aside
from the question of possession) will
now be considered. The principal case,
Williams v. Esling, finds frequent sup-
port among tjie authorities. In Dough-
erty v. Stepp, 1 Dev. & B. 871, which
was trespass quare clausum, the only-
proof introduced by the plaintiff to es-
tablish an act of trespass was, that the
defendant had entered on the uninclosed
land of the plaintiff, with a surveyor and
chain carriers, and actually surveyed a
part of it, claiming it as his own, but
without marking trees or cutting bushes.
The judge at nisi prius held that this
was not a trespass ; but on appeal his
decision was reversed. The amount of
damages, said the Chief Justice, may
depend upon the acts done on the land,
and the extent of injury to it therefrom.
But it was an elementary principle that
everyjinauthorized entry into the close
of another was a trespass ; and from
every such entry the law inferred some
damage. And it was not material that
the land was not inclosed ; for so long as
there was no adverse possession, the title
made the land the plaintiff's close. Nor
was the defence better in that the de-
fendant entered claiming title. See upon
this point Baxter v. Taylor, ante, p. 355.
In Brown v. Manter, 22 N. H. 468,
an action for breaking and entering the
plaintiff's close and cutting and carry-
ing away timber, the evidence tended
to show that the timber was not cut
upon the plaintiff's land, but was merely
drawn across ; and it was held that even
in such case the plaintiff could recover.
The gist of the action of trespass, it
was said, was the disturbance of pos-
session. If the close was illegally en-
tered, a cause of action at once arose ;
and whatever was done after entering
was but aggravation of damages. See
also Mundell v. Hugh, 2 Gill & J. 193 ;
Curtis v. Groat, 6 Johns. 168; Van Leu-
ven v. Lyke, 1 Comst. 515 ; Smith v.
Ingram, 7 Ired. 175 ; Dobbs v. Gal-
lidge, 4 Dev. & B. 68 ; Wendell v.
Johnson, 8 N. H. 222 ; Ferrin v. Si-
monds. 11 N. H. 263; Brown v. Man-
ter, 22 N. H. 468 ; Taylor v. Cole, 3
T. R. 292.
The doctrine of the principal ease,
Anthony v. Haney, that a person has no
absolute right to enter upon the land
of another to take away his own goods,
is supported by the American cases.
Thus, in Heermance v. Vernoy, 6 Johns.
5, a third person had sold a bark-mill
to the defendant, and the land whereon
380
TRESPASSES UPON PROPERTY.
it stood to the plaintiff, and the defend-
ant was held liable for entering and
taking away one of the mill-stones. In
Blake v. Jerome, 14 Johns. 406, the de-
fendant was held liable for sending a
third person upon the plaintiff's close
to take away the defendant's mare and
colt.
To the like effect is Newkirk v. Sab-
ler, 9 Barb. 652. It is there repeated
that the right to land is exclusive, and
every entry thereon, without the own-
er's leave, or the license or authority of
law, is a trespass. 3 Black. Com. 209.
There was a variety of cases, it was ob-
served, where an authority to enter is
given by law ; as to execute legal pro-
cess, to distrain for rent, for a landlord
or reversioner to see that his tenant
does no waste and keeps the premises
in repair, for a creditor to demand pay-
ment of money payable there, or for a
person entering an inn for the sake of
obtaining refreshment. 3 Black. Com.
212 ; 1 Cowen's Treat} 411. In some
cases, the court proceeded to say, a
license would be implied; as if a man
make a lease reserving the trees, he has
the right to enter and show them to the
purchaser. 10 Coke, 46. The court
also mentioned the following cases, in
which an entry is justifiable : Where a
man in virtue of license erects a build-
ing upon another's premises, the license
cannot be revoked so completely as to
make the person who erected it a tres-
passer for entering and removing it
after the revocation. If J. S. go into
the close of J. N., to succor the beast
of J. N., the life of which is in danger,
an action will not lie ; because, as the
loss of J. N., if the beast died, would
have been irremediable, the doing of
this is lawful. But if J. S. go into the
close of J. N. to prevent the beast of
J. N. from being stolen, or to prevent
his corn from being consumed by hogs,
or from being spoiled, trespass lies; for
the loss, if either of those things had
happened, would not have been irre-
mediable. Bacon's Abr. Trespass, F.
And if a stranger chase the beast of
A., which is damage feasant, out of the
close of B., trespass will lie; for by do-
ing this, although it seem to be for his
benefit, B. is deprived of his right to
distrain the beast. Brown, Trespass,
pi. 421 ; Keilw. 13, 46.
In some cases (it was further said
in Newkirk v. Sabler) the entry will be
excused by necessity; as, if a public
highway is impassable, a traveller may
go over the adjoining land. Absor v.
French, 2 Show. 28 ; s. C. 2 Lev. 234.
But this would not extend to a private
way ; for it is the owner's fault if he do
not keep it in repair. Taylor v. White-
head, 2 Doug. 745 ; 1 Saund. 321. So if
a man who is assaulted, and in danger
of his life, run through the close of an-
other, trespass will not lie, because it
is necessary for the preservation of his
life. Year-Book, 37 H. 6, p. 37, pi. 26.
If my tree be blown down, and fall on
the land of my neighbor, I may go and
take it away. Brown, Trespass, pi. 213.
And the same rule prevails where fruit
falls upon the land of another. Mil-
ljen v. Fawdry, Latch, 120. But if the
owner of a tree cut the loppings so that
they fall on another's land, he cannot
be excused for entering to take them
away on the ground of necessity, be-
cause he might have prevented it. Ba-
con's Abr. Trespass, F.
A sale of chattels which are at the
time upon the land of the seller will
authorize an entry upon the land to re-
move them, if by the express or implied
terms of the sale that is the place where
the purchaser is to take them. McLeod
v. Jones, 105 Mass. 403 ; Wood v. Man-
WHAT CONSTITUTES A TRESPASS.
381
ley, 11 Ad. &E. 34; Nettleton c. Sikes,
8 Met. 84; Giles v. Simonds, 15 Gray,
441; Drake v. Wells, 11 Allen, 141;
McNeal v. Emerson, 15 Gray, 384. A
license is implied in this case because
it is necessary to carry the sale into
effect. It is therefore presumed to have
been in the contemplation of the par-
ties. The seller cannot deprive the
purchaser of his property, or*drive him
to an action for its recovery by with-
drawing his implied permission to come
and take it. McLeod v. Jones, supra.
Wells, J. But this does not applv to a
case where a severance from the realty
is necessary to convert the subject of
the sale into personalty, and the revo-
cation is made before such severance,
lb.
No such inference can be drawn
when, by the terms of the contract, the
property is not upon the seller's prem-
ises, or is to be delivered elsewhere.
Where there is nothing executory or
incomplete between the parties in respect
to the property, and there is no relation
of contract between them affecting it,
except that which results from the fact
of ownership or legal title in one, and
possession in the other, no inference of
a license to enter upon lands for the
recovery of the property can be drawn
from that relation alone. lb. ; citing
20 Viner's Abr. 508, Trespass, H, a, 2,
pi. 18; Williams v. Morris, 8 Mees. &
W. 488, and the principal case, Anthony
v. Haney.
It follows, a fortiori, that one of
several cotenants cannot enter upon the
land of another of them to get posses-
sion of the common property, though
he is, of course, entitled to such posses-
sion equally with his companions. Com.
Dig. Trespass, D ; 2 Rolle's Abr. 566,
1. 30; Herndon v. Bartlett, 4 Porter
(Ala.), 481; Crocker v. Carson, 33
Maine, 436. Nor can the bailor of
goods enter the premises of the bailee,
without permission, to take the goods.
Webb v. Beavan, 6 Man. & G. 1055,
note, citing Year-Book, 9 Edw. 4, p. 35 ;
20 Viner's Abr. 507, Trespass, H, a, 2,
pi. 12, citing Brown, Trespass, pi. 208,
and 21 Hen. 7, p. 13. And in a note to
Viner it is said, "When a man bails
goods to another to keep, it is not law-
ful for him, though the doors are open,
to enter into the house of the bailee
and to take the goods, but ought to de-
mand them ; and if they are denied, to
bring detinue, and to obtain them by
law."
Upon most of the above authorities
it was held in McLeod v. Jones that a
mortgagee of personal property has no
right, by virtue of that relation merely,
to enter upon the premises of the mort-
gagor, without legal process, to obtain
the goods mortgaged. The plaintiff in
that case had given a bill of sale and a
mortgage to the defendant of furniture
lying in his (the plaintiff's) dwelling-
house. The plaintiff retained possession
of the furniture, and, having removed
it into another house, afterwards went
away, leaving the furniture locked up
in the house. The defendant had en-
tered and carried away the furniture ;
and for this he was held liable to the
plaintiff, having proved no license, ex-
press or implied.
Nor can there be any inference of a
right to enter and remove a house be-
longing to the defendant, which is found,
upon a survey of the premises, to have
been built partly upon the plaintiff's
land. Boiling v. Whittle, 37 Ala. 35.
The passage from Blackstone as to
recaption, quoted by Tindal, C. J., in
the principal case, Anthony r, Haney,
was somewhat limited in Patrick v. Col-
erick, 3 Mees. & W. 483. In that case
382
TRESPASSES UPON PROPERTY.
a plea was snstained to a declaration
for breaking and entering the plaintiff's
close, that the defendant being pos-
sessed of certain goods, the plaintiff
without his license took the goods and
placed them upon the close in the dec-
laration mentioned, wherefore the de-
fendant made pursuit and entered and
retook the goods. Mr. Baron Parke
said that the passage in Blackstone, as
to the right of recaption, applied to the
case where the goods were placed on
the ground of a third party. All the
old authorities, he observed, said that
where a party places the goods upon
his own close, he gave to the owner of
them an implied license to enter for the
purpose of recaption. And the follow-
ing was quoted from Viner's Abr. Tres-
pass, 1, a : " If a man takes my goods
and carries them into his own land, I
may justify my entry into the said land
to take my goods again ; for they came
there by his own act." And the learned
Baron added of Anthony v. Haney that
it was not shown who placed the goods
there; and that the mere fact of the de-
fendant's goods being upon the plain-
tiff's land was no justification of the
entry, unless it was shown that they
came there by the plaintiff's act.
In Chambers v. Bedell, 2 Watts &
S. 225, it was said to be certain that if
the chattel of one man be put upon the
land of another by the fault of the owner
of the chattel, and not by the fault or
with the connivance of the owner of the
land, the owner of the chattel cannot
enter to retake it ; but that, if it be put
there without the fault or consent of
either party, the owner of the chattel
might enter and take it peaceably, after
demand and refusal of permission, if he
repair any injury caused in taking it
away. So, it was further said, where
the parties are in equal default, as by
omitting to repair a partition fence, by
reason of which the cattle of the one
happens to stray into the close of the
other. So, too, a person might law-
fully enter and retake his property
where it had been wrongfully taken or
received by the owner of the land. See
also Newkirk v. Sabler, supra, 380,
where the plaintiff bad sent his horses
upon the land of the defendant, after
being forbidden ; and it was held that
he could not enter upon the land and
take them away.
A person may enter upon the close
of another in certain cases to put there
goods belonging to the owner of the
land. In Rea v. Sheward, 2 Mees. & W.
424, the plaintiff declared in trespass
for breaking and entering a building
and close of the plaintiff, and removing
certain goods from the building and de-
positing them upon the close. One of
the pleas was that R. C, being seized
in fee of the building, demised it to
the defendants, who thereupon entered;
and because the said goods were en-
cumbering the building, the defendants
removed them a small and convenient
distance into the close of the plaintiff
adjoining thereto, and there left them
for the use of the plaintiff. The jury
having found the fact that R. C. was
seized in fee of the building, it was
moved that judgment be entered for the
plaintiff, non obs. vered. But the motion
was overruled.
The decision was upon the authority
of Cole v. Maundy, Viner's Abr. Tres-
pass, 516, pi. 17 (1, a) ; s. c. Rolle's
Abr. Trespass, 1, pi. 17, where it is said,
" If a man comes into my close with an
iron bar and sledge, and there breaks
up my stones, and after departs and
leaves the sledge and bar in my close,
in an action of trespass for taking and
carrying of them away, I may justify
WHAT CONSTITUTES A TRESPASS.
383
the taking of them and putting them
into the close of the plaintiff himself
next adjoining, especially giving notice
of it to the plaintiff (as it was pleaded),
inasmuch as they were brought into my
close of his own tort ; and in such case
I am not bound to carry them to the
pound, but may well remove the wrong
done to myself by them by tort of the
plaintiff."
And if there be a plea of leave and
license the defendant must show that
permission to enter was given by the
plaintiff or by some one having due au-
thority from him. It was accordingly
held erroneous in Cutler u. Smith, 57
111. 252, to instruct the jury that there
was no trespass if they found that the
defendant had entered the plaintiff's
house by her leave and license, or by
the leave and license of any inmate
thereof; since a mere stranger or tres-
passer might have been an inmate of
the house.
There has been a line of cases in
England concerning the right of a man
to pull down a building, occupied or
owned by another, the erection or con-
dition of which is a nuisance. Penrud-
dock's Case, 5 Coke, 100 6, Jenkins's
Centuries, 260, was the first of these.
There it was held by all the judges of
England that if A. build a house so that
it hangs over the house of B. and is a
nuisance to him, B. may abate it, with-
out first making request to A. to re-
move it ; but if A. make a feoffment of
his house to C, and B. a feoffment
of his house to D., and the nuisance
continue, D. cannot abate it before re-
quest to C, for C. is a stranger to the
wrong. But after request, and before
prejudice sustained, D. may abate the
nuisance. If, however, both houses be
purchased by one man, and he make
several feoffments of them to several
persons, the nuisance would be without
remedy ; for it was extinguished by the
unity of estate in the purchaser, and
the feoffee could not be in a better
situation than his feoffor. But if the
nuisances were increased after the feoff-
ments, these would be new ones, and
might be abated by the respective feof-
fees, without request.
This case has been somewhat modi-
fied by the later decisions. Thus, in
Perry v. Fitzhowe, 8 Q. B. 757, it was
held that there is no right to pull down
the building while it is occupied. In
that case the plaintiff brought trespass
against the defendant for pulling down
the former's house while actually oc-
cupied by his family. The defendant
pleaded that he was entitled to common
of pasture on a close appurtenant to the
land upon which the house was erected ;
and that the house had been wrongfully
erected on the close, so that he could
not enjoy the common without pulling
down the dwelling. Lord Denman, in
delivering the judgment, said that no
express authority on the point raised
was to be found; but the case was com-
pared to the law respecting distresses,
in which, as in the abatement of a
nuisance, the party injured takes the
remedy into his own hands.1 And he
observed that the law certainly forbids
the distraining a horse upon which a
man is riding, or tools which he is using,
on account of the imminent risk of a
breach of the peace taking place if such
a distress be made. The risk of a breach
of the peace was much more imminent
in the case of pulling down a house in
which persons are actually living at the
time. " The law," said he, " will not
1 The right to enter and abate a nuisance is probably an archaic principle of the law.
See note on Nuisance, post. And the same may be said of distress.
384
TRESPASSES UPON PROPERTY.
permit any man to pursue his remedy
at such risks ; and therefore we think
it unnecessary for the plaintiff to show
that there was an actual breach of the
peace ; and the imminent risk of it is
sufficiently shown by the averment in
the declaration that the plaintiff was
in his own house at the time when
the defendant committed the act com-
plained of."
But this case does not appear to have
given satisfaction except when confined
to its facts. In Burling v. Bead, 11
Q. B. 904, the plaintiff declared in a
similar manner for pulling down his
workshop while he was inhabiting and
present in it, to which the defendant
simply pleaded that the workshop was
his, and not the plaintiff's; and the fact
was found to be so. The allegation
that the plaintiff was present in the
workshop when it was being pulled
down was held immaterial. " The
plaintiff," said Lord Campbell, "is a
trespasser. What right can he have to
prevent the owner of the soil from pull-
ing down the house ? I pronounce no
opinion against Perry v. Fitzhowe. I
assume it to be right. But that ease is
clearly distinguishable from this, where
the house is not the dwelling-house of
the plaintiff, and where the act com-
plained of is the act, not of a commoner
who seeks to abate a nuisance, but of
the owner of the house." Erie, J., said
it was important to observe this distinc-
tion, otherwise parties might imagine
that they acquired some right by merely
intruding upon land in the night, run-
Ding up a hut, and occupying it before
morning. " It should be made known,"
said he, "that that is a misapprehen-
sion of Perry v. Fitzhowe."
In Jones v. Jones, 1 Hurl. & C. 1,
Pollock, C. B., in the course of the
argument,, said : "The argument that
an act is unlawful because it may lead
to a breach of the peace is very vague.
What has a stronger tendency to a
breach of the peace than the common
molliter manus imposuit, where one
man comes into actual collision with
another ? " The case was very like
Perry v. Fitzhugh ; and the court said,
" We decline to express any opinion
as to whether, if this question had come
before us for the first time, we should
have concurred in the judgment pro-
nounced by the Court of Queen's
Bench in Perry v. Fitzhowe ; but see-
ing that the question is of no impor-
tance, except as regards costs, we think
it better, as the court is not unanimous,
to abide by that decision, and leave the
defendant, if dissatisfied with it, to
take the case to a court of error."
Perry v. Fitzhowe, has also been
departed from on the point of notice.
In Davies v. Williams, 16 Q. B. 546,
555, VVightman, J., in delivering the
judgment, said: "There is obviously
a wide distinction between the case of
parties suddenly coming to the dwel-
ling-house alleged to be a nuisance,
and in which the occupier and his fam-
ily are actually dwelling, and in the
house, and without notice or demand
forcibly pulling it down, and a case in
which the occupier of the house has
had previous notice and been requested
to remove the building, but has per-
sisted in remaining in the house with
his family in defiance of the notice and
request." And the pleading in Perry
v. Fitzhowe was criticised in that " those
most important allegations " of notice
and request were omitted.
Whether the mere taking possession
of a chattel by virtue of a sale from
one who had no authority to sell is a
trespass without a demand by the
owner is a point as to which the old
WHAT CONSTITUTES A TRESPASS.
385
authorities are not clear, and the mod-
ern authorities are in conflict. In Mas-
sachusetts it has been decided that the
defendant is liable, Mr. Justice Wilde
dissenting. Stanley P. Gaylord, 1 Cush.
536, in which the early cases are re-
viewed. The majority of the court
thought that trover would lie in such
case, and held that, as a consequence,
trespass could he maintained. Wilde,
J., denied that trover could be brought
in such a case, and thought that the
defendant should have had an oppor-
tunity, by a demand made, to sur-
render the property before his posses-
sion could be regarded as tortious.
In Maine and New Hampshire the
rule in Stanley v. Gaylord prevails.
Galvin v. Bacon, 2 Fairf. 28 ; Hyde v.
Noble, 13 X. H. 494.
In New York the contrary is held.
Marshall v. Davis, 1 Wend. 109 ; Xash
v. Mosher, 19 Wend. 431; Barrett v.
Warren, 3 Hill, 348; Pierce v. Van
Dyke, 6 Hill, 613. But in this State
a distinction is made between the case
of a deliverv by the seller and a taking
by the purchaser without delivery.
"Marshall v. Davis,'' said the court in
Nash v. Mosher, " seems to put the
right to the action on the non-consent
of the bailee. If it be delivered by
the bailee, trespass lies not against the
goods by an infant ; if he deliver them,
trespass lies not, but if taken without
delivery, it lies. See Vin. Tresp. M,
12." See further, note on Conversion,
post. It may be worthy of notice that
in Stanley v. Gaylord, supra, the
property was taken by the defendant
without delivery ; but the case was not
decided upon this ground.
The foregoing principles result from
the very definition of a trespass which,
when applied to property, means a
wrongful entry upon, or taking, or in-
jury of real or personal property of a
corporeal and tangible nature. 2 Hil-
liard, Torts, 71 (3d ed.). And this shows
one of the distinctions between trespass
and trover.1 The latter action is a
remedy only for the conversion of per-
sonal property. It results that a judg-
ment in trespass is not necessarily a bar
to an action of trover in respect of the
same goods. lb. p. 73. And the author
just cited refers to the following case :
" Thus, if, in trespass for taking cattle,
the defendant justifies for a heriot, and
obtains a verdict, yet, if it appear that
the plaintiff mistook the nature of his
action, and that he ought to have
brought trover instead of trespass, this
recovery cannot be pleaded in bar to
trover for the cattle." Putt v. Raw-
stern, 3 Mod. 1. This case appears to
person to whom it is delivered. If be erroneously reported in 2 Mod. 318.
sold or taken without delivery, tres-
pass would lie for the taking ; and such
is the distinction which seems plainly to
follow from the authorities cited by the
Chief Justice, and the original dicta on
which thev rest." " A like distinction
See 2 W. Black. 779 ; 3 Mod. 2, note.
The principal case, Malcom v. Spoor,
illustrates the principle that though a
person's original act or conduct may
have been lawful, there may afterwards
be such an abuse of the powers or
is made in respect to a gift or sale of privileges which the law confers upon
0
i The distinction commonly made, that trespass is founded on possession and trover on
property (1 Spence, Eq. 244), is in part unreal ; for trover as well as trespass lies where there
is but a bare possession, without property. See Armory v. Delamirie, post, 3S8. But trover,
unlike trespass, may be maintained for property of which the owner (plaintiff) never had even
a constructive possession. See note on Conversion, post.
25
386
TRESPASSES UPON PROPERTY.
him as will render him liable to an
action as for a trespass in the first
instance. 1 Hilliard, Torts, 113 (4th
ed.).
Upon this principle rests the old
doctrine of trespass ab initio, a doc-
trine which, by the quite general aboli-
tion of the distinction between trespass
and case, has become of less importance
than it formerly possessed.
It is worthy of notice that in those
cases where the original entry or act
was lawful (being justified by the li-
cense of the plaintiff or of the law),
the subsequent abuse must be of such a
character as to be in itself actionable.
Adams v. Rivers, 11 Barb. 390. In
this case Mr. Justice Willard, referring
to the Six Carpenters' Case, said : "In
all the cases put by Coke, the acts com-
plained of as abuses of the power were
distinct acts of trespass. And it seems
to be the better opinion that a man
cannot become a trespasser ab initio by
any act or omission which would not
itself, if not protected by a license, be
the subject of trespass. Thus, in Shor-
land v. Govett, 5 Barn. & C. 485, the
sheriff's officer justified a trespass
under a fi. fa., and it was held that a
demand by the officer of more than was
due by the warrant did not make him
a trespasser from the beginning. The
reason is, that the original levy was
lawful, and extortion is not an act for
which trespass will lie." And the
learned judge proceeds to refer to cases
in which it is held that the subject of
the action must be a positive act, and
not a mere nonfeasance. Gates v.
Lounsbury, 20 Johns. 429 ; Gardner
v. Campbell, 15 Johns. 402 ; Hale v.
Clark, 19 Wend. 498. But seeAdams
v. Adams, 13 Pick. 384; Bond v. Wilder,
16 Vt. 393.
In the Six Carpenters' Case, the
court took a distinction between a li-
cense by law and a license by the party.
" It was resolved," says the report (8
Coke, 146), " when entry, authority, or
license is given to any one by the law,
and he doth abuse it, he shall be a tres-
passer ab initio/ but where an entry,
authority, or license is given by the
party, and he [to whom it is given]
abuses it, there he must be punished
for his abuse, but shall not be a tres-
passer ab initio. Another reason of
this difference is, that in the case of a
general authority or license of law, the
law adjudges by the subsequent act quo
animo, or to what intent, he entered,
for acta exteriora indicant interiora se-
creta. Vide 11 Hen. 4, 75 6.. But when
the party gives an authority, or license
himself to do any thing, he cannot for
any subsequent cause punish that which
is done by his own authority or license."
That is, the entry cannot be made
unlawful in this case by any subsequent
abuse ; while it is otherwise where the
license was given by law. In the
former case the subsequent abuse is
the gist of the action ; in the latter the
entry becomes the gist, and the abuse
is only aggravation.
In Allen v. Crofoot, 5 Wend. 506,
509, it is said that a better reason for
the above distinction is given in Bacon's
Abr. Trespass, B, to wit: Where the
law has given an authority, it is reason-
able that it should make void every
thing done by the abuse of that author-
ity, and leave the abuser as if he had
done every thing without authority. But
where a man who was under no neces-
sity to give an authority does so, and
the pergon receiving the authority
abuses it, there is no reason why the
law should interpose to make void every
thing done by such abuse, because it
was the man's folly to trust another with
WHAT CONSTITUTES A TRESPASS.
387
an authority who was not fit to be
trusted therewith.
In the above case of Allen v. Cro-
foot, permission to enter a house was
obtained by fraud, and (there having
been a subsequent abuse) it was con-
tended that the license was void, and
that the defendant must be considered
a trespasser from the beginning. But
the court held otherwise, saying that
the principle of relation had never
been applied to such a case, and that
it was not necessary for the purposes of
justice to extend it further than to cases
where the person enters under a license
given by law. " In such cases," it was
observed, "as the party injured had
not the power to prevent the injury, it
seems reasonable that he should be re-
stored to all his remedies.'' See further,
as to trespass ab initio, 1 Smith's L. C.
277-279 (7th Am. ed.).
388 CONVERSION.
CONVERSION".
Akmokt v. Delamirie, leading case.
Bristol v. Bcrt, leading case.
Loeschman v. Machin, leading case.
Donald v. Suckling, leading case.
Note on Conversion.
Historical aspects of the action of trover.
Possession and property.
What constitutes conversion.
Assertion of title.
Sale.
Disposal of qualified interest.
Disposal of part of a chattel.
Owner allowing another to sell his goods.
Surpassing limit of authority to sell.
Pledging goods.
Appropriating an article to different use from that intended.
Attachment of goods already levied upon.
Where goods are not converted to defendant's use.
Demand and refusal.
Acts of cotenants.
Armory v. Delamirie.
(1 Strange, 505. In Middlesex, coram Pratt, C. J., 1722.)
The finder of a jewel may maintain trover against a 6tranger for its conversion.
The plaintiff, being a chimney-sweeper's boy, found a jewel
and carried it to the defendant's shop (who was a goldsmith) to
know what it was, and delivered it into the hands of the appren-
tice, who, under pretence of weighing it, took out the stones, and
calling to the master to let him know it came to three half-pence,
the master offered the boy the money, who refused to take it, and
insisted to have the thing again ; whereupon the apprentice deliv-
ered him back the socket without the stones. And now in trover
against the master these points were ruled : —
1. That the finder of a jewel, though he does not by such find-
ing acquire an absolute property or ownership, yet he has such a
BRISTOL V. BURT. 389
property as will enable him to keep it against all but the rightful
owner, and consequently may maintain trover.
2. That the action well lay against the master, who gives a
credit to his apprentice, and is answerable for his neglect. Jones
v. Hart, 2 Salk. 441, cor. Holt, C. J. ; Mead v. Hamond, 1 Strange,
505 ; Grammer v. Nixon, ib. 653.
3. As to the value of the jewel, several of the trade were exam-
ined to prove what a jewel of the finest water that would fit the
socket would be worth ; and the Chief Justice directed the jury,
that unless the defendant did produce the jewel, and show it
not to be of the finest water, they should presume the strongest
against him, and make the value of the best jewels the measure
of their damages ; which they accordingly did.
Bristol v. Burt.
(7 Johns. 254. Supreme Court, New York, November, 1810.)
To constitute a conversion, sufficient to support trover, it is not necessary to show a
manual taking of the thing in question ; nor that the defendant has applied it to
his own use ; but the assuming the right to dispose of it, or exercising a dominion
over it, to the exclusion or in defiance of the plaintiff's right, is a conversion.
This was an action of trover, brought to recover the value of
ninety-five barrels of potashes. The cause was tried at the
Onondaga Circuit, the 7th of June, 1810, before the Chief Jus-
tice.
The defendant was in 1808, and still is, the collector of the
port of Oswego, on the south side of Lake Ontario. In May,
1808, the defendant was applied to, to know whether he would
grant clearances for ashes for the port of Sackett's Harbor, which
is the next adjoining port in the county of Jefferson, and on the
south side of the lake, and adjacent to the province of Canada.
The defendant answered that he did and should continue to grant
clearances ; and the defendant was informed of the intention of
the plaintiff to bring ashes to Oswego, for the purpose of sending
them to Sackett's Harbor. About the 1st of July, the plaintiff
sent ninety-five barrels of potashes to Oswego, which were put
390 CONVERSION.
into the store of a Mr. Wentworth, who gave the plaintiff a receipt
for them. The plaintiff applied to the defendant for a clearance,
in order to transport the ashes to Sackett's Harbor ; but the de-
fendant refused to grant it, alleging as a reason for his refusal
that though he did not suspect the plaintiff intended to send the
ashes to a British port, yet he believed that the collector at Sack-
ett's Harbor would not do his duty, and that the ashes would be
sent thencef to a British port. The defendant at the same time
promised the plaintiff that, if he did not receive instructions to
the contrary from the Secretary of the Treasury within a fort-
night, he would give a clearance to the plaintiff's ashes. After
the expiration of that time, the defendant still refused to grant
the clearance, though he admitted that he had received no new in-
structions from the Secretary of the Treasury, nor had he received
any instructions forbidding such clearances. He assigned no other
reason for his refusal than his suspicion that the collector at
Sackett's Harbor would not do his duty ; and persisted in refusing
a clearance, though the plaintiff offered to give bonds that the
ashes should be delivered at Sackett's Harbor. The plaintiff then
expressed his desire to take the ashes up the river ; but the de-
fendant declared that the plaintiff should not take them from
Wentworth's store, unless he gave bonds for double the value of
the property, to carry the ashes to Rome, in the county of Oneida,
and leave them there, while the embargo continued ; that the
property was under his jurisdiction and charge ; that he had con-
trol over all the stores and wharves where ashes were placed, and
had employed armed men ; and that he had the right to prevent
their removal, and would exercise it. Two armed men were sta-
tioned near "Wentworth's store during two nights, and an armed
sentinel was constantly on duty, night and clay, at the public
store of the collector, within ten rods of Wentworth's store, and
in view of it, for the purpose of observing boats, and preventing
the removal of the property. The defendant avowed his deter-
mination not to permit any ashes to be removed from any of the
stores in Oswego. The defendant demanded the ashes in ques-
tion from Wentworth, who refused to deliver them ; but, in order
to prevent the defendant from proceeding to extremities, and to
satisfy him, Wentworth entered into an agreement with the de-
fendant not to deliver any property from his store without the
permission of the defendant.
ERISTOL V. BURT. 391
In the autumn of 1808 the defendant gave a general permis-
sion to remove any ashes from Oswego up the river, and thirteen
barrels of the potash of the plaintiff were delivered by Wentworth
to his oider.
On the 13th February, 1809, the defendant gave a written per-
mit to carry the remaining eighty-two barrels of potashes from
Oswego to Rome, in the county of Oneida, requiring of the per-
son to whom they were delivered by order of the plaintiff a writ-
ten report of the ashes, and an oath that the statement was true,
and that he did not intend to violate the law.
It was proved that, when the plaintiff applied to the defendant
for a clearance to Sackett's Harbor, potashes were worth at that
place 8180 per ton, and that the expense of transportation was
8-1 per ton. That the price of potashes on the 21st July, 1808,
in the city of Xew York, was $173 per ton, but would not sell at
Salina, in the county of Onondaga, for more than $150. That
when the plaintiff received the ashes, the price of them, in the
city of Albany, was $173.50, and the expense of transportation
from $25 to $30 per ton.
The Chief Justice charged the jury that, in his opinion, there
was sufficient evidence of a conversion by the defendant, and that
the plaintiff was entitled to recover for the difference in the value
of the ashes at the time when he demanded a clearance and at
the time he received them. And the jury found a verdict for the
plaintiff, for $1,472.20.
A case was made for the opinion of the court, which it was
agreed might be turned into a special verdict.
Gold, for the plaintiff. Cadi/, contra.
Pjer Curiam. The only point made in this case is, whether
there was sufficient evidence of a conversion to justify the
verdict.
There were declarations and acts of the defendant united to
form a control over the plaintiff's property. The very denial of
goods to him that has a right to demand them, says Lord Holt, in
Baldwin v. Cole, 6 Mod. 212, is a conversion ; for what is a con-
version but an assuming upon one's self the property and right of
disposing of another's goods ? And he that takes upon himself to
detain another man's goods from him without a cause, takes upon
himself the right of disposing of them. The bare denial to deliver
is not always a conversion, as in Thimblethorpe's Case (cited in
392 CONVEESION.
Bulst. 310, 314), where a piece of timber was left upon the land
of the defendant by the lessee at the expiration of his term, and
• he was requested to deliyer it and refused, but suffered the tim-
ber to he without intermeddling with it. The reason why this
was held not to be a conversion was, that there was no act done
or dominion exercised ; but in the present case there were the
highest and most unequivocal acts of dominion and control over
the property ; not only by claiming jurisdiction over it, but in
placing armed men near it to prevent its removal. This fact is
of itself a conversion. It is intermeddling with the property in
the most decisive manner, and detaining it for months in the
storehouse. It was, therefore, bringing a charge upon the plain-
tiff; and this, says Mr. Justice Buller, in Syeds v. Hay, 4 Term
Rep. 260, amounts to a conversion. Neither the case of M'Com-
bie v. Davies, 6 East, 538, nor the anonymous case in 12 Mod.
344, were so strong as this, and yet the conversion was maintained.
It was assuming the dominion of the property which was made
by Lord Ellenborough -the test of the conversion, though the
property in that case lay not in the defendant's, but in the king's
warehouse. The definition of a conversion in trover, as given by
Mr. Gwillim, the editor of Bacon, and now a judge in India,
applies precisely to this case. 6 Bac. Abr. 677. " The action
being founded upon a conjunct right of property and possession,
any act of the defendant," says he, " which negatives, or is incon-
sistent with such right, amounts in law to a conversion. It is not
necessary to a conversion that there should be a manual taking
of the thing in question by the defendant; it is not necessary that
it should be shown that he has applied it to his own use. Does
he exercise a dominion over it in exclusion or in defiance of the
plaintiff's right ? If he does, that is, in law, a conversion, be it
for his own or another person's use."
We are, therefore, of opinion that the motion to set aside the
verdict must be denied. Motion denied.
LOESCHMAN V. MACHIN. 393
LOESCHMAN V. MACHIN.
(2 Stark. 811. King's Bench, Nisi Prius, Hilary Term, 1822.)
The hirer of a piano, who sends it to an auctioneer to be sold, is guilty of a conversion ;
and so is the auctioneer who refuses, unless the expense incurred be first paid, to
deliver it up.
This was an action of trover, brought to recover the value of
two piano-fortes.
The plaintiff was a maker of piano-fortes, and the defendant
was an auctioneer. The plaintiff had lent one of the pianos, the
larger, to a person of the name of Brown, whose wife was a
musical teacher, on hire, for which Brown was to pay at the rate
of 18s. per month, if he kept it for the whole year ; and if for a
less period, he was to pay a guinea per month. With respect to
the other piano, it did not appear very clearly on what terms it
had beeu delivered by the plaintiff to Brown, whether upon hire,
or that he might dispose of it for the plaintiff. Brown had sent
both these pianos to the defendant, to be sold by auction, and he,
upon the plaintiffs application to deliver the pianos to him, re-
fused to debver them unless the plaintiff would pay the amount
of certain expenses which had been incurred.
Abbott, J., in summing up to the jury, said, I wish you to find
whether the smaller piano was let on hire, or sent to be sold by
Brown, if an opportunity offered ; this is a question of fact for
your consideration; and although I am of opinion that it will
make no difference as to the verdict, it will give the party an
opportunity of making the distinction. The general rule is, that
if a man buy goods, or take them on pledge, and they turn out
to be the property of another, the owner has a right to take them
out of the hands of the purchaser ; except, indeed, in the case of
a sale in market overt. With that exception, it is incumbent on
the purchaser to see that the vendee has a good title. And I am
of opinion that if goods be let on hire, although the person who
hires them has the possession of them, for the special purpose for
which they are lent ; yet, if he send them to an auctioneer to be
sold, he is guilty of a conversion of the goods ; and that if the
auctioneer afterwards refuse to deliver them to the owner, unless
394 CONVERSION.
he will pay a sum of money which he claims, he is also guilty of
a conversion.
The jury found that the smaller piano had been sent to .Brown
for the purpose of sale, and the plaintiff had a verdict for the
value of both the pianos.
Leave was given to Marryatt, for the defendant, to move the
point.
Scarlett and Campbell, for the plaintiff. Marryatt and Chitty,
for the defendant.
Donald v. Suckling.
(Law R. 1 Q. B. 585. Queen's Bench, England, July, 1866.)
*
Detinue. Repledge of pledge. A. deposited debentures with B. as a security for the pay-
ment, at maturity, of a bill indorsed by A. and discounted by B., on the agree-
ment that B. should have power to sell or otherwise dispose of the debentures if
the bill should not be paid when due ; before the maturity of the bill, B. deposited
the debentures with C, to be kept by him as security until the repayment of a
loan from C. to B. larger than the amount of the bill. The bill was dishonored;
and while it still remained unpaid, A. brought detinue against C. for the debent-
ures. Held (by Cockburn, C. J., Blackburn and Mellor, JJ., Shee, J., dissent-
ing), that the repledge by B. to C. did not put an end to the contract of pledge
between A. and B., and B.'s interest and right of detainer under it; and that A.,
therefore, could not maintain detinue without having paid or tendered the amount
of the bill.
Declaration. That the defendant detained from the plaintiff
his securities for money, that is to say, four debentures of the
British Slate Company, Limited, for 200Z. each, and the plaintiff
claimed a return of the securities, or their value, and 1,000L for
their detention.
Plea. That before the alleged detention the plaintiff deposited
the debentures with one J. A. Simpson, as security for the due
payment at maturity of a bill of exchange, dated 25th August,
1864, payable six months after date, and drawn by the plaintiff,
and accepted by T. Sanders, and indorsed by the plaintiff to and
discounted by Simpson, and upon the agreement then come to
between the plaintiff and Simpson, that Simpson should have full
power to sell or otherwise dispose of the debentures if the bill
was not paid when it became due. That the bill had not been
DONALD V. SUCKLING. 395
paid by the plaintiff, nor by any other person, but was dishonored ;
nor was it paid at the time of the said detention, or at the com-
mencement of this suit ; and that, before the alleged detention
and the commencement of this suit, Simpson deposited the de-
bentures with the defendant, to be by him kept as a security for
and until the repayment by Simpson to the defendant of certain
sums of money advanced and lent by the defendant to Simpson
upon the security of the debentures, and the defendant had and
received the same for the purpose and on the terms aforesaid,
which sums of money thence hitherto have been and remain
wholly due and unpaid to the defendant ; wherefore the de-
fendant detained and still detains the debentures, which is the
alleged detention.
Demurrer and joinder.
The case having been argued in Easter Term (April 27), before
Blackburn and Shee, JJ., was reargued in Trinity Term. .
Harington, for the plaintiff. Gray, Q. C. (Gadsden with him),
for the defendant. Cur. adv. ult.
Shee, J. [after stating the pleadings]. This plea sets up a
right to detain the debentures, founded on a bailment of pawn by
the plaintiff to Simpson, under which Simpson, if the bill should
not be paid, had a right to sell the debentures, paying the over-
plus above the amount of the bill and charges to the plaintiff, —
that is, to sell on the plaintiff's account and for his and Simpson's
benefit, — and a repawn of them by Simpson, as a security for a
loan to him by the defendant.
It must be taken against the defendant that the debentures
were pledged to him by Simpson before the plaintiff had made
default ; it must be taken, too, that the advance for which the
debentures were pledged to the defendant by Simpson was of a
greater amount than the debt for which Simpson held them ; it
is consistent with the facts pleaded either that it was repayable
before or repayable after the maturity of the plaintiff 's bill, and
that the debentures were pledged by Simpson along with other
securities, from which they could not at Simpson's pleasure, or
on tender by the plaintiff of the sum for which they had been
pledged to Simpson, be detached ; and, therefore, that Simpson
had put it out of his power to apply them by sale or otherwise to
the only purpose for which possession of them had been given to
him, viz., to secure the payment of his debt and the release of the
396 CONVEKSION.
plaintiff, by the sale of them, from liability on the bill which
Simpson had discounted for him.
Whether this pledge to the defendant by Simpson was such a
conversion by him of the debentures as destroyed his right of
possession in them, and revested the plaintiff 's right to the pos-
session of them freed from the original bailment, is the question
for our decision.
The contention that a pawnee is entitled to exercise over the
chattel pawned to him a power so extensive as the one which
this plea sets up, was before the case of Johnson v. Stear, 15
C. B. n. s. 380, 33 L. J. C. P. 130, if it be not now, wholly un-
supported by authority.
A pawn is defined by Sir William Jones (on Bailments, pp.
118, 36) to be "a bailment of goods by a debtor to his creditor,
to be kept by him till his debt is discharged ; " and by Lord
Holt (Coggs v.. Bernard, 2 Ld. Raym. at p. 913) to be " a de-
livery to another of goods or chattels to be security to him for
money borrowed of him by the bailor ; " and by Lord Stair (In-
stitutions of the Law of Scotland, b. 1, tit. 13, § 11), " a kind of
mandate whereby the debtor for his creditor's security gives him
the pawn, or thing impignorated, to detain or keep it for his own
security, or, in the case of not-payment of the debt, to sell the
pledge and pay himself out of the price, and restore the rest, or
restore the pledge itself on payment of the debt, — all which is of
the nature of a mandate, and it hath not only a custody in it, but
the power to dispone in the case of not-payment ; " and by Bell
(Principles of the Law of Scotland, §§ 1362, 1363, 4th ed. p. 512),
"a real right, ox jus in re, inferior to property, which vests in
the holder a power over the subject, to retain it in security of the
debt for which it is pledged, and qualifies so far and retains the
right of property in the pledger or owner."
In the Roman civil law, as in our law (see Pigot v. Cubley, 15
C. B. n. s. 701 ; 33 L. J. C. P. 134), the bailment of pawn im-
plied what in this bailment is expressed, — a mandate of sale on
default of payment. Without it, or without, as in the Scotch
and French law, a right to have a pledge sold judicially for pay-
ment on default made, the security by way of pledge would be
of little value. The pawnee is said by Lord Coke, in his Com-
mentaries on Littleton, Co. Litt. 89 a, to have a " property ; " and
in Southcote's Case, 4 Rep. 83 b, to have a " property in, and not
DONALD V. SUCKLING. 397
a custody only," of the chattel pawned ; by ay Inch Lord Holt
(2 Ld. Raym. at pp. 916, 917) understands Lord Coke to mean a
" special property," consisting in this, " that the pawn is a secur-
ity to the pawnee that he shall be repaid his debt, and to com-
pel the pawnor to pay him ; " or, in the words of Fleming, C. J.,
in Ratcliff v. Davis, Cro. Jac. at p. 245, " a special property in
the goods to detain them for his ("the pawnee*s) security ; " that
is, not a property properly so called, but the jus in re, that is, in
re aliena of the Roman lawyers, the opposite, as Mr. Austin
says (Lectures on Jurisprudence, Tables and Notes, vol. 3,
p. 192), to property; but a right of possession against the true
owner, and under a contract with him until his debt is paid, and
a power of sale for the reciprocal benefit of the pawnee and
pawnor on default of payment at the time agreed upon.
Mr. Justice Story says (on Bailments, § 324) that " the
pawnee may by the common law deliver the pawn into the hands
of a stranger without consideration, for safe custody, or convey
the same interest conditionally by way of pawn to another per-
son, without destroying or invalidating his security, but that he
cannot pledge it for a debt greater than his own ; that if he do
so, he will be guilty of a breach of trust, by which his creditor
will acquire no title beyond that of the pawnee ; and that the
only question which admits of controversy is, whether the cred-
itor shall be entitled to retain the pledge until the original debt
(that is, the debt due to the first pawnee) is discharged, or
whether the owner vany recover the pledge in the same manner
as if the case was a naked tort, without any qualified right in the
first pawnee." So much of this passage as is stated to be clear
law, viz., that the pawnee may deliver the chattel pawned to a
stranger for safe custody without consideration, or convey the
same conditionally {i.e., it may be presumed, on the same condi-
tions as those on which he holds it) by way of pawn to another
person for a debt not greater than his own, without destroying
or invalidating his security, has no application to the case before
us, inasmuch as the pawn by Simpson to the defendant was not
for safe custody, nor without consideration, nor conditionally, nor
for a debt not greater than the debt due by the plaintiff to Simp-
son, and because the power given to the pawnee by this bailment
to dispose of the debentures by sale or otherwise, should this debt
not be paid, might probably be considered, at least after default
398 CONVERSION.
made, to enlarge the ordinary right of a pawnee over the chattel
-pawned. There is nothing in the passage which affords any
countenance, except by the way of query, to the position that a
pawnee, who, as in this case, has placed the chattel pawned out
of the pawnor's power, and out of his own power to redeem it,
by payment of the amount for which it was given to him as a
security, and who has deprived himself of the power of selling
it for the payment of the pawnor's debt, can by so doing shield
the creditor to whom he repawns it from an action of detinue at
the suit of the real owner. Mr. Justice Story, indeed, says (on
Bailments, § 299), " that if the pledgee voluntarily and by his
own act places the pledge beyond his power to restore it, as by
agreeing that it may be attached at the suit of a third person,
that will amount to a waiver of the pledge." It would be diffi-
cult to reconcile any other rule in respect of the pledging by
pledgees of the chattels pawned to them with the well-established
doctrine of our courts and the courts of the United States of
America in respect of the pledging by factors of the goods
intrusted to them. Factors, like pledgees, have a mandate of
sale, — sale irrespectively of default of any kind is the object
of the bailment to them ; they have a special property and right
of possession against all the world except their principal, and
against him if they have made advances on the security of his
goods intrusted to them ; to give effect to that security, they
may avail themselves of their mandate of sale ; but if they place
the goods out of their own power by pledging them, although
it be for a debt not exceeding their advances, the pawnee from
them (except under the Factors Acts) is defenceless, in trover
or detinue, even to the extent of his loan, against the true
owner.
Why it should be otherwise between the true owner and the
pawnee from a pawnee of the true owner's goods, no reason was
adduced during the argument before us, nor, indeed, was it pos-
sible to adduce any reason, seeing that in all the decisions on
pledges by factors the relation between a factor who has made
advances on the goods intrusted to him and his principal has
been held not distinguishable, or barely distinguishable, in its legal
incidents from the relation between pawnee and pawnor ; a factor
being, as Mr. Justice Story says, " generally treated in juridical
discussions as in the condition of a pledgee." On Bailments,
DONALD V. SUCKLING. 399
§§ 325, 327 ; citing Daubigny v. Duval, 5 T. R. 604; M'Combie
v. Davies, 7 East, 5.
The case of Johnson v. Stear,15 C. B. n. s. 330, 33 L. J. C. P.
130, is a clear authority for holding that Simpson, in dealing
•with the debentures in the way which he must be taken on this
plea to have done, was, as the defendant also was, guilty of a
conversion of them ; and unless that case is also an authority
binding upon us for the doctrine that the conversion by a pawnee
of the thing pawned is not such an abuse of the bailment of
pawn as annuls it, but that there remains in him, and in an
assignee from him, and in an assignee from his assignee, and so on
toties quoties, without limit as to the number of assignments or
the consideration for them, an interest of property in the pawn
which defeats the owner's right of possession, the plaintiff is
entitled to our judgment.
As I read the case of Johnson v. Stear, and the cases of Chin-
ery v. Viall, 5 H. & N. 2S8, 29 L. J. Ex. 180, and Brierly v. Ken-
dall, 17 Q. B. 937, 21 L. J. Q. B. 161, on the authority of which it
proceeded, the judgments of the majority of the learned judges of
the Court of Common Pleas in the first of them, and the judgments
of the Court of Exchequer and of the Court of Queen's Bench in
the second and the third, are based on the principle that, in an
action to recover damages for a conversion, it is not an inflexible
rule of law that the value of the goods converted is to be taken
as the measure of damages ; that when a suitor's real cause of
action is a breach of contract, he cannot by suing in tort entitle
himself to a larger compensation than he could have recovered in
an action in form ex contractu; and therefore that, when a ver-
dict is obtained against an unpaid vendor for the conversion of
the thing sold by him, or against an unpaid pawnee for the con-
version of the thing pledged to him, he is entitled to be credited,
in the estimate by the jury of the damages to be paid by him,
for the value of such interest or advantage as would have re-
sulted to him from the contract of sale or the contract of pawn,
if it had been fulfilled by the vendee or pawnor.
That this was the ratio decidendi in these cases seems to me
clear from the facts of Chinery v. Viall and Brierly v. Kendall,
which raised no question between the litigant parties in any
respect analogous to the question which we in this case have to
400 CONVERSION.
decide. In Chinery v. Viall, the plaintiff, who was the vendee of
forty-eight sheep, for five only of which he had paid, under a
bargain which entitled him to delivery of the whole lot before pay-
ment, brought his action against the vendor for a conversion by
parting with the sheep to another purchaser. If the defendant's
interest in the unpaid balance of the agreed price of the sheep
had not been credited to him in the amount of damages, the plain-
tiff, who had only paid for five of them, would have pocketed the
full value of the forty-three which had been converted.
In Brierly v. Kendall, 17 Q. B. 937, 21 L. J. Q. B. 161, an
action of trespass, there was a loan of the defendant to the
plaintiff, secured by bill of sale of the plaintiff 's goods, in which
was a reservation to the plaintiff of a right to the possession of
the goods until he should make default in some payment. Before
any default the defendant took the goods from the plaintiff and
sold them. For this wrong he, was liable in trespass ; but the
measure of damages was held to be, not the value of the goods,
but the loss which the plaintiff had really sustained by being
deprived of the possession. The wrongful act of the defendant
did not annihilate his interest in the goods under the bill of sale ;
and such interest was considered in measuring the extent of the
plaintiff's right to damages.
These cases are manifestly not in conflict with, if indeed they
at all touch, the principle relied upon against the plea which is
here demurred to, that, if the pawnee converts the chattels
pawned to him, the bailment is determined and the right of
possession revested in the true owner of them.
In Johnson v. Stear, 15 C. B. n. s. 330, 33 L. J. C. P. 130,
the defendant, a pawnee of dock warrants, had anticipated by a
few hours only the time at which, under his contract with the
owner of them, he might have sold and delivered them ; he had
applied before the time of action brought the proceeds of their
sale to the discharge of the plaintiff's debt to him, or he held
them specially applicable to that purpose, and the plaintiff, had
he sued the defendant in contract for not keeping the pledge
until default made, could not have proved that he had sustained
any damage. The Chief Justice, speaking for himself and two
of his learned brothers, did, indeed, say that " the deposit of the
goods in question with the defendant, to secure repayment of a
loan to him on a given day, with a power to sell in case of
DONALD V. SUCKLING. 401
default on that day, created an interest and a right of property
in the goods which was more than a mere lien; and the wrong-
ful act of the pawnee did not annihilate the contract between
the parties nor the interest of the pawnee in the goods under
that contract." 15 C. B. n. s. 334, 335, 33 L. J. C. P. 131. But
he cannot be understood to have meant by the words "interest
and right of property in the goods," and by the words " more
than a mere hen," other than "a special property," as defined by
the authorities before referred to by me, viz., a real right or jus
in re, a right of possession until default made, a right of reten-
tion or sale after default made ; nor, as I think, to have intended
more, by the words " the wrongful act of the pawnee did not
annihilate the contract between the parties," than that the con-
tract, in the breach of which consisted the tort of which the
plaintiff complained, must still be considered to subsist, at least
for the purpose of being referred to for the measure of the dam-
age sustained by the pawnor and the damages to be recovered by
him.
The case before us differs, as I think, in essential particulars,
as respects the principle upon which damages would have been
measurable, had the action been in trover, from the case in the
Common Pleas. The defendant, as assignee of the pawnee,
could not surely have set up in mitigation of damages an interest
derived by him from the pawnee before default made by the
pawnor ; the pawnee, by the express terms of the bailment to
him, not having the right to dispose of the debentures by sale or
otherwise until after default made. Besides, it is impossible to
shut one's eyes to the broad distinction between the case of the
sale a few hours too soon of a pawn, which, as in the case of
Johnson v. Stear, 15 C. B. n. s. 330, 33 L. J. C. P. 130, the
pawnor "had no intention to redeem," — the proceeds of the
sale being devoted before action brought to the discharge of
the debt for which the pawn had been given as a security, —
and the abuse of a pawn by the pawnee in wrongfully, for his
own purposes, placing it out of his power, and out of the pawnor's
power, to redeem the pawn, should he have the means to do so.
By the contract of bailment between the plaintiff and Simpson,
the proceeds of the sale of the debentures, which are the sub-
ject of this suit, had been specifically appropriated to the pay-
ment of the plaintiff's bill in the event of his not being able to
26
402 CONVERSION.
meet it with other means. Simpson held the debentures in trust,
should the bill not be paid, to sell them on the plaintiff's account,
or allow the plaintiff to sell them or raise money on them to pay
his bill. Instead of that, Simpson, before default made by the
plaintiff, converted them to his own use, obtaining their agreed
value in pledge from the defendant, and imposing upon the plain-
tiff the burden of making other provisions to meet his bill. By
this act of Simpson, the plaintiff, in my judgment, did in fact
sustain damage, and at the maturity of the bill, if not before, to
the full amount of the current salable value of the debentures.
I am at a loss to see how the conduct of Simpson, in thus deal-
ing with the debentures, and how the title of the defendant,
claiming under him, are to escape the operation of the rule, that
if the pawnee, except conditionally (an exception for which the
authority is but slender), parts with the possession of the pawn,
he loses the benefit of his security : Byall v. Rolle, 1 Atk. 165 ;
Reeves v. Capper, 5 Bing. N. C. 136 ; Johnson v. Stear, 15 C. B.
n. s. 330, 33 L. J. C. P. 130, per Williams, J. ; or the operation
of the maxim, nemo plus juris ad alium transferre potest quam
ipse habet.
For these reasons, as it seems to me, the case of Johnson v.
Stear, 15 C. B. n. s. 330, 33 L. J. C. P. 130, ought not to gov-
ern our decision. It could not be followed by us as an authority
in favor of the defendant without inattention to its true prin-
ciple, viz., that between the parties to a contract the measure of
damages for a breach of the contract must be the same, whether
the form of action be ex contractu or ex delicto, and that in such
a case general rules applicable to the latter form, the only one
competent for the redress of injuries purely tortious, are not to
be strained to the doing of manifest injustice. It is open also, in
a right estimate of it as an authority for the case in hand, to
this observation: The interest of a plaintiff in the damages
recoverable by him for a tort, which is in its true nature a breach
of contract, is restricted by the implied stipulations of the con-
tracting parties to the amount which, in the conscience of a jury,
may suffice to give him an adequate compensation. The action
of detinue for a chattel, of which the bailment has been abused,
against a person not a party to the contract of bailment, is not
based upon a breach of contract, and not within the rules appli-
cable to actions of tort which are based on breaches of contract.
DOXALD V. SUCKLING. 403
111 detinue the plaintiff sues, not for the value tantamount of the
thing detained from him, but for the return of the thing itself,
which may to him have a value other and higher than its actual
value ; and only for its value if the thing cannot be delivered to
him : Tidd's Forms (Sth ed. 839) ; and for damages for its deten-
tion and his costs of suit : Peters v. Heyward, Cro. Jac. 682 ; the
integral, undiminished thing itself, unaffected by countervailing
lien or abatement of whatever kind, being the primary object of
the suit. In an action of trover for the conversion by the pawnee
of the subject of the bailment, the plaintiff, according to the
judgment of the majority of the court in Johnson v. Stear, 15
C. B. x. s. 380, 33 L. J. C. P. 130, is entitled only to recover
the amount in money of the damage which he proves himself to
have sustained. In an action of detinue for the recovery from
the assignee of the pawnee of the chattel pawned, and of which
the pawn has been abused and forfeited, the plaintiff is entitled
to recover the chattel itself, because it was a term of the contract
of pawn that if the pawn should be abused by the pawnee his
right to the possession of it should cease ; and the defendant can
have derived no right of possession from one whose own right of
possession was determined by his attempt to transfer it.
Unless, therefore, we are prepared to hold, in disregard of the
clearly expressed opinion of Story and Mr. Justice Williams, that
detinue can in no case lie for an unredeemed pawn, however much
the bailment of it may have been abused, we are not at liberty
to apply the ratio decidendi in Johnson v. Stear, 15 C. B. N. s.
330, 33 L. J. C. P. 130, to the case before us.
It raises a strong presumption against the defence set up in
this plea, that nothing bearing the slightest resemblance to the
right of possession, which it claims for the assignee of a pawnee,
is to be found in the copious title of the digest, Dig. lib. 20, tit.
1, " De pignoribus et hypothecis ; et qualiter ea contrahantur, et
de pactis eorum," or in the five following titles of the contract
of pawn and hypothec and its incidents, or in the title " De pig-
neratitia actione, vel contra," Dig. lib. 13, tit. 7, or in the works
of any English, French, or Scotch jurist.
The dictum of the majority of the court in the case of Mores
v. Conham, Owen, 123, 124, that the pawnee has such an inter-
est in the pawn as he may assign over, was not the point
decided in that case, por, as it seems to me, a point essential to
404 CONVERSION.
its decision ; the point decided being that the surrender by the
plaintiff of a chattel pawned to him by a third person was a
good consideration for a promise by the defendant to pay the
debt for which it had been given as security. It does not seem
to follow from that decision that the surrenderee thereby acquired
such an interest in the pawn as would enable him to defend an
action of detinue at the suit of the true owner, the reunion of
whose rights of property and possession was, unless they meant
to rob him, the real object of the transaction. The inference
drawn from this very obscure and superficially reasoned case in
favor of the defendant's plea is wholly irreconcilable with the
doctrine of Domat, the highest authority on all questions depend-
ing, as this question does, upon the rules and principles of the
Roman civil law, that the bailments of " hypotheque " and
"gage" last only as long as the thing hypothecated is in the
hands of the person charging it, or the thing pawned in the
hands of him who takes it for his security, Domat, Lois Civiles,
liv. 3, tit. 1, § 1, and with the doctrine of Erskine, a jurist of
nearty equal eminence, that " in a pledge of movables the cred-
itor who quits the possession of the subject loses the real right he
had upon it." Institutes of the Laws of Scotland,, b. 3, tit. 1,
§33.
I think that the bailment to Simpson was determined by the
pledge by him to the defendant under the circumstances stated
in the plea ; that both of them have been guilty of a conversion ;
that the plaintiff might, as Mr. Justice Williams said in the case
of Johnson v. Stear, 15 C. B. N. s. at p. 341, 33 L. J. C. P. at
p. 134, lawfully, should the opportunity offer, resume the pos-
session of the debentures, and hold them freed from the bailment,
and may, the defendant being remitted to his remedy against Simp-
son, and Simpson to his remedy upon the bill, recover them, or
their full value, if they cannot be delivered to him, in this action
of detinue.
Melloe, J. [after stating the declaration and plea]. To this
plea the plaintiff demurred ; and upon demurrer I think that we
must assume that the pledging of the debentures by Simpson to
the defendant took place before the default was made by the
plaintiff in payment of the bill of exchange at maturity, and that
we must also assume that the money for which the debentures
were pledged by Simpson, as a security to the defendant, was of
DONALD V. SUCKLING. 405
larger amount than the amount of the bill of exchange discounted
for the plaintiff by Simpson. The question thus raised by this
plea is, whether a pawnee of debentures, deposited with him as
a security for the due payment of money at a certain time, does,
by repledging such debentures and depositing them with a third
person as a security for a larger amount, before any default in
payment by the pawnor, make void the contract upon which they
were deposited with the pawnee, so as to vest in the pawnor an
immediate right to the possession thereof, notwithstanding that
the debt due by him to the original pawnee remains unpaid. If
the affirmative of this proposition be maintained, the result seems
prima facie to be disproportionate to any injury which the pawnor
would be likely to sustain from the fact of his debentures having
been repledged before default made. Still, if the principles of
law, as laid down in decided cases, satisfactorily support the
proposition above stated, this court must give effect to them.
There is a well-recognized distinction between a lien and a pledge,
as regards the powers of a person entitled to a lien and the powers
of the person who holds goods upon an agreement of deposit by
way of pawn or pledge for the due payment of monejr. In the
case of simple lien there can be no power of sale or disposition of
the goods, which is inconsistent with the retention of the posses-
sion by the person entitled to the hen ; whereas, in the case of a
pledge or pawn of goods to secure the payment of money at a
certain day, on default by the pawnor the pawnee may sell the
goods deposited and realize the amount, and become a trustee for
the overplus for the pawnor ; or, even if no day of payment be
named, he may, upon waiting a reasonable time, and taking the
proper steps, realize his debt in like manner. It is said by Mr.
Justice Story on Bailments, tit. Pawns or Pledges, § 311, that
" the foundation of the distinction rests in this, that the contract
of pledge carries an implication that the security shall be made
effectual to discharge the obligation ; but, in the case of a lien,
nothing is supposed to be given but a right of retention or de-
tainer, unless under special circumstances." The question thus
arises, Is the right of retention in case of a hen, either by a custom
or contract, otherwise different from a deposit, by way of pledge
for securing the due payment of money, than in the incidental
power of sale in the latter case on condition broken ? In other
words, on a contract of pledge, it is implied that the pledgee shall
406 CONVERSION.
not part with the possession of the thing pledged until default in
payment ; and, if so, is that of the essence of the contract, so that
the violation of it makes void the contract ?
In the case of Legg v. Evans, 6 M. & W. 36, 41, an action of
trover having been brought against the defendants, as sheriff of
Middlesex, to recover the value of some pictures and picture-
frames, the defendants justified under an execution against the
goods and chattels of the plaintiff, to which the plaintiff replied
setting up a lien in respect of work done upon such goods and
chattels, which had been delivered to him in the way of his trade
by one Williams, and further set up an agreement between the
plaintiff and Williams that the plaintiff should draw and indorse
certain bills of exchange for the use of Williams, and should have
a right to hold the said goods for securing the payment by Wil-
liams of the amount of the said bills of exchange ; and he alleged
that the said money and bills of exchange then remained wholly
unpaid. The Court of Exchequer held, on demurrer to the repli-
cation, that it was a good answer to the plea ; and Parke, B., is
reported to have said : " If we consider the nature of a lien and
the right which it confers, it will be evident that it cannot form
the subject-matter of a sale. A lien is a personal right which can-
not be parted with, and continues only so long as the possessor
holds the goods. It is clear, therefore, that the sheriff cannot sell
an interest of this description, which is a personal interest in the
goods." And farther on he said, " Here the interest cannot be
transferred to any other individual ; it continues only as long as
the holder keeps possession of the subject-matter of the lien, either
by himself or his servant." In that case there was superadded to
the lien in respect of work done an agreement that the person
entitled to the lien should have a right to hold the said goods and
chattels for securing the payment of the bills of exchange therein
mentioned, and which then remained wholly unpaid. That case
was treated as a simple case of lien or right " to hold " to. secure
the payment, not only of the amount due for work done on the
goods by Williams, but also of the bills drawn and indorsed by
him. It is, therefore, an authority to the effect that in the case of
lien, even to secure payment of money advanced, there is no im-
plication of any power to sell or otherwise dispose of the subject-
matter of the lien, because retention of possession by the party
entitled to the lien is an essential ingredient in it.
DONALD V. SUCKLING. 407
It appears, therefore, that there is a real distinction between a
deposit by way of pledge for securing the payment of money, and
a right to hold by way of lien to secure the same object. In
Pothonier v. Dawson, Holt, N. P. at p. 385, cited in argument in
Legg r. Evans, 6 M. & W. at p. 40, Gibbs, C. J., said, " Undoubt-
edly, as a general proposition, a right of lien gives no right to sell
the goods. But when goods are deposited by way of security, to
indemnify a party against a loan of money, it is more than a
pledge. [{>ueere, whether " pledge " should not be read " lien."]
The lender's rights are more extensive than such as accrue under
an ordinary lien in the way of trade."
It appears to me that considerable confusion has been intro-
duced into this subject by the somewhat indiscriminate use of the
words '■ special property," as alike applicable to the right of per-
sonal retention in case of a lien, and the actual interest in the
goods created by the contract of pledge to secure the payment of
money. In Legg v. Evans, 6 M. & W. at p. 42, the nature of a
lien is defined to be a " personal right which cannot be parted
with ; " but i4 the contract of pledge carries an implication that
the security shall be made effectual to discharge the obligation."
Story on Bailments, § 311. In each case the general property
remains in the pawnor ; but the question is as to the nature and
extent of the interest or special property passing to the bailee
in the two cases. Mr. Justice Story, in his Treatise on Bailments,
§ 324, thus describes the right and interest of the pawnee : " He
mav, by the common law, deliver over the pawn into the hands
of a stranger for safe custody, without consideration, or he may
sell or assign all his interest in the pawn, or he may convey the
same interest conditionally, by way of pawn, to another person,
without in either case destroying or invalidating his security ; but
if the pawnee should undertake to pledge the property (not being
negotiable securities) for a debt beyond his own, or to make a
transfer thereof to his own creditor, as if he were the absolute
owner, it is clear that in such a case he would be guilty of a
breach of trust, and his creditor would acquire no title beyond
that held by the pawnee. The only question is, whether the
creditor should be entitled to retain the pledge until the original
debt was discharged, or whether the owner might recover the
pledge in the same manner as in the case of a naked tort, without
any qualified right in the first pawnee."
408 CONVERSION.
In M'Combie v. Davies, 7 East, 5 (see pp. 6 and 7), it appeared
that a broker had for a debt of his own pledged with the defend-
ant certain tobacco of his principals, upon which he had a lien ;
and in an action brought by the principal against the defendant
in trover for the tobacco, Lord Ellenborough being of opinion
" that the lien was personal, and could not be transferred by the
tortious act of the broker pledging the goods of his principal,"
the plaintiff obtained a verdict ; and upon motion for a new trial
Lord Ellenborough said that " nothing could be clearer than that
liens were personal, and could not be transferred to third persons
by any tortious pledge of the principal's goods ; " but he afterwards
added " that he would have it fully understood that his observa-
tions were applied to a tortious transfer of the goods of the prin-
cipal by the broker undertaking to pledge them as his own, and
not to the case of one who, intending to give a security to another
to the extent of his lien, delivers over the actual possession of the
goods on which he has the hen to that other, with notice of his
lien, and appoints that other as his servant to keep possession of
the goods for him."
It would therefore seem that in the case of a broker or factor
for sale, before the Factors Acts, although he had no power to
pledge his principal's goods, except to the extent of his own
lien, with notice of the extent of his interest, yet where he
pledged the goods on which he had a hen tortiously, neither, the
factor nor his pawnee could retain them even for the payment of
the amount of the original lien. The case of M'Combie v. Davies,
7 East, 5 (see pp. 6 and 7), shows that the factor's or broker's
lien, although simply a right to retain possession as between him
and his principal, might be transferred and made a security to a
third person, provided he professed to assign it only as a security
to the like amount as that due to himself. Still the character of
the transaction is that of lien, and not of deposit, by way of pledge ;
and although the goods were intrusted to the broker for sale, and
up to the time of sale remained in his hands upon a personal right
to retain them for advances, yet he could not pledge them ; and,
if he did, the act was an essential violation of the relation be-
twixt him and his principal, and entitled the latter at once to the
recovery of the value of the goods in trover. " But the relation
of principal and factor, where money has been advanced on goods
consigned for sale, is not that of pawnor and pawnee," as was
DONALD V. SUCKLING. 409
said by the court in Smart v. Sandars, 3 C. B. at pp. 400, 401 ;
and see s. c. after amendment of pleadings, 5 C. B. at p. 917.
There would therefore appear to be some real difference in the
incidents between a simple lien, like that in Legg v. Evans, 6 M.
& W. 86, and the lien of a broker or factor before the Factors
Act, and the case of a deposit by way of pledge to secure the re-
payment of money, which latter more nearly resembles an ordinary
mortgage. Notes to Coggsw. Bernard, 1 Smith's L. C. 194 (5th ed.).
A lien, as we have seen, gives only a personal right to retain pos-
session. A factor's or broker's lien was apparently attended with
the additional incident, that to the extent of his lien he might
transfer even the possession of the subject-matter of the lien to a
third person, " appointing him as his servant to keep possession
for him." In a contract of pledge for securing the payment of
money, we have seen that the pawnee may sell and transfer the
thing pledged on condition broken ; but what implied condition
is there that the pledgee shall not in the mean time part with the
possession thereof to the extent of his interest ? It may be that
upon a deposit by way of pledge the express contract between
the parties may operate so as to make a parting with the posses-
sion, even to the extent of his interest, before condition broken,
so essential a violation of it as to revest the right of possession in
the pawnor ; but, in the absence of such terms, why are they to
be implied? There may possibly be cases in which the very
nature of the thing deposited might induce a jury to believe and
find that it was deposited on the understanding that the posses-
sion should not be parted with ; but in the case before us, we
have only to deal with the agreement which is stated in the
plea. The object of the deposit is to secure the repayment of a
loan, and the effect is to create an interest and a right of property
in the pawnee, to the extent of the loan, in the goods deposited ;
but what is the authority for saying that until condition broken
the pawnee has only a personal right to retain the goods in his
own possession ?
In Johnson v. Stear, 15 C. B. N. s. 330, 33 L. J. C. P. 130, one
dimming, a bankrupt, had deposited with the defendant 243
cases of brandy, to be held by him as a security for the payment
of an acceptance of the bankrupt for £62 10s., discounted by the
defendant, and which would become due January 29, 1863 ; and
in case such acceptance was not paid at maturity, the defendant
410 CONVERSION.
was to be at liberty to sell the brandy, and apply the proceeds
in payment of the acceptance. On the 28th January, before
the acceptance became due, the defendant contracted to sell the
brandy to a third person, and on the 29th delivered to him the
dock warrant, and on the 30th such third person obtained actual
possession of the brandy. In an action of trover, brought by the
assignee of the bankrupt, the Court of Common Pleas held that
the plaintiff was entitled to recover, on the ground that the de-
fendant wrongfully assumed to be owner in selling ; and although
that alone might not be a conversion, yet, by delivering over the
dock warrant to the vendee in pursuance of such sale, he "inter-
fered with the right which the bankrupt had on the 29th, if he
repaid the loan;" but the majority of the court (Erie, C. J.,
Byles and Keating, JJ.) held, that the plaintiff was only entitled
to nominal damages, on the express ground that the deposit of
the goods in question with the defendant to secure repayment of
a loan to him on a given day, with a power to sell in case of de-
fault on that day, created " an interest and a right of property in
the goods, which was more than a mere lien ; and the wrongful act
of the pawnee did not annihilate the contract between the parties nor
the interest of the pawnee in the goods under that contract." See
15 C. B. n. s. at pp. 334, 335 ; 33 L. J. C. P. at p. 131. From
that view of the law, as applied to the circumstances of that case,
Mr. Justice Williams dissented, on the ground "that the bailment
was terminated by the sale before the stipulated time, and conse-
quently that the title of the plaintiff to the goods became as free
as if the bailment had never taken place." See 15 C. B. sr. s. at
p. 340 ; 33 L. J. C. P. at p. 134. Although the dissent of that
most learned judge diminishes the authority of that case as a deci-
sion on the point, and although it may be open to doubt whether
in an action of trover the defendant ought not to have succeeded
on the plea of not possessed, and whether the plaintiff's only
remedy for damages was not by action on the contract, I am,
nevertheless, of opinion that the substantial ground upon which
the majority of the court proceeded, viz., that the " act of the
pawnee did not annihilate the contract, nor the interest of the
pawnee in the goods," is the more consistent with the nature and
incidents of a deposit by way of pledge. I think that when the
true distinction between the case of a deposit, by way of pledge,
of goods, for securing the payment of money, and all cases of
DONALD V. SUCKLING. 411
lien, correctly so described, is considered, it will be seen that in
the former there is no implication, in general, of a contract by the
pledgee to retain the personal possession of the goods deposited ;
and I think that, although he cannot confer upon any third per-
son a better title or a greater interest than he possesses, yet if,
nevertheless, he does pledge the goods to a third person for a
greater interest than he possesses, such an act does not annihilate
the contract of pledge between himself and the pawnor, but that
the transaction is simply inoperative as against the original pawnor,
who upon tender of the sum secured immediately becomes entitled to
the possession of the goods, and can recover in an action for any
special damage which he may have sustained by reason of the act
of the pawnee in repledging the goods ; and I think that such is
the true effect of Lord Holt's definition of a '• vadium or pawn "
in Coggs v. Bernard, 2 Ld. Raym. at pp. 916, 917. Although he
was of opinion that the pawnee could in no case use the pledge
if it would thereby be damaged, and must use due diligence in
the keeping of it, and says that the creditor is bound to restore
the pledge upon payment of the debt, because, by detaining it
after the tender of the money, he is a wrong-doer, his special
propertv being determined ; jet he nowhere says that the misuse
or abuse of the pledge before payment or tender annihilates the
contract upon which the deposit took place.
If the true distinction between cases of lien and cases of deposit
by way of pledge be kept in mind, it will, I think, suffice to de-
termine this case in favor of the defendant, seeing that no tender
of the sum secured by the original deposit is alleged to have been
made by the plaintiff ; and, considering the nature of the things
deposited, I think that the plaintiff can have sustained no real
damage bv the repledging of them, and that he cannot success-
fully claim the immediate right to the possession of the debentures
in question.
I am, therefore, of opinion that our judgment should be for the
defendant.
Blackburn, J. [after stating the pleadings]. The plea does
not expressly state whether the deposit with the defendant by
Simpson was before or after the dishonor of the bill of exchange ;
and as against the defendant, in whose knowledge this matter
lies, it must be taken that it was before the bill was dishonored,
and consequently at a time when Simpson was not yet entitled by
412 CONVERSION.
virtue of his agreement with the plaintiff to dispose of the de-
bentures. We cannot construe the plea as stating that Simpson
agreed to transfer to the defendant, as indorsee of the bill, the
security which Simpson had over the debentures, and no more.
We must, I think, as against the defendant, construe the plea as
stating that Simpson deposited the debentures, professing to give
a security on them for repayment of a debt of his own, whioh may
or may not have exceeded the amount of the bill of exchange, but
was certainty different from it. And it is quite clear that Simp-
son could not give the defendant any right to detain the debent-
ures after the bill of exchange was satisfied, so that a replication
that the plaintiff had paid, or was ready and willing to pay, the
bill would have been good. The defendant could not in any
view have a greater right than Simpson had. But there is no
such replication ; and so the question which is raised on this rec-
ord, and it is a very important one, is, whether the plaintiff is
entitled to recover in detinue the possession of the debentures, he
neither having paid nor tendered the amount for which he had
pledged them with Simpson. In detinue the plaintiff's claim is
based upon his right to have the chattel itself delivered to him ;
and if there still remain in Simpson, or in the defendant as his
assignee, any interest in the goods, or any right of detention in-
consistent with this right in the plaintiff, the plaintiff must fail
in detinue, though he may be entitled to maintain an action of
tort against Simpson or the defendant for the damage, if any, sus-
tained by him in consequence of their unauthorized dealing with
the debentures.
The question, therefore, raised on the present demurrer is,
whether the deposit by Simpson of the debentures with the de-
fendant, as stated in the plea, put an end to that interest and
right of detention till the bill -of exchange was honored, which
had been given to Simpson by the plaintiff's original contract of
pledge with him.
There is a great difference in this respect between a pledge and
a lien. The authorities are clear that a right of lien, properly so
called, is a mere personal right of detention ; and that an unau-
thorized transfer of the thing does not transfer that personal right.
The cases which established that, before the Factors Acts, a pledge
by a factor gave his pledgee no right to retain the goods, even to
the extent to which the factor was in advance, proceed on this
DONALD V. SUCKLING. 413
ground. In Daubigny v. Duval, 5 T. R. at p. 606, Buller, J., puts
the case on the ground that " a lien is a personal right, and cannot
be transferred to another." In M'Combie v. Davies, 7 East, at
p. 6, Lord Ellenborough puts the decision of the court on the same
ground, saying that " nothing could be clearer than that liens were
personal, and could not be transferred to third persons by any
tortious pledge of the principal's goods." Story, in his Treatise
on Bailments, §§ 325, 326, and 327, is apparently dissatisfied with
these decisions, thinking that a factor, who has made advances on
the goods consigned to him, ought to be considered as having
more than a mere personal right to detain the goods, and that a
pledgee from him ought to have been considered entitled to detain
the goods until the lien of the factor was discharged. This is a
question which can never be raised in this country, for the legis-
lature has intervened, and in all cases of pledges by agents, within
the Factors Acts, the pledge is now available to the extent of the
factor's interest.
But, on the facts stated on the plea, Simpson was not an agent
within the meaning of the Factors Acts ; and we have to consider
whether the agreement stated to have been made between the
plaintiff and him did confer something beyond a mere lien prop-
erly so called, an interest in the property, or real right, as distin-
guished from a mere personal right of detention. I think that,
both in principle and on authority, a contract such as that stated
in the plea, pledging goods as a security, and giving the pledgee
power in case of default to dispose of the pledge (when accom-
panied by actual delivery of the thing), does give the pledgee
something beyond a mere lien ; it creates in him a special prop-
erty or interest in the thing. By the civil law such a contract did
so, though there was no actual delivery of the possession ; but the
right of hypothec is not recognized by the common law. Till pos-
session is given the intended pledgee has only a right of action on
the contract, and no interest in the thing itself. Howes v. Ball,
7 B. & C. 481. I mention this because in the argument several
authorities, which only go to show that a delivery of possession is,
according to the English law, necessary for the creation of the
special property of the pawnee, were cited as if they deter-
mined that possession was necessary for the continuance of that
property.
The effect of the civil law is thus stated by Story, in his Trea-
414 CONVERSION.
tise on Bailments, § 328: " It enabled the pawnee to assign over,
or to pledge the goods again, to the extent of his interest or lien
on them ; and in either case the transferee was entitled to hold
the pawn, until the original owner discharged the debt for which
it was pledged. But beyond this the (second) pledge was inopera-
tive, and conveyed no title, according to the known maxim, nemo
plus juris ad alium transferee potest quam ipse haberet."
In England there are strong authorities that the contract of
pledge, when perfected by delivery of possession, creates an inter-
est in the pledge, which interest may be assigned. This was the
very point decided by the court in Mores v. Conham, Owen, 123,
124, where the court say that the pawnee is responsible " if he
misuseth the pawn ; also he hath such interest in the pawn as he
may assign over, and the assignee shall be subject to detinue if
he detains it upon payment of the money by the owner." It is true
that one judge, Foster, J., dissented on this very point. That may
so far weaken the authority of the decision ; but it shows that
there could be no mistake in the reporter, and no oversight on
the part of the majority, but that it was a deliberate decision.
It is laid down by Lord Holt, in his celebrated judgment in
Coggs v. Bernard, 2 Ld. Raym. at p. 916, that a pawnee " has a
special property, for the pawn is a securing to the pawnee that
he shall be repaid his debt, and to compel the pawnor to pay him,"
language certainly seeming to indicate an opinion that he has an
interest in the thing, a real right, as distinguished from a mere
personal right of detention. And Story, in his Treatise on Bail-
ments, § 327, says : " But whatever doubt may be indulged as to
the case of a factor, it has been decided," that is, in America,
" that in case of a strict pledge, if the pledgee transfers the same
to his own creditor, the latter may hold the pledge until the debt
of the original owner is discharged."
In Whitaker on Lien, published in 1812, p. 140, the law is laid
down to be that the pawnee has a special property beyond a hen.
I do not cite this as an authority of great weight, but as showing
that this was an existing opinion in England before Story wrote
his treatise. But there is a class of cases in which a person hav-
ing a limited interest in chattels, either as a hirer or lessee of them,
dealing tortiously with them, has been held to determine his spe-
cial interest in the things, so that the owner may maintain trover
as if that interest had never been created. But I think in all
DONALD V. SUCKLING. 415
these cases the act done by the party having the limited interest
was wholly inconsistent with the contract under which he had the
limited interest ; so that it must be taken from his doing it that
he had renounced the contract, which, as was said in Fenn v. Brit-
tleston, 7 Ex. at p. 160, 21 L. J. Ex. at p. 43, operates as a dis-
claimer at common law ; or as it is put by Williams, J., in Johnson
v. Stear, 15 C. B. n. s. 330, 341, 33 L. J. C. P. 130, 134, he may
be said to have violated an implied condition of the bailment.
Such is the case where a hirer of goods, who is not to have more
than the use of them, destroys them or sells them ; that being
wholly at variance with the purpose for which he holds them, that
it may well be said that he has renounced the contract by which
he held them, and so waived and abandoned the limited right
which he had under that contract. It may be a question whether
it would not have been better if it had been originally determined
that, even in such cases, the owner should bring a special action
on the case, and recover the damage which he actually sustained,
which may in such cases be very trifling, though it may be large,
instead of holding that he might bring trover, and recover the
whole value of the chattel without any allowance for the special
property. But I am not prepared to dissent from these cases,
where the act complained of is one wholly repugnant to holding,
as I think it will be found to have been in every one of the cases
in which this doctrine has been acted upon. But where the act,
though unauthorized, is not so repugnant to the contract as to
show a disclaimer, the law is otherwise. Thus, where the hirer
of a horse for two days to ride from Gravesend to Nettlested
deviated from the straight way and rode elsewhere, it was held
that the hirer had a good special property for the two days, and,
although he misbehaved by riding to another place than was in-
tended, that was to be punishable by an action on the case, and
not by seizing the gelding. Lee v. Atkinson, Yelv. 172. This
certainly was a much more equitable decision than if a rough rule
had been laid down that every deviation from the right line, how-
ever small, was to operate as a forfeiture of the right to use the
horse for which the hirer had paid ; and it may be reconciled to
the decisions already referred to, because the wrongful use, though
wrongful, was not such as to show a renunciation of the contract
with the owner of the horse. Now I think that the sub-pledging
of goods, held in security for money, before the money is due, is
416 CONVERSION.
not in general so inconsistent with the contract as to amount to
a renunciation of that contract. There may be cases in which the
pledgor has a special personal confidence in the .pawnee, and
therefore stipulates that the pledge shall be kept by him alone,
but no such terms are stated here, and I do not think that any
such term is implied by law. In general all that the pledgor re-
quires is the personal contract of the pledgee that on bringing
the money the pawn shall be given up to him, and that in the
mean time the pledgee shall be responsible for due care being
taken for its safe custody. This may very well be done though
there has been a sub-pledge ; at least, the plaintiff should try the
experiment whether, on bringing the money for which he pledged
those debentures to Simpson, he cannot get them. And the assign-
ment of the pawn for the purpose of raising money (so long, at
least, as it purports to transfer no more than the pledgee's interest
against the pledgor) in so far from being found in practice to be
inconsistent with or repugnant to the contract, that it has been
introduced into the Factors Act, and is in the civil law (and ac-
cording to Mores v. Conham, Owen, 123, in our law also) a regu-
lar incident in a pledge. If it is done too soon, or to too great an
extent, it is doubtless unlawful, but not so repugnant to the con-
tract as to be justly held equivalent to a renunciation of it.
The cases of Bloxam v. Sanders, 4 B. & C. 941, and Milgate
v. Kebble, 3 M; & Gr. at p. 103, are cases of unpaid vendors,
and therefore are not authorities directly applicable to a case of
pledge. But the position of a partially unpaid vendor, who
irregularly sells the goods which have only been partially paid
for, is very analogous to that of a pledgee ; and in Milgate v.
Kebble, 3 M. & G. at 103, Tindal, C. J., is reported to have
used language that seems to indicate that in his opinion a pledgor
could not have maintained trover any more than the vendee in
that case. <
But the latest case, and one which I think is binding on this
court, is that of Johnson v. Stear, 15 C. B. n. s. 330, 33 L. J.
C. P. at p. 130 ; and I think that the decision of the majority of
the Court of Common Pleas in that case is an authority that at
all events there remains in the pawnee an interest, not put an
end to by the unauthorized transfer, such as is inconsistent with
a right in the pawnor to recover in detinue. In that case the
goods had been pledged as a security for a bill of exchange, with
DONALD V. SUCKLING. 417
a power of sale if the bill was not paid at maturity. The
pledgee sold the goods the day before he had a right to do so.
The assignees of the bankrupt pledgor brought trover, and
sought to recover the full value of the goods without any reduc-
tion. Williams, J., thought that they were so entitled, giving,
as his reason, " that the bailment having been terminated by the
wrongful sale, the plaintiff might have resumed possession of
the goods freed from the bailment, and might have held them
rightfully when so resumed, as the absolute owner against the
whole world." 15 C. B. n. s. at p. 341 ; 33 L. J. C. P. at p. 134.
And if this was correct, the present plaintiff is entitled to judg-
ment. But the majority of the court decided that " the deposit
of the goods in question with the defendant to secure repayment
of a loan to him on a given day, with power to sell in case of
default on that day, created an interest and a right of property
in the goods which was more than a mere lien ; and the wrong-
ful act of the pawnee did not annihilate the contract between
the parties, nor the interest of the pawnee in the goods under
that contract." 15 C. B. n. s. at pp. 334, 335 ; 33 L. J. C. P. at
p. 131. This can be reconciled with the cases above cited, of
which Fenn v. Brittleston, 7 Ex. 152, 21 L. J. Ex. 41, is one,
by the distinction that the sale, though wrongful, was not so
inconsistent with the object of the contract of pledge as to
amount to a repudiation of it, though I own that I do not find
this distinction in the judgment of Johnson v. Stear. It may
be that the conclusion from these premises ought to have been
that the defendant was entitled to the verdict, on the plea of
not possessed in trover, unless the court thought fit to let
the plaintiff, on proper terms, amend by substituting a count
for the improper sale ; but this point as to the pleading does
not seem to have been presented to the Court of Common
Pleas. The fact that they differed from Williams, J., shows
that after consideration they meant to decide that the pledge
gave a special property, which still continued ; and though I
have the highest respect for the authority of Williams, J., I
think we must, in a court of co-ordinate jurisdiction, act upon
the opinion of the majority, even if I did not think, as I do,
that it puts the law on a just and convenient ground. And, as
already intimated, I think that, unless the plaintiff is entitled
27
418 CONVERSION.
to the uncontrolled possession of the things, he cannot recover
in detinue.
For these reasons, I think we should give judgment for the
defendant.
Mellor, J., read the judgment of
Cockburn, C. J. The question in this case is, whether, when
debentures have been deposited as security for the payment of a
bill of exchange, with a right on the part of the depositee to
sell or otherwise dispose of the debentures in the event of
non-payment of the bill, — in other words, as a pledge, — and
the pawnee pledges the securities to a third party on an advance
of money, the original pawnor, the bill of exchange remaining
unpaid, can treat the contract between himself and the first
pawnee as at an end, and, without either paying or tendering
the amount of the bill of exchange, for the payment of which
the security had been pledged, bring an action of detinue to
recover the thing pledged from the holder to whom it has been
transferred.
I think it unnecessary to the decision in the present case to
determine whether a party with whom an article has been
pledged as a security for the payment of money has a right to
transfer his interest in the thing pledged (subject to the right of
redemption in the pawnor) to a third party. I should certainly
hesitate to lay down the affirmative of that proposition. Such a
right in the pawnee seems quite inconsistent with the undoubted
right of the pledgor to have the thing pledged returned to him
immediately on the tender of the amount for which the pledge
was given. In some instances it may well be inferred from the
nature of the thing pledged, — as in the case of a valuable
work of art, — that the pawnor, though perfectly willing that
the article should be intrusted to the custody of the pawnee,
would not have parted with it on the terms that it should be
passed on to others and committed to the custody of strangers.
It is not, however, necessary to decide this question in the pres-
ent case. The question here is, whether the transfer of the
pledge is not only a breach of the contract on the part of the
pawnee, but operates to put an end to the contract altogether,
so as to entitle the pawnor to have back the thing pledged with-
out payment of the debt. I am of opinion that the transfer of
the pledge does not put an end to the contract, but amounts
DONALD V. SUCKLING. 419
only to a breach of contract, upon which the owner may bring
an action, — for nominal damages, if he has sustained no sub-
stantial damage ; for substantial damages, if the thing pledged
is damaged in the hands of the third party, or the owner is prej-
udiced by delay in not having the thing delivered to him on
tendering the amount for which it was pledged. We are not
dealing with a case of lien, which is merely the right to retain
possession of the chattel, and which right is immediately lost on
the possession being parted with, unless to a person who may be
considered as the agent of the party having the lien for the pur-
pose of its custody. In the contract of pledge, the pawnor
invests the pawnee with much more than the mere right of pos-
session. He invests him with a right to deal with the thing
pledged as his own, if the debt be not paid and the thing
redeemed at the appointed time.
It seems to me that the contract continues in force, and with
it the special property created by it, until the thing pledged is
redeemed or sold at the time specified. The pawnor cannot treat
the contract as at an end, until he has done that which alone
enables him to divest the pawnee of the inchoate right of prop-
erty in the thing pledged, which the contract has conferred on
him.
The view which I have taken of this case, and which I should
have arrived at independently of authority, is fully borne out
by the decision of the majority of the Court of Common Pleas
in the case of Johnson v. Stear. There goods, which had been
pledged as security for the payment of a bill of exchange, hav-
ing been sold before the falling due of the bill, the court held,
on an action of trover being brought to recover the goods, that,
although the owner was entitled to maintain an action against
the pawnee for a breach of contract in parting with the goods,
yet that the contract itself was not put an end to by the
tortious dealing with the goods by the pawnee, so as to en-
title the owner to bring an action to recover the goods as if
the contract never had existed. This decision appears to me
to be a direct authority on the present case, and to be binding
upon us. It is true that Mr. Justice Williams dissented from
the other three judges constituting the court, holding that
the contract was put an end to, and the plaintiff remitted to
his absolute right of ownership, by the conversion of the goods
420
CONVERSION.
by the pawnee. But, however I may regret to differ from that
very learned judge, I concur, for the reasons I have given, with
the majority of the Court of Common Pleas in holding that a
pawnor cannot recover back goods (and the same principle ob-
viously would apply to debentures) pledged as security for the
payment of a debt or bill of exchange, until he has paid or ten-
dered the amount of the debt.
I am therefore of opinion that our judgment should be in
favor of the defendant. Judgment for the defendant.
Historical. — By the ancient law of
England there existed four different
modes of redress for the loss of goods ;
by appeal of robbery (in which resti-
tution as well as punishment for the
felony was awarded, see note on Tres-
passes upon Property), by writ of re-
plevin, by writ of trespass, and by writ
of detinue. But these proceedings were
not adequate for relief in all cases.
The appeal of robbery availed only
when goods had been feloniously taken ;
and the writ of replevin was applicable
only in cases of distress. 3 Black. Com.
146.
The writ of trespass afforded a larger
remedy ; but this, too, fell short of giv-
ing redress in all cases. A case spe-
cially apropos to the subject of the
present note will be found in the Year-
Book of 7 Edw. 4, p. 3, pi. 9. In tres-
pass for breaking the plaintiff's close
and carrying away his goods, the de-
fendant pleaded, as to the goods, that
one K. S., long before the plaintiff had
any thing in the said goods, was pos-
sessed of them as his own, and made
the plaintiff and one Alice her execu-
tors, and after her death the said Alice
took the goods of the testatrix and be-
came sole possessed of them, and then
made the defendant her executor, and
after her death the defendant found
the said goods among other goods of
the said Alice and took them by favor
to keep for the benefit of the plaintiff,
and so still detained them. And there-
fore he contended that the plaintiff
ought to have brought a writ of deti-
nue ; and the court sustained the plea.
Needham, one of the judges, said that
the plea was a good justification to the
action, since it was lawful for an exec-
utor to take into possession all goods
found among those of his testator.
"If," said he, "a man lose a thing in
the road, and I come and find it there,
and pledge it to keep to the use of him
who lost it, and he brings an action of
trespass against me, I shall plead this
to the action ; for it was lawful for me
to take the thing to the use of him who
lost it."
The writ of trespass was based upon
a wrongful taking of the goods ; and
therefore it could not be maintained
where the defendant had come into pos-
session lawfully, notwithstanding his re-
fusal to redeliver them.
Detinue supplied this defect to some
extent. The first mention of this writ
is in the Statute of Wales (Statuium
Wallice, 12 Edw. 1), the substance of
which will be found in 2 Reeves's Hist.
Eng. Law, 13-16, Finl. ed. Among
other writs provided by this statute for
the people of Wales were a writ of
debt, and a writ of the same nature
with the substitution of the word detinet
for debet. This writ was thus : " Proe-
HISTORICAL.
421
cipe A. quod juste sine delatione red-
dat B. unum saccum lance pretii decern
marcorum, quam si injuste detinet; et
nisi fecerit," &c. lb. p. 158.
The writ in effect was nothing else
than a wit of debt for a chattel. The
probability indeed is that at first there
was no separate writ of detinue ; the
action of debt certainly having been
used where detinue afterwards was
brought. Glanvill, lib. 10, c. 3, 13;
Braeton, 102 &, " conqueror quod talis
mihi injuste detinet,'1'1 &c. ; Fleta, p.
120. The use of the word " detinet"
in such cases would naturally suggest
a distinguishing name for the writ when
applied to chattels. And such a divi-
sion of the writ would account for the
more limited application given to debt
in subsequent times.
The following are specimens of the
(oral) declarations which were made
upon writs of detinue : In the case of
a bailment, the plaintiff said, " This
showeth you A., that B. wrongfully de-
tains from him chattels to the value of
£20, and therefore wrongfully, for that
whereas the said A., on a certain day,
year, and place, bailed to the aforesaid
B. linen and woollen cloth, to keep till
he demanded it, the said A., on such a
day, year, and place, requested the said
B. to return the aforesaid chattels, yet
he was not willing yet to return them,
nor yet will," &c.
For detaining, after divorce, certain
goods given in frank-marriage, the
plaintiff declared, " This showeth you
Ellen, who was the daughter of A., who
is here, that N., who i3 there, wrong-
fully detains and will not return to her
chattels to the value of £10, and there-
fore wrongfully, for that whereas the
said A., on such a day, year, and place,
gave the aforesaid N. chattels to the
value of £10, namely (scilicet), corn
and grain, in frank-marriage with the
said Ellen, the said N., after espousals
solemnly had between them, came and
procured one Alice to demand him as
her husband by preconcert made be-
tween thein ; so that, at the suit of the
said Alice, and by the procurement of
the said N . a divorce was had between
the aforesaid N. and Ellen on such a
day, year, and place before the ordi-
nary, &c, by reason of which divorce
an action hath accrued to her to demand
the aforesaid chattels given with her in
frank-marriage in the form aforesaid ;
by reason of which the said Ellen hath
often come to the said N. and requested
him to return the aforesaid chattels,
yet he has never been willing to return
them," &c. Old Natura Brev. 40 6,
41 ; 2 Reeves's Hist. 379, Finl. ed.
Thus by means of a writ of detinue
parties had a remedy for the detention
of goods belonging to them which had
lawfully come into the hands of the de-
fendant, either by express bailment or
by finding. 3 Black. Com. 152. Nor
was it necessary that the owner had
ever been in possession of them ; and
therefore, where a sealed bag full of
muniments of title was bailed to A. to
be delivered to B., the latter could
bring detinue for its detention against
the executor of A. 39 Edw. 3, p. 17.
So, too, an heir was entitled to this
writ for an heirloom of which he had
not been in possession. 39 Edw. 3, p. 6.
But as the first object of detinue was
to recover the specific chattels, if they
could be found, it was essential (at
least from the time of Edward 3) for
the plaintiff to set out accurately in the
writ the goods detained. 39 Edw. 3,
p. 7, 8. For example, detinue of char-
ters generally was bad ; and it was
either necessary to allege that the char-
ters were contained in a box closed or
422
CONVERSION.
sealed, or the charters must have been
specially mentioned by name and de-
scription, lb. And in the latter case
the plaintiff lost the right to a capias to
which he might have resorted upon a re-
turn of nihil in the former. 42 Edw. 3,
p. 13 ; 40 Edw. 3, p. 25.
There was another objection to the
writ of detinue. The writ was, as has
been said, closely allied to debt ; and
the defendant, as in debt, was entitled
to wage his law (that is, to exculpate
himself by oath) on account of the trust
and confidence which had been reposed
in him, which it was not to be supposed
he would violate. 3 Black. Com. 152.
This, however, was not true of char-
ters specially named and described.
2 Reeves's Hist. 384, Finl. ed.
Where, then, the plaintiff could not
clearly identify the goods in his decla-
ration, and where, though he could
so identify them, he was unwilling to
give the defendant the advantage of law
wager, something else was necessary.
As we have seen in other notes, a
statute was passed in the 13th year of
Edward the First (St. Westm. 2, ch. 24)
which authorized the clerks in chancery
to frame writs in similar cases (in con-
simili casu) to those already in exist-
ence, to meet special cases for which
the existing writs were inadequate ;
thus allowing the party to sue upon his
own special case.
The first mention of a special right
of action for goods lost and found (as
the original has been translated) occurs
some nine years after the passage of
this act. 22 Edw. 1, p. 466, where we
find the reporter, as translated, saying,1
" Note, that where a thing belonging to
a man is lost [endire], he may count that
he (the finder) tortiously detains it, &c,
and tortiously for this, that whereas he
lost [endire] the said thing on such a
day, &c, he (the loser) [came] on such
a day, &c, and found it in the house
of such an one and told him, &c, and
prayed him to restore the thing, but that
he would not restore it, &c, to his dam-
age, &c. ; and if he will, &c. In this case
the demandant must prove by his law
(his own hand the twelfth) that he lost
\_endire~] the thing," "en ceo cas yl co-
vent kel demande preve ke la chose ly fut
endire, ow sa dusse mayn." (The trans-
lation is Mr. Horwood's.)
This, it will be observed, is not
exactly the allegation afterwards made
in the action of trover, where the state-
ment is that the plaintiff lost and the
defendant found the chattel ; the alle-
gation, supra, being that the plaintiff
found as well as lost.
The form of the allegation suggests
some resemblance to the proceeding for
the Vindication of Movables (that is,
for the recovery of goods lost or stolen)
in the Salic law. See La Procedure de
la Lex Salica, par R. Sohm ; an outline
ot which work will be found in the
North American Review for April,
1874, pp. 416-425. The Salic pro-
ceeding, however, was for the recovery
of the specific goods, somewhat in this
respect like the appeal of robbery.5
The above form of declaration would
apply both to goods found by the de-
fendant and to goods stolen by him;
1 There is nothing to show whether this note was or was not of the year of the cases
reported, but it could hardly have been before.
2 In the Salic proceeding, when a man's goods were missing he summoned his neighbors
(somewhat as in the early English and Norman hue-and-cry) to follow with him the tracks
of the supposed thief, and when he came upon the property in the search — which could be
made anywhere — he was to put his hand upon it (mitlat manum super eum), and the one in
possession of it was then required either to give it up or to contest the right in court. Sohm's
Procedure, 41-45.
HISTORICAL.
423
but it does not appear to have been
adopted in any of the reported cases.
Indeed, there is a long 7iiatus now be-
tween the reporter's statement, supra,
and the first reported case of an action
(not in detinue) for the loss of goods
which had lawfully come to the hands
of the defendant. We have been una-
ble to find any cases of the kind until in
the reign of Edward the Fourth ; deti-
nue being the remedy always pursued
until this time. In this reign several
cases of the kind occur ; all being called
actions on the case. Thus, it was held
that an action on the case lay against
a bailiff for wasting the goods of the
owner, though he had not received them
directly from him: 12 Edw. 4, p. 13;
also that such an action lay against one
who had hired a horse to ride to Ever-
wike, and had ridden it to Carlisle : 21
Edw. 4, p. 76 ; also that it lay against
one who had hired a horse to ride to
Everwike, and had ridden it so fast
that it could not be used for many days
after ; also that it lay against one who
had killed a horse which had been bailed
to him. (The last two cases are given
in the Table (Index) ; but the references
are incorrect.)
All of the above cases, it will be
seen, are what have since been or might
be called actions of trover ; but the pe-
culiar form of the declaration in trover,
by which that action received its name,
does not appear in cases reported until
some sixty years later ; until, in fact, the
plaintiff's actual case was that of goods
lost by him and found by the defendant.
Such a case having occurred, the plain-
tiff availed himself of the advantage
afforded in stating his own special case,
instead of bringing detinue ; and this
form of action then came to be called
trover.
The following cases appear in the
reigns of Henry the Eighth and Edward
the Sixth. Action upon the case for
that the defendant found the good* of
the plaintiff, and delivered them to per-
sons unknown ; and it was held no plea
that he did not deliver them in manner
and form, without saying " not guilty,"
where the thing rests in doing. And
the report goes on to say that if the
action were, that whereas the plaintiff
was possessed, &c, as of his own proper
goods, and the defendant found them
and converted them to his own use, it
was no plea that the plaintiff was not
possessed as of his own proper goods,
but he should say "not guilty'' to the
misdemeanor, and give it in evidence
that they were not the goods of the
plaintiff. Brooke's New Cases, 62,
pi. 193 ; 33 Hen. 8, B. The first plea
in this ease (non-delivery) suggests that
counsel still supposed this action to be
closely allied to detinue, where the
common plea was ne bailla pas, or
(when the plaintiff did not declare for
a specialty) navoit pas de son bailie.
3 Edw. 2, p. 78.
In another action on the case, of the
next year, it was alleged that the goods
of the plaintiff came to the hands of
the defendant and he wasted them ; to
which the defendant pleaded that they
did not come to his hands. This was
held a good plea, and the defendant
gave in evidence that they were not the
proper goods of the plaintiff. Brooke's
N. C. 73, pi. 231 ; 34 Hen. 8, B.
In the 4th year of Edward G the
plaintiff declared in an action on the
case that whereas he was possessed of
such goods, as of his own proper goods,
and lost them, and the defendant found
them and converted them to his own
use. The defendant pleaded that the
plaintiff pledged them to him for 101.,
by reason of which he detained them
424
CONVERSION.
for the -said 101., as it was lawful for
him, without this, that he converted
them to his own use ; which was held
a good plea. But others said that he
must plead " not guilty," and give this
matter in evidence for the detainer.
Brooke's N. C. 122, pi. 404.
This form of declaring, that the plain-
tiff lost and the defendant found the
goods, came in the course of time to
be allowed (equally with detinue, and
where detinue would not lie) in all
cases of conversion ; the allegation of
the loss and finding being now consid-
ered as a fiction, and not traversable,
and the conversion the substance of
the action. 3 Black. Com. 153; Stran-
ham's Case, 1 Croke, Eliz. 98. The
newer action grew more and more in
favor ; and thus in the progress of
trover came the decline of detinue.
But the profession seem to have for-
gotten or neglected the cases of the time
of Edward 4, if not later ones ; and the
practice of inserting the useless fiction
of trover prevailed until comparatively
recent times. We have now, however,
reached the sensible method of the pro-
fession in the fifteenth century.
In the old writs of detinue, as in
other writs generally, the time and
place of the tort was always alleged.
In the reign of Elizabeth it came to be
questioned by counsel whether the alle-
gation were necessary. In Hubbard's
Case, 1 Cro. Eliz. 78, it was moved in
arrest of judgment in trover that the
plaintiff had not alleged the place of
the conversion ; and the bill was abated.
So, too, it was said in Stranham's Case,
ib. 98, that it had been adjudged in
Leake's Case that the time and place
were to be alleged, for they were mate-
rial ; and this decision was now followed,
and the bill abated after verdict.
But this doctrine was a few years
afterwards overruled, after much dis-
cussion by the judges. Rutland v.
Rutland, ib. 377. This was an action
by an executor for a conversion of the
goods of the testator ; and the doubt
was whether the time of the conversion
should not be alleged so as to show if
the action came within the equity of
the St. 4, Edw. 3, c. 7, allowing actions
for goods converted in the time of the
testator, or was brought at common
law. " It is doubtful," said two of the
judges, " in whose right it is brought
for want of the time certainly ex-
pressed." However, upon the pro-
duction of a decision against the
necessity of the allegation in such a
case, judgment was given for the plain-
tiff. This case was followed in the
next reign (Wilson v. Chambers, Cro.
Car. 262), and became settled law.
There was also considerable discus-
sion in the cases of trover about this
time as to whether a refusal to deliver
the goods upon^eqilest was a conver-
sion. In East v. Newman, Gouldsb.
152 (temp.'EMz.), the judges thought it
was ; but in the case of The Chancellor,
10 Coke, 53 6, 56 6, Lord Coke laid
down the rule as it now prevails, that
the refusal is only evidence of conver-
sion. (This point is considered infra.)
We turn now to the existing law.
Possession and Properly. — It is well
settled that it is essential to a right of
action in trover that the plaintiff should
have, as against the defendant, either
the possession or the right of posses-
sion of the chattel. Gordon v. Har-
per, 7 T. R. 9; Owen v. Knight, 4
Bing. N. C. 54 ; Pyne v. Dor, 1 T. R.
55; Bradley v. Copley, 1 Com. B. 685;
Winship i>. Neale, 10 Gray, 382. It
was accordingly held in Gordon v.
Harper, that a landlord could not, dur-
ing the term, maintain trover against a
POSSESSION AND PROPERTY.
425
sheriff who had wrongfully levied upon
the goods of his tenant, since lie had
not possession or the right of posses-
sion. Other cases of the same char-
acter are considered infra, under What
constitutes Conversion.
It is sometimes said that this action
requires a right of property also in the
plaintiff. Thus, in Cooper r. Chitty,
1 Burr. 20, 31, Lord Mansfield says
that one of the things " necessary to
be proved to entitle the plaintiff to re-
cover in this kind of action is property
in the plaintiff." And in Owen v.
Knight, i Bing. N. C. 54, 57, Tindal,
C. J., says, " The action of trover only
lies where the plaintiff has the right to
possession as well as a legal property
in the subject of the suit." But these
and the like statements in the books
are made in cases where the plaintiff
had in fact property in the chattel ; and
they generally mean only that in such
cases the plaintiff must also have the
right of possesion of the goods. But
see Tuthill v. Wheeler, 6 Barb. 362.
And when it is said that the plain-
tiff must have an absolute or special
property in the goods (1 Chitty, Plead-
ing, 143. 119), the latter term is used
to denote the possession either of one
who has a qualified interest, or of one
who has only the bare possession, since
this of itself gives him a right to the
property as to all persons except the
owner. 1 Chitty, 151, 169.
That possession is sufficient for the
plaintiff appears from the principal case,
Armory v. Delamirie, which decides
that the finder of a chattel may main-
tain trover against any one except the
owner who deprives him of his posses-
sion. And the same appears from
Nicolls u. Bastard, 2 Cromp., M. & R.
659, which holds that a mere gratuitous
bailee may sue in trover for a wrongful
dispossession of the goods by a stranger.
Indeed, it is a general doctrine by the
weight of authority that any possession,
even that of " wrong-doer, is sufficient
for the plaintiff as against every one
but the rightful owner, entitled to pos-
session. Jefferies v. Great Western
By. Co. , 5 El. & B. 802 ; Wilbraham v.
Snow, 2 Wms. Saund. 47 f; Northam
v. Bowden, 11 Ex. 70; Buckley v.
Gross, 3 Best. & S. 566 ; Hubbard v.
Lyman, 8 Allen, 520; Shaw v. Kaler,
106 Mass. 448. But see cases cited, 1
Smith's L. C. 479, 480 (5th Am. ed.).
A fortiori, it is a conversion to take
property out of the possession of the
owner without authority, though it be
delivered to one with whom the owner
is negotiating for its purchase. Cough-
lin v. Ball, 4 Allen, 334.
And trover may also be maintained
sometimes against one who has not'
taken possession of the goods; as where
a horse is let to A. and delivered by
the owner to B. upon the credit of. A.,
and B. drives the horse to death by
the consent and aid of A. driving an-
other horse nearby. Banfield v. Whip-
ple, 10 Allen, 27. See McPartland
j;. Read, 11 Allen, 231. And the fact
that he took possession as agent of
another is not material. Edgerly v.
Whalan, 106 Mass. 307.
A party rightfully in possession may
also in some cases maintain trover
against the owner. In Roberts v.
Wyatt, 2 Taunt. 268, it was held that
the plaintiff, who was entitled to the
temporary possession and property of
a written abstract of title, and had
delivered it back to the owner for a
particular purpose, could maintain
trover for it after that purpose was
satisfied and during the continuance of
the plaintiff's temporary right. But in
such cases the damages, it would seem,
426
CONVERSION.
must be confined to the value of the
plaintiff's interest.
And in an action against a stranger
by one having merely the possession of
goods, with no right of possession
against the owner, the defendant, ac-
cording to the better opinion, cannot
even set up the right of the owner (the
jus tertii) as a defence ; unless it be
done under his authority or under a
claim already asserted against the de-
fendant by him. Jefferies v. Great
Western Ry. Co., 5 El. & B. 802. See
Thorne v. Tilbury, 3 Hurl. & N. 534 ;
Biddle v. Bond, 34 Law J. C. B. 137 ;
Cheesman v. Exall, 6 Ex. 341, in which
the right to set up the jus tertii arose
between bailor and bailee. But see
Rotan v. Fletcher, 15 Johns. 207 ; Syl-
vester v. Girard, 4 Rawle, 185 ; Grubb
v. Guilford, 4 Watts, 223 ; and cases
cited in 1 Smith's L. C. 479, 480 (5th
Am. ed.).
In Jefferies v. Great Western Ry. Co.
the defendants, having dispossessed the
plaintiff of goods which had been in
his possession for some time, set up, in
an action for conversion, the ownership
of a third person ; but without them-
selves asserting any claim under him.
"I am of opinion," said Lord Camp-
bell, C. J., "that the law is, that a
person possessed of goods as his prop-
erty has a good title as against every
stranger, and that one who takes them
from him, having no title in himself, is
a wrong-doer, and cannot defend him-
self by showing that there was title in
some third person ; for against a wrong-
doer possession is a title."
The principle is, that the defendant
must show in himself a better title than
the plaintiff has. Hubbard v. Lyman,
8 Allen, 520; Burke v. Savage, 13
Allen, 408 ; Landon v. Emmons, 97
Mass. 37.
And it is just that the wrong-doer
should recover of one who has disturbed
his possession without right, since the
wrong-doer is himself liable to the
owner ; and he should have recourse to
the defendant, for whose act he is
responsible, for a fund with which to
meet that liability. See Cutts v. Spring,
ante, p. 341.
Whether the place in which goods
are found has any bearing upon the
finder's right of possession has been
under consideration in several cases.
In Mathews v. Harsell, 1 E. D. Smith,
393, a servant had found certain notes
in her master's house, and with her
master's consent was held entitled to
maintain trover against a wrong-doer
for converting them. But the question
was left open whether she could have
claimed the notes against her master,
the court, however, inclining to think
that she could not.
In Bridges v. Hawkesworth, 21 Law
J. Q. B. 75, s. c. 15 Jur. 1079, 7
Eng. Law & Eq. 424, the plaintiff,
while in the defendant's shop on busi-
ness, having picked up from the floor
of the shop a parcel containing bank-
notes, handed them to the defendant to
keep till the owner should claim them.
They were advertised by the defendant ;
but no one appearing to claim them,
and three years having elapsed, the
plaintiff requested the defendant to
return them, tendering the costs of the
advertisements and offering an indem-
nity. Upon the defendant's refusal,
an action was brought for conversion ;
and the plaintiff' was held entitled to
recover. Patteson, J., in delivering
judgment, said : " It was well asked on
the argument, If the defendant has the
right, when did it accrue to him? If
at all, it must have been antecedent
to the finding by the plaintiff, for
POSSESSION AND PROPERTY.
427
that finding could not give the de-
fendant any right. If the notes had
been accidentally kicked into the
street, and there found by some one
passing by, could it be contended that
the defendant was entitled to them
from the mere fact of their being orig-
inally dropped in his shop? If the
discovery had never been communicated
to the defendant, could the real owner
have had any cause of action against
him because they were found in his
house? Certainly not. The notes
never were in the custody of the defend-
ant, nor within the protection of his
house, before they were found, as they
would have been had they been inten-
tionally deposited there ; and the de-
fendant has come under no responsi-
bility, except from the communication
made to him by the plaintiff, the finder,
and the steps taken by way of adver-
tisement. These steps were really
taken by the defendant as the agent of
the plaintiff: and he has been offered
an indemnity, the sufficiency of which
is not disputed. We find, therefore,
no circumstances in this case to take
it out of the general rule of law, that
the finder of a lost article is entitled
to it as against all persons except
the real owner ; and we think that the
rule must prevail, and that the learned
judge was mistaken in holding that the
place in which they were found makes
any legal difference.''
In Massachusetts, while the doctrine
of Bridges v. Hawkesworth is approved,
a distinction has been taken between
such a case (where the chattel was
found on the floor of the store) and the
case of things found upon a table or
counter of the shop. McAvoy v.
Medina, 11 Allen, 548.
In the case referred to the plaintiff
saw, lying upon a table in a barber
shop, a pocket-book, containing money,
which had been accidentally left there
by another, took it up, called the atten-
tion of the proprietor to it, and then
handed it to him, telling him to keep it,
and, if the owner should come, to give
it to him ; otherwise to advertise it,
which the defendant promised to do.
No one having called for the money,
the plaintiff claimed it, but the defend-
ant refused to give it to him ; and the
court sustained him. "This property,"
said the court, "is not, under the cir-
cumstances, to be treated as lost prop-
erty iu that sense in which a finder
has a valid claim to hold the same until
called for by the true owner. This
property was voluntarily placed upon a
table in the defendant's shop by a cus-
tomer of his who accidentally left the
same there, and has never called for it.
The plaintiff also came there as a cus-
tomer, and first saw the same and took
it up from the table. The plaintiff did
not by this acquire the right to take the
property from the shop ; but it was
rather the duty of the defendant, when
the fact became thus known to him, to
use reasonable care for the safe keep-
ing of the same until the owner should
call for it." The case was said to re-
semble Lawrence v. State, 1 Humph.
228, which was an indictment for the
larceny of goods found under similar
circumstances ; the court holding that
to place a pocket-book upon a table
and to forget to take it away was not
to lose it, in the sense in which the
authorities referred to speak of lost
property. See also, as to larceny of
goods found, Merry v. Green, 7 Mees.
& W. 623; Regina v. Peters, 1 Car. &
K. 245; Regina v. Mole, ib. 417; Cart-
wright v. Green, 8 Ves. 405; Florence
SewingCo. v. Warford, 1 Sweeney, 433.
In other cases, as between the finder
428
CONVERSION.
and one who claims the chattel as
owner, it is clear that the former may-
retain the article a reasonable length of
time for the purpose of satisfying him-
self whether the claimant be in fact
the owner. Isaack v. Clarke, 1 Rolle,
130 ; Clark v. Chamberlain, 2 Mees. &
W.78.
See also, upon the rights of a finder,
Symmes v. Frazier, 6 Mass. 344 ; Went-
worth v. Day, 3 Met. 352 ; Kincaid v.
Eaton, 98 Mass. 139 ; Haslem v. Lock-
wood, 37 Conn. 500; McLaughlin v.
Waite, 9 Cow. 670; s. c. 5 Wend.
404. It is to be observed of the last
case that the head-note in 9 Cowen is
misleading. The point decided is more
correctly given in 5 Wendell, where
the judgment was affirmed.
. What constitutes Conversion, (a.) As-
sertion of Title. — It may be laid down
as a general principle that the assertion
of a title to or an act of dominion over
personal property, inconsistent with the
right of the owner, is a conversion, and
renders the wrong-doer liable to an
action of trover.
To assert a title to the property of
another is a clear case of conversion ;
but what amounts to an act of dominion
is not in every case so easily deter-
mined. It is obvious, however, that the
act must be equivalent in character to
an assertion of title. An examination
of the cases will serve to define the
idea.
There are two classes of acts of
dominion : first, where the defendant
appropriates to himself the goods of
the plaintiff; secondly, where he inten-
tionally deprives the plaintiff of their
use without appropriating them to him-
self. Simmons v. Lillystone, 8 Ex.
431; McPartland v. Read, 11 Allen,
231.
(6.) Sale. — The most common illus-
tration of an act of dominion of the first
class is the case of a sale of the chattel,
made without authority of the owner.
Every sale without restriction implies
an assertion of title ; and, if the party
have no title or authority to sell, the act
renders him liable to the true owner to
an action for conversion. Gilman o.
Hill, 36 N. H. 311 ; Clark v. Whitaker,
19 Conn. 319; Webber v. Davis, 44
Maine, 147 ; Harris v. Saunders, 2
Strobh. Eq. 370, note. This is equally
true of a wrongful sale of property by
an officer : Cooper v. Chitty, 1 Burr.
20; Grainger v. Hill, 4 Bing. N. C.
221 ; and so of an excessive sale. Al-
dred v. Constable, 6 Q. B. 381. See
also Lancashire Waggon Co. v. Eitz-
hugh, 6 Hurl. & 1ST. 502. So of the party
at whose instance the officer makes
the wrongful sale. Billiter v. Young, 7
El. & B. 1. And the purchaser is also
guilty of conversion, if he takes a de-
livery of the property and claims it
under the sale : Hyde v. Noble, 13 N.
H. 491; Clark v. Rideout, 39 N. H.
238 ; Clark v. Wilson, 103 Mass. 219 ;
whether such purchaser refuse to restore
the goods, or before a demand sell the
property. Harris v. Saunders, supra;
Carter v. Kingman, 103 Mass. 517.
And this principle, that the sale of
property is an act of dominion so as to
render the vendor liable for conversion
when he had no right to sell, applies
equally whether the vendor knew or did
not know the true state of the title. In
Harris v. Saunders an action of trover
was brought for a slave whom the de-
fendant had bought from one who had
no title, and had then sold him to one
who had carried the slave beyond the
reach of the plaintiff, the owner. The
defence was that both the purchase and
sale had been made bona fide, without
a knowledge of the plaintiff's title ; but
WHAT CONSTITUTES CONVERSION.
429
the plaintiff was held entitled to re-
cover. "The argument is," said the
court, "that inasmuch as the defendant
was not aware of the plaintiff's title, he
is not liable after the sale. It is not
denied that he would be liable if he had
retained the property and refused to
give it up. Can the sale make any dif-
ference, when he thereby made prop-
erty of him, and has the proceeds in his
pocket ? The sale was an act by which
the plaintiff is wholly deprived of his
property; and it was not the less his
property because the defendant was
not aware of his title and purchased of
another." And Cooper u. Chitty, 1
Burr. 20, was cited as authority for the
position.
In McCombie v. Davies, 6 East, 538,
referred to in the principal case, Bristol
17. Burt, the property of the plaintiff had
been taken by the defendant in assign-
ment by way of pledge from a broker
who had purchased it (while lying in the
king's warehouse) in his own name for
the plaintiff; and the defendant refused
to give an order for its delivery to the
plaintiff, until he had been paid the
money advanced to the broker, on
the ground of his ignorance of the
plaintiff's title when he took the as-
signment. At the trial at nisi prius
Lord Ellenborough had nonsuited the
plaintiff, on the supposition that the
mere refusal to give a delivery order
was not a conversion ; not conceiving
that the not doing of an act could make
a party liable in trover. But the non-
suit was set aside, Lord Ellenborough
now resting the case upon the broad
principle that the assuming the prop-
erty in and right of disposing of an-
other man's goods was a conversion.
" And certainly," said he, " a man is
guilty of a conversion who takes my
property by assignment from another
who has no authority to dispose of it;
for what is that but assisting that other
in carrying his wrongful act into
effect?"
See also Buckmaster v. Mower, 21
Vt. 204 ; Crocker v. Gullifer, 44 Maine,
491; Sargent v. Gile, 8 N. H. 325;
Bailey v. Colby, 34 N. H. 29; Williams
v. Merle, 11 Wend. 80 ; Coffey v. Wil-
kerson, 1 Met. (Ky.) 101; Carter v.
Kingman, 103 Mass. 517.
Fraud, however, only renders a con-
tract voidable, at the election of the
injured party ; and if the defrauded
vendor of goods do not elect to dis-
affirm the sale before the rights of third
persons have bona fide intervened, he
cannot maintain trover ; that is, the
vendor cannot claim the goods from
subsequent bona fide purchasers. White
v. Garden, 10 Com. B. 927.
(c.) Disposal of Qualified Interest. —
A person who has an assignable inter-
est in a chattel may dispose of it to
another without being guilty of a con-
version, though no permission was
granted by the party under whom he
holds ; unless, indeed, he exercise a
right of absolute ownership over the
property. Bailey v. Colby, 34 N. H.
29. See Everett v. Salters, 15 Wend.
474; s. c. 20 Wend. 267 ; Holbrook v.
Wight, 24 Wend. 169.
But not every interest is assignable.
For example, in many cases of bailment
the objects to be effected by that rela-
tion forbid that the bailee should have
an assignable interest. Such is the
case where the bailment is made upon
a personal trust in the character of the
bailee. Such is the case, too, where
the bailee has a mere lien, as was said
in the principal case, Donald v. Suck-
ling; and such is the case, as we have
seen, where the bailment is at will. In
such cases an attempt by the bailee to
430
CONVERSION.
assign any interest in the property if he
transfer his possession, puts an end to
the bailment, ipso facto. The assignee
consequently acquires no title, and be-
comes himself liable for conversion in
case of his refusal to deliver the goods
to the rightful owner. Bailey v. Colby,
supra.
There is, however, a large class of
bailments where the trust is accompanied
with other incidents than those pertain-
ing to a simple bailment, and where
there is no element of personal trust
and confidence, and none of the char-
acteristics of an estate at will ; and in
this class it is consistent to hold that the
bailee has assignable interest. Such are
cases of pledge or pawn, and the like.
Bailey v. Colby, supra. There can be
no conversion in assigning an interest
of this kind, if the assignee merely
claims to stand in the situation of the
assignor, because the latter, having ex-
ercised no right of dominion over the
property, but having dealt only with his
own interest, has not divested himself
of his right of possession ; and while the
right of possession is in another, the
owner cannot maintain trover.
These are clear cases ; but supposing,
in the case of a bailment, the bailee have
an assignable interest, and attempt to
sell the absolute property in the chat-
tel, what is the effect ? If the party be
strictly a bailee (other than a pledgee,
as to which see infra'), it would seem,
from the principles above stated, that
the act must always amount to a con-
version. The act would be an assertion
of dominion not pertaining to the bailee;
and this would defeat his right of pos-
session and let in the rights of the
bailor. But if, on the other hand, the
party be something more than a bailee
and have the legal title to the goods,
though subject to defeat by the per-
formance of a condition subsequent by
the party from whom he derives title
(as in the case of a sale with liberty to
repurchase), his alienation of it will not
be a conversion.
It is difficult, however, to state just
where the line is. In Vincent v. Cornell,
13 Pick. 294, the plaintiff exchanged
oxen in February with W. C, under an
agreement that in May he should pay
the plaintiff a certain sum of money, the
difference in value in favor of the plain-
tiff's oxen, by » certain day; and a
written agreement was made, in order
to secure the plaintiff, in which it was
acknowledged that W. C. had received
the oxen " principally to keep for the
plaintiff" till May, when they were to
be returned ; or, if the money should be
paid when due, the plaintiff was to re-
lease his right to the oxen. Before pay-
ment became due W. C. sold them to
the defendant, and the defendant sold
them to T. ; whereupon, after the money
became due, the plaintiff brought trover.
The court held the action not maintain-
able. The agreement between W. C.
and the plaintiff, it was said, amounted
to a conditional sale; and W. C. had
therefore a clear right to dispose of the
possession with his right, such as it was,
to the defendant. The plaintiff at that
time had no possession or right of pos-
session ; and the taking by the defend-
ant was not tortious.
But this case has not been deemed
satisfactory. In Sargent v. Gile, 8 N. H.
325, it appeared that the plaintiffs had
delivered furniture to one Wilson upon
an agreement that he should keep it
six months, and, if within that time he
should pay for it, he was to have it at
cost ; otherwise he was to pay twenty-
five per cent for its use. Two or three
days after receiving the furniture Wil-
son sold it to the defendants, who had
WHAT CONSTITUTES CONVERSION.
431
no notice of the agreement mentioned ;
and this was held a conversion.
Mr. Justice Parker, speaking for the
court, doubted the above case of Vin-
cent v. Cornell, and referred to San-
born v. Colman, 6 N. H. 14. where the
plaintiff, being owner of a mare, had
let her for hire to one Brown for four
weeks, who during the first week sold
her to the defendant; in which case
trover was held proper. The learned
justice held that the fact that Wilson
had a right to pay for the furniture
within the six months did not change
the nature of the case. Wilson "was
a bailee for hire for a certain time,"
said the learned judge, "with a right
to purchase, if within that time he paid
the price. This he had not done when
he sold ; and the contract by which he
gained the right to purchase conferred
on him no right to sell, nor in any man-
ner enlarged his right as bailee. The
goods still remained the property of the
plaintiffs. When, therefore, he under-
took to sell, and delivered the goods to
others, in violation of any right which
he then had, or, for aught which ap-
peared, ever would have, he forfeited
the right to hold and use, and waived
all benefit of it, having voluntarily de-
prived himself of that right; and the
defendants could gain no right of pos-
session, because Wilson had no power to
communicate any such right to them."
To the same effect are Whipple v.
Kilpatrick, 19 Maine, 427 ; Crocker v.
Gullifer, 44 Maine, 491 ; Hill v. Free-
man, 3 Cush. 257 ; Coggill v. Hartford
& N. H. R. Co., 3 Gray, 547 ; Sargent
v. Metcalf, 5 Gray, 306; Burbank v.
Crooker, 7 Gray, 158; Deshon v. Bige-
low, 8 Gray, 159, clearly establishing
the rule that the title does not pass in
a conditional sale. And see Moss v.
Sweet, 16 Q. B. 493, in which it is held
that upon a bargain to " sell or return,"
the property does pass, after a reason-
able length of time has elapsed suffi-
cient to show an intention to retain the
property. See also Meldrum v. Snow,
9 Pick. 441 ; Eldridge v. Benson, 7
Cush. 483 ; Blood v. Palmer, 2 Fairf.
414; Neate v. Ball, 2 East, 117.
As to Pain v. Whittaker, Ryan
& M. 99, referred to as authority in
Vincent v. Cornell, the fact is pointed
out by the New Hampshire court that
no wrongful act had been done by the
party holding the qualified interest, a
bailee. The case was trover for a piano,
which had been let by the plaintiffs to
one Evans at a monthly rent. During
the term it was seized by the defend-
ants, sheriffs, on execution, and sold,
against the protest of the plaintiffs.
The right of action was properly de-
nied; for the sheriffs could sell no more
than the interest of Evans, and it did
not appear that Evans had participated
and attempted to dispose of the abso-
lute property in the instrument. And
even if Evans had been guilty of such
an act, it is difficult to see how it could
have affected the sheriffs ; though the
purchasers would doubtless have been
liable in trover.
Pain v. Whittaker was decided upon
the authority of Gordon v. Harper, 7
T. R. 9, a similar case. In that case
the seizure of the goods by the defend-
ant was itself wrongful ; the execution
being levied upon the plaintiff's goods,
held under lease by B., as the prop-
erty of another. But it was held that
trover could not be maintained. " The
true question is,'' said Lord Kenyon,
"whether, when a person has leased
goods in a house to another for a cer-
tain time, whereby he parts with the
fight of possession during the term to
the tenant, and has only a reversionary
432
CONVERSION.
interest, he can, notwithstanding, re-
cover the value of the whole property,
pending the existence of the term, in an
action of trover. The very statement
of the proposition affords an answer to
it. . . . The cases which have been put
at the bar do not apply. The one on
which the greatest stress was laid was
that of a tenant for years of land
whereon timber is cut down, in which
case it was truly said that the owner of
the inheritance might maintain trover
for such timber, notwithstanding the
lease. But it must be remembered that
the only right of the tenant is to the
shade of the tree when growing ; and
by the very act of felling, it his right is
absolutely determined. And even then
the property does not vest in his im-
mediate landlord ; for if he has only
an estate for life it will go over to the
owner of the inheritance. Here, how-
ever, the tenant's right of possession
during the term cannot be divested by
any wrongful act; nor can it thereby
be revested in the landlord."
Mr. Justice Grose said that the
common form of pleading was decisive
of the case ; for the plaintiff declares
that, being possessed, he lost the goods,
and he is bound to show either an
actual or a virtual possession, which
the plaintiff here could not do. And
this observation was said by Mr. Jus-
tice Lawrence to be very material.
It seems clear, therefore, that this
class of cases does not support the doc-
trine of the court in Vincent v. Cornell ;
the tenant or bailee having himself done
no wrongful act by which he loses his
right of possession.
The question in cases like Vincent v.
Cornell, it is to be observed, is entirely
one of title; and it matters not, if the
title has passed from the plaintiff to the
alleged bailee, that the latter renders
himself liable to an action for breach of
contract in making the sale. For ex-
ample : in the case of a sale upon an
agreement that the vendor may re-
purchase, within a certain time, the
title having passed, the party may re-
sell within the time ; and neither he nor
the purchaser will be liable for conver-
sion, though the original owner duly ten-
der the price of the goods under the
agreement for the repurchase. See Hills
v. Snell, 104 Mass. 173, 177. Clearly,
where the owner has given to another,
or permitted him to have, control of
property, the latter cannot be held
responsible for its conversion if he
merely makes such use of it, or exer-
cises such dominion over it, as is war-
ranted by the authority thus given. lb ;
Strickland v. Barrett, 20 Pick. 415;
BurbanVa. Crooker, 7 Gray, 158.
In a recent English case an attempt
was made to establish a distinction in
this particular in favor of an unpaid
vendor retaining the custody of the
goods. The case was an action for the
alleged conversion of certain sheep
which the plaintiff had bought of the
defendant on credit, leaving them in
the custody of the vendor. Before any
default on the part of the plaintiff, the
defendant resold the sheep; and it was
held that this was a conversion. The
court were all of opinion that the at-
tempted distinction was not sustain-
able. " It appears to us," said
Bramwell, B., "that where there has
been no default on the part of the
vendee, if the vendor is guilty of ah
act of conversion of the goods sold, the
vendee is entitled to maintain an action
against him for that conversion, and
that he has such a right of property
and possession as is necessary to entitle
a party to maintain such action. In
this case the sheep remained in the pos-
WHAT CONSTITUTES CONVERSION.
433
tession of the vendor, not qua vendor,
but as the agent of the vendee, the
plaintiff, and for his benefit." Cuinery
v. Viall, 5 Hurl. & N. 288.
The court referred to a much
stronger case, Martindale v. Smith,
1 Q. B. 889, as showing that if a day
for payment had been named, and the
plaintiff h.id not paid upon that day, but
had afterwards and before the conver-
sion tendered the money, the action
would have been maintainable.
Whether the court in Chinery v.
Viall supposed that there might in some
cases be a conversion without a right
of action in trover is not quite clear ;
though this seems to be the effect of the
decision in Milgate v. Kebble, 3 Man.
& G. 100, — a case which Mr. Baron
Bramwell distinguished, and apparently
disapproved.
Milgate v. Kebble was an action of
trover for the alleged conversion of one
hundred bushels of apples. It appeared
on the trial that the defendant, on the
11th of September, 1839, had sold all his
fruit to the plaintiff for £38 ; the latter to
pay £10 on the following Monday, £10
on the next Monday, and the remainder
before he took away any of the prop-
erty. The plaintiff, having paid £33,
gathered the apples on the 1st of Octo-
ber, and placed them under lock and
key upon the defendant's premises in a
kiln, within an out-house, the defendant
retaining the key to the latter, but giv-
ing the plaintiff the key to the kiln. On
the 27th of December the defendant
gave the plaintiff notice to pay for the
apples and take them away ; but not
having done so, the defendant, about a
month afterwards, sold the property.
Though the jury had found that a rea-
sonable length of time had not elapsed
after the notice and before the sale, it
was held that the action could not be
maintained, on the ground of a want of
possession in the plaintiff. The fact
that the defendant had a key to the
outer enclosure was deemed unimpor-
tant by Tindal, C. J.
It was not denied that there had been
a conversion. In the course of the
argument, Talfourd, for the plaintiff,
observed that the court could not say
that the defendant had a right to enter
the kiln, — that is, that he still had the
control and disposition of the apples; to
which Erskine, J., assenting, said that
if the defendant could enter, there would
be no conversion ; thus admitting that
there had been a conversion. But the
pleadings and judgment settle the point,
at all events. There were two pleas, one
of not guilty, and the other that the plain-
tiff was not possessed; and, instead of
ordering a nonsuit, Talfourd prayed
that the verdict migbt be entered for
the plaintiff on the first issue, and for
the defendant on the second, and it was
so directed.
This case was decided upon the au-
thority of Bloxam v. Sanders, 4 Barn.
& C. 941, which is often cited. In that
case, the defendants, hop-merchants,
had, on several days in August, sold to
one Saxby, of whom the plaintiffs were
assignees in bankruptcy, various parcels
of hops. Part of them were weighed,
and an account of the weights, together
with samples, delivered to Saxby. The
usual time of payment in the trade was
the second Saturday after the purchase.
Saxby did not pay for the hops at the
usual time, whereupon the defendants
gave notice that unless they were paid
lor by a certain day they would be re-
sold. The hops were not paid for ; and
the defendants resold part of them with
the assent of Saxby, and after Saxby's
bankruptcy sold the rest without his as-
sent or that of his assignees. The de-
28
434
CONVERSION.
fendants, having made demand for the
hops, brought trover ; but it was held
that they could not recover, on the
ground that they had no right of pos-
session.
The court said that in such cases the
seller had a lien upon the goods, and,
consequently, a right of possession ;
and, therefore, that the buyer, having
no right of possession, could not main-
tain trover. This would also imply
that trover cannot always be brought
for an act of conversion.
But it is to be observed of this case
that there was, in fact, no conversion
or act of dominion in the transaction ;
for there was a usage of the trade that
the goods should be paid for within a
certain time, and Saxby had made de-
fault. And, though the jury had found
that the defendants had not rescinded
the sale, they had a right to rescind,
which Saxby had recognized by his as-
sent to the first sale, and which they had
merely again availed themselves of (de-
spite the unintelligible verdict of the
jury) after the bankruptcy. And the
default of the purchaser was one of the
grounds taken in Chinery v. Viall for
distinguishing Milgate v. Kebble. In
Wilmshurst v. Bowker, 5 Bing. N. C.
541, s. c. 7 Scott, 561, also, the plain-
tiffs were in default.
There is, perhaps, no express deci-
sion, made upon argument, that an act
of conversion does not in all cases give
rise to a right of action in trover ; but
the implied doctrine of the above cases
renders the point worthy of further ex-
amination.
It has, indeed, been held in several
recent English cases, contrary to the
opinion which previously prevailed, that
the sale of a pledge by the pledgee, or a
repledge of the security for a larger
sum than that of the original debt, be-
fore the maturity of that debt, would
not enable the pledgor to maintain de-
tinue or trover. Donald v. Suckling,
principal case, supra, p. 394 ; Halliday
v. Holgate, Law R. 3 Ex. 299, in Ex.
Ch. See also Johnson v. Stear, 15
Comb. B. N. s. 330; Baltimore Ins.
Co. v. Dalrymple, 25 Md. 269 ; Bulke-
ley v. Welch, 31 Conn. 339. Contra,
Story, Bailments, §§ 303, 308, 327;
Clark v. Gilbert, 2 Bing. N. C. 343,
357 ; Chinery v. Viall, 5 Hurl. & N.
288, 293 ; Bailey v. Colby, 34 N. H.
29, 35. But the statements in these
latter cases are merely dicta.
In Halliday v. Holgate it was held in
the Exchequer Chamber that not even
nominal damages could be recovered in
trover in such cases, on the ground that
the act of sale had not revested in the
pledgor the right of possession ; and
this was the ruling in the principal case,
Donald o. Suckling. A pledge, it was
said in both of these cases, was some-
thing more than a mere lien ; and a
sale by a pledgee would not annihilate
the contract, as it would where the seller
had only a lien upon thet goods in his
possession. In Donald v. Suckling, it
will be observed that Cockburn, C. J.,
said : " We are not dealing with a case
of lien, which is merely the right to re-
tain possession of the chattel, and which
right is immediate!}' lost on the posses-
sion being parted with, unless to a per-
son who may be considered as the agent
of the party having the lien for the pur-
pose of its custody. In the contract of
pledge the pawnor invests the pawnee
with much more than the mere right of
possession. He invests him with a
right to deal with the thing pledged as
his own if the debt be not paid and the
thing redeemed at the appointed time.''
That is, the pawnee may treat the
pledge as his own until the pawnor offers
WHAT CONSTITUTES CONVERSION.
435
to redeem it ; and, if he never offers to
do so, there will be no conversion,
though there was a sale or repledge of
the goods before the debt became due.
So Willes, J., delivering the judgment
in Halliday v. Holgate, said that in the
case of a pledge the right of property
vested in the pledgee so far as was nec-
essary to secure the debt. " It is true,"
he continued, " the pledgor has such a
property in the article pledged as he
can convey to a third person, but he
has no right to the goods without paying
off the debt, and until the debt is paid
off the pledgee has the whole interest."
It is clear, therefore, that these
cases are no authority for the position
that there may be a conversion without
a right of action in trover ; for the courts
held that the defendants had not been
guilty of conversion.
Upon principle it is difficult to un-
derstand how there can be a conversion
in such cases without this right of action.
The fallacy on this point consists in an
incorrect apprehension of the term
"right of possession." In Milgate v.
Kebble, supra, Erskine, J., says:
"Under a plea of 'not possessed' in
trover, the plaintiff must prove actual
possession, or a right of immediate pos-
session. Here it is conceded that
there was no right of immediate pos-
session."
This overlooks the situation of the
parties and the nature of the act of do-
minion. One who takes possession of
goods under a qualified right agrees to
hold them in conformity to that right,
whether he be a pledgee, an unpaid
vendor, or a simple bailee without in-
terest. It is equally clear that if he
renounce his possession the owner may
retake his goods, if he can do so with-
out a breach of the peace ; in other
words, by a renunciation the party loses,
and the owner regains, his right of pos-
session, — not the actual possession, for
that is not necessary, but the right of
possession, which is sufficient in trover.
Now, if a bailee, having a less interest
than a pledgee, attempt to sell the
property in his custody, what is the
nature of the act ? It is nothing less
than a renunciation of any qualified in-
terest, for the act is an assertion of
ownership. In the case of an unpaid
vendor, like the defendant in Milgate v.
Kebble, it is a repudiation of the origi-
nal sale ; the vendor ignores that trans-
action, and puts himself in the position
of never having had the negotiation.
In other words, he renounces the right
of possession under which the goods
remain in his custody; and that right
thereafter is revested in the owner, giv-
ing him the requisite ground upon which
to sue.
It is not the sale, however, that revests
the right of possession in the owner of
the chattel, but the assertion of domin-
ion by the bailee. By the sale, indeed,
he could not acquire the right; for if
he had not obtained it before that act,
the sale would transfer it to the pur-
chaser, so that neither party would be
liable in trover. The attempt to sell,
and not its execution, is the renuncia-
tion ; and this it is that divests the
bailee, and revests in the owner the
right of possession. This will clearly
appear by considering the case of a
valid agreement by the bailee to sell the
goods at a future day. It is clear that
in such a case the owner would not be
required to wait till the agreement was
performed before suing.
The above view is the legitimate re-
sult of the doctrine of Sargent v. Gile,
8 N. II. 32.j, confirmed in Bailey v.
Colby, Si N. H. 29, and in other cases
cited in the earlier part of this note.
436
CONVERSION.
Indeed, if this view were not correct,
the action of trover could be maintained
only in those eases where the defend-
ant either was a trespasser in getting
possession of the goods, or was a bailee
without interest, and subject to be dis-
possessed at the will of the owner ; for
if the defendant was rightfully in pos-
session, and had a lien upon the goods
at the time of the sale, the plaintiff
could not acquire the right of possession
necessary for the action.
If it be thought that the reasoning
that the sale of the chattel is neces-
sarily a renunciation of the right of pos-
session under the plaintiff is too great
a refinement, the answer is that, at all
events, the almost universal doctrine of
the courts has been that a sale by a
bailee (not a pledgee) terminates the
bailment, for whatever reason, so as to
give the owner of the goods the right
of possession.
It was so decided in Cooper v. Wil-
lomatt, 1 Com. B. 672. In that case
goods were sold by one Savage to the
plaintiff, who thereupon allowed Sav-
age the use of them at a weekly rent,
upon his undertaking to deliver them
on demand. Savage afterwards sold
and delivered the goods to the defend-
ant, who purchased them in good faith.
It was held that the plaintiff could
maintain trover. The defendant con-
tended that the effect of the agreement
to give Savage the use of the goods
was that of a demise of the property,
in which case trover could not be main-
tained, on the ground that the plaintiff
would not have been entitled to the
possession at the time of suit; but
Tindal, C. J., answered this by saying
that even if that were the proper con-
struction of the agreement, it was such
a demise as might at any time be ter-
minated by the plaintiff. And the
demand upon the defendant had put an
end to the tenancy as well as if it had
been made upon Savage. But even if
the tenancy could not be considered as
terminated, the learned Chief Justice
thought the action maintainable, upon
the authority of Loeschman v. Machin,
the principal case ; and cf this opinion
were the other judges.
See also to the same effect, Coffey
v. Wilkerson, 1 Met. (Ky.) 101 ; Buck-
master v. Mower, 21 Vt. 204; Crocker
v. Gullifer, 44 Maine, 491 ; Bailey v.
Colby, 34 N. H. 29 ; Farrantu. Thomp-
son, 5 Barn. & Aid. 826; Emerson v.
Fisk, 6 Green, 200; Galvin v. Bacon,
2 Fairf. 28 ; Johnston v. Whittemore,
27 Mich. 463.
The difficulty in Milgate v. Kebble
arose, perhaps, from the supposition
that in an action of trover the plaintiff,
if he succeed, must be allowed the full
value of the goods, regardless of the
sum due ; for which there has been
some authority. See cases considered
by Williams, J., in Johnson v. Stear,
15 Com. B. N. 8. 330, 337. But while
it is true that the measure of damages
in trover covers the value of the goods,
this is only a prima facie presumption,
and the more recent cases hold that the
amount may be reduced by the sum
remaining due to the defendant; so
that the plaintiff in fact recovers no
more than the amount of the loss.
Chinery v. Viall, 5 Hurl. & N. 288;
Johnson v. Stear, 15 Com. B. N. s.
330; Brierly v. Kendall, 17 Q. B.
937; Neiler v. Kelley, 69 Penn. St.
403; Work v. Bennett, 70 Penn. St.
484. See also Story, Bailments, §315;
Clark v. Dearborn, 103 Mass. 335;
Whitney ». Beekford, 105 Mass. 267.
Just this difficulty has caused the
suggestion to be made in several of the
cases that the plaintiff's right of action
WHAT CONSTITUTES CONVERSION.
437
for the wrongful sale under such cir-
cumstances is an action on the case for
the breach of contract as to the hold-
ing, where he can recover only for his
actual loss. See Bloxam v. Sanders,
4 Barn. & C. 941, 949; Johnson v.
Stear, 15 Com. B. x. s. 330, 33o ; Hal-
liday v. Holgate, Law R. 3 Ex. 299,
302 ; also the remark of Cockburn,
C. J., in Donald r. Suckling, supra,
p. 419. But the difficulty is removed
by the assimilation of the damages in
the two actions.
As to the bailee, it therefore becomes
of little importance whether his act in
cases of this kind (that is, where he
has ix lien, but nothing more) be con-
sidered a conversion or not, for he
is at all events liable in contract for
the actual damage done by his breach
of trust, and the bailor can recover no
greater damages in trover.
But the effect of Milgate v. Kebble
does not stop here ; for, if there be no
conversion in a case of this kind, the
bailee's right of possession is transmit-
ted to the purchaser. Trover, therefore,
could not be maintained against him;
and, as he is in no situation of contract
with the bailor of the goods, he takes
the bailee's interest in the property,
and is clear of all present liability. If,
however, the view we have taken be
correct, supported as it is by the great
preponderance of authority, it follows
that, as the act of the bailee reinvested
the owner with the right of possession,
nothing but the actual possession passes
to the purchaser, and the owner can
follow the property, and, if it be with-
held from him, recover its full value in
trover upon his right to the possession
of it.
(d.) Disposal of Part of Chattel. —
It is not necessary that there should be
a sale of the entire chattel in these
cases ; it is often equally an act ot
dominion, amounting to a conversion,
to attempt to aliene a portion of the
goods. In Gentry !'. Madden, 3 Pike,
127, the defendant had found a raft of
timber on a sandbar in a river, had
taken possession of it, hired a person
to assist in removing part of it, and
sold that person his interest in the res-
idue, reserving to himself the portion
removed ; and it was held that this was
a conversion of the whole raft.
But upon general principles, where
there is a distinct bailment of several
different articles, though all be bailed
at the same time, a conversion of one
will not operate as a conversion of all.
How it would be where the bailment
was tortious, quozre ? See Gentry v.
Pike, supra.
The principle seems to be that where
t e act of misappropriation implies an
act of dominion over the whole chattel,
it is a conversion of the whole. See
Bowen v. Fenner, 40 Barb. 383 ; Rich-
ardson v. Atkinson, 1 Strange, 576.
But see Philpott v. Kelley, 3 Ad. & E.
106, 116, 117.
(e.) Owner allowing another to sell
his Goods. — If the owner of goods
stand by and see them sold as the
property of another without asserting
his title to them, or if, upon inquiry by
one whom he knows to be about pur-
chasing them, he represents them to be-
long to another, he will not be able to
take them from the purchaser, or re-
cover their value in trover ; though the
party selling had no authority to make
the sale. Heane v. Rogers, 9 Barn. &
C. 586 ; Pickard v. Sears, 6 Ad. & E.
469; Stephens v. Baird, 9 Cowcn. 274;
Dezell v. Odell, 3 Hill, 215; Bigelow,
Estoppel, 473 et seq.
And it seems that in such case the
purchaser could himself maintain trover
438
CONVERSION.
against such owner, since in a contest
between them in regard to the goods
the latter would be estopped to assert
a title to them.
But a subsequent purchaser under an
execution against the true owner could
maintain trover from one who had pre-
viously purchased under the circum-
stances above mentioned. Richards v.
Johnston, 4 Hurl. & N. 660. The rea-
son of this probably is, that the estop-
pel could not operate to transmit any
title to the first purchaser, but merely
operated to preclude the owner from
asserting his title against him. The
second purchaser, however, acquires
the title to the goods ; and, as the es-
toppel of the owner is not an interest
in the property, it is not transmitted
under the sheriff's sale. Nor is a pur-
chaser, it would seem, in the situation
of a privy to the vendor, in such cases;
being unlike an assignee, who is but the
representative of the assignor. But the
reason given by the court in the case
cited was, that the sheriff was not bound
by the estoppel against the owner, and
the purchaser claimed adversely to, and
not under, the latter. If this be the true
reason, a purchaser from the owner,
though without notice of the previous
transaction, could not claim the goods,
because of the estoppel. Sed quaere.
(/".) Surpassing Limit of Authority
to sell. — A person having due author-
ity to sell the property of another may
also be guilty of conversion. Such will
be the case if he fail to conform in a
material particular to the terms of his
authority. It has been so held where
the defendant had receipted to the
plaintiff for certain shares of stock to
be sold on commission, and, instead of
selling, the defendant exchanged the
shares for other property. Haas v.
Damon, 9 Iowa, 589. But this may be
doubted if the transaction was within
the general scope of his authority, so as
to give a good title to the party with
whom he exchanged. Clearly, if an
agent merely sell at a lower price than
his instructions allowed, this will not
amount to a conversion, though he be-
comes liable for misconduct. Sargeant
v. Blunt, 10 Johns. 74. See Cairnes
o. Bleecker, 12 Johns. 300. But where
the owner of a promissory note past due
put it into the hands of B. for collec-
tion, and B. sold it to S., who converted
it to his own use, it was held that the
owner might maintain trover against S.
Seago v. Pomeroy, 46 Ga. 227.
(<7-) Pledging Goods. — Another il-
lustration of an act of dominion may be
found in the case of a pledging of prop-
erty by one having no authority. In
Thrall v. Lathrop, 30 Vt. 307, the plain-
tiff brought trover for a heifer which
had been in possession of one Preston
on hire. Preston borrowed money of
the defendant and gave him a bill of
sale of the heifer in security of pay-
ment. He afterwards borrowed money
of the plaintiff, and gave him also a bill
of sale of the animal ; the plaintiff not
knowing that this was the heifer which
in fact belonged to him. The heifer
remained in the possession of Preston
until taken by the defendant, when the
latter was informed by the plaintiff that
the property was his, under his bill of
sale. It was held that the plaintiff was
not estopped to claim the heifer, upon
the plain principle that an admission
made in ignorance of one's rights is not
binding.
In Carpenter v. Hale, 8 Gray, 157,
goods intrusted for a special purpose
were pledged by the party in posses-
sion ; and it was held that the pledgee,
after notice of the true ownership and
a demand of the property, was liable in
WHAT CONSTITUTES CONVERSION.
439
trover to a subsequent purchaser of the
owner's rights, after a demand by such
purchaser, although, after the first de-
mand and before the second, he had sold
the property.
The case of a repledge by a pledgee
has already been considered ; but it
may be remarked that the dissenting
opinion of Mr. Justice Shee in the prin-
cipal case, Donald v. Suckling, is given
as representing what has heretofore been
generally supposed to be the law in this
country. Lawrence v. Maxwell, 53
JT. Y. 19 ; Hope v. Lawrence, 1 Hun,
317. In view of the fact, however, that
the ruling of the majority of the court
in that case has been reaffirmed by the
unanimous judgment of the Exchequer
Chamber (Halliday v. Holgate, Law R.
3 Ex. 299), it is probable that the doc-
trine of the case will be accepted in
America. See also Bryan v. Baldwin,
52 X. Y. 232.
A mortgage being a higher security
than a pledge, it would seem that a sale
of goods by a mortgagee would not be
a conversion ; and this is to be inferred
from the language of Willes, J., in Hal-
liday v. Holgate. But it has lately been
held that a mortgagee who has waived,
thouo-h by parol, the foreclosure of a
mortgage of personalty becomes liable
for conversion by subsequently selling
the property, without the assent of the
party for whom the waiver is made.
Phelps ». Hendrick, 105 Mass. 106.
But qutere if this would be more than
a breach of contract ? Would not a
bona fide purchaser get a good title ?
And if trover could not be maintained
against the purchaser, upon demand
and refusal, could it be maintained
against the vendor? It seems clear,
however, from the language of the
judges in Donald v. Suckling, that if
the pledgor should offer to redeem, he
could bring trover for the pledge if it
should not be restored to him; and it
has been so held in favor of a mort-
gagor seeking to redeem, where the
mortgagee had sold the chattel before
condition broken. Eslow- v. Mitchell,
26 Mich. 500.
(A.) Appropriating an article held
in bailment to a different use from that
agreed upon is another of this class of
cases. If, for instance, a man deliver
a horse to another to ride to York, and
he rides it to Carlisle, this is a conver-
sion. Isaack v. Clark, 2 Bulst. 306 ;
Wheelock v. Wheelwright, 5 Mass. 104;
Homer v. Thwing, 3 Pick. 492 ; Rotch
v. Hawes, 12 Pick. 136; Fisher v.
Kyle, 27 Mich. 454; Horsly v. Branch,
1 Humph. 199; Crocker v. Gullifer,
44 Maine, 491 ; Spencer v. Bjlcher, 8
Leigh, 565. // f ZU-^f? / '0 2-
It has been held that in'such cases
there can be no right of action in trover
unless the chattel be injured in the mis-
appropriation. Johnson v. Weedman,
4 Scam. 495. But this may well be '
doubted. The foundation of the action
is the usurpation of the owner's right
of properly, and not the actual injury
caused, as the cases already considered
show. The difficulty in the mind of the
court in Johnson v. Weedman seems to
have been that to allow the plaintiff to
recover where the chattel was not in-
jured would subject the defendant to
damages to its full value ; but this is a
mistake, as we have seen. The value
of the chattel would be the prima facie
measure of damages ; but the defend-
ant could return or offer to return it,
in mitigation, and this might reduce
the damages to a mere nominal sum.
1 Cliitty, Pleading, 161; Delano v. Cur-
tis, 7 Allen, 470. It is to be observed
that such of the old cases and dicta as
have held that judgment in trover vests
440
CONVERSION.
the property in the defendant (which
would prevent the right of return after
suit) have been overruled. See Brins-
mead v. Harrison, Law R. 6 C. P. 584;
Lovejoy v. Murray, 3 Wall. 1 ; Brady
v. Whitney, 24 Mich. 154.
It has been supposed in Massachu-
setts and in Rhode Island that this doc-
trine would not apply to the case of the
unauthorized use of property bailed on
Sunday. Gregg v. Wyman, 4 Cush.
322 ; Whelden v. Chappel, 8 R. I. 230.
But this notion has been repudiated in
other States, and has recently been ex-
ploded in Massachusetts. Woodman
v. Hubbard, 25 N. H. 67 ; Morton v.
Gloster, 46 Maine, 420 ; Hall v. Cor-
coran, 107 Mass. 251 ; Frost v. Plumb,
13 Am. Law Reg. sr. s. 537.
In Hall v. Corcoran, the defendant
had hired a horse to drive to North
Adams, on Sunday, for pleasure only,
as both parties knew. The horse was
driven be) ond North Adams to Clarks-
burg, and on the return to the former
place was injured. It was held that
the defendant was liable for conversion.
"The fact," said Mr. Justice Gray,
" that the owner of property has acted
or is acting unlawfully with regard to
it is no bar to a suit by him against
a wrong-doer, to whose wrongful act
the plaintiff's own illegal conduct has
not contributed. Thus, an action lies
against one who takes and appropriates
to his own use property kept by the
plaintiff in violation of a statute, and
therefore liable to be destroyed. Cum-
mings v. Perham, 1 Met. 555 ; Ewings
v. Walker, 9 Gray, 95.
"The judgment in Gregg v. Wy-
man is based upon two propositions :
1st. That the action, though in form
tort, yet was essentially founded on a
violation by the defendants of the con-
tract of letting, in driving the horse
beyond the place specified in that con-
tract. 2d. That if the action was not
to be considered as founded on the
contract, still, to make the defendants
wrong-doers, it was necessary for the
plaintiff to show his own illegal act in
letting the horse. But, with the great-
est deference to the opinion of our
predecessors who concurred in that de-
cision, we are constrained to say that
we do not think that either of these
propositions can be maintained."
The learned judge proceeded to show,
in support of the position of the court,
that it was immaterial in trover how
the defendant became possessed of the
goods, whether by contract or by tres-
pass ; and he referred to the cases of
conversion by infants who had been in-
trusted with goods, as showing that the
invalidity of the contract by which pos-
session was obtained was of no impor-
tance. Furnes v. Smith, 1 Rol. Ab.
530; Vasse v. Smith, 6 Cranch, 226,
331; Campbell v. Stakes, 2 Wend. 137,
144; Fitts v. Hall, 9 N. H. 441 ; Towne
v. Wiley, 23 Vt. 355 ; Lewis v. Little-
field, 15 Maine, 233. "The distinc-
tion," he further observed, " between
an action for misusing a horse in viola-
tion of the contract of letting, and an
action for the conversion of the horse
by driving it to a place without the
contract, is clearly marked in the early
cases in this court, in which, while the
old rules of pleading prevailed, it was
decided that an action for driving the
horse beyond the distance agreed might
be in trover, without regard to the ques-
tion whether the horse had been mis-
used ; and that an action for immoder-
ately driving the horse upon a journey
authorized or assented to by the owner
must be in case for the misfeasance, and
not in trover for a conversion. Whee-
loek v. Wheelwright, 5 Mass. 104;
WHAT CONSTITUTES CONVERSION.
441
Homer c. Thwing, 3 Pick. 492 ; Rotch
v. Hawes, 12 Pick. 136. See also Lucas
r. Trumbull, 15 Gray, 306."
The conclusion therefore was. that
the right of action was not founded in
contract ; and as the wrong complained
of was not a breach of contract, or an
abuse of the possession acquired, but
a direct invasion of the plaintiff's right
of property, regardless of contract, it
followed that it was not necessary for
the plaintiff to show the contract. And
if proved by the defendants, by cross-
examination of the plaintiff's witnesses
or otherwise, it had nothing to do with
the plaintiff's cause of action.
(i.) The mere attachment of goods
already levied upon does not amount
to a conversion, though the attaching
officer request a person acting as agent
of the debtor to look after and take
care of the property, and to tell all
persons who should come there that it
was attached. This having no ten-
dency to impair or interfere with the
rights of the first attaching officer, he
could not maintain an action for the
conversion of the goods. Polley v.
Lenox Iron Works, 15 Gray, 513;
Fernald c. Chase, 37 Maine, 289 ; Rand
v. Sargent, 23 Maine, 326 ; Bailey v.
Adams, 14 Wend. 201. X or will evi-
dence that the creditor in the second
attachment suffered the property to be
sent away and sold, himself receiving
the proceeds of the sale, make out a
case of conversion against him. Polley
i. Lenox Iron Works, 2 Allen, 182.
To support the action there must be a
positive tortious act. lb. ; Bromley v.
Coxwell, 2 Bos. & P. 439 ; Dorman „.
Kane, 5 Allen, 38, where it was held
no conversion that goods were stolen
from an officer. See the above case of
Polley v. Lenox Iron Works again in 4
Allen, 329, where there was evidence
of such positive acts. So, in Fitzger-
ald v. Jordan, 11 Allen, 128. See also
Thompson o. Moesta, 27 Mich. 182.
(j.) Where the Goods are not con-
verted to Defendant's Use. — In the fore-
going classes of cases the defendant has
appropriated the goods directly to his
own use; but there are other cases
where, without so appropriating the
goods, he becomes liable for conversion.
In these cases there must be an inten-
tion to deprive the owner for some
period of time of the use of his prop-
erty ; except in the case of a common
carrier, who, being an insurer, is liable
for a misdelivery of goods, though it
be by mistake. Devereaux v. Barclay,
3 Barn. & Aid. 704; Claflin v. Boston
& L. R. Co., 7 Allen, 341.
There are many cases to illustrate an
act of dominion of this kind. In Sim-
mons v. Lillystone, R Ex. 431, the evi-
dence to support a count in trover for
the conversion of certain pieces of tim-
ber was that the plaintiff's timber being
on the close of the defendant, he re-
moved it, and the pieces having been
again placed there, and having become
embedded in the soil, the defendant
directed his workmen to dig a saw-pit
at the place, and in digging the pit the
timber was cut through ; part remain-
ing embedded in the soil, and the rest
being washed away by the water of a
river flowing by. It was held that this
was not sufficient evidence of a con-
version. " In order to constitute a
conversion," said the court, "there
must be an intention of the defendant
to take to himself the property in the
goods or to deprive the plaintiff of it.
If the entire article is destroyed, as, for
instance, by burning it, that would be
a taking of the property from the plain-
tiff and depriving him of it, although
the defendant might not be considered
442
CONVERSION.
as appropriating it to his own use. In
this case nothing is done but cutting
the timber, and, by accident, it is
washed away by the river, — not pur-
posely thrown by the defendant to be
washed away ; consequently we think
that does not amount to a conversion."
In Fouldes v. Willoughby, 8 Mees.
& W. 540, which was trover for two
horses, it appeared that the defendant
was manager of a ferry from Birken-
head to Liverpool, and that the plain-
tiff had embarked on board the defend-
ant's ferry-boat at the former place,
having with him the horses in ques-
tion. When the defendant came on
board it was reported to him that the
plaintiff had behaved improperly on
board; and the defendant then told the
plaintiff (who had paid the usual fare
for the carriage of the horses) that he
would not carry the horses over, and
that he must take them on shore. The
plaintiff refused to do so, and the de-
fendant took them from the plaintiff
and put them on shore ; and they were
conveyed to a hotel kept by the defend-
ant's brother. The plaintiff remained
on board, and was conveyed to Liver-
pool. On the following day the plain-
tiff sent for the horses, but they were
not delivered to him. A message was,
however, afterwards sent to him that
he might have the horses on sending
for them and paying for their keeping,
and stating that if this were not done
they would be sold to pay the expenses.
They were accordingly sold ; and this
action was thereupon brought. The
defence was, that the plaintiff having
misconducted himself on board, the
horses were put off to get rid of the
plaintiff by inducing him to follow
them. The judge at nisi prius told
the jury that the defendant, by taking
the horses from the plaintiff, and turn-
ing them out of the vessel, had been
guilty of a conversion, unless they
thought the plaintiff's conduct justi-
fied his removal from the boat, and he
had refused to go without his horses.
This was held a misdirection. "Any
asportation of a chattel," said Mr.
Baron Alderson, "for the use of the
defendant, or a third person, amounts
to a conversion, for this simple reason,
that it is an act inconsistent with the
general right of dominion which the
owner of the chattel has in it, who is
entitled to the use of it at all times and
in all places. When, therefore, a man
takes that chattel, either for the use of
himself or of another, it is a conver-
sion. So, if a man has possession of
my chattel, and refuses to deliver it up,
this is an assertion of a right inconsist-
ent with my general dominion over it,
and the use which at all times, and in
all places, I am entitled to make of it,
and consequently amounts to an act of
conversion. So the destruction of the
chattel is an act of conversion ; for its
effect is to deprive me of it altogether.
But the question here is, where a man
does an act the effect of which is not
for a moment to interfere with my
dominion over the chattel, but on the
contrary recognizing my title to it, can
such an act as that be said to amount to
a conversion ? I think it cannot. . . .
The question ought to havej been left
to the jury to say whether the act done
by the defendant, of seizing these
horses and putting them on shore, was
done with the intention of converting
them to his own use ; that is, with the
intention of impugning even for a
moment the plaintiff's general right of
dominion over them. If so, it would
be a conversion ; otherwise not." And
the other judges were of the same
mind.
WHAT CONSTITUTES CONYERSION.
443
Mr. Baron Rolfe states clearly in
this case the distinction between tres-
pass and conversion. " Suppose I,"
he observes, " seeing a horse in a
ploughed field, thought it had strayed,
and, under that impression, led it back
to pasture, it is clear that an action of
trespass would lie against me ; but
would any man say that this amounted
to a conversion of the horse to my own
use ? [See Wilson v. McLaughlin, 107
Mass. 587, a still stronger case of this
kind.] Or suppose a man drives his
carriage up into an inn-yard, and the
innkeeper refuses to take it and his
horses in, but turns them out into the
road, could it be said that he thereby
converted them to his own use ? Surely
not. The same principle applies to
the case which has been cited of Bushell
l\ Miller, 1 Strange, 128, where a party
was held to have a right to move cer-
tain goods of another person, provided
he put them back again ; his not put-
ting them back may give the other a
right to bring trespass against him, on
the ground that his subsequent neglect
made him a trespasser ab initio ; but it
is clear that there was no conversion of
the chattel."
There are other cases which show
that one may deprive another of the
possession of his goods without being
guilty of conversion. In Thorogood v.
Robinson, 6 Q. B. 769, the plaintiff's
goods and servants were on land which
the defendant had recovered in eject-
ment. The defendant, upon entering
under his writ of possession, turned
the plaintiff's servants off the land, and
would not let them remain for the pur-
pose of removing the plaintiff's goods.
There had been no demand and refusal,
however ; and it was held that the jury
were justified in finding that there had
been no conversion. The ground of
the decision was that the defendant's
entry was rightful, and that his turn-
ing off the servants was proper. The
plaintiff, it was conceded, had a right
to the goods ; but he should have sent
some one with a proper authority to de-
mand and receive them. If the defend-
ant had then refused to permit the tak-
ing away of the goods, there would have
been a clear conversion. See Guthrie v.
Jones, 108 Mass. 191, where it was held
that for a landlord to refuse to allow
his tenant to remove certain chattels at-
tached by him to the realty, but which
were not fixtures, was a conversion.
Thorogood v. Robinson was decided
upon the authority of Needham v. Raw-
bone, 6 Q. B. 771, note. In that case
it appeared that the plaintiff had left
his house, and in it the goods in ques-
tion, in the care of his servant. The
defendant entered the premises, alleg-
ing an authority from the Court of
Chancery, placed a man in charge of
the house, took an inventory of the
goods, locked up the rooms containing
them, prevented the plaintiff's servant
from having access to the rooms, and
finally obliged him to quit the prem-
ises, leaving the property under the
defendant's control. The Lord Chief
Justice thought there was no evidence
of a conversion, and directed a nonsuit.
Upon a rule nisi being granted for a
new trial, Lord Denman said that it
did not appear by the evidence that the
plaintiff had not acquiesced in the tak-
ing, or that he might not have had the
use of the goods if he had desired. But
some two weeks later, after advisement,
the court, without further observation,
ordered the rule to be made absolute.
This appears to have been upon the
ground that the question should have
been submitted to the jury ; for the ob-
jection of the plaintiff in Thorogood v.
444
CONVERSION.
Robinson was that the court should have
ruled that the facts there proved consti-
tuted a conversion, and in reply to this
Needham v. Rawbone was cited. How-
ever, if it had also appeared that there
had been a demand of the goods and a
refusal to deliver them, the court would
doubtless have decided that there was
a conversion, and not left the question
to the jury. These cases must therefore
be accepted with caution on this point.
In Bushel v. Miller, 1 Strange, 128, it
appeared that upon the Custom-House
quay there was a. hut, in which partic-
ular porters were accustomed to place
small parcels of goods until they could
be put on shipboard. Each of the
porters, and among them the plaintiff
and defendant, had a particular box
or cupboard in the hut. The plaintiff,
upon the occasion in question, put in
goods in such a way that the defendant
could not get to his box without remov-
ing them. He did accordingly remove
them the distance of a yard, and with-
out returning them went away, and
the goods were lost. It was held that,
though the defendant might be liable
in trespass, there was no conversion.
The owner's goods were delivered to
a third person in Syeds v. Hay, 4 T. R.
260. There the captain of a vessel carry-
ing the plaintiff's goods had disobeyed
the plaintiff's orders to land the good,s
on the wharf against which the vessel was
moored, and, contrary to his own prom-
ise, delivered them to the wharfinger,
though for the plaintiff's use, under the
impression that the wharfinger had a
lien upon the goods for wharfage fees ;
and it was held that, upon demand and
refusal, it was a case of conversion,
unless the captain (the defendant) could
establish the wharfinger's right. Bul-
ler, J., said: "If one man, who is in-
trusted with the goods of another, put
them into the hands of a third person,
contrary to orders, that is a conversion.
If a person take my horse to ride, and
leave him at an inn, that is a conver-
sion ; for though I may have the horse
on sending for him, and paying for the
keeping of him, yet it brings a charge
on me."
(£.) Demand and Refusal. — In most
of the cases above stated, proof of the
wrongful act of the defendant is suffi-
cient to establish a conversion, without
evidence of a demand for the goods and
a refusal to restore them. In other
cases, a demand and refusal are essen-
tial to the action. In every instance,
as Chitty remarks, it is judicious to de-
mand the restitution of the goods, or, if
they cannot be returned, a recompense
equivalent to their value and the amount
of the damages sustained, previously to
the commencement of proceedings. 1
Pleading, 157.
Refusal to restore the goods upon
demand is only evidence of conversion ;
and whenever the conversion can be
otherwise proved, it is not necessary for
the plaintiff to show a demand and re-
fusal. Gilmore v. Xewton, 9 Allen, 171.
As where a horse was purchased from
one who had no right to sell it, and was
used by the purchaser as his own. lb.
But these steps are a necessary part of
his case where the defendant became,
in the first instance, lawfully possessed
of the goods, and the plaintiff is not
prepared to prove some other distinct
conversion. 2 Wms. Saund. 47 e;
1 Chitty, Pleading, 157 ; Witherspoon
v. Blewett, 47 Miss. 570 ; Hardy v.
Wheeler, 56 III. 152. Thus, in Nixon
v. Jenkins, 2 H. Black. 135, where a
trader, on the eve of bankruptcy, made
a collusive sale of goods, it was held
that his assignees could not maintain
trover for them without proving a de-
WHAT CONSTITUTES CONVERSION.
445
mand and refusal. The reason given of United States bonds cannot be main-
was that the parties were competent to tained by the owner, from whom they
contract ; and there was no unlawful have been stolen, against one who has
taking of the goods, though the trans- received them, as an agent for exchange,
action was liable to be impeached. The in good faith and without gross negli-
assignees, it was said, might affirm or gence, from a party to the theft, and
disaffirm the contract; and if they has transferred them by delivery and
thought proper to disaffirm it, they paid the proceeds to his principal be-
should have demanded the goods, and fore any demand made upon himself.
a refusal would then have been evidence Spooner v. Holmes, 102 Mass. 508.
of a conversion. But the most common case of the
But if the defendant had sold the necessity of demand and refusal is where
goods, having no title to them as goods are put into the hands of another
against the assignees, this would have for a special purpose, upon an agree-
been a distinct act of conversion, ren- ment to return them when the purpose
dering a demand unnecessary. Bloxam is accomplished ; as to which the rule of
t>. Hubbard, 5 East, 407. And so, law is that a breach of the contract by
where the assignees, under a wrongful the mere failure so to return the goods
commission in bankruptcy, have re- does not amount to a conversion. Be-
quired the supposed bankrupt to deliver fore the bailee can be liable in trover in
to them his books, he may sue them in such case, if there was no misappropri-
trover without first demanding their re- ation or other act of dominion, there
turn, for here is also a distinct act of must be a demand for the goods and a
conversion. Summersett v. Jarvis, 3 refusal to restore them. Severin v.
Brod. & B. 2.
It is held, also, that no demand is
necessary where the defendant has re-
fused to deliver the goods to any one,
though the plaintiff was not at the time
owner of the goods,
7 Allen, 470.
Keppell, 4 Esp. 156. See also Booraem
v. Crane, 103 Mass. 522, where the
goods were intoxicating liquors, under
the ban of the statute.
A refusal to deliver the goods upon
Delano v. Curtis, due demand is, however, only prima
facie evidence of a conversion. Lock-
In Jones v. Fort, 9 Barn. & C. 764, wood v. Hull, 1 Cowen, 322; Irish
where bills of exchange had been de- v. Cloyes, 8 Vt. 33, 110; Thompson v.
livered by a trader to a creditor in con- Rose, 16 Conn. 71. See Johnson v.
templation of bankruptcy, with a view Couillard, 4 Allen, 446. For the party
of giving the creditor a preference, and may have lost the goods without fault.
the amount due upon the bills was re- And as against persons who had ceased
ceived by him after the bankruptcy, it to be members of a firm, and are sued
was held that without a demand and with the others in trover, demand and
refusal upon the creditor by the debtor's refusal are not even prima facie evi-
assignees, there was no conversion, dence of conversion. Sturges v. Keith,
The bills being in the hands of the de-
fendant, it was his duty to receive the
money when due.
It is held in a late case that an action
for the conversion of interest coupons
57 111. 451.
And a refusal made bona fide on the
ground that the defendant is not satis-
fied that the party making the demand
is the owner of the goods, or authorized
446
CONVERSION.
to receive them, is no evidence of a
conversion. Sargent d. Gile, 8 N. H.
325 ; Leighton v. Shapley, ib. 359 ;
Dent, v. Chiles, 5 Stewt. & P. 383;
Watt v. Porter, 2 Mason, 77.
If the demand be not made upon the
defendant himself, but merely left at his
house, during his absence, it seems that
a reasonable time and opportunity to
restore the goods should be suffered to
elapse before the defendant's non-com-
compliance with the demand can be
treated as a refusal amounting to a
conversion. The non-compliance with
the demand after a reasonable oppor-
tunity to obey it has been afforded is
tantamount to a refusal, and is presump-
tive evidence of a conversion, casting
upon the defendant the burden of ex-
plaining that the omission to deliver
the goods is not a conversion. 1 Chitty,
Pleading, 160; White v. Dewary, 2
N. H. 540 ; Thompson v. Rowe, 16
Conn. 71. See also Wellington v.
Wentworth, 8 Met. 548. Without
satisfactory explanation the evidence is
conclusive. Edgerly v. Wualan, 106
Mass. 307.
In a recent case it was held erro-
neous to refuse to instruct the jury that
no recovery can be had in an action for
conversion unless it shall appear that
before the demand and refusal the de-
fendant had actually converted the
goods, or that, at the time of the
demand and refusal, he had it in his
power to give up the property. John-
son v. Couillard, 4 Allen, 446.
The demand should usually be made
of the party in possession ; but in an
action against a sheriff for an attach-
ment of goods exempt, the plaintiff may
put in evidence a demand upon the in-
demnifying creditor for a restoration
and a refusal by him. Mannan v. Mer-
ritt, 11 Allen, 582.
It has been a point of serious diffi-
culty whether the taking possession of
goods by the vendee of a bailee having
no authority to sell was such an act of
conversion as to make the vendee liable
in trover without a demand. The af-
firmative view has been maintained in
Hyde v. 2s oble, 13 N. H. 494 ; Galvin v.
Bacon, 2 Fairf. 28 ; Parsons v. Webb, 8
Greenl. 38 ; Stanley v. Gaylord, 1 Cush.
536 ; Riley v. Boston Water Power
Co., 11 Cush. 11 ; Freede v. Ander-
son, 10 Mich. 357; Whitman Mining
Co. v. Tritle, 4 Nev. 494; Soames v.
Watts, 1 Car. & P. 400 ; Yates v. Carn-
seed, 3 Car. & P. 99 ; Hurst v. Gwen-
nop, 2 Stark, 306. See also Hilbery
v. Hatton, 2 H. & C. 822 ; Chandler v.
Ferguson, 2 Bush, 163; Deering v.
Austin, 34 Vt. 330.
In Galvin v. Bacon, Weston, J.,
said : " Whoever takes the property of
another without his assent, express or
implied, or without the assent of some
one authorized to act in his behalf,
takes it, in the eye of the law, tortiously.
His possession is not lawful against the
true owner. That is unlawful which is
not justified or warranted by law ; and
of this character may be some acts
which are not attended with any moral
turpitude. A party honestly and fairly,
and for a valuable consideration, buys
goods of one who had stolen them. He
acquires no rights under his purchase.
The guilty party has no rightful posses-
sion against the true owner; and he
could convey none to another. The
purchaser is not liable to be charged
criminally, because innocent of any in-
tentional wrong ; but the owner may
avail himself against him of all civil
remedies provided by law for the pro-
tection of property."
This reasoning seems unanswerable
when not applied to cases where the
WHAT CONSTITUTES CONVERSION.
447
owner has himself facilitated the de-
fendant's aft; as where he has put his
goods into the hands of another to pre-
vent their attachment, and they have
been sold by the bailee without au-
thority. Qucere, whether, without fraud,
a person, by putting goods into the
hands of an agent or bailee who sells
and delivers them, could not be said to
have facilitated the taking? See the
language of Wilde, J., in Stanley v.
Gaylord, 1 Cush. 536, 558.
In Xew York, Pennsylvania, In-
diana, Kentucky, and Connecticut, the
doctrine of the above cases has been
denied, and a demand deemed neces-
sary. Marshall v. Davis, 1 Wend. 109 ;
Barrett v. Warren, 3 Hill, 348; Pierce
v. Van Dyke, 6 Hill, 613; Nash v.
Mosher, 19 Wend. 431; Talmadge v.
Scudder, 38 Penn. St. 517; Wood
v. Cohen, 6 Ind. 455 ; Sherry v. Picken,
10 Ind. 375; Justice v. Wendell, 14 B.
Mon. 12 ; Parker v. Middlebrook, 24
Conn. 207. See also 2 Greenleaf, Evi-
dence, § 642.
Mr. Justice Metcalf, in Stanley v.
Gaylord, supra, refers to the following
English cases also as bearing somewhat
against the doctrine held by him :
Cooper v. Chitty, 1 Burr. 20; Smith v.
Milles, 1 T. R. 475 ; Wyatt v. Blandes,
3 Campb. 396; Carlisle v. Garland, 7
Bing. 298 ; s. c. 10 Bing. 452 ; Potter
v. Starkie, 4 Scott, 718; Lazarus v.
Waithman, 5 Moore, 313 ; Price v.
Helyar, 4 Bing. 597 ; Dillon v. Lang-
ley, 2 Barn. & Ad. 131. See also
Samuel t\ Norris, 6 Car. & P. 620,
where a mere seizure of goods by
strangers, who afterwards relinquished
possession, was held not a conver-
sion.
In New York a distinction is main-
tained between the case of a taking by
deliverv of the bailee in cases of this
kind, and a taking without delivery; it
is conceded that in the latter case the
purchaser commits a tortious act. Ely
v. Ehle, 3 Comst. 506 ; Nash v. Mosher,
19 Wend. 431; Marshall v. Davis, 1
Wend. 109.
(J.) Acts of Cotenanis. — It has also
been a point of conflict in the authori-
ties, whether a tenant in common or
joint tenant can maintain trover against
his companion for the sale, or rather at-
tempted sale, of the absolute property
of the common chattel. Most of the
courts of this country have held that he
can. Weld v. Oliver, 21 Pick. 559;
Wilson v. Reed, 3 Johns. 175; Hyde
v. Stone, 9 Cowen, 230 ; Gilbert v.
Dickerson, 7 Wend. 449 ; Mumford v.
McKay, 8 Wend. 442 ; Dyckman v.
Valiente, 42 N. Y. 549 ; White v. Brooks,
43 N. H. 402; Dain v. Cowing, 22
Maine, 347 ; Arthur v. Gayle, 38 Ala.
359 ; Williams v. Chadbourne, 6 Cal.
559.
In Weld v. Oliver the court say :
" Upon recurring to the origin of the
doctrine so frequently stated, that one
tenant in common cannot maintain
trover against his cotenant unless there
has been a destruction by him of the
property thus holden in common, I
think it will be found to have been
originally asserted with reference to
the right of one tenant in common to
sue his cotenant in an action of trover,
for the exclusive use and possession of
the common property, and the denying
to the other any participation in the
same ; and when thus applied it is en-
tirely correct, upon the familiar princi-
ple that the possession of one cotenant
is the possession of both, and he who
has the present possession cannot be
ousted. It is very clear that one tenant
in common cannot maintain an action
of trover against his cotenant for the
448
CONVERSION.
mere act of withholding from him the
use of a chattel, the rights of both being
such that he who has the possession can-
not be guilty of a conversion by retain-
ing it. Nor can one tenant in common
object to the mere sale by the other of
the interest of the vendor in the com-
mon property, and a delivery over of
the chattel to the purchaser. Such a
right results from the nature of the rela-
tion between the parties ; and to this
inconvenience each must be subject, the
mere change of possession under such
circumstances being no conversion.
But the question arises, whether this
be not the limit beyond which if one
cotenant passes he subjects himself to
an action by the other tenant for the
conversion of his share of the property.
The ordinary evidence of conversion is
the unlawful taking or detention of
goods from the possession of the true
owner; but it is equally true that he who
undertakes to dispose of my goods as
his own property, thereby subjects him-
self to an action of trover. May not
the assumption of property in, and a
sale of, my undivided moiety by my co-
tenant be equally a conversion by him
of the moiety belonging to me, as the
sale by a stranger of an article in which
I had the entire interest is a conver-
sion of the whole property by the
stranger ? "
In Wilson v. Reed the position is
thus stated : " Tenants in common of a
chattel have each an equal right to the
possession, and the law will not afford
an action to the one dispossessed, be-
cause his right is not superior to that of
the possessor ; but tenants in common
are not like partners. The latter may
dispose of chattels by virtue of an im-
plied authority to sell, without being
liable as for a tort; whilst the former
cannot dispose of them without violat-
ing the right of their cotenants. For a
sale, therefore, of a chattel an action of
trover will lie by one tenant in common
against another."
In White v. Brooks the doctrine is
put on the ground that a sale determines
the common tenancy, upon the authority
of 1 Chitty, Pleading, 40. And it was,
therefore, held that trover or indebitatus
assumpsit might be maintained by the
injured tenant for his share of the pro-
ceeds of the sale against his cotenant, or
trover against the purchaser.
As to this last position, it is to be
observed that the cases cited by Chitty
do not sustain him ; and the doctrine
must, probably, be limited to the case
of an election by the injured tenant.
He may elect to consider the tenancy
terminated, and bring an action for
money had and received against his
cotenant (Sanborn v. Morrill, 15 Vt.
700); and whether he may bring trover
against him or not, the cases hold that
he cannot bring trover against the pur-
chaser, at least, before a sale by him of
the absolute property. Dain v. Cowing,
22 Maine, 347 ; Kilgore v. Wood, 56
Maine, 150. See Trammell v. McDade,
29 Tex. 360. And the reason is clear.
The sale, whatever it purported, could
not convey the plaintiff's interest with-
out his consent ; and the purchaser
would only acquire the position of a
cotenant with him, taking the position
of the vendor. See It uckman v. Decker,
8 C. E. Green, 283.
In England and in several of the States
of the Union it is held that trover is not
maintainable in cases of this kind. Far-
rar v. Beswick, 1 Mees. & W. 682 ;
Morgan v. Marquis, 9 Ex. 145 ; May-
hew v. Herrick, 7 Com. B. 229; Webb
v. Danforth, 1 Day, 301; Oviattt). Sage,
7 Conn. 95; Tubbs v. Richardson, 6
Vt. 442; Welch v. Clark, 12 Vt. 681;
WHAT CONSTITUTES CONVERSION.
449
Sanborn r. Merrill, 15 Vt. 700 ; Barton 10S. See Harvey v. Crickett, 5 Maule
v. Burton, 27 Vt 93; Pitt v. Petway, & S. 336. It was accordingly urged
- rea. OJ. that the solvent party had no authority,
Some doubt was, indeed, raised upon after the act of bankruptcy, to dispose
this point by a dictum to the contrary of the property as if the partnership still
by Mr. Baron Bayley in Barton v. Wil- continued ; and the solvent partner hav-
hams. 5 Barn. & Aid. 395, 403 ; but ing, after the bankruptcy, directed the
that dictum was apparently overruled defendants, commission merchants, to
in the later English cases above cited, sell certain flour of the (late) partners,
In Mayhew r. Herrick, Mr. Justice which they had done, it was contended
Coltman said: "As to whether the that they were liable either for money
plaintiff can maintain trover against had and received to the use of the bank-
the officer for the sale of his share of rupts, or in detinue. But the Court of
the partnership effects, it is conceded Exchequer ruled otherwise. Pollock,
that the case of a sheriff is not distin- C. B., said : " This is an action by the
guishable from that of any other joint assignees of a bankrupt to recover the
owner of a chattel; and, that being so, proceeds of certain goods sold by
the authorities are too strong to be got the defendants. The jury have found
over that the mere sale of a chattel by as a fact that one Shute [the solvent
one of two joint owners is not a conver- party] was jointly interested with the
sion as against the other." And Ores- bankrupt in the goods ; and no applica-
well and Williams, JJ., expressed the tion is made to disturb the verdict on
same opinion; though it was not neces- that ground. The defendants sold the
sary to the decision of the case. goods in question after the bankruptcy
A few years earlier Mr. Baron Parke by the direction of Shute ; and I am of
had said in Farrar v. Beswick, supra, opinion that they were justified in so
"I have always understood, until the doing, since they had the authority of
doubt was raised in Barton v. Williams, the solvent partner, who had a right to
that one joint tenant or tenant in com- deal with the property as his own."
mon of a chattel could not be guilty of Parke, B. : " Shute, the solvent partner,
a conversion by a sale of that chattel directed the defendants to sell the flour,
unless it were sold in such a manner as Now it is clear that one tenant in com-
to deprive his partner of his interest in mon may dispose of the common prop-
it. A sale in market overt would have erty; and, therefore, when the flour was
that effect." But the case was decided sold by the defendants, it was properly
upon other grounds. sold, so far as Shute was concerned.
Morgan v. Marquis, the latest of the Then the effect of the bankruptcy was
above English' cases, seems, however, to render the assignees tenants in com-
to be an express decision of the point, mon of the goods with Shute. But it is
There one of two apparent partners had well established that one tenant in coin-
committed an act of bankruptcy, which, mon cannot maintain an action against
it was argued by the plaintiffs and not his companion unless there has been a
denied, operated as a dissolution of the destruction of the particular chattel, or
partnership. Burt v. Moult, 1 Cromp. something equivalent to it. That being
& M. 625 ; Rainsbottom v. Lewis, 1 so, the defendants are not wrong-doers,
Campb. 279 ; Abel v. Sutton, 3 Esp. for they have acted under lawful au-
29
450
CONVERSION.
thority.'' And the learned Baron added
that the matter should be settled by an
account between the parties, either in
the Court of Bankruptcy or in equity.
This opinion of Parke, B., was
founded upon Fox v. Hanbury, 2 Cowp.
445, in which it was expressly held
that trover would not lie by the as-
signees of a bankrupt partner against
a bona fide consignee of the solvent
partner for the value of a consignment
of part of the firm property made after
the bankruptcy. And this case has
frequently been followed. Smith v.
Stokes, 1 East, 363; Smith v. Oriell,
ib. 368; Harvey v. Crickett, 5 Maule
& S. 336; Woodbridge v. Swann, 4
Barn. & Ad. 633. In Smith v. Stokes
the goods had been " sent to Monmouth,
directed to A. and B., and received by
the defendant" after the act of bank-
ruptcy of one of the partners of a firm ;
and it was held that the assignees be-
came tenants in common with the solvent
partner; " and then,'' said Lord Kenyon,
" the rule of law attaches, that one ten-
ant in common cannot maintain trover
against another." Tn Smith v. Oriell,
the solvent partner had delivered the
property over to the defendant in pay-
ment of a debt ; and Lord Kenyon said
that the defendant stood in the same
situation as the solvent partner himself,
thus indicating his opinion that the lat-
ter had not been guilty of a conversion.
In Harvey v. Crickett and in Wood-
bridge v. Swann, the court went further
still, and held that it made no difference
that the defendant, claiming under the
solvent partner, had notice of the bank-
ruptcy at the time of the transaction in
question. In the latter case the court
explained In re Wait, 1 Jac. & W. 605,
which was urged as contrary ; saying
that the chancellor, when sitting in
bankruptcy, exercises an equitable as
well as legal jurisdiction. See also Mor-
gan v. Marquis, supra, per Parke, B.
Turning to the American cases above
cited, the court in Oviatt v. Sage, 7
Conn. 95, 99, say that it is familiar law
that nothing short of a destruction of
the common property will render the
cotenant liable in tort ; " for he has an
equal right with his fellow-commoner to
the possession and use of the prop-
erty."
In Tubbs v. Richardson, 6 Vt. 442,
the cotenant had sold a part only of the
common property ; and it was held
that, conceding that a sale of the whole
would be a conversion, the sale of part
was not. But in Sanborn v. Merrill,
15 Vt. 700, the doctrine was extended
to the case of a sale of the entire prop-
erty. The subject was examined with
learning and ability in this case; and
the doctrine that a sale of the chattel
is a destruction of it was controverted.
"We have already remarked," said
Hcbard, J., speaking for the court,
"that this action may be maintained
for a destruction of the property by
one tenant in common against his co-
tenant; and those authorities which
sustain the action do, so upon the notion
that a sale is equivalent to a destruc-
tion. I think there is difficulty in sus-
taining the action upon this ground.
If the defendant had no right to sell,
this property, then his attempting to
do so did not divest the plaintiff of his
interest in it ; and while the plaintiff
had an interest in the property, so that
he could pursue it, I cannot see how it
can be said that the property was
destroyed. There can be no destruc-
tion of the property arising from the
sale, only upon the supposition that the
defendant was authorized to sell it, or,
having sold it, that the plaintiff has
ratified the sale ; and in either of these
WHAT CONSTITUTES CONVERSION.
451
cases it would not be pretended that
the plaintiff could maintain trover; but
the action should be in form ex con-
tractu," — that is, for the value of the
plaintiff's share. This case was re-
affirmed in Barton v. Burton, 27 Vt.
93.
In Pitt v. Petway, 12 Ired. 69, the
North Carolina court say : " In our
State it is held that if a tenant in com-
mon takes a slave out of the State to
parts unknown, and sells him, the co-
tenant may treat this as a destruction
of the property. But the idea that a
sale to a citizen of the county is tanta-
mount to a destruction is now advanced
for the first time and cannot be sus-
tained, without putting a tenant in
common upon the footing of a mere
wrong-doer, with whom there is no
privity ; for which position there is no
authority and no reason." See to the
same effect Lucas v. Wesson, 3 Dev.
398. But the carrying away must, it
should seem, within these authorities,
result in or amount to a loss or destruc-
tion of the common property in order
to an action in trover. Ripley r. Davis,
15 Mich. 78; Knight v. Cuates, 1 Irish
L. R. 53; Heath v. Hubbird, 4 East,
110, 121, citing Barnardiston v. Chap-
man, Hil. 1 Geo. 1, Bull. 2v. P. 34, 35.
In Jones v. Brown, 25 L. J. Ex. 345, it
was held that the secret removal of the
chattel with intent to sell the same and
apply the proceeds to the defendant's
use, would not authorize trover, As
to the rule in trespass, see note on that
subject, ante, p. 358.
It is clear from the old authorities
that an action of trover cannot be
maintained by one tenant for a dispos-
session by the other. Littleton, re-
ferred to in several of the above cases,
says, in § 323 : " If two be possessed of
chattels personal in common by divers
titles, as of a horse, an ox, or a cow,
&c, if the one take the whole to him-
self out of the possession of the other,
the other hath no other remedy but to
take this from him who hath done to
him the wrong, to occupy in common
when he can see his time. In the same
manner it is of chattels real, which
[i.e., such as] cannot be severed, as in
the case aforesaid, where two be pos-
sessed of the wardship of the body of
an infant within age, if the one taketh
the infant out of the possession of the
other, the other hath no remedy by an
action by the law but to take the infant
out of the possession of the other when
he sees his time.'' See Coke's Com-
mentary, Coke Litt. 200 a, where other
examples are given. In this connec-
tion Coke also gives several cases
from the Year-Books where an action
between cotenants was sustained ; but
these were all eases in which there was
a destruction of the common interest,
or something tantamount thereto. The
following may be noticed : If there be
two tenants in common of a dove-
house, and the one destroy the old
doves, whereby the flight is wholly lost,
the other tenant shall have an action
of trespass ; and the form of the writ
there given shows that the destruction
of the common property was part of
the plaintiff's case. The allegation
was, per quod volatum columbaris sui
totalizer atnisit. And so it is, says
Coke, in the next case, if two tenants
in common be of a park, and one
destroyeth all the deer, an action of
trespass lieth. Again, if two tenants
in common be of land, and of mete
stones, pro metis el bundis, and the one
take them up and carry them away, the
other shall have an action of trespass
quare vi et armis against him, in like
manner as he shall have for destruction
452
CONVERSION.
of doves. (As to this see Wilkinson «.
Haygartb, 12 Q. B. 837, 843, note;
Higgins v. Thomas, 8 Q. B. 908 ; Mur-
ray v. Hall, ante, p. 343.) And if two
several owners of houses have a river
in common between them, if one of
• them corrupt the river the other shall
have an action upon his case.
If, then, we are to accept these
authorities, it follows that trover can-
not be maintained for any thing short
of a substantial destruction of the com-
mon property. It is not necessary,
indeed, that the chattel itself should be
destroyed, but only that the community
of title, or rather the interest of the
plaintiif, should be broken up ; as in
the case of a sale in market overt, or,
perhaps, as held in North Carolina, by
a transportation of the chattel beyond
the State into parts unknown. A forti-
ori, if there be a destruction of the res,
" for there can be no tenancy in common
of a thing destroyed." 14 Viner, Abr.
516, Joint Tenants, S, a, pi. 15. The
plaintiff's interest in the chattel is not
affected by a sale, except in the cases
just mentioned ; if destruction is the
test, his action cannot be upheld.
It would seem upon principle that
this should be the test, because this
alone affects the plaintiff's interest in
the chattel. It is not enough to say
that he may be seriously injured by a
(professed) sale of the entire property.
So he may be by a sale of only the
cotenant's interest ; but he takes upon
himself the danger of disturbances of
this kind, in accepting the position of
eotenant. It is one of the incidents of
the situation. The plaintiff is no worse
off after the one sale than after the
other; and it is conceded that trover
cannot be maintained where the vendor
professes to sell nothing more than his
own interest.'
If it should be said that in the other
case there is an assumption of exclu-
sive dominion over the chattel, the
answer is, that it has always been
admitted that one tenant of common
property may exclude the other from
all right and participation in the enjoy-
ment without committing a conversion ;
and this certainly is exercising an ex-
clusive dominion over the property.
Besides, it is only necessary to refer to
the principal case, Donald v. Suckling,
and to Halliday v. Holgate, Law R.
3 Ex. 299, elsewhere considered in this
note, to show that (in England at least)
the exercise of the absolute dominion
of a sale or repledge of a chattel is
not a conversion, though done by a per-
son holding a position apparently of
inferior authority to that of a eotenant.
It is to be observed that it has been
decided in modern times, contrary ap-
parently to the old authorities, that
trespass will lie for an expulsion or
other ouster of a eotenant; and this
on the ground that ejectment, which
includes trespass, has always been held
to lie. (Qucere, if the rule extends
beyond such chattels real as are sever-
able. See Littleton, § 323, and the
commentary thereon in Coke Litt.
202 a) ; Murray v. Hall, ante, p. 343 ;
Wilkinson v. Haygarth, 16 Law J.
Q. B. 103; s. c. 12 Q. B. 837. See
also note on Trespass, ante, p. 359.
Perhaps the reason why trover can-
not be maintained where the act of the
defendant does not amount to a sever-
ance, and therefore a destruction of
the common interest, while the contrary
is true of trespass in certain cases
amounting to an ouster, is this : that in
the former action the plaintiff is enti-
tled, prima facie, to recover the value
of the chattel; and judgment for him,
therefore, would be equivalent to de-
WHAT CONSTITUTES CONVERSION.
453
daring that he was entitled to the chat-
tel as against his cotenant, which would
be inconsistent with the relations of the
parties. It is different where there has
been a wrongful severance by the de-
fendant, and the plaintiff then sues for
the conversion of his interest. But in
trespass for an ouster the plaintiff com-
plains merely of the injury which he
has suffered by being expelled or kept
out of possession of the common prop-
erty.
It follows from the above view that
in trover it is not enough for the de-
fendant, to plead that the chattel was
common property of the parties; for
the plaintiff's allegation of a conver-
sion is construed to mean a severance
and destruction, since there is no con-
version short of a severance. The
defendant must therefore deny the de-
struction if he pleads specially. This
was so decided in Higgins r. Thomas,
8Q.B. 908.
In the following cases trover was
upheld though there was no destruction
of the common property, but only a
withholding or misuse of it, or a refusal
to sever. Lobdell v. Stowell, 51 N. Y.
70; Agnew v. Johnson, 17 Penn. St.
377 ; Strickland v. Parker, 5-1 Maine,
263; Benedict v. Howard, 31 Barb.
571; Channon v. Lusk, 2 Lans. 211;
Piquet v. Allison, 12 Mich. 328. These
cases are founded upon the view that
it is not necessary to prove a destruc-
tion.
As to changes of the form of the
chattel, as by manufacture, this may
often amount to a conversion. Red-
ington v. Chase, 44 N. H. 36 ; Webb
v. Mann, 3 Mich. 139 ; Yawhill Bridge
Co. v. Newby, 1 Oreg. 174. But not
where the change is made for the pres-
ervation of the chattel. Pennings v.
Grenville, 1 Taunt, 246; Kilgore v.
Wood, 56 Maine, 154. See further, as
to destruction, Delaney v. Root, 99
Mass. 546 ; Sheldon v. Skinner, 4
Wend. 525; Winner v. Penniman, 35
Ind. 163; Oatfield v. Waring, 14 Johns.
188 ; Nunnally v. White, 3 Met. (Ky.)
584 ; Davis v. Tingle, 8 B. Mon. 539,
544; Guyther v. Pettijohn, 6 lied. 388;
Lowe v. Miller, 3 Gratt. 205 ; Allen v. _
Harper, 26 Ala. 686.
45-1 NUISANCE.
NUISANCE.
St. Helen's Smelting Co. v. Tipping, leading case.
Rose v. Miles, leading case.
Note on Nuisance.
Historical aspects of the subject.
Test of public or private nuisance.
Locality.
Bodily discomfort.
Mental discomfort.
Public nuisances.
Who liable.
Things authorized by statute or municipal license.
St. Helen's Smelting Co. v. Tipping.
(11 H. L. Cas. 642. House of Lords, 1865.)
Injury to Property and Physical Discomfort. There is a distinction between an action
for a nuisance in respect of an act producing a material injury to property, and
one brought in respect of an act producing personal discomfort. As to the latter,
a person must, in the interest of the public generally, submit to the discomfort of
the circumstances of the place, and the trades carried on around him ; as to the
former, the same rule would not apply.
Locality. Where no right by prescription exists to carry on a particular trade, the
fact that the locality where it is carried on is one generally employed for the pur-
pose of that and similar trades, will not exempt the person carrying it on from
liability to an action for damages in respect of injury created by it to property in
the neighborhood.
A place where the works of one person are carried on which occasion an actionable
injury to the property of another is not, within the meaning of the law, " a con-
venient " place.
A. bought an estate in a. neighborhood where many manufacturing works were car-
ried on. Among others, there were the works of a copper-smelting company. It
was not proved whether these works were in actual operation when the estate was
bought. The vapors from these works, when they were in operation, were proved
to be injurious to the trees on A.'s estate. At the trial, the judge told the jury
that (unless by a prescriptive right) every man must so use his own property as
not to injure that of his neighbor ; but that the law did not regard trifling incon-
veniences. Every thing must be looked at from a reasonable point of view ; and
therefore in the case of an alleged injury to property, as from noxious vapors from
a manufactory, the injury, to be actionable, must be such as visibly to diminish
the value of the property ; that locality, and all other circumstances, must be taken
into consideration, and that in all countries whore great works have been and were
carried on, parties must not stand on extreme rights. Held, that the direction was
right.
ST. HELEN'S SMELTING CO. V. TIPPING. 455
This was an action brought by the plaintiff to recover dam-
ages for injuries done to his trees and crops by the defendant's
work*. The defendants are the directors and shareholders of the
St. Helen's Copper-Smelting Company (limited). The plaintiff,
in 1860, purchased a large portion of the Bold Hall estate, con-
sisting of the manor-house and about 1,300 acres of land, within
a short distance of which stood the works of the defendants.
The declaration alleged that " the defendants erected, used, and
continued to use, certain smelting works upon land near to the
said dwelling-house and lands of the plaintiff, and caused large
quantities of noxious gases, vapors, and other noxious matter to
issue from the said works and diffuse themselves over the land
and premises of the plaintiff, whereby the hedges, trees, shrubs,
fruit, and herbage were greatly injured ; the cattle were rendered
unhealthy, and the plaintiff was prevented from having so bene-
ficial a use of the said land and premises as he would otherwise
have enjoyed ; and also the reversionary lands and premises were
depreciated in value." The defendants pleaded not guilty.
The cause was tried before Mr. Justice Mellor, at Liverpool,
in August, 1863, when the plaintiff was examined, and spoke dis-
tinctly to the damage done to his plantations, and to the very
unpleasant nature of the vapors, which, when the wind was in
a particular direction, affected persons as well as plants in his
grounds. On cross-examination, he said he had seen the defend-
ant's chimney before he purchased the estate, but he was not
aware whether the works were then in operation. On the part of
the defendants, evidence was introduced to show that the whole
neighborhood was studded with manufactories and tall chimneys;
that there were some alkali works close by the defendant's works ;
that the smoke from one was quite as injurious as the smoke from
the other ; that the smoke of both sometimes united ; and that it
was impossible to say to which of the two any particular injury
was attributable. The fact that the defendant's works existed
before the plaintiff bought the property was also relied on.
The learned judge told the jury that an actionable injury was
one producing. sensible discomfort; that every man, unless enjoy-
ing rights obtained by prescription or agreement, was bound to
use his own property in such a manner as not to injure the prop-
erty of his neighbors ; that there was no prescriptive right in this
case ; that the law did not regard trifling inconveniences ; that
456 NUISANCE.
every thing must be looked at from a reasonable point of view ;
and, therefore, in an action for nuisance to property, arising from
noxious vapors, the injury to be actionable must be such as visibly
to diminish the value of the property and the comfort and enjoy-
ment of it ; that when the jurors came to consider the facts, all
the circumstances, including those of time and locality, ought to
be taken into consideration ; and that with respect to the latter
it was clear that in countries where great works had been erected
and carried on, persons must not stand on their extreme rights
and bring actions in respect of every matter of annoyance, for if
so, the business of the whole country would be seriously interfered
with.
The defendant's counsel submitted that the three questions
which ought to be left to the jury were, " whether it was a nec-
essary trade ; whether the place was a suitable place for such a
trade ; and whether it was carried on in a reasonable manner."
The learned judge did not put the questions in this form, but did
ask the jury whether the enjoyment of the plaintiff's property
was sensibly diminished, and the answer was in the affirmative ;
whether the business there carried on was an ordinary business
for smelting copper, and the answer was, " We consider it an
ordinary business, and conducted in a proper manner, in as good
a manner as possible." But to the question whether the jurors
thought that it was carried on in a proper place the answer was,
" We do not." The verdict was therefore entered for the plain-
tiff, and the damages were assessed at 361L 18s. 4-|-i. A motion
was made for a new trial on the ground of misdirection, but the
rule was refused. 4 Best &'S. 608. Leave was, however, given
to appeal, and the case was carried to the Exchequer Chamber,
where the judgment was affirmed. 4 Best & S. 616.
The judges were summoned, and Mr. Baron Martin, Mr. Jus-
tice Willes, Mr. Justice Blackburn, Mr. Justice Keating, Mr.
Baron Pigott, and Mr. Justice Shee attended.
After the argument, the Lord Chancellor (Lord Westbury)
proposed these questions to the judges : " Whether directions
given by the learned judge at nisi prius to the jury were cor-
rect? or, Whether a new trial ought to be granted in this case?"
Upon a short consultation among the judges, Mr. Baron Mar-
tin answered that the directions were correct, being such as had
been given in cases of this kind for the last twenty years.
ST. HELEN'S SMELTING CO. V. TIPPING. 457
The Attorney- General (Sir E. Palmer) and Mr. Webster, for
the appellants. Mr. Brett, Mr. Mellish, and Mr. Milward, for
the respondents.
The Lord Chancellor. My lords, I think your Lordships
will be satisfied with the answer we have received from the
learned judges to the questions put by this House.
My lords, in matters of this description it appears to me that
it is a very desirable thing to mark the difference between an
action brought for a nuisance upon the ground that the alleged
nuisance produces material injury to the property, and an action
brought for a nuisance on the ground that the thing alleged to
be a nuisance is productive of sensible personal discomfort.
With regard to the latter, namely, the personal inconvenience
and interference with one's enjoyment, one's quiet, one's personal
freedom, any thing that discomposes or injuriously affects the
senses or the nerves, whether that may or may not be denomi-
nated a nuisance, must undoubtedly depend greatly on the cir-
cumstances of the place where the thing complained of actually
occurs. If a man lives in a town, it is necessary that he should
subject himself to the consequences of those operations of trade
which may be carried on in his immediate locality, which are
actually necessary for trade and commerce, and also for the
enjoyment of property, and for the benefit of the inhabitants of
the town and of the public at large. If a man lives in a street
where there are numerous shops, and a shop is opened next door
to him, which is carried on in a fair and reasonable way, he has
no ground for complaint because to himself individually there
may arise much discomfort from the trade carried on in that
shop. But when an occupation is carried on by one person in
the neighborhood of another, and the result of that trade or occu-
pation or business is a material injury to property, then there
unquestionably arises a very different consideration. I think,
my lords, that in a case of that description, the submission which
is required from persons living in society to that amount of
discomfort which may be necessary for the legitimate and free
exercise of the trade of their neighbors, would not apply to cir-
cumstances the immediate result of which is sensible injury to
the value of the property.
Now, in the present case it appears that the plaintiff purchased
a very valuable estate, which lies within a mile and a half from
458 NUISANCE.
certain large smelting works. What the occupation of these
copper-smelting premises was anterior to the year 1860 does not
clearly appear. The plaintiff became the proprietor of an estate
of great value in the month of June, 1860. In the month of
September, 1860, very extensive smelting operations began on
the property of present appellants, in their works at St. Helen's.
Of the effect of the vapors exhaling from those works upon the
plaintiff's property, and the injury done to his trees and shrubs;
there is abundance of evidence in the case.
My lords, the action has been brought upon that, and the
jurors have found the existence of the injury ; and the only
ground upon which your Lordships are asked to set aside that
verdict and to direct a new trial is this, that the whole neigh-
borhood where these copper-smelting works were carried on is
a neighborhood more or less devoted to manufacturing purposes
of a similar kind, and, therefore, it is said that inasmuch as this
copper smelting is carried on in what the appellant contends is a
fit place, it may be carried on with impunity, although the result
may be the utter destruction, or the very considerable diminu-
tion, of the value of the plaintiff's property. My lords, I appre-
hend that that is not the meaning of the word " suitable," or
the meaning of the word " convenient," which has been used as
applicable to the subject. The word " suitable " unquestionably
cannot carry with it this consequence, that a trade may be car-
ried on in a particular locality, the consequence of which trade
may be injury and destruction to the neighboring property. Of
course, my lords, I except cases where any prescriptive right has
been acquired by a lengthened user of the place.
On these grounds, therefore, shortly, without dilating further
upon them (and they are sufficiently unfolded by the judgment
of the learned judges in the court below), X advise your Lord-
ships to affirm the decision of the court below, and to refuse the
new trial, and to dismiss the appeal with costs.
Lord Cranworth. My lords, I entirely concur in opinion
with my noble and learned friend on the woolsack, and also in
the opinion expressed by the learned judges, that this has been
considered to be the proper mode of directing a jury, as Mr.
Baron Martin said, for at least twenty y«ars ; I believe I should
have carried it back rather further. In stating what I always
understood the proper question to be, I cannot do better than
ST. Helen's smelting co. v. tipping. 459
adopt the language of Mr. Justice Mellor. He says, " It must
be plain that persons using a lime-kiln, or other works which
emit noxious vapors, may not do an actionable injury to another,
and that any place where such an operation is carried on so that
it does occasion an actionable injury to another, is not, in the
meaning of the law, a convenient place.'' I always understood
that to be so ; but in truth, as was observed in one of the cases
by the learned judges, it is extremely difficult to lay down any
actual definition of what constitutes an injury ; because it is
always a question of compound facts, which must be looked to, to
see whether or not the mode of carrying on a business did or did
not occasion so serious an injury as to interfere with the comfort
of life and enjoyment of property.
I perfectly well remember, when I had the honor of being one
of the barons of the Court of Exchequer, trying a case in the
county of Durham, where there was an action for injury arising
from smoke in the town of Shields. It was proved incontestably
that smoke did come and in some degree interfere with a certain
person ; but I said, " You must look at it, not with a view to the
question whether, abstractly, that quantity of smoke was a nui-
sance, but whether it was a nuisance to a person living in the
town of Shields ; " because, if it only added in an infinitesimal
degree to the quantity of smoke, I held that the state of the
town rendered it altogether impossible to call that an actionable
nuisance.
There is nothing of that sort, however, in the present case. It
seems to me that the distinction, in matters of fact, was most cor-
rectly pointed out by Mr. Justice Mellor, and I do not think he
could possibly have stated the law, either abstractly or with ref-
erence to the facts, better then be has done in this case.
Lord Wensleydale. My lords, I entirely agree in opinion
with both my noble and learned friends in this case. In these
few sentences I think every thing is included. The defendants
say, " If you do not mind, you will stop the progress of works of
this description." I agree that it is so ; because, no doubt, in the
county of Lancaster, above all other counties, where great works
have been created and carried on, and are the means of develop-
ing the national wealth, you must not stand on extreme rights,
and allow a person to say, " I will bring an action against you
for this and that, and so on." Business could not go on if that
460 NUISANCE.
were so. Every thing must be looked at from a reasonable point
of view ; therefore the law does not regard trifling and small
inconveniences, but only regards sensible inconveniences, inju-
ries which sensibly diminish the comfort, enjoyment, or value of
the property which is affected."
My lords, I do not think the question could have been more
correctly laid dawn by any one to the jury, and I entirely concur
in the propriety of dismissing this appeal.
Judgment of the Exchequer Chamber affirming the judgment of
the Court of Queen's Bench affirmed, and appeal dismissed with
costs.
Rose and Others v. Miles.
(4 Maule & S. 101. King's Bench, Easter Term, 1815.)
Public Nuisance. Where plaintiff declared that before and at the time of committing
the grievance, he was navigating his barges, laden with goods, along a public navi-
gable creek, and that defendant wrongfully moored a barge across, and kept the
same so moored, from thence hitherto, and thereby obstructed, the public naviga-
ble creek, and prevented the plaintiff from navigating his barges so laden, per quod
plaintiff was obliged to convey his goods a great distance overland, and was put
to trouble and expense in the carriage of his goods overland. Held, that this was
special damage for which an action upon the case would lie.
Error to reverse a judgment of the Common Pleas.
The plaintiff declares in one of the counts, that whereas the
plaintiff, before and at the time of committing the grievances by
the defendants, was lawfully possessed of certain barges and
other crafts laden with goods, wares, and merchandises of the
plaintiff, and just before and at the time of committing the griev-
ances was navigating his said barges and craft so laden along a
certain navigable creek, part of a certain public river, situate,
&c, yet the defendants well knowing the premises, but contriv-
ing and wrongfully and unjustly intending to injure the plaintiff,
and to prevent him from navigating his barges and craft, so laden
as aforesaid, along the said public navigable creek, heretofore, to
wit, on, &c, wrongfully and injuriously moored and fastened, and
caused to be moored and fastened, a certain barge across the said
public navigable creek and the channel thereof, and kept and
ROSE V. MILES. 461
continued the said barge so moored and fastened across the said
navigable creek and the channel thereof, for a long space of
time, to wit, from thence hitherto, and thereby during all the
time aforesaid obstructed the said public navigable creek and the
channel thereof, and thereby prevented the plaintiff from navi-
gating his said barges and craft so laden along the said public
navigable creek ; by reason of all which premises the plaintiff
was not only during all the time aforesaid obliged to convey all
his said goods, wares, and merchandises a great distance over-
land, but was also during the time aforesaid put to great trouble
and inconvenience in carrying on his business, and hath been
obliged to expend divers large sums of money, to wit, 500L, in
and about the carriages of his said goods, wares, and merchan-
dises overland as aforesaid.
Plea, not guilty ; and a general verdict for the plaintiff upon
the whole declaration, with 20s. damages. And the errors
assigned were, that the supposed obstructions in the public navi-
gable river in the declaration mentioned are in the nature of a
common nuisance to all the subjects of the realm, and not of a
particular or private injury to the plaintiff; and it is not shown
that the plaintiff has actually incurred or sustained any special
damage by reason of such obstructions. Also, that the plaintiff
has brought a personal civil action, and recovered damages
therein for a grievance or nuisance remediable only by criminal
prosecution. Also, that the declaration is not sufficient in law,
&q. Joinder in error.
Jlarryat, in support of the errors.
Lord Ellenborough, C. J. In Hubert v. Groves the damage
might be said to be common to all ; but this is something differ-
ent, for the plaintiff was in the occupation, if I may so say, of
the navigation, he had commenced his course upon it, and was
in the act of using it when he is obstructed. It did not merely
rest in contemplation. Surely this goes one step farther : this is
something substantially more injurious to this person than to
the public at large, who might only have it in contemplation to
use it. And he has been impeded in his progress by the defend-
ants wrongfully mooring their barge across, and has been com-
pelled to unload and to carry his goods overland, by which
he has incurred expense, and that expense caused by the act
of the defendants. If a man's time or his money are of any
462
NUISANCE.
value, it seems to me that this plaintiff has shown a particular
damage.
Baylet, J. The defendants in effect have locked up the
plaintiff's craft whilst navigating the creek, and placed him in a
situation that he unavoidably must incur expense in order to con-
vey his goods another way.
Dampier, J. The present case, I think, admits of this distinc-
tion from most of the other cases, that here the plaintiff was
interrupted in the actual enjoyment of the highway. The
expense was incurred by the immediate act of the defendants,
for the plaintiff was forced to unload his goods, and carry them
overland. If this be not a particular damage, I scarcely know
what is.
Per Curiam. Judgment affirmed.
Heath was to have argued for the defendant in error.
Historical. — The subject of nuisance
is one of the oldest heads of the Eng-
lish law. Speaking of public nuisances,
Glanvill says: "A purpresture, or,
more properly speaking, a porpresture,
is when any thing is unjustly encroached
upon against the king, as in the royal
demesnes ; or in obstructing public
ways ; or in turning public waters from
their right course ; or when any one has
built an edifice in a city upon the king's
street. And, generally speaking, when-
ever a nuisance is committed affecting
the king's lands or the king's highway, or
a city, the suit concerning it belongs to
the king's crown. But purprestures of
this description are inquired after either
in the king's chief court, or before his
justices sent into the different parts of the
kingdom for the purpose of making such
inquisitions by a jury of the place or
vicinage. And if by such jury a man
be convicted of having made any pur-
presture of this kind, he shall be
amerced to the king to the extent of
the whole fee that he holds of him, and
shall restore that which he has en-
croached upon ; and if convicted of
having encroached by building in a
city upon the king's street, the edi-
fices shall belong to the king, — those
at least which are found to be con-
structed within the Royal District.
And, notwithstanding, he shall be
amerced to the king." Glanvill, by
Beames, book 9, c. 11, pp. 238-
240.
Private nuisances were also action-
able at this time where they were in
the nature of a disseizin, by disturb-
ing a man's possession.1 Redress for
the injury was therefore sought in a
real action, — the assize, an account of
which will be found in the note on
Trespasses upon Property, ante, p. 346.
Glanvill says : " If any dyke should be
raised or thrown down, or the pond of
any mill be destroyed, to the injury of
any person's freehold, and such offence
has been committed within the time
1 Disseizins were either simplex or viohnta: Bracton, p. 162, c. 4; the former correspond-
ing to the modern disseizins by election, the latter to actual disseizins.
HISTORICAL.
463
limited by the king's assize, then, ac- out a writ; but afterwards it can only
cording to the subject-matter, the writs be done under * writ. And the same,
are vaiied in the following manner: he adds, of a right of way over another's
'The king to the sheriff, health. N. land, which is obstructed or narrowed,
complains to me that R., unjustly and Lib. 4, c. 43, p. 2316. And many
without a judgment, has raised a cer- other cases of the same kind are given,
tain dyke in such avill,or thrown it How well, indeed, the law was developed
down, to the nuisance of his freehold in at this time appears from a passage at
the same vill, since my last voyage into the close of the next chapter, where
Normandy. And therefore I command Bracton, distinguishing between nui-
you, if the aforesaid N. should make sances that are both wrongful and harm-
you secure of prosecuting his claim, ful and those that are merely harmful,
then that you cause twelve free, &c, to says that certain things which are an-
view such dyke and tenement, and noyances to individuals are for the
cause their names to be imbreviated. public good, and must be endured ;
And summon,' " &c. In the other case such as the establishment of fisheries
the writ reads : " N. has complained to and ponds. And he tells us that one
me that R., unjustly and without a who confers such a benefit upon the
judgment, has raised the pond of his public, within his own land, does no
mill, in such a vill, to the nuisance of wrong to his neighbors, though they
his freehold, in such vill, or in another may suffer harm thereby. Per hoc
vill, since my last voyage into Nor- (making the fishery or pond) licet dam-
mandy," eic. Book 13, c. 34—37, pp. num faciat vicinis, non tamen facit in-
336-338. The assize in such cases juriam. Lib. 4, c. 44, p. 232 b.
came afterwards to be called an assize Bracton, also says that a person may
of nuisance; the writ differing from a have a servitude of conveying water out
writ of novel disseizin in not expressly of another's soil and through another's
alleging a disseizin, and in not demand- soil ' (ex /undo alieno et per f nudum
ino- a reseizin. alienum) for the purpose of irrigating
Three chapters are devoted to the his land, and that he ought not to be
subject of nuisance by Bracton; the hindered when acting according to the
first case he mentions being that of a custom of the servitude ; for instance,
private nuisance. If, savs he, a man has where he has a right to take the water
a servitude and a right of pasture in the at all times, and the owner of the soil
land of another, and the owner of the will only permit him to do so at a par-
land does any thing by which the ingress ticular time. Book 4, c. 41, p. 2316.
is prevented, or made less convenient And Britton adds that the injured patty
(quo minus omnino ingredi possit, vel may have an assize of nuisance in such
minus commode) , as if he should make case. Liv. 2, c. 30, § 1, p. 3(J8,
a wall or ditch at the entrance, a wrong- Nichols's ed. So, says Bracton, in c.
ful nuisance (nocumentum injuriosum) 44, of a man having a right of pasture,
is done ; and that which is made may, who finds the way narrowed, and he is
siatim et recenter flagrante facto, be compelled to take a circuitous route to
thrown down and destroyed even with- reach it. See Britton, liv. 2, c. 30,
1 See thfe note on Obstructing and Diverting Water, post ; and see also Dickinson v.
Worcester, 7 Allen, 19; Tootle v. Clifton, 22 Ohio St. 247.
464
NUISANCE.
§ 4. And so of a way for wagons which
he is not permitted to use. lb.
We are also told by Bracton that, as
there may be a wrongful nuisance in
faciendo, so there may be in non fa-
ciendo, in the land of another; as where
one is bound to fence and shut up, to
cleanse and repair, and does not do it.
And as there may be a wrongful nui-
sance in not doing a thing, so there
may in not permitting a thing to be
done; as where the owner of the soil
will not permit any one to fence or re-
pair. Book 4, c. 44, p. 232 6. So
says Britton. I,iv. 2, c. 30, § 7.
It is worthy of note that it appears
from the first passage referred to from
Bracton that the right to abate a nui-
sance, while yet fresh, is also one of the
oldest rights given by the English law.
(See also ib. p. 233, c. 44.) It might
probably be traced far back of Bracton,
and would likely prove to be one of the
few instances of pure archaic law which
have survived until the present time.
It is an interesting fact that in the
time both of Glanvill and Bracton a
nuisance was sometimes treated not
merely in the light of, but as, an actual
disseizin. The subject was considered
by both of these writers under the title
De Assisa novce disseysince. Sometimes
the assize of nuisance was used, and
sometimes the assize of novel disseizin.
If the defendant, for instance, caused
water to overflow wholly upon the land
of the plaintiff, this was thought rather
a disseizin than a nuisance ; but if the
water rose only upon the defendant's
land, and thereby merely incommoded
the plaintiff, it was only a nuisance. If
a stream ran between the lands of two
persons, and part of the water flowed
into the plaintiff's freehold, and part
into the defendant's, both writs could
be employed ; the one for the disseizin,
and the other for the nuisance. And
so there might be two assizes concern-
ing the same act, " et sic duaa erunt
assisa? de uno facto." Bracton, lib. 4,
c. 45, p. 2346. (Mr. Reeves carelessly
renders the three last words " on ac-
count of the same land," which is as
meaningless as it is incorrect. 1 Hist.
English Law, p. 360, Finl. ed. See
also 1 Nichols's Britton, p. 405, where
this passage, taken from Bracton, is
translated correctly.)
Even more prominence, relatively,
is given to the subject of nuisance in the
later treatise of Britton, though most of
that which this writer presents is taken,
often literally, from Bracton. And
Britton entitles his chapter 30 of book
2, " De Nusaunces." He had previously
stated that the law would not allow a
person to do any thing tortious on his
own land that would work annoyance
to his neighbor; such as raising the
water of his pond so as to flood his
neighbor's land, or making a trench
in his own soil whereby water is di-
verted from his neighbor, or the doing
any thing whereby his neighbor may
be prevented from using his seizin
as freely and fully as he was wont.
Liv. 2, c. 23, § 5, p. 363, Nichols's ed.
And after stating the substantive part
of the law in chapter 30, he proceeds in
chapter 31 to consider of the remedy of
nuisance, and in chapter 3:2 of the pleas
permitted therein. The substance of
Bracton is taken, with little addition or
change, except in arrangement.
The law of servitudes is, of course,
taken by Bracton from the Roman law ;
and it had even there the highest an-
tiquity, servitudes being mentioned, and
that of way, as to width, accurately de-
fined, in the Twelve Tables. See
Tomkins & Lemon's Gaius, p. 235.
Bracton mentions at least three servi-
TEST OF PUBLIC OR PRIVATE NUISANCE. LOCALITY.
465
tudes derived from the civil law, — that
of iter (passing on foot or horseback) ,
that of actus (driving animals or vehi-
cles through), and that of aqu.ce, ductus.
Book 4, c. 44, p. 232 6.
In later times the assize of nuisance
became obsolete, being gradually su-
perseded, as trespass and afterwards
case grew into favor for the trial of in-
juries to property. See note on Tres-
passes upon Property, ante, p. 348.
Test of Public or Private Nuisance.
— Turning now from this historical
view of the subject, it is proper to state
that with the criminal aspect of nuisance
we have here no concern ; though it is
important to observe that the criterion
by which to determine whether a partic-
ular case is to be classed as a public or
private nuisance depends, or seems to
depend, upon the consideration whether
it be indictable or not. See Bamford
o. Turnley, infra ; Soltau v. De Held,
2 Sim. x. s. 133, 144, 145; Wesson v.
Washburn Iron Co., 13 Allen, 95, 101.
There is this fact to be noticed, also,
that a private nuisance must be created
upon the premises (generally speaking)
of the defendant; while a public nui-
sance may be created either upon the
defendant's premises or upon the land
of the public.
Locality. — Let us now ascertain, so
far as the indefinite nature of the sub-
ject is capable, what constitutes a nui-
sance. The question depends upon a
variety of considerations, aside from
the nature of the act or omission, such
as locality, time, and other circum-
stances, and will occupy the chief part
of this note . Upon the important ques-
tion of locality the principal case, St.
Helen's Smelting Co. v. Tipping, has
settled for the English courts a point
about which there had previously been
considerable fluctuation. In Comyns's
Digest, Action upon the Case for a
Kuisance, C, occurs the following pas-
sage, given again in Selwyn's N. P.
1115 (10th ed.), and in Gale, Ease-
ments, 295 : " An action upon the case
does not lie upon a thing done to the
inconvenience of another, as if a man
erect a mill near to the mill of another,
whereby the other loses part of his profit.
1 Rol. 107, 1. 20 ; 11 H. 4, fo. 47 b. So it
does not lie for a reasonable use of my
right, though it be to the annoyance of
another ; as if a butcher, brewer, &c, use
his trade ;'« a convenient place, though it
be to the annoyance of his neighbor."
In Hole v. Barlow, 4 Com. B. N. s.
334, a case arose involving the second
of the above propositions. The plain-
tiff brought an action against the de-
fendant for a nuisance arising from the
burning of bricks on the defendant's
land near to the plaintiff's dwelling-
house. The defendant contended that
the thing complained of was not a nui-
sance, since it was done in a convenient
place, and not with intent to injure or
annoy the plaintiff. There was no
question of prescription or reserva-
tion ; and Mr. Justice Byles charged
the jury that "to entitle the plaintiff
to maintain an action for an injury of
this nature, it is not necessary that the
thing complained of should be inju-
rious to health ; it is enough if it ren-
ders the enjoyment of life and property
uncomfortable. If you are satisfied
from the evidence," he continued,
" that the enjoyment of the plaintiff's
house was rendered uncomfortable
through the instrumentality of the de-
fendant, that is sufficient to entitle the
plaintiff to maintain this action. But
that is subject to this observation, - —
that it is not everybody whose enjoy-
ment of life and property is rendered
uncomfortable by the carrying on of an
30
466
NUISANCE.
offensive or noxious trade in the neigh-
borhood that can bring an action. . . .
I apprehend the law to be this, that no
action lies for the use, the reasonable
use, of a lawful trade in a convenient
and proper place, even though some
one may suffer annoyance from its
being so carried on." This instruction
was sustained by the judges upon a
motion for a new trial.
So, too, in Kich v. Basterfield, 4
Com. B. 783, an action for a nuisance
arising from smoke issuing from the
defendant's chimney, Erie, J., in in-
structing the jury, added a similar
qualification to the rule of sic utere tuo,
that the right should be exercised in a
reasonable place ; but this was merely
incidental.
The correctness of the decision in
Hole v. Barlow came up for review in
Bamford v. Turnley, 3 Best & S. 66.
This, too, was an action for a nuisance
arising from burning bricks upon the
defendant's premises, near to the plain-
tiff's house. The Lord Chief Justice
at nisi prius directed the jury, upon
the authority of Hole v. Barlow, that
if they thought that the spot was con-
venient and proper, and the burning of
the bricks a reasonable use of the prem-
ises, the plaintiff could not recover.
This instruction was affirmed by the
Queen's Bench ; and an appeal was
taken to the Exchequer Chamber. Here
the judgment of the court below was
reversed, the Chief Justice dissenting.
Williams, J., who delivered the judg-
ment of the court, referring to the pas-
sage from Comyns above quoted, said
that there was a want of precision in
the use of the words " reasonable "
and "convenient,'' which rendered its
meaning obscure. He thought, how-
ever, that " convenient," instead of
meaning suitable for the purpose of
carrying on the trade, as it had been
understood in Hole v. Barlow, meant
a place where a nuisance would not
be caused to another. And Jones v.
Powell, Palm. 536, 539, s. c. Hutt. 135,
was referred to, where Hide, C. J., as
translated, says : "A tan-house is neces-
sary, for all men wear shoes ; and nev-
ertheless it may be pulled down if it be
erected to the nuisance of another. In
like manner of a glass-house ; and they
ought to be erected in places conven-
ient for them." See Gale, Easements,
410 (Willes ed.), where the same inter-
pretation of the term is given. See also
Beardmore v. Treadwell, 3 Giff. 683,
699. The learned judge further said
that the term seemed to be used in the
same sense when applied to cases of
public nuisance ; and he referred to
Hawkins, who says, "It seems to be
agreed that a brew-house, erected in
such an inconvenient place wherein the
business cannot be carried on without
greatly incommoding the neighborhood
may be indicted as a common nui-
sance." 2 Hawk. P. C. 146, § 10
(Leach). "It should seem, there-
fore," the court proceed to say, "that
just as the use of an offensive trade will
be indictable as a public nuisance if it
be carried on in an inconvenient place,
i.e., a place where it greatly incom-
modes a multitude of persons, so ii will
be actionable as a private nuisance if
it be carried on in an inconvenient
place, i.e., a place where it greatly
incommodes an individual. If this be
the true construction of the expression
'convenient' in the passage from
Comyns's Digest, the doctrine contained
in it amounts to no more than what has
long been settled law, viz., that a man
may, without being liable to an action,
exercise a lawful trade, as that of a
butcher, brewer, and the like, notwith-
BODILY DISCOMFORT.
467
standing it be carried on so near the
house of another as to be an annoyance
to him, in rendering his residence there
less delectable or agreeable, provided
the trade be so conducted that it does
not cause what amounts in point of
law to a nuisance to the neighboring
house.''
It was added that Hole v. Barlow
was in conflict with Walter v. Selfe,
4 De G. & S. 315, 326, infra, where
an injunction was granted in a similar
case ; and that, if that case were to be
maintained, it would follow that, how-
ever ruinous the nuisance might be, the
injured party would be without redress
if a jury should deem it right to find
that the place where the trade was car-
ried on was proper and convenient for
the purpose.
It was further held in this case that
the decision could not be affected by
the additional remark of the Lord Chief
Justice, that there must be a reasonable
use of the premises.
The same point arose again in Cavey
v. Ledbitter, 13 Com. B. N. s. 470 ; and
Bamford v. Turnley was followed.
See also Wanstead Board of Health v.
Hill, ib. p. 479.
It will be observed that there was
no definition of a nuisance in Bamford
v. Turnley ; though it was plainly inti-
mated that it was not every degree of
annoyance, however small, lhat would be
actionable. The principal case supplies
the omission so far as such a thing is
capable of being defined ; the doctrine,
as laid down by Mellor, J., dXnisiprius,
and affirmed in every stage of the liti-
gation, being that the law does not
regard trifling inconveniences ; that
every thing must be looked at from a
reasonable point of view; that the
injur)' from noxious vapors must be
such as to visibly (sensibly ?) diminish
the value of the property and the comfort
and enjoyment of it ; that in determin-
ing that question the time, locality, and
all the circumstances should be taken
into consideration ; and that in dis-
tricts where great works have been
erected and carried on, which are the
means of developingthe national wealth,
persons must not stand on extreme
rights and bring actions in respect of
every matter of annoyance, for that
would be destructive to business in
those places.
St. Helen's Smelting Co. v. Tipping
shows that it is no defence that the
plaintiff had notice of the existence of
the nuisance when he located himself
near it. See also the charge of Byles,
J., in Hole v. Barlow, 4 Com. B. N. 8.
334, 336 ; Bliss v. Hall, 4 Bing. N. C.
183 ; Bamford v. Turnley, 3 Best & S.
62, 70, 73 ; King v. Morris, 3 C. E.
Green, 397. And justification of user
must show that the offensive trade or
occupation had been carried on through
the period of prescription. Elliotson
v. Feetham, 2 Bing. N. C. 134; Bliss
v. Hall, 4 Bing. N. C. 183 ; Flight v.
Thomas, 10 Ad. & E. 590.
Bodily Discomfort. — In the House
of Lords a distinction was made by the
principal case between injuries to prop-
erty and mere personal (i.e., bodily)
annoyances. Just what the distinction
is it is probably impossible to say ; and
the distinction itself is difficult to appre-
hend. The meaning appears to be that
the degree of harm in an action for
personal discomfort must be greater
than in an action for an injury to prop-
erty. This may be a practical rule in a
case where both kinds of injury appear ;
but how will it be where the action is
for personal discomfort, and there is no
proof of injury to property? How
much discomfort must be endured ?
468
NUISANCE.
In Walter v. Selfe, 4 De G. & S.
315, the plaintiffs sought and obtained
an injunction against the defendant to
restrain him from carrying into execu-
tion an intended burning of bricks so
near to the plaintiff's premises as to
occasion damage or annoyance to the
plaintiffs, or damage to their messuage,
coach-house, stable, wood-house and
trees, shrubberies, &c. The Vice-
Chancellor (whose judgment was af-
firmed on appeal, 4 De G. & S. 326)
said that the plaintiffs were entitled to
an unpolluted and untainted stream of
air for the necessary supply and reason-
able use of themselves and family ;
" meaning," said he, " by ' untainted'
and ' unpolluted,' not necessarily air as
fresh, free, and pure as at the time of
building the plaintiffs' house, the atmos-
phere there was, but air not rendered
to an important degree less compatible,
or at least not rendered incompatible,
with the physical comfort of human
existence, — a phrase to be understood
of course with reference to the climate
and habits of England." The learned
judge then proceeds to show that the
intended business of the defendant
would substantially interfere with this
right. "That the process," he ob-
serves, " of manufacturing bricks by
burning them on the defendant's land
in the manner begun and now intended
by him must communicate smoke, va-
pors, and floating substances of some
kinds to the air is certain. I think it
plain, also, from the relative positions
of the two properties, that this smoke
and these vapors and floating sub-
stances, the burning being to the west-
ward of the defendant's own house, must
wholly or to a great extent enter and
become mixed with the air supplying
the plaintiffs' house, and part at least
of the garden or pleasure ground be-
longing to it, and this without being
previously so dispersed or attenuated
as to become imperceptible, or be ma-
terially impaired or diminished in force.
I conceive that the plaintiffs' house, and
at least part of its pleasure ground or
garden, must generally or often, if the
manufacture shall proceed, be sub-
jected substantially, as far as the qual-
ity of the atmosphere is concerned, to
the original and full strength of the
mixture and dose thus produced. I
speak without forgetting the trees that
stand along the line of the boundary,
and without assuming their continuance
or the contrary. The question then
arises whether this is or will be an
inconvenience to the occupier of the
plaintiffs' house as occupier of it, — a
question which must, I think, be an-
swered in the affirmative ; though,
whether to the extent of being noxious
to human health, to animal health, in
any sense, or to vegetable health, I do
not say or deem it necessary to inti-
mate an opinion ; for it is with a pri-
vate, not a public nuisance, that the
defendant is charged. And both on
principle and authority the important
point next for decision may properly,
I conceive, be thus put : Ought this
inconvenience to be considered in fact
as more than fanciful, more than one of
mere delicacy or fastidiousness, as an
inconvenience materially interfering
with the ordinary comfort, physically,
of human existence, not merely accord-
ing to elegant or dainty modes and
habits of living, but according to plain
and sober and simple notions among
the English people ? And I am of
opinion that this point is against the
defendant. As far as the human frame,
in an average state of health at least, is
concerned, mere insalubrity, mere un-
wholesomeness, may possibly, as I have
BODILY DISCOMFORT.
469
said, be out of the case ; but the same
may perhaps, be asserted of stied hogs,
melting tallow, and other such inven-
tions less sweet than useful. That does
not decide the dispute ; a smell may be
sickening, though not in a medical sense.
Ingredients may, I believe, be mixed
with air of such a nature as to affect
the palate disagreeably and offensively,
though not unwholesomely. A man's
body may be in a state of chronic dis-
comfort, still retainingits health, and per-
haps even sutfer more annoyance from
nauseous or fetid air for being in a hale
condition. Nor, I repeat, do I think it
incumbent on the plaintiffs to establish
that vegetable life or vegetable health,
either universally or in particular in-
stances, is noxiously affected by the
contact of vapors and floating sub-
stances proceeding from burning bricks ;
for, as I said, they have, I think, estab-
lished that the defendant's intended
proceedings will, if prosecuted, abridge
and diminish seriously and materially
the ordinary comfort of existence to
the occupier and inmates of the plain-
tiffs' house, whatever their rank or sta-
tion, whatever their age, whatever their
state of health." See also, as to brick-
making, Beardmore v. Tredwell, 3 Giff.
683, where the defendants were com-
pelled to remove ; Wanstead Board
of Health v. Hill, 13 Com. B. n. s. 479,
where it was held that brick-making
was not necessarily a noxious or offen-
sive business within the Public Health
Act; Huckenstine's Appeal, 70 Penn.
St. 102, to the same effect; Cleeve v.
Mahony, 9 Week. Rep. 882, where the
annoyance being but temporary, an
injunction was refused ; also Attorney-
Gen, v. Cleaver, 18 Ves. 219.
In an action brought against a gas-
company for a nuisance arising from un-
wholesome and annoying odors, gases,
and stenches, by which the health and
comfort of the plaintiff and his family
had been affected, the court instructed
the jury that if they should assess the
damages on the basis of noisome and
disagreeable smells in the air and water,
there must be some real, substantial
damage to the plaintiff in this respect.
" But by this," said the learned judge,
" I do not mean that he shall have had
physician's or nurse's bills to pay, or
have been put to any actual expense,
but he or his family must have been
rendered more uncomfortable than per-
sons ordinarily are who are similarly sit-
uated in all things, except as to the an-
noyance complained of. If he has been
so rendered uncomfortable, he has sus-
tained an actual, substantial damage."
Exception having been taken to the
charge, it was said by a majority of
the Supreme Court that the part of the
charge italicized might have led the jury
into a mere comparison of the situation
of the plaintiff with that of his neigh-
bors, — into an inquiry simply whether
any difference was perceptible; and the
exception was sustained. Columbus
Gas Co. v. Freeland, 12 Ohio St. 392.
The subject of nuisances arising from
smoke, noxious vapors, and noise came
recently before Lord Romilly, M. R., in
Crump v. Lambert, Law R. 3 Eq. 409.
In this case an injunction was granted
to restrain the issuing of smoke and
effluvia from a factory chimney, and the
making of noise in the factory, although
the building was situated in a manufact-
uring town ; the evidence proving that
the smoke, effluvia, and noise were a
material addition to previously exist-
ing nuisances. The learned judge said
that he considered it to be established
by numerous decisions that smoke, un-
accompanied with noise or noxious
vapor, that noise alone, that offensive
470
NUISANCE.
■vapors alone, although not injurious
to health, might severally constitute a
nuisance to the owner of adjoining or
neighboring property; and that, if they
did, substantial damages might be re-
covered at law, and that equity, if ap-
plied to, would restrain the continuance
of the nuisance (or the causing of it, as
was decided in Walter v. Selfe, supra)
in all cases where substantial damages
could be recovered at law. Elliotson
v. Feetham, 2 Bing. 134; Soltau v. De
Held, 2 Sim. N. s. 133, cases of noise
alone.
Having referred to the doctrine of
Walter v. Selfe with approval, and stat-
ing that it had been adopted in Soltau
v. De Held, supra, and in the princi-
pal case, Lord Romilly said : " The real
question in all the cases is the question
of fact, viz., whether the annoyance is
such as materially to interfere with the
ordinary comfort of human existence.
This is what is established in St. Hel-
en's Smelting Co. v. Tipping ; and that
is the question to be tried in the pres-
ent case." See also Sparhawk v. Union
Pass. Ry. Co., 54 Penn. St. 401, 427 ;
Cleveland v. Citizens' Gas Co., 5 C. E.
Green, 201 ; Babcock v. New Jersey
Stock Yard Co., ib. 296; Meigs v.
Lister, 8 C. E. Green, 199 ; Mulligan
v. Elias, 12 Abb. Pr. n. s. 259; Al-
drich v. Howard, 8 R. I. 246 ; Cooper
v. Randall, 53 111. 24; Illinois Cent.
R. Co. v. Grabill, 50 111. 241, 248 ; Fay
v. Whitman, 100 Mass. 76; Emery v.
Lowell, 109 Mass. 191; Francis v.
Schoellkopf, 53 N. Y. 152; Ball v. Ray,
Law R. 8 Ch. 467 ; Gaunt v. Fynney,
26 Law T. n. s. 308 ; s. c. 27 ib. 569.
Mental Discomfort. — In Sparhawk
v. Union Pass. Ry. Co., 54 Penn. St.
401, the plaintiff's instituted a proceed-
ing to enjoin the defendants from run-
ning their horse-cars on Sunday, on the
ground that they were being deprived
of enjoying the Sabbath as a day of
rest and of religious exercise by the
acts complained of. The bill was dis-
missed; the court holding that the case
did not come within the principle of
Walter v. Selfe and the other cases
above referred to. The distinction was
that religious meditation and devotional
exercises resulted from sentiments not
universal, but were peculiar to individ-
uals ; and injury by disturbance could
not be measured by any standard ap-
plicable to the privation of ordinary
comfort. The disturbance was only
mental ; and human tribunals could not
tell any thing about the effect on the
mind of mere noise. The court thought
the rule was that the injury must be
one that would affect all alike who come
within the influence of the disturbance.
"It must be something about the ef-
fects of which all agree ; otherwise that
which might be no nuisance to the ma-
jority might be claimed to deteriorate
property by particular persons. Noises
which disturb sleep, bodily rest, — a
physical necessity, — noxious gases,
sickening smells, corrupted waters, and
the like, usually affect the mass of the
community in one and the same way,
and may be testified to by all pos-
sessed of their natural senses, and can
be judged of by their probable effect
on health and comfort ; and in this way
damages may be perceived and esti-
mated. Not so of that which only af-
fects thought or meditation."
The above distinctions were based
upon Owen v. Henman, 1 Watts & S.
548, and First Baptist Church v. Utica
& S. R. Co., 5 Barb. 79. The first of
these cases was an action by one church-
member against another for disturbing
the plaintiff (during religious exercise
in the church) by making loud noises in
PUBLIC NUISANCES.
471
swinging, reading, and talking. It was
held that the action could not be main-
tained. " In the first place," said the
court, by Sergeant, J., " the injury al-
leged is not the ground of an action.
He [the plaintiff] claims no right in
the building, or any pew in it, which
has been invaded. There is no dam-
age to his property, health, reputation,
or person. He is disturbed in listening
to a sermon by noises. Could an action
be brought by every person whose mind
or feelings were disturbed in listening
to a discourse, or any other mental ex-
ercise (and it must be the same whether
in a church or elsewhere), by the noises,
voluntary or involuntary, of others, the
field of litigation would be extended
beyond endurance. The injury, more-
over, is not of a temporal nature ; it is
altogether of a spiritual character, for
which no action at law lies." See State
v. Linkhaw, 69 X. Car. 214 ; s. c. 1
Green's C. L. Cas. 288.
As to public nuisances, it was for-
merly a matter of doubt whether they
could be made the subject of an action
for damages, — a doubt which seems
to have arisen from a misapprehension
of the case of Iveson v. Moore, Comyn,
58; s. c. 1 Ld. Raym. 486; Holt, 16.
There the judges were divided in opin-
ion ; two of them thinking that the judg-
ment should be for the plaintiff, and
two, including Lord Holt, thinking it
should be for the defendant. But, as
has been pointed out in Soltau v. De
Held, 2 Sim. N. s. 133, 145-147, this was
not because any doubt was entertained
whether an individual could maintain an
action in respect of a public nuisance
for a special damage to himself, but
because it was thought that the special
damage was not laid with sufficient ac-
curacy and minuteness. And it appears
by a note to the report by Lord Ray-
mond that upon a reargument it was
held that the special damage was well
laid. Several other cases are reviewed
in Soltau v. De Held, and the conclu-
sion reached by the learned judge was
that that which is a public nuisance may
also be a private nuisance to a particu-
lar person by inflicting upon him some
special or particular damage ; and that
in such cases the individual may have
his remedy either by an action at law
or by a bill in equity.
This is the doctrine also of the Amer-
ican courts. Milhau v. Sharp, 27 N. Y.
612; Wesson v. Washburn Iron Co.,
18 Allen, 95, 101 ; Grigsby v. Clear
Lake Water Co., 40 Cal. 396; Enos
v. Hamilton, 27 Wis. 256 ; Houck v.
Wachter, 31 Md. 265.
If, then, the right invaded or im-
paired is a common and public one,
which every subject of the state may
exercise and enjoy, such as the use of
a highway, or a canal, or a public land-
ing-place, or a common watering-place
on a stream or pond of water ; in all
such cases a mere deprivation or ob-
struction of the use which excludes or
hinders all persons alike from the en-
joyment of the common right, and which
does not cause any special or peculiar
damage to any one, furnishes no ground
of action in favor of an individual. Wes-
son v. Washburn Iron Co., supra, Bige-
low, C. J., and many cases there cited.
But it will be found that in all the cases
this negative principle has been applied
to hindrances or obstructions to the exer-
cise of rights which are common to every
person in the community, and that it
has never been extended to cases where
damage has been done to private prop-
erty, or where the health of individuals
has been injured, or their peace and
comfort materially impaired, however
numerous or extensive may be the in-
472
NUISANCE.
stances of discomfort, inconvenience,
and injury to persons and property
thereby occasioned. lb. The injury
to private property or to health and
comfort is not merged in the public
wrong, so as to take away the right of
private and personal redress. lb.
The above case of Wesson v. Wash-
burn Iron Co. was a case of the kind
just indicated. The action was brought
(and maintained) to recover damages
for a nuisance to a dwelling-house,
caused by carrying on works and oper-
ating machinery in the vicinity, by
which the air was filled with smoke and
cinders, and rendered offensive and in-
jurious to health, and the house itself
shaken so as to be uncomfortable for
occupation ; though all persons owning
property in the vicinity had sustained
like injuries from the same cause.
As to what constitutes special dam-
ages within the rule of public nuisances,
Stetson v. Faxon, 19 Pick. 147, is an
instructive case. The defendant had
erected in Boston a warehouse, project-
ing several feet into the street, and be-
yond the plaintiff's warehouse (which
stood near, on the line of the street),
whereby the plaintiff's warehouse was
obscured from the view of passengers,
and travel was diverted to a distance
from it; and in consequence it was ren-
dered less eligible as a place of busi-
ness, and the plaintiff was obliged to
reduce his rent. It was held that the
plaintiff had suffered special damage,
and might recover. The opinion of the
court by Putnam, J., contains an ex-
haustive review of the cases, beginning
with one in the Year-Book, 27 H. 8,
pi. 10, p. 27, where Fitzherbert, J., in
opposition to Baldwin, C. J., said that
the man who makes the nuisance is pun-
ishable in the leet, and not by action,
" unless it be where a man has greater
hurt or incommodity than every other
■man had." (But this is not always nec-
essary. Wesson v. Washburn, supra.
The judge probably meant simply that
where all were alike incommoded, in
the case of » public nuisance, individu-
als could not sue; and so it is put in
Coke, Litt. 56 a. See also Williams's
Case, 5 Coke, 73 ; Holman v. Town-
send, 13 Met. 297.) The following
cases were also referred to : Paine v.
Patrich, Carth. 194, in which Holt, C. J.,
said that if a highway be so stopped
that a man is delayed a little while
on his journey, by reason whereof he
is damnified, or some important affair
neglected, that is not a special damage.
(But in the case from the Year-Book,
above cited, Fitzherbert, J., says that
where one makes a ditch across a high-
way, and I am travelling in the night,
and with my horse fall into the ditch,
and so have great damage and incon-
venience, I shall have an action against
him who made the ditch ; a rule find-
ing many exemplifications in modern
times.) Hubert v. Groves, 1 Esp. 148,
was also referred to, and the ruling of
Lord Kenyon that no special damage
had been alleged was criticised, and said
to be greatly shaken by Wilkes v. Hun-
gerford Market Co., 2 Bing. N. C. 281.
(See also Greasly v. Codling, 2 Bing.
263; Pierce v. Dart, 7 Cowen, 609,
611; Lansing v. Wiswall, 5 Denio, 213,
218; Farrelly v. Cincinnati, 2 Disn. 516,
529.) Other cases were cited ; May-
nell v. Saltmarsh, 1 Keb. 847, where
an action was brought for erecting
posts in a highway through which the
plaintiff was wont to pass to and from
his close, and it was alleged that his
corn was spoiled in consequence of the
obstruction; and it was held that this
was special damage. Chichester v.
Lethbridge, Willes, 71, where a high-
PUBLIC NUISANCES.
473
way was so obstructed that the plaintiff
was obliged to go by a longer and more
difficult way to and from his close; and
it was held that the action lay. So
in Hart v. Basset, T. Jones, 156, and
Greasly v. Codling, 2 Bing. 263, sim-
ilar cases. Baker v. Moore, cited 1
Ld. Raym. 491, where, by reason of
an obstruction across a highway, the
plaintiff's tenants left his houses, and
he lost the profits of them ; which was
accounted special damage. Lyme Regis
v. Henley, 1 Bing. N. C. 222, where
Park, J., in delivering judgment, said,
"It is clear and undoubted law that
wherever an indictment lies for non-
repair, an action on the case will lie at
the suit of a party sustaining any pecu-
liar damage."
Cases concerning special damage
arising from public nuisances have
been very numerous in modern times.
(Remedies from obstructions to high-
ways and streams are often regulated
by statute. These cases we do not con-
sider. So, too, many of the cases are
actions for negligence, the liability of
the defendant depending upon proof of
such fact. These cases will be consid-
ered hereafter, under Negligence. Ac-
tions for nuisance, properly speaking,
stand irrespective of negligence.) In
Blood v. Nashua & Lowell R. Co., 2
Gray, 137, it was held that a rail-
road company which had built a bridge
across a stream were liable for the dam-
age thereby occasioned to the owners
of a saw-mill above by the obstruction
of the stream so as to prevent the water
from passing from his mill as freely as
it had done previously. But it was also
held that they were not liable for the
damage suffered by the plaintiffs by be-
ing impeded and put to increased ex-
pense in getting logs up the stream to
his mill, whether the stream were navi-
gable or not. The distinction taken by
the court was this : that, if the stream
was not navigable, the plaintiffs had no
right to use it (as they had done) for
boats and rafts; but, supposing it to be
navigable for boats and rafts, the ob-
struction would then be a public and
not a private nuisance. It might affect
those near the obstruction much more
than the rest of the public; but the
damage sustained by those near it dif-
fered in degree only, not in kind.
This distinction, like the distinctions
generally between kind and degree, is
extremely subtle, if not unsatisfactory.
Suppose the defendant's factory is a
public nuisance, and the injury to prop-
erty and health varies in degree accord-
ing to the distance and direction of the
various dwelling-houses in the vicinity ;
will not any and all who suffer a mate-
rial damage, though greater only in de-
gree (if that means any thing) than that
suffered by the community generally,
be entitled to recover for it? They
certainly will be according to Soltau v.
De Held, supra, and Francis v. Schoell-
kopf, 53 N. Y. 152, both of which were
decided upon just such considerations.
See also the example put by Putnam, J.,
in Stetson v. Faxon, supra. " Suppose,"
said he, " a ditch to be cut across Wash-
ington Street at the Roxbury line; shall
every holder of real estates and of shops
in that street between Cornhill and Rox-
bury maintain an action for special dam-
ages to their estates for that nuisance ?
The proposition would seem to be ab-
surd. But it would not follow that be-
cause some owners of shops who lived
a mile from the obstruction might not
have special damages, those who lived
near to it might not. Let those who suf-
fer have their actions.'11 The doctrine
of Blood v. Lowell & Nashua R. Co. is
somewhat criticised in Enos v. Hamil-
474
NUISANCE.
ton, 27 Wis. 256, also. The decision
may perhaps be sustained upon its facts;
it is one of those cases which come
within debatable ground, where the line
between liability and non-liability is ex-
tremely difficult of ascertainment. It
does not stand upon the clear ground
by which temporary obstructions to a
highway are permitted; for in the lat-
ter case, the highway being used by
everybody, there is indeed an incon-
venience "common to all:" Holmes
v. Townsend, 13 Met. 297 ; Houck v.
Wachter, 34 Md. 265; while in the
case of an obstruction of a small
stream, ' ' navigable " only for rafts and
small boats, the annoyance is common
only to the very few who are engaged in
business upon the stream. And qucere
if the meaning of the term " common
to all" is " common to all of a class,"
however small ?
It is, however, to be observed of
Blood v. Lowell & Nashua R. Co., that
the obstruction arose from a bridge,
erected under the authority of the char-
ter of a corporation of a quasi public
character, and of great use to the pub-
lic. In this aspect the case is much like
that of the establishment of fisheries and
ponds, mentioned above from Bracton.
The above distinction between kind
and degree in a case of public nui-
sance is also taken (but unnecessarily) in
Venard v. Cross, 8 Kans. 248, based on
a passage in the note to Ashby v. White,
1 Smith's L. C. 364 (5th Am. ed.).
In Enos v. Hamilton, supra, there
was a prolonged obstruction of a navi-
gable stream by logs, caused by a pri-
vate individual, which resulted in seri-
ous damage to the plaintiff; and he
was allowed to recover for the damage
sustained.
In Winterbottom v. Derby, Law R.
2 Ex. 316, the plaintiff brought an
action for an obstruction of a public
footway, " whereby the plaintiff was on
divers days hindered and prevented
from passing and repassing over and
along the said footway, and using the
same, and was obliged to incur, and
did incur, on divers days, great expense
in and about removing the said obstruc-
tions, in order that he might, and before
he could, pass and repass over and along
the said footway, and use the same in
and about his lawful business and affairs,
and was greatly hindered and delayed
in and about the same." It appeared in
evidence that the plaintiff, in company
with some friends, went to a way called
Park Lane with the intention of trav-
ersing the footway in question. He
found it obstructed, and was delayed
whilst some persons under his direction,
and at his expense, removed the ob-
struction. On other occasions he re-
newed the attempt to use the way, but
was either obliged to turn back each
time or else was delayed while the ob-
structions were being removed. It was
held that this was not evidence of
special damage. As to the expense of
the removal of the obstruction, the
Chief Baron said the plaintiff had only
incurred an expense such as any one
who might have gone to remove the
obstruction would have incurred. " The
damage," said he, " is in one sense
special, but it is in fact common to all
who might wish, by removing the ob-
struction, to raise the question of the
right of the public to use the way.
Upon the authorities, then, and espe-
cially relying on Iveson v. Moore [1
Ld. Raym. 486], and Ricket v. Metro-
politan Ry. Co. [5 Best & S. 186 ; 8. c.
34 Law J. Q. B. 257], I am of opinion
that the true principle is, that he and
he only can maintain an action for an
obstruction who has sustained some
WHO LIABLE.
475
damage peculiar to himself, his trade,
or calling. A mere passer-by cannot
do so, nor can a person -who thinks fit
to go and remove the obstruction. To
say that they could, would in effect be
to say that any of the Queen's subjects
could."
Upon the authority of this case,
among others, Houck v. Waehter, 84
Md. 265, was decided. This was also
an action for the obstruction of a public
way. The averment of special damage
was in these words : " And the plain-
tiff says that he had made a journey
with his said horses and wagons from
his said farm, through and over said
highway, to his market-town, to wit,
Frederick City, in said county, and on
his said journey was returning to his
said farm when he met the said obstruc-
tion, and was withheld by the defend-
ant from removing the same, so that he
could not pass, and was obliged to pro-
ceed to his said farm from his said mar-
ket-town by a very circuitous route ;
and the plaintiff says that, at divers
other times, he was greatly hindered
and delayed, and put to great loss of
time and money, by reason of being
compelled, by means of said obstruc-
tion, to go and return, pass and repass
to and from his said farm by a very
circuitous road, and of much greater
distance to the said market-town, and
to mills and said court-house, than he
otherwise would, and of right ought to
have done with his said horses, wagons,
and carriages, laden as aforesaid ; and
by means of shutting up and closing
said highway wrongfully prevented him,
the said plaintiff, from driving and con-
ducting his said horses, wagons and
carriages, laden as aforesaid over and
along said highway, as he was used and '
accustomed, and of right ought." It
was held that tLis was not a proper
allegation of special damage. The
particular instance of injury alleged
was said to be simply an inconvenience
which was common to the rest of the
community, since all were obliged to
go by a longer or more circuitous
route.
The case seems to be different, how-
ever, where a highway is of peculiar
use to a person, as by being his only
means of getting (by team) to certain
of his lands. Thus in Venardu. Cross,
8 Kans. 248, the plaintiff complained
that the defendant had, by raising the
water of a dam, flooded, and rendered
impassable a highway, which was his
only means of ingress and egress to
part of his farm ; and it was held that
this constituted a valid cause of action.
"It is not," said the court, "that he
uses this highway more than others,
but that the use is of a particular
necessity to him, affording him an out-
let to his farm. It is to him a use and
benefit differing from those enjoyed by
the public at large."
Who liable. — In the case of leased
premises the action should be brought
against the landlord if the nuisance was
in existence when the premises were
let, unless it has been aggravated by
the tenant ; if not, the action should be
against the tenant. Rich v. Basterfield,
4 Com. B. 783; Russell v. Shenton, 3
Q. B. 449 ; Bishop v. Bedford Charity,
1 El. & E. 697 ; Fisher v. Thirkell, 21
Mich. 1. So, too, though the person
be not a tenant, if he be not strictly the
agent or servant of the owner, the latter
will not be liable for a nuisance created
by such party, unless the owner be him-
self in possession also. Rich v. Baster-
field, supra; Cuff v. Newark, &c, R.
Co. 6 Vroom, 17. See also Hilliard v.
Richardson, post, and note.
But a landlord is liable for nuisances
476
NUISANCE.
of a permanent character produced by
his tenant, if he might have terminated
the tenancy therefor. Continuing the
tenancy is regarded as equivalent to a
reletting of the premises ; and it is im-
material whether the landlord has had
notice of the nuisance or not. Gandy
v. Jubber, 10 Jur. N. 8. 652 ; s. c. 5
Best & S. 78 ; ib. (in error) 485.
In New York excavations under the
sidewalk in a public street are held un-
lawful without express legislative or
municipal authority; and therefore, if
injury result from them, though without
negligence on the part of the owner of
the adjoining premises, he is liable.
Congreve v. Morgan, 5 Duer, 495;
s. C. 18 N. Y. 79. See also Davenport
v. Ruckman, 10 Bosw. 20 ; Irwin v.
Fowler, 5 Rob. 482 ; Ellis v. Sheffield
Gas Co., 2 El. & B. 767.
In Michigan, however, such excava-
' tions are not per se unlawful, and the
liability of the defendant must therefore
depend upon the condition and state of
repair of the premises, and also upon
the question who is bound to keep them
in repair. It was accordingly held in
Fisher v. Thirkell, 21 Mich. 1, that a
landlord owning premises in front of
which he had made an excavation (un-
der the sidewalk), which was properly
constructed and in good condition when
the premises were leased, was not liable
for an injury which the plaintiff sus-
tained by reason of a scuttle being out
of repair ; the liability to repair, in the
absence of stipulation to the contrary,
being upon the tenant. See also Payne
v. Rogers, 2 H. Black. 350; Lowell
v. Spaulding, 4 Cush. 277 ; Chauntleru.
Robinson, 4 Ex. 163; Cheetham v.
Hampson, 4 T. R. 318; Todd v.
Flight, 9 Com. B. N. 8. 377; Offer-
man v. Starr, 2 Barr, 394; Bears v.
Ambler, 9 Barr, 193 ; Owings v. Jones,
9 Md. 108; Smith v. Phillips, 8 Phila.
10.
If the action be brought against the
grantee of the party who created the
nuisance, it is necessary to prove notice
to him of the nuisance before the com-
mencement of the suit, so that he may
have an opportunity to abate it. This
was decided so long ago as in Pen-
ruddock's Case, 5 Coke, 101. See
Winsmore v. Greenbank, ante, p. 328;
McDonough v. Gilman, 3 Allen, 264;
Dodge «. Stacy, 39 Vt. 560 ; Pillsbury
v. Morse, 44 Maine, 154 ; Eastman v.
Amoskeag Manuf. Co., 44 N. H. 143;
Beavers v. Winner, 1 Dutch. 96, 101 ;
Conhocton Stone Road v. Buffalo, &c,
R. Co., 51 N. Y. 573 ; West v. Louis-
ville, &c, R. Co., 8 Bush. 404. See
also Grigsby v. Clear Lake Water Co.,
40 Cal. 396; Walter v. Wicomico Co.,
35 Md. 385.
One who has made a conveyance of
the premises upon which the nuisance
exists may still be liable, as if he de-
rives a benefit from the business from
which it proceeds, or if he has sold with
warranty of the continued use of the
premises with the nuisance. Hause v.
Cowing, 1 Lans. 288.
A municipality is liable for injuries
resulting from such obstructions or nui-
sances in the street as the authorities
are bound to remove. Thus, in Ayer
v. Norwich, 39 Conn. 376, the plaintiff
sued the city of Norwich for an injury
which she had sustained by being thrown
from her carriage, her horse (being a
horse of ordinary gentleness) having
taken fright from a decorated tent which
stood within the limits of the highway;
and she was held entitled to recover.
See also Dimock v. Suffield, 30 Conn.
129; Morse «. Richmond, 41 Vt. 443;
Bartlett v. Hooksett, 48 N. H. 18;
Foshay v. Glen Haven, 25 Wis. 288.
THINGS AUTHORIZED BY STATUTE.
477
There is, however, a conflict as to the
proper construction of the statute relat-
ing to such cases. In Massachusetts
the municipality is not liable. Keith
v. Easton, 2 Allen, 552 ; Kingsbury v.
Dedham, 13 Allen, 186 ; Cook v. Charles-
town, 98 Mass. 80.
A thing authorized by statute, or by
due municipal license, is not a nuisance
so long as it is used in conformity with
the act of the legislature or the license.
First Baptist Church v. Utica & S. R.
Co., 6 Barb. 313; Saltonstall v. Ban-
ker, 8 Gray, 195; Call v. Allen, 1
Allen, 137.
But if there be an abuse of the legis-
lative or municipal authority (Potts-
town Gas Co. v. Murphy, 39 Penn. St.
257 ; Ryan v. Copes, 11 Rich. 217 ;
Evansville R. Co. v. Dick, 9 Ind. 433;
Montgomery v. Hutchinson, 13 Ala.
573), or if the business be conducted
negligently (Mazetti v. New York &
H. R. Co., 3 E. D. Smith, 9S ; Call v.
Allen, 1 Allen, 137 ; Ryan v. Copes,
11 Rich. 217), the protection is lost.
478 DANGEROUS ANIMALS AND WORKS.
DANGEROUS ANIMALS AND WORKS.
Mat v. Btjkdett, leading case.
Note on Dangerous Animals and Works.
Injuries by animals.
Foreign law.
Injuries committed contra or secundum naturam.
Injuries by domestic animals.
Fences. Escape of animals.
Killing another's animals. Detaining strays.
Bringing dangerous things upon a man's land.
Stephen May and Sophia, his Wife v. Burdett.
(9 Q. B. 101. Queen's Bench, England, Trinity Term, 1846.)
Keeping Ferocious Animals. — A person who keeps an animal accustomed to attack and
bite mankind, with knowledge that it is so accustomed, is prima facie liable in an
action on the case at the suit of any person attacked and injured by such animal,
without any averment in the declaration of negligence or default in the securing
or taking care of it. The gist of the action is the keeping of the animal after
knowledge of its mischievous propensities.
Quaire, whether to an action on the case for injury caused as above stated, it would be
a defence that the injury was occasioned solely by the wilfulness of the plaintiff,
after warning.
Case. The declaration stated that defendant, " before and at
the time of the damage and injury hereinafter mentioned to the
said Sophia, the wife of the said Stephen May, wrongfully and
injuriously kept a certain monkey, he the defendant well know-
ing that the said monkey was of a mischievous and ferocious
nature, and was used and accustomed to attack and bite man-
kind, and that it was dangerous and improper to allow the said
monkey to be at large and unconfined : which said monkey, whilst
the defendant kept the same as aforesaid, heretofore and before
the commencement of this suit, to wit, on the 2d of September,
1844, did attack, bite, wound, lacerate, and injure the said Sophia,
then and still being the Avife of said Stephen May, whereby the
said Sophia became and was greatly terrified and alarmed, and
became and was sick, sore, lame, and disordered, and so remained
MAY V, BURDETT. 479
and continued for a long time, to wit, from the day and j'ear last
aforesaid, to the time of the commencement of this suit ; whereby,
and in consequence of the alarm and fright occasioned by the
said monkey, so attacking, biting, wounding, lacerating, and in-
juring her as aforesaid, the said Sophia has been greatly injured
in her health," etc. '
Plea, not guilty. Issue thereon.
On the trial, before Wightman, J., at the sittings in Middlesex,
after Hilary Term. 1S4.5, a verdict was found for the plaintiff with
50?. damages., Cockburn, in the ensuing term, obtained a rule
to show cause why judgment should not be arrested.
In last Hilan- Term 1 Watson and Couch showed cause. The
only question is, whether the declaration is bad because it does
not state that the defendant kept the animal negligently. The
present form is consistent with the law and the precedents.
The wrong on which an action of this kind proceeds is the
knowingly keeping an animal accustomed to do mischief. " In
evidence to an inquest it was agreed by Fitzherbert and Shelley,
that if a man have a dog which has killed sheep, the master of
the dog being ignorant of such quality and property of the dog,
the master shall not be punished for that killing ; otherwise is it,
if he have notice of the quality of the dog." Anonymous, Dyer,
25 b, pi. 162, plaeitum in Dyer. " An action upon the case will
lie for keeping a dog used to bite sheep, and which has killed
sheep belonging to the plaintiff; but in such case it must be
proved that the defendant knew that he would bite sheep."
Bull. X. P. 77. The author cites Smith v. Pelah, 2 Stra. 1264, and
Jenkins v. Turner, 1 Ld. Raym. 109, where the gist of the action
is stated in the same manner. And he (citing Rex v. Huggins,
4 Ld. Raym. 1574, 1583) : " There is a difference between things
ferce nuturce, as lions, bears, &c, which a man must keep up at
his pevil, and beasts that are mansuetm naturce, and break through
the tameness of their nature ; in the latter case the owner must
have notice ; in the former an action lies without notice." The
Mosaic law, Exodus xxi. 28, 29, 36, referred to in the margin
of the plaeitum in Dyer, agrees with ours. The wrong consists
in keeping the animal, even though it be mansuetce natural, if the
owner knows that it has been used to do mischief, and if injury
1 January 13, 15, and 26, 1846. Before Lord Denman, C. J. ; Patteson, Cole-
ridge, and Wightman, JJ.
480 DANGEROUS ANIMALS AND WORKS.
results from the keeping. The scienter, not negligence in keep-
ing, constitutes the tort. The doctrine stated in Dyer is adopted
in Com. Dig. Action upon the Case for Negligence (A 5) ; and
Comyns observes : " It is sufficient to say, canem ad mordendum
consuetum scienter retinet." [Coleridge, J. You cannot sup-
posexthat that is meant as giving the complete form of a declara-
tion.] In 1 Vin. Abr. 234, tit. Actions [Mischief by dogs, &c.J
(H), pi. 3, it is said : " If a man has a dog that kills sheep, the
master of the dog being ignorant of such quality, the master shall
not be punished for this killing ; but, if he has notice of such
quality, it is otherwise." Declarations averring misconduct in
the keeping of a horse or dog or a bull, but omitting the scienter,
have been held insufficient. Scetchet v. Ellham, Freem. C. B.
534 ; Mason v. Keeling, 12 Mod. 332 ; s. c. Ld. Raym. 606 ; Bayn-
tine v. Sharp, 1 Lutw. 90. See Buxendin v. Sharp, 2 Salk. 662.
The case of Michael v. Alestree, Lev. 172, cited in moving for
the present rule, is no authority to the contrary. There a scienter
was held unnecessary ; but the complaint was not of a mere im-
proper keeping, but that the defendant, by his servant, carelessly
drove ungovernable horses for the purpose of breaking them in a
public place. [Lord Denman, C. J. He brought the horses to
a place where people were.] The case of keeping a vicious ani-
mal is analogous to those in which persons merely keeping danger-
ous weapons or instruments have been held liable if mischief
resulted from their being kept. Dixon v. Bell, 5 M. & S. 198 ;
Townsend v. Wathen, 9 East, 277. In Blackman v. Simmons, 3
Car. & P. 138, the mere keeping a dangerous bull, with knowl-
edge, appears to have been considered a ground of action, mis-
chief having ensued. The same conclusion may be drawn from
Curtis v. Mills, 5 Car. & P. 489. [Patteson, J. It does not
appear, in the present case, that the monkey m&y not have been
chained up, and have unexpectedly escaped. But you say that,
if a party keeps such an animal, chained, he runs the risk of its
breaking loose.] That is the law. [Patteson, J. Suppose it
had been confined in a cage, and the plaintiff's wife had put her
hand in.J Actual misconduct in the plaintiff might be a defence,
under the general issue or a special plea.1 The present form of
1 Patteson, J., alluded here to the case of a person going into a place where
he had no business to be at the time, and being there bitten by a dog ; probably
Brock v. Copeland, 1 Esp. 203.
MAT V. BURDETT. 481
declaration agrees with the precedent in 2 Chitty on Pleading,
430 (7th ed.). [Pattesox, J. Mr. Chitty observes that, before the
new rules prohibiting more than one count on the same transac-
tion, it was usual to add other counts, one of which was for not
keeping the dog properly secured.] A form like the present
was used in Thomas v. Morgan, 2 Cro., M. & R. 496 ; s. c. 5 Tyr.
1085. The older precedents are similar : Reg. Brev. 110 b,
cited, and relied upon by the court, in Cropper i>, Matthews, 2
Sid. 127 (where Reg. Brev. 108 is also cited, but this seems a
mistake). See Reg. Brev. Ill a ; Rest. Ent. Plac. 40, pi. 56 ;
Morg. Prec. 443 ; 1 Lib Ent. 29 ; S Weutw. PI. 437. ( Watson
also stated that the present form accorded with manuscript prec-
edents of the late Mr. Serjeant Williams and Mr. Justice Rich-
ardson, and with precedents extracted by himself from the books
of Mr. Justice Bayley.) The averment here that the defendant
knew it to be dangerous " to allow the said monkey to be at large "
is not material, and does not render it necessary to show that the
monkey was, in fact, allowed to be at large.
Cockhurn and Pickeriny, contra. The question in this case is
important, inasmuch as the plaintiff assumed that it is illegal to
keep a destructive animal, as is done at the garden of the Zoo-
logical Society and other menageries, and that, however carefully
such animal may be kept, yet if it escapes without any fault on
the owner's part and does damage, or even if an incautious per-
son be hurt, or an excessively timid person terrified by the animal
while under proper restraint, the owner is answerable. No deci-
sion has gone that length ; and, in the present case, the declara-
tion alleges nothing inconsistent with a strictly proper keeping.
In Com. Dig. Action upon the Case for Xegligence, the division
(A o) referred to on the other side is headed, " For a neglect in
taking care of his dog, horse, cattle," &c, and the first instance
given is, " If a man ride an unruly horse in Lincoln's Inn Fields
(or other public place of resort), to tame him, and he break loose,
and strike the plaintiff;" on which point Michael v. Alestree, 2
Lev. 172, s. c. 1 Ventr. 295, 3 Keb. 605, is cited. In Ventris's
report of that case, the court is stated to have said : " Lately in
this court an action was brought against a butcher, who had made
an ox run from his stall and gored the plaintiff ; and this was
alleged in the declaration to be in default of penning him." And
in Keble's report of Michael v. Alestree, 3 Keb. 605, reference is
31
482 DANGEROUS ANIMALS AND WORKS.
made to a case " where a monkey escaped and did hurt, hy
default of the owner." Neglect, and not merely having such
animals, was essential to the action in each of the cases. This
remark applies also to the plaeita in the division of Com. Dig.
before cited, as to a mad bull, and the case in which, if a dog
has once bitten a man, and the owner, having notice, keeps him
" and lets him go about or lie at his door," a person bitten by
the dog may bring an action. Smith v. Pelah, 2 Stra. 1264. It
is true that the scienter is also a necessary averment ; but that is
because knowledge is an ingredient of negligence ; and for that
reason it is laid down in Com. Dig. Pleader (2 P. 2), that " a
declaration for a neglect in keeping his dog," &c, " must say that
the defendant was sciens of the mischievous quality." In Brock
v. Copeland, 1 Esp. 203, where the declaration stated " that the
defendant knowingly kept a dog used to bite," and by which the
plaintiff was bitten, Lord Kenyon ruled that the action would not
lie. He said " that every man had a right to keep a dog for the
protection of his yard or house ; that the injury which this action
was calculated to redress was where an animal known to be mis-
chievous was permitted to go at large, and the injury therefore
arose from the fault of the owner in not securing such animal, so
as not to endanger or injure the public ; that here the dog had
been properly let loose ; and the injury had arisen from the plain-
tiff's own fault, in incautiously going into the defendant's yard
after it had been shut up." The only plea there was not guilty.
[Coleridge, J. " Not guilty " then had not the same effect as
the plea of not guilty in modern times.] There is no instance of
a special plea that the injury done by the animal resulted from the
plaintiff's own negligence. In the passage cited on the other side
from the judgment in Rex v. Huggins, 2 Ld. Raym. 1583, the ques-
tion discussed is, in what cases notice of the mischievous quality
of the animal is essential to the owner's liability ; and the differ-
ence stated on that point is, whether the animal be originally
mansuetw orferce naturae. But in neither case does it appear that
liability attaches without any negligence in the owner. Even
where death has ensued, the court says : " If the owner have
notice of the mischievous quality of the ox, &c., and he uses all
proper diligence to keep him up, and he happens to break loose,
and kills a man, it would be very hard to make the owner guilty of
felony. But if through negligence the beast goes abroad, after
MAT V. BURDETT. 483
warning or notice of his condition, it is the opinion of Hale that
it is manslaughter in the owner. And if he did purposely let him
loose and wander abroad, with a design to do mischief; nay,
though it were but with a design to fright people and make sport,
and he kills a man, it is murder in the owner." In Justinian's
Institutes, b. 4, tit. 9, it is said (after distinguishing between dam-
age done by animals which are naturally ferocious, and by those
which act against their nature in doing damage), " Si ursus fugit
a domino et sic nocuit, non potest quondam conveniri, quia
desiit dominus esse, ubi fera evasit." In that case there is no
longer a power of control, and, therefore, no room for negligence
nor any ground for liability. A monkey is naturally a wild ani-
mal ; and there is no averment in this case that it was tame when
the mischief happened. If, therefore, it escaped without the own-
er's fault, and did damage, he would not be liable. Thus it is
said, in Com. Dig. Action upon the Case for Negligence (A 5),
that, "if a man has a tame fox, which escapes and becomes wild,
and does mischief, the owner shall not answer for the damage
done afterwards." See 1 Ld. Raym. 606 (in Mason v. Keeling).
If, indeed, he wilfully or carelessly set the animal at liberty, he
would be liable, according to the dictum of Lord Ellenborough in
Learn v. Bray, 3 East, 593, 595. " If I put in motion a dangerous
thing, as if I let loose a dangerous animal, and leave to hazard
what may happen, and mischief ensue to any person, I am an-
swerable in trespass." The principle by which cases like this
must be governed is, that a man may do on his own land what
he thinks proper, so that he does not thereby interfere with the
rights of others. A man may set dog-spears in his own ground,
even without giving notice to others. Jordin v. Crump, 8 M. &
W. 782. So he may keep a dangerous animal there ; and the act
beine legal, he is not answerable for a misfortune which results
from it, unless caused by misconduct of his own. Here it is
consistent with all the averments that the plaintiff and not the
defendant may have been in fault.
The course of precedents, at least since the date of the older
entries cited on the other side, has not been uniform ; and (as is
stated in Chitt. PI. 430, 7th ed.) before the new rules it was
usual to draw a separate count averring negligence in not keep-
ing the animal secured. Jones v. Perry, Esp. N. P. C. 482, and
Hartley v. Harriman, 1 B. & Aid. 620, afford instances. In the
484 DANGEROUS ANIMALS AND WORKS.
case of the butcher cited in Ventris's reports of Michael v. Ales-
tree, 1 Vent. 295, negligence was charged ; and the same aver-
ment appears to have been made in the action for mischief done
by a monkey, referred to in Keble's report of the same case, 3 Keb.
650. In Mason v. Keeling, 1 Ld. Raym. 606, s. c. 12 Mod.
332, where the validity of the declaration Avas discussed on
demurrer, the court alleged that the dog attacked the plaintiff
"pro defectu debitce curce et custodial" by the defendant, who
permitted the dog " libere et ad largum ire." In Blackman v.
Simmons, 3 Car. & P. 138, negligence was expressly averred.
And in Curtis v. Mills, 5 Car. & P. 489, the materiality of such
an allegation appears from the stress laid by Tindal, C. J., on the
question whether or not the dog was placed in such a situation
that by common care the plaintiff might have avoided him. A
precedent, in 8 Went. PI. 581, of a declaration for mischief done
by unruly rams, belonging to the defendant, alleges not only a
scienter, but negligence in permitting them to go at large. Even
in the present case the framer of the declaration seems to admit
that the owner, to be liable, must have contributed, by some
neglect or permission, to the animal's escape, since the court
avers knowledge by him " that it was dangerous and improper to
allow the said monkey to be at large and unconfined ; " in which
respect it unquestionably departs from the precedents cited on
the other side. Cur. adv. vult.
Lord Denman, C. J., now delivered the judgment of the
court.
This was a motion to arrest the judgment in an action on the
case for keeping a monkey which the defendant knew to be
accustomed to bite people, and which bit the female plaintiff.
The declaration stated that the defendant wrongfully kept a
monkey, well knowing that it was of a mischievous nature, and
used and accustomed to attack and bite mankind, and that it was
dangerous to allow it to be at large ; and that the monkey,
whilst the defendant kept the same as aforesaid, did attack, bite,
and injure the female plaintiff, whereby, &c.
It* was objected, on the part of the defendant, that the declara-
tion was bad for not alleging negligence or some default of the
defendant in not properly or securely keeping the animal ; and
it was said that, consistently with this declaration, the mon-
key might have been kept with due and proper caution, and
MAT V. BURDETT. 485
that the injury might have been entirely occasioned by the care-
lessness and want of caution of the plaintiff herself.
A great many cases and precedents were cited upon the argu-
ment ; and the conclusion to be drawn from them appears to us to
be, that the declaration is good upon the face of it ; and that
whoever keeps an animal accustomed to attack and bite mankind,
with knowledge that it is so accustomed, is prima facie liable in
an action on the case at the suit of any person attacked and
injured by the animal, without any averment of negligence or
default in the securing or taking care of it. The gist of the
action is the keeping the animal after knowledge of its mischiev-
ous propensities.
The precedents, both ancient and modern, with scarcely an
exception, merely state the ferocity of the animal and the knowl-
edge of the defendant, without any allegation of negligence or
want of care. A great many were referred to upon the argu-
ment, commencing with the Register and ending with Thomas
v. Morgan, 2 Cro., M. & R. 496, s. c. 5 Tyr. 1085, and all in the
same form, or nearly so. In the Register, 110, 111, two prece-
dents of writs are given, one for keeping a dog accustomed to
bite sheep, and the other for keeping a boar accustomed to
attack and wound other animals. The cause of action, as stated
in both these precedents, is the propensity of the animals, the
knowledge of the defendant, and the injury to the plaintiff; but
there is no allegation of negligence or want of care. In the case
of Mason v. Keeling, 12 Mod. 332, s. c. 1 Ld. Raym. 606, much
relied upon on the part of the defendant, want of due care was
alleged, but the scienter was omitted ; and the question was, not
whether the declaration would be good without the allegation of
want of care, but whether it was good without the allegation of
knowledge, which it was held that it was not. No case was cited
in which it had been decided that a declaration stating the fero-
city of the animal and the knowledge of the defendant was bad
for not averring negligence also ; but various dicta in the books
were cited to show that this is an action founded on negligence,
and therefore not maintainable unless some negligence or want of
care is alleged.
In Comyns's Digest, tit. Action upon the Case for Negligence
(A 5), it is said that "an action upon the case lies for a neglect
in not taking care of his cattle, dog," &c. ; and passages were
486 DANGEROUS ANIMALS AND WORKS.
cited from the older authorities, and also from some cases at
nisi prius, in which expressions were used showing that, if per-
sons suffered animals to go at large, knowing them to be disposed
to do mischief, they were liable in case any mischief actually
was done ; and it was attempted to be inferred from this that the
liability only attached in case they were suffered to go at large
or to be otherwise ill secured. But the conclusion to be drawn
from an examination of all the authorities appears to us to be
this : that a person keeping a mischievous animal, with knowl-
edge of its propensities, is bound to keep it secure at his peril,
and that, if it does mischief, negligence is presumed without
express averment. The precedents, as well as the authorities,
fully warrant this conclusion. The negligence is in keeping such
an animal after notice. The case of Smith v. Pelah, 2 Stra.
1264, and a passage in 1 Hale's Pleas of the Crown, 430,1 put the
liability on the true ground. It may be that, if the injury was
solely occasioned by the wilfulness of the plaintiff after warning,
that may be a ground of defence by plea in confession and avoid-
ance ; but it is unnecessary to give any opinion as to this ; for
we think that the declaration is good upon the face of it, and
shows a prima facie liability in the defendant.
It was said indeed, further, on the part of the defendant, that,
the monkey being an animal ferce natures, he would not be
answerable for injuries committed by it, if it escaped and went at
large without any default on the part of the defendant, during
1 After stating that " if a man have a beast, as a bull, cow, horse, or dog,
used to hurt people, if the owner knew not his quality, he is not punishable,"
&c, Hale adds (citing authorities) that " these things seem to be agreeable to
law."
" 1. If the owner have notice of the quality of his beast and it doth any-
body hurt, he is chargeable with an action for it.
"2. Though he have no particular notice that he did any such thing before,
yet if it be a beast that is ferce natures, as a lion, a bear, a wolf, yes, an ape or
monkey, if he get loose and do harm to any person, the owner is liable to an
action for the damage, and so I know it adjudged in Andrew Baker's case, whose
child was bit by a monkey that broke his chain and got loose.
" 3. And therefore in case of such a wild beast, or in case of a bull or cow
that doth damage, where the owner knows of it, he must at his peril keep him up
safe from doing hurt, for though he use his diligence to keep him up, if he
escape and do harm, the owner is liable to answer damage." 1 Hale's P. C.
430, part 1, c. 33.
INJURIES BY ANIMALS.
487
the time it had so escaped and was at large, because at that time
it would not be in his keeping nor under his control ; but Ave
cannot allow any weight to this objection ; for, in the first place,
there is no statement in the declaration that the monkey had
escaped, and it is expressly averred that the injury occurred
while the defendant kept it. We are besides of opinion, as
already stated, that the defendant, if he would keep it, was
bound to keep it secure at all events.
The rule therefore will be discharged. Rule discharged.
Injuries by Animals, («.) Foreign
Law. — It will be seen by the historical
references in the principal case that this
division of the law, like that treated of
in the preceding note, is of very ancient
origin. In the Roman law the subject
dates from the Twelve Tables, which
contained this precept : " Si quadrupes
pauperiem faxit, dominus noxise aesti-
mationem oferto ; si nolet, quod nocuit
dato ; " thus giving the defendant the
choice of paying damages for the harm
done, or of surrendering the animal
which had done it. Inst. Just. lib. 4,
tit. 9. Paullus, after stating the same
fact, adds " quod etiam, lege Pesulania,
de cane cavetur ; " from which it appears
that a special law was passed to extend
the rule to dogs. Paullus, lib. 1, tit. 15,
as cited in note to Card v. Case, 5 Com.
B. 622, 627, 628, where several other
cases are given from the Institutes and
Digest. See Dig. lib. 9, tit. 1.
This rule of law, that the animal
might be surrendered to the injured
person in recompense of the hurt,
found its way into the Dutch law of the
seventeenth century. See Grotius, b. 3,
c. 38, § 10 (p. 453, Herbert's transl.),
where it is said, " The owner of the
animal who has done this mischief is
bound to make good the damage or to
give up the animal at his option." This
was said of animals in general which
had been infuriated or let loose con-
trary to custom. In the Roman law the
principle was extended to injuries com-
mitted by slaves; the master could make
pecuniary compensation or tender the
slave himself. Inst. Just. lib. -4, tit. 8.
Even children could among the ancients
be given in recompense of their own
delicts. lb., § 7.
The same rule as to animals seems
at one time to have found a place in the
law of England. Thus, in Fitzherbert's
Natura Brevium, 89 L, note, it is stated
by (the supposed editor) Lord Hale,
" If my dog kills your sheep, and I
freshly after the fact tender you the
dog* you are without remedy. 7 Edw.
3, Barr. 290." (This, it will be ob-
served, was not the deodand of the
English law; a deodand, as the etymol-
ogy of the word implies, being a forfeit-
ure to pious uses of the object which
occasioned the injury. But quaere if
the deodand may not have been an
ecclesiastical evolution of the above
rule ?)
The Athenian law directed the ani-
mal to be killed or given up to the per-
son injured ; Plutarch's Solon, p. 91, E ;
nor was it necessary under either the
Athenian or the Roman law, even for
the purposes of an action against the
owner, that the owner should be shown
to have had notice of the mischievous
488
DANGEROUS ANIMALS AND WORKS.
propensities of the animal. Card v.
Case, 5 Com. B. 022, 627, note. Nor
does the French Code say any thing of
notice. Code Civil, No. 1385.
In the note above cited, a peculiar
distinction is referred to as to the scien-
ter in the Mosaic code, where it is intro-
duced for the purpose of fixing criminal
responsibility in the case of injury to a
freeman or freewoman (Exodus, c. 21,
v. 29-31), and civil liability in the case
of injury to a slave (v. 32), or to cattle
(v. 36).
In the German law the owner of a
domestic animal which has injured a
person is liable only when he knew of
the evil propensities of the animal, or
was negligently ignorant of them ; and,
if the animal was under the care of
a keeper or herdsman at the time,
the owner is liable only upon proof
of negligence. Wharton, Negligence,
§904.
(6.) Injuries committed, contra or
secundum Naturam. — Dr. Wharton,. in
his very valuable work on Negligence
(§ 904), points out the distinction taken
in the Roman law between animals
which do injury contra naturam, and
those which do it secundum naturam.
Inst. Just. lib. 4, tit. 9. If the injury
be done by an animal of the former
class, we are told that it is assumed
that the animal was provoked by the
party who received the injury, so that
the plaintiff must disprove this pre-
sumption in order to recover.
There seems to be no such distinction
in the English law ; but we are to infer
from Buller's N. P. 77, cited by coun-
sel in the principal case, that there is a
distinction between wild and tame ani-
mals in respect of notice of ferocity.
However, it is to be observed that it
was conceded throughout the principal
case that the allegation of notice was
material, though the animal belonged
to the class of wild animals. It would
seem advisable in all cases to allege
notice ; and the allegation would prob-
ably be immaterial only in those cases
where the injury had been done by a
wild animal which had not been fully
tamed.
Following the distinction of the
Roman law, Dr. Wharton states the
rule thus: "The owner of animals
kept for use is liable for mischief done
by them when unrestrained, such mis-
chief being in accordance with their
nature ; nor in such case is it neces-
sary to prove knowledge on his part
that their nature prompts to mischief
of this kind." Negligence, § 907.
That is, if it is natural to the animal,
whether he be tame or wild, to do the
particular injury complained of, it will
not be necessary to prove that the de-
fendant had knowledge of the propen-
sity. " It is the nature of cattle," says
the same writer, in illustration of the
rule, " when straying at large to ravage
the land on which they stray ; and
hence it is a principle of ethics, as
well as of jurisprudence, that he who
permits his cattle so to stray is liable
for the damage they do." § 908. See
infra. "When we come, however, to
the exhibition of unusual viciousness,
such as is not natural to cows as a
class, then, in conformity with the prin-
ciples just stated, the [actual] knowl-
edge of this individual peculiarity of
particular cows must be properly im-
putable to the owner, in order to make
him liable for the mischief caused by
such viciousness. But such knowledge
is to be presumed if the cow in question
has been in the habit of displaying such
viciousness." § 909.
Under this rule the inquiry in each
case therefore is, whether the animal
INJURIES BY ANIMALS.
489
belongs to a class which has a natural
propensity to do the particular mischief,
or, if not, whether the particular ani-
mal has such a propensity : and, if the
answer be in the affirmative, it is not
necessary for the plaintiff to go farther
and prove actual knowledge of the pro-
pensity. This seems to be a reasonable
doctrine, if the presumption of knowl-
edge be only prima facie ; and it would
doubtless be permitted the plaintiff to
prove such facts under an allegation of
notice. See Worth v. Gilling, Law R.
2 C. P. 1. But the presumption in the
second case, at least, should not be con-
clusive ; for it may be that the defend-
ant had but just purchased the animal,
and had in fact no knowledge of its
vicious habits.
That knowledge of the evil propen-
sities of wild animals is presumed, see
Wharton, ^Negligence, §§ 923, 924, and
cases cited.
(c.) Injuries by Domestic Animals. ■ —
That the rule in May v. Burdett is ap-
plicable to injuries committed by domes-
tic animals has been decided in several
cases. In Jackson v. Smithson, 15
Mees. & W. 563, the declaration stated
that the defendant wrongfully and in-
juriously kept a certain ram, well know-
ing that it was accustomed to attack,
butt, and injure mankind, and that the
ram, while so kept by the defendant, did
attack, butt, and throw down and hurt
the plaintiff. On a motion for arrest of
judgment, on the ground that it was not
alleged that the defendant negligently
kept the ram, it was held that the dec-
laration was good. Alderson, B., said
that there was no d^tinction between
the case of an animal which breaks
through the tameness of its nature, and
is fierce, and known by the owner to be
so, and one which \sferce nature. See
also Oakes v. Spaulding, 40 Vt. 347, to
the same effect.
In Card v. Case, 5 Com. B. 622, —
a case in the argument of which much
learning was displayed, — the doctrine
of May v. Burdett was held applicable
to dugs. In this case, besides the al-
legation of the scienter, it was alleged
that the defendant was in duty bound to
use due and reasonable care and pre-
caution in keeping the dog ; but this
was held to be an immaterial allega-
tion. The gist of the action, it was
said, was the keeping a ferocious dog,
knowing its disposition, and damage to
the plaintiff. To the same effect is
Kelly v. Wade, 10 Irish L. R. 424.
These were cases of injuries to sheep,
upon which subject Mr. Campbell (Neg-
ligence, § 27) says : " The domestic dog
has occasioned many legal disputes; and
the presumption by the common law of
England is that he is tame, and, there-
fore, the owner is not held responsible
unless the dog in question is by disposi-
tion ferocious, and reasonable ground
be shown for presuming that this fero-
cious character is known to the owner.
This is technically called proof of the
' scienter ' from the term anciently used
in pleading. But this presumption was
carried to an absurd extent when the
wolfish nature of the creature was
deemed so completely extinguished
that it was against his nature to worry
sheep and cattle. And it did astonish
the Scotch sheep-farmers when this doc-
trine was brought to their notice by the
decision of a Scotch appeal by Lords
Brougham and Cranworth [Fleming v.
Orr, 2 Macq. 14], who applied the rule
to Scotland, so that, as Lord Cockburn
observed, ' every dog became entitled
to at least one worry.' The conse-
quence was that an act (26 and 27 Vict.
490
DANGEROUS ANIMALS AND WORKS.
c. 100) was soon afterwards passed (for
Scotland), declaring it unnecessary in
an action against the owner of the dog
to prove a previous propensity to injure
sheep or cattle. An act to a similar
purport was afterwards passed for Eng-
land (28 and 29 Vict. c. 60)." Similar
statutes have been enacted in many of
our American States. See Shearman
and Redfield, Negligence, §§ 205-208 ;
Wharton, Negligence, § 923, note.
In the absence of statute, however,
the rule requiring an allegation of notice
of the vicious propensity of the dog, as
well as of other animals, prevails. See
Wharton on Negligence, § 913, and
many cases there cited; and see § 914
of the same work as to dogs which are
kept for the defence of property.
The doctrine of May v. Burdett was
applied to the case of an injury caused
by a vicious horse in Popplewell v.
Pierce, 10 Cush. .509. It was held that
the plaintiff need not allege that the
injury was received through the negli-
gence of the defendant in keeping the
horse. " The gist of the action," said
the court, " is the keeping the animal
after knowledge of its mischievous pro-
pensities."
As to what constitutes notice of the
vicious propensity of a domestic ani-
mal, see Appleby v. Percy, Law R. 9
C. P. 647 ; Worth v. Gilling, Law R. 2
C. P. 1 ; Gladman v. Johnson, 36 Law
J. C. P. 153 ; Applebee v. Percy, 30
Law T. N. s. 785 ; Arnold v. Norton,
25 Conn. 92 ; Kittredge v. Elliott, 16
N. H. 77 ; Buckley v. Leonard, 4 Denio,
500; Coekerham v. Nixon, 11 Ired.
269.
(d.) Fences. Escape of Animals. —
By the common law of England (which
is held inapplicable to the state of the
country in some of our prairie States,
3 Kent's Com. 438, note 1, 12th ed.),
the owner of land is bound to keep it
fenced ; and, if his cattle get into his
neighbor's premises, he is liable for the
damage done by them, whether the
escape was owing to his negligence or
not. Ellis v. Loftus Iron Co., Law R.
10 C. P. 10; Cox v. Burbridge, 13
Com. B. N. s. 430, 438, Williams, J.
Fletcher v. Rylands, Law R. 1 Ex. 265
281; Lyons v. Merrick, 105 Mass. 71
Richardson v. Milburn, 11 Md. 340
Webber v. Closson, 35 Maine, 26
Myers v. Dodd, 9 Ind. 290. In Ellis v.
Loftus Iron Company the defendant's
horse had injured the plaintiff's mare
by biting and kicking her through the
fence ; and it was held that this was a
trespass upon the plaintiff's premises.
The law was thus laid down as far
back as the time of the Year-Books.
See 20 Edw. 4, 11, pi. 10, referred to in
Fletcher v. Rylands, supra, where in
trespass with cattle the defendant
pleaded that his land adjoined a place
where he had common, and that his cat-
tle strayed from the common, and de-
fendant drove them back as soon as he
could. The plea was held bad; and
Brian, C. J., said : " It behooves him to
use his common so that he shall do no
hurt to another man ; and if the land in
which he has common be not inclosed,
it behooves him to keep the beasts in
the common and out of the land of any
other."
It follows that where this rule pre-
vails the owner of cattle which are killed
by a passing train of cars while straying
upon a railroad track cannot recover
for the loss ; unless, we should add, the
damage was actually caused by the mis-
conduct or negligence of the defendants'
servants. Price v. New Jersey R. Co.,
3 Vroom, 229; Munger v. Tonawanda,
INJURIES BY ANIMALS.
491
R. Co., 4 Comst. 3-19; s. c. 5 Denio,
255; and other cases cited in note 1, 3
Kent's Com. 43S (12th ed.).
(e.) Killing Another's Animals. De-
taining Strays. — It may be proper at
this place, by a slight digression from the
main purpose of this note, to refer to
the rules of law concerning the right of
a person to kill vicious animals, or to
injure or detain straying beasts and
fowls.
It is clear that a man may have
property in a dog, though the animal
may not be shown to have any pecuni-
ary value. Doilson r. Moek, 4 Dev. &
B. 146 ; Wheatley v. Harris, 4 Sneed,
468. And the same is doubtless true
of other animals kept as pets, and of
wild animals which have been tamed,
such as wild geese. Amory v. Flyn, 10
Johns. 102. And the consequence is,
that no one has an absolute right to take
and keep them while straying : ib. ; or
therefore to kill them : Dodson v. Moek,
and Wheatley v. Harris, supra. See
also Dunlap v. Snyder, 17 Barb. 561 ;
Leutz v. Stroh, 6 Serg. & R. 34.
But while there is no absolute right
to kill such animals, there are circum-
stances when the law will justify such
an act. Of course, a man may protect
himself from an attack of a beast,
though if he has provoked the attack,
and kills the animal in defending him-
self, the case would probably be other-
wise. This would clearly be the case if
the animal were not usually ferocious
and " accustomed to bite mankind."
The owner would then be entitled to
recover damages for the loss of the
beast.
A mad dog ought to be killed ; so of
a dog suspected (with reason) to be
mad ; and so of one found at large
doing or attempting to do mischief, as
in biting or worrying sheep, or other
domestic animals. Brown v. Hoburger,
52 Barb. 15 ; Leonard v. Wilkins, 9
Johns. 233; King v. Kline, 6 Barr,
318; Woolfy. Chalker, 31 Conn. 121;
Putnam v. Payne, 13 Johns. 312. But
see Hinckley v. Emerson, 4 Cowen, 351,
as to dogs chasing and worrying sheep.
A ferocious, biting dog, suffered to
run at large without a muzzle, is a com-
mon nuisance ; and any one may kill it,
whether at the time it. was doing mis-
chief or not, or whether the owner
knew the nature of the dog or not.
Putnam v. Payne, supra ; Maxwell v.
Palmerston, 21 Wend. 407 ; Dunlap v.
Snyder, 17 Barb. 561; Brown v. Car-
penter, 26 Vt. 638.
A man may, however, keep a fero-
cious dog as a watch-dog, if properly
guarded: Perry v. Phipps, 10 Ired.
259 ; but in Woolf v. Chalker, supra,
it is said that this is allowable only un-
der circumstances in which the keeping
of concealed weapons, to prevent a
felony, would be justified. (Upon this
latter point there is a somewhat con-
fused line of cases in England as to
spring-guns, of which Bird v. Hol-
brook, 4 Bing. 628, s. c. 1 Moore &
P. 607, is the leading one, that we
do not propose to consider.)
Nor will the mere fact that domestic
animals are found trespassing upon a
man's premises justify him in killing
them : Matthews u. Fiestel, 2 E. D.
Smith, 90; Dodson v. Moek, supra;
or in detaining them upon » claim for
any thing beyond a reimbursement of
necessary expenses and payment of the
actual injury done. Comp. Amory v.
Flyn, 10 Johns. 102. And if the party
detain them, he must treat them prop-
erly, and not injure them. Murgoo v.
Cogswell, 1 E. D. Smith, 359. If the
owner of the premises drive the animals
out with undue violence, whereby they
492
DANGEROUS ANIMALS AND WORKS.
are injured, he will be liable. Amick
v. O'Hara, 6 Blackf. 258, where it was
held unlawful to chase a horse out of
the defendant's field with a ferocious
dog.
Upon this subject there are some in-
teresting provisions in the French and
Roman law. It was provided by one of
the laws of the rural police that a land-
owner who had suffered damage by
straying animals had the right of seizing
them, under the duty of taking them
within twenty-four hours to the public
pound. 1 Fournel, Du Voisinage, 447
(4th ed.). And the author cited says
that this power is given not only to the
owner of the land in which the damage
has been done, but to every neighbor
who has witnessed the trespass, because
of the interest every neighbor ought to
have in the welfare of another.
But, M. Fournel says, the animals
must not be treated cruelly ; on the
contrary, he who seized them should
treat them as if they were his own ani-
mals. This humane and just require-
ment was taken from the Aquilian law.
" Sic illud expellere debet, quomodo si
suum deprehendisset." Dig. lib. 9, tit.
2, 39.
So, too, the land-owner was required
to take care, in driving out the animals,
to chase them gently and with modera-
tion, and without wounding or hurting
them ; and if he pursued them too
violently, so that the animals, while
going in a narrow place, should fall and
get injured, the party was liable to the
owner of the animals. And this was
also founded upon the rule of the
Roman law. Dig. lib. 9, tit. 2, 53.
Our law, as we have seen, is similar
upon both of these points.
If the animals taken trespassing are
of the flying kind (fuyardes), as geese,
fowls, and ducks, the land-owner, after
notifying the owner of the animals, may
kill them upon the second offence, be-
cause such animals are not easily caught,
and their capture would not be worth
the trouble or expense of litigation.
But, adds Fournel, he ought to leave
them upon the ground in order to show
that he has not killed them out of cove-
■tousness; and likewise, if there were
many of them, he ought only to kill a
few. (In our law the first qualification
would not, of course, be required, for
any (proper) evidence would be admis-
sible to show the circumstances under
which the fowls had been killed). The
fowls, further, can only be killed on the
spot, at the moment of the depreda-
tion.
The damages in all these cases are
very exactly regulated; and M. Fournel
gives a table of them. See 1 Fournel,
Du Voisinage, § 105, pp. 444-459 (4th
ed.).
Bringing Dangerous Things upon a
Man's Land. — The principle of May v.
Burdett has in England been extended
still farther, and held to cover all cases
where one for his own purposes brings
upon his land, and collects and keeps
there, any thing likely to do mischief if
it escapes ; such a person is prima
facie answerable for all the damage
which is the natural consequence of an
escape. Rylands v. Fletcher, Law R.
3 H. L. 330 ; s. c. Law R. 1 Ex. 2G5,
reversing s. c. 3 Hurl. & C. 774; 34
Law J. Ex. 177.
In this case the defendants had con-
structed a reservoir on land separated
from the plaintiff's colliery by inter-
vening land. Mines under the site of
the reservoir, and under part of the
intervening land, had been formerly
worked ; and the plaintiff had, by
workings lawfully made in his own
colliery and in the intervening land,
BRINGING DANGEROUS THINGS UPON A MAN'S LAND.
493
opened an underground communication
between his own colliery and the old
workings under the reservoir. It was not
known to the defendants, or to any per-
son employed by them in the construc-
tion of the reservoir, that such commu-
nication existed, or that there were any
old workings under the site of the res-
ervoir; and the defendants were not
personally guilty of any negligence.
The reservoir, in fact, was constructed
over five old shafts, leading down to
the workings ; and, when it was filled,
the water burst down these shafts and
flowed by the underground communica-
tion into the plaintiff's mines. It was
held, in the Exchequer Chamber, that
the defendants were liable for the dam-
age so caused ; and this judgment was
affirmed in the House of Lords.
In delivering the judgment of the Ex-
chequer Chamber, Mr. Justice Black-
burn said: "The person whose grass
or corn is eaten down by the escaping
cattle of his neighbor, or whose mine
is flooded by the water from his neigh-
bor's reservoir, or whose cellar is in-
vaded by the filth of his neighbor's
privy, or whose habitation is made
unhealthy by the fumes and noisome
vapors of his neighbor's alkali works,
is damnified without any fault of his
own ; and it seems but reasonable and
just that the neighbor who has brought
something on his own property which
was not naturally there, harmless to
others so long as it is confined to his
own property, but which he knows to
be mischievous if it gets on his neigh-
bor's, should be obliged to make good
the damage which ensues if he does
not succeed in confining it to his own
property. But for his bringing it there
no mischief could have accrued ; and it
seems but just that he should at his
peril keep it there, so that no mischief
may accrue, or answer. for the natural
and anticipated consequences. And,
upon authority, this, we think, is estab-
lished to be the law, whether the things
so brought be beasts, or water, or filth,
or stenches." The authorities are then
reviewed in support of this position from
the Year-Books down ; embracing cases
of injuries by escaping cattle, by mis-
chievous animals, and by filth. Year-
Book, 20 Edw. 4, 11, pi. 10; Tenant
v. Goldwin, 2 Ld. Raym. 1089; s. c.
1 Salk. 360; 6 Mod. 311; Cox v. Bur-
bridge, 13 Com. B. n. s. 438 ; May v.
Burdett. See also, as to injury from
filthy water, Ball v. Nye, 99 Mass. 582;
Carstairs v. Taylor, infra.
The principle of Rylands v. Fletcher
was again enforced by the Court of Ex-
chequer in Smith v. Fletcher, Law R.
7 Ex. 305, a case growing out of injury
from the same premises. The parties
in this case had mines adjoining and
communicating with each other. In the
surface of the defendants' land were
certain hollows and openings, partly
caused by and partly made to facilitate
the defendants' workings. Across the
surface of their land ran a watercourse,
which, in 1S65, had been diverted into
a new and larger channel. In Novem-
ber, 1871, the banks of the new water-
course (which were sufficient for all
ordinary occasions) burst, in conse-
quence of exceptionally heavy rains,
and the water escaped into and accu-
mulated in the hollows and openings,
where the rains had already caused an
unusual amount of water to collect, and
thence by fissures and cracks water had
passed into the defendants', and so into
the plaintiff's mines. It appeared that,
if the land had been in its natural con-
dition, the water would have spread it-
self over the surface, and have done no
injury. The defendants, though not
494
DANGEROUS ANIMALS AND WORKS.
guilty of any negligence in the manage-
ment of their mine, were held liable for
the damage sustained. The case was
considered as not distinguishable from
Rylands v. Fletcher. "The defendants
here," said the court, "did not indeed
make a reservoir. But suppose they
had made the hollow, originally exca-
vated for other purposes, into a reser-
voir, or fash-pond, or ornamental water,
would the fact that it was originally
for another purpose than holding water
have made any difference? That can-
not be. But it is said that they did
not bring the water there, as in Fletcher
v. Rylands. Nor did they in one sense;
but in another they did. They so dealt
with the soil that, if a flood came, the
water, instead of spreading of itself
over the surface and getting away to
the proper watercourses innocuously,
collected and stopped in the hollow,
with no outlet but the fissures and
cracks."
Both of the above cases were distin-
guished from Smith v. Kenrick, 7 Com.
B. 515. There, in the course of the
ordinary working of the defendants'
mine, water percolating in the strata
had flowed from the defendants' mine
into that of the plaintiff; and no negli-
gence being proved against the defend-
ants, it was held that they were not
liable for the damage caused. The
damage sustained by the plaintiff in
Smith v. Kenrick, said Lord Cranworth
(Law R. 3 H. L. 338), was occasioned
by the natural flow or percolation of
water from the upper mine into the
lower; Taut in the Fletcher cases the ac-
cumulation of water, said Bramwell, B.
(Law R. 7 Ex. 311), was not in the
natural use of the land. " If," said the
court in Smith v. Fletcher, " the simil-
itude to responsibility for a dangerous
animal is looked for in this case, it will
be found the defendants did not indeed
keep, but they created one for their own
purposes, and let it go loose. It is as
though they had bred a savage animal
and turned it loose on the world."
What seems to be the chief distinc-
tion, if there was any at all, between
this case and Smith v. Kenrick was then
noticed ; namely, the fact that the de-
fendants had diverted the brook, and
that the water escaped from the arti-
ficial channel which they had made into
the hollow and thence into the mine.
But the defendant was not satisfied with
the judgment, and carried the case up
to the Exchequer Chamber ; and there
the decision of the lower court was re-
versed, and a new trial granted. The
judges, however, gave a very short and
guarded opinion (by Coleridge, C. J.);
saying that they did not think the case
governed in every conceivable aspect
by Rylands v. Fletcher, and that, had
evidence been received (which was of-
fered) to show that every reasonable
precaution had been taken to guard
against ordinary emergencies, there
might have been questions for the con-
sideration of the jury. A distinction
was also suggested between water com-
ing from the new diversion and that
which came from the natural overflow ;
and, finally, they thought it desirable
that the opinion of the jury should be
taken as to whether the acts of the
defendants were done in the ordinary,
reasonable, and proper mode of working
the mine. Smith v. Fletcher, Law R.
9 Ex. 64.
In 1863, a few years before the above
cases were decided, the same questions
arose in the Common Pleas in Baird
v. Williamson, 16 Com. B. n. s. 376.
(The Fletcher cases are given first for
the sake of connection with the pre-
vious part of the note ; those cases be-
BRINGING DANGEROUS THINGS UPON A MAN'S LAND.
495
ing express applications of the doctrine
of May v. Burdett.) The plaintiffs were
the owners of a lower mine, and the
defendants of an upper ; and water had
been discharged from the latter into the
former. Part of the water had flowed
down by mere force of gravitation, as
the defendants had prosecuted the work
of taking out coal. As to injury from
this source, it was held that there was
no remedy. " The owners of the higher
mine,'' said the court, " have a right to
work the whole mine in the usual and
proper manner, for the purpose of get-
ting out any kind of mineral in any part
of that mine ; and they are not liable
for any water which flows by gravita-
tion into an adjoining mine from works
so conducted." But part of the water
which flowed into the plaintiffs' mine
had been raised by the defendants by
pumping, alleged to have been for the
purpose of getting other mineral lying
deeper in the mine. As to the injury
from this source, it was held that the
defendants were liable. The defendants,
it was said, had no right to be active
agents in sending water into the lower
mine. The plaintiffs, as occupiers of
the lower mine, were subject to no ser-
vitude of receiving water conducted by
man from the higher mine.
Carstairs v. Taylor, Law R. 6 Ex.
217, which involved a somewhat similar
question, was a case of some difficulty.
The plaintiffs were the defendant's ten-
ants, occupying the lower story of a
warehouse, of which the defendant oc-
cupied the upper. A hole had been
gnawed by rats through a box into
which water from the gutters of the
building was collected, to be thence
discharged by a pipe into the drains;
and the water, having poured through
the hole, ran down and wet the plain-
tiffs' goods. It was contended that the
defendant was liable, without proof of
negligence, either upon an implied con-
tract, or upon the principle of Rylands
v. Fletcher, — that the defendant had
brought the water to the place from
which it entered the warehouse. But
both positions were denied by the court.
Several distinctions were taken from
Ry lands v. Fletcher. Kelly, C. B., said
that the act was caused by vis major
(which was alluded to by Blackburn, J.,
in Rylands v. Fletcher, in the Exchequer
Chamber, as one of two exceptions to
liability, the other being the act of God)
as much as if a thief had broken the hole
in attempting to enter the building, or
a flash of lightning or a hurricane had
caused the rent. Bramwell, B., distin-
guished the case on the ground that in
Rylands v. Fletcher the defendant had
for his own purposes, as in Bell v.
Twentyman, 1 Q. B.766, conducted the
water to the place from which it got
into the plaintiff's premises ; while in
the present case the conducting of the
water was no more for the benefit of
the defendant than of the plaintiffs. And
the latter must be taken to have con-
sented to the collection of water. Mar-
tin, B., said that Rylands v. Fletcher
had no bearing on the case, as it re-
ferred only to acts of adjoining owners.
The same rule was lately held of
tenants of the same landlord occupying
respectively an upper and a lower story
of a house, where water escaped from
a water-closet, occupied exclusively by
the upper tenants, but without negli-
gence on their pai't, and flowed down
into the plaintiffs' premises. The de-
fendant was considered as not bound to
keep the water from the plaintiffs' prem-
ises at all hazards. Ross v. Feddcn,
Law R. 7 Q. B. 661. But in Marshall
v. Cohen, 44 Ga. 489, where a landlord
had rented a building to various ten-
496
DANGEROUS ANIMALS AND WORKS.
ants, occupying different stories, and
all had common access to a water-closet,
it was held that he was liable to a ten-
ant of the lower part for damage caused
by the carelessness of the other tenants
in obstructing the passage of the closet;
the ground taken being that the water-
closet had been placed in the house by
the defendant, and for this reason it was
not material who had caused it thus to
become a nuisance in its use. The fact
was also noticed that the defendant bad
knowledge of the state of things by
actual notice of a previous leak. Sed
qucere. See post, note to Fisher v.
Thirkell. And see Doupe v. Genin, 45
N. Y. 119, that a landlord is not bound
to protect a tenant on a lower floor from
damage caused by an injury to the roof
by fire.
Rylands v. Fletcher was also distin-
guished in Wilson v. Newberry, Law R.
7 Q. B. 31, where a person had yew-
trees growing on his land, which were
clipped by some means not stated, the
clippings falling upon the plaintiff's
land, whereby his horses were poi-
soned ; the plaintiff knowing that the
clippings were poisonous. It was held
that no cause of action was disclosed.
The latest case upon this subject is
Madras Ry. Co. v. The Zemindar, 30
Law T. N. s. 770, in which the Privy
Council held that the doctrine of Ry-
lands v. Fletcher does not apply to the
case of water stored in tanks in India,
which have existed from time immemo-
rial, and are preserved and repaired by
the land-owners, by reason of their ten-
ure, as essential to the welfare and ex-
istence of the people. These tanks
were erected for purposes of irrigation,
and were recognized and protected by
Hindoo law ; and the case was com-
pared to that of fires from chartered
locomotive engines, to recover for which
it is necessary to prove negligence in
the defendants. Vaughan v. Taff Vale
Ry. Co., 5 Hurl. & N. 679, infra.
The class of cases represented by
Fletcher v. Rylands must not be con-
fused wiih those in which a defendant
is permitted to divert or retain upon
his own premises mere surface water
from rain or snow, running in no de-
fined channel, which, but for the diver-
sion or retention, would find its way
into the plaintiff's land and benefit
him. This, by all the cases, he may
do, though the result is damage to the
plaintiff. Luther v. Winnisimmet Co.,
9 Cush. 171 ; Dickinson v. Worcester,
7 Allen, 19 ; Gannon v. Hargadon, 10
Allen, 106; Curtis v. Ayrault, 47 N. Y.
73, 78; Livingston v. McDonald, 21
Iowa, 160, 166 ; Broadbent v. Rams-
botham, 11 Ex. 602; Rawstron v. Tay-
lor, ib. 369 ; 3 Kent's Com. 440, note 1
(12th ed.). And so was the Roman law.
" lidem (Labeo and Sabinus) aiunt,
aquam pluviam in suo retinere, vel su-
perficientem ex vicini in suum derivare,
dum opus in alieno non fit, omnibus jus
esse." Dig. lib. 39, tit. 3, 1, § 11. The
law of France is the same. 1 Fournel,
Du Voisinage, p. 363 (4th ed.). See
note following, on Obstructing and Di-
verting Water.
But this, according to the English
doctrine, seems to be the extent of the
rule ; and if the defendant has diverted
the water (whether surface water or
not), or at least obstructed and col-
lected it for his own purposes, he must
keep it away from his neighbor at all
hazards.
Upon this point, however, the Ameri-
can cases are not all agreed. In Illi-
nois, the English rule seems to prevail.
Gillham v. Madison Co. R. Co., 49 111.
484. In this case the defendants had
made an embankment on the line of the
BRINGING DANGEROUS THINGS UPON A MAN'S LAND. 497
plaintiff's land, entirely filling up a de- The rule in Massachusetts is not
predion through which water Iroin rain- clearly defined. The doctrine has, at
falls ran. which was thence carried into least until very recently, prevailed that
a lake. The water being thrown back in respect of surface-water, or water
upon the plaintiff 's land by the embank- flowing through drains and ditches (not
nient, it was held that the defendants streams), the owner of the upper land
were liable for the damage. could obstruct it and cause it to flow
So, in Livingston i: McDonald, 21 bark upon the lower. Parks ». New-
Iowa, 160, it was held that one who, in buryport, 10 Gray, 28 ; Flagg v. Wor-
the course of reclaiming and improving cester, 18 Gray, 601; Dickinson v.
his land, collects the surface-water of Worcester, 7 Allen, 19 ; Gannon v.
his premises into a drain or ditch, and Hargadon, 10 Allen, 106. A coter-
thereby greatly increases the quantity minous proprietor, it was said in Dick-
or changes the manner of the flow upon inson v. Worcester, may change the
the lower lands of his neighbor, is lia- surface of his land by raising or filling
ble for the harm sustained. This is a it to a higher grade by the construc-
valuable case, in which the doctrine of tion of dikes, the erection of structures,
the Roman law is examined and fol- or by other improvements which cause
lowed. See infra, where some quali- water to accumulate from natural causes
fication to this rule is stated. on adjacent land, and prevent it from
The Supreme Court of Ohio have passing over the surface. The same
also recently said that the erection of principle was repeated in Gannon v.
an embankment upon one's own land, Hargadon; and it was added that the
whereby the surface-water accumulating right of a party to the Iree and unfet-
upon life land of another is prevented tered control of his own land above,
from flowing off in its natural courses, upon, and beneath the surface could
and caused to flow off in a different di- not be interfered with or restrained by
rection over his land, is an act fur which any considerations of injury to others
the latter may maintain an action with- which might be occasioned by the flow
out showing any actual injury or dam- of mere surface-water in consequence
age. Tootle v. Clifton, 22 Ohio St. of the lawful appropriation of laud by
247. See also Butler v. Peck, 16 Ohio its owner to a particular use or mode
St. 334. (As to the point that the ac- of enjoyment.
tion is maintainable without proof of In Rockwood v. Wilson, 11 Cush.
damage, see Williams v. Esling, ante, 221, negligence was held to be the test
p. 371, and note; Fay v. Prentice, 1 by which to determine whether one who
Com. B. 828; 3 Kent's Com. 440, note 1, had opened a covered drain in his land
12th ed.) was liable for damage to his neighbor
The doctrine of the courts of Penn- caused by the sudden overflow of the
sylvania, California, and Missouri is the drain after it was closed,
same. Martin v. Riddle, 26 Penn. St. But in the late case of Shipley v.
415; Kauffman v. Griesemer, ib. 407; Fifty Associates, 106 Mass. 194, a dif-
Ogburni>. Connor, 46 Cal. 346; Laumier ferent principle, apparently, was ap-
v. Francis 23 Mo. 181. plied to the case of snow and ice which,
And this is the view of Prof. Wash- having collected upon the delendants'
burn. Easements, 427 (2d ed.). building, had fallen into the adjoining
32
498
DANGEROUS ANIMALS AND WORKS.
highway and injured the plaintiff, with-
out any negligence on the part of the
defendants. The roof, however, had
been so constructed as to make such
accidents probable. The case of Ry-
lands v. Fletcher had now appeared ;
and the court adopted it as applicable
to the question, and held the defend-
ants liable. The decision was based
upon the fact that the defendants' build-
ing had been so constructed (in 1824)
as to make accidents from slides of
snow and ice "substantially certain and
inevitable ; " and the case was likened
to the rule that no one had a right so to
construct his roof as to discharge upon
his neighbor's land water which would
not naturally fall there. Washburn,
Easements, 390 ; Reynolds v. Clarke,
2 Ld. Ka\m. 1399; Martin «. Simpson,
6 Allen, 102. However careful and
diligent the defendants might be to pre-
vent injury, they were liable, with such
a roof as the building had (though it was
of tbe usual construction of the time),
for any damage occasioned by it.
Still more recently it has beeh held
that one who has collected water upon
his premises in a reservoir is liable for
the damage caused by percolations of
the water through the embankments.
Wilson v. New Bedford, 108 Mass. 261.
See also Monson & B. Manuf. Co. vi
Fuller, 15 Pick. 551; Fuller v. Chicopee
Manuf. Co., 16 Gray, 46 ; Ball v, Nye,
99 Mass. 582; Gray v. Harris, 107
Mass. 492.
In New Hampshire, the doctrine of
Rylands v. Fletcher is apparently de-
nied. Swett v. Cutts, 50 N. H. 439.
In this case it was held that a person
in the reasonable use of his premises
is not liable for the injury caused his
neighbor by diverting or obstructing
water (not gathered into a stream),
and thereby causing it to flow over the
plaintiff's land. See also Bassett v.
Salisbury Manuf. Co., 43 N. H. 569;
s. c. 3 Am. Law Reg. n. s. 238, and
Judge Redfield's note; Brown v. Col-
lins, 63 N. H. 443.
A similar doctrine prevails in Wis-
consin. Hoyt v. Hudson, 27 Wis. 656;
Pettigrew v. Evansville, 25 Wis. 223.
See also Proctor v. Jennings, 6 Nev.
83.
The latest doctrine of the New York
courts is opposed to Rylands v. Fletcher.
Thus, in Losee v. Buchanan, 51 N. Y.
476, the plaintiff brought an action for
damages caused by the explosion of
a steam-boiler, standing and worked
upon the defendants' premises, whereby
tbe boiler was projected upon the plain-
tiff's premises, and through several of
his buildings; and it was held that withr
out evidence of negligence against the
defendants, either in the selection or
use of the boiler, they were not liable.
Many cases were reviewed, and it was
thought that Rylands v. Fletcher was
supported at best by only one case,
Selden v. Delaware & H. Canal Co.,
23 Barb. 362 ; and this case, it was
said, could not stand in connection with
Bellinger v. New York Cent. R. Co.,
23 N. Y. 47. It was observed, with
special reference to the facts in Ry-
lands o. Fletcher, that, by the law of
this country, if one build a dam upon
his own premises, and thus hold back
and accumulate the water for his bene-
fit, or if he bring water upon his prem-
ises into a reservoir ; in case the dam
or the banks of the reservoir give way,
and the lands of another are flooded,
the former is not liable for the dam-
age without proof of some fault or
negligence on his part ; citing Angell,
Watercourses, § 336; Taphan v. Cur-
tis, 5 Vt. 371; Todd v. Cochell, 17 Cal.
97 ; Everett v. Hydraulic Co., 23 Cal.
BRINGING DANGEROUS THINGS UPON A MAN'S LAND.
499
225; Shrewsbury u. Smith, 12 Cush.
177 ; Livingston v. Adams, 8 Cowen,
175 ; Bailey v. New York, 3 Hill, 531 ;
s. c. 2 Denio, 433 ; Pixley t>. Clark, 35
N.Y. 520, 524; Sheldon v. Sherman, 42
N. Y. 484. The learned court thought
"the rule in respect of the communica-
tion of fire was also opposed to> the
English doctrine. "Fire,'' it was said,
" like water or steam, is likely to pro-
duce mischief if it escapes and goes be-
yond control; and yet it has never been
held in this country that one, building
a fire upon his own premises, can be
made liable if it escapes upon his neigh-
bor's premises and does him damage,
without proof of negligence. Clark v.
Foot, 8 Johns. 422 ; Stuart v. Hawley,
22 Barb'. 619; Calkins v. Barger, 44
Barb. 424 ; Lansing r. Stone, 37 Barb.
15; Barnard v. Poor, 21 Pick. 378;
Tourtellot v. Rosebrook, 11 Met. 460;
Batchelder v. Heagan, 18 Maine, 32."
And other cases of more remote anal-
ogy were referred to.
There certainly are cases in Xew
York that are not easily reconciled
with the above decision. One of them,
Selden v. Delaware & H. Canal Co., 24
Barb. 362, was conceded by the court
to be opposed to it. There it was held
that if, by means of an enlargement of
a canal, for which authority had been
given, the lands of an individual were
inundated, he was entitled to redress,
though the work may have been per-
formed with all reasonable care and
skill.
This case was decided upon the au-
thority of Hay v. Cohoes Co., 2 Comst.
159. There the defendants had dug a
canal through their land, in accordance
with authoiity which they possessed.
It was necessary, in doing this, to blast
rocks with gunpowder, and the result
of the blasting was, that fragments of
rock were thrown against and injured
the plaintiff's dwelling. For the dam-
age sustained he was held entitled to
recover, without proof of negligence.
The court reasoned thus : The defend-
ants had the right to dig the canal ;
the plaintiff the right to the undis-
turbed possession of his property. If
these rights conflict, the former must
yield to the latter, since, upon grounds
of public policy, it is better that one
man should surrender a particular use
of his land than that another should
be deprived of the use of his property
altogether; which might be the conse-
quence if the privilege of the former
should be wholly unrestricted. If the
defendants could injure the plaintiff's
house in part, they could demolish it
altogether. See also Tremain v. Cohoes
Co., 2 Comst. 1C3.
The court, in Losee v. Buchanan,
distinguished this case on the ground
that an injury from the blasting of
roi ks, by the scattering of fragments,
was different from that of the explosion
of a boiler. But the distinction is not
clear.
In Pixley v. Clark, 35 N. Y. 520,
where the defendants had raised the
water of a stream and had built em-
bankments to secure it against overflow,
which answered the purpose perfectly,
it was held that one who had suffered
injury by water percolating through the
embankments could recover therefor,
without proof of negligence ; and the
above cases from 2 Comstock were cited,
as authority for the decision.
So, in McKeon v. Lee, 4 Robt. 449,.
s. c. 51 N. Y. 494, it was held that the
defendant had no right to opi-rate a
steam-engine and other machinery upon
his premises so as to cause the vibra-
tion and shaking of plaintiff's adjoining
building to such an extent as to endan-
500
DANGEROUS ANIMALS AND WORKS.
ger and injure them. But " this was (and of course it is immaterial whether
decided upon the law of nuisances," the damage would have been greater or
said the court in Losee v. Buchanan. less had not the diversion been made) ;
We have thus examined all the cases since that act would be the putting forth
of impoitance upon this question; and a new and great effort by a new and
it will be seen that the subject lies in dangerous method, to enable the mine
a very confused state. It is not alto- to accomplish an extra result. But as"
gether clear, since the decision of the Ex- to the damage of water from the hol-
chequer Chamber in Smith v. Fletcher, lows, the jury would perhaps be per-
Law R. 9 Ex. 64, what the English mitted to say that these were created
doctrine is as to cases which are not (partly by man and partly by God) in
strictly like Rylands v. Fletcher. The the natural- and ordinary course of the
opinion of the Exchequer Chamber in mine, with all due care and caution
the former case certainly suggests the against injury to others,
rule of the ordinary, reasonable, and Perhaps the New York case of Losee
proper means of carrying on the busi- ». Buchanan would not be inconsistent
ness ; but whether this was said as ap- with this view. If the engine and boiler
plicable to the diversion of the stream, were already there when the plaintiff
or to the hollows in the defendants' built or bought the house, — and as this
land, or to both, does not appear. How- is not a case of nuisance,1 that possibly
ever, it was intimated that there might might be admissible evidence, — and no
be a liability for the damage from the new and unusual appliance had been
diversion ; and the meaning of the case added to render its efficiency greater,
perhaps is, that as to such damage as the defendants would not be liable with-
resulted from the reasonable and usual out proof of negligence ; otherwise if
method of merely working out the coal, new machinery and appliances (not
so long as no extraordinary means were merely for repair) had been brought
employed for facilitating the work, the upon the premises and put to use to
defendants were not liable; but so soon produce a greater result,
as it became necessary to bring about This principle seems a just and rea-
great and unusual effort in order to sonable one. A man should be allowed
accomplish the desired efficiency, then to carry on bis business in the ordinary
the defendants took upon themselves way, and should not, while so doing, he
the risk of danger from such increased accountable for consequences which he
and unordinary facilities. could not control; but if he is not sat-
Upon this principle the defendants isfied with the profits of his works, or
might well be held liable for the dam- the condition of his land, and adopts
age caused by diverting the stream new and dangerous means to better the
1 A nuisance, it should seem, is something which works harm while in integro; that is,
while it is in the condition in which the defendant lias put or left it. A reservoir or boiler,
not being per se a nuisance, does not become such by burs-ting. It is ratlier the conditim of
a thing that makes it a nuisance than any sudden and unexpected destruction wrought by it.
A reservoir is like a nuisance, in that negligence (according to Rylands v. Klechcr) has noth-
ing to do with the question of liability for damage caused by it ; but it is not the same thing.
No one could abate a surface-water reservoir, unless it was in a ruinous and un-at'e
condition. The term "nuisance," however, is loosely used iu the books. See the cases in
Comyns's Digest, Action on the Case for a Nuisance, A.
BRINGING DANGEROUS THINGS UPON A MAN'S LAND. 501
one or the other, a miscarriage in which
must injure his neighbor, he should be
required to make good the loss. If, to
take a particular case, my neighbor can
render his soil suitable to some special
purpose only by making a reservoir or
dam upon it, and a break in the em-
bankment will result in damage to my
property, he should secure the water
at bis peril ; otherwise he might utterly
destroy my property for the benefit of
his own. He might as well claim the
right to confiscate it at once. See Hay
v. Cohoes Co., 2 Comst. 159, 161. If
he can improve his property only at the
expense of mine, he must be content to
let it remain as it is. This is just to me,
and not unjust to him. See Wheatly v.
Baugh, 25 Penn. St. 528, where Lewis,
C. J., forcibly says, "The law has never
gone so far as to recognize in one man
a right to convert another's farm to his
own use for the purposes of a filter."
This was the view which the Roman
law took of the case, as is shown in
Livingston o. McDonald, 21 Iowa, 160.
In the Corpus Juris, lib. 39. tit. 3, 4, it
is said, " De eo opere quod agri colendi
causa aratro factum sit, Quintus Mucius
ait non competere hanc actionem. Tre-
batius autem non quod agri sed quod
frumenti duntaxat quaerendi causa ara-
tro factum sit solum excepit. Sed et
fossas agrorum siccandorum causa fac-
tas, Mucius ait fundi colendi causa fieri;
non taroen oportere corrivandae aquae
causa fieri ; sic enim debere quern meli-
orem agrum suum facere, ne viciai date-
riorem facial." See also the preceding
and following sections.
The distinction is here plainly made
between strictly agricultural operations
and those occasioned by works designed
to reclaim or improve the land. Where
the injury was the result of ordinary
farming operations, it was not actiona-
ble; but if the injury resulted in the
course of reclaiming and improving
the land, as in ihe making of ditches,
the rule was otherwise; "for no one
should make his land better in such a
way as to make his neighbor's worse."
The same doctrine prevails in the
modern civil law. See Mai-tin v. Jett,
12 La. 501. The Code of Louisiana
provides (Art. 656) that where two
estates are situated adjacent to each
other, the one below owes to the other
a natural servitude to receive the waters
which run naturally from it, provided
the industry of man has not been used
to create that servitude. Martin v. Jett.
In this case the learned court say, " Let
us see to what extent the correspond-
ing article in the Code Napoleon has
been thought by able jurists in France
to authorize any artificial works by
which the servitude might be rendered
more onerous, with a view of favoring
the great interests of agriculture. Du-
ranton, to whose work our attention has
been directed, in commenting upon the
640th article of the Napoleon Code,
which forbids the owner of the superior
estate to do any thing which might ag-
gravate the condition of the inferior
one, says, ' Thus, he cannot make on
his land any works which would change
the natural passage (immission) of the
waters upon the inferior estate, either
by collecting it upon a single point, and
giving it thereby a more rapid current,
more apt to carry down sand, earth, or
gravel upon the land, or by directing
upon a point on the same land a much
greater volume of water than it would
have received without such works.'
And he cites Book 39 of the Digest,
tit. 3, 1 ; 1 Duranton, No. 164. [See
also 1 Fournel, Du Voisinage, p. 398,
4th ed.]. But the same author proceeds
to say that the owner of the superior
502
DANGEROUS ANIMALS AND 'WORKS.
estate may make any work upon it nec-
essary, or simply useful to the cultiva-
tion of his land, such as furrows in a
planted held. He may also, in plant-
ing vines or forming a. meadow, make
ditches for the irrigation of the meadow,
or for the purpose of making the vines
more healthy and vigorous. lb. No.
165," And this seems to mean merely
that the French farmer may do that
which is usual in raising his crops.
It is not, however, to be inferred
-from the rule that the hand of man shall
not be used in directing the course of
the water, says M. Pardessus, as quoted
in 1 Fournel, Du Voisinage, p. 399 (4th
ed.), that the proprietor from whose
land the water passes to his neighbor
below can do nothing upon his land,
and that he may be condemned to aban-
don it to perpetual sterility, or never
vary the working of it, because this
might change the course of the water.
The cultivation of the soil is in the in-
terest of society, and no one can say
that the natural course of water is
thereby changed. The upper owner
may not only direct his furrows, but
also his necessary trenches for the
drainage of his land, towards one more
than towards another lower estate, in
the absence of any right acquired
against him. And this opinion was
founded upon the Digest, lib. 39, tit. 3,
lj §§ 3, 4, 5, 7. See also Bellows v.
Sackett, 15 Barb. 99, 102; Waffle v. New
York Cent. R. Co., 58 Barb. 413; Dela-
houssaye v. Judice, 13 La. An. 587;
Earl v. De Hart, 1 Beas. 280 ; Kauff-
man v. Griesemer, 26 Penn. St. 407 ;
Miller v. Laubach, 47 Penn. St. 154;
Sliarpe v. Hancock, 8 Scott, N. It. 40 ;
Cooper v. Barber, 3 Taunt. 99 ; Wood
v. Waud, 3 Ex. 748 ; Williams v. Gale,
3 Har. & J. 231; Goodale v. Tuttle,
29 N. Y. 459; Angell, Watercourses,
§§ 108 a et seq., where the subject of
drainage is further considered.
This distinction between the ordi-
nary cultivation of the soil and extraor-
dinary improvements derives support
from analogous cases. Thus, one may
use the water of a stream for domestic
purposes, and for his cattle, but not to
irrigate his land if that will exhaust or
materially diminish the stream. Brown
v. Best, 1 Wils. 174 ; Smith v. Adams,
6 Paige, 435; 3 Kent's Com. 440, note.
See also Elliot v. Fitchburg R. Co.,
post ; Sutton v. Clarke, 6 Taunt. 29,
44, where Gibbs, C. J., speaks of the
case of one who, for his own benefit,
makes an improvement on his land and
thereby unwittingly injures his neigh-
bor, for which he is answerable, though
the improvement was made according
to his best skill and judgment, and
without foreseeing that it would injure
his neighbor. But see Rockwood v.
Wilson, 11 Cush. 221, 227.
As to the rule concerning the mak-
ing of fires upon one's premises, which
the court in Losee v. Buchanan re-
garded as inconsistent with the doc-
trine of Rylands v. Fletcher, it would
seem that they are not wholly incon-
sistent with the above view of the
law.
The leading case on this point, Clark
v. Foot, 8 Johns. 421, is very shortly
reported. The defendant had set fire
to his fallow ground, and the fire, com-
municating with the plaintiff's woods,
caused, the damage complained of. It
was held that the defendant was not
liable unless he had been guilty of neg-
ligence,; and the mere building the fire
in the fallow ground was held lawful.
The case was likened to the burning
of one's house from a fire in 'his neigh-
bor's, which had caught without his
fault; for which no action could be
BRINGING DANGEROUS THINGS UPON A MAN'S LAND.
503
maintained. 3 Black. Com. 43; 1 Noy's
Max ch. 44.
The principle, in view of this analo-
gous case, seems to be this : It is usual
and proper for one, in the ordinary cul-
tivation of his farm, to burn his fallow
ground (in some parts of the country
it is regularly done every season, as
much so as the ploughing), as it is
usual to build a fire in one's house,
and therefore it must, as well, be per-
mitted. See Turbeville t>. Stampe, 1
Ld. Raym. 2(54; s. c. 1 Salk. 13.
Now, it is apprehended that the Eng-
lish courts of the present day would
readily admit the rule as to fires built
within a man's house, for ordinary pur-
poses, and would have no disposition to
say that this is bringing a dangerous
element on a man's premises which he
must guard at his peril ; and the only
difference between such a case and that
of burning fallow ground is that the
danger of damage is somewhat greater
in the latter case. The rule of negli-
gence would perhaps be different ;
greater precaution doubtless being re-
quired in the case of a fire in an open
field than in the case of one in a stove.
But without any want of care, it may
well be that a fire in fallow ground,
when usual, is lawful. If, however,
the defendant had set fire to his woods
to save the expense and trouble of cut-
ting down the trees (which might hap-
pen where the trees were not valua-
ble), we conceive that a different rule
of law would have been declared, and
the plaintiff held entitled to recover
without any allegation of negligence.
Qucere, whether Calkins v. Barger, 44
Barb. 424, and Stuart v. Hawley, 22
Barb. 619, can be sustained?
As to fires communicating from the
sparks 6f locomotive engines, this dis-
tinction is taken : that if the railway
company had not express statutory
power to use such engines, they are lia-
ble for damage by fire proceeding from
them, though negligence be negatived.
Jones v. Festiniog Ry. Co., Law R. 3
Q. B. 733. But where the legislature
has authorized the use of the engines,
and they are used for the purpose for
which they were authorized, and every
precaution has been taken to prevent
injury, the sanction of the legislature
carries with it this consequence, that if
damage results from the use, indepen-
dently of negligence, the company are1
not liable. Vaughan v. Taff Vale Ry.
Co., 5 Hurl. & N. 679, in Ex. Ch. ;
Mazetti v. New York & H. R. Co., 3
E. D. Smith, 98.
Upon the same principle it is held
that a water-works company, having laid
down pipes under a statutory power,
are not liable for damages occasioned
by water escaping in consequence of a
fire-plug being forced out of its place
by a frost of unusual severity. Blvth
y. Birmingham Water-works Co., 25
Law J. 212. See Madras Ry. Co. v.
The Zemindar, 30 Law T. N. s. 770,
supra.
The above view of the liabilities of
parties who bring upon their lands dan-
gerous things makes the defendant in
effect an insurer ; and why should he
not be? The plaintiff pays the pre-
mium of parting with something of the
security to life and property which he
previously enjoyed, in order that the
defendant may carry on a prosperous
business. It matters not that the pre-
mium is paid under compulsion; the
defendant should be required to take
the risk as much as if the payment were
made upon consent, and as the express
consideration of the assumption of the
risk. The plaintiff's detriment is the
price of the defendant's business. It
504
DANGEROUS ANIMALS AND WORKS.
is more than this : it is essential to
it ; and the defendant should therefore
either restore the premium, by remov-
ing the dangerous thing, or be required
to make good the destruction done by
it. Or, to put the case in another
way, he should be ready to restore the
plaintiff at all times to the position in
which he was before he (the defendant)
altered it. If he is not willing to do so
before the calamity, when the plaintiff
cannot compel him, but elects to go on,
he should be compelled to make good
the situation afterwards. It is an ele-
mentary principle that if a person fails
to restore property to another which he
has taken, while he may, he must pay
for its value if, by electing to keep it,
he destroys it. fie becomes, in effect,
an insurer.
The servitude of aqueduct, as it is
called in the foreign law, which consists
in the right of directing the course of
flowing water from an upper estate
upon a lower, has received more con-
sideration in the law of France than
it has in modern times in the law
of England ; though there is much in
Bracton upon the subject. See note
on Nuisance; Bracton, 231 6, where
there is a short chapter on aqueducts.
It is- fair to presume that the good
sense of the French and Roman law
will, so far as it is applicable to the
situation of the, country, generally com-
mend itself to our courts.
In the Digest it is said that there
are three things which subject the lower
land to the purposes of the upper, — the
law, the nature of the place, and length
of time. Lib. 39, tit. 3, 2.
Commenting upon this passage, a
well-known French writer says that
when nature indicates the passage and
flow of these waters by the slope of the
land and by the respective situation of
the places, the upper proprietor has no
need of any other title than that of the
locality itself; and upon this circum-
stance alone he can compel the lower
proprietor to receive the waters by
right of a natural servitude. 1 Four-
nel, Du Voisinage, p. 388 (4th ed.).
And so the Digest also directly de-
clared. But this is a natural servitude,
and the water must flow by nature,
without the hand of man. lb.
The foreign law further requires that
the flow should be perpetual (perennis)
in order to raise a natural servitude ;
a momentary and accidental flow does
not confer the same right. lb. p. 389.
But this, as explained by M. Fournel,
seems to refer to changes made by the
hand of man. If, says he, a man make
an artificial watercourse, the flow of
which is directed upon his neighbor,
the latter may refuse to receive it, since
the claim is not derived from a contin-
uous watercourse, imposed by nature,
lb. p. 390.
The same writer proceeds to say that
if the lower land has no natural slope,
by which the water can pass to his
neighbor further down, he must keep
the same until an agreement is made
with his neighbor below ; and so on
until the water flows into other waters
which by a natural course have ac-
quired a right of passage upon the
lower estates.
It is worthy of notice, that by the
law of France, if the water flows from
a spring newly opened, or from a col-
lection of water lately made, then the
direction of the flow should be deter-
mined by agreement with the lower pro-
prietor, who has the power of choosing
the place by which the flow will least
discommode him. 1 Fournel, Du Voisi-
nage, p. 389 (4th ed.). It fallows, in
such case, that the upper owner lets
BRINGING DANGEROUS THINGS UPON A MAN'S LAND.
505
the water flow down at his peril be-
fore consulting his neighbor below,
lb. p. 390.
But when the bed of the flow is once
fixed, whether by agreement or pos-
session (which latter would, it seems,
equally indicate consent), the upper
proprietor cannot change the direction
of the stream, lb. p. 389.
In the following note we consider
the converse case, of the right of ob-
structing and diverting running water,
and thus preventing its passage to the
lower proprietors.
506 OBSTRUCTING AND DIVERTING WATER.
OBSTRUCTING AND DIVERTING WATER.
Springfield v. Harris, leading case.
Elliot v. Fitchburg R. Co., leading case.
Note on Obstructing and Diverting Water.
Surface-water.
Foreign law.
Usufruct and reasonable use.
Grant and prescription.
Sub-surface water.
City of Springfield v. Samuel Harris.
(4 Allen, 494. Supreme Court, Massachusetts, September, 1861.)
Mill Privileges. The owner of land over which a natural stream of water flows has
a right to the reasonable use of the water for mills or other purposes, whatever
may be the effect upon the owners of lands below ; and lie is not liable to an action
for obstructing and using the water for his mill, if it appears that his dam is only
of such magnitude as is adapted to the size and capacity of the stream and to the
quantity of water usually flowing therein, and that his mode of using the water
is not unusual or unreasonable, according to the general custom of the country in
cases of dams upon similar streams.
Tort for the obstruction of a natural stream of water by means
of a dam.
At the trial in the Superior Court, before Vose, J., there was
evidence to show the uses which the plaintiffs have heretofore
made of the water of the stream, where it crosses Main Street
in the city of Springfield, below the defendant's land, and the
method in which the defendant has used and obstructed the
same ; and it was a question in dispute whether the plaintiffs
had established a title to Main Street. Upon the evidence in
respect to the latter question, the facts not being denied, the
judge ruled that the plaintiffs had not made out their title, and
he directed the jury to return a verdict for the defendant, and
also to answer the two following questions : " 1. Is the dam of
the defendant of such magnitude as is adapted to the size and
capacity of the stream, and to the quantity of water usually flow-
ing therein ? 2. Is the mode of using the dam by the defendant,
SPRINGFIELD V. HARRIS. 507,
by closing the gate at night for the purpose of letting the pond
fill, an unusual and unreasonable use, according to the general
custom of the country in cases of dams upon similar streams?"
The judge instructed the jury that, in answering these questions,
they were to decide as practical men, upon the evidence in the
case, with their judgments aided by the testimony of the experts,
and the evidence relative to the general usage or custom of the
country, or to dams upon similar streams, and by their own view
of the premises, and that they were not to take into view the
rights claimed by the plaintiffs in determining the facts involved
in these inquiries.
The plaintiffs made no objections to these instructions, and did
not ask for any others ; and the jury answered the first question
in the affirmative, and the second in the negative.
To the ruling of the judge directing the jury to return a ver-
dict for the defendant, the plaintiffs alleged exceptions.
X. A. Leonard, for the plaintiffs. J. Wells, for the defend-
ant.
Merrick, J. It appears from the pleadings, and from the facts
stated in the bill of exceptions, that Garden Brook is a natural
stream running by and over the land of the defendant, and thence
through Main Street in the city of Springfield. The plaintiffs
claim to be owners in fee of all the land included within the
limits of said street, and that they are entitled to have the water
flow in said stream at all times without obstruction, in order that
they may use it, as they have a right to do, for sewerage, for ex-
tinguishing fires, and for all other purposes essential to the health
and safety of the city. The defendant is the owner and occupant
of a mill standing upon his said land ; and he admits that during
the whole period in which the obstruction complained of is alleged
to have occurred, he has, in operating his mill and the works con-
tained in it, used the water of said stream by means of a dam,
which for that purpose he has erected and maintained across it.
The plaintiffs in their declaration allege that this dam was and is
" of a larger magnitude than is adapted to the size and capacity
of the stream, and to the quantity of water usually flowing
therein." And this is the particular grievance of which they
complain, and which they set forth as their cause of action against
the defendant.
508 OBSTRUCTING AND DIVERTING WATER.
The action can be maintained only by the proof of this mate-
rial allegation ; for the defendant had a right to use the water
in a reasonable and lawful manner to work and operate his mill,
whatever might be the effect of such use in reference to any ease-
ment to which proprietors of land situate at any point below it
might otherwise be entitled. Each proprietor of land through
which a natural watercourse flows has a right as owner of such
land, and as inseparably connected with and incident to it, to the
natural flow of the stream for any hydraulic purpose to which he
may think fit to apply it ; and it is a necessary consequence from
this principle that such proprietor cannot be held responsible for
any injurious consequences which result to others, if the water is
used in a reasonable manner, and the quantity used is limited by,
and does not exceed, what is reasonably and necessarily required
for the operation and propulsion of works of such character and
magnitude as are adapted and appropriate to the size and capacity
of the stream and the quantity of water usually flowing therein.
Thurber v. Martin, 2 Gray, 394 ; Gould v. Boston Duck Co., 13
Gray, 442 ; Tourtellot v. Phelps, 4 Gray, 376.
The jury having found, under instructions in matter of law
which are admitted to have been correct and unobjectionable,
that the plaintiffs have failed to establish the material allegations
in their declaration relative to the dam erected and maintained
by the defendant across the stream, and having also found that
the said dam is only of such magnitude as is' adapted to the size
and capacity of the stream and to the quantity of water usually
flowing therein, and that the manner in which he used the water
was npt an unusual or unreasonable use of it, according to the
general custom of the country in cases of dams upon similar
streams, it is obvious that the plaintiffs were not entitled to
recover any damages, and therefore that the verdict was properly
rendered for the defendant. '
It is objected that the court erred in ruling that the plaintiffs
had not upon the evidence shown that they had acquired any
prescriptive right to the water in the brook, and in directing the
jury for that reason 'to return a verdict for the defendants. It
would have been more regular to reserve these directions, which
were predicated wholly upon questions of law, and to submit to
the jury the questions of fact in issue, which were specially sub-
mitted to them with instructions that if they found the first in
ELLIOT V. FITCHBURG RAILROAD COMPANY. 509
the affirmative and the second in the negative, they should in that
case render a verdict for the defendant. But as we do not per-
ceive, that the plaintiffs were at all prejudiced or subjected to any
disadvantage by the course pursued, such irregularity affords no
sufficient cause for disturbing the verdict, which was rendered
exclusively upon particular questions of fact which were wholly
independent of and distinct from the questions of law. And as
the finding of the jury upon those particular questions makes it
certain that the plaintiffs could in no event maintain their action,
it becomes unnecessary to consider whether the ruling of the court
in relation to the plaintiffs' alleged title was correct ; for whether
they owned, the soil, or had acquired any prescriptive right to the
use of the water, or were mere riparian proprietors, it is obvious
that judgment must necessarily, upon the finding of the jury upon
those questions of fact, be rendered, for the defendant.
Exceptions overruled.
Lewis Elliot v. The Fitchburg Railroad Company.
(10 Cush. 191. Supreme Court, Massachusetts, October Terra, 1852.)
Damage. One riparian proprietor cannot maintain an action against an upper pro-
prietor for a diversion of part of the water of a natural watercourse flowing through
their lands, unless such diversion causes the plaintiff actual perceptible damage.
This action was tried in this court, at the October term, 1849,
before Metcalf, J., under whose rulings a verdict was found for
the defendants. The plaintiff excepted to the rulings and instruc-
tions, which, with the facts of the case, sufficiently appear in the
opinion.
D. S. £ W. A. Richardson, for the plaintiff. Cr. F. Farley, for
the defendants.
Shaw, C. J. This is an action of the case against the defend-
ants, for diverting the water of a small brook, passing through
land of the plaintiff in Shirley. The facts are briefly these : The
plaintiff is the owner of certain land, and for more than sixty
years a small brook, having its sources in several ponds, has, in
its natural course, flowed through lands of various persons, viz.,
510 OBSTRUCTING AND DIVERTING WATER.
of one Clark, of one Furnin, and then through the plaintiffs land,
which is about half a mile below said Clark's, and from the plain-
tiffs land, through various other lands, to Nashua River. , Said
Brook was in part supplied by a never-failing spring, on said
Clark's land, near said brook, and having its outlet into it. The
defendants, pursuant to a warranty deed from said Clark, of a
perpetual right and privilege to make and maintain a dam and
reservoir, and draw and use the water therefrom, erected such
dam across said stream, below said spring, and made said reser-
voir upon and about the same, and inserted a lead pipe therein,
by means of which they have used and constantly taken water,
from said reservoir, to their depot in Shirley, and used the same
for furnishing their locomotive steam-engines with water, and for
other similar purposes. The defendants offered evidence tend-
ing to prove that said Clark, where said brook runs through his
meadow, which is wet and springy, had cut ditches across the
meadow to the brook, thereby increasing the flow of water to
the, brook ; and it was further proved that there is no outlet for
the water of said meadow, except into this brook. The meadow
is situate below the dam.
The plaintiff contended that if the jury were satisfied of the
existence of the brook, as alleged, and the diversion of the water
therefrom by the defendants, he was entitled to a verdict for
nominal damage, without proof of actual damage. But the pre-
siding judge instructed the jury that unless the plaintiff suffered
actual perceptible damage in consequence of the diversion, the
defendants were not liable in this action. In connection with
this instruction, the judge further instructed the jury that if they
believed that the defendants, by excavating said reservoir and
spring above the dam, or that said Clark, by digging said ditches,
had increased the flow of water in said brook, equal to the quan-
tity of water the defendants had diverted therefrom, then the
defendants were not liable in this action.
The whole court are of opinion that this direction was right in
both particulars.
This appears to have been a small stream of water; but it
must, we think, be considered that the same rules of law apply
to it, and regulate the rights of riparian proprietors, through and
along whose lands it passes, as are held to apply to other water-
courses, subject to this consideration, that what would be a reason-
ELLIOT V. FITCHBUEG RAILROAD COMPANY. 511
able and proper use of a considerable stream, ordinarily carrying
a large volume of water, for irrigation or other similar uses, would
be an unreasonable and injurious vise of a small stream, just suf-
ficient to furnish water for domestic uses for farm-yards, and
watering-places for cattle.
The instruction requested by the plaintiff is, we think, founded
on a misconception of the rights of riparian proprietors in water-
courses passing through or by their lands. It presupposes that
the diversion of any portion of the water of a running stream,
without regard to the fitness of the purpose, is a violation of the
rightof every proprietor of land lying below, on the same stream, so
that, without suffering any actual or perceptible damage, he may
have an action for the sole purpose of vindicating his legal right.
The right to flowing water is now well settled to be a right
incident to property in the land ; it is a right publici juris, of
such character that whilst it is common and equal to all, through
whose land it runs, and no one can obstruct or divert it, yet, as
one of the beneficial gifts of Providence, each proprietor has a
right to a just and reasonable use of it as it passes through his
land ; and so long as it is not wholly obstructed or diverted, or
no larger appropriation of the water running through it is made
than a just and reasonable use, it cannot be said to be wrongful
or injurious to a proprietor lower down. What is such a just and
reasonable use may often be a difficult question, depending on
various circumstances. To take a quantity of water from a large
running stream for agriculture or manufacturing purposes would
cause no sensible or practicable diminution of the benefit to the
prejudice of a lower proprietor ; whereas, taking the same quan-
tity from a small running brook passing through many farms
would be of great and manifest injury to those below, who need
it for domestic supply or watering cattle ; and therefore it would
be an unreasonable use of the water, and an action would lie in
the latter case and not in the former. It is therefore, to a con-
siderable extent, a question of degree ; still, the rule is the same,
that each proprietor has a right to a reasonable use of it, for his
own benefit, for domestic use, and for manufacturing and agri-
cultural purposes.
It has sometimes been made a question whether a riparian pro-
prietor can divert water from a running stream for purposes of
irrigation. But this, we think, is an abstract question which
512 OBSTRUCTING AND DIVERTING WATER.
cannot be answered either in the affirmative or negative, as a rule
applicable to all cases. That a portion of the water of a stream
may be used for the purpose of irrigating land, we think is well
established as one of the rights of the proprietors of the soil along
or through which it passes. Yet a proprietor cannot under color
of that right, or for the actual purpose of irrigating his own land,
wholly abstract or divert the Avatercourse, or take such an unrea-
sonable quantity of water, or make such unreasonable# use of it,
as to deprive other proprietors of the substantial benefits which
they might derive from it, if not diverted or used unreasonably.
The point may, perhaps, be best illustrated by extreme cases.
One man, for instance, may take water from a perennial stream
of moderate size, by means of buckets or a pump — for the mode
is not material — to water his garden. Another may turn a simi-
lar current over a level tract of sandy soil of great extent, which,
in its ordinary operation, will nearly or quite absorb the whole
volume of the stream, although the relative position of the land
and stream are such, that the surplus water, when there is any,
is returned to the bed of the stream. The one might be regarded
as a reasonable use, doing no perceptible damage to any lower pro-
prietor, whilst the other would nearly deprive him of the whole
beneficial use, and yet, in both, the water would be used for irri-
gation. We cite a few of the leading cases in Massachusetts on
this subject. Weston v. Alden, 8 Mass. 136 ; Colburn v. Rich-
ards, 13 Mass. 420 ; Cook v. Hull, 3 Pick. 269 ; Anthony v. Lap-
ham, 5 Pick. 175.
This rule, that no riparian proprietor can wholly abstract or
divert a watercourse, by which it would cease to be a running
stream, or use it unreasonably in its passage, and thereby deprive
a lower proprietor of a quality of his property, deemed in law
incidental and beneficial, necessarily flows from the principle that
the right to the reasonable and beneficial use of a running stream
is common to all the riparian proprietors, and so each is bound so
to use his common right as not essentially to prevent or interfere
with an equally beneficial enjoyment of the common right by all
the proprietors. Were it otherwise, and were it an inflexible
rule that each lower proprietor has a right to the full and entire
flow of the natural stream, without diminution, acceleration, or
retardation of the natural current, it would follow that each lower
proprietor would have a right of action against any upper propri-
ELLIOT V. FITCHBDEG RAILROAD COMPANY. 513
etor for taking any portion of the water of the stream for any
purpose ; such a taking would be a disturbance of his right ; and
if taken by means of a pump, a pipe, a drain, or otherwise, though
causing no substantial damage, it would be a nuisance, and war-
rant the lower proprietor in entering the close of the upper to
abate it. Colburn v. Richards, 13 Mass. 420.
It would also follow, as the legal and practical result, that no
proprietor could have any beneficial use of the stream, without
an encroachment on another's right, subjecting him to actions
toties quoties, as well as to a forcible abatement of the nuisance.
If the plaintiff could, in a case like the present, have such an
action, then every proprietor on the brook, to its outlet in Nashua
River, would have the same ; and because the quantity of dimi-
nution is not material, every riparian proprietor on the Nashua
would have the same right, and so every proprietor on the Merri-
mack River to the ocean. This is a sort of reductio ad absurdum,
which shows that such cannot be the rule, as was claimed by the
plaintiff.
"Without intending at present to state the authorities fully, we
refer to the following English cases, as tending to illustrate and
fix the rule as stated : Bealey v. Shaw, 6 East, 208 ; Duncombe
v. Randall, Hetley, 32; Williams v. Morland, 2 B. & C. 910; 4
Dow. & Ry. 583 ; Wright v. Howard, 1 Sim. & Stu. 190.
If the use which one makes of his right in the stream is not a
reasonable use, or if it causes a substantial and actual damage to
the proprietor below, by diminishing the value of his land, though
at the time he has no mill or other work to sustain present dam-
age, still, if the party thus using it has not acquired a right by
grant, or by actual appropriation and enjoyment twenty years, it
is an encroachment on the right of the lower proprietor, for which
an action will lie. Mason v. Hill, 3 B. & Ad. 304 ; 5 B. & Ad. 1 ;
Wood v. Waud, 3 Welsby, Hurlst. & Gord. 748. But the doc-
trine is much discussed and settled on deliberation, in a recent
case decided in the Court of Exchequer. Ernbrey v. Owen, 6
Welsby, Hurlst. & Gord. 353.
The right to the use of flowing water is publici juris, and com-
mon to all the riparian proprietors ; it is . not an absolute and
exclusive right to all the water flowing past their land, so that
any obstruction would give a cause of action ; but it is a right to
the flow and enjoyment of the water, subject to a similar right in
514 OBSTRUCTING AND DIVERTING WATER.
all the proprietors to the reasonable enjoyment of the same gift
of Providence. It is therefore only for an abstraction and depri-
vation of this common benefit, or for an unreasonable and unau-
thorized use of it, that an action will lie ; but for such deprivation
or unwarrantable use an action will lie, though there be no actual
present damage. So it is subsequently stated in the close of the
case last cited : " so long as this reasonable use by one man of
this common property does no actual and perceptible damage
to the right of another to the similar use of it, no action will
lie."
We think the most reliable American authorities are to the same
effect. 3 Kent Com. (6th ed.) 439 ; Angell on Watercourses,
ch. iv. ; Blanchard v. Baker, 8 Greenl. 253 ; Tyler v. Wilkinson,
4 Mason, 397 ; Webb v. Portland Manufacturing Co., 3 Sumner,
189 ; Anthony v. Lapham, 5 Pick. 175.
The same doctrine has been held in a recent case in New York.
Van Hoesen v. Coventry, 10 Barb. 518.
In applying these rules to the present case, we are to consider
that Clark, who owned the land on which the dam was built, and
the defendants to whom he conveyed all his right to the use of
the water, as holding together the whole right ; and it is to be
considered in the same manner as if the defendants owned the
land. We think it was properly left to the jury to find whether
the defendants, claiming in the right of Clark, had, by their diver-
sion of the water for a valuable and highly beneficial use, caused
any actual or perceptible damage, and, if not, to find for the de-
fendants. It is very clear that here is no complaint of the total
diversion of the stream from the plaintiff's land ; no such ground
of complaint is set forth or relied on. The bed of the stream and
the stream itself remains and passes through the plaintiff's land as
it did before. The gravamen of the complaint is not for divert-
ing the stream itself, but for abstracting a part of the water of the
stream. This is a right which each proprietor has, if exercised
within a reasonable limit. The proper question therefore was,
whether, in the mode of taking, in the quantity taken, and the
purpose for which it was taken, there was a reasonable and justi-
fiable use of the water by Clark. The use being lawful and bene-
ficial, it must be deemed reasonable, and not an infringement of
the right of the plaintiff, if it did no actual and perceptible dam-
age to the plaintiff; and therefore we think that question of fact
SURFACE WATER. 515
was rightly left to the jury, who must have found that it did him
no such damage.
We consider the other direction correct also, as we understand
it. The question was not, if the defendants had caused a damage
to the plaintiff, amounting in law to a disturbance of his right,
for which an action would lie, whether it would be barred by an
advantage of equal value, conferred in nature of a set-off; but
whether, the improvements of Clark upon his meadow taken to-
gether as a whole, including the dam and ditches as parts of one
and the same improvement, any damage was done to the plaintiff;
and this, we think, was correctly so left.
It may perhaps be proper to guard against misconstruction, in
considering what are the general rights and duties of persons
owning lands bounding on running streams, by the general rules
of law and for general purposes, that some alterations of these
rules may be effected in Massachusetts, by the acts of legislation
on that subject, in respect to mills, and the construction which
has been judicially put upon such legislative acts. This system
originated with the provincial act, 13 Anne, passed in 1714,
Ancient Laws and Charters, 404. This act by its operation nec-
essarily secures, to some extent, advantages to the prior occupant
of a stream, by a dam erected to work a mill. Bigelow v. New-
ell, 10 Pick. 348 ; Bemis v. Upham, 13 Pick. 167 ; Baird v. Wells,
22 Pick. 312.
It is not necessary, however, now to go into this subject, but
merely to say that the rights to streams of running water, upon
which the present question turns, are not dependent upon or
affected by the mill acts. Exceptions overruled.
Surface Water, (a.) Foreign Law. of his neighbor, or otherwise to prevent
In the preceding note we have dis- its passage to him, in whole or in part,
cussed the question of the liability of or in its usual course,
one who fails to keep within his own The Roman law contained a provi-
premises a dangerous element which sion that it was not actionable for a
he has brought there; and particularly man, by digging in his own land, to cut
the liability of a man who has allowed off a spring of water from his neighbor,
water, which he has collected for use, provided it was done in the course of
to escape upon his neighbor's premises, improving his land, and not with intent
In the present note we propose to con- to commit injury. An owner of lower
Slier, econverso, the question of a man's land could maintain an action against
right to withdraw water from the reach the owner of the upper tenement, if
516
OBSTRUCTING AND DIVERTING WATER.
the defendant should send down water
otherwise than as it was wont to flow
by nature. In fine, it was said, one
could have the action aquce pluvice ar-
cendce, if the injury from the surface
water was caused by work done, unless
the work was done in the course of the
cultivation of the land. There appears,
also, to have been a distinction between
injuries to land by surface water, and
injuries to buildings or walls by water
dripping (slillicidiurri) , and by water
running in gutters and drains (flumeri) ;
the action being general in the latter
case, and special in the former. Dig.
lib. 39, tit. 3, 1, §§ 12-17.
The English law, it will be found,
contains similar principles, with, how-
ever, some modifications as it descends
into the details.
The rule as to surface water running
in no defined channel, as we have seen
in the preceding note, is that the owner
of the soil may collect and use it, wholly
preventing its passage to his neighbor.
See ante, p. 496 ; Rawstron v. Taylor,
11 Ex. 369. This was the Roman law
also. Dig. lib. 39, tit. 3, 1, § 11.
The law of France, which is similar,
is very clearly stated by M. Fournel, in
his Traite du Voisinage, vol. 1, § 95,
pi. 1 (p. 363, 4th ed.). -Rain and spring
water, he says, considered merely as an
element, cannot be the subject of exclu-
sive ownership. It is common property,
like the air, and belongs to him who first
takes possession of it. But this com-
mon character ends the moment when
the waters are brought together upon
a particular estate. Then, mixing and
identifying themselves with the soil,
they become property, like things
" accessary." The owner, M. Four-
nel proceeds to say, can then, at his
own pleasure, use this water; he can
put and keep it in basins, cisterns, or
reservoirs, and he can make it disappear
by subterraneous channels, without be-
ing bound to account to his neighbors
for the use which he has made of it, un-
less the lower land-owner has acquired
against him the right to restrain him in
the exercise of this extreme liberty, as
it was called. And this is the princi-
ple of the French Civil Code, art. 641,
which declares that he who has a spring
in his land can use it at will, save the
right that the owner of the lower land
may have acquired by grant (titre) or
prescription.
There is also a limitation in respect
of water of this character which is use-
ful to the public. " Le proprie'taire de
la source ne peut en changer le cours,
lorsqu'il furnit aux habitans d'une com-
mune, village, ou hameau l'eau qui leur
est necessaire ; mais si les habitans n'en
ont pas acquis ou prescrit Tusage, le
proprie'taire peut en re'clamer une in-
demnite, laquelle est reglee par expert."
Code Civil, art. 613; 1 Fournel, Du
Voisinage, p. 375 (4th ed.).
As to what is mere surface water
not running in a defined channel, see
Rawstron v. Taylor, 11 Ex. 369; Broad-
bent v. Ramsbotham, ib. 602.
(b.) Usufruct and Seasonable Use.
— In regard to surface streams running
in defined channels, the principal case,
Elliot v. Fitchburg R. Co., enunciates
a doctrine which has become well set-
tled in the law. The principle is, that
riparian proprietors have no absolute
right to the water of the streams flow-
ing by them, but merely the usufruct.
They are entitled to make a proper use
of the water ; and in no case is a party
liable to a lower land-owner for abstract-
ing water, if actual damage has not been
done him. Wadsworth v. Tillotson, 15
Conn. 366 ; Gillett v. Johnson, 30 Conn.
180; Seeley v. Brush, 35 Conn. 419;
SURFACE WATER.
517
Chatfield v. Wilson, 31 Vt. S58 ; Ger-
rish v. New Market Manuf. Co., SO
N. H. 478, 483; Pollitt e. Long, 58
Barb. 20; Billing r. Murray, 6 Ind.
824; Williams v. Morland, 2 Barn. &
C. 910; Mason v. Hill, 3 Barn. & Ad.
304; s. c. 5 Barn. & Ad. 1; Embrey
u. Owen, 6 Ex. 353 ; Wood v. Waud,
3 Ex. 748, 781; 3 Kent's Com. 440
note 1 (12th ed.).
There have been expressions by the
courts, and one or two decisions, to
the effect that the right to the use of
the water of a running stream is some-
thing more than a usufruct, and is in
fact absolute, like that to the enjoyment
of land ; so that any diminution of the
water by an upper proprietor is action-
able, if he have not a right by grant
or prescription, just as an entry upon
land without license is actionable. In
Crooker v. Bragg, 10 Wend. 260, it
was decided that the diversion of a
stream was actionable, though the plain-
tiff, a mill-owner upon the opposite
bank, did not need the whole or any
part of the stream for the use of his
mill. But the situation was such that
the plaintiff, in order to obtain a sup-
ply of water after the diversion, would
be compelled to construct a dam or
raceway; so that, in fact, there was a
prejudice to him by the act of the de-
fendant, and so the court held. The
language of the case must therefore be
taken with reference to this fact. How-
ever, in saying that the right to the
water of a stream running through a
man's land was as perfect and indefeasi-
ble as the right to the soil, the court
were clearly wrong.
But a case in Pennsylvania seems to
have gone to the full extent of this doc-
trine. Wheatley v. Chrisman, 24 Perm.
St. 298. In this case it appeared that
a small stream ran through the lands
of both the parties, and that the plain-
tiff, the lower proprietor, had enjoyed
the use of the water for upwards of
twenty years. The defendant requested
the judge to charge the jury that he was
entitled to a reasonable use of the water
for the purpose of his business, and that
if they believed that no more than a
reasonable quantity for such purpose
was used, as for the creation of steam
to drive his engine, the plaintiff had no
ground for complaint. The court de-
clined the request, and charged that
the defendant had the right to use the
stream for any legal purpose, provided
he returned it to its channel uncor-
rupted and without any essential dimi-
nution; and this instruction was upheld
by the Supreme Court. " The wrong,"
said the court, " must cease, no matter
how trifling it may seem. The right of
the plaintiff is absolute to be restored
to the full enjoyment of his own prop-
erty, and is not dependent in any man-
ner upon its value, either to himself or
his adversary."
The true principle, however, is that
the lower riparian proprietor has, as
against the upper proprietor, merely a
usufruct, and not an absolute right to
the water, however long he may have
been in the enjoyment ; and, this being
so, there can be no infraction of the
right by any abstraction of water which
does not sensibly and injuriously dimin-
ish its volume. Without such an act,
the usufruct is not interfered with, and
the plaintiff's right, therefore, has not
been encroached upon.
In some particulars, however, the
right of action of a lower proprietor
does not depend upon the question of
damage. See 3 Kent's Com. 440,
note 1 (12th ed.), where several cases
of this kind are mentioned. Thus, in
Sampson v. HoddinoLt, 1 Com. B. n. s.
518
OBSTRUCTING AND DIVERTING WATER.
590, the plaintiff had immemorial])' en-
joyed the right of receiving the water
from the defendant's mill at certain
times of the day for the purposes of
irrigating his land. Recently, how-
ever, the defendant, for the purpose of
irrigating his own land, had diverted
the water after it had passed the mill,
and before it reached the plaintiff;
and though it did not appear that the
quantity which ultimately reached the
plaintiff was diminished, it reached him
so late in the day that the plaintiff could
not use it fully. It was held that the
action was maintainable without proof
of actual damage. It follows, a fortiori,
that an action can be maintained for
a permanent diversion. Tillotson v.
Smith, 32 N. H. 90 ; Chatfield v. Wil-
son, 27 Vt. 670; s. c. 31 Vt. 358;
Corning v. Troy Iron & Nail Fact., 40
N. Y. 191, 204; Van Hoesen v. Cov-
entry, 10 Barb. 518; Parker v. Gris-
wold, 17 Conn. 288. In Mill River
Manuf. Co. v. Smith, 34 Conn. 462, it
was held actionable for a riparian pro-
prietor to cut ice from a pond. And,
in general, it is probably true that where
a right is exactly defined, any infraction
will be ground for an action, entitling
the plaintiff to nominal damages at least.
Thus, in the case of a right to the pos-
session of land, no one can lawfully put
foot upon the soil of another without
permission, express or implied; and for
every infraction of this right an action
may be maintained, though the owner
of the land suffered no damage what-
ever. Williams v. Esling, ante, p. 371.
But the right of usufruct in running
streams is incapable of any such exact
definition, and the courts can only say
that where the plaintiff has sustained
actual injury from an undue use of the
water, he has a ground of action; short
of this, he has not. Compare the doc-
trine concerning the right to the lateral
support of ground, which is similar.
Smith v. Thackerah, Law R. 1 C. P.
564.
Whether the test of liability in cases
not arising under the statutes concern-
ing mill privileges be the reasonable
use of the water, or that of damage to
the lower proprietor, is not clear. Both
tests are mentioned in Elliot v. Fitch-
burg R. Co., as though they were equiv-
alent ; but it was not necessary to con-
sider the point, nor was it considered,
since no damage was proved ; and it is
clear, as we have stated, that there must
be damage in order to the maintenance
of the action. Suppose, however, there
is damage to the plaintiff, and yet the
use of the water by the defendant has
been no more than was usual and
reasonably necessary in carrying on
his business ; is there then a right of
action ?
In Gillett v. Johnson, 30 Conn. 180,
the test of the reasonable use was
applied, but applied as equivalent to
that of damage or no damage. The
question raised was of the extent of the
right of the defendant to the use of a
small stream for purposes of irrigation.
It was held that the defendant could
use the stream for that purpose ; but
the right, it was said, could only be ex-
ercised upon a reasonable regard to the
plaintiff's right to the use of the water.
It was not enough that the water had
been applied to a useful and proper
purpose, and in a prudent and hus-
band-like manner, as was alleged; the
defendant was bound to use it "in such
a reasonable manner and quantity as
not to deprive the plaintiff of a suffi-
cient supply for his cattle."
In an earlier case, cited as author-
ity for this decision, the same court
went much farther, and applied the
SURFACE WATER.
519
test of reasonable use where it was
conceded that the plaintiff had suf-
fered damage. Wadsworth v. Tillot-
son, 15 Conn. 366. In this case the
defendant had brought water by an
aqueduct from the common stream to
her house for domestic and culinary
purposes ; and instead of returning the
surplus, above what was necessary for
such use, to the stream, she allowed
it to escape by flowing through small
apertures in penstocks, in order to keep
the water from freezing in winter and
becoming impure in summer. Part of
this water irrigated the land, and part
went to waste. It was held that these
facts gave the plaintiff no right of ac-
tion. See also Chatfield v. Wilson, 31
Vt. 358.
It was for some time a doubtful ques-
tion in England whether water could
be diverted from streams for purposes
of irrigation (Wood v. Waud, 3 Ex.
748, 781) ; but it is now settled that it
may be so used in proper cases. Em-
brey v. Owen, 6 Ex. 353; Miner v. Gil-
mour, 12 Moore P. C. 131. And in
the latter case (which involved rights
of mill-owners) the test of damage or
not was rejected, and that of reasona-
ble use adopted. Lord Kingsdown, in
delivering the judgment, said: "By
the general law applicable to running
streams, every riparian proprietor has
a right to what may be called the ordi-
nary use of the water flowing past his
land ; for instance, to the reasonable
use of the water for his domestic pur-
poses and for his cattle, and this with-
out regard to the effect which such use
may have, in case of a deficiency, upon
proprietors lower down the stream."
See Nuttall u. Bracewell, Law K. 2
Ex. 1, 9.
In cases involving the privileges of
mill-owners, the rule seems to be well
settled, in accordance with the doctrine
of the principal case, Springfield v.
Harris, that the true test of liability is
whether, under all the circumstances,
considering the size of the stream and
that of the mill-works, there has been
a greater use of the stream, in abstract-
ing or detaining the water, than is rea-
sonably necessary and usual in similar
establishments for carrying on the mill.
See Davis v. Getchell, 50 Maine, 602 ;
Gould v. Boston Duck Co., 13 Gray,
442 ; Pitts v. Lancaster Mills, 13 Met.
156; Merrifield v. Worcester, 110 Mass.
216; Hayes v. Waldron, 44 N. H. 580;
Snow u. Parsons, 28 Vt. 459 ; Pool v.
Lewis, 41 Ga. 162 ; Tinim v. Bear, 29
Wis. 254; Clinton v. Myers, 46 N. Y.
511.
There is no suggestion that these
cases stand upon peculiar grounds, and
it is difficult to see any distinction be-
tween the case of mill privileges and
other privileges of using the water of
streams, except in so far as a difference
has been made by statute. See Gould
ti. Boston Duck Co., 13 Gray, 442, 450.
It must .frequently be impossible to
know that a particular use of the water
may not injure the lower proprietors.
Suppose, for instance, in the case of a
brook, that at a time when the lower
proprietor is in great need of the water,
the necessities of the upper proprietor
are also greater than usual, and, with-
out surpassing the bounds of what is
reasonably necessary for a proper pur-
pose, he exhausts the supply of the
brook, and a drought follows : shall the
upper proprietor be held liable in view
of what he may not have known (the
needs of his neighbor), and what he
could not foresee (the drought), the act
which he did being one which was usual
amon;r the riparian owners ?
The French law does not give such
520
OBSTRUCTING AND DIVERTING WATER.
extensive water privileges, even to mill-
owners. " he proprietaire d'un moulin
ne peut, sous pretexte que toute l'eau
lui est ne'cessaire, emp^cher les pro-
prietaires superieurs de s'en servir ou
en priver ses voisins.'' 1 Fournel, Du
Voisinage, 392 (4th ed.). And the rea-
son given is, that mills, though useful
to the public, are not to be preferred to
the irrigation of the land.
In the Pacific States the rights of
prior occupants are much greater.
Thus, it is held in California that the
person who fi^t appropriates, for min-
ing or other purposes, the waters of a
stream running in the public lands is
entitled to the same, to the exclusion of
all subsequent appropriations by other
persons for the same or for other pur-
poses. Smith v. O'Hara, 43 Cal. 371.
But, if the first occupant appropriate
only part of the water, another may
appropriate the rest ; or, if he take all
only upon certain days of the week,
another may take all upon other days.
lb. The appropriation must, however,
be for some " useful purpose," present
or in contemplation, and is not permit-
ted for speculation : Weaver v. Eureka
Lake Co., 15 Cal. 271; or for drain-
age simply : McKinney v. Smith, 21
Cal. 374. See also McDonald v. Bear
River Co., 13 Cal. 220; Wixon u.
Water & Mining Co., 24 Cal. 367; Hill
v. Smith, 27 Cal. 476.
The water of a stream, running
wholly within a man's land, may be
diverted, as for the purpose of irriga-
tion, if it be returned to its channel
before reaching the lower proprietor.
Tolle v. Correth, 31 Tex. 362. And
this is the French law. " Celui dont
cette eau traverse l'heritage peut meine
en user dans l'intervalle qu'elle y par-
court ; mais a la charge de la rendre
a la sortie de ses fonds a son cours
ordinaire." Code Civil, art. 644. The
Grand Cutumier de Normandie, art.
206, contained a similar provision, add-
ing the qualification that no damage
should be done to another.
]f the water passes between the lands
of riparian owners, this diversion of
course cannot be allowed, as each pro-
prietor owns to the middle of the stream,
if not navigable. In the French law,
however, the courts, in the interest of
agriculture, are allowed to modify this
rule in certain cases. Where the supply
of the water is not sufficient for all the
proprietors, it is allowed them to take all
of it in succession, one after another,
during a time proportioned to their
needs. 1 Fournel, Du Voisinage, p. 391
(4th ed.). This is somewhat like the
law of California, supra.
There is another wise rule of the
French law, that this right of diverting
water which passes through a man's
land is applicable only to proper water-
courses. If there are canals passing
through a man's land, for carrying wa-
ter to a lower proprietor, the former
cannot divert the water for any pur-
pose. 1 Fournel, Du Voisinage, p. 395
(4th ed.).
(c.) Grant and Prescription. — A
person by grant or prescription can, of
course, acquire greater rights to the
water of streams than those indicated
by the terms "usufruct" and "rea-
sonable use " (as applied to define the
ordinary rights of upper and lower pro-
prietors) ; but quasre as to a right aris-
ing merely from the enjoyment, in its
own natural bed, of a stream which rises
in the land of the defendant. We have
not found any direct authorities upon
this question in the English law. By
the French law no such right can be
thus acquired. Fournel says distinctly
that the right of disposing of a man's
SURFACE WATER.
521
spring or rain water cannot be weak-
ened " by the possession" of tbe neigh-
boring land-owners. 1 Du Yuisiiiage,
§ 95, pi. 1. And he refers to a curious
case, with which he says that all the
authorities are in accord. The case
was this : One Miss Antoinette Bros-
sette was owner of land in which were
two springs, which for more than fifty
years had flowed down upon the neigh-
boring estates. Having built a mill at
some distance, she diverted the water
of these springs towards a river which
supplied the mill. This act disturbed
Claude Faure, a lower land-owner, who
had made use of the water of the springs
for irrigating his meadow and running
his mill. He therefore brought an ac-
tion against Miss Brossette ; alleging
that for upwards of fifty years, by him-
self and others, he had bten in posses-
sion of this watercourse, whereby he
had acquired the use of it by prescrip-
tion. Miss Brossette answered that the
enjoyment of the water which proceeds
from upper lands cannot be the basis
of a prescription in favor of the lower
estates, because that possession was more
the result of the locality than of the con-
sent of the upper owner ; that in law it
was true that a person could acquire a
servitude without grant, but that by act
of man in the particular case (mais, ex
facto hominis, que dans Vespece) there
had been notliing done or consented to
from which it could be presumed that
the owner of the spring had given up
her rights. The lower court gave judg-
ment fur Faure, and ordered the de-
struction of the new canal which Mhs
Brusi-ette had made, and the return of
the water to its ancient course. Upon
appeal, M. de Chamillard, counsel for
Mi>s Brossette, confined himself to this
proposition, that the possession of Faure
was wholly the effect of the natural sit-
uation of the place, without any concur-
rence or intervention of the will of the
upper owners. Judgment du parliment
de Paris, July 10, 1(5 19. permitting Miss
Brossette to conduct the water of her
springs wherever she pleased.
This, of course, proceeds upon the
ground that a man owns absolutely all
the water which springs up out of his
own land ; and that he cannot be dis-
possessed of it by mere lapse of time.
There must either be a grant or some
other act or omission which indicates a
surrender of the exclusive right. But
twenty years1 diversion of the stream
by the lower proprietor, or the use of it
to supply an ancient mill, would prob-
ably raise a prescriptive right in our
law, whether a mere enjoyment of the
stream in its natural state would do so
or not.
If, by our law, a right to the use of
water flowing from a spring may be ac-
quired in the manner claimed by the
plaintiff in the above case, against the
owner of the land in which the spring
rises, may it also be acquired by mere
occupancy and ownership of the lower
land, without regard to length of time,
and without grant ? In other words,
has the owner of the soil an absolute
ownership of the water flowing down
from all the springs in it? It would
seem that he has. Certainly, when the
water of a spring first emerges from
the soil, the owner of the land cannot
be prevented from u^ing all of the water,
or consuming all of it, at his pleasure ;
and it follows that no one else can ac-
quire a right to the use of it, except by
grant or prescription.
The French case, it will be observed,
did not decide that a right by prescrip-
tion to the use of the water could not
be acquired; on the contrary, counsel
for the defence admitted that it could
522
OBSTRUCTING AND DIVERTING WATER.
be so acquired. The decision simply
was, that a prescriptive right could not
be acquired in the manner contended
for by the plaintiff.
On the following page from that above
referred to, M. Fournel explains what
is meant in the French law by prescrip-
tion. It only arises, he says, in cases
where there is something from which
the consent of the upper owner may be
inferred. He refers to art. 642 of the
Code Civil, where prescriptions of this
kind are declared to arise only by an un-
interrupted enjoyment for thirty years,
beginning from the moment when the
owner of the lower land has made and
finished visible works designed to facili-
tate the descent and course of the water
in his land.
In Rawstron a. Taylor, 11 Ex. 369,
there had been a spot on the defendant's
land, as long as any one could recol-
lect, where water had ever, but in-
constantly, risen to the surface. There
had generally been a drinking-place for
cattle there ; and the overflow of water
had run down in a ditch, and thence
into a watercourse to the plaintiff's res-
ervoir. It was held that the defendant
was not liable for diverting this water
to the use of his own land. Had the
spring in this case been a constant one,
so as to have produced a true water-
course, the case would have been like
that decided by the French court. But
as the decision went upon the ground
that the water had no defined course,
and was inconstant, the point above
considered is left in doubt. See also
Broadbent v. Ramsbotham, 11 Ex. 602,
a similar case.
Sub-svrface Water. — This leads us
to a consideration of the right to cut off
sub-surface water. Upon this point we
shall find that there is little if any differ-
ence between our own and the Roman
and French law. M. Fournel says that
the owner of land may cut the veins of
springs, to the injury of the lower es-
tates. 1 Du Voisinage, § 95, pi. 1.
This principle is founded upon the rule
of the Digest. " Si in meo fundo aqua
erumpat, quae ex tuo venas habeat, si
eas venas incideris, et ob id desierit
aqua ad me pervenire, tu non videris vi
fecisse, si nulla servitus mihi eo nomine
debita sit." Lib. 39, tit. 3, 21.
We shall see that in our law no ser-
vitude, at . least by prescription, can be
acquired in sub-surface water which
percolates through the ground ; but it
is considered to be otherwise of under-
ground water running in definite cur-
rents, which, perhaps, is what the Digest
means by the word " venae.''
As to this right to cut off under-
ground water, there was formerly some
conflict among the English authorities.
In Balston v. Bensted, 1 Camp. 463, an
action was brought against the defend-
ant for cutting a drain in his close,
whereby the supply of water in a certain
spring upon the close of the plaintiff
was injuriously diminished. It appeared
that the plaintiff had had uninterrupted
enjoyment of the spring for upwards of
twenty years ; and Lord Ellenborough
held that an exclusive enjoyment of
water for a period of twenty years
afforded a conclusive presumption of
right in the party so enjoying it.
Acton v. Blundell, 12 Mees. & W.
324, was a similar case, except that the
plaintiff had not been in possession for
twenty years. The plaintiff was pos-
sessed of a well which the defendants,
in carrying on mining operations in
their land, had drained. It was held
in the Exchequer Chamber that the
defendants were not liable. This case
underwent great consideration ; the
English authorities, ancient and mod-
SUB-SURFACE WATER.
523
em, and the doctrines of the Roman
law, being exhaustively reviewed. But
the court expressed no opinion as to
what would have been the decision had
the plaintiff shown an uninterrupted
user for twenty years.
In Dickinson v. Grand Junction Ca-
nal Co., 7 Ex. 282, the defendants had
sunk a well (after there had been dis-
putes and compromises between the
parties concerning the abstraction of
water from the plaintiffs' ancient mills)
on their own land, and erected over it a
pump and steam-engine, by which they
pumped up a quantity of underground
water which would otherwise have
flowed through the ground into certain
streams and supplied the mills of the
plaintiffs with water. It was held that
the defendants were liable for the dam-
age. But, though the mills of the plain-
tiffs were ancient, the court thought that
that fact was not important. " We con-
sider it as settled law," it was said,
" that the right to have a stream run-
ning in its natural course is, not by a
presumed grant from long acquiescence
on the part of the riparian proprietors
above and below, but is ex jure naturae,1
. . . and an incident of property, as
much as the right to have the soil it-
self in its natural state, unaltered by
the acts of a neighboring proprietor,
who cannot dig so as to deprive it of
the support of his land." This was
said, apparently, with reference to un-
dergi ound water as well as to surface
streams ; for the court proceed to say,
" But in the much-considered case of
Acton v. Blundell, in the Court of Ex-
chequer Chamber, a distinction is made
for the first time between underground
waters and those which flow on the sur-
face ; and it was held that the owner of
a piece of land, who has made a well
in it, and thereby enjoyed the benefit
of underground water, but for less than
twenty years, has no right of action
against a neighboring proprietor, who,
in sinking for and getting coals from
his soil in the usual and proper man-
ner, causes the well to become dry.
The decision goes no further." And
the case was thus explained : "In such
a case the existence and state of under-
ground water is generally unknown be-
fore the well is made ; and after it is
made there is a difficulty in knowing
certainly how much, if indeed any, of
the water of the well, when the ground
was in its natural state, belonged to
the owner in right of his property in
the soil, and how much belonged to that
of his neighbor, who, in digging a mine
or another well, may possibly be only
taking back his own. . . . If the course
of a subterranean stream were well
known, as is the case with many which
sink under ground, pursue for a short
space a subterraneous course, and then
emerge again, it never could be con-
tended that the owner of the soil under
which the stream flowed could not main-
tain an action for the diversion of it, if
it took place under such circumstances
as would have enabled him to recover
if the stream had been wholly above
ground." These, and other remarks
as to abstracting the water of surface
streams, appear to have been applied,
by way of illustration, to certain water
which the defendants had taken after it
1 This probably means simply that a lower proprietor can maintain an action against his
neighbor above for diverting or polluting the stream to his injury without alleging a right
to receive it as before for twenty years. It does not mean that an upper proprietor cannot
acquire a right by prescription to divert or abstract large quantities of the water, or to pollute
the stream.
524
OBSTRUCTING AND DIVERTING WATER.
had formed part of the river which sup-
plied the mills. The digging of the well
■was considered as a diversion of the
stream, and not as a reasonable use of
it. But the same ruling was made as
to underground water which had not
reached the river, but had been pre-
vented from doing so by the excavation
of the well; and this, too, "whether
the water was part of an underground
watercourse or percolated through the
strata." No reasons at all are given
for this position ; and, in view of what
was said concerning Acton v. Bluftdell,
it seems quite unintelligible.
The question went to the House of
Lords in Chasemore v. Richards, 7 H. L.
Cas. 349 ; s. c. 5 Hurl. & N. 982, Am.
ed. In this case a land-owner and mill-
owner, who had for upwards of sixty
years enjoyed the use of a stream which
was chiefly supplied by percolating un-
derground water, produced by rain-
falls, lost the use of the stream after an
adjoining owner had dug, on his own
ground, an extensive well for the pur-
pose of supplying water to the inhabi-
tants of the district (many of whom had
no title as land-owners to the use of the
water). It was held ihat he had no rem-
edy ; the judgment of the Exchequer
Chamber (2 Hurl. & N. 168) being
affirmed.
The opinion expressed by Lord El-
lenborough in Balston v. Bensted, supra,
as to the prescriptive right to such
water, was now overruled, and its in-
consistency with Dickinson v. Grand
Junction Canal Co., supra, pointed out.
But this latter case was itself criticised
in that the judges had failed to follow
the distinction between underground
percolating water and visible water-
courses, as laid down in Acton v. Blun-
dell, and commended by themselves.
Upon the question of prescription,
the court, in Chasemore v. Richards, 7
H. L. Cas. 349, 370, say: "In such a
case as the present, is any right derived
from the use of the water of the river
Wandle for upwards of twenty years for
working the plaintiff's mill? Any such
right against another, founded upon
length of enjoyment, is supposed to
have originated in some grant which
is presumed from the owner of what is
sometimes called the servient tenement.
But what grant can be presumed in the
case of percolating waters, depending
upon the quantity of rain falling or the
natural moisture of the soil, and in the
absence of any visible means of know-
ing to what extent, if at all, the enjoy-
ment of the plaintiff's mill would be
affected by any water percolating in
and out of the defendants' or any other
land ? The presumption of a grant only
arises where the person against whom
it is to be raised might have prevented
the exercise of the subject of the pre-
sumed grant; but how could he prevent
or stop the percolation of water ? "
There is, then, according to the high-
est authority in England, no such thing
as a prescriptive right to underground
percolating water, such as is produced
by rainfall or the natural moisture of
the soil; and the same case (Chasemore
v. Richard.--) also decides that a party
has no valid claim to such water (so as
to be able to maintain an action for
cutting it off) jure naturae. It was im-
possible, the court observed, to recon-
cile such a right with the natural and
ordinary rights of land-owners, or to fix
any reasonable limits to the exercise of
such a right. Such a right would inter-
fere with, if not prevent, the drainage
of land by the owner. And this case
was put : Suppose a man should sink
a well upon his land which should not
affect his neighbor's mill ; in that case
SUB-SURFACE WATER.
525
no action could be maintained. But
suppose that many land-owners should
sinjk wells upon their lands, and thereby
absorb so much of the percolating water
as would sensibly and injuriously dimin-
ish the quantity of water at the mill,
could an action be maintained against
any one of them, and, if any, which? lor
it is clear that no action could be main-
tained against them jointly.
Lord Wensleydale (better known as
Mr. Baron Parke) hesitated, however,
as to the application of the rule to the
particular case, though he assented to
the correctness of the general principle;
doubting if the defendant had any right
to pump out water for the whole neigh-
borhood, including those who would
themselves have had no right to take
it. See Bassett v. Salisbury Manuf. Co.,
43 N. H. 569, infra.
Our courts have generally reached
the same conclusions with those arrived
at in Chasemore v. Richards. Chase v.
Silverstone, 62 Maine, 175 ; Greenleaf
v. Francis, 18 Pick. 117; Wilson v.
New Bedford, 108 Mass. 261; Roath
v. Driscoll, 20 Conn. 533 ; Chatfield v.
Wilson, 28 Vt. 49; Ellis v. Duncan,
21 Barb. 230 ; Wheatley v. Baugh, 25
Penn. St. 528 ; Frazier v. Brown, 12
Ohio St. 294; Delhi v. Youmans, 50
Barb. 316; Bliss v. Greedy, 45 N. Y.
671 ; Mosier v. Caldwell, 7 Nev. 363 ;
Hanson v. McCue, 42 Cal. 303. But
see Bassett v. Salisbury Manuf. Co., 43
N. H. 569; Swett v. Cutts, 50 N. H.
439, where the unqualified right of the
land-owner to cut off percolating water
was rejected, and the doctrine of a right
to do so in the reasonable use of the soil
adopted.
The rule, except in New Hampshire,
seems, therefore, to be that land-owners
have an unqualified right to under-
ground percolating water, just as they
have to the very soil itself (and so the
doctrine is expressly stated in many of
the cases), and not the mere right to
a reasonable use of it. The right is
like that to the appropriation of sur-
face water not running in defined chan-
nels, and not like that to the water
of regular streams. But a land-owner
would probably have no right to cor-
rupt underground water to the injury
of his neighbor.
In Frazier v. Brown, supra, it was
lield that it made no difference that the
defendant had acted with mere malice
in cutting off the subterraneous water.
And to the same effect are Chatfield v.
Wilson, 28 Vt. 49 ; Rawstron v. Tay-
lor, 11 Ex. 369, 378, Martin, B. But
this is not clear. The doctrine of the
Roman law, as we have seen, was other-
wise ; and so is that of Greenleaf v.
Francis, 18 Pick. 117, and Wheatley
v. Baugh, 25 Penn. St. 528, 533. See
also Chasemore v. Richards, 7 H. L.
Cas. 349, 388; Panton v. Williams,
19 Johns. 92; Radcliff v. Brooklyn, 4
Comst. 195, 204; Goodloe v. Cincinnati,
4 Ohio, 500.
The distinction suggested in Dickin-
son v. Grand Junction Canal Co., supra,
between underground water which per-
colates through the soil and that which
runs below the surface in a defined
channel, is recognized in other cases.
See New River Co. v. Johnson, 2 El.
& E. 435, 445, Crompton, J. ; Chase-
more v. Richards, 7 H. L. Cas. 349,
374 ; Smith v. Adams, 6 Paige, 435 ;
Wheatley v. Baugh, 25 Penn. St. 528;
Cole Silver M. Co. v Virginia Water
Co., 1 Sawyer, 470. And so of under-
ground ditches. See Livingston v. Mc-
Donald, 21 Iowa, 160, 165, showing,
also, the difference between ditches for
drainage and streams having banks.
Luther v. Winnisimmet Co., 9 Cush.
526
OBSTRUCTING AND DIVERTING WATER.
171, 174; Ashley v. Wolcott, 11 Cush.
192 ; Gillett v. Johnson, 30 Conn. 180;
Hoyt v. Hudson, 27 Wis. 656 ; Broad-
bent v. Ramsbotham, 11 Ex. 602 ; 3
Kent's Com. 440, note 1 (12th ed.).
See further, as to drainage, Waffle v.
New York, &c, R. Co., 58 Barb. 413.
If a well or an excavation withdraws
water from a defined surface channel,
as well as subterraneous percolations,
an injunction may be obtained. Grand
Junction Canal Co. v. Shugar, Law R.
6 Ch. 483. See Dickinson v. Grand
Junction Canal Co., supra.
Of course if the water of a stream,
whether above or below ground, be pol-
luted so as to work an injury to a lower
proprietor, he can maintain an action
therefor, unless the upper proprietor
has acquired a right by grant or pre-
scription to poison the water. See
Wheatley v. Chrisman, 24 Penn. St.
298; O'Riley ». McCheeney, 3 Lans.
278; Merrifield v. Worcester, 110
Mass. 216.
The last-named case was an action
against a city for polluting the water
of a stream by sewage, and it was de-
cided that so far as the pollution was
the effect of the system of sewage
adopted by the defendant, it was not
actionable ; otherwise, if the pollution
was attributable to the negligence of
the defendants, either in managing the
system or in the construction of the
sewers. And a municipal corporation
has, it is held, the like right to cause
the water collecting in the gutters of
buildings and streets to flow upon land,
its natural outlet, in a single stream,
when otherwise it would have flowed
over the land in small currents. Phin-
izy v. Augusta, 47 Ga. 260. See Hough
v. Doylestown, 4 Brewst. 333.
THURSTON V. HANCOCK. 527
SUPPORT OF GROUND AND BUILDINGS.
Thurston v. Hancock, leading case.
Humphries v. Brogden, leading case.
Note on Supports.
Lateral support of ground and houses.
Support of contiguous houses.
Party walls.
Subjacent support.
William Thurston v. Ebenezer Hancock and Others.
(12 Mass. 220. Supreme Court, Massachusetts, March Term, 1815.)
Lateral Support. Where one built a house on his own land within two feet of the
boundary line of his land, and ten years after the owner of the land adjoining dug
so deep into his own land as to endanger the house, and the owner of the house, on
that account, left it and took it down, it was holden that no action lay for the owner
of the house for the damage done to the house, but that he was entitled to an action
for the damage arising from the falling of his natural soil into the pit so dug.
This was an action of the case, in which the plaintiff declares
that long before the several grievances afterwards mentioned,
and at the several times of committing the same, he was, and
thence hitherto hath been, and still is, seized in fee of a certain
messuage or dwelling-house and land, with the appurtenances,
in Boston, and which were in his possession and occupancy, and
he had, and still ought to have, the full, safe, and secure use and
enjoyment of the same ; nevertheless, the defendants, well know-
ing the premises, but maliciously contriving and intending to hurt
the plaintiff in this behalf, and to deprive him of the use and ben-
efit of the said dwelling-house, on, &c, and on divers other days
and times between that day and the day of suing his original writ
in this behalf, at Boston aforesaid, wrongfully and injuriously
took, dug, and carried away the earth, ground, and soil from the
land next adjoining the plaintiff's said dwelling-house and land,
to a great depth, that is to say, to the depth of sixty feet below
the ancient surface of the said next adjoining land, and below the
foundation of the plaintiff's said dwelling-house, and so near and
528 SUPPORT OP GROUND AND BUILDINGS.
so close to the said dwelling-house and land, that the ground,
earth, and soil of the plaintiff was undermined, and hath fallen
away from around his said dwelling-house, and from his land on
which the same are situated ; so that the cellar walls thereof have
been left naked and exposed; bjr reason whereof the plaintiff
hath been, and still is, greatly prejudiced and injured in his afore-
said estate, of and in the said dwelling-house and land, and the
same is become of no value to him, and the said house hath been,
and still is, in great danger of being thereby undermined and of
falling down, and hath been thereby rendered wholly unsafe and
insecure to dwell in, and of no use or benefit to the plaintiff, and
by reason of the premises he hath been obliged to quit said house
and to leave the same empty and untenanted, and been put to
great trouble and expense, and hath been, and still is, deprived of
all benefit, use, and enjoyment thereof, by means and on account
of the premises. To his damage $20,000.
A trial was had upon the issue of not guilty, November term,
1813, and a verdict found for the defendants was to be set aside,
and a new trial granted, if, in the opinion of the court, the plain-
tiff was entitled to maintain his action upon the following state
of facts reported by the judge who sat in the trial, namely : that
the plaintiff, in the year 1802, purchased a parcel of land upon
Beacon Hill, so called, in Boston, bounded westwardly on land
belonging to the town of Boston, on the said hill, eastwardly on
Bowdoin Street, so called, and northwardly and southwardly on
land of D. D. Rogers, Esq. ; that afterwards, in the year 1804,
the plaintiff erected a valuable brick dwelling-house thereon,
which stood at the distance of forty feet from the northern and
southern bounds of his land, the back side of the said house
being about two feet from the western bounds of said land ; that
the foundation of said house was placed about fifteen feet below
the ancient surface of the land ; that the plaintiff, with his fam-
ily, occupied the said house and land from the month of Decem-
ber, 1804, until they were obliged to remove therefrom, as here-
after mentioned ; that the defendants commenced digging and
removing the gravel from the side of the said hill in the year
1811 ; that on the 27th of July, 1811, the plaintiff gave them
written notice that his house was endangered thereby ; that
the defendants, notwithstanding, continued to dig and carry away
the earth and gravel from the hill, until the commencement of
THURSTON V. HANCOCK. 529
this action ; that the only land belonging to the defendants,
which adjoined to the said house and land of the plaintiff, was
purchased by them of the town of Boston, and conveyed by deed
dated the 6th of August, 1811 ; that the land thus bought by
the defendants consisted of a lot about one hundred feet square,
upon the top of said Beacon Hill, and a right in a highway thirty
feet wide, leading to it from Sumner Street ; that this lot and
highway were laid out by said town more than sixty years since,
for the purpose of erecting a beacon, and have never been used
for any other purpose, except the erection of a monument ; that
the town derived its title to said land from long-continued pos-
session for the purpose aforesaid ; that all these facts were
known to the defendants before they purchased said land of the
town ; that this land adjoined the plaintiff 's house and land on
the western side, and, at the time of suing out the plaintiff's writ,
the defendants' digging aud removal of the earth as aforesaid had
approached, on the surface, within five or six feet of the plaintiff's
house on the western side thereof, and in some places the earth
had, by reason of said digging and removal, fallen from the walls
thereof ; that the defendants had dug and carried away the earth
near the northwestwardly corner of said house to the depth of
forty-five feet, and on the western side thereof to the depth
of thirty feet, below the natural surface of their own, as well
as of the plaintiff's land ; that the earth dug and removed by
the defendants as aforesaid was upon and from their said land
next adjoining the plaintiff's land ; that, by reason of the digging
and removing of the earth as aforesaid, to the depth aforesaid,
below the ancient surface of the earth, a part of the plain-
tiff's earth and soil, on the surface of his said land, had fallen
away and slidden upon the defendants' land ; and the foundation
of the plaintiff's house was rendered insecure, and it became, and
was, at the time of commencing this action, unsafe and danger-
ous to dwell in said house ; and the plaintiff was obliged to quit
and abandon the same, previous to his commencing this action,
and afterwards to take it down in order to save the materials
thereof.
The cause was argued at the last March term, by Otis and Pres-
cott for the plaintiff, and the Solicitor- General and Aylwin for the
defendants ; and, being continued for advisement, the opinion of
the court was now delivered by
34
530 SUPPORT OP GROUND AND BUILDINGS.
Parker, C. J. The facts agreed present a case of great mis-
fortune and loss, and one which has induced us to look very
minutely into the authorities, to see if any remedy exists in law
against those who have been the immediate actors in what has
occasioned the loss ; but, after all the researches we have been
able to make, we cannot satisfy ourselves that the facts reported
will maintain this action.
The plaintiff purchased his land in the year 1802, on the sum-
mit of Beacon Hill, which has a rapid declivity on all sides. In
1804, he erected a brick dwelling-house and out-houses on this
lot, and laid his foundation, on the western side, within two feet
of his boundary line. The inhabitants of the town of Boston
were at that time the owners, either by original title or by an
uninterrupted possession for more than sixty years, of the land
on the hill lying westwardly of the lot purchased by the plaintiff.
On the 6th of August, 1811, the defendants purchased of the town
the land situated westwardly of the said lot owned by the plain-
tiff; and, in the same year, commenced levelling the hill, by dig-
ging and carrying away the gravel ; they not actually digging up
to the line of division between them and the plaintiff, but keep-
ing five or six feet therefrom. Nevertheless, by reason of the hill,
the earth fell away, so as in some places to leave the plaintiff's
foundation wall bare, and so to endanger the falling of his house
as to make it prudent and necessary, in the opinion of skilful
persons, for the safety of the lives of himself and his family, to
remove from, the house ; and, in order to save the materials, to
take down the house, and to rebuild it on a safer foundation.
The defendants were notified of the probable consequences of
thus- digging by the plaintiff, and were warned that they would
be called upon for damages, in case of any loss.
The manner in which the town of Boston acquired a title to
the land, or to the particular use to which it was appropriated,
can have no influence upon the question, as the fee was in the
town, without any restriction as to the manner in which the land
should be used or occupied.
It is a common principle of the civil and of the common law,
that the" proprietor of land, unless restrained by covenant or
custom, has the entire dominion, not only of the soil, but of the
space above and below the surface, to any extent he may choose
to occupy it.
The law, founded upon principles of reason and common util-
THURSTON V. HANCOCK. 531
ity, has admitted a qualification to this dominion, restricting the
proprietor so to use his own as not to injure the property or
impair any actual existing rights of another. Sic utere tuo ut
alienum non hvdas. Thus, no man, having land adjoining his
neighbor's which has been long built upon, shall erect a build-
ing in such manner as to interrupt the light or the air of his
neighbor's house,1 or expose it to injury from the weather or to
unwholesome smells.
But this subjection of the use of a man's own property to the
convenience of his neighbor is founded upon a supposed pre-exist-
ing right in his neighbor to have and enjoy the privilege which
by such act is impaired. Therefore it is, that, by the ancient
common law, no man could maintain an action against the owner
of an adjoining tract of land, for interrupting the passage of the
light or the air to a tenement unless the tenement thus affected
was ancient, so that the plaintiff could prescribe for the privilege
of which he had been deprived, upon the common notion of pre-
scription, that there was formerly a grant of the privilege, which
grant has been lost by lapse of time, although the enjoyment of
it has continued.
Now, in such case of a grant presumed, it shall for the pur-
poses of justice be further presumed that it was from the ancestor
of the man interrupting the privilege, or from those whose estate
he has ; so as to control him in the use of his own property, in
any manner that shall interfere with or defeat an ancient grant
thus supposed to have been made. This is the only way of
accounting for the common-law principle which gives one neigh-
bor an action against another, for making the same use of his
property which he has made of his own. And it is a reasonable
principle ; for it would be exceedingly unjust that successive
purchasers or inheritors of an estate for the space of sixty years,
with certain valuable privileges attached to it, should be liable to
be disturbed by the representatives or successors of those who
originally granted, or consented to, or acquiesced in, the use of
the privilege.
It is true, that, of late years, the courts in England have sus-
tained actions for the obstruction of such privileges of much
shorter duration than sixty years. But the same principle is pre-
served of the presumption of a grant. And, indeed, the modern
1 See post, p. 558.
532 SUPPORT OF GROUND AND BUILDINGS.
doctrine, with respect to easements and privileges, is but a nec-
essary consequence of late decisions, that grants and title-deeds
may be presumed to have been made, although the title or privi-
lege claimed under them is of a much later date than the ancient
time of prescription.
The plaintiff cannot pretend to found his action upon this prin-
ciple ; for he first became proprietor of the land in 1802, and built
his house in 1804, ten years before the commencement of his suit.
So that, if the presumption of a grant were not defeated by show-
ing the commencement of his title to be so recent, yet there is no
case, where less than twenty years has entitled a building to the
qualities of an ancient building, so as to give the owner a right
to the continued use of privileges, the full enjoyment of which
necessarily trenches upon his neighbor's right to use his own
property in the way he shall deem most to his advantage. A
man who purchases a house, or succeeds to one, which has the
marks of antiquity about it, may well suppose that all its privi-
leges of right appertain to the house ; and, indeed, they could
not have remained so long, without the culpable negligence or
friendly acquiescence of those who might originally have had a
right* to hinder or obstruct them. But a man who himself builds
a house adjoining his neighbor's land, ought to foresee the proba-
ble use by his neighbor of the adjoining land, and, by convention
with his neighbor, or by a different arrangement of his house,
secure himself against future interruption and inconvenience.
This seems to be the result of the cases anciently settled in
England, upon the substance of nuisance or interruption of privi-
leges and easements ; and it seems to be as much the dictate of
common sense and sound reason as of legal authority.
The decisions cited by the counsel for the plaintiff, 1 Domat,
309, 408 ; Fitz. N. B. 183 ; 9 Co. 59 ; Palmer, 536 ; 1 Roll. Abr.
140; ib. 430; Slingsby v. Barnard, 1 Roll. Rep. 88; 2 Roll.
Abr. 565 ; 2 Saund. 697 ; Co. Lit. 56 b; 1 Burr. 337 ; 6 D. & E.
411 ; 7 East, 368 ; 1 B. & P. 405 ; 3 Wils. 461, in support of
this action, generally go to establish only the general principle,
that a remedy lies for one who is injured consequentially by the
acts of his neighbor done on his own property. The civil-law
doctrine cited from Domat will be found, upon examination, to
go no further than the common law upon the subject. For,
although it is there laid down that new works on a man's ground
THURSTON V. HANCOCK. 533
are prohibited, provided they are hurtful to others who have a
right to hinder them, and that the person erecting them shall
restore things to their former state, and repair the damages, from
whence, probably, the common-law remedy of abating a nuisance
as well as recovery of damages, yet this is subsequently explained
and qualified in another part of the same chapter, where it is said,
that, if a man does what he has a right to do upon his own land,
without trespassing upon any law, custom, title, or possession, he
is not liable to damage for injurious consequences, unless he does
it, not for his own advantage, but maliciously ; and the damages
shall be considered as casualties for which he is not answerable.
The common law has adopted the same principle, considering
the actual enjoyment of an easement for a long course of years
as establishing a right which cannot with impunity be impaired
by him who is the owner of the land adjoining.
The only case cited from common-law authorities, tending to
show that a mere priority of building operates to deprive the ten-
ant of an adjoining lot of the right of occupying and using it at
his pleasure, without being subjected to damages, if by such use
he should injure a building previously erected, is that of Slingsby
v. Barnard, cited from Rolle. Sir John Slingsby brought his
action on the case against Barnard and Ball, and declared that he
was seized of a dwelling-house nuper edifieatus, and that Barnard
was seized of a house next adjoining ; and that Barnard, and Ball
under him, in making a cellar under Barnard's house, dug so near
the foundation of the plaintiff's house, that they undermined the
same, and one half of it fell. Judgment upon this declaration
was for the plaintiff, no objection having been made as to the
right of action, but only to the form of the declaration.
The report of this case is very short and unsatisfactory ; it not
appearing whether the defendant confined himself in his digging
to his own land, or whether the house then lately built was upon
a new or an old foundation. Indeed, it seems impossible to main-
tain that case upon the facts made to appear in the report, with-
out denying principles which seem to have been deliberately laid
down in other books, equally respectable as authorities.
Thus, in Siderfin, 167, upon a special verdict the case was thus.
A., having a certain quantity of land, erected a new house upon
part of it, and leased the house to B., and the residue of the land
to C, who put logs and other things upon the land adjoining said
534 SUPPORT OP GROUND AND BUILDINGS.
house, so that the windows were darkened, &c. It was holden
that B. could maintain ease against C. for this injury. But the
reason seems to be, that C. took his lease seeing that the house
was there, and that he should not, any more than the lessor, ren-
der the house first leased less valuable by his obstructions. It
was, however, decided in the same case, that, if one seized of land
lease forty feet of it to A. to build upon, and another forty feet
to B. to build upon, and one builds a house, and then the other
digs a cellar upon his ground, by which the wall of the first house
adjoining falls, no action lies ; and so, they said, it was adjudged
in Pigott & Surry's case, for each one may make what advantage
he can of his own. The principle of this decision is, that both
parties came to the land with equal rights in point of time and
title ; and that he who first built his house should have taken
care to stipulate with his neighbor, or to foresee the accident and
provide against it by setting his house sufficiently within his line
to avoid the mischief. In the same case it is stated, as resolved
by the court, that, if a stranger have the land adjoining to a new
house, he may build new houses, &c, upon his land, and the other
shall be without remedy, when the lights are darkened ; otherwise,
when the house first built was an ancient one.
In Rolle's Abridgment, 565, A., seized in fee of copyhold estate,
next adjoining land of B., erects a new house upon his copyhold
land, and a part is built upon the confines next adjoining the land
of B., and'B. afterwards digs his land so near the house of A.,
but on no part of his land, that the foundation of the house, and
even the house itself, fall : yet no action lies for A. against B.,
because it was the folly of A. that he built his house so near to
the land of B. For by his own act he shall not hinder B. from
the best use of his own land that he can. And, after verdict,
judgment was arrested. The reporter adds, however, that it
seems that a man, who has land next adjoining my land, cannot
dig his land so near mine as to cause mine to slide into the pit ;
and, if an action be brought for this, it will lie.
Although, at first view, the opinion of Rolle seems to be at
variance with the decision which he has stated, yet they are easily
reconciled with sound principles. A man in digging upon his
own land is to have regard to the position of his neighbor's land,
and the probable consequences to his neighbor, if he digs too near
his line ; and if he disturbs the natural state of the soil, he shall
THURSTON V. HANCOCK. 535
answer in damages ; but he is answerable only for the natural
and necessary consequences of his act, and not for the value of
a house put upon or near the line by his neighbor. For, in so
placing the house, the neighbor was in fault, and ought to have
taken better care of his interest.
If this be the law, the case before us is settled by it ; and we
, have not been able to discover that the doctrine has ever been
overruled, nor to discern any good reason why it should be.
The plaintiff purchased his land in 1802. At that time the
inhabitants of Boston were in possession and the owners of the
adjoining land now owned by the defendants. The plaintiff built
his house within two feet of the western line of the lot, knowing
that the town, or those who should hold under it, had a right to
build equally near to the line, or to dig down into the soil for any
other lawful purpose. He knew also the shape and nature of the
ground, and that it was impossible to dig there* without causing
excavations. He built at his peril ; for it was not possible for
him, merely by building upon his own ground, to deprive the
other party of such use of his as he should deem most advan-
tageous. There was no right acquired by his ten years' occupa-
tion, to keep his neighbor at a convenient distance from him.
He could not have maintained an action for obstructing the light
or air ; because he should have known, that, in the course of
improvements on the adjoining land, the light and air might be
obstructed. It is, in fact, damnum absque injurid.
By the authority above cited, however, it would appear that
for the loss of, or injury to, the soil merely, his action may be
maintained. The defendants should have anticipated the conse-
quences of digging so near the line ; and they are answerable for
the direct consequential damage to the plaintiff, although not for
the adventitious damage arising from his putting his house in a
dangerous position.
536 support of ground and buildings.
Humphries v. Brogden.
(12 Q. B. 739. Queen's Bench, England, Michaelmas Term, 1850.)
Subjacent Support. Action on the case by the occupier of the surface of land for neg-
ligently and improperly, and without leaving any sufficient pillars and supports, '
and contrary to the custom of mining in the country where, &c, working the sub-
jacent minerals, per quod the surface gave way. Plea : Not guilty. It was proved
on the trial that plaintiff was in occupation of the surface, and defendant of the
subjacent minerals ; but there was no evidence how the occupation of the superior
and interior strata came into different hands. The surface was not built upon.
The jury found that the defendants had worked the mines carefully and according
to custom, but without leaving sufficient support for the surface. Held, that the
plaintiff was, on this finding, entitled to have the verdict ; for that, of common right,
the owner of the surface is entitled to support from the subjacent strata ; and, if
the owner of the minerals removes them, it is his duty to leave sufficient support
for the surface in its natural state.
This was an action against the Durham County Coal Company,
sued in the name of their secretary. On the trial before Cole-
ridge, J., at the Durham Spring Assizes, 1850, the jury, in answer
to questions put by the learned judge, found the facts specially.
His lordship then directed a verdict for the plaintiff, giving the
defendants leave to move to enter a verdict for them upon the
findings of the jury.
Knowles, in Easter Term, 1850, obtained a rule nisi accordingly.
In Trinity Term, 1850,1 Watson and Joseph Addison showed cause,
and Knowles and Hugh Rill supported the rule. The judgment
of the court states so fully the nature of the case, the pleadings,
and the arguments and authorities adduced on both sides, as to
render any farther statement unnecessary. Cur. adv. vult.
Lord Campbell, C. J., now delivered the judgment of the
court.
This is an action on the case. The declaration alleges that the
plaintiff was possessed of divers closes of pasture and arable land,
situate, &c, yet that the company, so wrongfully, carelessly, neg-
ligently, and improperly, and without leaving any proper and
sufficient pillars or supports in that behalf, and contrary to the
custom and course of practice of mining used and approved of in
1 On the 23d and 24th of May, 1850. Before Lord Campbell, C. J., Patte-
son, Coleridge, and Erie, JJ.
HUMPHRIES V. BROGDEN. 537
the country where the mines thereinafter mentioned are situate,
worked certain coal-mines under and contiguous to the said
closes, and dug for and got and moved the coals, minerals, earth,
and soil of and in the said mines, that, by reason thereof, the soil
and surface of the said closes sank in, cracked, swagged, and gave
way ; and thereby, &c. The only material plea was not guilty.
The cause coming on to be tried before my brother Coleridge
at the last spring assizes for the county of Durham, it appeared
that the plaintiff was possessed of the closes described in the
declaration, and that the Durham County Coal Company (who
may sue and be sued by their secretary) were lessees, under the
Bishop of Durham, of the coal-mines under them ; but there was
no other evidence whatever as to the tenure or the title either of
the surface or of the minerals. It appeared that the company
had taken the coals under the plaintiff's closes, without leaving
any sufficient pillars to support the surface, whereby the closes
had swagged and sunk, and had been considerably injured ; but
that, supposing the surface and the minerals to have belonged to
the same person, these operations had not been conducted care-
lessly, or negligently, or contrary to the custom of the country.
The jury found that the company had worked carefully and
according to the custom of the country, but without leaving suffi-
cient pillars or supports ; and a verdict was entered for the plain-
tiff for <£110 damages, with leave to move to enter a verdict for
the defendant if the court should be of opinion that, under these
circumstances, the action was not maintainable.
The case was very learnedly and ably argued before us in
Easter and Trinity terms last. On account of the great impor-
tance of the question, we have taken time to consider of our
judgment.
For the defendant it was contended that, after the special find-
ing of the jury, the declaration is defective in not alleging that
the plaintiff was entitled to have his closes supported by the sub-
jacent strata. But we are of opinion that such an allegation is
unnecessary to raise the question in this action, whether the
company, although they did not work the mines negligently or
contrary to the custom of the country, were bound to leave props
to support the surface. If the easement which the plaintiff
claims exists, it does not arise from any special grant or reserva-
tion, but is of common right, created by the law, so that we are
538 SUPPORT OP GROUND AND BUILDINGS.
bound to take notice of its existence. In pleading it is enough
to state the facts from which a right or a duty arises. The care-
fully prepared declaration in Littledale v. Lord Lonsdale, H. Bl.
267, for disturbing the right of the owner of the surface of lands
to the support of the mineral strata belonging to another, con-
tains no express allegation of the right ; and, if the omission had
been considered important, it probably would have been relied
upon, rather than the objection that a peer of Parliament was
not liable to be sued in the Court of King's Bench by bill.
We have, therefore, to consider, whether, when the surface of
land (by which is here meant the soil lying over the minerals)
belongs to one man, and the minerals belong to another, no evi-
dence of title appearing to regulate or qualify their rights of en-
joyment, the owner of the minerals may remove them without
leaving support sufficient to maintain the surface in its natural
state. This case is entirely relieved from the consideration how
far the rights and liabilities of the owners of adjoining tenements
are affected by the erection of buildings ; for the plaintiff claims
no greater degree of support for his lands than they must have re-
quired and enjoyed since the globe subsisted in its present form.
Where portions of the freehold, lying one over another perpen-
dicularly, belong to different individuals, and constitute (as it
were) separate closes, the degree of support to which the upper
is entitled from the lower has as yet by no means been distinctly
defined. But, in the case of adjoining closes which belong re-
spectively to different persons from the surface to the centre of
the earth, the law of England has long settled the degree of lat-
eral support which each may claim from the other ; and the prin-
ciple upon which this rests may guide us to a safe solution of the
question now before us.
In 2 Rolle's Abridgment, 564, tit. Trespass (1), pi. 1, it is said :
" If A., seized in fee of copyhold land next adjoining land of B.,
erect a new house on his copyhold land" (I may remark that the
circumstance of A.'s land being copyhold is wholly immaterial),
" and part of the house is erected on the confines of his land next
adjoining the land of B.,if B. afterwards digs his land near to the
foundation of the house of A., but not touching the land of A.,
whereby the foundation of the house and the house itself fall into
the pit, still no action lies at the suit of A. against B., because
this was the fault of A. himself that he built his house so near to
HUMPHRIES V. BROGDEN. 539
the land of B., for he could not by his act hinder B. from making
the most profitable use of B.'s own land. Easter Term, 15 Car.
B. R., Wilde v. Minsterley. But semble that a man who has land
next adjoining to my land cannot dig his land so near to my land
that thereby my land shall fall into his pit ; and for this, if an
action were brought, it would lie." This doctrine is recognized
by Lord C. B. Comyns, Com. Dig., Action upon the Case for a
^Nuisance (A) ; by Lord Tenterden, in Wyatt v. Harrison, 3 B. &
Ad. 871, 876 ; and by other eminent judges. It stands on nat-
ural justice, and is essential to the protection and enjoyment of
property in the soil. Although it places a restraint on what a
man may do with his own property, it is in accordance with the
precept, sic utere tuo ut alienum -non Icedas. As is well observed
by a modern writer: '• If the neighboring owners might excavate
their soil on every side up to the boundary line to an indefinite
depth, laud thus deprived of support on all sides could not stand
by its own coherence alone." Gale on Easements, p. 216.
This right to lateral support from adjoining soil is not, like the
support of one building upon another, supposed to be gained by
a right of property passing with the soil. If the owner of two
adjoining closes conveys away one of them, the alienee, without
any grant for that purpose, is entitled to the lateral support of
the other close the very instant when the conveyance is executed
as much as after the expiration of twenty years, or any longer
period. Pari ratione, where there are separate freeholds from
the surface of the land and the minerals belonging to different
owners, we are of opinion that the owner of the surface, while
unincumbered by buildings and in its natural state, is entitled to
have it supported by the subjacent mineral strata. Those strata
may, of course, be removed by the owner of them, so that a suffi-
cient support for the surface is left ; but, if the surface subsides,
and is injured by the removal of these strata, although, on the
supposition that the surface and the minerals belong to the same
owner, the operation may not have been conducted negligently
nor contrary to the custom of the country, the owner of the sur-
face may maintain an action against the owner of the minerals
for the damage sustained by the subsidence. Unless the surface
close be entitled to this support from the close underneath, cor-
responding to the lateral support to which it is entitled from the
adjoining surface close, it cannot be securely enjoyed as property ;
540 SUPPORT OF GROUND AND BUILDINGS.
and' under certain circumstances, as where the mineral strata
approach the surface and are of great thickness, it might be
entirely destroyed. We likewise think that the rule giving the
right of support to the surface upon the minerals, in the absence
of any express grant, reservation, or covenant, must be laid down
generally without reference to the nature of the strata, or the dif-
ficulty of propping up the surface, or the comparative value of
the surface and the minerals. We are not aware of any princi-
ple upon which qualifications could be added to the rule ; and the
attempt to introduce them would lead to uncertainty and litiga-
tion. Greater inconvenience cannot arise from this rule in any
case than that which may be experienced where the surface
belongs to one owner and the minerals to another, who cannot
take any portion of them without the consent of the owner of the
surface. In such cases a hope of reciprocal advantage will bring
about a compromise to the parties and to the public.
Something has been said of a right to a reasonable support for
the surface ; but we cannot measure out degrees to which the
right may extend ; and the only reasonable support is that which
will protect the surface from subsidence, and keep it securely at
its ancient and natural level.
The defendant's counsel have argued that the analogy as to
the support to which one superficial close is entitled from the
adjoining superficial close cannot apply where the surface and
the minerals are separate tenements, belonging to different own-
ers, because there must have been unity of title of the surface
and the minerals, and the rights of the parties must depend upon
the contents of the deeds by which they were severed. * But, in
contemplation of law, all property in land having been in the
Crown, it is easy to conceive that, at the same time, the original
grant of the surface was made to one, and the minerals under it
to another, without any express grant or reservation of any ease-
ment. Suppose (what has generally been the fact) that there
has been in a subject unity of title from the surface to the cen-
tre ; if the surface and the minerals are vested in different owners
without any deeds appearing to regulate their respective rights,
we see no difficulty in presuming that the severance took place
in a manner which would confer upon the owner of the surface a
right to the support of the minerals. If the owner of the entirety
is supposed to have alienated the surface, reserving the minerals,
HUMPHRIES V. BROGDEN. 541
he cannot be presumed to have reserved to himself, in deroga-
tion of his grant, the power of removing all the minerals without
leaving a support for the surface ; and, if he is supposed to have
alienated the minerals, reserving the surface, he cannot be pre-
sumed to have parted with the right to that support for the sur-
face by the minerals which it had ever before enjoyed. Perhaps
it may be said that, if the grantor of the minerals, reserving the
surface, seeks to limit the right of the grantee to remove them,
he is acting in derogation of his grant, and is seeking to hinder
the grantee from doing what he likes with his own : but, gener-
ally speaking, mines may be profitably worked, leaving a support
to the surface by pillars or ribs of the minerals, although not so
profitably as if the whole of the minerals be removed ; and a man
must so use his own as not to injure his neighbor.
The books of reports abound with decisions restraining a man's
act upon and with his own property, where the necessary or
probable consequence of such acts is to do damage to others.
The case of common occurrence nearest to the present is, where
the upper story of a house belongs to one man and the lower to
another. The owner of the upper story, without any express
grant, or enjoyment for any given time, has a right to the sup-
port of the lower story. If this arises (as has been said) frpm an
implied grant or covenant, why is not a similar grant or covenant
to be implied in favor of the owner of the surface of land against
the owner of the minerals ? If the owner of an entire house, con-
veying a-way the lower story only, is, without any express reser-
vation, entitled to the support of the lower story for the benefit
of the upper story, why should not an owner of land, who con-
veys awajT the minerals only, be entitled to the support of the
minerals for the benefit of the surface ?
I will now refer, in chronological order, to the cases which
were cited in the argument ; and I think that none of them will
be found in any degree to impugn the doctrine on which our
decision rests.
In Bateson v. Green, 5 T. R. 411, Buller, J., says : " Where
there are two distinct rights, claimed by different parties, which
encroach on each other in the enjoyment of them, the question
is, Which of the two rights is subservient to the other?" And
it was held that the lord may dig clay-pits on a common, or
empower others to do so, without leaving sufficient herbage for
542 SUPPORT OP GROUND AND BUILDINGS.
the commoners, if such right can be proved to have been always
exercised by the lord. So, here, the right of the owner of the
minerals to remove them may be subservient to the right of the
owner of the surface to have it supported by them.
Peyton v. The Mayor, &c, of London, 9 B. & C. 725, was
cited to show the necessity for introducing into the declaration
an averment that the plaintiff was entitled to the easement or
right which is the foundation of the action : but the easement
there claimed was a right of support of one building upon an-
other, which could arise only from a grant, actual or implied ;
and there Lord Teuterden says: "The declaration in this case
does not allege as a fact that the plaintiffs were entitled to have
their house supported by the defendants' house, nor does it in
our opinion contain any allegation from which a title to such sup-
port can be inferred as a matter of law." In the case at bar, we
are of opinion that the declaration alleges facts from which the
law infers the right of support which the plaintiff claims.
Wyatt v. Harrison, 3 B. & Ad. 871, decided that the owner of
a house, recently erected on the extremity of his land, could not
maintain an action against the owner of the adjoining land for
digging in his own land so near to the plaintiff's house that the
house fell clown ; but the reason given is, that the plaintiff could
not, by putting an additional weight upon this land, and so
increasing the lateral pressure upon the defendant's land, ren-
der unlawful any operation in the defendant's land which before
would have caused no damage ; and the court intimated -an opin-
ion that the action would have been maintainable, not only if the
defendant's digging would have made the plaintiff's land crum-
ble down unloaded by any building, but even if the house had
stood twentj' years. Where a house has been supported more
than twenty years by land belonging to another proprietor, with
his knowledge, and he digs near the foundation of the house,
whereby it falls, he is liable to an action at the suit of the owner
of the house. Stansell v. Jollord, 1 Selw. Ni. Pri. 457 (11th ed.),
and Hide v. Thornborough, 2 Carr. & Kir. 250. Although there
may be some difficulty in discovering whence the grant of the
easement in respect of the house is to be presumed, as the owner
of the adjoining land cannot prevent its being built, and may not
be able to disturb the enjoyment of it without the most serious
loss or inconvenience to himself, the law favors the preservation
of enjoyments acquired by the labor of one man and acquiesced
HUMPHRIES V. BROGDEN. 543
in by another who has the power to interrupt them ; and as, on
the supposition of a grant, the right to light may be gained from
not erecting a wall to obstruct it, the right to support for a new
building erected near the extremity of the owner's land may be
explained oji the same principle.
In Dodd v. Holme, 1 A. & E. 493, where there is a good deal
of discussion respecting the rights of owners of adjoining lands
or houses, no point of law was determined, as the case turned
upon the allegation in the declaration that the defendants dug
" carelessly, negligently, unskilfully, and improperly," whereby
" the foundations and walls " of the plaintiff's house gave way.
The plaintiff's house was proved to have been in a very bad con-
dition ; but Lord Denman said that the defendant had no right to
accelerate its fall.
The Court of Exchequer, in Partridge v. Scott, 3 M. & W. 220,
concurred in the law before laid down in this court, that a right
to the support of the foundation of a house from adjoining land
belonging to another proprietor can only be acquired by grant,
and that, where the house was built on excavated land, a grant
is not to be presumed till the house has stood twenty years after
notice of the excavation to the person supposed to have made
the grant ; but nothing fell from any of the judges questioning
the right to support which land, while it remains in its natural
state, has been said to be entitled to from the adjoining land of
another proprietor. Some land of the plaintiff's, not covered
with buildings, had likewise sunk, in consequence of the defend-
ant's operations in his own land ; but the court, in directing a
verdict to be entered for the defendants on the whole declaration,
seems to have thought that the sinking of the plaintiff's land was
consequential upon the fall of the house, or would not have taken
place if his own land had not been excavated.
The judges in the Exchequer Chamber held, upon a writ of
error from the Court of Common Pleas, in Chadwick v. Trower,
6 New Ca. 1 (see Trower v. Chadwick, 3 New Ca. 334), that the
mere circumstance of juxtaposition does not render it necessary
for a person who pulls down his wall to give notice of his inten-
tion to the owner of an adjoining wall which rests upon it, and
that he is not even liable for carelessly pulling down his wall, if
he had not notice of the existence of the adjoining wall ; but this
decision proceeds upon the want of any allegation or proof of a
544 SUPPORT OP GROUND AND BUILDINGS.
right of the plaintiff to have his wall supported by the defend-
ant's, and does not touch the right or obligation of conterminous
proprietors, where the tenement to be supported remains in its
natural condition.
Next comes the valuable case of Harris v. Ryding, 5 M. & W.
60, which would be a direct authority in favor of the present
plaintiff if it did not leave some uncertaintj' as to the effect of
the averment in the declaration, of working " carelessly, negli-
gently, and improperly," and as to whether the plaintiff was
considered absolutely entitled to have his land supported by the
subjacent strata, to whatever degree the affording of this support
might interfere with the defendant's right to work the minerals.
There one seized in fee of land conveyed away the surface,
reserving to himself the minerals, with power to enter upon the
surface to work them ; and it is said to have been held that,
under this reservation, he was not entitled to take all the miner-
als, but only so much as " could be got, leaving a reasonable
support to the surface." p. 70. The case was decided upon a
demurrer to certain pleas justifying, under the reservation, and
the declaration alleged careless, negligent, and improper work-
ing, which there must be considered as admitted, whereas here
it is negatived by the verdict ; but the barons, in the very com-
prehensive and masterly judgment which they delivered seriatim,
seem all to have thought that the reservation of the minerals
would not have justified the defendant in depriving the surface
of a complete support, however carefully he might have proceeded
in removing them. Lord Abinger says : " The plea is no answer,
because it does not set forth any sufficient ground to j ustify the
defendant in working the mines in such a manner as not to leave
sufficient support for the land above, which is alleged by the dec-
laration to be a careless, negligent, and improper mode of work-
ing them." Parke, B., observes: " It never could have been in
the contemplation of the parties that, by virtue of this reserva-
tion of the mines, the grantor should be entitled to take the
whole of the coal and let down the surface or injure the enjoy-
ment of it; " and again : " This plea is clearly bad, because the
defendants do not assign that in taking away the coal they did
leave a sufficient support for the surface in its then state." "The
question is," says Alderson, B., " whether the grantor is not to
get the minerals which belong to him, and which he has reserved
HUMPHRIES V. BROGDEN. 545
to himself the right of getting, in that reasonable and ordinary
mode in which he would be authorized to get them, provided he
leaves a proper support for the land which the other party is to
enjoy ? " My brother Maule, then a judge of the Court of Ex-
chequer, says, in the course of his luminous judgment : " The
right of the defendants to get the mines is the right of the mine-
owners, as against the owner of the land which is above it. That
right appears to me to be very analogous to that of a person hav-
ing a room in a house over another man's room, or an acre of land
adjoining another man's acre of land." Parke, B., that he might
not be misunderstood as to the right of the owner of the surface,
afterwards adds : " I do not mean to say that all the coal does
not belong to the defendants, but that they cannot get it with-
out leaving sufficient support." It seems to have been the unani-
mous opinion of the court that there existed the natural easement
of support for the upper soil from the soil beneath, and that the
entire removal of the inferior strata, however skilfully done,
would be actionable, if productive of damage by withdrawing
that degree of support to which the owner of the surface was
entitled, the duty of the owner of the servient tenement forbid-
ding him to do any act whereby the enjoyment of the easement
could be disturbed.
The counsel for the defendant cited and relied much upon the
case of Acton v. Blundell, 12 M. & W. 324, in which it was held
that a land-owner, who, by mining operations in his own lands,
diverts a subterraneous current of water, is not liable to an action
at the suit of the owner of the adjoining land, whose well is
thereby laid dry. But the right to running water and the right
to have land supported are so totally distinct, and depend upon
such different principles, that there can be no occasion to show at
greater length how the decision is inapplicable.
We have now to mention the case of Hilton v. Lord Granville,
5 Q. B. 701. A writ of error may probably be brought in this
case,1 when all the issues of fact have been disposed of; and
nothing which I now say is to preclude me from forming any
opinion upon it, should I ever hear it argued. If well decided,
the plaintiff is justified in relying upon it; for it is strongly in
point. This court there held that a prescription or a custom
within a manor for the lord, who is seized in fee of the mines
1 See 12 Q. B. 737, note.
35
546 SUPPORT OF GROUND AND BUILDINGS.
and collieries therein, to work them under any dwelling-house,
buildings, and lands, parcel of the manor, doing no unnecessary
damage, and paying to the tenants and occupiers of the surface
of lands damaged thereby a reasonable compensation for the
use of the surface of the lands, but without making compensa-
tion for any damage occasioned to any dwelling-houses or other
buildings within or parcel of the manor by or for the purpose
of working the said mines and collieries, is void as being un-
reasonable. Lord Denman, C. J., said: "A claim destructive of
the subject-matter of the grant cannot be set up by any usage.
Even if the grant could be produced in specie, reserving a right
in the lord to deprive his grantee of the enjo3-ment of the thing
granted, such a clause must be rejected as repugnant and absurd.
That the prescription or custom here pleaded has this destructive
effect, and is so repugnant and void, appears to us too clear from
the simple statement to admit of illustration by argument."
The most recent case referred to was Smith v. Kenrick, 7 Com.
B. 515, 564, in which the Court of Common Pleas, after great
deliberation, held that it is the right of each of the owners of
adjoining mines, where neither mine is subject to any servitude
to the other, to work his own mine, as far as the flow of water is
concerned, in the manner which he deems most convenient and
beneficial to himself, although the natural consequence may be
that some prejudice will accrue to the owner of the adjoining
mine ; so that such prejudice does not arise from the negligent or
malicious conduct of his neighbor. But no question arose there
respecting any right to support ; the controversy being only
respecting the obligation to protect an adjoining mine from water
which may flow into it by force of gravitation. And in the very
learned judgment of the court, delivered by my brother Cress-
well, there is nothing laid down to countenance the doctrine that,
in a case circumstanced like this which we have to determine, the
owner of the minerals may, if not chargeable with malice or neg-
ligence, remove them so as to destroy or damage the surface over
them which belongs to another.
We have attempted, without success, to obtain from the codes
and jurists of others information and assistance respecting the
rights and obligations of persons to whom sections of the soil,
divided horizontally, belong as separate properties. This penury,
where the subject of servitudes is so copiously and discriminatory
treated, probably proceeds from the subdivision of the surface of
HUMPHRIES V. BROGDEN. 547
the land and the minerals under it into separate holdings being
peculiar to England. Had such subdivision been known in coun-
tries under the jurisdiction of the Roman civil law, its incidental
rights and duties must have been exactly denned where we dis-
cover the right of adjoining proprietors of lands to support from
lateral pressure leading to such minute regulations as the follow-
ing : " Si quis sepem ad alienum praedium fixerit, infoderitque,
terminum ne excedito : si maceriain, pedem relinquito : si vero
domum, pedes duos : si sepulchrum aut scrobem fodei it, quantum
profunditatis habueiint, tantum spatii relinquito : si putcum passus
latitudinem." Dig. lib. x., tit. 1 (Finium regundorum), 1. 13.
The Code Napoleon likewise recognizes the support to which
the owners of adjoining lands are reciprocally entitled, but con-
tains nothing which touches the question for our decision more
closely than the following article on " Natural Servitudes." 1
" Les fonds infe'rieurs sont assujettis, envers ceux qui sont plus
eleves, a recevoir les eaux qui en de"coulent naturellement sans
que la main de l'homme y ait contribue"." " Le prop lie taire su-
perieur ne peut rien faire qui aggrave la servitude du fonds infe-
rieur." Code Civil, liv. 2, tit. iv. ch. 1, art. 640. But reference
is here made to adjoining fields on a declivity, not to the surface
of land and the minerals being held by different proprietors.
The American lawyers write learnedly on the support which
may be claimed for land from lateral pressure and for buildings
which have long rested against each other, but are silent as to
the support which the owner of the surface of lands may claim
from the subjacent strata when possessed by another. See Kent's
Commentaries, part vi. lecture lii. vol. hi. p. 434, ed. 1840.
However, in Erskine's Institutes of the Law of Scotland, treat-
ing of the servitude Oneris ferendi, the very learned author has
the following passage, which well illustrates the principle on
which our decision is founded : —
" Where a house is divided into different floors or stories, each
floor belonging to a different owner, which frequently happens in
the city of Edinburgh," "the proprietor of the ground floor is
bound merely by the nature and condition of his property, with-
out any servitude, not only to bear the weight of the upper story,
but to repair his own property, that it may be capable of bearing
that weight." " The proprietor of the ground story is obliged
1 " Servitudes qui derivent de la situation des lieux."
548
SUPPORT OF GROUND AND BUILDINGS.
to uphold it for the support of the upper, and the owner of the
upper must uphold that as a roof or cover to the lower." Book ii.
tit. 9, s. 11, vol. i. p. 433 (Ivory's ed. 1828).
For these reasons, we are all of opinion that the present action
is maintainable, notwithstanding the negation of negligence in
the working of the mines ; and that the rule to enter a verdict
for the defendant must be discharged. We need hardly say that
we do not mean to lay down any rule applicable to a case where
the prima facie rights and liabilities of the owner of the surface
of the land and of the subjacent strata are varied by the produc-
tion of title-deeds or by other evidence. Rule discharged.
Lateral Support of Ground and there is a minute provision as to sup-
Hnuses. — What Las been supposed
(Gale, Easements, 342, 4th ed.) to refer
to the lateral support of ground was
very exactly defined in the Roman law.
' It was declared in the Digest, upon the
authority of Gaius and the Twelve
port. It is as follows: Whoever digs
a well or ditch near a wall, whether
party or otherwise ; whoever wishes to
build against such wall a chimney, forge,
or oven, to erect a stable against it, or
establish a magazine of salt or any cor-
Tables, adopting a law of Solon, that if rosive materials, must leave the inter-
any one should build a wall he should
leave a space of a foot between it and
his neighbor's land ; if a house, two feet.
If he should dig a sepulchre or a ditch,
he should leave a space equal to its
depth; if a well, the distance (latitudi-
nem) of a pace. And if he should plant
an olive-tree or a fig-tree, he should leave
nine feet; as to other trees, five. Lib.
10, tit. 1, 13.
But this space between estates re-
quired by the law of Rome and Greece
was part of the herctum, P enceinte sacre'e,
of the ancient family religion, and had
nothing to do with lateral support.
" Le meme mur ne peut pas dtre com-
mun a deux maisons ; car alors Venceinte
sacree des dieux domestiques aurait dis-
val prescribed by law and custom in
this respect, or construct the works
prescribed by law to prevent injury to
his neighbor. Pardessus (Traite des
Servitudes, 302) thus comments upon
this article: "It appears to me that
the principle of this article of the Code
should be extended to numerous other
cases which will undoubtedly be settled
by particular enactments of the rural
laws, and which, until such laws are
made, should be decided in conformity
with local usages, or, if they are silent,
with the precepts of equity. . . . The
owner of land who is desirous of quar-
rying on his own property for stone
or sand, or similar materials, must not
open the earth at the extreme point
paru. A Rome, la loi fixe a deux pieds which separates his land from that of
et demi la largeur de l'espace libre qui his neighbor, and continue to excavate
doit toujours separer deux maisons, et perpendicularly, because his neighbor's
cette espace est consacre' au ' dieu de land, thus deprived of support, would
l'enceinte.' La Cite Antique, par Cou- be in danger of falling in." See Gale,
langes, p. 66, cinq. ed. lb. p. 72. Easements, 342, 343 (4th ed.).
In the Code Civil of France, art. 674, This is what is called the right of
LATERAL SUPPORT OP GROUND AND HOUSES.
549
support of land in its natural condition;
and it is prima facie a right of prop-
erty, analogous to the case of the right
to make use of a natural stream or of
the air. It is not in the nature of an
easement, and does not depend upon
prescription or grant. Bonomi v. Back-
house, El., B. & E. 646 ; s. c. 9 H. L.
Cas. 503. But a right to remove this
support may be acquired by grant :
Rowbothaui v. Wilson, 8 H. L. Cas.
348 ; though not by custom or prescrip-
tion, because either would be oppressive
and unreasonable. Hilton o. Granville,
5 Q. B. 701; Broadbent v. Wilkes,
Willes, 360 ; s. c. 1 Wils. 63 ; Wake-
field v. Buccleuch, Law R. 4 Eq. 613.
(Where there is no express grant but
one which is sought to be implied by
usage, the law requires that the custom
should not be unreasonable. Salisbury
v. Gladstone, 9 H. L. Cas. 705, 709.)
The Court of Appeals of jSTew York
have gone still further and held that a
municipal corporation, having authority
from the legislature to grade streets, is
not liable for injury resulting from tak-
ing away supporting ground from the
plaintiff whereby his soil is precipitated
into the street, though there be no su-
perincumbent weight upon it. Radcliff
v. Brooklyn, 4 Comst. 195. In this case
there was no charge that the defendants
had acted maliciously, or with want of
skill or care. " The defendants," said
Brpnson, C. J-, speaking for the court,
" are a public corporation ; and the act
in question was done for the benefit of
the public, and under ample authority
if the legislature had power to grant
the authority without providing for the
payment of such consequential damages
as have fallen upon the testator. Our
constitution provides that private prop-
erty shall not be taken for public use
without just compensation. But I am
not aware that this, or any similar pro-
vision in the constitution of other States,
has ever been held applicable to a case
like this." In a subsequent part of his
opinion, the learned Chief Justice said:
" A man may do many things under a
lawful authority, or in his own land,
which may result in an injury to the
property of others, without being an-
swerable for the consequences. Indeed,
an act done under lawful authority, if
done in a proper manner, can never
subject the party to an action, whatever
consequences may follow.'' (See Quinn
v. Paterson, 3 Dutch. 35 ; Richardson
v. Vermont Cent. R. Co., 25 Vt. 465.
But see Tinsman v. Belvidere R. Co.,
2 Dutch. 148, 164, qualifying this prop-
osition.) He also took occasion to crit-
icise the dictum of Rolle, referred to in
the principal case, that a man cannot
dig in his land so near mine as to cause
mine to fall into his pit. The Chief
Justice observed that if this doctrine
were carried out to its legitimate con-
sequences, it would often deprive men
of the whole beneficial use of their
property. An unimproved lot in a city
would be worth little or nothing to the
owner unless he were allowed to dig
in it for the purpose of building. He
thought the law had superseded the ne-
cessity of negotiating with one's neigh-
bor for such purposes, and that it gave
every man such a title to his own land
that he might use it for all the purposes
to which such lands are usually applied,
provided he exercised proper care and
skill to prevent any unnecessary injury
to the adjoining land-owner.
This dictum, however, is denied by
Prof. Washburn: 2 Real Prop. 331 (3d
ed.) ; and by the Supreme Court of New
York in Farrand v. Marshall, 21 Barb.
409, 414. See 8. c. 19 Barb. 380. In
this case (21 Barb. 416) it is stated that
550
SUPPORT OF GROUND AND BUILDINGS.
the only point settled in Radcliff v.
Brooklyn was, that a municipal corpo-
ration, acting under an authority, con-
ferred by the legislature, to grade, level,
and improve streets and highways, if
they exercise proper care and skill, are
not responsible for the consequential
damages which may be sustained by
those who own lands bounded by the
street or highway. " The plaintiff and
defendant," said the court in Farrand v.
Marshall, "are adjoining land-owners
in the city of Hudson. The land of the
plaintiff, at its extremity, is in its nat-
ural state, and supported by the adja-
cent soil of the defendant. It has
always been thus laterally supported.
, It is a right of the plaintiff that he may
enjoy his land in the condition in which
it was placed by nature, and no one
should be permitted to render his en-
joyment of it insecure, or destroy it
altogether by removing its natural sup-
port. The defendant has been and is
engaged in excavating the soil on his
own land, which supports the plaintiff's
close, and has given notice to the plain-
tiff that he intends to pursue his exca-
vations up to the line, and to an indefi-
nite depth. Already the plaintiff's land
has begun to subside ; and, if the exca-
vations are continued, it will fall over
into the pit upon the defendant's land.
The defendant's excavations are not
made with the view of improving the
land, or enjoying it in the manner that
land is usually enjoyed. He is engaged
in converting the earth that is removed
into brick. He may do this, provided
that he interferes not with the para-
mount right of others to the possession
and enjoyment of their property, or the
natural right which they possess to have
their land surrounded and protected by
the adjacent soil." (Brick-making may
also be a nuisance from the particles of
dust emitted. Walter v. Selfe, 4 Giff.
See note on Nuisance.)
The dictum of Bronson, C. J., is also
denied in McGuire v. Grant, 1 Dutch.
356, 367, by the Supreme Court of New
Jersey. The plaintiff was owner of a
lot. of land in the city of Trenton ; and
the defendant had made an excavation
in his adjoining lot and thereby caused
the injury complained of. The subject
was elaborately examined, and the Chief
Justice said that the decided weight of
authority and sound principle concurred
in support of the position that there was
incident to land, in its natural condi-
tion, a right to support from the adjoin-
ing land ; and that if the land should
sink or fall away in consequence ol
the removal of such support, the owner
was entitled to damages to the extent
of the injury sustained. See also Foley
v. Wyeth, 2 Allen, 131, where a recov-
ery was had for an injury of this kind
in a city, where no negligence was
shown.
So, too, in Bonomi v. Backhouse, EL,
B. & E., 646, 655, Willes, J., in deliv-
ering the judgment of the Exchequer
Chamber, said: "The most ordinary
case of withdrawal of support is in
town property, where persons buy small
pieces of land, frequently by the yard
or foot, and occupy the whole of it with
buildings. They generally excavate for
cellars, and in all cases make founda-
tions; and, in lieu of support given to
their neighbor's land by the natural
soil, substitute a wall. We are not
aware that it has ever been considered
that the mere excavation of the land for
this purpose gives a right of action to
the adjoining owner, and is itself an un-
lawful act, although it is certain that if
damage ensued a right of action would
accrue."
The law, as understood in England,
LATERAL SUPPOKT OP GROUND AND HOUSES.
551
has also been thus stated : As far as
the mere support of the soil is con-
cerned, such support has obviously been
afforded as long as the land itself has
been in existence ; and in all those
cases, at least, in which the owner of
the land has not, by buildings or other-
wise, increased the lateral pressure upon
the adjoining soil, he has a right to the
support of it, as an ordinary right of
property (not as an easement), as be-
ing necessarily and naturally attached
to the soil. The negation of this prin-
ciple would be incompatible with the
very security for property, as it is ob-
vious that, if the neighboring owners
might excavate their soil on every side,
up to the boundary line, to an indefinite
depth, land thus deprived of support on
all sides could not stand by its own co-
herence alone. Gale, Easements, 336
(4th ed.), a passage often quoted. See
Wyatt v. Harrison, 3 Barn. & Ad. 876;
Hunt v. Peake, 29 Law J., Ch. 787;
North Eastern Ry. Co. v. Elliot, 2 De
G., F. & J. 423; s. c. 10 H. L. Cas.
333 ; Harris v. Ryding, 5 Mees. & W.
60; Caledonian Ry. Co. v. Sprot, 2 Mc-
Queen, 449; Bonomi v. Backhouse, El.,
B. & E. 646 ; s. c. 9 H. L. Cas. 503.
See also Washburn, Easements, 542-
544 (3ded.).
Bonomi v. Backhouse, just cited, is
a case of leading importance upon this
subject of lateral support. The facts in
brief were, that A. was the owner of
certain houses standing on land which
was surrounded by the lands of B., C,
and D. E. was the owner of mines
running underneath the lands of all
these persons. He worked the mines
in such a manner, without actual negli-
gence, that the lands of B., C, and D.
sank in ; and, after an interval of up-
wards of six years, their sinking occa-
sioned injury to the houses of A. A.
having now brought an action to re-
cover damages for this injury, it was
held that he was entitled to recover,
his right of action having accrued only
when the injury to his own property
actually occurred. The decision of the
Exchequer Chamber, reversing the judg-
ment of the Queen's Bench (El., B. &
E. 622, 646), was affirmed.
The effect of this important decision
is, that the right of action against one's
neighbor depends upon actual damage
(overruling certain dicta in Nicklin v.
Williams, 10 Ex. 259), and that until
this occurs, whether sooner or later, by
reason of the excavation, no action can
be maintained ; and, therefore, the Stat-
ute of Limitations begins to run (not
from the time of the excavation, but)
from the time when the injury was actu-
ally sustained.
It has been decided in the Exchequer
Chamber of England that the owner of
land has no right at common law to the
support of subterranean water. Pop-
plewell v. Hodkinson, Law R. 4 Ex.
248. And it seems that one who, by
draining his own land, withdraws from
an adjoining owner, claiming under the
same grantor, the support of water
theretofore flowing beneath the land of
that owner, and thereby causes the sur-
face of the land to subside, is not liable
for the injury inflicted, unless the act of
draining is absolutely in derogation of
the special purpose for which the land
was originally granted to the adjoining
owner. lb.
The principal case, Thurston v. Han-
cock, shows that a person cannot put
a great weight upon his land, so near
to the line as to prevent his neighbor
from excavating altogether, or exca-
vating where it was safe before to
do so.
There are many other cases which
552
SUPPORT OP GROUND AND BUILDINGS.
illustrate this doctrine. In Panton v.
Holland, 19 Johns. 92, the. plaintiff, in
an action on the case, declared that he
was owner of a dwelling-house in the
city of New York, and that the defend-
ant had dug up the soil of contiguous
ground, close to the messuage, whereby
the foundation walls of the plaintiff's
house were injured. The defendant
pleaded not guilty, and th,e judge
charged the jury that the plaintiff was
entitled to recover ; the only question
• being as to the amount of damages.
The jury having accordingly returned
a verdict for the plaintiff, the same was
set aside by the Supreme Court, and a
new trial granted ; the doctrine of the
principal case being approved. But it
was said that it would have been other-
wise had there been evidence that the
excavation had been made maliciously,
for the purpose of injuring the plaintiff,
or negligently.
Lasala v. Holbrook, 4 Paige, 169,
was a similar case in chancery. This
was an application to dissolve or mod-
ify an injunction by which the defend-
ant in the injunction bill had been
restrained from digging in his land so
near to the plaintiff's church (which had
been erected more than thirty-eight
years before, and stood six- feet from
the line between the parties) as to in-
jure the walls of the church. The
injunction was dissolved. The Chancel-
lor said that the complainants' church
was not entitled to any special protec-
tion against the consequences of the
action of the defendant, either by pre-
scription or by grant; and, as the de-
fendant and his workmen were in the
exercise of reasonable care and skill
in their work, the complainants must
adopt such course as would secure
their church against the dangers to
which it was exposed. It was con-
ceded, however, that the case would
have been different had the building
been ancient, or had there been a grant
from the owner of the adjacent lot, or
from one under whom he claimed.
Palmer v. Flesbees, 1 Sid. 167 ; Cox o.
Matthews, 1 Vent. 237, 239 ; Story v.
Oden, 12 Mass. 157 ; Brown v. Wind-
sor, 1 Cromp. & J. 20.
The right to the support of build-
ings, then, where it exists, is (unlike
that of the right to the support of
ground in its natural state) in the na-
ture of an easement, and can be ac-
quired only by grant or by prescription.
Bonomi v. Backhouse, El., B. & E. 646;
s. c. 9 H. L. Cas. 503. See Washburn,
Easements, 547, 548 (3d ed.) ; Gale,
Easements, 336 (4th ed.).
But even though a building may have
stood upon the plaintiff's ground for
the period of prescription, if its walls
were improperly constructed, so as to
give way for this cause, and not by rea-
son of the defendant's excavation alone,
the plaintiff cannot recover. Richart v.
Scott, 7 Watts, 460 ; Dodd t>. Holme,
1 Ad. & E. 493; Hunt v. Peake, 29
Law J. Ch. 787. Or, if a new story
were added to an ancient house, whereby
the pressure was so increased as to cause
the sinking, the owner could not re-
cover. See Murchie v. Black, 34 Law
J. C. P. 337.
The mere fact that there were build-
ings, recently erected, standing upon
the border of the plaintiff's land when
it sank, will not prevent a recovery of
damages. If the soil sank, not on ac-
count of the additional weight, but on
account of the operations in the adjoin-
ing soil, and would have sunk had there
been no buildings upon it, the party
sustaining the injury is entitled to a re-
covery. Stroyan v. Knowles, 6 Hurl.
& N. 454 ; Hunt v. Peake, 29 Law J.
SUPPORT OP CONTIGUOUS HOUSES.
553
Ch. 785; Gale, Easements, 337 (4th
ed.). So, too, if the operations in the
soil were carried on negligently, and
without due regard to the safety of the
plaintiff's building. See Peyton v. Lon-
don, 9 Barn. & C. 725; Charless v. Ran-
kin, 22 Mo. 566, 574; Shrieve v. Stokes,
8 B. Mon. 453, 459; Dodd v. Holme,
1 Ad. & E. 493. But, in the absence
of evidence of negligence, if the dam-
age to the plaintiff's soil would have
been slight and inappreciable had there
been no superincumbent weight upon
it, he cannot recover. Smith v. Thack-
erah, Law R. 1 C. P. 564.
Support of Contiguous Houses. — In
the Roman law it was declared that the
owner of a house which supported other
buildings by columns or walls ought to
for ever preserve this support. Dig.
lib. 8, tit. 2, 33 ; lb. tit. 5, 6, § 2. A
learned French writer, referring to this
rule of the Roman law, says: C'est
l'obligation imposee a un proprietaire
voisin d'entretenir perpetuellement en
bon etat, soit up mur, soit des colonnes,
poteaux, piliers, ou quelque autre con-
struction destinee a supporter le poids
de l'edifice voisin. 2 Fournel, Du
Voisinage, § 248. This kind of servi-
tude, the same writer proceeds to say,
differs from other servitudes in requir-
ing an active duty on the part of the
servient owner (the duty of actively
preserving the support). Some of the
Roman jurisconsults, he tells us, among
them Gallus, refused to admit cette stip-
ulation (from which term it appears that
the right was one arising from grant)
into the number of legitimate servitudes,
as being contrary to the purely passive
character of those rights ; but the com-
pilers of the Digest preferred the views
of Servius, Labeo, and Ulpian. Lib. 8,
tit. 5, 6, § 2.
This right of support, says Fournel
in the same connection, differs from the
right d'appui, of fixing beams and joists
in the building of a neighbor (1 Four-
nel, § 31), in two particulars : first, the
right of support requires of the servient
owner an active duty, while the right
cfappui imposes a passive duty only.
The latter servitude requires a man to
receive into a wall the beams and
joists of his neighbor; but, if the wall
happens to fall, the owner need not re-
build it. The destruction of the wall
is the destruction of the servitude.
But, in the other case, he must rebuild.
The second difference results from the
fact that the servitude oVappui does not
require any outlay of money by the
servient owner; he is entitled to indem-
nity for all his expenses. But, in the
case of support, the servient owner is
bound to make all outlays which may
be necessary in order to give his neigh-
bor the enjoyment of his right.
The servitude oVappui, like that of
support, is acquired by stipulation ; it
does not exist of common right. 1 Four-
nel, § 31.
This subject has received some dis-
cussion in the English law. In Peyton
v. London, 9 Barn. & C. 736, Lord
Tenterden intimated that if it appeared
that the adjoining houses were origi-
nally built by the same owner, the right
to support might exist. And, in Rich-
ards v. Rose, 9 Ex. 218. the court unan-
imously held that where houses have
been erected in common by the same
owner upon a plot of ground, and there-
fore necessarily requiring mutual sup-
port, there is, either by a presumed
grant or by a presumed reservation, a
right to such mutual support; so that
the owner who sells one of the houses,
as against himself grants such right,
and, on his own part, also reserves the
right. And consequently the same mu-
554
SUPPORT OP GROUND AND BUILDINGS.
tual dependence of one house upon its to have existed in the civil law. But
neighbors still remains ; and this, too, there is no authority for any such rule
regardless of any priority in time of to be found ; at least none was stated
purchase from the original owner. See to us. Lord Campbell compares it to
also Webster v. Stevens, 5 Duer, 553 ; a right to light. But that right is cre-
Eno v. Del Vecchio, 4 Duer, 53, where ated by the 3d section of the statute
the right is spoken of as prescriptive ; before referred to [the prescriptive Act,
2 & 3 Wm. 4, ch. 71]. And it seems-
contrary to justice and reason that a
man, by building a weak house adjoin-
ing to the house of his neighbor, can,
See Partridge v. Gil- if the weak house gets out of the per-
601. pendicular and leans upon the adjoin-
but, if the presumption of a grant and
a reservation of the right of support,
upon a sale by the owner, be correct,
as it seems to be, the right, of course,
exists at once
bert, 15 N. Y.
In Solomon v. Vintners' Co., 4 Hurl, ing house, thereby compel his neighbor,
& N. 585, the plaintiff's house had fallen either to pull down his own house within
by reason of the tearing down of the twenty years, or to bring some action at
defendants', both of which stood in a law, the precise nature of which is not
block of houses. There was, however, very clear ; otherwise, it is said, an ad-
an intervening building between these verse right should be acquired against
houses. The block had for more than him." But the learned Chief Baron ob-
thirty years stood out of perpen- served that it was not necessary to de-
dicular, leaning towards the west, at cide that question since the defendants'
which end had been the defendants' house did not adjoin that of the plain-
building. There was no evidence when
the houses were built, or that there
had been any connection between them
either in title, possession, or occupa-
tiff. And there was no authority which
would hold the defendants liable in such
a case as the present. Mr. Baron Bram-
well thought that the right of support
tion. The plaintiff contended that he had been acquired by prescription, and
had acquired a right to the support of that there was no absolute right, be-
the defendants' house, and that he was cause either of these rights, in order
entitled to recover, however careful the to exist, must be enjoyed visibly and
work of removal may have been done, openly; and no one could certainly say,
But the court held otherwise. The from the appearance of the buildings,
Chief Baron, speaking for the majority that the defendants' house supported
(Bramwell, B., concurred in the result), the plaintiff's. It was impossible to say
said that the right of support of build- which was supported,
ings was certainly not a natural right, Whether the duty laid down in the
as was the right to the lateral support French and Roman law, to keep the
of ground. " It seems to us,'' said he, adjoining houses in such repair as to
" that in the absence of all evidence enable them to render the necessary
as to origin or grant, the only way in support to each other, prevails in our
which such a right can be supported law is not clear. It is said in Chaunt-
is that suggested by Lord Campbell in ler v. Robinson, 4 Ex. 163, 170, that
Humphries v. Brogden [the principal " there is no obligation towards a neigh-
case, supra], namely, an absolute right bor cast by law upon the owner of a
of law, similar to that which is stated house, merely as such, to keep it re-
PARTY WALLS.
555
paired in a lasting and substantial man-
ner. The only duty is to keep it in such
a state that his neighbor may not be in-
jured by its fall J the house may there-
fore be in a ruinous state provided it be
shored sufficiently, or the house may be
demolished altogether."
Party Walls. — The right to fix a
beam or timber into the wall of a
neighbor's house, which prevailed in
the Roman law (Dig. lib. 8, tit. ■>, 2),
depends with us upon the nature of
the wall. If it stand wholly upon the
land of the owner, it is clear that no
such right can exist except by grant or
prescription. Any attempt by the ad-
joining proprietor to fix a timber into
the wall would be a trespass for which
an action would lie ; and probably it
could be regarded by the owner of the
wall as a nuisance which he could him-
self abate. And such a wall (the ad-
joining owner having acquired no rights
in it) may be altered or removed at
pleasure, provided no injury is done to
the adjoining premises.
If, however, the wall be a party wall
owned in severalty to the centre {mm
mitoyen) or in common by both adjoin-
ing owners (mur commun), the case will
be different, and each will be entitled
to fix timbers into it.
The rule in such case is doubtless the
same as that laid down in the French
law, to wit, that each of the co-owners
has the right to make use of the wall
for all purposes for which it was de-
signed, in a prudent manner, without
damage to the wall or prejudice to the
other owner. 8 Toullier, liv. 2, ch. 3,
§ 199 (p. 138, 5th ed.).
In the case of a wall mitoyen, the
French Code allows either of the com-
mon owners to build upon the wall, and
to place upon it beams and joists not
only to the centre of the wall but
through the whole thickness of it, upon
the payment of a certain sum. lb. This,
however, was in derogation of the Gou-
tume de Paris, which did not permit
either to extend the timbers beyond
the centre of the wall. But (under the
Code) if the other owner wishes to put
timbers into the same place he has the
right to cut off the ends of his neighbors'
timbers at the middle of the wall. lb.
Under our law it would seem that
where the wall is mitoyen (that is, owned
in severalty to the centre), neither
owner could put his timbers beyond the
middle of the wall. To pass the line
of division without permission would
doubtless be as much a trespass as to
step foot upon the soil without permis-
sion ; and the reason, or at least one
reason, why the law will not allow this
is, that the trespasser, if the act were
permitted, might acquire an easement
against his neighbor.
If, however, the wall be owned in
common, the rule would perhaps be
otherwise. See Stedman v. Smith, 8
El. & B. 1, showing that such a wall
may be taken down by either owner,
for the purpose of rebuilding, if nec-
essary. See also Roberts v. Bye, 30
Penn. St. 375; Eno v. Del Vecehio, 6
Duer, 17, 26 ; s. c. 4 Duer, 58 ; Par-
tridge v. Gilbert, 15 N. Y. 601 ; Potter
v. White, 6 Bosw. 647.
In Eno v. Del Vecehio, just cited,
it was decided that if either of the co-
owners of a party wall wishes to im-
prove his own premises before the wall
has become ruinous, or incapable of
further answering the purposes for
which it was erected, he may under-
pin the foundation, sink it deeper, and
increase, within the limits of his own
lot, the thickness, length, or height of
the wall, if he can do so without injury
to the building upon the adjoining lot ;
556
SUPPORT OF GROUND AND BUILDINGS.
and, to avoid such injury, he may shore
up and support the original wall for a
reasonable time, in order to excavate
and place a new underpinning beneath
it. But he cannot interfere with it in
any manner unless he can do so with-
out injury to the adjoining building,
unless he has the consent of the adjoin-
ing owner.
In either case if a party-wall rest
upon an arch the legs of which stand
within the land of the respective own-
ers, neither can remove one of the legs
to the detriment of his nefghbor. Par-
tridge v. Gilbert, 15 N. Y. 601; Dowl-
ingu. Hemmings, 20 Md. 179.
And upon general principles relating
to property held in common, neither
party could tear down the wall without
the consent of the other, except for nec-
essary repairs and rebuilding, though
the wall was owned in common and
not in severalty. See note on Trespass
upon Property, ante, p. 358.
Again, either owner may, by the
French law, run up the party wall, at
his own expense, and at his own cost
of repair, above the former height, and
also paying a price to be fixed by ex-
perts for the increased charge upon the
wall. '3 Toullier, liv. 2, c. 3, § 200.
By the law of England and of this
country, either owner may run up the
wall to any height, provided no dam-
age is thereby done to the other. Matts
v. Hawkins, 5 Taunt. 20 ; Cubitt v. Por-
ter, 8 Barn. & C. 257 ; Brooks v. Cur-
tis, 50 N. Y. 639, 644. But, if damage
be done, however carefully the work
may be carried on, it seems that the
party will be liable if he has acted with-
out the consent of his neighbor.
Subjacent Support. — It is settled
law that there may be two freeholds
in the same body of earth measured
superficially and perpendicularly down
towards the centre of the earth — to
which prima facie the unlimited owner-
ship of the soil extends ; to wit, a free-
hold in the surface soil and enough of
that lying beneath it to support it,
and a freehold in underlying strata,
with a right of access to the same, to
work therein and remove the contents.
Washburn, Easements, 588 (3d ed.) ;
Wilkinson v. Proud, 11 Mees. & W. 33;
Rowbotham v. Wilson, 8 El. & B. 123,
142; New Jersey Zinc Co., 2 Beasl.
302-341.
But this right to the subjacent strata
is not unqualified; on the contrary, it
must be exercised in such a way (as
was decided in the principal case, Hum-
phries v, Brogden), as not to impair
the support of the surface freehold.
And it matters not that the under-
ground work was conducted carefully,
and in the usual manner.
In Richards v. Jenkins, 18 Law T.
n. s. 437, it was decided that there is
a difference between rights of support
against a subjacent owner of land and
an adjacent owner (that is, between
underlying and lateral support), in re-
spect of erections upon the dominant
tenement. The right to the support of
buildings, as we have seen, depends,
generally speaking, upon the question
whether they are ancient or not ; but,
as against the underlying freehold, the
owner of the overlying tenement is en-
titled to the support of all buildings
which were erected (however recently)
before the title of the lower owner be-
gan and possession was taken.
Whether the upper owner is entitled
to support for buildings subsequently
erected was not decided; but it was
the opinion of Channel, B., that he
would not be, until after twenty years'
user. See also, upon the subject of
support of buildings, Harris v. Ryding,
SUBJACENT SUPPORT.
557
5 Mees. & W. 60 ; Smart v. Morton, 6
El. & B. 30, 46 ; Rowbotham v. Wil-
son, ib. 593 ; s. c. 8 H. L. Cas. 245
Haines v. Roberts, 7 El. & B. 625
Rogers v. Taylor, 2 Hurl. & N. 828
Partridge r. Scott, 3 Mees. & W. 220
Strayan v. Knowles, 6 H. & N. 465
Brown v. Robins, 4 Hurl. & N. 186
Northeastern Ry. Co. v. Elliot, 1
Johns. & H. 145 ; s. c. 10 H. L. Cas.
333; Bonomi v. Backhouse, El., B. &
E. 646; 9 H. L. Cas. 503, deciding
that the right of subjacent as well as
lateral support is a. right of property
and not an easement, and therefore
that the Statute of Limitations begins
to run from the time of the damage to
the plaintiff, and not necessarily from
the time of the wrongful act of the
defendant.
The right of support of upper tene-
ments of houses owned by different per-
sons is analogous. This subject, how-
ever, does not appear to have much
engaged the attention of our courts.
The principles, indeed, seem simple.
It is but reasonable that the occupant
of the lower tenement should be re-
quired to abstain from all acts which
would impair the supports of his neigh-
bor overhead. Graves v. Berdan, 26
N. Y. 501. This rule would not pre-
vent him from making necessary re-
pairs ; but, in doing this, it would
doubtless be held necessary for him to
keep a sufficient underpinning below
the upper tenement to prevent the
walls from sinking or cracking. Under
what circumstances he would be justi-
fied in putting his neighbor above to
the annoyance of repairs ; or whether
he would be compelled to make im-
provements in order to prevent the up-
per tenement from sinking, — quare?
And quaere, also, whether he would be
justified in making unnecessary im-
provements to the annoyance of the
occupant above? See Keilwey, 98 6,
pi. 4; Anonymous, 11 Mod. 7; Loring
v. Bacon, 4 Mass. 575 ; Stevens v.
Thompson, 17 N. H. 109 ; Calvert v.
Aldrich, 99 Mass. 74; Cheeseborough
v. Green, 10 Conn. 318; Ottumwa
Lodge v. Lewis, 34 Iowa, 67 ; Wash-
burn, Easements, 597-599 (3d ed.),
where the effect of these cases is
stated. Most of them, however, are
cases of contribution between co-own-
ers, which subject we do not consider.
The French law throws some light
upon this subject. The Code Napo-
leon, Art. 664, provides for the adjust-
ment of repairs ; declaring that when
the different stories of a house belong
to different proprietors, if the titles to
the property do not regulate the mode
of repairs and reconstructions, they
must be made in this way : The main
walls and the roof are at the charge of
all the proprietors, each in proportion
to the value of the story belonging to
him. The proprietor of each story
makes the floor belonging thereto. The
proprietor of the first story erects the
staircase which conducts to it ; the pro-
prietor of the second story carries the
stairs from where the former ends to
his apartments ; and so of the rest.
Code Nap. London ed. 1824, transl.
M. Merlin, in his Repertoire de Juris-
prudence, tit. Batiment, says that when
a building is in the possession of two
owners, one owning the lower story and
the other the upper, either can do any
thing which he pleases in the portion
which he possesses, provided always
that he does no prejudice to the other,
in respect either of convenience or of
support. For instance, says this distin-
guished author, the one who occupies
the lower tenement cannot make a
forge there, for that would discommode
558
SUPPORT OF GROUND AND BUILDINGS.
the upper owner ; and this had been so
adjudged. Likewise, he continues, the
lower owner cannot change the situa-
tion of the funnels of the chimneys, or
make new ones where there were none
before; and so of other changes or
innovations (nouxseautis) which would
affect the upper tenement.
In the custom of Auxerre, art. 216,
referred to in the same connection, it
is provided that if the lower story of
a house belongs to one man and the
upper to another, the owner of the
lower story is bound to construct and
maintain all the walls of the house up
to the story which belongs to the other
proprietor, and to furnish the beams,
joists, and ceilings of the floor above
the part which belongs to him. And
the customs of several other cities
named are the same. Thus, says M.
Merlin, according to these customs,
each proprietor maintains only the walls
of the stories which belong to him; and
the owners of the upper stories do not
contribute to the lower part of the
walls, though this serves them for fix-
ing timbers (jPappui) and for support.
See also 3 Toullier, 152 ; 5 Duranton,
384.
Easements of Light. — It only re-
mains to remark that the English doc-
trine of easements of light, natural or
prescriptive, referred to in Thurston o.
Hancock, does not prevail in this coun-
try. Parker v. Foote, 19 Wend. 309;
Pierre v. Fernald, 26 Maine, 436 ; Na-
pier v. Bulwinkle, 5 Rich. 31 1 ; Cherry
v. Stein, 11 Md. 1; Haverstick v. Sipe,
33 Penn. St. 368; Hubbard v. Town,
33 Vt. 295; Ward v. Neal, 37 Ala.
500; Mullen v. Strieker, 19 Ohio St.
135, 142 ; Ingraham v. Hutchinson, 2
Conn. 584; Keats v. Hugo, 115 Mass.
204, overruling Story v. Odin, 12 Mass.
157, and the dictum of the principal case,
and similar ones in Grant v. Chase, 17
Mass. 443, and in United States v. Ap-
pleton, 1 Sum. 492.
MCCULLY V. CLARK. 559
NEGLIGEXCE.
McCullt v. Clark, leading case.
Dixon v. Bell, leading case.
Hajimack t-. White, leading case.
Byrne v. Boadle, leading case.
Note on Negligence generally.
Historical aspects of the subject.
Negligence as a question of law or of fact.
Presumptions of negligence.
Thomas v. Winchester, leading case.
Note. To whom Wrong-doer liable.
Causation.
Breaches of contract.
Fisher v. Thirkell, leading case.
Hilliard v. Richardson, leading case.
Note. Who liable.
Landlord and tenant.
Contractors.
Sub-contractors.
Servants employing others.
Servants under double masters.
Builders and architects.
Indermaitr v. Dames, leading case.
Roberts v. Smith, leading case.
Farwell v. Boston W. & R. Corp., leading case.
Note on Care of Premises.
Persons (not servants) injured while on defendant's premises.
Servants injured on master's premises.
Servants injured from negligence of fellow-servants.
Sutton v. Wauwatosa, leading case.
Note on Contributory Negligence.
Ground of doctrine.
Burden of proof.
Identification or imputability .
Passenger and carrier.
Parent and child.
McCullt v. Clark and Thaw.
(40 Penn. St. 399. Supreme Court, Pittsburgh, 1861.)
Negligence as a Question of Law or Fact. In an action on the case for damages against
defendants, for negligence in not caring for and extinguishing a pile of coal which
had taken fire, whereby the warehouse of the plaintiff adjoining, with its contents,
was burned up and destroyed, the proper subject of inquiry is, whether the de-
560 NEGLIGENCE.
fendants had used such care, caution, and diligence as prudent and reasonable men
would have exercised ; and it is a question for the jury. Hence, it was not error
in the court below to refuse to instruct the jury, that if they believed certain facts
to be proved, of which evidence had been given, the defendants were guilty of neg-
ligence as a matter of law, and that the plaintiff was entitled to recover.
In actions for negligence, the burden of proof is on the plaintiff. The court below
sustained in declining to rule that the proof of certain designated facts by the
plaintiff was sufficient to change the burden.
This was an action on the case brought in the District Court
to July term, 1859, by James McCully against Thomas S. Clark
and William Thaw, partners, doing business as Clark & Thaw,
to recover damages for the destruction by fire of a warehouse and
contents, owned by him, on Penn Street, in the city of Pittsburgh,
alleged to have been occasioned by the default of the defendants
in " negligently and wilfully " permitting a large quantity of burn-
ing coal to remain for a long time unextinguished upon their prem-
ises, immediately adjoining the wall of the warehouse which was
destroyed. The testimony was to the effect that plaintiff's prop-
erty, of the value of $30,000, was consumed by fire on the morn-
ing of July 20, 1853 ; that the premises had been closed up as
usual on the previous evening, no person remaining therein, and
no fire being kept thereupon ; that on the 26th day of the pre-
vious month the warehouse immediately adjoining thereto, and
occupied by the defendants, who were transporters upon the
Pennsylvania Canal, was burned to the ground by a fire origi-
nating in and communicated by a boat belonging to the said
defendants ; that the said last-mentioned warehouse, being of the
height of a single story, and without any cellar underneath the
same, was used by the defendants for the deposit of coal, belong-
ing to themselves, and stored for the purpose of transportation
therein ; that, at the time of the said fire, a large quantity of the
coal, amounting to several thousand bushels, was piled up to the
depth of some five or six feet against the wall next adjoining to
the warehouse of the plaintiff; that the said coal was ignited at
the time of the destruction of the defendant's warehouse, and
continued to burn until the 20th of July next following there-
after ; that the said plaintiff, apprehending danger therefrom,
complained on several occasions to the mayor of said city, and
that, notwithstanding occasional intermitted efforts on the part
of the defendants to extinguish the same by throwing water
Mc GULLY V. CLARK. 561
thereon, the coal continued to burn until the period of the
destruction of the plaintiff's property.
The plaintiff further offered evidence to show that his ware-
house was strongly and substantially built, with cellar and other
independent walls throughout; and that the fire had its com-
mencement in the ends of the timbers inserted in that part of
the defendant's wall, against which the said mass of burning coal
was piled. He also offered evidence to prove that the application
of water, as shown by the testimony, would be only to intensify
the heat ; that the only feasible means of extinguishing it would
have been by taking the same away, and that a large portion of
the coal was converted by the operation into coke, and in that
shape afterward disposed of and removed by the defendants.
The defence was, that the fire did not originate from the burn-
ing of the coal in the ruins of defendant's warehouse ; that the
defendants were guilty of no negligence in relation to the coal
burning in the ruins of their warehouse, but had employed fre-
quent, efficient, and faithful means to extinguish the fire down to
the evening immediately preceding the burning of plaintiff's ware-
house, at which time it was apparently extinguished, no fire being
afterwards seen by any one in the ruins of defendant's warehouse ;
and that if there was in fact, or if the plaintiff supposed there was,
the slightest danger of injury to his own property from the cause
assigned, he was guilty of the grossest negligence in neglecting
all efforts to prevent the injury, and in not giving notice to de-
fendants, he having been frequently at the ruins while the fire
was burning, and in that he had no fear of it.
Under the above facts the plaintiff requested the court to
charge the jury : —
1. That if the jury believe that the defendants had a large pile
of coal placed in their ivarehouse against the side walls thereof,
for a distance of from sixty to ninety feet or thereabouts, and in
height against said walls from five to nine feet or thereabouts, and
extending out from said walls from eight to twelve feet or there-
abouts, at the same or a greater height ; and thence extending
some eight or ten feet further, diminishing from said height to
almost nothing ; and that the stone wall of plaintiff 's warehouse
was built close up against the stone wall of defendant's ware-
house, against which said coal was piled ; and the brick wall of
plaintiff's warehouse ran close alongside of the brick wall of de-
562 NEGLIGENCE.
fendants' warehouse, against which said coal was piled ; and if
the jury believe that said coal was set on fire by the burning of
defendants' warehouse, on June 26, 1853, and continued to burn
until July 20, 1853, the defendants being aware of the fact, still
in possession, and having caused water to be thrown upon the
same at different intervals during said period, without extinguish-
ing the same ; and if the jury further believe that fire was com-
municated to plaintiff's warehouse and its contents from the fire
in said coal pile, and that the same were thereby burned up on
July 20, 1853 ; then, from these facts, as a matter of law, the
defendants are guilty of negligence, and the plaintiff is entitled
to recover the value of his warehouse and its contents.
2. That if the jury find the facts as stated in the foregoing
point, and the court should decline to charge that, as a matter of
law, the plaintiff is entitled to recover, then the court is requested
to charge that these facts throw upon defendants the burden of
proof in the case ; and the jury must be satisfied that said fire in
said coal pile could not have been extinguished by the defendants
from June 26 to July 20 ; otherwise the plaintiff is entitled to a
verdict for the value of his warehouse and its contents.
3. That there is no evidence in the cause of any such negligence
on part of plaintiff as will prevent his recovering.
4. That the defendants permitting a large mass of coal, piled
against the walls of their warehouse, immediately adjacent to the
walls of plaintiff's warehouse, to be on fire for some twenty-
four days in the most busy part of the city of Pittsburgh, they
knowing the fact, was a violation of their duties as citizens ; a
nuisance and gross negligence towards the plaintiff and his prop-
erty ; and if plaintiff's property was set on fire thereby or there-
from, defendants are liable for the loss, and there is no evidence
in this case by which they are entitled to escape from such
liability.
5. That plaintiff had no right to go on the private property of
defendants to extinguish this fire ; but if the court should think
he had, by reason of the fire being a public nuisance, still he was
not bound to do so, and his failure so to do was not such negli-
gence on his part as will prevent his recovering.
6. That the leaving of a large pile of burning coal belonging to
the defendants, upon their own premises, in immediate proximity
to the plaintiff's warehouse, in the centre of a populous city, is
MCCULLT V. CLARK. 563
negligence per se ; and if the plaintiff's house was set on fire
thereby, the defendants are liable to the extent of the loss
thereby occasioned.
7. That it was the duty of the defendants to extinguish the
said fire, and, if not otherwise practicable, to remove the coal
itself for that purpose ; and that the law casts no duty on the
plaintiff to undertake the labor and incur the expense of doing
this himself.
8. That if the law did make it the duty of the plaintiff to take
any steps himself, that duty was discharged by an application to
the mayor, and such application will relieve him from the impu-
tation of negligence. The court below (Williams, J.), after
reciting the main facts of the case, charged the jur}T as fol-
lows : —
" The plaintiffs right to maintain this action, and to recover
damages for the destruction of his warehouse and its contents
by fire, and the defendants' liability therefor, depend upon
well settled principles of law, easily understood and readily
applied.
" 1. The plaintiff is not entitled to maintain this action, and to'
recover damages for his loss, unless the fire which destroyed his
warehouse was occasioned by the negligence of the defendants.
Negligence is the very gist of this action ; and, therefore, unless
the defendants' negligence was the occasion of the fire, the-
plaintiff is not entitled to recover.
" 2. The plaintiff was bound to use ordinary and reasonable care
and diligence for the preservation of his property, and he is not
entitled to recover if his own negligence contributed to, or was
the cause of, its destruction. If the fire which caused the loss of
the warehouse and its contents was occasioned by the mutual
negligence of both the plaintiff and defendants, the former is not
entitled to recover damages for the loss which he has sustained.
Negligence is the want of proper care, caution, and diligence, —
such care, caution, and diligence as, under the circumstances, a
man of ordinary and reasonable prudence would exercise. It
consists in nonfeasance; that is, omitting to do or not doing
something which ought to be done, which a reasonable and pru-
dent man would do ; and a misfeasance, that is, the doing some-
thing which ought not to be done, something which a reasonable
man would not do, or doing it in such a manner as a man of ordi-
564 NEGLIGENCE.
nary and reasonable prudence would not do it ; in either case
causing, unintentionally, mischief or injury to a third party.
" The jury will then determine from the evidence : —
"1. What was the cause of the burning of plaintiff's ware-
house ? Was it set on fire by the burning of the coal in the ruins
of the warehouse in the possession and occupancy of the defend-
ants ? Was the wall of McCully's warehouse so heated by the
burning of the coal in the ruins of the warehouse of Clark &
Shaw, that it set the girders in the wall on fire, and thus com-
municated the fire to the whole building ?
" 2. If so, were the defendants guilty of negligence in allowing
the coal pile, in the ruins of their warehouse, to burn in the way
and for the length of time it did ? If the defendants were guilty
of negligence, it was because they did not extinguish the fire,
owing to the fact that either they did not use the proper means,
or did not employ them with sufficient vigor, energy, and perse-
verance.
" 3. Was the plaintiff without fault, or was he guilty of negli-
gence ; and was his negligence the cause or occasion of the fire,
■or did it contribute thereto ? Would his warehouse have been
burned if he had exercised ordinary and reasonable diligence?"
The court called the attention of the jury to the facts and cir-
cumstances in evidence, relied on by the counsel on both sides as
tending to show the origin and cause of the fire ; and also as
tending to show whether their respective clients had or had not
been guilty of negligence, and then proceeded in substance as
follows : —
" The jury will determine for themselves what was the origin
of the fire ; whether or not it was set on fire by the burning coal
in the ruins of the defendants' warehouse ; and unless satisfied
that it was, they will find for the defendants. But if the jury find
that plaintiff's warehouse was set on fire by the pile of burning
coal in the ruins of defendants' warehouse, and that the defend-
ants did not use ordinary care and skill and the proper means to
extinguish it, and that they were guilty of negligence in this
respect ; and that in consequence thereof plaintiff 's warehouse
was set on fire, then the jury will find for the plaintiff damages
for the full amount of his loss, unless they find that his own want
of reasonable care contributed to or was the occasion of his loss.
The plaintiff is not entitled to recover if the loss would not have
occurred except for his own negligence.
MCCULLY V. CLARK. 565
" The counsel on both sides have submitted a number of points
upon which they have prayed the instruction of the court, but so
far as they are not answered in the charge they are refused. The
court declines to charge, as matter of law, either that there was
or was not negligence on tlfe part of either the plaintiff or defend-
ants. Whether either or both the parties were or were not guilty
of negligence, are questions of fact for the determination of the
jury, from all the evidence in the case."
Under these instructions there was a verdict aud judgment in
favor of defendants. The case was then removed into this court
by the plaintiff, who assigned for error the refusal of the court
below to affirm the points submitted, and to charge, as matter of
law, either that there was or was not negligence on the part either
of the plaintiff or defendants, and the referring the same, as a
question of fact for the jury, without any evidence of negligence
on the part of the plaintiff.
B. Woods, for plaintiff. A. W. Loomis and 0. B. Smith, for
defendants.
The opinion of the court was delivered, November 11, 1861, by
Strong, J. No complaint is made of the instruction given to
the jury in this case. None could be, with any shadow of reason.
The charge was a clear, accurate, and comprehensive statement
of the principles of law applicable to the facts of which evidence
had been given. It is not alleged that it contained any thing
erroneous. The complaint here is, that the learned judge did not
say more ; that he did not take the facts away from the jury,
and instruct as matter of law that the plaintiff was entitled to
recover.
The action was brought for negligence. The point of the accu-
sation was, that the defendants had so negligently kept and con-
tinued a certain pile of coal which had taken fire, and so
wrongfully and negligently failed to extinguish the fire, that the
warehouse of the plaintiff, with its contents, had been ignited
and destroyed. Whether the defendants had been guilty of the
negligence charged, was, therefore, the principal subject of in-
quiry ; in other words, whether they had exercised such care and
diligence to prevent injury to the property of the plaintiff, as a.
prudent and reasonable man, under the circumstances, would
exercise. Now, it is plain that what is such a measure of care is
a question peculiarly for a jury. A higher degree is doubtless
566 NEGLIGENCE.
demanded under some circumstances than under^others. It varies
with the danger. And when the standard shifts with the cir-
cumstances of the case, it is in its very nature incapable of being
determined as a matter of law, and must be submitted to the jury.
There are, it is true, some cases in which a court can determine
that omissions constitute negligence. They are those in which
the precise measure of duty is determinate, the same under all
circumstances. When the duty is denned, a failure to perform it
is, of course, negligence, and may be so declared by the court.
But where the measure of duty is not unvarying, where a higher
degree of care is demanded under some circumstances than under
others, where both the duty and the'extent of performance' are to
be ascertained as facts, a jury alone can determine what is negli-
gence, and whether it has been proved. Such was this case. The
question was not alone what the defendants had done, or left
undone ; but, in addition, what a prudent and reasonable man
would ordinarily have done under the circumstances. Neither of
these questions could the court solve. When, therefore, the court
was asked to instruct the jury, that if they believed certain facts
were proved, of which evidence had been given, the defendants
were guilty of negligence, and the plaintiff was entitled to recover,
the instruction was properly refused. It could not have been
given without determining, as matter of law, what care and cau-
tion a prudent and reasonable man would have exercised in cir-
cumstances similar to those in which the defendants were placed.
The points proposed to the court assumed that the defendants
were under obligation completely to extinguish the fire in the
coal pile within a designated time. They did not propose to sub-
mit to the jury even so much as whether it could have been done,
much less whether every reasonable effort had not been made to
extinguish it. Nor were the facts which the court was called
upon to declare conclusive proof of negligence, and entitling the
plaintiff to recover, all the material facts of which there was evi-
dence in the case. There were others of a qualifying nature,
important to the inquiry, whether the defendants had been cul-
pably negligent. Without considering these other facts, the court
must have taken but a one-sided view of the case. Besides all
this, the court could not have directed a verdict for the plaintiff,
as requested, without deciding that there was no evidence at all
of concurring negligence on the part of the plaintiff. But even
McCULLY V. CLARK. 567
if the loss of the plaintiff was occasioned by want of due caution
on the part of the defendants, the case was not destitute of evi-
dence that the plaintiff's negligence contributed to the loss.
For similar reasons, the court was right in declining to charge
the jury that certain facts enumerated, even though not consti-
tuting negligence in law, threw upon the defendants the burden
of proof in the case, and that the jury must be satisfied that the
fire could not have been extinguished within a designated time,
or the plaintiff would be entitled to a verdict. The instruction
asked for assumed that it was for the court to determine precisely
what was due diligence and caution, and to rule that nothing less
than the complete extinguishment of the fire in the specified time,
if possible, would bring their conduct up to the standard by which
prudent and reasonable men are guided. This point, also, as did
the others, ignored pertinent and important facts in evidence,
which must have been considered in determining whether there
was negligence at all ; and, if affirmed, it might have given the
plaintiff a verdict, even though the plaintiff's own negligence may
have concurred in causing his loss. In actions for negligence the
burden of proof is upon the plaintiff. The law will not presume
it for him. And in cases like this, where all the evidence must
be considered in order to ascertain whether negligence existed, it
is a mistake to suppose that a court may be required to single out
some of the facts proved and declared, that they remove the bur-
den of proof from the shoulders of the plaintiff, and cast it on the
defendant. That can only be done where a court can determine
what constitutes guilt. It is the province of the jury to balance
the probabilities, and determine where the preponderance lies.
The case relied upon by the plaintiff in error, Piggot v. The
Eastern Counties Railway Company, 3 Com. B. 229, 54 Eng.
C. L. Rep. 228, is in perfect harmony with these doctrines. In
that case the defendants ran a locomotive, the sparks from which
set fire to the property of the plaintiff. Using a dangerous agent,
the law required of them to adopt such precautions as might rea-
sonably prevent damage to the property of others. Some pre-
caution was a duty. They had no right to run their locomotive
without it. Failure to adopt some precaution was, therefore, fail-
ure to discharge a defined duty, and was negligence. In such a
case the court might well say, as was said, that a fire caused by
running the engine, without any evidence of precaution, estab-
568 NEGLIGENCE.
lished a prima facie case of negligence. Even this, however, was
not laid down as a matter of law to the jury. It was only said by
one of the judges, in commenting on the evidence, and in reply
to a rule for a new trial, on the ground that the verdict was
against the weight of the evidence. It was, therefore, no more
than an assertion that the jury might have drawn the inference
of negligence from the facts that a locomotive had kindled a fire,
and that there had been no precaution. That was a very different
case from the present. Even if the court might in that case have
declared the effect of the evidence, it must have been because the
duty of the defendants was unvarying and well defined by the
law. Here the standard of duty was to be found as a fact, as well
as the measure of its performance, and there was evidence of earn-
est, continued, and apparently successful efforts to extinguish the
fire in the coal. This disposes of all the assigned errors, except
the fifth and eighth. Of them we need only say that they were
not insisted on in the argument, and we have not been able to
discover that they point to any error committed.
Judgment affirmed.
Dixon v. Bell.
(5 Maule & S. 198. King's Bench, England, Trinity Term, 1816.)
Instruments of Danger. — The law requires of persons having in their custody instru-
ments of danger, that they should keep them with the utmost care ; therefore,
where defendant, being possessed of a loaded gun, sent a young girl to fetch it, with
directions to take the priming out, which was accordingly done, and a damage
accrued to the plaintiff's son in consequence of the girl's presenting the gun at
him, and drawing the trigger, when the gun went off; held, that the defendant
was liable to damages in an action upon the case.
Case. The plaintiff declares that the defendant was possessed
of a gun, then being in a certain messuage, situate, &c. ; and that
he, well knowing the same to be loaded with powder and print-
ing types, wrongfully and injuriously sent a female servant to the
said messuage, to fetch away the gun so loaded, he well knowing
that the said servant was too young, and an unfit and improper
person to be sent for the gun, and to be intrusted with the care
or custody of it ; and which said servant afterwards, and while
DIXON V. BELL. 569
she was so sent and intrusted by the defendant, and had the
custody of the said gun accordingly, carelessly and improperly
shot off the same, at and into the face of the plaintiff's son and
servant, and struck out his right eye and two of his teeth, whereby
he became sick, &c, and was prevented from performing his law-
ful business, and the plaintiff was deprived of his service, and put
to great expense in procuring his cure, &c. There was a second
count, for taking such improper care of the gun, knowing that it
was loaded, that the gun was afterwards discharged against the
plaintiff's son, &c. Plea, not guilty. At the trial, before Lord
Ellenborough, C. J., at the last Middlesex sittings, the case was
thus : The plaintiff and defendant both lodged at the house of
one Leman, where the defendant kept a gun loaded with types,
in consequence of several robberies having been committed in
the neighborhood. The defendant left the house on the 10th of
October, and sent a mulatto girl, his servant, of the age of about
thirteen or fourteen, for the gun, desiring Leman to give it her,
and to take the priming out. Leman accordingly took out the
priming, told the girl so, and delivered the gun to her. She put
it down in the kitchen, resting on the butt, and soon afterwards
took it up again, and presented it, in play, at the plaintiff 's son,
a child between eight and nine, saying she would shoot him, and
drew the trigger. The gun went off, and the consequences stated
in the declaration ensued. There was a verdict for the plaintiff,
damages £100. The Attorney- General moved for a new trial, on
the ground that the defendant had used every precaution which
he could be expected to use on such an occasion ; and, therefore,
was not chargeable with any culpable negligence.
Lokd Ellenborough, C. J. The defendant might and ought to
have gone farther ; it was incumbent on him, who, by charging
the gun, had made it capable of doing mischief, to render it safe
and innoxious. This might have been done by the discharge or
drawing of the contents ; and though it was the defendant's in-
tention to prevent all mischief, and he expected that this would
be effectuated by taking out the priming, the event has unfortu-
nately proved, that the order to Leman was not sufficient, conse-
quently, as, by this want of care, the instrument was left in a state
capable of doing mischief, the law will hold the defendant respon-
sible. It is a hard case, undoubtedly ; but I think the action is
maintainable.
570 NEGLIGENCE.
Bayley, J. The gun ought to have been so left as to be out
of all reach of doing harm. The mere removal of the priming
left the chance of some grains of powder escaping through the
touchhole.
Per curiam. Rule, refused.
Hammack:, Administratrix, v. White.
(11 Com. B. N. S. 588. Common Pleae, England, Hilary Term, 1862.)
Trying Horse in a Thoroughfare. — The defendant bought a horse at Tattersal's, and
the next day took him out to " try " him in Finsbury Circus, a. much- frequented
thoroughfare. From some unexplained cause the horse became restive, and, not-
withstanding the defendant's well-directed efforts to control him, ran upon the
pavement and killed a man. Held, that these facts disclosed no evidence of negli-
gence which the judge was warranted in submitting to the jury.
This was an action upon Lord Campbell's Act, 9 & 10 Vict.
c. 93, by Mrs. Hammack, the widow and administratrix of Wil-
liam Hammack, to recover damages against the defendant for
having, by his negligence, caused the death of the intestate.
The declaration alleged that the deceased, in his lifetime, was
lawfully passing in and along a certain common public highway,
and that the defendant so carelessly, negligently, and improperly
rode a certain vicious horse in the said highway, that, by and
through the carelessness, negligence, and improper conduct of
the defendant in that behalf, the said horse ran with great force
and violence upon and against the deceased, and cast and threw
him down, and so injured him that the deceased, within twelve
months next before the action, died.
The defendant pleaded not guilty ; whereupon issue was joined.
The cause was tried before the recorder of London in the Lord
Mayor's Court, when the following facts appeared in evidence : —
On the 7th of May, 1861, the deceased was walking on the foot-
pavement in Finsbury Circus, when he was knocked down and
kicked by a horse on which the defendant was riding. He was
picked up and carried to St. Bartholomew's Hospital, where he
died on the 16th, in consequence of the injuries he had sus-
tained.
HAMMACK V. WHITE. 571
It appeared that the defendant had bought the horse the day
before at Tattersal's, and had taken it out to " try " it, when the
horse became unmanageable and swerved from the roadway on to
the pavement, notwithstanding the defendant's efforts to restrain
him. It did not appear that the defendant had omitted to do any
thing he could have done to prevent the accident ; but it was
insisted on the part of the plaintiff that the mere fact of the
defendant's having ridden, in such a place, a horse with whose
temper he was wholly unacquainted, was evidence of negligence.
Some reliance was also placed upon the fact of there being certain
police notices affixed at various parts of the circus, cautioning all
persons not to exercise horses there.
The learned recorder being of opinion that there was nothing
in the evidence to warrant a jury in finding that the defendant
had been guilty of negligence, directed a nonsuit.
Patchett, in Michaelmas Term last, obtained a rule nisi for a
new trial, on the ground of misdirection. He referred to Weaver
■ v. Ward, 2 Rol. Abr. 548, Hob. 134, Moor, 864; Michael v.
Alestree, 2 Lev. 172, 1 Ventr. 295, 3 Keble, 650 ; and Leame v.
Bray, 3 East, 593.
H. James now showed cause. If a man intentionally commits
an unlawful act, he is responsible for all the consequences which
may reasonably be expected to flow from such an act. So, if he
is guilty of negligence in the doing of a lawful act, and the natural
and proximate result is injury to a third person, he is liable. See
Scott v. Shepherd, 2 Sir W. Bl. 892, and the authorities collected
in the notes to that case in Smith's Leading Cases, 4th ed. 343.
In all these cases the intention of the party was to do the act from
which the mischief ensued. There was no such intentional acting
here. There was nothing to show that the horse was ridden negli-
gently, or that the rider knew him to be vicious or restive. In
Gibbons v. Pepper, 1 Ld. Raym. 38, 4 Mod. 404, 2 Salk. 637, it
seems to have been held that a person who causes the accident by
spurring the horse would be liable. [Willes, J. Incautiously
using the spur at an inauspicious moment was recently held in
this court to be some evidence of negligence. See North v. Smith,
10 Com. B. N. S. 572.J Negligently driving on a dark night on
the wrong side of the way, was held in Leame v. Bray, 3 East,
593, to render the party liable in trespass, though he were no
otherwise blamable. In Michael v. Alestree, 2 Lev. 172, 1 Ventr.
572 NEGLIGENCE.
295, the defendant was guilty of negligence. So also in Wakeman
v. Robinson, 1 Bing. 213, 8 J. B. Moore, 63, where the defendant
pulled the wrong rein. Templeman, app., Haydon, resp., 12
Com. B. 507, is the strongest case against the defendant. The
marginal note there is scarcely borne out by the facts. The ap-
peal was dismissed on the ground that there was no erroneous
decision (by the county court judge) in point of law. The re-
marks of Maule, J., show that the court considered there was
evidence of negligence on the part of the defendant. " Where,"
he says, " a cart is defective, or a horse is possessed of certain
qualities, it may be negligence on the part of the driver if he does
not deal with them according to their respective conditions or
qualities. If a horse is full of life and spirit, it necessarily de-
mands more care than one which is sluggish and worn out. So
a cart that is infirm requires to be driven more steadily than one
which has undergone less wear and tear. And it may well be that
a failure m respect of either would amount to negligent driving."
May v. Burdett, 9 Q. B. 101, which is frequently cited, is hardly
applicable here : the injury there arose from a monkey, an animal
not domesticated. Nor is this like the case of Christie v. Griggs,
2 Camp. 79, where the action was founded on the contract of a
stage-coach proprietor safely to carry his passengers. It may be
urged that the defendant was not lawfully riding under the cir-
cumstances in Finsbury Circus ; and the Metropolitan Police Act,
2 & 3 Vict. c. 47, § 54, may be relied on. That section prohibits,
amongst other things, the " exercising, training, or breaking of
any horse " in any thoroughfare or public place within the limits
of the metropolitan police district ; but, to briug a person within
that section it must be shown that he is merely exercising, train-
ing, or breaking the animal, to the annoyance of the inhabitants
or passengers, which there is no pretence for saying that this
defendant was doing. The true principle which governs these
cases is that which was laid down in a recent case in this court,
of Cotton v. Wood, 8 Com. B. n. s. 568, viz., that the judge
will not be justified in leaving the case to the jury, where the
plaintiff 's evidence is equally consistent with the absence as with
the existence of negligence in the defendant.
Patchett, in support of the rule. This case falls precisely within
the rule in Michael v. Alestree, 2 Lev. 172, 1 Ventr. 295. That
was an action on the case " for that the defendants (the master
HAMMACK V. WHITE. 573
and his servant) in Lincoln's Inn Fields, a place where people are
always going to and fro about their business, brought a coach
with two ungovernable horses, et cux improvide, incaute, et abs-
que debita consideratione ineptitudinis loci there drove them, to
make them tractable and fit for a coach, and the horses, because
of their ferocity, being not to be managed, ran upon the plaintiff,
and hurt and grievously wounded him." It was moved in arrest
of judgment, " that no scienter is here laid of the horses being
unruly, nor any negligence alleged, but, e contra, that the horses
were ungovernable." But judgment was given for the plaintiff,
" for 'tis alleged that it was improvide et absque debita considera-
tione ineptitudinis loci." The real question is, on whom lies the
burden of proof. The declaration states that the deceased was
lawfully passing in and along a public highway, and that the de-
fendant so carelessly, negligently, and improperly rode a vicious
horse there, that, through that carelessness and negligence, the
deceased lost his life. The evidence to support that was, that the
deceased was walking on the foot-pavement in a populous thor-
oughfare, when he was knocked down and killed by a horse which
the defendant was " trying," having only purchased him the day
before at Tattersal's, where it is well known that all horses are
sold without warranty. That, it is submitted, was ample prima
facie evidence of negligence. [Williams, J. The defendant
was carried against the deceased by a horse, which all his
apparently well-directed efforts were ineffectual to control.]
What more could the plaintiff do than show that the deceased
was in a place where he might reasonably conceive himself to
be safe, and that the defendant rode where he had no right to
be? [Eele, C. J. The fair result of the plaintiff's evidence
was, that the defendant was riding along quietly, when, for rea-
sons not given, the horse became restive.] If the defendant had
been called, it might have come out on cross-examination that
he incautiously used a whip or a spur. [Erle, C. J. The ques-
tion before us, is, whether, on the evidence then before him,
the judge was right in point of law in nonsuiting the plaintiff.]
Sir James Mansfield, in Christie v. Griggs, 2 Camp. 79, says :
" I think the plaintiff has made a prima facie case by proving his
going on the coach, the accident, and the damage he has suffered.
It now lies on the other side to show that the coach was as good
574 NEGLIGENCE.
a coach as could be made, and that the driver was as skilful a
driver as could anywhere be found. What other evidence can
the plaintiff give ? The passengers were, probably, all sailors, like
himself; and, how do they know whether the coach was well
built, or whether the coachman drove skilfully ? In many other
cases of this sort, it must be equally impossible for the plain-
tiff to give the evidence required. But when the breaking down
or overturning of a coach is proved, negligence on the part of the
owner is implied. He has always the means to rebut this pre-
sumption, if it is unfounded ; and it is now incumbent on the
defendant to make out that the damage in this case arose from
what the law considers a mere accident." [Williams, J. That
case went upon the carrier's undertaking that he would provide
for the safe conveyance of his passengers, as far as human care and
foresight could go.] Still the principle of the ruling is applicable
here. In the case of a railway accident, one who sues the com-
pany for an injury sustained by him from a collision on the train
getting off the rails, makes out a sufficient prima facie case when
he has proved the collision or the departure from the rails and the
amount of injury. Carpue v. The London and Brighton Railway
Company, 5 Q. B. 747, D. & M. 608, 3 Railw. Cas. 692. [Wil-
liams, J., referred to Perren v. The Monmouthshire Railway and
Canal Company, 11 C. B. 855.J In Skinner v. The London,
Brighton, and South Coast Railway Company, 5 Exch. 787, a
declaration against a railway company stated that the plaintiff, at
the request of the defendants, became a passenger in one of their
trains, to be carried, &c, and that, through the carelessness, neg-
ligence, and improper conduct of the defendants, the train in
which the plaintiff was such passenger struck against another
train, whereby the plaintiff was injured. At the trial, it appeared
that the accident was occasioned by the train in which the plain-
tiff was running against a train standing at the station, it being
then dark ; and it was held, that the mere fact of the accident
having occurred, was prima facie evidence of negligence on the
part of the defendants. Negligence in all these cases is purely for
the jury. Crofts v. Waterhouse, 3 Bingh. 319, 11 J. B. Moore,
133. The evidence given on the part of the plaintiff here was, at
all events, enough to call upon the defendant to prove that he
was riding a reasonably manageable horse. [Ekle, C. J. Rail-
way cases do not serve you. I do not assent to the doctrine that
HAMMACK V. WHITE. 575
mere proof of the accident throws upon the defendants the burden
of showing the real cause of the injury. All the cases where the
happening of an accident has been held to be prima facie evidence
of negligence, have been cases of contract. Williams, J. The
Lord Chief Justice in terms lays down the rule, in Cotton v.
Wood, 8 Com. B. N. S. 568, in the way he has just expressed him-
self.] The question is, whether the learned recorder was justified
in saying that there was no evidence of negligence here ; whether
there was not enough to call upon the defendant for an answer,
as in the case of Gibbon v. Pepper, 2 Salk. 637, 1 Lord Raym.
38, 4 Mod. 404.
Erle, C. J. I am of opinion that this rule should be discharged.
The action is brought for damage caused by the negligence of the
defendant ; and the question is, whether we can see upon the notes
of the learned recorder any evidence of negligence on the part of
the defendant which that learned judge ought to have left to the
jury. I am of opinion that the plaintiff, in a case of this sort, is
not entitled to have his case left to the jury, unless he gives some
affirmative evidence that there has been negligence on the part of
the defendant. The sort of negligence imputed here is, either that
the defendant was unskilful in the management of the horse, or
imprudent in taking a vicious animal, or one with whose propensi-
ties or temper he was not sufficiently acquainted, into a populous
neighborhood. The evidence is, that the defendant was riding
the horse at a slow pace, that the horse seemed restless, and the
defendant was holding the reins tightly, omitting nothing he could
do to avoid the accident ; but that the horse swerved from the
roadway on to the pavement, where the deceased was walking,
and knocked him down and injured him fatally. I can see nothing
in this evidence to show that the defendant was unskilful as a
rider, or in the management of a horse. There is nothing which
satisfies my mind affirmatively that the defendant was not quite
capable of riding, so as to justify him in being with his horse at
the place in question. It appears that the defendant had only
bought the horse the day before, and was for the first time trying
his new purchase, — using his horse in the way he intended to use
it. It is said the defendant was not justified in riding in that place
a horse whose temper he was unacquainted with. But I am of
opinion, that a man is not to be charged with want of caution
because he buys a horse without having had any previous expe-
576 NEGLIGENCE.
rience of him. There must be horses without number ridden
every day in London of whom the riders know nothing. A variety '
of circumstances will cause a horse to become restive. The mere
fact of restiveness is not even prima facie evidence of negligence.
Upon the whole, I see nothing which the learned recorder could
with propriety have left to the jury.
Williams, J. I am entirely of the same opinion. Precisely
the same question arose at the trial of this cause, as would have
presented itself if the defendant had stood indicted for man-
slaughter. It has been contended that there was evidence for
the jury, that the defendant was guilty of negligence in not using
due care, or having sufficient skill to govern a vicious horse. I
am clearly of opinion that, if this had been a trial for man-
slaughter, the evidence which was given here could not have
been left to a jury. It is said that prima facie the defendant was
guilty of negligence, because he was wrongfully on the foot-pave-
ment. But the fact of his being on the foot-pavement is nothing
unless he was there voluntarily ; and to say the least, it is quite
as consistent with the facts proved that he was there involun-
tarily, as that he was there by his own mismanagement. I would
refer to the principle alluded to by the Lord Chief Justice in Cot-
ton v. Wood, 8 C. B. N. S. 568, which it is most important to keep
in mind in all these cases, viz., that where the evidence given is
equally consistent with the existence or non-existence of negli-
gence, it is not competent to the judge to leave the matter to the
jury. It was further contended, that there was evidence to war-
rant the jury in coming to the conclusion, that the defendant was
riding a horse which he knew not to be fit for the purpose. I am
not sure that Mr. James is not right in saying that this declara-
tion does not charge any thing of that sort. But, at all events,
there was no evidence of a scienter.
Willes, J. I am of the same opinion, though I must own that
at the outset I was much inclined to entertain a contrary view.
The discussion, however, which has taken place has satisfied me
that I ought to concur with my lord and my learned brothers.
The circumstance which very much weighed with me, was that
here was a man riding on the foot-pavement, and, therefore, prima
facie in the wrong. But, then, it must be remembered, that the
witness who proved that fact, proved that he was there against
his will, that the horse showed symptoms of running away, and
HAMMACK V. WHITE. 577
that the defendant was doing his best to hold him in, and in fact
doing all he reasonably could to prevent the accident. He was
there by the will of a horse which was running away with him,
and resisting his efforts to restrain him. The injury occurred
from the vicious and unmanageable character of the horse. But,
as has already been pointed out, the fact of the defendant's riding
an unmanageable horse in a public street is not to fix him with
responsibility, unless it is. shown that he knew the horse to be
vicious and unmanageable ; and that is negatived by the evidence
here. It may be that a horse is unmanageable in consequence of
want of care or skill on the part of the rider. Want of care is
excluded by the evidence. Want of skill is matter of opinion ;
and it is not enough that the evidence is consistent with either
view. It was very much urged, that, as the defendant had only
bought the horse the day before, he was culpably negligent in
trying him in such a place. But that would be imposing a re-
striction upon the rights of the owners of horses for which I find
no warrant in the law. I cannot hold that the defendant is liable
on that ground, when there was no reason, so far as the evidence
goes, for supposing that the animal was a dangerous one. Upon
these grounds, I am satisfied that I was wrong in thinking there
was any evidence which could properly be left to the jury. It is
perfectly demonstrable that there was not. There is yet another
point in which I wish to make a remark, viz., whether the
same evidence which is required in these cases would suffice to
convict a man of manslaughter. I agree with my brother Wil-
liams, that that would be so in this case. In 1 East's P. C. 263,
264, treating of homicide, it is laid down that " the greatest pos-
sible care is not to be expected, nor is it required ; but whoever
seeks to excuse himself for having unfortunately occasioned, by
any act of his own, the death of another, ought, at least, to show
that he took that care to avoid it which persons in similar situa-
tions are most accustomed to do," — rather indicating that this
should be shown by evidence on the part of the person charged.
The practice is otherwise. I agree that the question would be
the same in this case. But there has been a good deal of discus-
sion in modern cases as to whether or not juries, on questions of
this sort, ought to be told to look at the evidence as if they were
dealing with a criminal case. It is, of course, immaterial from
which side the evidence comes which shows that the homicide is
37
578 NEGLIGENCE.
excusable. But, as at present advised, I cannot think that the
jury in a civil action should be told that the question is the same
as if the party was upon his trial for manslaughter. In a recent
case in the Privy Council, — Cheyt Ram, app., Chowdhree Now-
but Ram, resp., 7 Moore's Indian Appeal Cases, 207, — on a ques-
tion involving the genuineness or forgery of an instrument sued
upon, which the courts in India had opportunity of personally
inspecting, and held genuine, it was held to be necessary that the
evidence impeaching the document be clear and strong to justify
the appellate court in reversing the decree appealed from. Guard-
ing myself with this qualification, I agree with the rest of the court
in thinking that the evidence in this case was not such as ought
to have been submitted to the jury.
Keating, J. I am of the same opinion. If the evidence had
shown that this horse was a quiet and manageable horse, and that
the deceased at the time he met with the injury, which resulted
in his death, was walking on the foot-pavement, I must own I
should have thought that there was prima facie enough to call
upon the defendant to show that he had used due care and skill,
because then it would have been more consistent to assume that
the accident arose from his want of care and skill. But here the
evidence gets rid of that difficulty; for it shows that the beast
was restless at the time, that he took fright, and that the defend-
ant against his will, and not negligently, inasmuch as he was
doing all he could to avoid it, got placed in the position from
which the mischief arose. That being so, the case is left in this
position, that it is equally probable that there was not, as that
there was, negligence on the part of the defendant. The plaintiff,
therefore, fails to sustain the issue the affirmative of which the
law casts upon her. Rule discharged.
Byrne v. Boadle.
(2 Hurl. & C. 722. Exchequer, England, Michaelmas Term, 1863.)
Presumption of Negligence. The plaintiff was walking in a public street past the
defendant's shop when a barrel of flour fell upon him from a window above the
shop, and seriously injured him. Held, sufficient prima facie evidence of negli-
gence for the jury to cast on the defendant the onus of proving that the accident
was not caused by his negligence.
BYBNE V. BOADLE. 579
Declaration. For that the defendant, by his servants, so
negligently and unskilfully managed and lowered certain barrels
of flour by means of a certain jigger-hoist and machinery
attached to the shop of the defendant, situated in a certain
highway, along which the plaintiff was then passing, that, by and
through the negligence of the defendant by his said servants,
one of the said barrels of flour fell upon and struck against the
plaintiff, whereby the plaintiff was thrown down, wounded,
lamed, and permanently injured, and was prevented from attend-
ing to his business for a long time, to wit, thence hitherto, and
incurred great expense for medical attendance, and suffered great
pain and anguish, and was otherwise damnified. Plea, not guilty.
At the trial before the learned assessor of the Court of Pas-
sage at Liverpool, the evidence adduced on the part of the plain-
tiff was as follows: A witness named Critchley said : "On the
18th July, I was in Scotland Road, on the right side going
north ; defendant's shop is on that side. When I was opposite to
his shop, a barrel of flour fell from a window above in defend-
ant's house and shop, and knocked the plaintiff down. He was
carried into an adjoining shop. A horse and cart came opposite
the defendant's door. Barrels of flour were in the cart. I do
not think the barrel was being lowered by a rope. I cannot say :
I did not see the barrel until it struck the plaintiff. It was not
swinging when it struck the plaintiff. It struck him on the
shoulder and knocked him towards the shop. No one called out
until after the accident." The plaintiff said : " On approaching
Scotland Place and defendant's shop, I lost all recollection. I
felt no blow. I saw nothing to warn me of danger. I was
taken home in a cab. I was helpless for a fortnight." (He
then described his sufferings). "I saw the path clear. I did
not see any cart opposite defendant's shop." Another witness
said: "I saw a barrel falling. I don't know how, but from
defendant's." The only other witness was a surgeon, who
described the injury which the plaintiff had received. It was
admitted that the defendant was a dealer in flour.
It was submitted, on the part of the defendant, that there was
no evidence of negligence for the jury. The learned assessor
was of that opinion, and non-suited the plaintiff, reserving leave
to him to move the Court of Exchequer to enter the verdict for
him with ,£50 damages, the amount assessed by the jury.
580 i NEGLIGENCE.
Littler, in the present term, obtained a rule nisi to enter the
verdict for the plaintiff, on the ground of misdirection of the
learned assessor in ruling that there was no evidence of negli-
gence on the part of the defendant, against which
Charles Hussel now showed cause. — First, there was no evi-
dence to connect the defendant or his servants with the occur-
rence. It is not suggested that the defendant himself was
present, and it will be argued that upon these pleadings it is not
open to the defendant to contend that his servants were not
engaged in lowering the barrel of flour. But the declaration
alleges that the defendant, by his servants, so negligently low-
ered the barrel of flour, that by and through the negligence of
the defendant, by his said servants, it fell upon the plaintiff.
That is tantamount to an allegation that the injury was caused
by the defendant's negligence, and it is competent to him under
the plea of not guilty, to contend that his servants were not
concerned in the act alleged. The plaintiff could not properly
plead to this declaration that his servants were not guilty of
negligence, or that the servants were not his servants. If it had
been stated by way of inducement that at the time of the griev-
ance the defendant's servants were engaged in lowering the
barrel of flour, that would have been a traversable allegation,
not in issue under the plea of not guilty. Mitchell, v. Crass-
weller, 13 Com. B. 237, and Hart v. Crowley, 12 A. & E. 378,
are authorities in favor of the defendant. Then, assuming the
point is open upon these pleadings, there was no evidence that
the defendant, or any person for whose acts he would be respon-
sible, was engaged in lowering the barrel of flour. It is consist-
ent with the evidence that the purchaser of the flour was
superintending the lowering of it by his servant, or it may be
that a stranger was engaged to do it without the knowledge or
authority of the defendant. [Pollock, C. B. The presump-
tion is that the defendant's servants were engaged in removing
the defendant's flour ; if they were not it was competent to the
defendant to prove it.] Surmise ought not to be substituted for
strict proof when it is sought to fix a defendant with serious
liability. The plaintiff should establish his case by affirmative
evidence.
Secondly, assuming the facts to be brought home to the
defendant or his servants, these facts do not disclose any evi-
BYRNE V. BOADLE. 581
dence for the jury of negligence. The plaintiff was bound to give
affirmative proof of negligence. But there was not a scintilla of
evidence, unless the occurrence is of itself evidence of negligence.
There was not even evidence that the barrel was being lowered
by a jigger-hoist as alleged in the declaration. [Pollock,
C. B. There are certain cases of which it may be said res ipsa
loquitur, and this seems one of them. In some cases the courts
have held that the mere fact of the accident having occurred is
evidence of negligence, as, for instance, in the case of railway
collisions.] On examination of the authorities that doctrine
would seem to be confined to the case of a collision between two
trains upon the same line, and both being the property and under
the management of the same company. Such was the case of
Skinner v. The London, Brighton, and South Coast Railway
Company, 5 Exch. 787, where the train in which the plaintiff
was, ran into another train which had stopped a short distance
from a station, in consequence of a luggage train before it hav-
ing broken down. In that case there must have been negligence,
or the accident could not have happened. Other cases cited in
the text-books in support of the doctrine of presumptive negli-
gence, when examined, will be found not to do so. Amongst
them is Carpue v. The London and Brighton Railway Company,
5 Q. B. 747, but there, in addition to proof of the occurrence,
the plaintiff gave affirmative evidence of negligence, by showing
that the rails were somewhat deranged at the spot where the
accident took place, and that the train was proceeding at a speed
which, considering the state of the rails, was hazardous. Another
case is Christie v. Griggs, 2 Camp. 79, where a stage-coach in
which the plaintiff was travelling broke down in consequence of
the axle-tree having snapped asunder. But that was an action
on the contract to carry safely, and one of the counts imputed the
accident to the insufficiency of the coach, of which its breaking
down would be evidence for the jury. [Pollock, C. B. What
difference would it have made, if, instead of a passenger, a by-
stander had been injured ?] In the one case, the coach proprietor
was bound by his contract to provide a safe vehicle, in the other
he would only be liable in case of negligence. The fact of the
accident might be evidence of negligence in the one case, though
not in the other. It would seem, from the case of Bird v. The
Great Northern Railway Company, 28 L. J. Exch. 3, that the
582 NEGLIGENCE.
fact of a train running off the line is not prima facie proof,
where the occurrence is consistent with the absence of negli-
gence on the part of the defendants. Later cases have
qualified the doctrine of presumptive negligence. In Cotton
v. Wood, 8 C. B. n. s. 568, it was held that a judge is not
justified in leaving the case to the jury where the plaintiff 's evi-
dence is equally consistent with the absence as with the existence
of negligence in the defendant. In Hammack v. White, 11
Com. B. n. s. 588, 594, ante, p. 570, 575, Erie, J., said, that he
was of opinion " that the plaintiff in a case of this sort was not
entitled to have the case left to the jury unless he gives some
affirmative evidence that there has been negligence on the part
of the defendant." [Pollock, C. B. If he meant that to apply
to all cases, I must say, with great respect, that I entirely differ
from him. He must refer to the mere nature of the accident in
that particular case. Bkamwell, B. No doubt, the presumption
of negligence is not raised in every case of injury from accident,
but in some it is. We must judge of the facts in a reasonable
way, and regarding them in that light we know that these acci-
dents do not take place without a cause, and in general that cause
is negligence.] The law will not presume that a man is guilty of
a wrong. It is consistent with the facts proved that the defend-
ant's servants were using the utmost care and the best appli-
ances to lower the barrel with safety. Then why should the
fact that accidents of this nature are sometimes' caused by negli-
gence raise any presumption against the defendant ? There are
many accidents from which no presumption of negligence can
arise. [Bbamwell, B. Looking at the matter in a reasonable
way, it comes to. this : an injury is done to the plaintiff, who has
no means of knowing whether it was the result of negligence ;
the defendant, who knows how it was caused, does not think fit
to tell the jury. J Unless a plaintiff gives some evidence which
ought to be submitted to a jury, the defendant is not bound to
offer any defence. The plaintiff cannot, by a defective proof of
his case, compel the defendant to give evidence in explanation.
[Pollock, C. B. I have frequently observed that a defendant
has a right to remain silent unless a prima facie case is estab-
lished against him. But here the question is whether the plain-
tiff has not shown such a case.] In a case of this nature, in
which the sympathies of a jury are with the plaintiff, it would be
BYRNE V. BOADLE. 583
dangerous to allow presumption to be substituted for affirmative
proof of negligence.
Littler appeared to support the rule, but was not called upon
to argue.
Pollock, C. B. We are all of opinion that the rule must be
absolute to enter the verdict for the plaintiff. The learned
counsel was quite right in saying that there are many accidents
from which no presumption of negligence can arise, but I think it
would be wrong to lay down as a rule that in no case can pre-
sumption of negligence arise from the fact of an accident. Sup-
pose in this case the barrel had rolled out of the warehouse and
fallen on the plaintiff, how could he possibly ascertain from what
cause it occurred ? It is the duty of persons who keep barrels in
a warehouse to take care that they do not roll out, and I think
that such a case would, beyond all doubt, afford prima fade evi-
dence of negligence. A barrel could not roll out of a warehouse
without some negligence, and to say that a plaintiff ' who is
injured by it must call witnesses from the warehouse to prove
negligence seems to me preposterous. So in the building or
• repairing a. house, or putting pots on the chimneys, if a person
passing along the road is injured by something falling upon him,
I think the accident alone would be prima facie evidence of neg-
ligence. Or if an article calculated to cause damage is put in a
wrong place and does mischief, I think that those whose duty it
was to put it in the right place are prima facie, responsible, and
if there is any state of facts to rebut the presumption of negli-
gence, they must prove them. The present case upon the evi-
dence comes to this, a man is passing in front of the premises of
a dealer in flour, and there falls down upon him a barrel of
flour. I think it apparent that the barrel was in the custody of
the defendant who occupied the premises and who is responsible
for the acts of his servants who had the control of it ; and in my
opinion the fact of its falling is prima facie evidence of negli-
gence, and the plaintiff who was injured by it is not bound to
show that it could not fall without negligence, but if there are
any facts inconsistent with negligence it is for the defendant to
prove them.
Bramwelll, B. I am of the same opinion.
Channell, B. I am of the same opinion. The first part of
the rule assumes the existence of negligence, but takes this
584
NEGLIGENCE.
shape, that there was no evidence to connect the defendant with
the negligence. The barrel of flour fell from a warehouse over
a shop which the defendant occupied, and therefore prima facie
he is responsible. Then the question is, whether there was any
evidence of negligence, not a mere scintilla, but such as in the
absence of any evidence in answer would entitle the plaintiff to
a verdict. I am of opinion that there was. I think that a per-
son who has a warehouse by the side of a public highway, and
assumes to himself the right to lower from it a barrel of flour
into a cart, has a duty cast upon him to take care that persons
passing along the highway are not injured by it. I agree that it
is not every accident which will warrant the inference of negli-
gence. On the other hand, I dissent from the doctrine that there
is no accident which will in itself raise a presumption of negli-
gence. In this case I think that there was evidence for the
jury, and that the rule ought to be absolute to enter the verdict
for the plaintiff.
Pigott, B. I am of the same opinion. Rule absolute.
Historical. — Actions for the negli-
gent performance of sealed contracts are
probably as old as the writs of trespass
and covenant. There is no suggestion
in any of the books that an action would
not always lie as well for the ill, i.e.,
negligent, performance as for the non-
performance of the undertaking; on
the contrary, the clear implication, if
not the decisive evidence, is that it
would so lie. The second writ of tres-
pass in the Register (Original Writs,
p. 165 6) is one in which the defendant
is commanded to keep his covenant with
the plaintiff to pay damages for unfaith-
fulness in the default (infidelitatem in
defectu) of one T., apprenticed to the
plaintiff. See also the case of the ves-
sel overladen, whereby the plaintiff
lost his horse, infra, in which counsel
for the defence contended that the plain-
tiff should have had a writ of covenant ;
and further Fitzherbert's Nat. Brev.
145. So, too, Bracton says, "Item
poterit injuria sub se continere trans- ••
gressionem, ut si quid presumatur con-
tra statuta regis et regni excedendo
modum et mensuram, vel faciendo citra
debitum, videlicet minus quod deberet,
per malitiam et fraudem, negligentiam
et omissinnem. 101 6.
But it was by no means true that a
man could from the earliest times main-
tain an action for the negligent per-
formance of a verbal contract. Per-
haps the only case in which an action
would lie before the Statute of West-
minster 2, c. 24 (under which actions
on the case originated) was where a
bailee had by a negligent attention to
his trust lost, or wasted, or impaired the
value of his goods ; thereby subjecting
himself to a writ of detinue, or, in
earlier times, of debt (for debt orig-
inally included detinue. See ante,
p. 421.) But many cases must have
occurred for which the existing writs of
covenant, debt, and detinue were inad-
HISTORICAL.
585
equate and unsuited ; and the parties At all events, the old books furnish
were left to such redress as the king or no instance of trespass for pure neg-
his chancellor would afford them. Such ligence; and until after the Statute of
were many cases of the modern assump- Westm. 2, the injured party was prob-
sit, an action which on this account is ably without redress by action at law.2
sometimes called an equitable remedy. Bracton does indeed mention the
See Stratton p. Kastall, 2 T. R. 370; actio legis Aquilics (in which much of
Moses ». Macferlan, 2 Burr. 1005, the law of culpa apart from contract is
1012. laid down) as an existing remedy ; but
And what was true of negligence in there is ground for doubt whether it
contract was also generally1 true (before was ever used as a mode of redress for
the above-named statute) of damage damage caused by negligence. After
from negligence apart from contract, having first barely mentioned the action
In modern times it has been held that in an enumeration of actions which
trespass vi et armis may sometimes be arise ex maleficiis (p. 103, § 8), he
maintained for damage caused by neg- says on the next page (103 6, § 1, c. 4),
ligence. Thus, in Blin v. Campbell, " Actio vero legis Aquilise de homini-
14 Johns. 432, it is said that if the bus per feloniam occisis vel vulneratis
injury be attributable to negligence, dabitur propinquioribus parentibus, vel
though it were immediate, the party extraneis homagio vel servitio obligatis,
injured has an election either to treat ita quod eorum intersit agere." And
the negligence of the defendant as the this is all that he says upon the sub-
cause of the action and declare in case, ject. Now the above rule corresponds
or to consider the act itself as the to the opening paragraph of the Aqui-
injury and declare in trespass. See lian law, which gave a special rem-
1 Chitty, Pleading, 127 ; Leame v. Bray, edy where any one had wrongfully
3 East, 593; Case v. Mark, 2 Ohio, slain another's slave or beast; "si
169 ; Schuer v. Needer, 7 Blackf. 342 ; quis alienum hominem alienamve quad-
Strohl v. Levan, 39 Penn. St. 177. But rupedem . . . injuria occiderit;" Inst,
in this class of cases the plaintiff might Just. lib. 4, tit. 3; Gaius, book 3,
as well have declared in trespass with- §§ 210-219 ; and it may be safely con-
out alleging the defendant's negligence ; jectured that Bracton Simply took a
and we apprehend that no authority familiar Roman name to designate an
has gone so far as to say that trespass existing right of action, the subject-
is (or was, when in vogue) maintain- matter of which was related to that of
able when the plaintiff's case depended the opening clause of the above-named
upon the proof of negligence ; if he law, — a thing which it is clear he often
could not maintain an action without did.3 It is hardly to be supposed, if
such proof, case was the form of suit. the rest (which is far the most impor-
1 The exceptions, if such they were, being cases under the writs de reparatione facienda
and curia claudenda. See Fitzb. N. B. 127, and 127 G.
,2 Several writs of assumpsit for negligence are given in the Register under the title De
Tramgressione ; but the term vi et armis is omitted, which shows that they were writs in
case. Register, 110, Depipa vini curianda ; 110 b, De equo inflrmo sanando and De Columbari
reparando. The sentence above quoted from Bracton, closing with the words negligentiam et
omissimem, evidently refers to duties undertaken and imperfectly performed, whereby an active
injury was sustained.
8 See Bracton, 101 J-103 b, passim; e.g., Bracton mentions the actio furti of the Roman law
586
NEGLIGENCE.
tant part) of the Aquilian law pre-
vailed in his time, at least as a ground
of action in the King's Court, that it
would not have been noticed. Besides,
neither Fleta nor Britton makes any
mention of this action ; nor have we
found any allusion to it in the Year
Books.
We have not overlooked the fact that
Bracton and Fleta treat of a right of
action for culpa : but this is where the
culpa arises out of contract (bailment),
and the subject is treated by Fleta
under the action of debt. Bracton, lib.
3, tract. 1, c. 2, pp. 99, 99 6 ; Fleta,
lib. 2, c. 56, p. 120, De actione debiti.
See also Glanvill, lib. 10, c. 3, 13. The
language of Bracton and Fleta is al-
most literally that of the Institutes.
See lib. 3, tit. 14, 15.
Mr. Spence, following Mr. Reeves,
has shown how the action of assumpsit
was worked out under the St. of Westm.
2; but he did not point out the fact that
the action for negligence as a tort was
worked out in the same way. Nor has
Mr. Reeves given any special attention
to this subject. 1 Spence, Eq. 241-
244 ; 2 Reeves's Hist. Eng. Law, 508-
510, Finl. ed.
The evolution of assumpsit will show
how the action for damage by negligence
(short of trespass) was wrought out.
In framing the new writs for the
plaintiff's special case the writ of tres-
pass was generally taken for the model.
The King's Court had jurisdiction in
trespass ; and the revenue of the crown
from the purchase of writs could not
have been small. The judges were not
slow to improve an opportunity of in-
creasing the income from this source ;
and hence probably the fact that the
writ of trespass (which would draw
after it trespass on the case) was taken
as the basis for the new writs. The
Common Bench had jurisdiction of
covenant and debt, and if the new
actions had been allowed to go that
way, the benefits would not have ac-
crued to the king's treasury. See 1
Spence, Eq. 240, 241. Besides, the
Court of Chancery was quietly gain-
ing jurisdiction over what were after-
wards termed assumpsits, and hence it
was necessary that action should be
taken if any advantage was to be ob-
tained under the statute. lb. 243.
This is probably the explanation of
the fact that debt and covenant were
not adopted as models for the action on
the case ex contractu.
The first case, or one of the first
cases, in which an action for negligent
performance of a contract was brought
shows the ground upon which it was
supposed that the new writ was to be
sustained, if at all. The plaintiff
brought trespass on the case against a
man, and counted for that he had un-
dertaken to carry the plaintiff's horse
in his boat over the Humber, safe and
as existing; but no writ of the kind is to be found in the Register, nor does Bracton mention
any. The term seems to be used merely to indicate the existence of a private remedy for
goods stolen; and this existed in the appeal of robbery. See ante, pp. 349, 420. So Bracton
speaks of the actio vi bonorum raptorum; but, in describing it, he simply says that it lies for
goods taken away by force or robbery from the owner or one in whose custody they lie, being
partly paid for. He gives no intimation that the peculiar and severe law of Justinian pre-
vailed (Inst. lib. 4, tit. 2); nor does he make mention of any special writ of the above desig-
nation. It is pertinent to observe that the above-mentioned right of the kinsman of a man
slain to recover compensation for the wrong was essentially the same as the wergeld or
blood-money of the Anglo-Saxons and Salian Franks; this being the sum paid to the family
of a man who had been slain, as a compensation for the death of their kinsman. 1 Thorpe's
Ancient Laws and Inst p. 5, and notes.
HISTORICAL.
587
well, but that he overloaded his boat
with other horses, by which overloading
the plaintiff's horse perished; a tort et
a damages, &e. It was objected to
the writ that it supposed no tort in
the defendant, but on the other hand
showed that the plaintiff should have
brought a writ of covenant. But it
was said by one of the judges that the
defendant committed, as it should seem,
a trespass in overloading the boat, by
which the horse perished ; and the writ
was sustained. 21 Lib. Ass. (Edw. 3)
41. "Thus," says Mr. Reeves, "the
notion of a trespass, or a malfeasance,
was the principle upon which the appli-
cation of this new remedy was explained
and justified." 2 Hist. Eng. Law, 395,
Finl. ed. ; 1 Spence, Eq. 241.
In another case an action was brought
against a farrier for that, being em-
ployed to shoe the plaintiff's horse,
quare clavum fixit in pede equi sui
in certo loco per quod proficuum equi
sui per longum teropus amisit, &c.
To this writ it was objected that it was
in trespass, and yet did not allege vi et
armis or contra pacem ; but it was sus-
tained as according to the plaintiff's
case. 46 Edw. 3, p. 19.
Soon afterwards a writ of trespass on
the case was brought against a surgeon,
for that the plaintiff's hand had been
hurt and the defendant undertook to
cure it, but by his negligence and want
of care the injury was made worse and
became a mayhem ; and the writ was
held good without alleging vi et armis
or contra pacem, 48 Edw. 3, p. 6.
Comp. Inst. Just. lib. 4, tit. 3, §§ 6, 7,
under the Aquilian law. And see a like
case, 43 Edw. 3, p. 33, pi. 38 ; 8. c.
Register, 110 b, where the writ is
So, too, a writ had been brought
against an innkeeper for the loss of
luggage through the negligence of the
defendant and his servants ; and it was
held good, as being according to the
plaintiff's case. 42 Edw. 3, p. 13. See
also 3 Hen. 6, p. 36 ; 11 Hen. 6, p. 18 ;
19 Hen. 6, p. 49.
The next step was more difficult, viz.,
to sustain a writ of this kind for a pure
non-feasance. " It was thought some-
what harsh to give the name of trespass
to a thing which was never done." 2
Reeves's Hist. 508, Finl. ed. And the
attempt was unsuccessful in the first
cases. In 2 Hen. 4, 3 b, the plaintiff
brought an action against a carpenter
for that he had undertaken (assump-
sisset) to build within a certain time,
and had not done it. It was objected
again that the writ sounded in cove-
nant. This was supported by Brian,
who at the same time conceded that
perhaps if the writ had said that the
work had been begun, and afterwards
been stopped through negligence, it
might be otherwise. But as the com-
plaint alleged was a non-feasance, the
writ was dismissed.
An action precisely like this was
brought a few years after, with the
same concession and the same result.
11 Hen. 4, p. 33; Reeves, ut supra,
p. 509. And in many other cases the
matter was a subject of discussion, the
prevailing opinion being that for a pure
non-feasance trespass on the case would
not lie. Year Books, 3 Hen. 6, p. 36 ;
14 Hen. 6, 18 ; 20 Hen. 6, 34 ; 21 Hen.
6,55.
But where any thing was alleged
which could be construed into an active
injury, the writ was allowed ; and finally,
in the reign of Henry 7, the step was
fully taken, and it was held that an
action on the case would lie as well for
a non-feasance as for a mis-feasance.
21 Hen. 7, p. 41. " If," said Fineux,
588
NEGLIGENCE.
C. J., in this case, " one covenants to
build me a house by such a day, and
does not do it, I have an action on the
case for this non-feasance as well as if
he build it imperfectly. And so it is if
one make a bargain with me that I
shall have his land to me and my heirs
for £20, and he refuses to perform it, I
shall have an action on the case, and
there is no occasion for a subpoena."
See also to the same effect 14 Hen. 6,
p. 18; 21 Hen. 6, p. 55; 22 Hen. 6,
p. 44; 2 Hen. 7, p. 11; 2 Reeves's
Hist. 607, Finl. ed.
"Hence,'' observes Mr. Spence, "the
origin of the modern action of assump-
sit, which is now in such constant use.
It is, however," he adds, " only from
the end of the reign of Elizabeth, a. d.
1602, that this kind of action came
into general use, so far as to supersede
the necessity of the interference of the
Court of Chancery in cases to which
that action is now applied." 1 Equity,
243.
The same language might have been
used of the modern action for negli-
gence. There are other cases (if those
above mentioned were not sufficient)
which support the view that actions for
negligence, apart from bailment or con-
tract in general, passed through the
same discussion and doubts to the same
result.
To begin with a case of malfeasance
(as to which, indeed, no doubt was ever
raised of the right of action), the case
in the Year-Book, 12 Edw. 4, p. 13,
pi. 10, may be cited, where the plain-
tiff brought a writ of trespass on the
case for that he had bailed a horse to
the defendant for safe-keeping, and the
defendant equum ilium ita negligenter
custodivit that on account of the want
of good keeping the horse perished.
The defendant pleaded that the plain-
tiff had previously brought detinue for
the same horse, in which action the de-
fendant had waged his law. The plain-
tiff contended that that was no estoppel,
for his present action was brought only
for the defendant's negligence. The case
was decided for the defendant upon the
estoppel ; but no doubt was expressed
upon the goodness of the writ. Such
cases had doubtless been upheld from
the first attempt. See the sentence
quoted from Bracton, supra, p. 584.
The next step taken was to sustain
the action, as supra, where the only
malfeasance was the effect of the negli-
gence. Thus, in one case, the plaintiff
brought a writ of trespass on the case
against a man for the non-repair of a
sea-wall which the defendant ought, and '
by custom beyond memory was bound,
to repair ; by reason of which non-
repair the plaintiff's land and meadows
were flooded. It was objected, as in
the above cases, that the writ supposed
no trespass ; but it was replied that the
flooding the plaintiff's premises was to
be considered a trespass ; and the de-
fendant was required to answer over.
29 Edw. 3, p. 32. See a like case in
the Year-Book, 7 Hen. 4, p. 8, pi. 10.
These cases show that actions for mal-
feasance were considered as maintain-
able long before the case last above
given. Indeed, cases like the above
were actionable in the time of Bracton
and, probably, of Glanvill, giving rise
to an assize of nuisance or of novel
disseizin. See ante, p. 462.
Trespass on the case for non-feas-
ance ex delicto had been maintained for
a considerable time before the above
quoted doctrine of Fineux, C. J., as to
assumpsits. Thus, in 22 Hen. 6, p. 46,
pi. 36, trespass on the case was brought
against the Abbot of Wobirne, for that
he ought to find a chaplain to chant
NEGLIGENCE AS A QUESTION OP LAW OR OF PACT.
589
divine service in a certain chapel, as
he and all his predecessors from time
immemorial had done, which he had
neglected to do ; and the action (after
an amendment of the writ, stating more
accurately the prescription) was main-
tained.
In another ease Moile, J., said that
if a man should go to an inn to obtain
lodging, and should be refused, he could
maintain trespass on the case against
the innkeeper; and though this was
doubted by one of the other judges,
the doubt was based upon a question
of the duty to entertain nolens, vo-
lens. 39 Hen. 6, p. 18, pi. 24.
When, finally, it had been decided
that case lay for a non-feasance in con-
tract, no question appears to have been
raised that the rule was of general ap-
plication to all cases of a breach of legal
duty, whether ex contractu or ex delicto.
See the cases referred to by Comyns,
Action upon the Case for Negligence.'
But notwithstanding all barriers to
the maintenance of actions for negli-
gence were thus broken down, it was a
long time before they became so com-
mon as to attract special attention. No
title of Negligence is to be found in the
Year-Books, or in any of the early
Abridgments or Digests. The cases
must be looked for under the head of
Action sur le Cas, or under Trespass.
Comyns was the first to introduce the
title Negligence into the books ; and
even he makes it one of the divisions
of the general title Action upon the
Case.
Very few principles, except of the
most elementary character, were de-
cided in the cases of the Year-Books.
The questions discussed were mostly in
regard to the form of the writ, or its
extension to cases of a very simple
nature, as we have seen. Discussions
seem never to have led to an examina-
tion of the Roman law of negligence, or
even to a citation of Bracton or Fleta ;
and we may be tolerably certain that
the law of negligence, as declared by
the judges who figure in the Year-
Books, was not of foreign extraction.
The first extensive examination (by
the courts) of the Roman law of negli-
gence, and attempt to apply its doc-
trines to English jurisprudence, was
made by Lord Holt in Coggs v. Ber-
nard, 2 Ld. Raym. 909. This, how-
ever, was on the side of bailment ; and
of this subject we do not treat. The
system of law laid down in that case,
with its three degrees of negligence
(upon the most erroneous construc-
tion of the Roman law *) has happily
been mainly confined to the title Bail-
ment ; and it is perhaps fortunate, with
the experience of a century and a half
before us, that Lord Holt had no occa-
sion to consider the Roman law of neg-
ligence as applicable to matters of pure
tort. To what limited extent the Roman
law has been made use of in this partic-
ular in more recent times will appear
as we trace the course of the existing
law.
Negligence as a Question of Law or
of Fact. — We propose to consider now
the general principles that enter into
the inquiry how far negligence is a
question of law, and how far it is a
question of fact; and this, first, apart
from the authorities.
The use of the term "negligence''
necessarily implies some standard by
which the acts or omissions to which
it relates are to be judged ; and in the
two questions, — What is the standard ;
1 See 'Wharton, Negligence, §§ 57 et seq.; Story, Agency, § 184, note, Green's ed.
590
NEGLIGENCE.
and Where does it exist? — lies the
whole law of negligence.
In answer to the first question it is
generally said that the standard in the
English law is the conduct of the pru-
dent man. But this standard, though
sufficient for most cases, is sometimes
misleading.
Suppose the defendant, a man with-
out experience in driving, were to get
into a carriage in a crowded thorough-
fare, on a gala day, and attempt to
drive an unruly horse through the
street, in order to assist the owner,
and that without any lack of care or
effort on the part of the defendant, the
horse should break away from him and
injure people in the street: now if the
question is, Did the defendant act as a
prudent man would have acted under
the same circumstances ? the jury (or
judge, if he should assume the answer-
ing of it) would be very likely to say
that he did. The ideal prudent man
might well have undertaken the same
courtesy, and without exercising any
more care.
Or, to take another case, suppose a
blacksmith were to find a watch by the
roadside, and, discovering it to be full
of dirt and gathering rust, should at-
tempt to clean it and put it in order,
and in doing so, though exercising the
greatest care, should injure the watch :
if in an action against hirn the question
should be, Did the defendant act as a
prudent man in his situation might have
done? the answer could not but be in
the affirmative. A watchmaker would
have done the same thing.
The above cases should indicate the
limits of the test "of the prudent man's
conduct. That test holds good where
the defendant was at the time engaged
in his own business or avocation, or in
some other in which he has acquired
skill, or in something which all men
can do alike (as, for instance, drawing
water). Within these limits the test
requires that the defendant should be
judged by the conduct of the prudent
man engaged in the particular labor as
of his own calling (unless it be a thing
which all can do alike), whether he be
a digger of ditches or a workman in
steel.
Beyond cases of this class the test
fails ; and if it be made to appear that
the defendant has stepped out of his
own business, it should seem that a
prima facie case had been made against
him. The judge would not presume tbe
defendant to have skill in all kinds of
business ; and it would, therefore, be
for the party to satisfy the jury that he
had acquired the skill of a competent
man of that business. And then it
would be necessary to show that he had
exercised his skill as the prudent man
of that business would have done. In
a word, the standard of a man dehors
his own business is both skill in the
thing assumed and the conduct of the
prudent man.
If it should be said that this after all
is nothing more than the test of the
prudent man's conduct, because it is
not the part of a prudent man to go
out of his own business, the answer is
that this is using the word ' ' conduct "
in a double sense, as relating both to
the degree of care exercised in doing
the act which resulted in the damage,
and to the change of business. And,
besides, it is not always true that the
prudent man would not have made the
change, for a man may be equally and
thoroughly skilled in several kinds of
business.
In contractual relations the above
would not be an accurate discrimina-
tion of liabilities. If, for example, I-
NEGLIGENCE AS A QUESTION OF LAW OR OP FACT. 591
should bail an unruly horse to an inex- what constitutes the standard in each of
perienced driver, to be driven through these cases is a question of more diffi-
a crowded street, and the horse, in cult solution. It cannot be answered in
spite of all effort, should run away and the abstract. Sometimes it is matter of
break the carriage, I could not main- law, and sometimes it is matter of fact;
tain an action against the bailee for and, even in cases where the standard is
the damages, unless he had imposed defined by the judge, no general rule
upon me, or had agreed to pay me for can be safely laid down until a particu-
any damages which might be incurred, lar case is stated. We must, then, leave
And the reason is that I consented to this subject for consideration under spe-
the risk, — volenti nonjit injuria, — and cial cases.
could only require of him such care as The question where the standard by
he could exercise. So, if I should take which the defendant's conduct is to be
my watch to a blacksmith for repair, I judged is to be found, whether in the
could not maintain an action against breast of the judge or in the testimony
him for damage done to it, provided he of witnesses, is no less difficult, and
had done as well as he could. must be answered in the main in the
But in the case of a pure tort (that is same way. In some cases we shall find
a wrong not arising out of contract) the the judge tacitly ruling upon the facts
defendant has undertaken or omitted before him, supplying from his own
some duty without the consent of the breast the rule by which the defend-
plaintiff; he has, therefore, taken his ant's liability is to be tried ; in others
own risk. submitting to the jury the rule to be
It would thus seem that the doctrine applied. But while the subject of the
concerning the diligence of an "expert" proper province of the court and jury
or a " non-expert," which Dr. Wharton in these cases appears, and is in fact,
has learnedly set forth in his work on much confused, it is apprehended that
Negligence, §§ 26 el seq., is applica- there are certain clear principles under-
ble only to the law of bailment ; and lying it, which, if observed, will relieve
that dehors matters of contract the law the subject of somewhat of its diffi-
requires of all men the diligence of ex- culty.
perts (this term being used to designate 1. The question whether a man is
a man properly engaged in his own guilty of negligence must ever be a
business, as supra, in contradistinction question of law where all the facts in
from one otherwise employed; i. e., a dispute are found, including the conduct
non-expert). That is to say, if a non- of the prudent man (or the skill and
expert undertake the business of an prudence of the defendant) in the par-
expert, he will be liable for damage ticular situation. The duty of the judge
done, because he is a non-expert in does not stop with presiding at the trial,
that business.' and deciding upon the competency of
In all other cases of tort than those evidence ; he is required to instruct
above mentioned, the common test — the jury as to the legal principles which
the conduct of the prudent man — is, as must govern their decision. In the
we have said, sufficiently accurate. But case put nothing more can be done
l As a non-expert would therefore be liable where an expert would not, these terms may
still be need of pure torts; but the sense will be reversed from their signification in bailment.
592
NEGLIGENCE.
until a rule of law is declared ; and to
do this is the province of the court.
2. But in some cases (1) the conduct
of the prudent man (or the propriety of
the action of the defendant himself as a
non-expert) in the situation is matter of
common knowledge; and neither the
judge nor the jury would need the testi-
mony of others upon the subject. In
such cases the question may properly
be answered by the judge. In other
cases (2) the standard has already been
settled by law; and in still others (3) no
standard exists, and it becomes neces-
sary to declare what it should be. We
shall find that most of the cases in
which the judge has assumed to lay
down, expressly or by implication, the
rule of conduct of the prudent man are
cases of one of these classes. In these
cases the jury are called upon to say
simply whether the defendant con-
formed to such and such a standard.
In all other cases the jury must further
find the standard by which the defend-
ant is to be tried.
3. When it is said that the question
of negligence is one of mixed law and
fact, to be submitted to the jury under
instructions for their guidance, nothing
different in truth is meant. In such
cases the judge says that if such and
such facts be found (constituting the
supposed act or omission of the defend-
ant, and including the conduct of the
prudent man or not, as supra), the ver-
dict must be for the plaintiff.
It remains to see whether the above
propositions are borne out by the au-
thorities.
The first one (where all the facts, in-
cluding the prudent man's conduct, are
found) is too evident for further men-
tion. As to the second and third, which
as we have said are in substance the
same, the principal case, McCully v.
Clark, is authority. In that case the
standard of conduct was submitted to the
jury ; and this was held right, because
the standard was uncertain. The court
could not know what it was, at least
upon the facts proved. "The ques-
tion," said the learned judge, "was
not alone what the defendants had done
or left undone, but in addition what a
prudent and reasonable man would
ordinarily have done uuder the circum-
stances. Neither of these questions
could the court solve. . . . The points
proposed to the court assumed that the
defendants were under obligation com-
pletely to extinguish the fire in the
coal-pile within a designated time."
In a subsequent case the same court
say that "where there is such an ob-
vious disregard of duty and safety as
amounts to misconduct the court may
declare it to be negligence as matter of
law." West Chester & Phila. R. Co.
v. McElwee, 67 Penn. St. 311.
In another case in which the plain-
tiff had brought an action for injuries
caused by the defendants, a railroad
company, at their intersection with the
public highway, it was held that a fail-
ure to look out for the approaching
train was negligence. ' ' In most
cases," said the court, "the standard
is variable, and it must be found by a
jury. But when the standard is fixed,
when the measure of duty is defined by
the law, entire omission to perform it
is negligence. In such a case the jury
have but one of these inquiries to
make. They have only to find whether
he upon whom the duty rests has per-
formed it. If he has not, the law fixes
the character of his failure and pro-
nounces it negligence. Of this there
are many illustrations. Now, that it is
the duty of a traveller when approach-
ing the intersection of a railroad with
NEGLIGENCE AS A QUESTION OF LAW OR OF FACT.
593
a common highway to look out for
approaching trains or engines, the
court below asserted more than once,
and correctly, that standard of duty
is fixed by the law." North Penn. R.
Co. b. Heileman, 49 Penn. St. 60. See
also, upon this particular point of inju-
ries at railway crossings, Reeves v.
Delaware & L. R. Co., 80 Penn. St.
464; Pennsylvania R. Co. v. Ogier,
35 Penn. St. 60; Pennsylvania R. Co.
v. Beale, 30 Leg. Int. 232 ; Pennsylvania
R. Co. ». Weber, 72 Penn. St. 27; But-
terfield v. Western R. Corp., 10 Allen,
532; Wilds i: Hudson River R. Co., 24
N. Y. 430; Gillespie v. Newburgh, 54
N. Y. 468, and cases cited; Dascomb v.
Buffalo, &c. R. Co., 27 Barb. 221;
French v. Taunton Branch R. Co., 116
Mass. 537.
In Railroad Co. v. Stout, 17 Wall.
657, where it was assigned for error
that the judge should have ruled upon
an accident happens, negligence may
be ruled as a question of law. On the
other hand, if he had placed a suitable
distance between his coach and the
precipice, but by the breaking of a
rein or an axle, which could not have
been anticipated, an injury occurred, it
might be ruled as a question of law
that there was no negligence and no
liability. But these are extreme cases.
The range between them is almost infi-
nite in variety and extent. It is in
relation to these intermediate cases that
the opposite rule prevails. Upon the
facts proven in such cases, it is a mat-
ter of judgment and discretion, of sound
inference, what is the deduction to be
drawn from the undisputed facts. Cer-
tain facts we may suppose to be clearly
established, from which one sensible,
impartial man would infer that proper
care had not been used, and that neg-
ligence existed ; another, equally sen-
the faqts that there was no evidence of sible and equally impartial, would infer
negligence, the court, by Hunt, J., that proper care had been used, and
said: "It is true in many cases that that there was no negligence. It is this
where the facts are undisputed, the class of cases, and those akin to it, that
effect of them is for the judgment of the law commits to the decision of a
the court, and not for the decision of jury." But qucsre if even this be always
the jury. This is true in that class of true. See p. 594, Dixon v. Bell,
cases where the existence of such facts So, in Hackford v. New York Cent.
comes in question rather than where R. Co., 53 N. Y. 654, it was held that
deductions or inferences are to be made if the act or omission " of itself con-
from the facts. ... In some cases, too,
the necessary inference from the proof
is so certain that it may be ruled as a
question of law. If a sane man volun-
tarily throws himself in contact with a
passing engine, there being nothing to
counteract the effect of this action, it
may be ruled as a matter of law that
stitutes negligence," it is the province
of the court to pass upon it ; but if the
fact depends upon the credibility of
witnesses, or upon inferences to be
drawn from the circumstances proved,
about which men might honestly differ,
then the question is for the jury.
The Supreme Court of Michigan,
the injury to him resulted from his own by Cooley, C. J., have said, " It is a
fault, and that no action can be sus- mistake to say, as is sometimes said,
tained by him or. his representatives, that when the facts are undisputed the
So if a coach-driver intentionally drives question of negligence is necessarily
within a few inches of a precipice, and one of law. This is generally true
38
594
NEGLIGENCE.
previous experience of him. There
must be horses without number ridden
every day in London of whom the
riders know nothing." The conduct of
the prudent man, as thus appears, was
plain, and evidence on the point was
unnecessary. However, it may be
safely surmised that the chief reason
for the decision was found more in a
conviction that the act of the defend-
ant was proper and prudent per se than
that it conformed to any general prac-
tice of the community. The general
practice might itself be very reprehen-
sible ; and it would not be safe to found
a rule of law upon its mere existence.
The court seem to have taken the
ground that it was for them to say
whether a careful man, who had regard
for the safety of others, would do as
the defendant had done ; and properly,
for there were no elements of difficulty
in the case which could be aided by the
production of evidence. In this view
the question was, what the standard
should be rather than what it actually
was.
Dixon v. Bell differs from Hammack
v. White in that the act complained of
was one of an isolated kind, as to which
no actual practice existed in the com-
munity. The question to be decided
therefore was, what standard should
prevail in such a case. That is, it was
like the question which we have pre-
sumed to have existed in the mind of
the court in Hammack v. White. The
duty was something to be prescribed
and not proved. It was a question of
1 Where a fact is matter of general knowledge, it seems to be a rule of wide application
that the court may take cognizance of it. Upon a question of master and servant, Cockburn,
C. J , said: "It is a matter of universal knowledge and experience that in a great city like
this persons do not employ their own servants to do repairs to the roofs of their houses or
buildings; they employ a builder whose particular business it is to do it. That being a mat-
ter of universal practice, and of universal and common knowledge, I think this is a circum-
stance which the judge ought to take into account in determining whether there is evidence
to go to the jury or not." Welfare v. Brighton Ry. Co., L. E. 4 Q. B. 693, 696.
only of that class of cases where a
party has failed in the performance of
a clear legal duty. When the question
arises upon a state of facts on which
reasonable men may fairly arrive at
different conclusions, the fact of negli-
gence cannot be determined until one or
the other of those conclusions has been
drawn by the jury. The inferences
must either be certain and uncontro-
vertible or they cannot be decided upon
by the court." Detroit & M. R. Co. v.
Van Steinburg, 17 Mich. 99. And
finally see Cox v. Burbridge, 13 Com.
B. n. s. 430, 437, infra, where the
court decide that it is no evidence of
negligence that a child is kicked on
the highway by a horse straying there ;
as to which Erie, C. J., says, "And
everybody knows that it is not at all the
ordinary habit of a horse to kick a
child on a highway." See also Gaynor
v. Old Colony R. Co., 100 Mass. 208.1
The principal case, Hammack v.
White, was a case in which the court
(or at least one of the judges) assumed
to know the actual conduct of the pru-
dent man. " It appears," said Erie,
C. J. , " that the defendant had only
bought the horse the day before, and
was for the first time trying his new
purchase, — using the horse in the way
he intended to use it. It is said that
the defendant was not justified in rid-
ing in that place a horse whose temper
he was unacquainted with. But I am
of opinion that a man is not to be
charged with want of caution because
he buys a horse without having had any
NEGLIGENCE AS A QUESTION OP LAW OB OF FACT.
595
public policy, and therefore for the cog-
nizance of the court.
The doctrine, then, of the cases is,
that where the standard is plain and cer-
tain (i.e., to put it as we have stated it
elsewhere, where it is matter of general
cognizance, so as not to require evi-
dence) , it is not error for the judge to lay
it down, or to say that, if such and such
acts or omissions be proved, the de-
fendant is guilty or not guilty ; and a
fortiori this is true where the standard
has been already defined by law, or
where the act is an isolated one, and
cannot be aided by evidence. See 7
Am. Law Rev. 654, 655, 658.
And when the statement is made, as
it often is, that where the facts are
found, the question whether they con-
stitute negligence is one of law, it will
generally appear, as we have intimated,
that the court speak with a case like
one of the above before them. Thus
in Herring v. Wilmington & Raleigh R.
Co., 10 Ired. 402, which was an action
for killing one and injuring another of
the plaintiff's slaves, the learned court
said : ' ' What amounts to negligence is
a question of law. . . . The cars were
running at the usual hour and at the
usual speed, not through a village or*
over a crossing-place, or turning a
point, but upon a straight line, where
they could have been seen for more than
a mile. The negroes might have been
seen at the distance of half a mile.
Whether the engineer saw them or not
until he was too near to stop does not
appear. There is no evidence that he
was not in his place and on the look-out.
It cannot be inferred from the fact that
he made no effort to stop until he got
within twenty-five or thirty yards of
the negroes, for that is entirely consist-
ent with the supposition that he had
seen them for half a mile ; because,
seeing them to be men, he naturally
supposed they would get out of the
way before the cars reached them, and
might well have continued under this
impression until he got near enough
to see that they were either drunk or
asleep, which he was not bound to fore-
see ; and his being then too near to
stop, so as to save them, was their mis-
fortune, not his fault.'' The standard,
it will be observed, was one of general
cognizance, and could not have been
made more plain by evidence.
In concluding this part of the note,
it is proper to remark that as the stand-
ard is (ordinarily) that of the prudent
man, the requirement of "due care"
or " ordinaiy diligence," and the pro-
hibition of " ordinary negligence " and
" gross negligence," to use a common
set of terms, implies one and the same
thing, to wit, the exercise of that de-
gree of care which prudent men exer-
cise, or should exercise, in similar mat-
ters. If the defendant's act fall below
the standard, he is liable ; and degrees
of negligence, as applied to liability,
are thus effectually cut off.
See further, as to the province of
the court and jury, Baltimore & O. R.
Co. v. State, 36 Md. 366, referring to
many cases ; Barton v. St. Louis, &c.
R. Co., 52 Mo. 253 ; Pendrill v. Sec-
ond Ave. R. Co., 34 N. Y. Superior,
481 ; Dickens v. New York Cent. R.
Co., 1 Abb. App. Dec. 504 ; Keller v.
New York Cent. R. Co., 2 Abb. App.
Dec. 480 ; Rudolphy v. Fuchs, 44 How.
Pr. 155 ; Feler v. New York Cent. R.
Co., 49 N. Y. 47; Bernhard v. Rens-
selaer & S. R. Co., 1 Abb. App. Dec.
131 ; Cook v. New York Cent. R. Co.,
lb. 432 ; Jetter v. New York & H. R.
Co., 2 Abb. App. Dec. 458; Willard
v. Pinard, 44 Vt. 34 ; Haskford v. New
York & H. R. Co., 43 How. Pr. 222;
596
NEGLIGENCE.
Schierhold v. North Beach, &c. R. Co.,
40Cal.-447; Smith v. Clark, 3 Lans.
208; Greenleaf v. Illinois, &c. R. Co.,
29 Iowa, 14; Jenkins v. Little Miami
R. Co., 2 Disney, 49 ; Eagan v. Fitch-
burg R. Co., 101 Mass. 315; Maloy v.
New York & H. R. Co., 58 Barb. 182 ;
Belton v. Baxter, 2 Sweeny, 339 ;
Johnson v. Bruner, 61 Penn. St. 58;
Pennsylvania Canal Co. v. Bentley, 66
Penn. St. 30; Buell v. Chapin, 99
Mass. 594 ; .Quirk v. Holt, lb. 164 ;
Reynolds v. Hanrahan, 100 Mass. 313 ;
Albert v. Bleeeker St. R. Co., 2 Daly,
389 ; Griggs v. Frankenstein, 14 Minn.
81; Carroll v. Minnesota Val. R. Co.,
lb. 57; Kennayde v. Pacific R. Co.,
45 Mo. 255 ; Detroit & M. R. Co. v.
Curtis, 23 Wis. 152 ; French v. Taun-
ton Branch R. Co., 116 Mass. 537 ;
Schienfeldt v. Norris, 115 Mass. 17;
Strong v. Connell, lb. 575; Elkins v.
Boston & A. R. Co., lb. 190 ; Gee v.
Metropolitan Ry. Co., Law R. 8 Q. B.
161. Consult also the valuable contri-
bution of Mr. Holmes on The Theory
of Torts, 7 Am. Law Rev. 652.
Presumptions of Negligence. — In
the principal case, Byrne v. Boadle,
we have an instance where, from the
situation of the parties and the nature
of the accident, a legal presumption of
negligence is raised against the defend-
ant. The barrel of flour fell out of
the window of the defendant's shop ;
, from which it was presumed that the
article had been in the custody of the
defendant. And as a barrel of flour
would not ordinarily fall out of a win-
dow when proper care is taken in man-
aging it, there was presumptive evidence
of negligence on the part of the de-
fendant. But as it was possible that
the defendant was not the author of
the injury, or, if he was, that he was
not in fact negligent, each of the pre-
sumptions was open to rebuttal.
But inasmuch as the burden of proof
of actionable negligence is upon the
plaintiff, cases in which such presump-
tions are claimed must be narrowly
scrutinized. The circumstances (apart
from contract) must be exceptional
where the plaintiff escapes the common
necessity of proving actual negligence.
There are, however, such cases; and
Byrne v. Boadle is not alone. A similar
case went to the Exchequer Chamber
about a year later. Scott v. London
Dock Co., 3 Hurl & C. 596. In this
case the plaintiff proved that while in the
discharge of his duties as a custom-house
officer in front of the defendants' ware-
house, in a dock, he was felled to the
ground by several bags of sugar falling
upon him. The judge at nisi prius
directed a verdict for the defendants,
on the ground of a want of evidence
of negligence. The Court of Excheq-
uer having granted a rule to set aside
the verdict, that decision was sustained
on appeal. Erle,.C. J., said that the
majority of the court had come to the
following conclusions : There must be
evidence of negligence. But where
the thing is shown to be under the
management of the defendant or his
servants, and the accident is such as in
the ordinary course of things does not
happen if those who have the manage-
ment use proper care, it affords reason-
able evidence, in the absence of ex-
planation by the defendants, that the
accident arose from want of care. The
learned Chief Justice added that he and
Mr. Justice Mellor had been unable to
find in the case this reasonable evidence
of negligence. (The majority consisted
of (Jrompton, Byles, Blackburn, and
Keating, JJ.)
PRESUMPTIONS OP NEGLIGENCE.
597
In another case, the plaintiff was
injured by the fall of a large packing-
case belonging to the defendant, while
making inquiries for the defendant in
the door of a house in which the latter
had offices. He had received a push
from the defendant's servant, who was
watching the packing-case; and im-
mediately the case, which stood against
a wall of the house, fell and struck him
on the foot. There was no evidence
why the packing-case fell, or who
placed it against the wall. It was held
that the facts showed a prima facie
case of negligence. Pigott, B., said
that it was true that where the evi-
dence was equally consistent with the
existence or non-existence of negli-
gence, there was no question for the
jury. (See Cotton v. Wood, 8 Com. B.
x. s. 568 ; Smith v. First National
Bank, 99 Mass. 605). But inasmuch
as packing cases did not usually fall of
themselves, unless there had been some
negligence in setting them up, the facts
appeared to him to be consistent only
with the existence of negligence.
Bramwell, B., took the same view. Mar-
tin, B., thought that the facts were as
consistent with the position that there
was no evidence of negligence as the
contrary, and that therefore the plain-
tiff had not made out his case. Briggs
v. Oliver, 4 Hurl. & C. 403.
In Cox v. Burbridge, 13 Com. B.
n. s. 430, the plaintiff, a child, sued
for injuries caused by the kick of a
horse. It appeared that the horse had
been grazing on the highway. The
plaintiff was playing in the road, when
the horse, which was on the foot-path,
kicked him. There was no evidence to
show how the horse got to the spot, or
that the defendant knew he was there,
or that the animal was at all vicious, or
that the child had done any thing to
irritate him. The case having been left
to the jury , a verdict was given for the
plaintiff; whereupon a new trial was
granted, on the ground of a want of
evidence of negligence. Erie, C. J.,
said that it might be assumed that as
between the defendant and the owner
of the soil of the highway (which had
not been accepted as such), it might be
assumed that the horse was trespassing ;
or, if the way had been a public high-
way, that the owner might have been
proceeded against under the Highway
Act. But in considering the claim of
the plaintiff against the defendant, the
question whether the horse was a tres-
passer as against the owner of the soil,
or whether he was amenable under the
statute, had nothing to do with the case.
He also thought that there was no evi-
dence of negligence in the fact that the
owner of the horse had allowed the ani-
mal to go upon the road unattended.
He might have been put there by a
stranger, or might have escaped from
some enclosure without the owner's
knowledge. But even if there were
negligence, he thought, that the plain-
tiff had not connected himself with the
damage complained of. He thought
that the well-known distinction was ap-
plicable, that the owner of an animal
was liable only when the damage done
was such as was likely to be caused by
the animal, and that the owner knew it.
In such cases there was no remedy with-
out proof of the scienter. (See ante,
p. 488.) " The owner of a horse,'' said
the learned Chief Justice, "must be
taken to know that the animal will
stray if not properly secured, and make
its way into his neighbor's corn or
pasture. For a trespass of that kind
the owner is, of course, responsible.
B*t if the horse does something which
is quite contrary to his nature, some-
598
NEGLIGENCE.
tiling which his owner has no reason to
expect he will do, he has the same sort
of protection that the owner of a dog
has ; and everybody knows that it is
not at all the ordinary habit of a horse
to kick a child on the highway." The
other judges took the same view as to
the necessity of the proof of a scienter
of the viciousness in such a case. .So,
too, it is held that the mere fact of a
man's driving on the wrong side of the
road is no evidence of negligence in an
action brought against him for running
over a person who was crossing the
road on foot. Lloyd v. Ogleby, 5 Com.
B. ar. s. 667.
In Welfare v. London & Brighton
Railway Co., Law R. 4 Q. B. 693, it
was held that no presumption of negli-
gence could be raised from the fact that
the plaintiff was injured by the fall of
a timber and a roll of zinc from the
roof of a portico undergoing repair,
under which he was standing. The
Chief Justice observed that the only
act of negligence that could be sug-
gested in the case was, that the de-
fendants had allowed a person to go
upon the roof when it was in an inse-
cure condition or not sufficiently strong
to support his weight, so that the plank
gave way under the weight of the man
passing over it, and that as a conse-
quence the plank fell down and injured
the plaintiff. But this was not suffi-
cient. It was incumbent upon the plain-
tiff to show further that the defendants
knew, or had the means of knowing, or
were bound to take steps to know, the
condition of the roof; and it did not
follow that because they knew that the
roof needed repairing, they also knew
that it would not bear the weight of a
man.
Another ground taken was, that the
person upon the roof had not been
shown to be in the employ of the de-
fendant ; and upon this ground, and the
ground that there was no evidence that
the man on the house was negligent, a
more recent case before the same court
has been distinguished. Kearney v.
London & Brighton Railway Co., Law
R. 5 Q. B. 411, 413 ; s. c. Law R. 6
Q. B. 759. In this case the plaintiff
was injured by the fall of a brick while
passing under a railway bridge extend-
ing over the highway. The bridge
rested on perpendicular brick walls,
having pilasters ; and from the top of
one of these pilasters the brick fell,
shortly after the passing of a train. It
was held that these facts raised a pre-
sumption of negligence against the
defendants. "My own opinion," said
Coekburn, C. J., " is, that this is a case
to which the principle res ipsa loquitur
is applicable," though it is certainly as
weak a case as can well be conceived
in which that maxim could be taken to
apply. But I think the maxim is ap-
plicable ; and my reason for saying so
is this : The company who have con-
structed this bridge were bound to
construct it in a proper manner [there
was no evidence, however, that it was
not so constructed], and to use all rea-
sonable care and diligence in keeping
it in such a state of repair that no dam-
age from its defective condition should
occur to those who passed under it, the
public having a right to pass under
it. Now, we have the fact that a brick
falls out of this structure and injures
the plaintiff. The proximate cause ap-
pears to have been the looseness of the
brick, and the vibration of a train passing
over the bridge acting upon the defec-
tive condition of the brick. It is clear,
therefore, that the structure in refer-
ence to this brick was out of repair. It
is clear that it was incumbent on the
PRESUMPTIONS OF NEGLIGENCE.
599
defendants to use reasonable care and
diligence, and I think the brick being
too loose affords, prima facie, a pre-
sumption that they had not used rea-
sonable care and diligence. It is true
that it is possible that, from changes in
the temperature, a brick might get into
the condition in which this brickwork
appears to have been from causes
operating so speedily as to prevent
the possibility of any diligence and
care applied to such a purpose inter-
vening in due time, so as to prevent an
accident. But, inasmuch as our expe-
rience of these things is that bricks do
not fall out when brickwork is kept in
a proper state of repair, I think, where
an accident of this sort happens, the
presumption is that it is not the frost of
a single night, or of many nights, that
would cause such a change in the state
of this brickwork as that a brick would
fall out in this way ; and it must be
presumed that there was not that in-
spection and that care on the part of
the defendants which it was their duty
to apply."
Mr. Justice Hennen dissented, and
the case was carried to the Exchequer
Chamber, where the judgment of the
majority below was unanimously af-
firmed. Law R. 6 Q. B. 759.
In Mullen v. St. John, 57 N. Y. 567,
it was decided that the fall of a building
into the street was presumptive evidence
of a neglect of proper care on the part of
the owner. The court said that a per-
son who erected a building upon a city
street or upon an ordinary highway
was under legal obligation to take rea-
sonable care that it should not fall into
the street ; and buildings properly con-
structed did not fall without adequate
cause. If no tempest or other external
violence prevailed, the fair presumption
was that the fall occurred through the
ruinous condition of the building, which
could scarcely have escaped the notice
of the owner. The case was decided
chiefly upon the authority of Kearney
v. London & Brighton Railway Co.,
supra. See further, as to the duty to
repair, Kirby v. Boylston Market Asso-
ciation, 14 Gray, 249 ; Lowell v. Spald-
ing, 4 Cush. 277 ; Oakham v. Holbrook,
11 Cush. 299 ; Regina v. Watts, 1 Salk.
357; Rector v. Buckhart, 3 Hill, 193.
In Lehman v. Brooklyn, 29 Barb.
234, an action was brought against a
city for negligently causing the death
of a young child. The proof was that
the city kept a well, the mouth of which
was level with the sidewalk. The well
was in-ihe sidewalk, but two or three
feet from the flagging. It was provided
with a cover, having a lid opening on
hinges. And the child was found in
the well. It was held that the plaintiff
could not recover.
The Supreme Court of Wisconsin
have held that the law will not presume
negligence from the mere fact that a
person injured in passing over a defec-
tive highway had frequently passed over
it and knew of its condition. Kavenaugh
v. Janesville, 24 Wis. 618. See Maguire
v. Middlesex R. Co., 115 Mass. 239.
This presumption of negligence from
the mere happening of an accident —
where res ipsa loquitur — often arises
in injuries sustained by railway, steam-
boat, and stage-coach companies. In
Stokes v. Saltonstall, 13 Peters, 181,
s. c. below, Taney, 11, a leading case
in this country, it was held that in an
action against the proprietor of a stage-
coach, the fact that the stage was upset
and the plaintiff injured was sufficient
to raise a presumption of negligence or
want of skill in the driver, and to shift
upon the defendant the burden of prov-
ing that the driver was in every respect
600
NEGLIGENCE.
qualified, and acted with reasonable skill
and with the utmost caution.
This doctrine had previously been
laid down by Mansfield, C. J., in
.Christie v. Griggs, 2 Campb. 79.
As to injuries occurring from steam-
boats, an act of Congress, affirming
what seems to be the common law,
declares that in all suits and actions
against proprietors of steamboats, for
injuries arising to persons or property
from the bursting of the boiler of any
steamboat, the fact of such bursting
shall be taken as prima facie evidence,
sufficient to charge the defendant, or
those in his employment, with negli-
gence, until he shall show that no neg-
ligence has been committed by him or
those in his employment. 5 U. S. Stat,
at Large, 306. See McMahon v. David-
son, 12 Minn, 357, 371. But the above
are cases of contract, and they need
not be further considered.
In Ellis v. Portsmouth & Roanoke
R. Co., 2 Ired. 138, the plaintiff sued
the defendants for having negligently
caused the burning of his fence, stand-
ing along the line of their railroad; and
the Supreme Court held that when the
plaintiff shows damage resulting from
the defendants' act, which act, with the
exercise of proper care, does not ordi-
narily produce damage, he makes out a
prima facie case of negligence, such as
can only be repelled by proof of care or
of some extraordinary accident, which
renders care useless. And the same
court repeated this rule in Herring v.
Wilmington & Ral. R. Co., 10 Ired.
402. (As to what is sufficient evidence
to connect the defendants with the plain-
tiff's loss in the case of a building burned
down near a railroad track, see Sheldon
v. Hudson River R. Co., 14 ST. Y. 218.)
The presumption as to the extent of
the charge over articles on the occupant's
premises is also treated as a narrowone,
at least in England. Thus, in Higgs v.
Maynard, 12 Jur. n. 8. 705, it appeared
that the defendant was possessed of a
workshop, the windows of which over-
looked a yard in which the plaintiff was at
work for another. A ladder in the de-
fendant's workshop (a coffee-roasting
establishment) fell through one of the
windows, and the fragments of the
glass in falling injured the plaintiff's
eye. It was held that the plaintiff could
not recover without proving that the
ladder was under the control of the
defendant.
So, too, Cockburn, C. J., has ob-
served, in a case already cited (Welfare
v, London & Brighton Railway Co.,
Law R. 4 Q. B. 693), that the court will
not presume that a man engaged in
repairing the roof of a building in a
great city is in the employ of the
owner of the building, for it is a matter
of general knowledge that repairs in
such cases are undertaken by builders
or contractors. (Railway companies are,
of course, liable for injuries caused by
the negligence of contractors after the
work of the contractor has been ac-
cepted. See post.)
In the Superior Court of New York
City a different rule has been main-
tained. It has there been decided that
the fall of a piece of wood from a build-
ing in New York belonging to the de-
fendant, though at the time the building
was undergoing alterations, is suffi-
cient to raise a presumption of liability
against the owner. The court thought
that the principle was that when an
injury was caused by the negligence of
some person unknown, and such injury
was inflicted through the instrumen-
tality of property owned by the defend-
ant, such ownership was alone sufficient,
prima facie, to charge such owner with
PRESUMPTIONS OF NEGLIGENCE.
601
negligence. Clare v. National City
Bank, 1 Sweeny, 589.
It has also been held in New York,
in an action for death caused by a run-
away team, that as the ownership of
personal property draws to it the pos-
session, it will be assumed that a person
in charge of a horse and wagon of which
the defendant is owner is in the service
of the defendant ; and this, too, though
the supposed servant was at the time of
the accident engaged in a business which
appeared to be that of another person.
Norris v. Kohler, 41 N. Y. 42. See
Svenson v. Atlantic Steamship Co., 57
N. Y. 108.
But of course the horse must have
been under the control of the owner or
of his servant; otherwise, whether he
be let for hire or gratuitously, and but
for a short time, the owner will not be
liable. Herlighy v. Smith, 1 16 Mass.
265.
The Roman law contained some in-
teresting provisions upon this subject,
which still prevail in France, being in
some respects like our own law, in others
going beyond it. Domat, stating the
Roman and French law, says that he
who inhabits a house, whether he be
the proprietor of it, tenant, or other, is
liable for the damage which is caused
by any thing thrown out or poured out
of any place of the said house, whether
by day or by night; and this, too,
whether he himself threw it out, or any
of his family or domestics, though in
his absence and without his knowledge.
This rule was not in application limited
to streets, squares, and other public
places, but extended to all places where
the act occurred. If a man was killed
or wounded, the person who did the
act was liable to a criminal prosecu-
tion, and the master of the house to a
fine. If several persons inhabited the
same place whence any thing had been
thrown or poured out, all were liable,
unless it could be known who had done
the act. And if the master (owner or
chief tenant) of the house occupied only
a small part of it and let chambers, or
lodged friends in some of them, he was
answerable for the act of the person
whom he received into his house. But
if it should appear out of what room the
thing had been thrown, the action might
be brought either against the person
who was lodging in the room, or against
him who had the whole house ; and the
last would then have recourse against
the other. If any thing were hung out
from a building whence the fall of it
might do injury, he was liable to the
public, and, if damage were done, to a
further penalty to the person hurt. If
tiles fell from a house which was in good
condition, the fall being caused by a
storm, the proprietor or tenant was
not liable. But if the roof was in a
bad condition, he who was bound to
keep it in repair might be liable to
make good the damage that had hap-
pened, according to circumstances.
Domat, liv. 2, tit. 8, § 1 (Cushing's
ed.).
602 NEGLIGENCE.
Thomas et ux. v. Winchester.
(6 N. T. 397. Court of Appeals, July, 1852.)
Mistake in Label of Drug. The defendant, by the negligence of his agent, sold a quan-
tity of belladonna, a poisonous drug, put up and labelled as extract of dandelion,
a harmless medicine, to A., a druggist, who again so sold it to P., another drug-
gist, who so sold it to the feme plaintiff, to whom it was administered as dandelion.
Held, that the defendant was liable for the injury thereby caused.
The case is stated in the opinion of the court.
Charles P. Kirhland, for appellant, defendant below. N. Mill,
Jr., for respondents.
Ruggles, C. J., delivered the opinion of the court. This is
an action brought to recover damages from the defendant for neg-
ligently putting up, labelling, and selling as and for the extract of
dandelion, which is a simple and harmless medicine, a jar of the
extract of belladonna, which is a deadly poison ; by means of
which the plaintiff, Mary Ann Thomas, to whom, being sick, a
dose of dandelion was prescribed by a physician, and a portion of
the contents of the jar was administered as and for the extract
of dandelion, was greatly injured, &c.
The facts proved were briefly these : Mrs. Thomas being in ill
health, her physician prescribed for her a dose of dandelion. Her
husband purchased what was believed to be the medicine pre-
scribed, at the store of Dr. Foord, a physician and druggist in
Cazenovia, Madison County, where the plaintiffs reside.
A small quantity of the medicine thus purchased was adminis-
tered to Mrs. Thomas, on whom it produced very alarming effects ;
such as coldness of the surface and extremities, feebleness of cir-
culation, spasms of the muscles, giddiness of the head, dilation of
the pupils of the eyes, and derangement of mind. She recovered,
however, after some time, from its effects, although for a short
time her life was thought to be in great danger. The medicine
administered was belladonna, and not dandelion. The jar from
which it was taken was labelled " l lb. dandelion, prepared by
A. Gilbert, No. 108 John Street, N. Y. Jar, 8 oz." It was sold
for and believed by Dr. Foord to be the extract of dandelion as
labelled. Dr. Foord purchased the article as the extract of dan-
THOMAS V. WINCHESTER. 603
delion from James S. Aspinwall, a druggist at New York. Aspin-
wall bought it of the defendant as extract of dandelion, believ-
ing it to be such. The defendant was engaged at No. 108 John
Street, New York, in the manufacture and sale of certain vegeta-
ble extracts for medicinal purposes, and in the purchase and sale
of others. The extracts manufactured by him were put up in jars
for sale, and those which he purchased were put up by him in
like manner. The jars containing extracts manufactured by him-
self and those containing extracts purchased by him from others
were labelled alike. Both were labelled, like the jar in question,
as "prepared by A. Gilbert." Gilbert was a person employed by
the defendant at a salary, as an assistant in his business. The
jars were labelled in Gilbert's name because he had previously
been engaged in the same business on his own account at No. 108
John Street, and probably because Gilbert's labels rendered the
articles more salable. The extract contained in the jar sold to
Aspinwall, and by him to Foord, was not manufactured by the
defendant, but was purchased by him from another manufacturer
or dealer. The extract of dandelion and the extract of belladonna
resemble each other in color, consistence, smell, and taste, but
may, on careful examination, be distinguished the one from the
other by those who are well acquainted with these articles. Gil-
bert's labels were paid for by Winchester, and used in his busi-
ness with his knowledge and assent.
The defendant's counsel moved for a nonsuit on the following
grounds : —
1. That the action could not be sustained, as the defendant
was the remote vendor of the article in question, and there was
no connection, transaction, or privity between him and the plain-
tiffs, or either of them.
2. That this action sought to charge the defendant with the
ponsequences of the negligence of Aspinwall and Foord.
3. That the plaintiffs were liable to and chargeable with the
negligence of Aspinwall and Foord, and therefore could not
maintain this action.
4. That, according to the testimony, Foord was chargeable
with negligence, and that the plaintiffs therefore could not sus-
tain this suit against the defendant ; if they could sustain a suit
at all, it would be against Foord only.
5. That this suit, being brought for the benefit of the wife, and
604 NEGLIGENCE.
alleging her as the meritorious cause of action, cannot be sus-
tained.
6. That there was not sufficient evidence of negligence in the
defendant to go to the jury.
The judge overruled the motion for a nonsuit, and the defend-
ant's counsel excepted.
The judge, among 6ther things, charged the jury that if they
should find from the evidence that either Aspinwall or Foord was
guilty of negligence in vending as and for dandelion the extract
taken by Mrs. Thomas, or that the plaintiff Thomas, or those
who administered it to Mrs. Thomas, were chargeable with neg-
ligence in administering it, the plaintiffs were not entitled to
recover; but if they were free from negligence, and if the de-
fendant Winchester was guilty of negligence in putting up and
vending the extracts in question, the plaintiffs were entitled to
recover, provided the extract administered to Mrs. Thomas was
the same which was put up by the defendant, and sold by him to
Aspinwall, and by Aspinwall to Foord ; that if they should find
the defendant liable, the plaintiffs in this action were entitled to
recover damages only for the personal injury and suffering of the
wife, and not for loss of service, medical treatment, or expense
to the husband ; and that the recovery should be confined to the
actual damages suffered by the wife.
The action was properly brought in the name of the husband
and wife for the personal injury and suffering of the wife, and
the case was left to the jury with the proper directions on that
point. (1 Chitty on Pleadings, 62, ed. of 1828.)
The case depends on the first point taken by the defendant on
his motion for a nonsuit ; and the question is, whether the de-
fendant, being a remote vendor of the medicine, and there being
no privity or connection between him and the plaintiffs, the action
can be maintained.
If, in labelling a poisonous drug with the name of a harmless
medicine, for public market, no duty was violated by the defend-
ant, excepting that which he owed to Aspinwall, his immediate
vendee, in virtue of his contract of sale, this action cannot be
maintained. If A. build a wagon and sell it to B., who sells it
to C, and C. hires it to D., who, in consequence of the gross neg-
ligence of A. in building the wagon, is overturned and injured,
D. cannot recover damages against A., the builder. A.'s obliga-
THOMAS V. WINCHESTER. 605
tion to build the wagon faithfully arises solely out of his contract
with B. The public have nothing to do with it. Misfortune to
third persons, not parties to the contract, would not be a natural
and necessary consequence of the builder's negligence ; and such
negligence is not an act imminently dangerous to human life.
So, for the same reason, if a horse be defectively shod by a
smith, and a person hiring the horse from the owner is thrown
and injured in consequence of the smith's negligence in shoeing,
the smith is not liable for the injury. The smith's duty in such
case grows exclusively out of his contract with the owner of the
horse ; it was a duty which the smith owed to him alone, and to
no one else. And although the injury to the rider may have hap-
pened in consequence of the negligence of the smith, the latter
was not bound, either by his contract or by any considerations of
public policy or safety, to respond for his breach of duty to any
one except the person he contracted with.
This was the ground on which the case of Winterbottom v.
Wright, 10 Mees. & Welsb. 109, was decided. A. contracted
with the postmaster-general to provide a coach to convey the
mail-bags along a certain line of road, and B. and others also
contracted to horse the coach along the same line. B. and his
co-contractors hired C, who was the plaintiff, to drive the coach.
The coach, in consequence of some latent defect, broke down ;
the plaintiff was thrown from his seat and lamed. It was held
that C. could not maintain an action against A. for the injury
thus sustained. The reason of the decision is best stated by
Baron Rolfe. A.'s duty to keep the coach in good condition was
a duty to the postmaster-general, with whom he made his con-
tract, and not a duty to the driver employed by the owners of the
horses.
But the case in hand stands on a different ground. The
defendant was a dealer in poisonous drugs. Gilbert was his
agent in preparing them for market. The death or great bodily
harm of some person was the natural and almost inevitable conse-
quence of the sale of belladonna by means of the false label.
Gilbert, the defendant's agent, would have been punishable for
manslaughter if Mrs. Thomas had died in consequence of taking
the falsely labelled medicine. Every man who, by his culpable
negligence, causes the death of another, although without intent
to kill, is guilty of manslaughter. 2 R. S. 662, § 19. A chemist
606 NEGLIGENCE.
who negligently sells laudanum in a phial labelled as paregoric,
and thereby causes the death of a person to whom it is adminis-
tered, is guilty of manslaughter. Terrymond's Case, 1 Lewin's
Crown Cases, 169. " So highly does the law value human life,
that it admits of no justification wherever life has been lost and
the carelessness or negligence of one person has contributed to
the death of another. Regina v. Swindall, 2 Car. & Kir. 232, 233.
And this rule applies not only where the death of one is occa-
sioned by the negligent act of another, but where it is caused by
the negligent omission of a duty of that other. 2 Car. & Kir. 368,
371. Although the defendant Winchester may not be answer-
able criminally for the negligence of his agent, there can be no
doubt of his liability in a civil action, in which the act of the
agent is to be regarded as the act of the principal.
In respect to the wrongful and criminal character of the neg-
ligence complained of, this case differs widely from those put by
the defendant's counsel. No such imminent danger existed in
those cases. In the present case the sale of the poisonous arti-
cle was made to a dealer in drugs, and not to a consumer. The
injury, therefore, was not likely to fall on him, or on his vendee,
who was also a dealer, but much more likely to be visited on a
remote purchaser, as actually happened. The defendant's neg-
ligence put human life in imminent danger. Can it be said that
there was no duty on the part of the defendant to avoid the cre-
ation of that danger by the exercise of greater caution ? or that
the exercise of that caution was a duty only to his immediate
vendee, whose life was not endangered ? The defendant's duty
arose out of the nature of his business, and the danger to others
incident to its mismanagement. Nothing but mischief like that
which actually happened could have been expected from sending
the poison falsely labelled into the market ; and the defendant is
justly responsible for the probable consequences of the act. The
duty of exercising caution in this respect did not arise out of the
defendant's contract of sale to Aspinwall. The wrong done by
the defendant was in putting the poison, mislabelled, into the
hands of Aspinwall as an article of merchandise to be sold and
afterwards used as the extract of dandelion, by some person then
unknown. The owner of a horse and cart, who leaves them un-
attended in the street, is liable for any damage which may result
from his negligence. Lynch v. Nurdin, 1 Ad. & Ellis, n. s. 29 ;
THOMAS V. WINCHESTER. 607
Illidge v. Goodwin, 5 Car. & Payne, 190. The owner of a loaded
gun who puts it into the hands of a child, by whose indiscretion
it is discharged, is liable for the damage occasioned by the dis-
charge. 5 Maule & Sel. 198. The defendant's contract of sale
to Aspinwall does not excuse the wrong done to the plaintiffs.
It was a part of the means by which the wrong was effected.
The plaintiffs' injury and their remedy would have stood on the
same principle, if the defendant had given the belladonna to Dr.
Foord without price, or if he had put it in his shop without his
knowledge, under circumstances which would probably have led
to its sale on the faith of the label.
In Longmeid v. Holliday, 6 L. & Eq. 562, the distinction is rec-
ognized between an act of negligence imminently dangerous to
the lives of others and one that is not so. In the former case,
the party guilty of the negligence is liable to the party injured,
whether there be a contract between them or not ; in the latter,
the negligent party is liable only to the party with whom he con-
tracted, and on the ground that negligence is a breach of the
contract.
The defendant, on the trial, insisted that Aspinwall and Foord
were guilty of negligence in selling the article in question for
what it was represented to be in the label ; and that the suit,
if it could be sustained at all, should have been brought against
Foord. The judge charged the jury that if they, or either of
them, were guilty of negligence in selling the belladonna for dan-
delion, the verdict must be for the defendant ; and left the ques-
tion of their negligence to the jury, who found on that point for
the plaintiff. If the case really depended on the point thus raised,
the question was properly left to the jury. But I think it did
not. The defendant, by affixing the label to the jar, represented
its contents to be dandehon, and to have been " prepared " by
his agent, Gilbert. The word " prepared " on the label must be
understood to mean that the article was manufactured by him,
or that it had passed through some process under his hands which
would give him personal knowledge of its true name and quality.
Whether Foord was justified in selling the article upon the faith
of the defendant's label, would have been an open question in an
action by the plaintiffs against him ; and I wish to be understood
as giving no opinion on that point. But it seems to me to be
clear that the defendant cannot, in this case, set up as a defence,
608
NEGLIGENCE.
that Foord sold the contents of the jar as and for. what the defend-
ant represented it to be. The label conveyed the idea distinctly
fo Foord that the contents of the jar was the extract of dande-
lion, and that the defendant knew it to be such. vSo far as the
defendant is concerned, Foord was under no obligation to test
the truth of the representation. The charge of the judge, in
submitting to the jury the question in relation to the negli-
gence of Foord and Aspinwall, cannot be complained of by the
defendant.
Gardiner, J., concurred in affirming the judgment, on the
ground that selling the belladonna without a label indicating that
it was poison, was declared a misdemeanor by statute (2 R. S.
694, § 23), but expressed no opinion upon the question whether,
independent of the statute, the defendant would have been liable
to these plaintiffs. Judgment affirmed.
Causation. — There is no difficulty
with those cases in which the chain of
causation runs back through a series
of (albeit human) machines. . The law
permits, or rather requires, that the
chain should be traced back to him who
set in motion the dangerous element.
This has been settled ever since Scott
v. Shepherd, 3 Wils. 403, was decided.
This was the case of the lighted squib
thrown by the defendant into the mar-
ket-house on fair-day, which A., B., and
C. had caught up convulsively, as it
were, from their booths and thrown out,
until at last it struck the plaintiff in the
eye. The question at issue was whether
trespass or case was the proper form of
action ; but no doubt was entertained,
even by the dissenting judge (Mr. Jus-
tice Blackstone), that case was main-
tainable against the defendant. The
language of Chief Justice De Grey is
often cited. " The throwing the squib
by the defendant," said he, "was an
unlawful act at common law ; the squib
had a natural power and tendency to
do mischief indiscriminately, but what
mischief, or where it would fall, none
could know. The fault egreditur e per-
sona of him who threw the squib. It
would naturally produce a defence to
be made by every person in danger of
being hurt thereby ; and no line can be
drawn as to the mischief likely to hap-
pen to any person in such danger. The
two persons, Willis and Ryall, did not
act with, or in combination with, the
defendant, and their removal of the
squib for fear of danger to themselves
seems to me to be a continuation of the
first act of the defendant until the ex-
plosion of the squib. No man contracts
guilt in defending himself; the second
and third man were not guilty of any
trespass, but all the injury was done by
the first act of the defendant. ... I
conceive all the facts of throwing the
squib must be considered as one single
act; namely, the act of the defendant;
the same as if it had been a cracker
made with gunpowder which had
bounded and rebounded again and
again before it had struck out the
plaintiff's eye." It follows, of course,
that none of the intermediate persons
could be liable.
CAUSATION.
609
Except in a single instance, this case
has always been accepted as authority.
In Fitzsimmons v. Inglis, 5 Taunt. 534,
538, a case for which Scott v. Shepherd
could afford little analogy, the reporter
states that " the court slighted the au-
thority of this case," — whether merely
as to the form of the action or further
does not appear.
In Vandenburgh v. Truax, 4 Denio,
464, the plaintiff sued the defendant for
the loss of a quantity of wine. It ap-
peared that the defendant, having a
quarrel with a boy in the street, chased
him with a pickaxe into the plaintiffs
store ; and the boy, in endeavoring to
keep out of the reach of his pursuer,
ran against and knocked out the faw-
cett from a cask of wine, by means of
which the loss complained of occurred.
It was held that the plaintiff could re-
cover.
So, in McDonald v. Snelling, 14 Al-
len, 2'JO, where by the defendant's neg-
ligence his horse ran into another's
sleigh and frightened the horses, caus-
ing them to run into the plaintiff's
sleigh, it was held that the defendant
was liable. "It is clear from numer-
ous authorities," said the court, "that
the mere circumstance that there have
intervened between the wrongful cause
and the injurious consequence acts pro-
duced by the volition of animals or of
human beings does not necessarily make
the result so remote that no action can
be maintained."
The pl.untiff himself may have be-
come paralyzed with fright or fear, or
have been caused to make a sudden
and, as it were, involuntary start, which
threw him against the calamitous agent;
but, if this was merely the effect of the
action of the defendant, the connection
between the damage which ensued and
the defendant, who caused the fright
or start, remains unbroken. Thus, in
Coulter v. American Express Co., 6
Lans. 67, the plaintiff brought an ac-
tion for damages sustained by jumping
against the wall of a building. The evi-
dence was that she was alarmed by the
driving of the driver in charge of the
defendant's express wagon, which he
had driven upon the sidewalk behind
and near her, and sprang suddenly
aside and was injured by striking her
face against the wall of the building.
She was allowed to recover damages,
on the ground that she had not been
guilty of negligence. The action of the
driver was therefore the cause of the in-
jury. The case was reversed in the
Court of Appeals, but not upon this
point. 56 N. Y. 585. We have here
the key to the doctrine of contributory
negligence; but that subject remains to
be presented hereafter.
See further, as to intervening agencies
of the kind represented by Scott i\ Shep-
herd, Guille v. Swan, 19 Johns. 381 ;
Fairbanks v. Kerr, 70 Penn. St. 86 ;
Wharton, Negligence, §§ 93, 94.
The principal case, Thomas v. Win-
chester, is two steps removed from
Scott v. Shepherd. 1. The intermedi-
ate persons between the plaintiff and
defendant were not machines, but acted
freely and deliberately, on their own
account, in disposing of the poison.
2. The plaintiff had to bring his action
through the midst of contracting par-
ties. We propose to consider each of
these facts at some length.
It is true that in Thomas v. Win-
chester the poison passed through the
hands of several persons, acting freely,
as principals, and without excitement
or hurry; but that is not enough to
break the connection between the plain-
tiff and the defendant. Had negligence
been found against Mr. Aspinwall; the
610
NEGLIGENCE.
chain of causation must have been
broken between the plaintiff and the
defendant. It could not then have been
shown that the same result would have
certainly happened had he not been
negligent. If he had not been guilty
of negligence, the fact of the mistake
might have been discovered before any
,evil consequences had ensued. And if
it could not be said that the result would
have inevitably occurred by reason of
the defendant's negligence, it could not
be found that it had so occurred. The
plaintiff, therefore, could not make out
his case.1
This is the ground upon which Car-
ter v. Towne, 103 Mass. 507, was de-
cided. Gunpowder had been sold to
a boy eight years old, who had taken it
home and put it into a cupboard where
it lay for more than a week, with the
knowledge of his parents, or, in their
absence, of an aunt who had charge of
him. His molher gave him some of
the powder, which he fired off with her
knowledge; and this was done a second
time, when the boy was injured by the
explosion. An action was now brought
on his behalf against the seller of the
powder ; and the defendant was held
not liable. Though he had been neg-
ligent in selling the powder to the boy,
the connection of that negligence with
the injury had been broken by the neg-
ligence of the boy's parents and aunt.
Had they not been negligent, the acci-
dent might not have happened. The
plaintiff could not prove what was in-
cumbent upon him ; to wit, that the dam-
age was caused by the defendant. See
8. c. 98 Mass. 567.
In Powell v. Deveney, 3 Cush. 300,
the defendant's servant left a truck
standing beside a sidewalk in a public
street, with the shafts shored up in the
usual way. Another truckman tempo-
rarily left his loaded truck directly op-
posite on the other side of the street,
after which a third truckman tried to
drive his truck between the two others.
In attempting to do so with due care,
he hit the defendant's truck in such a
manner as to whirl its shafts round on
the sidewalk and cause them to strike
the plaintiff and injure her. It was held
that the defendant, was liable.
So, too, in the case of a dangerous
article shipped through a carrier who
has no notice of the dangerous charac-
ter of the thing, the former is liable to
one who is injured by the article (with-
out his own fault), because in such case
there has been no intervening fault to
break the chain of connection ; but it
is otherwise if the carrier have notice
of the character of the article, for "he
who negligently meddles with a danger-
ous agency is liable for the damage."
Wharton, Negligence, § 90. The car-
rier, on being informed of the nature of
the package or article, should decline
to receive it ; otherwise, upon a prin-
ciple analogous to that of Fletcher v.
Rylands, ante, p. 492, he will be liable.
1 Such antecedents are sometimes spoken of as the remote cause, in distinction from the
nearer ones as the proximate cause; but, in truth, as we have seen, the former is no cause at
all. There is but one cause in the case supposed, and that is the intermediate negligence
of A. And, generally, the terms " proximate " and "remote," when applied to causation, are
as wrong as they are here. With this caution, we quote a very just observation from the
opinion of the learned Mr. Justice Miller, in Insurance Co. v. Tweed, 7 Wall. 44, 52 "One
of the most valuable of the criteria furnished us by these authorities is to ascertain whether
any new cause Una intervened between the fact accomplished and the alleged cause. If a new
force or power has intervened of itself sufficient to stand as the cause of the misfortune, the
other must be considered as too remote."
CAUSATION.
611
If the intermediate parties, however, be
free from fault, it cannot matter, upon
the doctrine of the principal case, how
many hands the article may have passed
through; the shipper will be liable.
Farrant i. Barnes, 11 Com. B. n. s.
r>6i. See George v. Skivington, Law
R. 5 Ex. 1 ; Wellington r. Downer Oil
Co., 104 Mass. 64.
If the action be in fact or in sub-
stance ex contractu, or, more accurately,
if a contractual relation exist between
the plaintiff and the defendant, it will
not affect the question of the latter's
liability that the negligence of a third
person intervened and produced the
damage; for the defendant is bound by
his contract. Thus, in Eaton v. Bos-
ton & L. R. Co., 11 Allen, 500, in
which the plaintiff sued the defendants
as carriers of passengers for injuries
sustained, the defence was that the in-
juries were caused by another train
running into that in which the plaintiff
was riding, and by other intervening
negligent agencies, over which the de-
fendants had no control ; but the court
properly decided that this was no de-
fence. " At the time of the injury com-
plained of," said Colt, J., " the relation
of passenger and carrier existed by con-
tract between the plaintiff and the de-
fendants ; they had received the plain-
tiff upon their cars, and were bound to
the exercise of all that care and caution
which the relation imposes. . . . And
it is no answer to an action by a pas-
senger against a carrier that the neg-
ligence or trespass of a third party
contributed to the injury. These prop-
ositions would be more manifest if this
action had been brought in form upon
the implied undertaking of the defend-
ants ; but the plaintiff may elect to sue
in tort or contract, and the rule of duty
is the same in either form of action."
That is, the plaintiff having a right to
sue in contract in such cas ■, in which
form of action the intermediate negli-
gence would. have been no defence, it
cannot be set up in bar of the right to
damages, though the plaintiff have sued
in tort.
A recent English case affords another
example of the same kind. The defend-
ants were under contract to supply the
plaintiffs with a proper gas-pipe. Gas
escaped from a defect in this pipe, and
the servant of a third person negli-
gently took a lighted candle into the
room from whence the escape proceeded,
and the result was an explosion, caus-
ing damage to the plaintiff's stock and
premises. It was held in the Court of
Exchequer, and afterwards in the Ex-
chequer Chamber, that the plaintiff was
entitled to recover for the damage sus-
tained. Burrows v. March Gas Co.,
Law R. 5 Ex. 67 ; s. C. Law R. 7 Ex..
96. Two of the judges in the former
court rested the liability of the defend*
ants on the ground of joint negligence
between them and the third person ; but
the third, Martin, B., rested it correctly
on the ground of contract ; and upon
this ground the judgment was affirmed
on the appeal. Coekburn, C. J., who
delivered the opinion of the Exchequer
Chamber, said : " The action is not for
negligence in its ordinary sense, but
for the breach of a contract whereby
the defendants promised to supply the
plaintiff with a proper and sufficient
service-pipe from their mains to a gas-
meter within his premises ; and the
question is, whether there has been a
breach of this contract. There can be
no doubt that there has been a breach."
This is the true and only ground
upon which the case can be sustained,
unless our discussion of causation is
radically wrong. Had the negligence
612
NEGLIGENCE.
of the defendants and the third person
been concurrent, instead of successive,
then they would have been liable, irre-
spective of the existence of a contract ;
they would have been liable to stran-
gers, upon the principle that co-tort-
feasors are each and all liable for the
common tort. But, with all respect
to the two learned judges in the Ex-
chequer, the negligence was not joint,
but successive ; and in such cases we
apprehend that the true question is
(not whether the defendant's conduct
afforded the means for the intervening
party tp do the act which resulted in
the injury, but), whether the plaintiff
can prove that the defendant's conduct
caused the damage. This he cannot do,
for reasons already stated, if there was
intervening fault which resulted in the
calamity. See Lannen v. Albany Gas
Co., 44 N. Y. 459, a. similar case to the
above, except that the explosion was
caused by the defendants' servant.
Allison v. Western R. Co., 64 N. Car.
382.
There are other cases, however,
which are inconsistent with the above
view ; but we think they cannot be sus-
tained. Thus, in Midge v. Goodwin,
5 Car. & P. 190, it appeared that the
owner of a horse had negligently left
bim standing before his cart in the
street, when a passer-by struck the
animal and caused him to back into
the plaintiff's window; and it was held
at nisi prius that the owner of the
horse was liable. Now, if by this it is
meant that every owner of a horse is
liable for damage committed by him
through the misconduct of a stranger,
simply because he, the owner, has left
his horse unguarded, the case is not
law. But it may have been that the
evidence showed that the horse had at-
tempted to bite the passer-by ; and, if
so, the jury or court may not have
thought the man to blame for retali-
ating.
In order to break the connection, the
intervening act must in fine have been
so far from the natural and usual result
of the defendant's negligence as either
to show clearly that the defendant's
act or omission did not cause the dam-
age, or to raise a presumption that it
did not.
It is true, the intervention of any
agency prevents the plaintiff from be-
ing able to prove that the defendant
caused the act. Thomas v. Winchester
is itself an example ; and so is Scott v.
Shepherd. Had it not been for the act
of the intermediate parties, the plain-
tiff probably would not have suffered
injury. The doctrine of causation may
not, therefore, hold absolutely good.
But the law seeks fault and responsi-
bility ; its object being reparation.
And, as in the one case the interme-
diate agent only accomplished the gen-
eral purpose of the defendant, — the sale
of the drug, — and in the other only
the natural and- inevitable sequence of
the act, the law properly considers the
first party as still acting down to the
happening of the calamity. The in-
termediate parties in either case were
but vehicles for the transmission of
the dangerous article. In any other
view, supposing the intermediate per-
sons to act independently of the pur-
pose or nature of the first party, the
latter could not be liable. The law
cannot hold the first party liable if the
second acts contrary to his obvious
purpose or the nature of his act. See
Davidson v. Nichols, 11 Allen, 514,
where a harmless chemical preparation
became explosive only by mixture with
another substance; and this being a use
which was not intended, the defendant
BREACHES OF CONTRACT.
613
was held not liable for the damage so
caused.
So, too, the rise of a whirlwind, or an
unexpected storm, or other act which
ma}- be embraced under the term via
major, may intervene between the neg-
ligence of the defendant and the dam-
age ; and as such things do not happen
as the natural sequence of the defend-
ant's act or omission, he cannot be lia-
ble. See a learned consideration of
this and kindred points in Wharton,
Negligence, §§ 114-130.
Breaches of Contract. — But in
Thomas v. Winchester, the plaintiff sued
one of the parties to a contract in which
he had no interest, in respect of a wrong
(the negligent labelling and vending of
the drug) which was also a breach of
this contract. It is true, the circum-
stances of the case were such that the
court was able to distinguish it from
those English cases in which it has been
held that none but the parties to a con-
tract can sue for its breach. The court,
in Thomas v. Winchester, say that the
sale of belladonna as dandelion would
naturally and almost inevitably result
in injury ; while it is not generally the
natural and necessary consequence of
the breach of a contract to injure third
persons.
Although this is an obvious ground
of distinction, we apprehend that it was
not necessary to take it. We doubt if
the English courts would accept it. In
Collis v. Selden, infra, the damage was
as natural and probable as that in
Thomas v. Winchester. The Eng-
lish doctrine proceeds upon the broad
ground that the damage in such cases
arises from the breath of a contract,
and that third persons, having no inter-
est in the contract, can have no rights
growing out of its breach.
The subject first came under the no-
tice of the English courts in the well-
known case of Langridge v. Levy, 2
Mees. & W. 519; s. c. 4 Mees. & W.
337. The plaintiff recovered, though
not a contracting party with the defend-
ant; but the ground of the decision was,
that the defendant knew that the dan-
gerous article (a gun) was to be used
by the plaintiff.
In the next case, no such fact ap-
peared, and the right of action was
denied. Winterbottom v. Wright, 10
Mees. & W. 109, the case referred to
in Thomas v. Winchester, of the action
by the stage-driver against the con-
tractor for the supply of mail-coaches.
Lord Abinger and Alderson, B., give
no reason for the decision, except that
to allow the action would be to extend
the right to limitless persons, — a not
very satisfactory reason. Rolfe, B.,
said that the plaintiff's declaration al-
leged the duty as growing out of the
contract with the Postmaster-General.
How the case would have struck him
had a general duty, regardless of con-
tract, been alleged, does not appear.
These cases have recently been fol-
lowed by two others. Collis v. Selden,
Law R. 3 Com. P. 495, and Playford
v. United Kingdom Tel. Co., Law R.
4 Q. B. 706 ; s. c. 10 Best & S. 759.
In the former, the plaintiff sued for in-
juries resulting from the fall of a chan-
delier in a public-house. The declara-
tion alleged that defendant wrongfully,
negligently, and improperly hung a
chandelier in the public-house, know-
ing that the plaintiff and others were
likely to be therein and under the chan-
delier, and that the chandelier, unless
properly hung, was likely to fall upon
and injure them ; and that, the plaintiff
being lawfully in the public-house, the
chandelier fell upon and injured him.
To this there was a demurrer, which
614
NEGLIGENCE.
was sustained. It was held that, not-
withstanding the form of the declara-
tion, the ease fell within the principle
of Winterbottom v. Wright, supra. It
was conceded, however, that if there
had been an allegation that the defend-
ant knew that the chandelier was im-
properly hung, the action might have
been maintained. The case would then
have come within Langridge v. Levy.
See Longmeid v. Holliday, 6 Ex. 766 ;
George v. Skivington, Law R. 5 Ex. 1 ;
also the form of the declaration in Wel-
lington v. Downer Oil Co., 104 Mass.
64. Byles, J., said that negligence
alone was not enough ; it must be
shown that there was some breach of
duty. As to that, it did not appear
what capacity the defendant filled, or
who and what the plaintiff was, whether
a guest or bare licensee.1
Playford v. United Kingdom Tel.
Co., supra, was an action for negli-
gence by the person to whom a mes-
sage had been erroneously transmitted
by the defendants. The court held that
the action could not be maintained, on
the ground that the obligation of a tel-
egraph company to use due care and
skill in the transmission of message's
arose entirely out of contract ; that the
defendants' charter had not affected the
relation of the company to the sender
or the receiver of a despatch; and that,
the contract having been made with the
sender of the message, the plaintiff had
no right of action. These are the chief
English cases upon the point.
With all respect for the English
courts, we apprehend that it is a mis-
take to suppose that the plaintiff's cause
of action is necessarily the breach of a
contract. The fact that a contract ex-
isted, and was broken at the same time
and by the same act or omission by
1 But quaere, if that could be material
which the plaintiff's cause of action
arose, is only one of the accidents of the
situation. The defendant owed, in re-
spect of the same thing, two distinct
duties : one of a special character to
the party with whom be contracted, and
one of a general character to others.
The latter, it must be conceded, had an
existence before the contract was en-
tered into. A carriage-maker allows the
plaintiff to try a carriage, with a view
to effecting a sale ; and, owing to neg-
ligence in its construction, the carriage
breaks down and injures the plaintiff.
This is a good cause of action; and
yet there was no contract. A clerk in
a drug-store goes to a phial labelled
with a drug used for curing the tooth-
ache, and, applying some of the con-
tents to his tooth, becomes badly poi-
soned; the manufacturer having wrongly
labelled the phial. Has not the clerk
(his employer not being at fault) as
good a cause of action against the man-
ufacturer as if he had bought the drug
of him? The duty, therefore, does not
grow out of the contract, but exists be-
fore and independently of it. The fact
might be shown by many cases. See,
for instance, the class of eases in which
a passenger without hire has been held
entitled to recover of a carrier for dam-
age sustained by reason of negligence.
Nolton v. Western R. Corp., 15 N. Y.
444; Derby v. Reading R. Co., 14 How.
468 ; or those in which a party is lia-
ble for the negligent performance of an
agreement made without consideration.
Gill v. Middleton, 105 Mass. 477.
What, then, becomes of this duty
when the contract of sale is consum-
mated with the intermediate party?
How is it possible that an obligation
due to third persons can be discharged
without their consent, by the mere
in an action not against the landlord ?
BREACHES OP CONTRACT.
615
formation of a new obligation of a dif-
ferent character with a particular per-
son? What does it mean when it is
said that even this contractee may sue
in tort or in contract for his damages ?
Certainly nothing, unless that the orig-
inal duty which the defendant, before
the contract, owed to all alike still
survives, even towards his contractee ;
and, if the original duty is not merged
towards the contractee by the contract,
it would be strange if it could be merged
towards strangers. The breach of duty
declared upon, therefore, after the con-
tract, is the very same breach of duty (or
may be, if the plaintiff declares prop-
erly) for which he would have declared
had no contract intervened.
The original and more extensive duty
cannot be lost in the subsequent lim-
ited duty. A man may part with his
rights, but he cannot cancel his lia-
bilities without the consent of those to
whom they are due. And we speak ad-
visedly when we call duties of the wider
class obligations and liabilities. Men
are bound to perform duties arising
dehors contract as fully as they are those
arising from express agreement. In
the foreign law the former duties are
always described as obligations. And
if they are as binding as contracts, it
is not easy to see how they can be dis-
charged by the mere act of the party
who owes them.
A man does not diminish his duties
to the world by entering into a contract
with one or two persons. Rather, by
imposing a new duty upon the rest of
the world, — that of refraining from in-
terfering with the performance and suc-
cess of his contract, — he generates a
new duty, in addition to the original
obligation, — the duty of so perform-
ing that contract as not to unnecessarily
interfere with the affairs of others.
Suppose a servant were sent by his
master to a shop to buy a carriage, and
that in riding home with the purchase
the carriage should break down from a
defect in its construction, and that the
servant should be so badly injured as to
have to suffer the amputation of an arm.
Now, he could not maintain an action
against his master, and his master could
only recover the price paid for the car-
riage and the loss of the injured man's
services. Can it be that the English
law denies a remedy to the unfortunate
man against the negligent carriage-
maker ? He would clearly have a right
of action, as we have seen, if he were
only trying the carriage.
Compare the right of action by a ser-
vant against a railway company for in-
juries sustained while travelling on their
line, though the servant himself paid no
fare; the only contract being made with
the master. Marshall v. York, &c, Ry.
Co., 11 Com. B. 655. And see Aus-
tin t'. Great Western Ry. Co., Law R.
2 Q. B. 4-12. In the first case cited,
Jervis, C. J., said : " Upon what prin-
ciple does the action lie at the suit of
the servant for his personal suffering P
Not by reason of any contract between
him and the company, but by reason
of a duty implied by law to carry him
safely."
Austin v. Great Western Ry. Co.,
supra, was the case of an injury by a
carrier of passengers to a young child
carried in its mother's arms, for which
she had paid no fare, though the child
was " over age ; " and the action was
sustained. Several of the judges at-
tempted to sustain the decision on the
ground of contract; but Mr. Justice
Blackburn took the true ground, that
of a violation of a general duty. Re-
ferring to the doctrine of Marshall v.
York, &c, Ry. Co., supra, as correct,
616
NEGLIGENCE.
he said : "It was there laid down that
the right which a passenger by railway
has to be carried safely, does not depend
ore his having made a contract, but that
the fact of his being a passenger casts
a duty on the company to carry him
safely."
V Nor has the doctrine of Winterbot-
tom v. Wright, when pressed upon the
court, been fully accepted even in Eng-
land. In Dalyell v. Tyrer, El., B. & E.
899, A. had let to B. his steam ferry, with
its master and crew, and C, a passen-
ger for hire paid to B., had been injured
by a breach of A.'s contract with B., to
wit, by the mismanagement of A.'s crew ;
and C. was held entitled to maintain
an action against A., the owner of the
ferry. In the course of the argument
for the defendants, counsel objected that
the cause of action was tort founded
upon contract; to which Erie, J., re-
plied, " But, in case of misfeasance, is
not the person immediately guilty of it
liable, at all events-, as well as the con-
tracting party ? " And again, in reply to
the argument that the plaintiff, not hav-
ing paid fare to the defendants, was not
a passenger for hire, the same judge
said, "If Hetherington [B., ut supra']
pays the defendants for the use of the
ship to carry the plaintiff, and they do
so carry him, are they not retained for
hire and reward to carry the plaintiff?
Suppose A., at B.'s request, pays a sur-
geon to attend B., and the surgeon mal-
treats B., is not the surgeon liable at
the suit of B ? "
Finally, in overruling the motion for
a new trial, Mr. Justice Erie said: "I
take it to be shown by the evidence
that the plaintiff had made a contract
with Hetherington to be conveyed
across the ferry ; and, for the purpose
of being so conveyed, went on board
the vessel hired, with its crew, for that
purpose by Hetherington from the de-
fendants, and while on board suffered
injury from the negligence of the crew.
The question is, are the defendants lia-
ble for that negligence ? They were, by
their crew, in possession of the vessel ;
and I am of opinion that if the negli-
gence in question had injured a mere
stranger, not on board, but standing,
for instance, on the pier at the time,
they would have been liable. That is
established by Quarman v. Bennett, 6
Mees. & W. 499, and Fenton v. Dub-
lin Steam Packet Co., 8 Ad. & E. 835.
Then, can the plaintiff lose a right of
action which he would have had as a
stranger merely because he was a pas-
senger for hire paid to Hetherington,
and not to the defendants ? He clearly
loses no right of action against them,
though he may possibly acquire an
additional right against Hetherington.
Pippin v. Sheppard, 11 Price, 400;
Gladwell v. Steggall, 5 Bing. N. C.
733 ; and Marshall v. York, Newcastle
& B. Ry. Co., 11 Com. B. 655, decide
that the question whether there was an
actual retainer of the defendants by the
plaintiff for hire does not affect their
liability for negligence of this char-
acter "
But even upon the view that no pre-
vious general duty exists, and assum-
ing that the only duty cast upon the
defendant grows out of a contract with
a third person, it is difficult to under-
stand why he may not owe a duty to
the plaintiff to perform that contract
properly, as well as to the third per-
son. The plaintiff, it is true, unlike
the co-contractor, could not maintain
an action for a breach of such duty un-
less he should sustain damage thereby ;
but, if he has suffered injury, what rea-
son exists why he should not be indem-
nified? The plaintiff can require the
BREACHES OF CONTRACT.
617
defendant so to perform his duties to
the other party to the contract as not
to injure him (the plaintiff), in case of
a. fulfilment of the contract, on the prin-
ciple sic utere tuo etc. ; then why not in
a case where the defendant has added
to this injury an injury to another per-
son ?
The reason generally urged against
allowing an action to one not a party to
the contract is, that it subjects the first
party at fault to an endless liability.
See Winterbottom v. Wright, 10 Mees.
& W. 109; Davidson v. Nichols, 11
Allen, 514. Thus, it is said that the
builder of a railway carriage should be
liable, in case of an accident which hap-
pened through a defect in the construc-
tion of the carriage, to each passenger
who sustained an injury thereby. David-
son v. Nichols, supra. But this is true
in many cases, whether the right of ac-
tion under consideration be given or
not. The owner of a boiler is often
liable to all who may be injured by an
explosion which occurs through a defect
in its making ; and upon a recovery by
them, he may bring an action against
his vendor for the breach of the latter's
contract, and recover the sum which he
was compelled to pay to the first suitors.
And so on back to the manufacturer.
In many cases, however, it is difficult
to trace the defect back to the manu-
facturer; and the difficulty increases
with time and use. The consequence
is, that the action will generally be
brought against the owner, or, if the
owner be himself the sufferer and plain-
tiff, against his vendor on the warranty.
The evils supposed to be in the train of
the principle are imaginary.
The article used must, of course, be
used for the purpose for which it was
intended, or the manufacturer or owner
will not be liable ; for the plaintiff could
not show that injury would certainly
have happened in the proper use of the
article ; and the connection is broken
by his or another's fault. Comp. David-
son v. Nichols, 11 Allen, 514. And
this is probably all that the allegation
that defendant knew the nature of the
article, and intended the use made ofA,
it — as in Wellington v. Downer Oil
Co., 104 Mass. 67 — means. But we
think that so long as the article is used
as the manufacturer intended, he should
be liable for any negligence which the
plaintiff can prove him or his servants
guilty of in its construction ; though the
alleged breach of duty involved also a
breach of contract with some one else.
The plaintiff has suffered an injury, for
which the defendant was at fault ; and
we think we have shown that this fault
involved a breach of duty to the plain-
tiff.
Of course, for a total failure to per-
form the contract, a third person could
not maintain an action ; the duty arises
only when performance is undertaken.
In other words, there must be a mis-
feasance. See the telegraph cases to
be presently considered.
The American authorities have not
generally fallen into this difficulty. It
is true that the doctrine of Winterbot-
tom v. Wright is recognized in the
principal case ; and there are other
cases of which the same may be said.
Loop v. Litchfield, 42 N. Y. 351;
Albany v. Cunliff, 2 Comst. 165;
Coughtry v. Globe Woollen Co., 56
N. Y. 124, infra; Losee v. Clute, 51
N. Y. 494. See also Davidson v.
Nichols, 11 Allen, 514, 517. But,
aside from some of the New York
cases, it will generally be found that
this was unnecessary, and that there
has been little direct following of that
case in this country.
618
NEGLIGENCE.
In Coughtry v. Globe Woollen Co., even gratuitously obtained (Gill v. Mid-
56 ST. Y. 124, the Court of Appeals of dleton, 105 Mass. 477), shows that the
New York, while expressing approval liability for the original negligence sur-
of the English rule, have, we appre- vives the change of control.
hend, departed from it. In that case,
certain contractors for making a cor-
nice for' the defendant agreed to put
up any staging necessary for the work ;
and this was done. But owing to de-
fective construction, the staging fell,
and killed the plaintiff's intestate, a
workman on the scaffold in the employ
of the contractors. It was held that
the defendant was liable ; the ground
taken being that the deceased was
killed by an erection on the defend-
ant's premises, put there for the ac-
commodation of the workmen. Win-
terbottom v. Wright was distinguished
on the ground that the defendant did
not own or run the coach, that it was
not in his possession or control, and
that he did not invite any one to enter
it. And as to Losee v. Clute, 51 N. Y.
494, supra, where a boiler exploded in
the hands of a vendee, and injured the
plaintiff," who was held to have' no right
of action against the manufacturer, it
was said that the defective article had
been sold and delivered to the pur-
chaser ; and he had no longer any con-
trol over it.
But no such ground as this is taken
in the English cases ; and it is difficult
to understand it. If the injury occurs
by reason of the defendant's default,
what matters it that he had not control
over the thing at the time ? The change
of control is nothing, unless the original
defect has been increased thereby, so
that it cannot be proved that the orig-
inal negligence of the defendant caused
the damage. The very fact that the de-
fendant is liable to the party having con-
trol of the thing, when this control was
The whole difficulty consists in prov-
ing that the original defect was the
cause of the action. But that is a
question of fact; if the plaintiff can-
not prove it, he cannot maintain his
action.
The decision in Coughtry v. Globe
Woollen Co. was right; but the case
would have been more satisfactory had
the court denied the soundness of the
English rule, instead of drawing a dis-
tinction equally unsound. The decision
itself, as we understand it, is opposed to
the doctrine of the English courts.
The English rule has been virtually
rejected by the Court of Appeals of
Kentucky in a recent case. United
Society of Shakers v. Underwood, 9
Bush, 609. This was an action brought
against the directors of an insolvent
bank to recover damages for the wrong-
ful appropriation by officers of the bank
of a special deposit ; the plaintiffs alleg-
ing that the defendants were guilty of
negligence in the performance of their
duties as guardians of the bank.' It
was objected that there was no privity
of contract between the plaintiffs and
the defendants; that the only privity
was between the defendants and the
bank. But the objection was over-
ruled, and the defendants held liable.
It is true, the court base their decision
partly upon an implied contract ; but
by this nothing more appears to have
been meant than that general duty
(arising independently of the actual
contract set up in defence) of which we
have spoken. The directors, say the
learned court, " invite the public to
deal with the corporation ; and when
1 See Bank Directors and Bank Officers in note to Fisher v. Thirkell, post.
BREACHES OP CONTRACT.
619
any one accepts their invitation, he has
the right to expect reasonable diligence
and good faith at their hands ; and, if
they fail in either, they violate a dutv
they owe not only to the stockholders,
but to the creditors and patrons of the
corporation. Hodges v. New England
Screw Co., 1 R. I. 312. An honest ad-
ministration of the affairs of the bank,
and slight diligence, at least, in pre-
venting special deposits from being
wrongfully converted to its use, were
legal duties which these directors were
under obligations to the special de-
positors to perform ; and as these grew
out of their implied contract that they
would perform such duties, there is a
legal privity between the parties. This
doctrine was recognized by this court
in the case of the Lexington and Ohio
E. Co. v. Bridges, 7 B. Mon. 556, in
which case it was held that the direc-
tors of that corporation, by accepting
their positions, assumed the discharge
of certain duties not only to the com-
pany, but to persons dealing with it ;
and that if they misappropriated the
funds intrusted to their control, and a
creditor was damaged by the act, he
had a right of action against them from
the injury resulting from their illegal
conduct." See to the same effect Salmon
v. Richardson, 30 Conn. 360.
In Hodges v. New England Screw
Co., supra, the Supreme Court of
Rhode Island, upon a bill in equity
against the directors of a corporation
by a stockholder, alleging a violation
of their charter in taking stock in an-
other company, said: "In considering
the question of the personal responsi-
bility of the directors, we shall assume
that they violated the charter of the
Screw Company. The question then
will be, Was such violation the result of
mistake as to their powers ; and, if so,
did they fall into this mistake from
want of proper care, — such care as a
man of ordinary prudence practices in
his own affairs ? For if the mistake be
such as, with proper care, might have
been avoided, they ought to be liable.
If, on the other hand, the mistake be
such as the directors might well make,
notwithstanding the exercise of proper
care, and if they acted in good faith
and for the benefit of the Screw Com-
pany, they ought not to be liable.'' See
also Koehler v. Iron Co., 2 Black, 715;
Conantu. Seneca Bank, 1 Ohio St. 310.
There is another class of cases in which
the English doctrine has found no place
in this country ; namely, actions by per-
sons to whom a telegraphic despatch
has, by negligence of the telegraph
company, been erroneously transmitted.
Our courts have uniformly held the ac-
tion maintainable, notwithstanding the
fact that the contract of transmission
was made with another. See the cases
to be presently cited. There has been,
however, much diversity in respect of
the ground upon which these decisions
have been based ; and of this presently.
But first, as to the question of liability
to the non-contracting party for non-
delivery of a telegram.
This question does not appear to
have met with a decision in the courts,
though the language of some of the
cases upon other points, and particu-
larly that of the New York & Wash-
ington Tel. Co. v. Dryburg, 35 Penn.
St. 298, possibly implies that an ac-
tion for the non-delivery of a message
might be held not to be confined to
the sender. The action in the case re-
ferred to was brought by the receiver
of a despatch for a mistake in transmis-
sion ; and it was sustained, one of the
grounds being that the defendants were
the agents of the plaintiff, by reason of
620
NEGLIGENCE.
being servants of the public. It is clear,
however, that in this the court are not
to be considered as using the term
"agent" in any exact legal sense, for
none of the elements of an agency are
here present. What was meant was
doubtless this : that, being created for
the convenience and benefit of the pub-
lic, they owe peculiar duties to the
same, — duties resembling, to use the
illustration of the court, those of com-
mon carriers.
An analogy to such cases has often
been suggested, though not perhaps for
the purpose of showing a liability on
the part of the telegraph company for
non-delivery.
It will not be difficult to show that
there is no proper analogy between the
two cases. It may be doubted if, in the
absence of statute, a telegraph company
would be bound even to transmit mes-
sages for everybody. It is not, clear
that the doctrine concerning common
carriers would prevail. The carrier's
liability for refusing to receive and
transmit goods was, at common law,
alleged to arise from the ancient cus-
tom of the realm. Jackson v. Rogers,
2 Show. 327; Elsee v. Gatward, 5 T. R.
143, 150, Ashhurst, J. But the case is
much stronger against the person to
whom a despatch is addressed. The
ground of the carrier's liability for a
failure to deliver does not exist in the
case of a telegraph company. The
sender of a despatch puts no property
into the hands of the company, and
there is, therefore, no opportunity for
theft, or occasion for collusion.
Nor does it follow by the fact that
telegraph companies hold themselves
out to the world as undertaking to
transmit and deliver messages faith-
fully, that they render themselves lia-
ble to those to whom messages are
addressed for a breach of their duty of
delivery. Their situation may be com-
pared to that of a private messenger.
It is clear that such a person, while
undertaking for but a few people, is
under no liability to parties to whom
messages are sent for a failure to de-
liver ; and can the case be different if
the messenger should hold himself out
to all persons as engaged in the busi-
ness of carrying despatches ? The mere
fact that he has taken upon himself a
wider duty as to the number of persons
for whom he will act in transmitting
messages cannot generate a duty as to
those to whom they are directed.
Now, the only difference between
such a case and that of the telegraph
company is this : that the latter are in-
corporated; that they employ a servant
at each end of the line for the trans-
mission and reception of the message ;
and that the message is sent with great
celerity by means of electricity ; but
these facts cannot be important.
Let us now turn to the statutes and
see if any liability has been imposed by
the legislature upon telegraph compa-
nies in this respect.
The English telegraph act provides
that " the use of any telegraph and ap-
paratus erected or formed under the
provisions of this act for the purpose
of receiving and sending messages shall
... be open for the sending and re-
ceiving of messages by all persons alike,
without favor or preference." See Play-
ford v. United Kingdom Tel. Co., Law
R. 4 Q. B. 707, note. In Playford v.
United Kingdom Tel. Co., just cited,
it was held, in an action by the receiver
of an erroneous message, that this act
had not affected the relation of compa-
nies to those to whom despatches are
transmitted. The telegraph act of 1868
contains no provision on this point ; and
BREACHES OF CONTRACT.
621
the same is true of the later acts. 25 &
26 Vict. c. 131, § 61; 31 & 32 Vict,
c. 110; 32 & 33 Vict. c. 73, § 23.
The Massachusetts act provides that
" every company shall receive des-
patches from and for other telegraph
lines, companies, and associations, and
from and for any person ; and on pay-
ment of the usual charges . . . shall
transmit the same faithfully and impar-
tially." And for every wilful neglect
the company are declared liable to a
penalty of one hundred dollars to the
" person, association, or company send-
ing or desiring to send the despatch."
Gen. Sts. c. 64, § 10.
The statutes of New York (2 Rev.
Sts. 740, § 11, 5th ed.), Michigan (1
Comp. Laws, 1871, c. 80, § 14), Mis-
souri (1 Wagn. Sts. 324, § 10), and
Maryland (1 Code, p. 171, § 117), con-
tain provisions and prescribe penalties
substantially the same as those in this
act.
The statute of Pennsylvania simply
requires the companies to transmit de-
spatches offered, under a penalty for
refusal, with no provision for faithful
performance. Bright. Purd. p. 951, § 1.
In Maine, it is provided that " for
any error or unnecessary delay in writ-
ing out, transmitting, or delivering a
despatch . . . making it less valuable
to the person interested therein," the
company " shall be liable for the whole
amount paid on such despatch; and they
shall transmit all despatches in the order
they are received, under a penalty of one
hundred dollars, to be recovered with
cost by the person whose despatch is wil-
fully postponed." Rev. Sts. c. 53, § 1.
Many of the States are without statu-
tory provisions on this particular point;
and no act has been found giving a right
of action to the person to whom pbe
message is sent, either for non-delivery
or for error in transmission, excepting
that of Maine above quoted. It must
be conceded that in that State the re-
ceiver of the message, if he be " the
person interested therein," has a right
of action to the amount paid for trans-
mission. But this would perhaps cover
no more than the case of a despatch
transmitted by the plaintiff's agent; and,
if so, it possibly abridges rather than
enlarges the liability of the telegraph
company. For, apart from such a pro-
vision, the company must be liable for
the actual loss to the plaintiff, where
the sender acts as agent in the prem-
ises. But this discussion is not predi-
cated of such cases.
The other question — whether the
receiver of a message can sue the tele-
graph company for an error in transmis-
sion, and upon what ground — is not
so free from difficulty. In this country
there is great unanimity in holding the
companies liable. New York & Wash-
ington Tel. Co. v. Dryburg, 35 Penn.
St. 298 ; Bowen v. Lake Erie Tel. Co.,
1 Am. Law Reg. 685; De Rutte v. New
York, Albany, &c, Tel. Co., 1 Daly,
547; Rose v. United Slates Tel. Co.,
3 Abb. Pr. n. s. 408 ; Elwood v. West-
ern Union Tel. Co., 45 N. Y. 549 ; El-
lis v. Am. Teli Co., 13 Allen, 226. In
England, as we have seen, the contrary
is held. Playford v. United Kingdom
Tel. Co., Law R. 4 Q. B. 706 ; 10 B.
& S. 759.
In the New York & Washington
Tel. Co. v* Dryburg, generally cited as
the leading American case, one LeRoy
transmitted to the plaintiff, by the de-
fendants' line of telegraph, an order for
a number of " hand bouquets." The
operator, reading " hund" for " hand,"
supposed that the word had been ab-
breviated for " hundred," and trans-
mitted the message accordingly. The
622
NEGLIGENCE.
plaintiff acted upon the message as de-
livered, and, upon learning of the mis-
take, brought an action against the
telegraph company to recover for the
loss incurred. The action, as has been
stated, was sustained, two grounds be-
ing given : first, that, being servants of
the public, the defendants were to be
regarded as agents of the plaintiff as
well as of LeRoy, the sender of the de-
spatch ; secondly, that, being agents of
LeRoy at all events, they were liable
to third persons for their misfeasances,
and that the alteration of the message
by the operator, though made in good
faith as it appears, was an act of that
character, imputable to the company.
" If the handwriting," say the court
further, " was so bad that he [the op-
erator] could not read it correctly, he
should not have undertaken to transmit
it ; but, the business of transmission as-
sumed, it was very plainly his duty to
send what was written."
In Bowen v. Lake Erie Tel. Co., 1
Am. Law Reg. 685, a similar case at
nisi prius, the court charged the jury
that telegraph companies, holding them-
selves out to transmit despatches cor-
rectly, are under obligation to do so,
unless prevented by causes over which
they have no control.
In De Rutte v. New York, Albany,
&c, Tel. Co., 1 Daly, 547, in the Com-
mon Pleas of New York city, the plain-
tiff's agent in Bordeaux prepared a
telegram and sent it in a letter to a
house in New York, with instructions
to send it in the quickest manner to the
plaintiff at San Francisco. The New
York house gave the message to the
defendants, and paid the full cost of
transmission to California, On reach-
ing its destination, the message con-
tained several errors, some of which
were apparent, but one of which misled
the plaintiff, and caused the loss for
which the suit was brought. The court
held that the case was not changed by
reason of the fact that the despatch
passed over several lines, and that it
was not proof of negligence on the part
of the plaintiff that he had acted upon
the despatch (while knowing that it
contained errors) without having it re-
peated ; and the plaintiff was allowed
to recover. One objection taken by the
defendants was this : that they had en-
tered into no contract with the plaintiff
concerning the message. But the court
replied that it did not necessarily fol-
low that the contract was made with
the person sending the message. He
might have no interest in the subject-
matter of it. The party to whom it is
addressed may be the only one inter-
ested in its correct transmission ; and
when that is the case, he is the one
with whom in reality the contract is
made. It was further said, that the
case was somewhat analogous to that
of a loss of goods by a carrier, as to
which the rule of law is, that the right
of action against the carrier is in the
consignee. But the defendants were
also liable, the court held, regardless of
this matter of contract, on the ground
that they had put the plaintiff to a loss
by their negligence.
Opposed to these American cases
stands the case of Play ford w. United
Kingdom Tel. Co., Law R. 4 Q. B. 706,
10 B. & S. 759, in the Queen's Bench
of England. The court there held an
action not maintainable by the receiver
of an unrepeated message, on the ground
that the obligation of the company to
use due care and skill in the transmis-
sion of messages arises entirely out of
contract ; and that the contract having
been made with the sender of the nies-
sage, the plaintiff had no right of action
BREACHES OF CONTRACT.
623
against the company. This point has
been sufficiently considered already.
It may not be difficult to find objec-
tion to the leading ground of the com-
pany's liability taken in De Rutte i>.
New York, Albany, &c, Tel. Co.; that
the contract for the proper transmission
of the message being in reality for the
benefit of the receiver, he had a right
of action for the admitted breach. The
reply to this position is to be found in
the rule established in the very impor-
tant case of the Exchange Bank v. Rice,
107 Mass. 87. "The general rule of
law," says Mr. Justice Gray, in deliv-
ering the judgment of the court, "is,
that a person who is not a party to a
simple contract, and from whom no
consideration. moves, cannot sue on the
contract, and consequently that a prom-
ise made by one person to another for
the benefit of a third person, who is a
stranger to the consideration, will not
support an action by the latter." The
court herein overrule certain unguarded
expressions in Carnegie v. Morrison, 2
Met. 381, and in Brewer v. Dyer, 7
Cush. 337, and bring the law back to
a more secure anchorage. Nor does
De Rutte v. New York, Albany, &c,
Tel. Co. come within any of the ex-
ceptions to this rule, unless (upon the
supposition that the transmission of a
message is, or is analogous to, a bail-
ment of goods, as has sometimes been
supposed : Scott & Jarnagin, Tele-
graphs, §§ 95, 97 ; Parks v. Alta Cali-
fornian Tel. Co., 13 Cal. 422; Leonard
v. New York, Albany, &c, Tel. Co.,
41 N. Y. 544; True v. International
Tel. Co., 60 Maine, 9) it is embraced
within the first and most important ex-
ception. This includes cases where the
defendant, receiving money or prop-
erty from another, which in equity and
good conscience belongs to the plain-
tiff, promises the party from whom he
receives it to account for it to the
plaintiff. Now, any supposed analogy
between such a case and that of the
receipt of a telegraphic message, with
a promise to deliver to the plaintiff, as
has often been pointed out (see West-
ern Union Tel. Co. v. Carew, lo Mich.
525, 533 ; Playford v. United Kingdom
Tel. Co., Law R. 4 Q. B. 706, 710;
Breese v. United States Tel. Co., 48
N. Y. 132), will not bear examination.
It is doubtful even if a letter to be
delivered under similar circumstances
would come within the exception ; for
a letter can hardly be considered as
property, and the tendency of the courts
is to narrow, and not to extend, the
rule on this point. But, however this
may be, it is almost useless to say that
a telegraphic company does not under-
take to transmit, physically, the piece
of paper received, or to account for it
as property; the agreement is simply
to use due care and skill to translate
the writing into telegraphy, to send the
proper symbols over the line, and then
to retranslate and deliver the message.
This is any thing but a receipt of money
or property upon a promise to pay it to
the plaintiff.
The above case would, however, be
correct where the sender of the mes-
sage were in fact only the agent of the
plaintiff.
In the New York & Washington Tel.
Co. v. Dryburg, the Supreme Court, as
has been observed, took the position
that the company were to be regarded
as the agents of the sender of the mes-
sage; and they were held liable as such,
on the ground that they had been guilty
of a misfeasance.
Before proceeding to consider the
real nature of the relation of the tele-
graph company to the sender of a mes-
624
NEGLIGENCE.
sage, another point should be noticed.
In most, if not all, of the cases to which
we have referred, the telegraph com-
pany had limited their liability for mis-
takes (above the sum paid for the mes-
sage) to cases in which the despatch had
been repeated by the receiver. Such a
limitation was held reasonable in Ellis
v. American Tel. Co., 13 Allen, 226.
(So in Breese v. United States Tel. Co.,
48 N. Y. 132. But see True v. Inter-
national Tel. Co., 60 Maine, 9, holding
such a limitation bad in the absence of
a requirement that the despatch should
be repeated in order to make the com-
pany liable for mistakes). And it was
remarked by the learned Chief Justice
that the right of the receiver of an un-
repealed message could not, at best,
rise higher than that of the sender. If
this be true, the question we are now
considering is of little importance ; for
it is probable that the blanks of all
the companies contain such stipulations.
But is this a sound proposition of law?
Is the measure of damages of a third
person, injured by the breach of a con-
tract, to be limited to the amount re-
coverable by the other party to the
contract? for this seems to be the force
of the objection. The interest of the
parties to the contract may be very
small; while the injury to the third per-
son may be very great. If the third
person have a right of action at all, the
value of the contract can be of no im-
portance. Suppose the contract were
without consideration, could it be con-
tended that, since the parties could
maintain no action for a breach of it,
a third person, injured by its improper
performance, could not? B. allows
A. to pasture his cattle, gratis, in his
meadow. Through the misconduct of
B., the cattle break through the fence
into C.'s corn-field, and are chased out
and injured. Cannot C. maintain an
action against B. for any damage to
his crop ? And if A. should pay for the
privilege of pasture, would B 's liabil-
ity be measured by the sum recoverable
by A. for the injury to his cattle ? The
crop may have been ruined, while the
cattle were but slightly hurt.
The recent cases of Henkel v. Pape,
Law R. 6 Ex. 7, and Verdin v. Robert-
son, 10 Ct. Sess. Cas. (3d series) 35,
have decided that under the English
Telegraph Act of 1868 telegraph com-
panies cannot be considered as the
agents of the sender of an erroneous
message. In Henkel v. Pape, Kelly,
C. B., said: "The post-office author-
ities are only agents to transmit mes-
sages in the terms in which the senders
deliver them. They have no authority
to do more." The act above referred
to, as has been intimated, did not
change in any way the relation of the
companies to the senders or the receiv-
ers of messages; it simply provided for
the purchase and management of the
various lines by the post-office depart-
ment. It would seem, therefore, that
the cases cited are authorities in this
country ; and an examination of the
doctrine of agency leads to the same
conclusion.
The ground upon which the act of
an agent binds his principal (in the ab-
sence of express appointment or rati-
fication) is this : that the principal has
held the agent out to the party dealing
with him as having authority to bind
him, either in the particular transac-
tion, or in the class of transactions to
which it belongs. If in point of fact it
appear that the party dealing with the
agent as such was not authorized by
the supposed principal so to treat him,
the latter will not be bounff The deal-
ing, in such case, is with the supposed
BREACHES OF CONTRACT.
625
agent alone ; and it is not material that
the agent may have represented that
he was acting in the matter for an-
other. But such a misrepresentation
would render him liable to the injured
party ; not, of course, as an agent,
but in his individual capacity as a prin-
cipal.
To apply these propositions to the
case of the telegraph company, it would
be a violent presumption to say that,
by leaving a message with them for
transmission, the sender holds them out
as authorized to deliver any message
which they in good faith may send over
their lines. The situation is quite dif-
ferent from that of a recognized case
of agency. It might well be doubted
even whether the mere employment of
a private messenger, not a servant, to
convey a message (this being confess-
edly his only connection with the send-
er) coald be regarded as authorizing
him to deliver any different word from
that given, however upright his inten-
tions. But the case of the telegraph
company is much stronger. Here is a
body of men authorized by statute to
transact for the public a business of
peculiar character, but little understood
by other men; they have asked for and
accepted a charter requiring them to
perform their duties with care and skill;
and they thereby proclaim themselves
able and willing to do so.
There is clearly, then, more truth in
the view that the telegraph company
hold themselves out as principals, than
in the notion that the simple act of
handing them a message for transmis-
sion constitutes them the party's agents.
In a certain broad sense they may be
considered as agents of the sender ; in
the same sense that the bullet is the
agent of the assassin. But this, we
submit, is not the legal idea of the
term. An agent in the English law
we conceive to be, like the procurator
in the Roman law (see Goudsmit on
Roman Law, p. 178, note), one who
acts with some discretion, or at least
purpose, to bind another. Now the
telegraph company acts with neither of
these in sending despatches ; with no
discretion, for they undertake with the
sender to transmit the precise message
given them, at all events (barring dis-
turbances beyond their control), re-
gardless of consequences; with no pur-
pose to bind the sender, since this
implies knowledge of the immediate
object to be effected, and the exer-
cise of volition towards its accomplish-
ment.
If this is correct, it may follow that
the telegraph company are not to be
regarded as agents of the sender, even
when the message is correctly transmit-
ted ; and we shall not shrink from such
an inference. It is worthy of doubt if
the courts do not often use the term
" agent " merely as a short cut through
a supposed difficulty in connecting per-
sons with each other. The post-office
authorities, for instance, are often said
to be the agents of the receiver of a
letter ; but this is only to overcome the
difficulty found in the fact that when a
letter is once deposited in the post-office
it is (except by the courtesy of the au-
thorities) placed beyond the control of
the sender. And it is suggested, with
deference, that it would be better to
say so than to invent a fiction, as use-
less and misleading as it is false.
But, at all even is, the most that can
be said is that the sender of a tele-
graphic message gives the company au-
thority to send a despatch; and, if thgre
is any further representation, that the
supposed sender of the same authorized
the transmission of the very despatch
40
626
NEGLIGENCE.
delivered, such representation must be
considered to be made as well by the
company as by the sender; and, if false,
the telegraph company, upon the doc-
trine of implied warranty of authority,
are liable to the receiver. Collen v.
Wright, 8 El. & B. 647, in Exch. Ch.
See ante, p. 22.
It is clear that the telegraph com-
pany cannot be considered as the ser-
vants of the sender of a message. Not
to insist upon the notion that the rela-
tion of master and servant implies a
power of appointment in the former,
and that telegraph companies, being
created by the legislature alone, for the
public, cannot be made the servants of
an individual, it will scarcely be doubted
that it is essential to the relation that
the master should have complete con-
trol for the time over the servant. It
was doubtless upon this principle that
De Forrest v. Wright, 2 Mich. 368,
and all that class of cases, have been
decided. In the case mentioned (which
is[cited with special approval in Hilliard
v. Richardson, post, p. 636), the plain-
tiff brought an action for an injury
caused by a public licensed drayman
while unloading goods for the defend-
ant ; the drayman being in his employ
at the time. It was held that the action
should have been brought against the
latter ; and the court, upon a review of
the authorities, said that the rule was
this : that where the person employed
is in the exercise of an independent and
distinct employment, and not under the
immediate control, direction, or super-
vision of the employer, the latter is not
responsible for the negligence of the
former. '
The conclusion, then, at which we
arrive is, that in the transmission of
messages telegraph companies act as
principals ; and their liability for neg-
ligent mistakes (and perhaps delays)
arises either on the ground of a mis-
representation of agency, or on the
broad principle that a person must so
conduct his business as not to injure
others. The telegraph company, since
they can insist on non-interference in
the performance of their contract, are
bound in the performance reciprocally
to refrain from action which would have
a natural tendency to produce a par-
ticular injury to those upon whom they
have imposed a duty. Now the tele-
graph is resorted to only in cases of
importance and urgency, so that the
very fact of presenting a message for
transmission indicates that it concerns
a matter of importance. The company
cannot, therefore, fail to know that a
mistake in transmission will be likely
to produce damage to the receiver, by
causing him to do that which otherwise
he would not do. Knowing, then, the
probably evil consequences of transmit-
ting an erroneous message, they owe a
duty to the receiver of refraining from
such an act; and if (by negligence)
they violate this duty, they must, on
plain legal principles, be liable for the
damage produced.
1 Pothier also says: " Non-seulement la personne qui a commis le delit ou quasi-d&it est
obligee a la reparation du tort qu'elle a cause ; celles qui ont sous Ieur puissance cette personne,
telles que sont les peres, meres, tuteurs, prfecepteurs, sont tenues de cette obligation, lorsque
le delit ou quasi-dfelit a fete commis en leur presence, et genferalement lorsque pouvant l'em-
pgoher, elles ne l'ont pas fait. Mais si elles n'ont pu Vempecher, elks n'en sont point tenv.es."
Obligations, § 121.
FISHER V. THIRKELL. 627
Aaron Fisher et al. v. Isabelle F. Thirkell.
(21 Mich. 1. Supreme Court, Michigan, July Term, 1870.)
Excavations under public streets. Who liable. — Excavations, properly and safely con-
structed under the public streets in cities, for the convenience of the owners of
premises adjoining, are not unlawful ; and they are not liable to be treated as
nuisances if kept in repair, and the use of the street is not interrupted for an un-
reasonable length of time.
A party will not be liable for an injury occasioned by a nuisance, on the ground of
his possession of the premises where the nuisance is shown to exist, unless his pos-
session be such as to give him the legal control of the premises.
The owner of premises in possession of a tenant will not be liable for an injury
occasioned by the premises becoming, subsequently to the leasing, out of repair,
in a case where the obligation to repair is upon the tenant, and not upon the
landlord.
»
Error to Wayne Circuit.
This was an action- on the case brought in the Circuit Court
for the County of Wayne, by Isabelle F. Thirkell against Aaron
Fisher, Elam Fisher, John H. Griffith, and William F. Kier, for
an injury to the plaintiff occasioned by an opening in the side-
walk in front of premises in the city of Detroit, alleged to be
owned by the defendants, Aaron and Elam Fisher, and to be in
the occupancy of the defendants Griffith and Kier. The ques-
tions to be reviewed arise upon the charge of the circuit judge
as to the liability of the several defendants. At the request of
the plaintiff, the court charged the jury: 1. If the jury believe,
from the evidence, that the defendant Griffith was in the use
and occupancy of the premises in question, in whole or in part,
at the time of, and some days before the injury occurred, taking
an inventory or otherwise using the same for his own benefit, and
that the wood was put into the vault for the use of the premises
by his direction or authority, in whole or in part, in such use of
his said premises, said Griffith is liable in this case.
2. If the jury believe, from the evidence, that the Fishers
constructed the building, scuttle, and improvements, and that
from their construction several years ago down to the time when
the injury occurred, they continued to be and were the owners of
such scuttle and improvements, they are liable in this action,
although they may have been only lessees of the ground on which
628 NEGLIGENCE.
such scuttle and improvements were situated, and may have sub-
leased the same to other parties ; that they were bound to keep
the scuttle in good and safe condition while they thus owned the
building and improvements, and it makes no difference that they
may not have known that such scuttle was not in good and safe
condition at the time.
To this charge the defendants excepted.
The defendants requested the court to charge : —
1. That the mere parol bargain between Mrs. Hill and Grif-
fith for the sale of the stock of goods, and the transfer of the
lease thereof, did not make a valid binding contract until there
was either a part payment for said goods and lease, or a written
contract of sale between the parties thereto, or a delivery of said
goods, or a portion thereof.
2. That there is no evidence tending to prove that, previous
to the*time when the injury happened, there had been either such
part payment, or written contract, or such delivery.
3. That even if, under the instructions of the court, the jury
should find that Griffith had actually gone into possession, yet he
could not be liable in this action for negligence unless he knew
of a defect in the scuttle, or had been in possession such a period
of time that his want of knowledge would be negligence.
4. That it was not the duty of the Messrs. Fisher, as owners
of the building in question, to keep the same in repair while it
was occupied by tenants, unless there were an agreement made
with the tenants that they (the Fishers) should make the re-
pairs.
5. In the absence of any such agreement, the defendants
Fisher are not liable in this action for injuries to the plaintiff
caused by want of repair of the scuttle, which was broken or put
out of order during the possession of tenants.
6. That there is no evidence tending to show that the scuttle
was out of repair when the premises were leased by defendants
Fisher, or that the defendants Fisher have since been in the
actual occupation of said premises, and for this reason the de-
fendants Fisher cannot be held liable in this action.
7. That the Fishers had a perfect right, in erecting their store,
to excavate under the sidewalk, if they put the same in a perfectly
secure and unobstructed condition ; and if the accident to the
plaintiff occurred by reason of the negligence of the Fishers'
FISHER V. THIRKELL. 629
tenants in permitting the scuttle to get out of repair, and not by
reason of any original defect in the manner of making the same,
then the Fishers are not liable in this action.
The circuit judge charged as requested in the first request
made by defendant's counsel, but refused to charge as requested
in the remaining requests. To which the defendants excepted.
The jury returned a verdict for the plaintiff against the said
defendants, Aaron Fisher, Elam Fisher, and John H. Griffith,
who bring the judgment entered thereon into this court, by writ
of error.
C. I. Walker, for plaintiffs in error. Levi Bishop, for defend-
ant in error.
Christianct, J. This was an action on the case brought by
the defendant in error, against the plaintiffs in error, to recover
damages received by her by falling into a scuttle or hole in the
sidewalk, on Woodward Avenue, Detroit, in front of a store in
what is known as Fishers' Block, of which said Fishers were
the owners, and which they had erected some years before. The
scuttle opened into a vault beneath the sidewalk (as usual in such
cases), connecting with the cellar, and was constructed and used
for putting wood and coal into the cellar for the use of the store.
It was constructed by the owners in the usual manner, by putting
in an iron ring or thimble through the stone sidewalk, and fitting
into this an iron cover, coming up even with the surface of the
walk, and forming part of it. Some time prior to this accident,
the thimble had been broken by throwing wood against it, which
loosened the cap or cover in such a manner that by stepping on
the side of it, it would turn down ; and in this way the plaintiff
received the injury, about dusk on the evening of the 28th De-
cember, 1868.
The premises were not in the occupation of the Fishers, the
owners, and never had been occupied by them, having always
been occupied by tenants under them. And, some time previous
to the accident, this store had been leased to a Mr. and Mrs.
Hill, or one of them (it does not definitely appear whether the
lease was to Hill or wife, or both, though the wife seems to have
owned the stock), and was occupied by them as a drug store,
under the lease, up to about the time of, if not after, the acci-
dent, which is one of the questions in the case.
On the 16th day of December, 1868, the defendant John H.
630 NEGLIGENCE.
Griffith entered into a verbal negotiation or arrangement with
Hill and wife for the purchase of the stock at cost, and for the
purchase of the lease and fixtures. The inventory of the stock
was completed on the 26th, having been made by Hill and wife
and Griffith, and persons employed by them, one of them, Kier,
having been employed by Griffith, but paid out of the drawer
from sales made prior to the completion of the sale to Griffith ;
and during the time of making the inventory all the parties had,
of course, access to the store, but the key was kept by Hill, he
opening the store in the morning and locking it at night. After
the inventory of the stock was completed, delays occurred, in
reference to the fixtures, and in reference to the title of a lot in
Detroit, which the brother of Griffith was to mortgage to secure
a part of the purchase-money, a search and abstract of which had
to be made, and there were consequent delays in executing the
bond and mortgage and the bill of sale of the stock. And on
the 26th, Hill, seeming to apprehend that the proper securities
might not be given, and the sale not be completed, appointed
Kier (who had been aiding in taking the inventory), to take
charge of the key and the money in the store, till the matter of
the sale should be finally decided. It seems some goods had been
sold from time to time after being placed on the inventory, and
these sales still continued, with the apparent understanding that
if the sale to Griffith should be completed, the money would be
his in place of the goods sold, otherwise it would belong to Hill.
On the evening of the 28th, about half-past five, or between
that and six o'clock (which the evidence tends to show was after,
— though but a little after the accident), the papers having been
examined bj Cleaveland Hunt, an attorney in his office, were de-
livered, and the money and securities handed over, — except the
bill of sale of the goods, to be yet executed by Mrs. Hill, who
was not present with her husband at the attorney's office. The
bill of sale was executed afterwards, that evening or the next
morning, and received by Griffith in the morning. Up to the
time of the delivery of the other papers at the attorney's office,
no money or other consideration had been paid by Griffith, and
there had been no delivery of the goods or any part of them, nor
of the key. And there is no evidence in the record tending to
show that Griffith had any possession or control of the premises
otherwise than being there by the mere permission of the Hills,
FISHEE V. THTBKELL. 631
as already stated, making the inventory and settling the prelimi-
naries of the purchase.
But after the payment and the delivery of the papers, which
took place at the attorney's office, Griffith, about six o'clock in
the evening, and some time after the accident, came to the store
and assumed the possession, though he did not receive the bill
of sale of the goods till the next morning.
There was no evidence in the case tending in the least degree
to controvert any of the facts above stated, as to the time of the
completion of the purchase, or the time when Griffith became
entitled to, or took the possession, unless the admission made by
him to AVilkins, after the accident, can be construed as such.
Understanding that Wilkins was concerned on the part of the
plaintiff in her claim against him for damages, and that he was
acting in her behalf, Griffith, in the course of a conversation with
Wilkins (as testified by the latter), said, among other things,
that there was a question as to his liability, owing to the fact that
neither party had possession of the premises at the time ; that
they were about transferring the title or lease ; that the papers
were nearly made out ; that they had been executed ; and the
attorney of the opposite party wished to see them again for the
purpose of examining them again, to see if they needed correc-
tion, and they had been passed across the table for the attorney
of the opposite party to see whether they needed correction, and
that about that time the accident must have happened : and for
this reason he did not know who was liable. Being further exam-
ined Wilkins says, " He said he was in actual possession, but
doubted whether he was in the legal possession for the reason
stated ; " and on cross-examination he further says that Griffith
said "there was a question of his liability; that he had not
assumed possession."
Now we think it clear that all Griffith states here in regard to
being in possession refers to the facts, as stated in all the testi-
mony of witnesses who speak to those facts, and about which
there is not the shadow of discrepancy ; and, if he did say he was
in actual possession, it was accompanied with such qualifications
as clearly show that it was, in law, neither an actual nor a legal
possession ; that, in other words, he was mistaken in his legal
opinion of what constituted possession. About the facts there
was no dispute and no discrepancy.
632 NEGLIGENCE.
But no kind of possession by him which did not give him the
control of the premises, as between him and the Hills, could have
rendered him responsible for this accident ; as no other could
impose upon him, instead of them, the duty of keeping the
scuttle in repair. And there was not only no evidence tending
to show he had such possession at the time of the accident ; but
the tendency of all the testimony upon this point was to show
that he had yet obtained no such possession, and that the Hills
still retained the possession and control ; that though he was in
the store a part of the time, he was there only by the permission
of the Hills, and whatever he or his servants did there was only
by their permission.
The plaintiff has doubtless suffered an injury for which she
ought to be compensated. But Griffith, so far as appears by the
evidence, was as guiltless of all wrong, legally and morally, as
the plaintiff herself. And it would be no less a violation of
morals or of law to compel him to make good the damages than
to leave her to bear them herself. She has no more right, upon
any legal or equitable principle, to call upon him than she would
have to call upon any customer who might have stepped into the
store to purchase a box of pills. The court, therefore, erred in
submitting the question of Griffith's possession, or his liability, to
the jury. There was no evidence tending to establish either.
We will next inquire whether there was any evidence tending
to establish the liability of the Fishers, as owners, who made the
excavation and put in the scuttle.
The evidence tended to show that it was in good and safe
condition when made, and continued so when leased to the Hills,
and there was no evidence of an opposite tendency. It does not
appear that there was any provision in the lease, or any agree-
ment of the lessor, to keep the premises in repair.
The court, at the plaintiff's request, charged, substantially,
that if the jury should find from the evidence that the Fishers
constructed the building, scuttle, and improvements, and that
from their construction, several years ago, down to the time when
the injury occurred, they continued to be and were the owners,
they are liable in this action, though they had leased the same to
other parties, — that they were bound to keep the scuttle in good
and safe condition while they owned the building and improve-
ments ; and it makes no difference that they may not have known
that the scuttle was unsafe.
FISHER V. THIRKELL. 633
And the court refused to charge as requested by the defen-
dants, —
" 1. That it was not the duty of the Messrs. Fisher, as owners
of the building in question, to keep the same in repair while it
was occupied by tenants, unless there was an agreement made
with the tenants that they (the Fishers) should make the repairs ;
and that, in the absence of such agreement, they are not liable
for the injury complained of, caused by a want of repair, while
in the possession of their tenants.
" 2. That there is no evidence tending to show that the scuttle
was out of repair when the premises were leased ; and
" 3. That the Fishers had a perfect right, in erecting their
store, to excavate under the sidewalk, if they put the same in a
perfectly secure and unobstructed condition ; and if the accident
to the plaintiff occurred by reason of the negligence of their ten-
ants in permitting the scuttle to get out of repair, and not by
reason of any original defect in the manner of making the same,
then the Fishers are not liable in this action."
"We think the court erred both in charging as requested by
the plaintiff below, and in refusing to charge as requested by the
defendants.
There are some cases in the State of New York which appar-
ently sanction this ruhng of the court, and would hold the owners
who made the excavation and the scuttle, responsible for all
injuries resulting from the want of its entire safety, though the
owner was guilty of no negligence in the manner of its con-
struction ; thus making the owner an absolute insurer against all
injuries which may arise from it, without reference to his neg-
ligence or vigilance. Congreve v. Morgan et al., 5 Duer, 495,
and same case on appeal, 18 N. Y. 79 ; and this though the work
was well and safely constructed, and was afterwards destroyed
or injured by the act of a wrongdoer. Congreve v. Morgan, 18
N. Y. 84 ; and see Davenport v. Ruckman, 10 Bosw. 20 ; and
Irvin v. Fowler, 5 Eobertson R. 482.
But these cases go upon the avowed principle that such exca-
vations in the public street are unlawful in themselves, ah initio ;
and that no person is authorized to make them without affirma-
tive legislative authority (which, however, I infer might be by
resolution or ordinance of the common council. M*hau v. Sharp,
17 Barb. 435). And if it be conceded that the construction
634 NEGLIGENCE.
itself was a wrongful act, and in violation of law, then the con-
sequences which the New York courts have drawn from this fact
would seem naturally enough to follow upon common law princi-
ples. This is well illustrated by the case of Ellis v. Sheffield Gas
Co., 2 E. & B. 767, which turns upon this distinction. And if
there had been an ordinance of the city of Detroit against mak-
ing such constructions without special permission of the council,
which had not been obtained, or forbidding their construction
except in a certain manner, and such ordinance had been vio-
lated in constructing this excavation or the scuttle, perhaps the
rule of responsibility, adopted by the courts of New York, might
be applicable to the present case. But it is conceded there was
no such ordinance of the city of Detroit, applicable to the con-
struction of this work (and that no license or permission was
obtained from the city council for its construction) ; and we are
satisfied that, at common law, the making of such excavations
under sidewalks in cities, and the scuttles therein, for such pur-
poses as this was made and used for, were not treated as nuisances
in themselves, or in any respect illegal, unless the walk was allowed
to remain broken up for an unreasonable length of time, or the
work was improperly or unsafely constructed ; though it would
afterwards become a nuisance if not kept in repair. Judging
from the reported cases, the usage or custom of constructing
such works in cities seems to have been in England, for a long
period, as general as we know it has been in this country. And
though we find many decided cases in the English books, for pri-
vate injuries caused by these structures being out of repair, and
indictments for obstructing highways and streets in a great variety
of ways, we have been cited to no English cases, and have dis-
covered none, in which such works have been held illegal, in
themselves, when properly and safely made, without any legisla-
tive permission, or that of the municipal authorities. Their
legality seems, in all the cases, to have been assumed by the
courts without any showing of such special authority or any
authority. They have been treated as nuisances when allowed
to be out of repair, and private actions have frequently been
sustained for injuries received in consequence ; but we find no
intimation of their original illegality when safely and properly
constructed. «This will appear from the cases cited below upon
the question whether the tenant or the landlord is bound to
FISHER V. THIRKELL. 635
keep them in repair. And the same view seems to have been
quite generally taken in this country outside of the state of New-
York.
The principles of the common law applicable to this question
are, we think, clearly stated in Clark v. Fry, 8 Ohio St. 358, which
was an action for damages caused by the plaintiff's falling into an
excavation made in the sidewalk (or part of the street) in front
of the defendant's lot, in the city of Toledo, communicating with
the cellar ; and the Supreme Court of Ohio held that the right
of transit in the use of the public highways is subject to such
incidental, temporary, or partial obstruction, as manifest necessity
requires, and that among these are the temporary impediments
necessarily occasioned in the building and repairing of houses and
lots fronting on the streets of a city, and in the construction of
sewers and cellars, &c. ; that these are not invasions, but qualifi-
cations of the right of transit on the public highway, and the
limitation on them is, that they must not be unnecessarily inter-
posed or prolonged ; that such temporary obstructions upon the
highway, when guarded with due care to prevent danger to the
public, and not unnecessarily extended or continued, are not
nuisances, and do not require a license from the municipal
authority to legalize them ; although suitable regulations by city
authorities requiring such obstructions to be properly guarded,
and to prevent them from being made in an improper manner or
continued unnecessarily, are usual and highly proper.
The original erection having been legal, and in a proper and
safe condition when the Fishers leased the premises to the Hills,
and the injury being received in consequence of the scuttle get-
ting out of repair during the tenancy, were the Fishers liable, as
owners or otherwise, for having failed to keep it in safe condition
and repair ? The lease, so far as appears, being silent as to who
should make repairs, it was the duty of the lessees to keep the
premises in repair. Gott v. Gaudy, 22 Eng. L. & Eq. 173 ; Leavitt
v. Fletcher, 10 Allen, 121 ; Elliott v. Aiken, 45 N. H. 36 ; Estep
v. Estep, 23 Ind. 114 ; City of Lowell v. Spaulding, 4 Cush. 277.
And the owners, being out of possession and not bound to
repair, are not liable in this action for injuries received in conse-
quence of the neglect to repair. See Payne v. Rogers, 2 H. Bl.
350, a case much like the present, except that it appeared the
landlord was to make the repairs ; and on this ground alone he
636 NEGLIGENCE.
was held liable to the plaintiff, to avoid circuity of action. And
see, as to the last point, City of Lowell v. Spaulding, above cited ;
Chauntler v. Robinson, 4 Exch. 163, that owner, as such, out of
possession, not bound to repair ; Rich v. Basterfield, 4 M., G. &
S. 783 ; Russell v. Shenton, 3 Ad. & E. (n. s.) 449 ; Bishop v.
Bedford Charity, 1 E. & E. 697, — injury from falling through
grating, — all the judges agree as to this point, though divided
as to the evidence ; Cheetham v. Hampson, 4 T. R. 318, — owner
not bound to repair fences when premises leased to tenant. See
also Regina v. Watts, 1 Salk. 357.
The same rule seems clearly settled in Pennsylvania. Offer-
man v. Starr, 2 Penn. St. 394 ; and Bears v. Ambler, 9 Penn. St.
193. The latter is a case like the present in all its material cir-
cumstances. Suit against owner, held not liable, premises having
been leased in good order. And in Massachusetts, City of Lowell
v. Spaulding, cited above ; and in Maryland, Oromys v. Jones, 9
Md. 108, a very instructive and well-considered case for an injury
caused by falling through a vault under sidewalk.
But, if the scuttle had been out of repair and unsafe when leased
to the Hills, the Fishers might, perhaps, have been held liable.
Rich v. Basterfield, above cited, and Todd v. Flight, 9 C. B.
(n. s.) 377.
There may be good sense and sound policy in the rule adopted
in New York, making owner, constructing such works, liable as
insurers against all injuries which may arise from them, irrespec-
tive of the question of negligence. But we do not think it is the
sense or the policy of the common law.
The judgment must be reversed with costs, and a new trial
awarded.
The other justices concurred.
William Hillard v. Joseph Richardson.
(3 Gray, 349. Supreme Court, Massachusetts, March Term, 1855.)
Owner and Contractor. — The owner of land, who employs a carpenter for a. specific
price to alter and repair a building thereon, and to furnish all the materials for this
purpose, is not liable for damages resulting to a third person from boards deposited
in the highway in front of the land by a teamster in the employ of the carpenter,
and intended to be used in such alteration and repair.
HILLIARD V. RICHARDSON. 637
Action of tort to recover damages for an injury sustained by
the plaintiff while driving upon a highway in the city of Cam-
bridge. Trial before Merrick, J., who reported the case, after a
verdict for the plaintiff, for the consideration of the full court.
The evidence tended to prove the following facts : Between the
hours of five and six in the afternoon of December 5, 1851, the
plaintiff was driving in a wagon, in and through said highway,
when the horse suddenly took fright at a pile of boards lying by
the side of the way, but within its limits, bolted from his course,
and carried the wheel of the wagon violently against a post near
the edge of the sidewalk, whereby the plaintiff was thrown
violently from the wagon, and seriously injured. The boards
were placed there the same afternoon, and not long before the
occurrence of the accident, by a teamster, acting under the
direction of Lewis Shaw, with the intention of allowing them to
remain till the morning of the next day, and then removing them
to the land adjoining the highway. This land and the buildings
upon it belonged to the defendant, and were in his possession,
except so far as they were occupied by Shaw in the execution of
a written contract with the defendant, and under license from him.
By that contract, Shaw agreed, for a specific price, and before a
day named, to alter a certain paper factory into two dwelling-
houses, according to a plan and specification annexed to the contract,
and to make certain repairs^thereon, and to furnish all the requisite
materials. The defendant also gave Shaw Hcense to use, while
he should be engaged in the execution of the contract, one of the
buildings upon the land to shape and finish work for buildings of
his own, in which the defendant had no interest. Shaw procured
the boards and brought them to the place, chiefly for the purpose
of using them in the alteration of the defendant's buildings, under
the written contract, and was, at the time of the accident, actually
engaged in the execution of that contract.
The presiding judge instructed the jury, among other things,
that " the act of laying and leaving the boards in the highway by
Shaw must, for the purposes of this action, be deemed the act of
the defendant ; " and that " as the boards at which it was alleged
that the horse took fright were procured by Shaw, to be used, in
whole or part, in performance and execution of the written con-
tract between him and the defendant, and were materials necessary
therefor, the defendant was responsible for the acts of Shaw, in
688 NEGLIGENCE.
placing the boards in the highway, and suffering them to remain
there ; and that his liability in relation thereto was in all respects
the same as the liability of Shaw."
C. Gr. Loring, for the defendant. It. Choate and J. W. May,
for the plaintiff.
The decision was made at March term, 1856.
Thomas, J. The questions raised by the report are upon the
instruction given by the presiding judge to the jury. The
material question, that upon which the case hangs, is whether,
upon the facts reported, the defendant is liable for the acts, and
for the negligence and carelessness of Shaw.
In looking upon the case reported, it is to be observed, First,
That the acts done by Shaw, and which are charged as negligence,
were not done by any specific direction, or order, or request of
the defendant. Secondly, That between the defendant and Shaw
the ordinary relation of master and servant did not exist. Thirdly,
That the acts done, and which are charged as negligence, were
not done upon the land of the defendant. They did not consist
in the creating or suffering of a nuisance upon his own land, to
the injury of another. Fourthly, That the boards placed in the
highway were not the property of the defendant ; that he had no
interest in them, and could exercise no control over them. Fifthly,
That the defendant did not assume to exercise any control over
them. Sixthly, That there is no evidence of any purpose on the
part of the defendant to injure the plaintiff, or anybody else, or
so to use his property, or suffer it to be so used, as to occasion an
injury.
Was the defendant liable for the negligent act of Shaw in the
use of the highway ? As a matter of reason and justice, if the
question were a new one, it would be difficult to see on what
solid ground the claim of the plaintiff could rest. But he says
that such is the settled law of this Commonwealth, and that the
question is now no longer open for discussion. Three cases are
especially relied upon by the plaintiff, as settling the rule in
Massachusetts. They are Stone v. Codman, 15 Pick. 297 ; Lowell
v. Boston and Lowell Railroad, 23 Pick. 24 ; and Earle v. Hall, 2
Met. 353.
Stone v. Codman was this : The defendant employed one
Lincoln, a mason, to dig and lay a drain from the defendant's
stores, in the city of Boston, to the common sewer. By reason
HILLIAED V. EICHARDSON. 639
of the opening made by Lincoln and the laborers in his employ-
ment, water was let into the plaintiff's cellar, and his goods were
wet. 1. Lincoln procurred the materials, and hired the laborers,
charging a compensation for his services and disbursements. 2.
The acts causing the injury to the plaintiff's goods were done
upon the defendant's land, and in the use of it for the defendant's
benefit. 3. There was no contract, written or oral, by which the
work was to be done for a specific price, or as a job. 4. The case
is expressly put upon the ground that between the defendant
and Lincoln the relation of master and servant existed. The
Chief Justice, in delivering the opinion of the court, said : " With-
out reviewing the authorities, and taking the general rule of law
to be well settled, that a master or principal is responsible to
third persons for the negligence of a servant, by which damage
has been done, we are of opinion, that, if Lincoln was employed
by the defendant to make and lay a drain for him on his own
land, and extending thence to the public drain, he (Lincoln ) pro-
curing the necessary materials, employing laborers, and charging
a compensation for his own services and his disbursements, he
must be deemed, in a legal sense, to have been in the service of
the defendant, to the effect of rendering his employer responsible
for want of skill, or due diligence and care ; so that, if the plain-
tiff sustained damage by reason of such negligence, the defendant
was responsible for such damage." The case well stands on the
relation of master and servant. The work was under the control
of the defendant. He could change, suspend, or terminate it, at
his pleasure. Lincoln was upon the land with only an implied
license, which the defendant could at any moment revoke. The
work was done by Lincoln, not on his own account, but on the
defendant's. The defendant was indeed acting throughout by his
servants. The injury was done by the escape of water from land
of the defendant to that of the plaintiff, which the defendant
could have, and was bound to have prevented.
The second case relied upon by the plaintiff is that of Lowell
v. Boston & Lowell Railroad. 23 Pick. 24. In a previous suit
(Currier v. Lowell, 16 Pick. 170) the town of Lowell had been
compelled to pay damages sustained by Currier by reason of a
defect in one of the highways of the town. That defect was
caused in the construction of the railroad of the Boston & Lowell
Company. It consisted in a deep cut through the highway,
640 NEGLIGENCE.
made in the construction of the railroad. Barriers had been
placed across the highway, to prevent travellers from falling into
the chasm. It became, in the construction of the railroad, neces-
sary to remove the barriers, for the purpose of carrying out stone
and rubbish from the deep cut. They were removed by persons
in the employ of the corporation, who neglected to replace them.
Currier and another person, driving along the highway in the
night time, were precipitated into the deep cut, and seriously
injured. Currier brought his action against the town of Lowell,
and recovered damages. This action was to recover of the rail-
road corporation the amount the town had been so compelled to
pay. The railroad corporation denied their responsibility for the
negligence of the persons employed in the construction of that
part of the railroad where the accident took place, because that
section of the road had been let out to one Noonan, who had con-
tracted to make the same for a stipulated sum, and had employed
the workmen. This defence was not sustained ; nor should it
have been. The defendants had been authorized by their charter
to construct a railroad from Boston to Lowell, four rods wide
through the whole length. They were authorized to cross turn-
pikes or other highways, with power to raise or lower such
turnpikes or highways, so that the railroad, if necessary, might
pass conveniently over or under the same. St. 1830, c. 4, §§ 1,
11. Now it is plain that it is the corporation that are intrusted
by the legislature with the execution of these public works, and
that they are bound, in the construction of them, to protect the
public against danger. It is equally plain that they cannot escape
this responsibility by a delegation of this power to others. The
work was done on land appropriated to the purpose of the rail-
road, and under authority of the corporation, vested in them by
law for the purpose. The barriers, the omission to replace
which was the occasion of the accident, were put up and main-
tained by a servant of the corporation, and by their express
orders ; and that servant had the care and supervision of them.
The accident occurred from the negligence of a servant of the
railroad corporation, acting under their express orders. The case,
then, of Lowell v. Boston & Lowell Railroad stands perfectly well
upon its own principles, and is clearly distinguishable from the
case at bar. The court might well say that the fact of
Noonan being a contractor for this section did not relieve the
HILLIAED V. RICHARDSON. 641
corporation from the duties or responsibility imposed on them by
their charter and the law, especially as the failure to replace the
barriers was the act of their immediate servant acting under their
orders.
The only respect, it seems to us, in which this case aids the
doctrine of the plaintiff, is that the. learned judge who delivered
the opinion of the court cites with approbation the case .of Bush
p. Steinman, 1 Bos. & Pul. 404, as " fully supported by the
authorities and by well-established principles." It is sufficient to
remark, in passing, that the decision of the case before the court
did not involve the correctness of the rule in Bush v. Steinman.
The case of Earle v. Hall, 2 Met. 353, is the third case cited by
the plaintiff, as affirming the doctrine upon which he relies. Hall
agreed to sell land to one Gilbert. Gilbert agreed to build a house
upon and pay for the land. While the agreement was in force,
Gilbert, in preparing to build the house on his own account, by
workmen employed by him alone, undermined the wall of the
adjoining house of the plaintiff. It was held that Hall was not
answerable for the injury, although the title to the land was in
him at the time the injury was committed. The general doctrine _
is stated to be that we are not merely to inquire who is the
general owner of the estate, in ascertaining who is responsible for
acts done upon it injurious to another; but who has the efficient
control, for whose account, at whose expense, under whose orders,
is the business carried on, the conduct of which has occasioned
the injury. The case of Bush v. Steinman is cited as a leading
case, " very peculiar, and much discussed ; " but we do not
perceive that the point it decides is affirmed. The general scope
of the reasoning in Earle v. Hall, as well as the express point
decided, are adverse to it.
These cases neither in the points decided nor the principles
which they involve support the rule contended for by the
plaintiff.
But the plaintiff says that the well-known case of Bush v.
Steinman is directly in point, and that that case is still the settled
law of Westminster Hall. If so, as authority, it would not con-
clude us ; though, as evidence of the law, it would be entitled to
high consideration.
Upon this case of Bush v. Steinman, three questions arise : —
1. What does it decide ? 2. Does it stand well upon authority
41
642 NEGLIGENCE.
or reason ? 3. Has its authority been overthrown or substantially
shaken and impaired by subsequent decisions ?
1. The case was this : A., having a house by the roadside, con-
tracted with B. to repair it for a stipulated sum ; B. contracted
with C. to do the work ; C. with D. to furnish the materials ; the
servant of D. brought a quantity of lime to the house, and
placed it in the road, by which the plaintiff's carriage was over-
turned. Held, that A. was answerable for the damage sustained.
2. At the trial, Chief Justice Eyre was of opinion that the
defendant was not answerable for the injury. In giving his
opinion at the hearing in banc, he says he found great difficulty
in stating with accuracy, the grounds on which the action was to
be supported ; the relation of master and servant was not suf- •
ficient; the general proposition, that a person shall be answerable
for any injury which arises in carrying into execution that which
he has employed another to do, seemed to be too large and loose.
He relied, as authorities, upon three cases only : Stone v. Cart-
wright, 6 T. R. 411 ; Lonsdale v. Littledale, 2 H. Bl. 267 ; and
a case stated upon the recollection of Mr. Justice Buller.
Stone v. Cartwright lays no foundation for the rule in Bush v.
Steinman. The decision was but negative in its character. It
was that no action would lie against a steward, manager, or
agent for the damage of those employed by him in the service of
his principal. This is the entire point decided. Lord Kenyon
said, " I have ever understood that the action must be brought
against the hand committing the injury, or against the owner for
whom the act was done." The injury complained of was done
upon the land of the defendant, and by his servants. It consisted
in so negligently working the defendant's mine as to undermine
the plaintiffs ground and buildings about it, so that the surface
gave way. The mine was in the possession of the defendant ;
the injury was direct and immediate ; the workmen were the
servants of the owner.
The case of Lonsdale v. Littledale, in its main facts, cannot be
distinguished from Stone v. Cartwright. It stands upon the same
grounds. The defendant's steward employed the under-workmen.
They were paid out of the defendant's funds. The machinery
and utensils belonged to the defendant, and all the persons em-
ployed were his immediate servants.
The third case was but this : a master having employed his
HILLIARD V. RICHARDSON. 643
servant to do some act, this servant, out of idleness, employed
another to do it ; and that person, in carrying into execution the
orders which had been given to the servant, committed an injury
to the plaintiff, for which the master was held liable. What
was the nature of the act done does not appear. And whether
the case was rightly decided or not, it is difficult to see any anal-
ogy between it and the case the Lord Chief Justice was consid-
ering.
Mr. Justice Heath referred to the action for defamation,
brought against Tattersall, who was the proprietor of a news-
paper, with sixteen others. The libel was inserted by the person
whom the proprietors had employed by contract to collect the
news and compose the paper, yet the defendant was held liable.
It would seem to be not very material who composed the paper,
but who owned and published it.
Mr. Justice Heath also cited, as in point, the case of Rose well
v. Prior, 2 Salk. 460, which was an action upon the case for ob-
structing ancient lights. The defendant had erected upon his
land the obstruction complained of. There had been a former
recovery for the erection ; this suit was for the continuance.
The premises of the defendant had been leased. The question
was, whether the action would lie for the continuance after his
lease. " Et per cur. It lies ; for he transferred it with the
original wrong, and his demise affirms the continuance of it ; he
hath also rent as a consideration for the continuance, and there-
fore ought to answer the damage it occasions."
Mr. Justice Rooke, in addition to the cases of Stone v. Cart-
wright and Littledale v. Lonsdale, alluded also to the case of
Michael v. Alestree, 2 Lev. 172, in which it was held that an
action might be maintained against a master for damage done by
his servant to the plaintiff in exercising his horse in an improper
place, though he was absent, because it should be intended that
the master sent the servant to exercise the horses there. See
Parsons v. Winchell, 5 Cush. 595.
The examination of these cases justifies the remark that Bush v.
Steinman does not stand well upon the authorities, and is not a
recognition of principles before that time settled. The rule it
adopts is apparently for the first time announced.
Does it stand well upon the reasoning of the court ? We think
all the opinions given in it lose sight of these two important dis-
644 NEGLIGENCE.
tinctions : in the cases cited and relied upon, the acts done, which
were the subjects of complaint, were either acts done by servants
or agents, under efficient control of the defendants, or were nuis-
ances created upon the premises of the defendants, to the direct
injury of the estate of the plaintiffs. The servant of the lime-
burner was not servant of the defendant ; over him the defend-
ant had no control whatsoever; to the defendant he was not
responsible. There was no nuisance created on the defendant's
land. It does not appear that the defendant owned the fee of
the highway. The case is put on the ground that the lime was
put near the premises of the defendant, and with a view of being
carried upon them. The lime was not on the defendant's land ;
he did not direct it to be put there : he had not the control of
the man who put it there.
Mr. Justice Heath said, " I found my opinion on this single
point, viz., that all the sub-contracting parties were in the
employ of the defendant." This is not so, unless it be true
that a man who contracts with a mason to build a house employs
the servant of the man who burns the lime.
Mr. Justice Rooke says, " The person, from whom the whole
authority is originally derived, is the person who ought to be
answerable, and great inconvenience would follow if it were
otherwise." It cannot be meant that one who builds a house is
to be responsible for the negligence of every man and his servants
who undertake to furnish materials for the same. Such a rule
would render him liable for the most remote and inconsequential
damages. But the act complained of did not result from the
authority of the defendant. The authority under which the
servant of the lime-burner acted was that of his master. And
neither the lime-burner nor his servant was acting under the
authority of the defendant, or subject to his control. The
defendant might, with the same reason, have been held liable for
the carelessness of the servant who burnt the lime, and of the
servant of the man who furnished the coals to burn the lime.
3. Has the doctrine of the case of Bush v. Steinman been
affirmed in England, or has it been overruled and its authority
impaired ?
The plaintiff cites the case of Sly v. Edgely, at nisi prius, 6
Esp. R. 6. The defendant, with others, then owning several
houses, the kitchens of which were subject to be overflowed,
HILLIARD V. RICHARDSON. 645
employed a bricklayer to sink a large sewer in the street. The
bricklaj-er opened the sewer and left it open, and the plaintiff
fell in. It was contended that the bricklayer was not the servant
of the defendant. He was employed to do a certain act, and the
mode of doing it, which had caused the injury, was certainly his
own. Lord Ellenborough is reported as saying, " It is the rule
of respondeat superior ; what the bricklayer did was by the defend-
ant's direction." It does not appear how the bricklayer was
employed. If not by independent contract, the case stands very
well on the relation of master and servant. A case at nisi prius,
so imperfectly reported, can have but little weight.
Another case at nisi prius was that of Matthews v. West
London Water "Works, 3 Campb. 403, in which the defendants,
contracting with pipe-layers to lay down pipes for the conveyance
of water through the streets of the city, were held liable for the
negligence of workmen employed by the pipe-layers. The case is
very briefly stated, and no reasons given by Lord Ellenborough
for his opinion reported. It may stand on the ground that the
defendants, having a public duty to discharge, as well* as right
given, could not delegate this trust, so as to exempt themselves
from responsibility. This case is alluded to in Overton v. Freeman,
11 C. B. 872, hereafter to be examined, where Maule, J., makes
the following remarks concerning it : " That is but a nisi prius
case ; the report is short and unsatisfactory ; and the particular
circumstances are not detailed."
In Harris v. Baker, 4 M. & S. 27, and in Hall v. Smith, 2 Bing.
156, it was held that trustees or commissioners, intrusted with
the conduct of public works, were not liable for injuries occasioned
by the negligence of the workmen employed under their authority.
These cases stand upon the ground that an action cannot be
maintained against a man, acting gratuitously for the public, for
the consequences of acts which he is authorized to do, and which
on his part are done with due care and attention. They give no
sanction whatever to the doctrine of Bush v. Steinman.
In Randleson v. Murray, 8 Ad. & El. 109, a warehouseman in
Liverpool employed a master porter to remove a barrel from his
warehouse. Through negligence of his men the tackle failed,
and the barrel fell and injured the plaintiff. Held, that the ware-
houseman was liable. The case is put distinctly on the relation
of master and servant. Lord Denman said, " Had the jury been
646 NEGLIGENCE.
asked whether the porters whose negligence occasioned the
accident were the servants of the defendant, there can be no
doubt they would have found in the affirmative." The injury-
occurred also in the direct use of the defendant's estate.
In Burgess v. Gray, 1 C. B. 578, the defendant, owning and
occupying premises adjoining the highway, employed one Palmer
to make a drain from his land to the common sewer. In doing
the work, the men employed by Palmer placed gravel on the
highway, in consequence of which the plaintiff, in driving along
the road, sustained a personal injury. There was evidence that,
upon the defendant's attention being called to the gravel, he
promised to remove it. The matter left to the jury was whether
the defendant wrongfully put, or caused to be put, the gravel on
the highway. " I think," says Tindal, C. J., " there was evi-
dence to leave to the jury in support of that charge. If, indeed,
this had been the simple case of a contract entered into between
Gray and Palmer, that the latter should make the drain and
remove the earth and rubbish, and there had been no personal
superintendence or interference on the part of the former, I
should have said it fell within the principle contended for by my
brother Byles, and that the damage should be made good by the
contractor, and not by the individual for whom the work was
done." After adverting to the evidence that the soil was placed
upon the road with the defendant's consent, if not by his express
direction, he says, " I therefore think the case is taken out of
the rule in Bush v. Steinman, which is supposed to be incon-
sistent with the later authorities." Coltman, J., said, " I think
there was evidence enough to satisfy the jury that the entire
control of the work had not been abandoned to Palmer." Cress-
well, J., said, "No precise contract for the work was proved ;
nor was it shown that Palmer was employed to do the work
personally, the mode of doing it being left to his judgment and
discretion. I think there was abundant evidence to show that
the defendant at least sanctioned the placing of the nuisance on
the road." Earl, J., said, " The work was done with the knowl-
edge of the defendant, and under his superintendence, and for his
benefit." This well-considered case, it is plain, so far from
affirming the rule in Bush v. Steinman, is carefully and anxiously
taken out of it by the counsel and by the court, with the strongest
intimation by the latter that, but for the difference, the action
could not be maintained. »
HILLIARD V. RICHARDSON. 647
The latest case in England, referred to in the learned argument
of the plaintiffs counsel, as affirming the doctrine of Bush v.
Steinman, is Sadler v. Henlock, in the Queen's Bench (1855), 4
El. & Bl. 570. The defendant, with the consent of the owner
of the soil and the surveyor of the district, employed one Pearson,
a laborer, but skilled in the construction of drains, to cleanse a
drain running from the defendant's garden under the public
road, and paid five shillings for the job. Held, that the defend-
ant was liable for an injury occasioned to the plaintiff by reason
of the negligent manner in which Pearson had left the soil of the
road over the drain. The case is put by all the judges distinctly
on the relation of master and servant ; and Crompton, J.,, said :
" The test here is whether the defendant retained the power of
controlling the work. No distinction can be drawn from the cir-
cumstance of the man being employed at so much a day or by
the job. I think that here the relation was that of master and
servant, not of contractor and contractee. It is only on the
ground of a contractor not being a servant that I can understand
the authorities." The case of Bush v. Steinman is not referred to
by either of the justices ; but the distinction of servant and con-
tractor runs through the whole case, — a distinction which is
wholly inconsistent with the doctrine of Bush v. Steinman.
In Laugher v. Pointer, 5 B. & C. 547 and 8 D. & R. 556
(1826), where the owner of a carriage hired of a stable-keeper
a pair of horses to draw it for a day, and the owner of the horses
provided a driver, through whose negligent driving an injury was
done to the horse of a third person, it was held by Lord Tenter-
den, C. J., and Littledale, J., that the owner of the carriage was
not liable for such injury ; Bayley and Holroyd, Justices, dissent-
ing. This case is in substance the one put by Mr. Justice
Heath, in illustration and support of the judgment in Bush v.
Steinman. In the opinion of Lord Tenterden and of Littledale,
J., the doctrines of Bush v. Steinman, in their application to per-
sonal property, are examined, and their soundness questioned.
In Qtiarman v. Burnett, 6 M. & W. 499 (1840), the same
question arose in the Exchequer as in Laugher v. Pointer in the
King's Bench, and the opinions of Lord Tenterden and Little-
dale, J., were affirmed, in a careful opinion pronounced by Baron
Parke. In the course of it, he says: "Upon the principle that
qui facit per alium facit per se, the master is responsible for the
648 NEGLIGENCE.
acts of his servant ; and that person is undoubtedly liable who
stood in the relation of master to the wrong-doer, he who had
selected him as his servant, from the knowledge of, or belief in,
his skill and care, and who could remove him for misconduct, and
whose orders he was bound to receive and obey ; and whether
such servant has been appointed by the master directly, or inter-
mediately through the intervention of an agent authorized by him
to appoint servants for him, can make no difference. But the
liability, by virtue of the principle of relation of master and ser-
vant, must cease where the relation itself ceases to exist."
These cases, however, do not overrule Bush v. Steinman, as to
the liability of owners of real estate.
The case of Milligan v. Wedge, 12 Ad. & El. 737 and 4 P. &
Dav. 714 (1840), is also in relation to the use of personal property,
and rests upon the rule settled in Quarman v. Burnett. But in
this case Lord Denman suggests a doubt whether the distinction
as to the law in cases of fixed and movable property can be relied
on.
The case of Rapson v. Cubitt, 9 M. & W. 710 (1842), was
this : The defendant, a builder, employed by the committee of
a club to make certain alterations at the club-house, employed a
gas-fitter, by a sub-contract, to do that part of the work. In
the course of doing it, by the negligence of the gas-fitter, the gas
exploded, and injured the plaintiff. Held, that the defendant was
not liable. The reasons upon which this decision is based do not
well consist with the rule in Bush v. Steinman.
The case of Allen v. Hay ward, 7 Ad. & El. N. S. 960 (1845),
is still more directly adverse. But we pass from these to cases
directly in point.
In the cases of Reedie & Hobbit v. London and North-western
Railway, 4 Exch. 244, 254 (1849), the defendants, empowered by
act of Parliament to construct a railway, contracted under seal
with certain persons to make a portion of the line, and, by the
contract, reserved to themselves the power of dismissing any of
the contractors' workmen for incompetence. The workmen, in
constructing a bridge over a highway, negligently caused the
death of a person passing beneath, along the highway, by allowing
a stone to fall upon him. In an action against the company, it
was held that they were not liable, the terms of the contract
making no difference. In the judgment of the court, given by
HILLIAED V. RICHARDSON. 649
Baron Rolfe (now Lord Chancellor Cranworth), alluding to the
supposed distinction as to real property, the court say : " On full
consideration, we have come to the conclusion that there is no
such distinction, unless, perhaps, in cases where the act complained
of is such as to amount to a nuisance ; and, in fact, that, ac-
cording to the modern decisions, Bush v. Steinman must be taken
not to be law, or, at all events, that it cannot be supported on the
ground on which the judgment of the court proceeded." Without
sanctioning this doctrine, as it affects a public trust, it is very
plain that it directly overrules the doctrine of Bush v. Steinman.
The case of Knight v. Fox, 5 Exch. 721 (1850), is, if possible,
a stronger case in the same direction, — a decision which, it is
plain, could not have been made if the doctrines of Bush v. Stein-
man were the law of Westminster Hall.
There are three cases remaining. In Overton v. Freeman, 11
C. B. 867 (1851), A. contracted to pave a district, and B. entered
into a sub-contract with him to pave a particular street. A.
supplied the stones, and his carts were used to carry them. B.'s
men, in the course of the work, negligently left a heap of stone
in the street. The plaintiff fell over them, .and broke his leg.
It was held that A. was not liable, even though the act complained
of amounted to a pnblic nuisance. And Maule, J., said that
the case of Bush v. Steinman " has been considered as having
laid down the law erroneously."
In Peachey v. Rowland, 13 C. B. 182 (1853), the defendants
contracted with A. to fill the earth over a drain, which was being
made for them across a portion of the highway, from their house
to the common sewer. A., after having filled it in, left the earth
so heaped above the level of the highway, as to constitute a pub-
lic nuisance, whereby the plaintiff, in driving along the road, sus-
tained an injury. The case had this other feature. A few days
before the accident, and before the work was finished, one of the
defendants had seen the earth so heaped over a portion of the
drain; but beyond this there was no evidence that either defend-
ant had interfered with, or exercised any control over, the work.
It was held there was no evidence to go to the jury of the defend-
ants' liability. Bush v. Steinman appears not to have been cited
by counsel or alluded to by the court.
The still more recent ease of Ellis v. Sheffield Gas Consumer's
Co., 2 El. & Bl. 767 (1853), cited by the counsel for the plaintiff,
650 . NEGLIGENCE.
only determined that a party employing another to do an act un-
lawful in itself, 'will be liable for an injury such act may occasion,
— very familiar and well-settled law.
Bush v. Steinman is no longer law in England. If ever a case
can be said to have been overruled, indirectly and directly, by
reasoning and by authority, this has been. No one can have ex-
amined the case without feeling the difficulty of that clear-headed
judge, Chief Justice Eyre, of knowing on what ground its deci-
sion was put. It could not stand on the relation of master and
servant. That relation did not exist. It could not stand upon
the ground of the defendant having created or suffered a nuisance
upon his own land, to the injury of his neighbor's property. The
lime was on the highway. There is no rule to include it, but the
indefinitely broad and loose one that a person shall be answerable
for any injury which arises in carrying into execution that which
he has employed another to do, — a rule which ought to have been
and was expressly repudiated.
The case of Leslie v. Pounds, 4 Taunt'. 649, not cited in the
argument, has some resemblance to the cases before referred to.
This was an action against the landlord of a house leased, who,
under contract with the tenant who was bound to repair, em-
ployed workmen to repair the house and superintended the work.
Being remonstrated with by the commissioners of pavements as
to the dangerous state of the cellar, he promised to take care of
it, and had put up some boards temporarily as a protection to the
public. They proved insufficient, and, the plaintiff falling through,
the landlord was held liable. The case was decided on the
ground that the landlord was making the repairs, and that the
workmen were employed by him, and were his servants.
The suggestion is made that, whatever may be the result of the
later cases in England, the doctrine of Bush v. Steinman has been
affirmed in this country. The cases in this court we have
already examined.
The case of Bailey v. Mayor, &c, of New York, 3 Hill, 531,
and 2 Denio, 433, was an action brought against the corporation
of New York for the negligent and unskilful construction of the
dam for the water-works at Croton River, by the destruction of
which injury was occasioned to the mills of the plaintiff. The
city was held responsible. This case rests well upon the ground
that where persons are invested by law with authority to execute
HILLIARD V. RICHARDSON. 651
a work involving ordinarily the exercise of the right of eminent
domain, and always affecting rights of third persons, they are to
be liable for the faithful execution of the power, and cannot
escape responsibility by delegating to others the power with
which they have been intrusted.
Blake v. Ferris, 1 Seld. 48, seems to conflict with Bailey v.
Mayor, etc., of New York. Certain persons were permitted to
construct a public sewer at their own expense ; they employed
another person to do it at an agreed price for the whole work;
the plaintiffs received an injury from the negligent manner in
which the sewer was left at night. It was held that the persons
who were authorized to make the sewer were not responsible for
the negligence _ of the servants of the contractor. This case
utterly rejects the rule of Bush v. Steinman.
The case of Stevens v. Armstrong, 2 Seld. 435, was this : A.
bought a heavy article of B., and sent a porter to get it ; by per-
mission of A., the porter used his tackle and fall ; through neg-
ligence, the porter suffered the article to drop, by which C. was
injured. It was held, that the porter acted as the servant of B.,
and that A. was not answerable. Yet this was an injury done on
A.'s estate, by his permission, and in the use of his property.
This case also rejects the rule of Bush v. Steinman.
In Lesper v. Wabash Navigation Co., 14 111. 85, where a cor-
poration was authorized to construct public works, and contracted
with others to do the work and find the materials, and the con-
tractors nevertheless took the materials, under the authority
granted to the corporation, the corporation were held liable there-
for. If the court could find that the materials were taken under
the authority of the corporation, the case will stand perfectly
well under the rule of Lowell v. Boston and Lowell Railroad, and
Bailey v. Mayor, &c, of New York.
The case of Willard v. Newbury, 22 Vt. 458, and Batty v.
Duxbury, 24 Vt. 155, rest on the same principles.
In the case of Wiswell v. Brinson, 10 Ired. 554, the court
held an owner of real estate responsible for the negligence of the
servant^ of a carpenter with whom the defendant had contracted,
for a stipulated price, to remove a barn on to his premises. This
case (in which, however, there was a divided judgment, Ruffin,
C. J., dissenting in a very able opinion), certainly sustains the
doctrine of Bush v. Steinman.
652 NEGLIGENCE.
De Forrest v. "Wright, 2 Mich. 368, not cited, is in direct con-
flict with the rule of Bush v. Steinman. A public licensed dray-
man was employed to haul a quantity of salt from a warehouse,
and deliver it at the store of the employer, at so much a barrel.
While in the act of delivering it, one of the ban-els, through
the carelessness of the drayman, rolled against and injured a
person on the sidewalk. It was held that the employer was not
liable for the injury, the drayman exercising a distinct and inde-
pendent employment, and not being under the immediate control
and direction or supervision of the employer. This is a well-
considered case, rejecting the rule of Bush v. Steinman, and
sanctioning the result to which we have been brought in the case
at bar.
We have thus, at the risk of tediousness, examined the case at
bar as one of authority and precedent. The clear weight and
preponderance of the authorities at common law is against the
rule given to the jury.
The rule of the civil law seems to have limited the liability to
him who stood in the relation of paterfamilias to the person doing
the injury. Inst. lib. 4, tit. 5, §§ 1, 2 ; 1 Domat, pt. 1, lib. 2, tit.
8, § 1 ; Dig. lib. 9, tit. 2, § 1.
Viewing this as a question, not of authority, but to be deter-
mined by the application to these facts of settled principles of
law, upon what principle can the defendant be held responsible
for this injury? He did "not himself do the act which caused the
injury to the plaintiff. It was not done by one acting by his
command or request. It was not done by one whom he had the
right to command, over whose conduct he had the efficient con-
trol, whose operations he might direct, whose negligence he might
restrain. It was not an act done for the benefit of the defend-
ant, and from the doing of which an implied obligation for com-
pensation would arise. It was not an act done in the occupation
of land by the defendant, or upon land to which, upon the facts,
he had any title. To say that a man shall be liable for injuries
resulting from acts done near to his land is to establish a rule as
uncertain and indefinite as it is manifestly unjust. It is to make
him liable for that which he cannot forbid, prevent, or remove.
The case cannot stand on the relation of master and servant. It
cannot stand upon the ground of nuisance erected by the owner
of land, or by his license, to the injury of another. It cannot
WHO LIABLE. 653
stand upon the ground of an act done in the execution of a work
under the public authority, as the construction of a railroad or
canal, and from the responsibility for the careful and just execu-
tion of which public policy will not permit the corporation to
escape by delegating their power to others. It can only stand
where Bush v. Steinman, when carefully examined, stands, upon
the general proposition that a person shall be answerable for any
injury which arises in carrying into execution that which he has
employed another to do ; to adopt which would be to ignore all
limitations of legal responsibility.
As the determination of this, the first and most material of the
exceptions, may probably finallj- dispose of the cause, we have
not considered the other parts of exception to the rulings of the
presiding judge. New trial granted.
Who liable, (a) Landlord and Tenant, quoad hoc stands as independent of the
— The principal case, Fisher v. Thirkell, lessor (towards third persons) as if he
contains such a full and satisfactory dis- were a purchaser of the fee.
cussion of the liability of the owners of If, notwithstanding a lease, the land-
premises, of which they are not in pos- lord retain possession or control over
session, to persons who suffer damage the premises, he will be liable for
by reason of the negligence of tho>e injuries resulting from a failure to per-
who are in possession, as to leave little form a duty required by law ; such as
more to be said. the duty to keep a wharf in repair. See
We have upon a previous page (495) Taylor v. New York, 4 E. D. Smith,
referred to cases in which an attempt 559, where the corporation of New York
was made to hold the landlord of a City was held liable to the plaintiff for
tenement building liable for injury sus-> injuries sustained by reason of the in-
tained by one tenant from the escape of secure condition of a wharf belonging
water from the water-closet of tenants to the city, though the right to collect
above; in which it was held that the wharfage had been leased to another,
landlord was not bound to keep the And it was held immaterial in this case,
water from the plaintiff's premises at that by the terms of the lease the
all hazards. Ross v. Fedden, Law R. lessee was bound to repair. But the
7 Q. B. 661. Nor, according to the court observed that the tenant would
doctrine of Fisher v. Thirkell, would have been liable had the lease been a
the landlord, apart from agreement, be grant of the pier for the term, instead
liable for injury thus sustained, if it of the mere wharfage dues.
were caused by the negligence of the So, of course, the landlord will be
upper tenant. (But see Marshall v. liable for injuries sustained by reason
Cohen, 44 Ga. 489 ; ante, 495, 496.) A of his own negligence, though he has
lease is in truth a sale of the particular wholly given up the possession and con-
estate; and, in the absence of any trol of the premises to the tenant; as
thing therein to the contrary, the lessee was said in Fisher v. Thirkell. See
654
NEGLIGENCE.
also Shearman & Redf., Negligence,
§ 502, and cases cited.
But though the landlord retain pos-
session of the premises with the tenant,
he will not be liable for injuries sus-
tained by the tenant's customers and
visitors, if he have not induced them to
come there. And a fortiori if the
tenant is in exclusive possession. See
Robbins c. Jones, 15 Com. B. N. S.
221, 240.
See further, upon this subject, Moore
v. Goedel, 7 Bosw. 591 ; s. c. 34 N. Y.
527; Warren v. Kauffman, 2 Phila.
259 ; Killion v. Power, 51 Penn. St. 429 ;
Kobbins v. Mount, 4 Robt. (N. Y.)
553 ; Ortmayer v. Johnson, 45 111.
469 ; Shearman & Redf., Negligence,
§§ 512-514.
(6) Contractors. — The doctrine of
Hilliard v. Richardson, supra, has be-
come settled law, both in this country
and in England. The owner of premises
is not liable for the acts or omissions
of one engaged in work thereon, over
whom he has no control, though that
person be under contract with the
owner, and be at the time of the injury
engaged in the performance thereof;
subject to the exceptions laid down by
the learned judge.
In the recent case of Cuff v. Newark
& N. Y. R. Co., 6 Vroom, 17, the
plaintiff sued the defendant for the
death of her husband. The facts in
brief were that the defendants, being
engaged in the construction of a rail-
road, had let the work of grading and
masonry to the firm F. & S. This firm
had, with the consent of the defendants,
sub-contracted with S. to make certain
rock excavations. The deceased was
killed while engaged in this latter work,
through the negligence of one of S.'s
servants, — in the use of nitro-glycerine
upon the defendants' premises. S. had
applied to and obtained permission of
the company to occupy a portion of
their land for the erection of a maga-
zine in which to store the oil necessary
for the work of blasting. The contract
between the defendants and F. & S.
declared that the work of excavating
should not be sublet to any one with-
out the consent of the former, and that
the latter should discharge any incom-
petent or disorderly workmen emploved
by them (F. & S.) when required so to
do by the defendants. The latter con-
sented to the subletting to S., but
made no contract with him themselves.
It was held that the plaintiff could
not recover. The authorities were ex-
tensively reviewed, and the same con-
clusion reached as that stated by Mr.
Justice Thomas, supra, that Bush v.
Steinman was no longer considered as
law, if it ever had been.
The attempt was made by counsel
to avoid the effect of the current of
authority by the argument that, as the
defendants had retained the power to
order the discharge of incompetent
workmen, the employees were all in
effect their servants. But this was
denied by the eourt. It was observed
that this position was based upon an
erroneous notion as to the foundation
of the maxim respondeat superior. The
point of inquiry was not under what
circumstances was the owner, who lets
the particular contract, exempt from
liability for the negligence of the em-
ployees of the contractor. The ques-
tion of liability depended upon the
relation of master and servant, incident
to which was the power to select the
servant, direct him in the performance
of his work, and to discharge him when
found incompetent; and also the duty
to so control his acts that no injury
might be done to third persons. There
WHO LIABLE.
655
were cases, it was further said, in which
those who have let work on contract
had been held liable for negligence in
the manner of doing it ; but those were
cases in which the contract created only
the ordinary hiring for service, or the
party who let the work retained and
exercised the control and direction of
the employees by whom the manual
labor was done, or personally partic-
ipated in the wrong complained of.
Randleson v. Murray, 8 Ad. & E. 109
Sadler v. Henlock, 4 El. & B. 570
burgess v. Gray, 1 Com. B. 578
Fenton r. Dublin Steam Packet Co., 8
Ad. & E. 835.
Another class of cases was also re-
ferred to and distinguished ; to wit,
those in which municipal corporations
have been held liable for the negligence
of the servants of their contractors in
making excavations in the public streets ;
and those in which railroad companies
have been held for damages sustained
by passengers by reason of defects in
the platform of their depots, occasioned
by the carelessness of employees of con-
tractors to whom the work of construc-
tion had been let. But these cases did
not rest on the relation of master and
servant. The obligation resulted from
the duty, in the one case, to see that
the streets are kept safe for the passage
of persons and property, and, in the
other, to provide for passengers a safe
means of access to and from the cars, —
a duty independent of the means by
which the obstructions or defects were
occasioned. Storrs v. City of Utica, 17
N. Y., 104; Chicago v. Robbins, 2
Black, 418 ; Holmes v. North-eastern
Ry. Co., Law R. 4 Ex. 254; Gillis v.
Pennsylvania Railway Co., 8 Am. Law
Reg. n. s. 729 ; Smith v. London, &c,
Docks Co., Law R. 3Com. P. 326. (As
to the case ol railroad companies, the
liability doubtless arises only after the
work of the contractor has been ac-
cepted, and has thus in fact and in law
become the work of the owner of the
property. While the contractor re-
mains at work (as such) , the railroad
company cannot be liable.)
The same doctrine, as we have said,
prevails in England. It has there in-
deed been decided that the employment
of their own surveyor by a company
having work done under a contract, to
superintend it and direct what shall be
done, will not make the company liable
for negligence in the manner of doing
it, though it was directed to be done by
the surveyor. Steel v. South-eastern
Ry. Co., 16 Com. B. 550. So, in
Brown v. Accrington Cotton Co., 3
Hurl. & C. 511, one who had a building
erected by contract was held not liable
for injury occasioned to a workman in
the building, by reason of its negligent
construction, though the owner em-
ployed a clerk to superintend the
construction ; provided he did not per-
sonally interfere in the work, and was
not guilty of negligence in the appoint-
ment or retention of the clerk. See
also Pack v. New York, 8 N. Y. 222;
Kelly v. New York, 11 N. Y. 433.
But a distinction (alluded to in Fisher
v. Thirkell) is to be observed between the
above cases and those in which it appears
that the act contracted to be done is ab
initio illegal. In the latter case the owner
is liable. In Ellis v. Sheffield Gas Co.,
2 El. & B. 767, it appeared that the
defendants had engaged a certain firm
to open trenches along the streets of
Sheffield, in order that they might lay
down gas-pipes there. The contracting
firm performed the work in such a neg-
ligent manner that the plaintiff was
thereby injured. No authority had
been granted to thus lay open the
656
NEGLIGENCE.
street; and the court, while admitting
the general rule, held the defendants
liable on this ground.
The act of the defendants in this
case was a public nuisance, but that
was not sufficient. The cases spoken
of in the principal case (Hilliard v.
Richardson) are those of nuisances
brought upon land belonging to the
defendant. Where the nuisance is
caused upon land of the public, it is
necessary that the work by which it
was caused should have been illegal
from the beginning, as was the case in
Ellis v. Sheffield Gas Co., supra. In
Overton v. Freeman, 11 Com. B. 867,
infra, the act out of which the injury
grew was a public nuisance ; but the
work was itself legal, and therefore the
principal was not liable. I must not
allow my contractor to create a nuisance
upon premises under my control ; but it
does not affect me if he does it on
land of the public, provided I employed
him in a lawful enterprise, and had no
part in the particular acts or omission.
That the occupant having control of
premises is liable for the acts and omis-
sions of his contractor, see also Homan
v. Stanley, 66 Penn. St. 465, where the
contractor had carried an excavation
out under the sidewalk.
It would seem that, in case of a work
illegal ab initio, the contractor would
be equally liable with the proprietor or
principal, even though the latter has
ordered the doing or omission of the
particular thing out of which the dam-
age sprung ; though it would be other-
wise where the undertaking was lawful.
Yet there is probably a qualification to
this latter branch of the proposition; as
where, though the undertaking was it-
self lawful, the particular part out of
which the injury grew was a violation
of the rights of the public. Indeed, the
distinction taken in the above cases is
rather based upon a diffrrence between
the violation of public and that of pri-
vate rights; but we apprehend that this
is but part of a wider rule of law.
In the French law the same distinc-
tion between damage as the effect of a
violation of public and of private rights
is taken. M. Sourdat, a learned writer
on Delicts, speaking of the liability of
builders and architects, says: "II faut
seulement observer que le constructeur
ne peut se mettre a Tabri de Taction des
tiers en alleguant qu'il n'a fait que se
conformer aux ordres du proprietaire,
lorsqu'il s'agit d'une contravention aux
regies de Tart et aux reglements de
police relatifs a la solidite et a la secu-
rity des batiments, en un mot, a tout ce
qui interesse l'ordre public. Un archi-
tecte doit se refuser a executer des
ordres pareils.
" S'il s'agit d'une infraction aux lois
du voisinage, qui n'interesse que l'ordre
prive, comme si une fosse d'aisances a
(Ste" construite trop pres du mur du
voisin ; si une fenGtre a ete ouverte sur
son heritage plus pies que la loi ne
permet, le constructeur peut se faire
deV'harger, meme vis-a-vis du voisin, en
prouvant que le proprietaire lui a donne
des ordres expres en se ehargeant de la
responsibilite, car celui-ci peut transi-
ger avec le reclamant, et peut-6tre aussi
a-t-il a faire valoir un droit de servitude
qui rendrait la derogation a la loi tout
a fait legitime." Traite de la Respon-
sibilite, vol. ii. § 672.
The same writer adds, in the follow-
ing section, " Cette responsibilite s'ap-
plique a tout constructeur qui n'est pas
l'agent passif du proprietaire ou de
celui qui le remplace. . . . Peu importe
qu'il s'agisse d'un edifice a prix fait ou
dont le prix se regie par l'etendue des
travaux. II suffit que le constructeur
■WHO LIABLE.
657
les ait personnellement faits ou diriges." certain district, and made a sub-con-
See also post, p. 659, as to the relation tract with B., by which the latter was
of builder and architect. to lay the paving of a certain street
Another ground of liability was with materials to be furnished by A.
urged in Cuff c. Xewark & N. Y. R. Preparatory to paving, the stones were
Co., supra, based upon the use by the laid by servants of B. on the pathway,
sub-contractor of the defendant's prem- and there left in such a manner as to
ises, as above stated; and this, it seems, obstruct the same ; and C. fell over
would have been upheld had not the them, and broke his leg. It was held
injury been caused by the intervention that C. could not maintain an action
of a third person. But the chain of against A. (As to the distinction be-
causation had thus been broken, and tween this case and Ellis v. Sheffield
the defendants could not be considered Gas Co., 2 El. & B. 7(37, see supra,
as having, in the legal sense, caused p. 656.) The case of Matthews v. West
the damage. See, upon this point, the London Water-works Co., 3 Campb.
note to Thomas v. Winchester, ante, 403, was overruled.
p. 608. Knight v. Fox was a still stronger
See further, as to who are contract- case. There the sub-contractor was in
ors, Brackett ». Lubke, 4 Allen, 13S ; fact, for some purposes, the servant of
Wood v. Cobb, 13 Allen, 58 ; Railroad the defendant. The defendant had em-
Co. v. Hanning, 15 Wall. 649 ; Camp ployed him as his general servant and
v. Church Wardens, 7 La. An. 321; surveyor; and he had the management
Painter v. Pittsburgh, 46 Penn. St. 213. of the defendant's business in London,
(c.) Sub-contractors. — The princi- for which he received an annual salary,
pie upon which the proprietor is ex- In this particular case the defendant
empted from liability for the negligence engaged him by contract for £40 to
of his contractor prevails as between erect a scaffold, which had become nec-
the contractor and his sub-contractor, essary in building a bridge ; and the
under the same circumstances. Cuffc. defendant was to furnish the materials.
Newark & X. T. R. Co., 6 Vroom, 17, But it was held that the defendant was
28; Rapson v. Cubitt, 9 Mees. & W. not liable for damage sustained by rea-
710; Knight v. Fox, 5 Ex. 721; Over- son of the negligence of his sub-cou-
ton v. Freeman, 11 Com. B. 867. tractor's workmen.
In Kapson v. Cubitt, a leading case (d.) Servants employing Others. —
on this point, the defendant, a builder, A servant who merely hires laborers
was employed to make certain altera- for the performance of the master's
tions in a club-house. He sublet to a work is not in the situation of a sub-
gas-fitter the work of preparing the gas- contractor, and cannot be held for dam-
fittings. In consequence of the negli- ages caused by the negligence of such
gence of the latter, or of his servants, laborers. Thus, a gardener or steward,
the gas exploded and injured the plain- who employs laborers under him to do
tiff. It was held that the plaintiff's his master's work, is not answerable
remedy was against the gas-fitter, and for the defaults or improper conduct
not against the defendant. of such laborers. In su. h cases the ac-
In Overton v. Freeman, A. had con- tion must be brought either against the
tracted with parish officers to pave a hand committing the injury, or against
42
658
NEGLIGENCE.
the owner for whom the act was done,
or against both jointly. Addison,
Torts, 412 (4th ed.) ; Stone v. Cart-
wright, 6 T. R. 411 ; Wilson v. Peto,
6 Moore, 49.
(e.) Servants under Double Masters.
— But it is to be observed that, where
the injury occurred by reason of the
negligence of the defendant's servants,
the fact that they were also under the
direction of a contractor at the time
will not in all cases excuse the defend-
ant. Indeed, both may be liable.
In Fenton v. Dublin Packet Co., 8
Ad. & E. 835, it appeared that the
defendants, being owners of a steam
vessel, chartered her to D. for six
months at £20 per week, the owners to
keep her in good and sufficient order
for the conveyance of goods, &c, from
N. to G., or any other coasting station
which D. might employ her in ; D. to
pay all disbursements, including harbor
dues, pilotages, seamen's and captain's
wages, and coal, oil, tallow, &c, for
engines, and to insure the vessel. The
plaintiff having declared in case for the
negligent sinking of his vessel by a
steamboat of which the defendants
were alleged to be in possession and
charge by their servants and mariners,
to which allegation there was a traverse,
it was held that upon the interpretation
of the charter alone the defendants
were liable. And this was true, a
fortiori, upon proof that D. had no
power to appoint or dismiss the officers
or crew, and did not interfere in the
arrangements of the crew. Mr. Justice
Patteson said : " I do not say that they
[the crew] are not the servants of the
charterer. Laugher v. Pointer, 5 Barn.
& C. 547, does not bear on the point.
To hold that the hirer is liable is not
inconsistent with holding the latter
liable also ; and since that case it has
been held that the latter is liable
[referring apparently to Smith v. Law-
rence, 2 Man. & R. 1, Rep.] ....
The charterer hires the steam vessel for
six months, with the option of retaining
her six months longer ; but the owners
are to keep her in good order, and the
charterer is not to find seamen, coals,
&c, but to pay for all disbursements in
these and other respects. Therefore I
think it clear that the owners are to
have their own engineer and servants on
board, and that the charterer is to pay
for them. These are therefore the ser-
vants of the owners."
In Dalyel v. Tyrer, El., B. & E. 899,
the lessee of a ferry had hired a steamer
of the defendants, with a crew who
were the latter's servants ; and it was
held that the defendants were liable
for injury to passengers caused by
the negligence of the crew, although
the passengers had contracted with the
lessee of the ferry for conveyance in
the steamer, and had paid their fares to
him. The ground taken by the court
was that the defendants were by their
crew in possession of the vessel ; and
the liability of the defendants was not
changed by the fact that the lessee also
may have been liable. See ante, p. 616.
In general, then, as the rule has been
stated in Massachusetts, the fact that
there is an intermediate party, in whose
general employment the person whose
acts are in question is engaged, does
not prevent the principal or master from
being held liable for the negligent con-
duct of the sub-agent or under-servant,
unless the relation of such intermediate
party to the subject-matter of the busi-
ness in which the under-servant is
engaged be such as to give him exclu-
sive control of the means and manner
of its accomplishment, and exclusive
direction of the persons employed
WHO LIABLE.
659
therefor. Wells, J., in Kimball v.
Cushman, 103 Mass. 194, 198.
(/.) Bunk Directors and Bank Offi-
cers. — Ina recent case it has been de-
cided that bank directors are personally
liable for a misappropriation of a spe-
cial deposit by the officers of the bank,
provided the directors are themselves
guilty of negligence in respect of their
duties in keeping a proper oversight of
the bank. United Soc. of Shakers v.
Underwood, 9 Bush, 609. But no
case, so far as we are aware, has de-
cided that the relation of principal and
agent exists between the directors and
bank officers, so as to make the former
liable for the defaults of the latter,
when not themselves guilty of a viola-
tion of duty. Nor is the above case,
perhaps, authority for holding directors
liable to creditors of the bank for a
mere omission to look after the inter-
ests of depositors. The facts alleged
in the complaint indicated something
like knowledge of the misappropriation.
See also Salmon v. Richardson, 30 Conn.
360. Ordinarily (for there are excep-
tions) an action cannot be maintained by
a third person for a simple non-feasance,
since the duty is only to act faithfully
when a thing is undertaken.
(g.) Builders and Architects. — We
close this note with a further extract
from the law of France concerning the
relation of builders and architects, a
subject which has not yet drawn the
attention of the English or American
courts. " Le quasi-delit des construc-
teurs," says Sourdat, "peut avoir une
double origine : 1. L'inobservation des
regies de l'art, ce qui embrasse tous les
defauts de construction, vices du sol,
vices du plan, malfa^ons. 2. L'in-
observation des vois et reglements du
voisinage, par example, le fait d'avoir
bati contre la proprieHe d'autrui sans
avoir pris les precautions indique'es par
l'artiole 674 du code civil. .
" L'architecte pourrait etre ainsi
tenu des infractions aux lois de police
et du voisinage qui resulteraient des
plans. Ce ne serait pas l'entrepreneur
qui encourrait la responsibilite, car il
ne doit que suivre fidelemeut les plans
et non rectifier.
"Si l'architecte est charge de pre-
sider a l'execution de surveiller le
travail de l'entrepreneur, il peut etre
tenu de toutes les suites de la negligence
qu'il apporterait dans ses fonctions.
Ainsi, soit que le plan n'ait pas et^
fidelement execute, et qu'il en soit
resulte des vices de construction, soit
que l'entrepreneur ait fourni de mauvais
materiaux, soit qu'il existe des mal-
facons, ceux qui souffrent des incon-
venients qui en resultent ont action
contre l'architecte. Nous pensons,
toutefois, que la responsibilite de celui-
ci n'est pas absolue, eomme on pourrait
l'induire des expressions de l'article
2270." 2 Sourdat, Traite de la Kesp.
§§ 672-674.
His reasons for this last opinion, how-
ever true the position itself may be, are
not satisfactory to the English lawyer.
As to those things, observes Sourdat,
which are under the personal direction of
the builder and his servants, the archi-
tect is bound to a general inspection
and surveillance only. If he has given
the orders necessary to shun bad work
(malfapons) , and has pointed out the
defects in the materials on hand, he
escapes liability. If he has not, he is
liable, " mais non d'une maniere com-
plete et principale. L'oblige principal
c'est l'agent direct du dommage, c'est
l'entrepreneur, l'ouvrier qui, par t'raude
ou negligence, aura mal execute l'ou-
vrage qui lui etait confix. La cause
immediate du dommage c'est son fait.
660
NEGLIGENCE.
C'est done lui qui doit en fournir la
reparation. La negligence de l'archi-
tect n'est qu*une chose secondaire et
accessoire. II ne doit done etre tenu
que subsidiairement, comme une caution,
et en cas dHnsolvibilite' du de'biteur prin-
cipal." lb.
The following decisions of the French
courts are reported by Dalloz : —
"La responsibilite du dcTaut de solidit6
d'une maison incombe exclusivement a
l'architecte, et non a l'entrepreneur qui a
travaille" sur les plans et sous la direction
de l'architecte, alors que les( travaux
et les maleriaux sont irreprochables."
Jurisp. Gen. 1872, Deuxieme partie,
p. 110 (Coursd'Appel).
" L'architecte charge de dresser le
plan des travaux de construction et de
les verifier une fois terminer, n'est pas
responsable des malfacons commis par
l'entrepreneur." lb. Prem. part. p. 246
(Cours de Cassation).
" La responsibilite impose'e a l'archi-
tecte par les art. 1792 et 2270, Code
Nap. s'applique a celui qui a dirige
les travaux executes sur les plans qu'il
a fournis, comme a celui qui a construit
a prix fait. Cette responsibilite n'est
pas limite" au cas spewalement pre'vu
par l'art. 1792, c'est a dire, a la de-
struction totale ou partielle de l'edifice
construit ; elle s'etend a toutes les con-
sequences dommageables qui sont, de
la part de l'architecte, le resultat d'une
faute contre les principes de son art ou
les regies dont il comporte la connais-
sance, et speVialement aux degradations
qui peuvent resulter, pour les maisons
voisines, de 1'execution des travaux
confi^s a sa direction. L'architecte ne
peut s'affranchir de la responsibilite qui
lui est impose'e par les art. supra, en
all^guant soit le consentement, soit
meme les ordres du proprie"taire." lb.
1865, Deux. part. p. 39 (Cours Im-
periales).
See further cases referred to in the
Index of Dalloz, tit. Louage Ouvrage ;
also ante, p. 657. The provisions of
the Code Napoleon, it should be ob-
served, however, refer to questions aris-
ing between the owner and architect or
builder.
Miles Sweeny v. Old Colony and Newport Railroad Company.
(10 Allen, 368. Supreme Court, Massachusetts, January Term, 1865.)
licenses. If a railroad company have made a private crossing over their track, at grade,
in a city, and allowed the public to use it as a highway, and stationed a flagman
there to prevent persons from undertaking to cross when there is danger, they may
be held liable in damages to one who, using due care, is induced to undertake to
cross by a signal from the flagman that it is safe, and is injured by a collision which
occurs through the flagman's carelessness.
Tort to recover damages for a personal injury sustained by
being run over by the defendants' cars, while the plaintiff was cross-
ing their railroad by license, on a private way leading from South
Street to Federal Street, in Boston.
SWEENY V. OLD COLONY AND NEWPORT RAILROAD COMPANY. 661
At the trial in this court, before Chapman, J., it appeared
that this private way, which is called Lehigh Street, was made
by the South Cove Corporation for their own benefit, and that
they own the fee of it ; that it is wrought as a way, and build-
ings are erected on each side of it, belonging to the owners of the
way, and there has been much crossing there by the public for
several years. The defendants, having rightfully taken the land
under their charter, not subject to any right of way, made a con-
venient plank crossing and kept a flagman at the end of it on
South Street, partly to protect their own property, and partly to
protect the public. They have never made any objection to such
crossing, so far as it did not interfere with their cars and engines.
There are several tracks at the crossing. The only right of the
public to use the crossing is under the license implied by the fact
stated above.
On the day of the accident the defendants had a car at their
depot which they had occasion to run over to their car-house. It
was attached to an engine and taken over the crossing, and to a
proper distance beyond the switch. The coupling-pin was then
taken out, the engine reversed, and it was moved toward the
car-house by the side track. The engine was provided with a
good engineer and fireman, and the car with a brakeman ; the
bell was constantly rung, and the defendants were not guilty of
any negligence in respect to the management of the car or
engine.
As the engine and car were coming from the depot, the plain-
tiff, with a horse and a wagon loaded with empty beer barrels,
was coming down South Street from the same direction. There
was evidence tending to show that, as he approached the crossing,
the flagman, who was at his post, made a signal to him with his flag
to stop, which he did ; that, in answer to an inquiry by the plaintiff
whether he could then cross, he then made another signal with
his flag, indicating that it was safe to cross ; that the plaintiff
started and attempted to cross, looking straight forwards ; that he
saw the car coming near him as it went towards the car-house ;
and that he jumped forward from his wagon, and the car knocked
him down and ran over him and broke both his legs. It struck
the fore wheel of his wagon, and also his horse. If he had re-
mained in his wagon, or had not jumped forwards, or had kept
about the middle of the crossing, the evidence showed that he
662 NEGLIGENCE.
would not have been injured personally. His wagon was near
the left-hand side of the plank crossing as he went.
The defendants contended that even if the plaintiff used or-
dinary care, and if the flagman carelessly and negligently gave
the signal that he might cross, when, in fact, it was unsafe to do
so on account of the approaching car, the plaintiff was not en-
titled to recover, because the license to people to use the crossing
was not a license to use it at the risk of the defendants, but to
use it as they best could when not forbidden, taking care of their
own safety, and going at their own risk ; and also that if the
flagman made a signal to the plaintiff that he might cross, he ex-
ceeded his authority.
But the evidence being very contradictory as to the care used
by the plaintiff, and also as to the care used by the flagman, the
judge ruled, for the purpose of taking a verdict upon these two
facts, that the defendants had a right to use the crossing as they
did on this occasion, and that they were not bound to keep a flag-
man there ; yet, since they did habitually keep one there, they
would be responsible to the plaintiff for the injury done to him
by the car, provided he used due care, if he was induced to cross
by the signal made to him by the flagman, and if that signal was
carelessly or negligently made at a time when it was unsafe to
cross on account of the movement of the car.
The jury returned a verdict for the plaintiff for $7,500 ; and the
case was reserved for the consideration of the whole court.
S. J. Thomas, for the plaintiff.
Bigelow, C. J. This case has been presented with great care
on the part of the learned counsel for the defendants, who have
produced before us all the leading authorities bearing on the ques-
tion of law which was reserved at the trial. We have not found
it easy to decide on which side of the line, which marks the limit
of the defendants' liability for damages caused by the acts of their
agents, the case at bar falls. But on careful consideration we
have been brought to the conclusion that the rulings at the trial
were right, and that we cannot set aside the verdict for the plain-
tiff on the ground that it was based on erroneous instructions in
matter of law.
In order to maintain an action for an injury to person or prop-
erty by reason of negligence or want of due care, there must be
shown to exist some obligation or duty towards the plaintiff, which
SWEENY V. OLD COLONY AND NEWPORT RAILROAD COMPANY. 663
the defendant has left undischarged or unfulfilled. This is the
basis on which the cause of action rests. There can be no fault,
or negligence, or breach of duty, where there is no act, or service,
or contract, which a party is bound to perform or fulfil. All the
cases in the books, in which a party is sought to be charged on
the ground that he has caused a way or other place to be incum-
bered, or suffered it to be in a dangerous condition, whereby
accident and injury have been occasioned to another, turn on
the principle that negligence consists in doing or omitting to do
an act by which a legal duty or obligation has been violated.
Thus a trespasser who comes on the land of another without
right cannot maintain an action, if he runs against a barrier or
falls into an excavation there situated. The owner of the land is
• not bound to protect or provide safeguards for wrong-doers. So
a licensee, who enters on premises by permission only, without
any enticement, allurement, or inducement being held out to him
by the owner or occupant, cannot recover damages for injuries
caused by obstructions or pitfalls. He goes there at his own risk,
and enjoys the license subject to its concomitant perils. No duty
is imposed by law on the owner or occupant to keep his premises
in a suitable condition for those who come there solely for their
own convenience or pleasure, and who are not either expressly
invited to enter or induced to come upon them by the purpose for
which the premises are appropriated and occupied, or by some
preparation or adaptation of the place for use by customers or
passengers, which might naturally and reasonably lead them to
suppose that they might properly and safely enter thereon.
On the other hand, there are cases where houses or lands are
so situated, or their mode of occupation and use is such, that the
owner or occupant is not absolved from all care for the safety of
those who come on the premises, but where the law imposes on
him an obligation or duty to provide for their security against
accident and injury. Thus the keeper of a shop or store is
bound to provide means of safe ingress and egress to and from his
premises for those having occasion to enter thereon, and is liable
in damages for any injury which may happen by reason of any
negligence in the mode of constructing or managing the place
of entrance and exit. So the keeper of an inn or other place of
public resort would be liable to an action in favor of a person
who suffered an injury in consequence of an obstruction or de-
664 NEGLIGENCE.
feet in the way or passage which was held out and used as the
common and proper place of access to the premises. The gen-
eral rule or principle applicable to this class of cases is that an
owner or occupant is bound to keep his premises in a safe and
suitable condition for those who come upon and pass over them,
using due care, if he has held out any invitation, allurement, or
inducement, either express or implied, by which they have been
led to enter thereon. A mere naked license or permission to
enter or pass over an estate will not create a duty or impose an
obligation on the part of the owner or person in possession to
provide against the danger of accident. The gist of the liability
consists in the fact that the person injured did not act merely for
his own convenience and pleasure, and from motives to which
no act or sign of the owner or occupant contributed, but that he
entered the premises because he was led to believe that they
were intended to be used by visitors or passengers, and that such
use was not only acquiesced in by the owner or person in pos-
session and control of the premises, but that it was in accord-
ance with the intention and design with which the way or place
was adapted and prepared or allowed to be so used. The true
distinction is this : A mere passive acquiescence by an owner or
oeoupier in a certain use of his land by others involves no lia-
bility ; but, if he directly or by implication induces persons to
enter on and pass over his premises, he thereby assumes an obli-
gation that they are in a safe condition, suitable for such use,
and for a breach of this obligation he is liable in damages to a
person injured thereby.
This distinction is fully recognized in the most recent and best-
considered cases in the English courts, and may be deemed to be
the pivot on which all cases like the one at bar are made to turn.
In Corby v. Hill, 4 C. B. n. s. 556, the owner of land, having
a private road for the use of persons coming to his house, gave
permission to a builder engaged in erecting a house on the land
to place materials on the road ; the plaintiff, having occasion to use
the road for the purpose of going to the owner's residence, ran
against the materials and sustained damage, for which the owner
was held liable. Cockburn, C. J., says : " The proprietors of the
soil held out an allurement whereby the plaintiff was induced to
come on the place in question ; they held this road out to all per-
sons having occasion to proceed to the house as the means of
SWEENY V. OLD COLONY AND NEWPORT RAILROAD COMPANY. 665
access thereto." In Chapman v. Rothwell, EL, Bl. & El. 168,
the proprietor of a brewery was held liable in damages for injury
and loss of life caused by permitting a trap-door to be open with-
out sufficient light or proper safeguards, in a passage-way through
which access was had from the street to his office. This decision
was put on the ground that the defendant, by holding out the
passage-way as the proper mode of approach to his office and
brewery, invited the parly injured to go there, and was bound to
use due care in providing for his safety. This is the point on
which the decision turned, as stated by Keating, J., in Hounsell
v. Smyth, 7 C. B. n. s. 738. In the last-named case the dis-
tinction is clearly drawn between the liability of a person who
holds out an inducement or invitation to others to enter on his
premises by preparing a way or path by means of which they can
gain access to his house or store, or pass into or over the land,
and in a case where nothing is shown but a bare license or per-
mission tacitly given to go upon or through an estate, and the
responsibilitj- of finding a safe and secure passage is thrown on
the passenger, and not on the owner. The same distinction is
stated in Barnes v. Ward, 9 C. B. 392 ; Haidcastle v. South
Yorkshire Railway, &c, 4 Hurlst. & Norm. 67 ; and Binks v.
South Yorkshire Railway, &c, 32 Law Journ. N. s. Q. B. 26.
In the last cited case the language of Blackburn, J., is peculiarly
applicable to the case at bar. He says, " There might be a case
where permission to use land as a path may amount to such an
inducement as to lead the persons using it to suppose it a high-
way, and thus induce them to use it as such." See also, for a
clear statement of the difference between cases where an invita-
tion or allurement is held out by the defendant, and those where
nothing appears but a mere license or permission to enter on
premises, Balch v. Smith, 7 Hulst. & Norm. 741, and Scott v.
London Docks Co., 11 Law Times, n. s. 383.
The facts disclosed at the trial of the case now before us, care-
fully weighed and considered, bring it within that class in which
parties have been held liable in damages by reason of having held
out an invitation or inducement to persons to enter upon and pass
over their premises. It cannot, in any just view of the evidence,
be said that the defendants were passive only, and gave merely a
tacit license or assent to the use of the place in question as a
public crossing. On the contrary, the place or crossing was
666 NEGLIGENCE.
situated between two streets of the city (which are much fre-
quented thoroughfares), and was used by great numbers of
people who had occasion to pass from one street to the other ;
and it was fitted and prepared by the defendants with a conven-
ient plank crossing, such as is usually constructed in highways,
where they are crossed by the tracks of a railroad, in order to
facilitate the passage of animals and vehicles over the rails. It
had been so maintained by the defendants for a number of years.
These facts would seem to bring the case within the principle
already stated, that the license to use the crossing had been used
and enjoyed under such circumstances as to amount to an induce-
ment, held out by the defendants to persons having occasion to
pass, to believe that it was a highway, and to use it as such.
But the case does not rest on these facts only. The defendants
had not only constructed and fitted the crossing in the same
manner as if it had been a highway ; but they had employed a
person to stand there with a flag, and to warn persons who were
about to pass over the railroad when it was safe for them to
attempt to cross with their vehicles and animals, without inter-
ference or collision with the engines and cars of the defendants.
And it was also shown that when the plaintiff started to go over
the tracks with his wagon, it was in obedience to a signal from
this agent of the defendants that there was no obstruction or
hindrance to his safe passage over the railroad. These facts well
warranted the jury in finding, as they must have done in render-
ing a verdict for the plaintiff under the instructions of the court,
that the defendants induced the plaintiff to cross at the time
when he attempted to do so, and met with the injury for which
he now seeks compensation.
It was suggested that the person employed by the defendants
to stand near the crossing with a flag exceeded his authority in
giving a signal to the plaintiff that it was safe for him to pass
over the crossing just previously to the accident, and that no such
act was within the scope of his employment, which was limited
to the duty of preventing persons from passing at times when it
was dangerous to do so. But it seems to us that this is a refine-
ment and distinction which the facts do not justify. It is stated
in the report that the flagman was stationed at the place in ques-
tion, charged among other things with the duty of protecting the
public. This general statement of the object for which the agent
SWEENY V. OLD COLONY AND NEWPORT RAILROAD COMPANY. 667
was employed, taken in connection with the fact that he was
stationed at a place constructed and used as a public way by
great numbers of people, clearly included the duty of indicating
to persons when it was safe for them to pass, as well as when it
was prudent or necessary for them to refrain from passing.
Xor do we think it can be justly said that the flagman in fact
held out no inducement to the plaintiff to pass. No express invi-
tation need have been shown. It would have been only necessary
for the plaintiff to prove that the agent did some act to indicate
that there was no risk of accident in attempting to pass over the
crossing. The evidence at the trial was clearly sufficient to show
that the agent of the defendants induced the plaintiff to pass, and
that he acted in so doing within the scope of the authority con-
ferred on him. The question whether the plaintiff was so induced
was distinctly submitted to the jury by the court ; nor do we see
any reason for supposing that the instructions on this point were
misunderstood or misapplied by the jury. If they lacked fulness,
the defendants should have asked for more explicit instructions.
Certainly the evidence as reported well warranted the finding of
the jury on this point.
It was also urged that, if the defendants were held liable in
this action, they would be made to suffer by reason of the fact
that they had taken precautions to guard against accident at the
place in question, which they were not bound to use, and that
the case would present the singular aspect of holding a party
liable for neglect in the performance of a duty voluntarily as-
sumed, and which was not imposed by the rules of law. But this
is by no means an anomaly. If a person undertakes to do an act
or discharge a duty by which the conduct of others may properly
be regulated and governed, he is bound to perform it in such
manner that those who rightfully are led to a course of conduct
or action on the faith that the act or duty will be duly and prop-
erly performed shall not suffer loss or injury by reason of his
negligence. The liability in such cases does not depend on the
the motives or considerations which induced a party to take on
himself a particular task or duty, but on the question whether the
legal rights of others have been violated by the mode in which
the charge assumed has been performed.
The court were not requested at the trial to withdraw the case
from the jury on the ground that the plaintiff had failed to show
668 NEGLIGENCE.
he was in the exercise of due care at the time the accident hap-
pened. Upon the evidence, as stated in the report, we cannot
say, as matter of law, that the plaintiff did not establish this part
of his case. Judgment on the verdict.
After the above decision was rendered, the verdict was set
aside, by Chapman, J., as against the evidence.
Indermaur v. Dames.
(Law R. 1 Com. P., 274 ; lb. 2 Com. P., 318. Exchequer and Exchequer Chamber,
England, 1866, 1867.)
Duty to give Notice of Dangerous Place. — Upon the premises of the defendant, who was
a sugar refiner, was a hole, or shoot, on a level with the floor, used for raising and
lowering sugar to and from the different stories of the building, and usual, neces-
sary, and proper in the way of the defendant's business. Whilst in use, it was
necessary and proper that this hole should be unfenced. When not in use, it was
sometimes necessary, for the purpose of ventilation, that it should be open. It was
not necessary that it should, when not in use, be unfenced ; and it might, at such
times, without injury to the business, have been fenced by a rail. Whether or not
it was usual to fence similar places, when not in actual use, did not appear. The
plaintiff, a journeyman gas-fitter, in the employ of a patentee who had fixed a
patent gas regulator upon the defendant's premises, for which he was to be paid
provided it effected a certain amount of saving in the consumption of gas, went
upon the premises, with his employer's agent, for the purpose of examining the
several burners, so as to test the new apparatus. Whilst thus engaged upon an
upper floor of the building, the plaintiff, under circumstances as to which the evi-
dence was conflicting, but accidentally, and, as the jury found, without any fault
or negligence on his part, fell through the hole, and was injured. Held, that, inas-
much as the plaintiff was upon the premises on lawful business, in the course of
fulfilling a contract in which he (or his employer) and the defendant both had an
interest, and the hole or shoot was from its nature unreasonably dangerous to per-
sons not usually employed upon the premises, but having a right to go there, the
defendant was guilty of a breach of duty towards him in suffering the hole to be
unfenced.
This was an action brought by the plaintiff to recover damages
for an injury which he had sustained through the alleged negli-
gence of the defendant and his servants. The declaration stated
that the defendant was possessed of a high building, containing
several floors, used by the defendant as a sugar refinery, in the
interior of which was a shaft or shoot, passing from the base-
ment of the building upwards through the several floors thereof,
INDERMAUR V. DAMES. 669
and which said shaft or shoot was highly dangerous to persons
entering the said building who might be unacquainted with the
same, as the defendant then well knew ; and that the plaintiff,
then being unacquainted with the said premises, was employed by
the defendant to enter the said building and execute certain
work in his trade of a gas-fitter, after darkness had set in, in the
evening, for the defendant, upon one of the upper floors of the
said building ; yet that the defendant, wrongfully, negligently,
and improperly allowed the said shaft or shoot to remain and be
open, unfenced, and unguarded and unlighted, whilst the plaintiff
was executing the said work, whereby the plaintiff, whilst so em-
ployed as aforesaid, fell down the said shaft or shoot, and was
precipitated through the same to the basement of the said build-
ing, and was greatly hurt, &c.
Pleas, — 1. Not guilty; 2. That there was no such shaft or
shoot, as alleged : 3. That the said shaft or shoot was not dan-
gerous, as alleged ; 4. That the defendant had no such knowledge
of the said danger, as alleged ; 5. That the plaintiff was not em-
ployed by the defendant, as alleged. Issue thereon. The cause
was tried before Erie, C. J., at the sittings in Middlesex after
last Michaelmas Term. The facts are as follows : The plaintiff
who was a journeyman gas-fitter, was, at the time of the accident
hereinafter mentioned, in the employ of one Duckham, a gas en-
gineer and fitter, who was the patentee of an improved self-acting
gas-regulator. The defendant is a sugar-refiner, having extensive
premises in Whitechapel. In June, 1864, Duckham, through
one Hargreaves^his agent, agreed with the defendant, who was
necessarily a large consumer of gas, to fit up on his premises two
of his regulators, upon the terms mentioned in the following
memorandum : "I hereby agree to attach two of my patent, self-
acting gas-regulators to your meter in area ; and, should I fail to
effect a saving of from 15 to 30 per cent on your previous eon-
sumption, I will remove the regulators, and restore the fittings
at my own expense. Should I effect such saving, the machines
will be considered, after test, as purchased, and a three-years
guarantee given with them. The price to be (two 2-inch), £18.
On Saturday, the 25th of June, Hargreaves went to the de-
fendant's premises, pursuant to appointment, for the purpose of
fixing the apparatus. He was accompanied by the plaintiff and
another workman in Duckham's employ, named Bristow, and a lad.
670 NEGLIGENCE.
The plaintiff, however, not being upon that occasion quite sober,
Mr. Woods, the defendant's manager, would not allow him to go
upon the premises, and the regulators were fixed by Bristow, as-
sisted by the lad, and the work was duly completed. In order to
test the regulators, and ascertain that they answered the warranty
as to saving in the consumption of gas, it was necessary for the
workmen of the patentee to inspect every burner on the premises,
to see that they were in a proper state. Bristow having had to
do the work almost single-handed, it was too late to make the
required inspection on the Saturday night ; and accordingly
Hargreaves went to the premises on the following Tuesday,
accompanied by the plaintiff, in order to examine the several
burners, and so test the apparatus. Before going there for that
purpose, Hargreaves cautioned the plaintiff, saying : " Now, mind,
Indermaur, sugar-houses are very peculiar places; they neither
allow candles or lucifers. We must keep our eyes open. There
is a man to go with us with a light. I shall follow the man, and
you keep close to me." When they arrived at the premises,
Hargreaves and the plaintiff, accompanied by one of the defend-
ant's workmen, with a light, proceeded to the first floor, and, after
examining one of the burners, went round to another part of the
floor for the purpose of inspecting another. In the mean time,
the plaintiff, who had left a pair of plyers at the spot they first
went to, turned back to fetch them ; but, in returning, instead
of going round the way Hargreaves and the defendant's man had
gone, he walked straight across towards them, not perceiving an
intervening hole in the floor, and fell through to the floor below,
a depth of about thirty feet, and fractured his spine.
The hole in question was a shaft or shoot four feet three inches
square, communicating from the basement to the several floors
of the building. It was fenced at each side, but open back and
front. It was necessary to the defendant's business to have such
a shaft ; and it was necessary that it should, whilst in use for the
raising or lowering of goods, and occasionally also for purposes
of ventilation, be open and unfenced ; and there was no evidence
to show that it was usual in buildings of the kind to adopt the
precaution of fencing such shafts.
On the part of the defendant it was submitted that there was
no duty or obligation on him to fence the shaft, and consequently
no cause of action ; and reliance was placed upon Wilkinson v.
INDERMAUR V. DAME9. 671
Fairrie, 1 H. & C. 633, 32 L. J. Ex. 73. His lordship observed
that, though as to persons employed in the business there might
be no duty or obligation to fence, a very different degree of care
might be due in the case of a person not so employed, but merely
going there for a temporary lawful purpose, as this plaintiff did.
He, however, reserved the point.
Several witnesses were then called on the part of the defendant ;
amongst others, Mr. AVoods, the defendant's manager, who stated
that the defendant's premises, which had been recently erected,
were constructed in the same way as all sugar-refineries were con-
structed, and were not more than ordinarily dangerous ; and
that, if he had known that the plaintiff was coming to work upon
the premises, he would not have allowed him to do so.
The evidence as to the number of lights on the floor at the
time of the accident was conflicting. The plaintiff swore that
there were only two ; the defendant's witnesses that there were
five, and that the light was ample. In his summing up, the Lord
Chief Justice stated in substance as follows : The plaintiff has
to establish that there was negligence on the part of the defend-
ant ; that the premises of the defendant, to which he was sent in
the course of his business as a gas-fitter, were in a dangerous
state ; and that, as between himself and the defendant, there was
a want of due and proper precaution in respect of the hole in the
floor. To my mind, there would not be the least symptom of
want of due care as between the defendant and a person (per-
manently) employed on his premises, because the sugar-baking
business requires a lift on the premises, which must be as well
known to the persons employed there as the top of a staircase in
every dwelling-house. But that which may be no negligence
towards men ordinarily employed upon the premises, may be neg-
ligence towards strangers lawfully coming upon the premises in the
course of their business. And, after observing'upon the facts, he
told the jury, that, if they found that there was no negligence on
the part of the defendant, or that there was want of reasonable
care on the part of the defendant, but that there was also want
of reasonable care on the part of the plaintiff, which materially
contributed to the accident, the plaintiff was not entitled to re-
cover; but that, if there was want of reasonable care in the
defendant, and no want of reasonable care in the plaintiff, then
the plaintiff was entitled to a verdict.
672 NEGLIGENCE.
The jury returned a verdict for the plaintiff, damages £400.
Huddleston, Q. C, in Hilary Term, obtained a rule nisi to enter
a nonsuit, on the ground that the evidence did not disclose any
cause of action ; or to arrest the judgment, on the ground that
the declaration showed no breach of contract or breach of duty
on the part of the defendant ; or for a new trial, on the ground
that the verdict was against the weight of evidence. He referred
to Seymour v. Maddox, 16 Q. B., 326, 20 L. J. Q. B. 327;
Hounsell v. Smyth, 7 C. B. N. s. 731, 29 L. J. C. P. 203 ; and
Wilkinson v. Fairrie, 1 H. & 0. 633, 32 L. J. Ex. 73. [Willes,
J., referred to Farrant v. Barnes, 11 C. B. N. S. 553 ; 31
L. J. C. P. 137.J
Ballantine, Serjt., and Raymond, showed cause. There was
abundant evidence for the jury in this case, of a culpable want of
due care on the part of the defendant as regards this plaintiff.
He was on the premises, not as a mere volunteer, or in the char-
acter of a visitor, as in Southcote v. Stanley, 1 H. & N. 247, 25
L. J. Ex. 339 ; nor doe's the case fall within the class relating
to injuries to servants in the course of their employ, by reason of
defective machinery. Here the plaintiff was upon the premises
by the permission of the defendant, in the performance of his duty
as a gas-fitter. The nature of the premises, with its hidden
dangers, was unknown to him ; and the caution which was given
to him did not go far enough ; it did not call his attention to the
particular peril, but seemed rather to be directed to the safety of
the premises than to that of the individual. The rule as to dan-
gerous pitfalls is accurately laid down in 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 ; and Hounsell v. Smyth. The application
of that rule must depend upon the circumstances of each par-
ticular case. [Willes, J. The proposition is, that this was a
danger which was known to the defendant, but of which the
plaintiff, to the knowledge of the defendant, was ignorant. Pre-
cisely so. It was conceded "that this shaft or shoot was matter of
imminent peril, unless the floor was properly lighted, as to which
there was a conflict of testimony, which is disposed of by the
finding of the jury. The case which approaches the nearest to
this undoubtedly is that of Wilkinson v. Fairrie, 1 H. & C. 633,
32 L. J. Ex. 73. There the plaintiff, a carman, was sent by
his employer to the defendant's premises to fetch some goods.
INDERMAUR V. DAMES. 673
After waiting some time, he was directed by a servant of the
defendants to go along a passage to a counting house, where
he would find the warehouseman. The passage was dark, and in
going along it he fell down a staircase, and was seriously injured.
The Court of Exchequer held that the defendants were not re-
sponsible, inasmuch as there was no obligation on them to light
the passage or fence the staircase. The obvious distinction be-
tween that case and this is pointed out by Pollock, C. B. He
says: " My brother Brarnwell directed a nonsuit upon this alter-
native : if it was so dark that the plaintiff could not see, he ought
not to have proceeded without a light ; if it was sufficiently light
for him to see, he might have avoided the staircase, which is a
very different thing from a hole or trap-door, through which
a person may fall. \Ve think the nonsuit was perfectly right.
I am not aware of any question which could have been left to the
jury." [Willes, J. Farrant v. Barnes, 11 C. B. n. s. 553, 31
L. J. C. P. 137, is more like this case. There the defendant,
being desirous of sending a carboy of nitric acid to Croydon, his
foreman gave it to one R., the servant of a railway carrier, who
(as the railway company would only carry articles of that dangerous
character on one day in each week) handed it to the plaintiff, the
servant of a Croydon carrier, without communicating to him (and
there was nothing in its appearance to indicate) its dangerous
nature. Whilst being carried by the plaintiff, the servant of the
carrier, to the cart, the carboy, from some unexplained cause,
burst, and its contents flowed over and severely burnt the plain-
tiff ; and this court held that the defendant was liable for the
injury thus .resulting from his breach of duty.]
ITuddleston, Q. C, and Grriffits, in support of the rule. The
question is whether there was any contract or any duty on the
part of the defendant to fence this shoot. The plaintiff was not
employed by the defendant to do work on the premises ; nor can
it be said that he was there with the permission of the defendant :
on the contrary, it was distinctly proved that he was there against
the will of the defendant's manager. But, assuming that he was
there by the permission of the defendant, the defendant was
under no obligation to him to fence. For all practical purposes
of his business, fencing was unnecessary and objectionable. The
premises were shown to have been constructed in the usual way.
The mode in which the proposition has been stated, viz., that
43
674 NEGLIGENCE.
here was a danger which was known to the defendant, but of
which the plaintiff, to the knowledge of the defendant, was
ignorant, is much too narrow : it should exclude the fact that the
plaintiff had any reasonable opportunity of knowing of the danger.
There could be no more obligation here to fence than there was
in Hounsell v. Smyth, 7 C. B. n. s. 731 ; 29 L. J. C. P. 203.
[Montague Smith, J. The plaintiff was neither invited nor em-
ployed there. J The plaintiff here was not invited, neither was
he employed by the defendant. He was sent by Duckham in
order to ascertain whether the work which had already been com-
pleted was so done that his employer could enforce his bargain
with the defendant. That clearly gave him no more right than
the visitor had in Southcote v. Stanley, 1 H. & N. 247, 25 L. J.
Ex. 339. The authorities upon this subject are all reviewed in
a very learned judgment of Lord Chief Baron Pigot, in a case of
Sullivan v. Waters, 14 Ir. C. L. R. 460. In an action under
Lord Campbell's Act (9 & 10 Vict. c. 93), by the administratrix
of P. S., the summons and plaint alleged that before, &c, the
defendants were in possession of a certain distillery and lofts and
stores connected therewith, and that the said P. S. (deceased) was
employed by the defendants as a laborer to do certain work in
and about the said distillery at night; that P. S., whilst so em-
ployed, had access, by the license of the defendants, to one of the
said lofts at night, and by such license used the same for the
purpose of sleeping during the intervals of the night when he
was not actually engaged in his said employment ; yet that the
defendants, well knowing the premises, wrongfully and negli-
gently permitted a certain aperture, then in the floor of the said
loft, to remain open, without being properly guarded and lighted,
by reason whereof the said P. S., whilst passing in the night
along the floor of the said loft in pursuance of the said license, fell
through the said aperture, and was thereby injured, and died :
and on demurrer it was held that the summons and plaint dis-
closed neither a contract nor a duty binding on the defendants
to guard or light the aperture in question. After referring to
several cases, the learned Chief Baron says : " How far the owner
of the premises, who gives to another person license to enter and
use them, is answerable for negligence, in not guarding from
danger existing on the premises the person to whom he gives
such license, is not very clearly defined by the decisions which
INDERMAUR V. DAMES. 675
have been made on questions of this nature. A distinction seems,
however, to have been taken between the case of a person who
enters and uses the owner's premises by the owner's express
invitation, or as a customer, who, as one of the public, is induced
by the owner to come to his premises for the purposes of business
carried on by the owner there, on the one side ; and, on the other,
the case of a mere visitor or guest, invited or uninvited, or of a
person who has a mere license to go upon the premises of the
owner. The first class of cases comprises those of Corby v.
Hill, 4 C. B. n. s. 556. 27 L. J. C. P. 318, and Chapman r.
Rothwell. E., B. & E. 168, 27 L. J. Q. B. 315, to which may
be added Gallagher v. Humphrey, 6 L. T. n. s. 684. In the
second we find Southcote v. Stanley, 1 H. & N. 247, 25 L. J.
Ex. 339; 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 ;
and Wilkinson v. Fairrie, 1 H. & C. 633, 32 L. J. Ex. 73."
And towards the close of his judgment his Lordship says :
" This may, I think, be safely laid down as established by the
second class of decisions to which I have referred, that a mere
license given by the owner to enter and use the premises, which
the licensee has full opportunity of inspecting, which contain no
concealed cause of mischief, and in which any existing source of
danger is apparent, creates no such obligation (that is, to guard
the licensee against danger) in the owner." [Montague Smith, J.
The duty is to be implied from the facts.J No duty was implied
from the facts which existed in Wilkinson v. Fairrie, 1 H. & C.
633, 32 L. J. Ex. 73, and which were quite as strong as the
facts here. " As there was no contract," says the Chief Baron,
" or any public or private duty on the part of the defendants, that
their premises should be in a different condition from that in
which they were, it seems to us that the nonsuit was perfectly
right." [Willes, J. This is more like Toomey v. London and
Brighton Railway Company, 3 C. B. n. s. 146, 27 L. J. C. P.
39, where the plaintiff was injured by falling down some steps at
a railway station, through a door which he had opened by mis-
take ; and the court held that there was no evidence of negligence
to go to the jury.] In Bolch v. Smith, 7 H. & N. 736, 31 L. J.
Ex. 201, it was held that there was no duty cast by law on a
government contractor to fence a shaft crossing a path in a dock-
yard, the want of fencing being apparent. Martin, B., there
676 NEGLIGENCE.
says : " It is true the plaintiff had permission to use the path.
Permission involves leave and license, but it gives no right. If
I avail myself of permission to cross a man's land, I do so by
virtue of a license, not of a right. It is ah abuse of language to
call it a right : it is an excuse or license ; so that the party can-
not be treated as a trespasser." [Montague Smith, J. Wilde, B.,
says : " The danger was open and visible ; there was nothing
which could be called a trap." Besides, the plaintiff was a work-
man employed upon the premises. ] The utmost that can be said
here is that the plaintiff was upon the premises by the same sort
of tacit permission as that spoken of by Williams, J., in Hounsell
v. Smyth, 7 C. B. n. s. 731, 744, 29 L. J. C. P. 203. He
was there in the course of doing something for the satisfaction of
his employer, Duckham, not on any work for the benefit of the
defendant. Or, if he can be said to have been doing work for
the defendant, in what does his position differ from that of the
supernumerary employed at the theatre, in Seymour v. Maddox,
16 Q. B. 326, 20 L. J. Q. B. 327 ? Erie, J., in that case, says :
" A person must make his own choice whether he will accept em-
ployment on premises in this condition ; " that is, with an unfenced
hole in the floor ; " and, if he do accept such employment, he must
also make his own choice whether he will pass along the floor in
the dark or carry a light. If he sustain injury in consequence
of the premises not being lighted, he has no right of action against
the master, who has not contracted that the floor shall be lighted."
The decision in Farrant v. Barnes, 11 C. B. n. s. 553, 31 L. J.
C. P. 137, rests upon this ground, that it is the duty of one
who sends a dangerous article by a carrier to inform him of the
danger, in order that he may, by using more than ordinary care,
avoid it. Willes, J., refers to the shipment, without due notice,
of articles liable to spontaneous combustion ; a doctrine dealt with
in Williams v. The East India Company, 3 East, 92, and in Brass
v. Maitland, 6 E. & B. 470, 26 L. J. Q. B. 49. But how can
that principle apply here ? Clarke v. Holmes, 7 H. & N. 937, 31
L. J. Ex. 356, was the case of unfenced machinery ; and there
there was abundant evidence of wilful neglect on the part of
the defendant. [Keating, J. The judgment of the Exchequer
Chamber in that case proceeded upon the statutes 7 & 8 Vict.
c. 15, and 19 & 20 Viet. c. 38, though two of the judges thought
the defendant would have been liable by common law.J There
INDERMAUR V. DAMES. 677
was no misfeasance here on the part of the defendant. The
plaintiff was warned of the dangerous character of the premises,
or rather of the necessity for great caution in moving about them,
before he went there ; and a person was sent with a light to show
him where to go. It was his own misfortune that he deviated
from the safe path. He knew the general nature of the premises,
and that more than ordinary care and caution were necessary.
Cur. adv. vult.
Feb. 26. The judgment of the court (Erle, C. J., Willes,
Keating, and Montague Smith, JJ.) was delivered by
Welles, J. This was an action to recover damages for hurt
sustained by the plaintiff's falling down a shaft at the defendant's
place of business, through the actionable negligence, as it was
alleged, of the defendant and his servants.
At the trial before the Lord Chief Justice at the sittings here
after Michaelmas Terra, the plaintiff had a verdict for £400
damages, subject to leave reserved.
A rule was obtained bjr the defendant in last term to enter a
nonsuit, or to arrest the judgment, or for a new trial because of
the verdict being against the evidence.
The rule was argued during the last term, before Erie, C. J.,
Keating, and Montague Smith, JJ., and myself, when we took
time to consider. We are now of opinion that the rule ought to
be discharged.
It appears that the defendant was a sugar-refiner, at whose place
of business there was a shaft four feet three inches square, and
twenty-nine feet three inches deep, used for moving sugar. The
shaft was necessary, usual, and proper in the way of the defendant's
business. Whilst it was in use, it was necessary and proper that it
should be open and unfenced. When it was not in use, it was some-
times necessary, with reference to ventilation, that it should be
open. It was not necessary that it should, when not in use, be un-
fenced ; and it might then, without injury to the business, have
been fenced by arail. Whether it was usual to fence similar shafts
when not in use, did not distinctly appear ; nor is it very material,
because such protection was unquestionably proper, in the sense of
reasonable, with reference to the safety of persons having a right
to move about upon the floor where the shaft in fact was, because
in its nature it formed a pitfall there. At the time of the acci-
dent it was not in use ; and it was open and unfenced.
678 NEGLIGENCE.
The plaintiff was a journeyman gas-fitter in the employ of a
patentee who had supplied the defendant with his patent gas-
regulator, to he paid for upon the terms that it effected a certain
saving ; and, for the purpose of ascertaining whether such saving
had been effected, the plaintiff's employer required to test the
action of the regulator. He accordingly sent the plaintiff to the
defendant's place of business for that purpose ; and, whilst
the plaintiff was engaged upon the floor where the shaft was, he
(under circumstances as to which the evidence was conflicting,
but) accidentally, and, as the jury found, without any fault or
negligence on his part, fell down the shaft, and was seriously
hurt.
It was argued that, as the defendant had objected to the plain-
tiff's working at the place upon a former occasion, he (the plain-
tiff) could not be considered as having been in the place with the
defendant's leave at the time of the accident ; but the evidence
did not establish a peremptory or absolute objection to the
plaintiff's being employed, so as to make the sending of him upon
the occasion of the accident any more against the defendant's
will than the sending of any other workman ; and the employ-
ment, and the implied authority resulting therefrom to test the
apparatus, were not of a character involving personal preference
(dilectus personce), so as to make it necessary that the patentee
should himself attend. It was not suggested that the work was
not journeyman's work.
It was also argued that the plaintiff was at best in the condition
of a bare licensee or guest who, it was urged, is only entitled to
use the place as he finds it, and whose complaint may be said to
wear the color of ingratitude, so long as there is no design to in-
jure him. See Hounsell v. Smyth, 7 C. B. N. s. 731, 29 L. J.
C. P. 203.
We think this argument fails, because the capacity iu which the
plaintiff was there was that of a person on lawful business, in
the course of fulfilling a contract in which both the plaintiff and
the defendant had an interest, and not upon bare permission. No
sound distinction was suggested between the case of the servant
and the case of the employer, if the latter had thought proper to
go in person ; nor between the case of a person engaged in doing
the work for the defendant pursuant to his employment and that
of a person testing the work which he had stipulated with the
INDERMAUR V. DAMES. 679
defendant to be paid for if it stood the test, whereby impliedly
the workman was to be allowed an onstand to apply that test,
and a reasonable opportunity of doing so. Any duty to enable
the workman to do the work in safety seems, equally to exist
during the accessary employment of testing : and any duty to pro-
vide for the safety of the master workman seems equally owing
to the servant workman whom he may lawfully send in his place.
It is observable that, in the case of Southcote v. Stanley, 1 H.
& X. 247, 25 L. J. Ex. 339, upon which much reliance was
properly placed for the defendant, Alderson, B., drew the distinc-
tion between a bare licensee and a person coming on business, and
Bramwell, B., between active negligence in respect of unusual
danger known to the host and not to the guest, and a bare defect
of construction or repair, which the host was only negligent in not
finding out or anticipating the consequence of. There is consid-
erable resemblance, though not a strict analogy, between this class
of cases and those founded upon the rule as to voluntary loans
and gifts, that there is no remedy agaiust the lender or giver, for
damage sustained from the loan or gift, except in case of unusual
danger known to and concealed by the lender or giver. Macarthy
v. Younge, 6 H. & N. 329, 30 L* J. Ex. 227. The case of the
carboy of vitriol, Farrant v. Barnes, 11 C. B. sr. s. 553, 31 L.
J. C. P. 237, was one in which this court held answerable the
bailor of an unusually dangerous chattel, the quality of which he
knew, but he did not tell the bailee, who did not know it, and
who, as a proximate consequence of his not knowing, and without
any fault on his part, suffered damage.
The cases referred to as to the liability for accidents to servants
and persons employed in other capacities in a business or profes-
sion which necessarily and obviously exposes them to danger, as
in Seymour v. Maddox, 16 Q. B. 326, 20 L. J. Q. B. 327, also
have their special reasons. The servant or other person so em-
ployed is supposed to undertake not only all the ordinary risks of
the employment into which he enters, but also all extraordinary
risks which he knows of and thinks proper to incur, including
those caused by the misconduct of his fellow-servants, not, how-
ever, including those which can be traced to mere breach of duty
on the part of the master. In the case of a statutory duty to
fence, even the knowledge and reluctant submission of the servant
who has sustained an injury are held to be only elements in
680 NEGLIGENCE.
determining whether there has been contributory negligence : how
far this is the law .between master and servant, where there is
danger known to the servant, and no statute for his protection, we
need not now consider, because the plaintiff in this case was not
a servant of the defendant, but the servant of the patentee. The
question was adverted to, but not decided, in Clarke v. Holmes,
7 H. & N. 937, 31 L. J. Ex. 356.
The authorities respecting guests and other bare licensees, and
those respecting servants and others who consent to incur a risk,
being therefore inapplicable, we are to consider what is the law
as to the duty of the occupier of a building with reference to
persons resorting thereto in the course of business, upon his invi-
tation, express or implied. The common case is that of a customer
in a shop : but it is obvious that this is only one of a class ; for
whether the customer is actually chaffering at the time, or actually
buys or not, he is, according to an undoubted course of authority
and practice, entitled to the exercise of reasonable care by the
occupier to prevent damage from unusual danger, of which the
occupier knows or ought to know, such as a trap-door left open,
unfenced and unlighted. Lancaster Canal Company v. Parnaby,
11 Ad. & E. 223, 3 P. & D. 162 ; per cur., Chapman v. RothweU,
E. B. & E. 168, 27 L. J. Q. B. 315, where Southcote v. Stanley,
1 H. & N. 247, 25 L. J. Ex. 339, was cited, and the Lord
Chief Justice, then Erie, J., said : " The distinction is between
the case of a visitor (as the plaintiff was in Southcote v. Stanley),
who must take care of himself, and a customer, who, as one of
the public, is invited for the purposes of business carried on by
the defendant." This protection does not depend upon the fact
of a contract being entered into in the way of the shop-keeper's
business during the stay of the customer, but upon the fact that
the customer has come into the shop in pursuance of a tacit invi-
tation given by the shop-keeper, with a view to business which
concerns himself. And if a customer were, after buying goods,
to go back to the shop in order to complain of the quality, or that
the change was not right, he would be just as much there upon
business which concerned the shop-keeper, and as much entitled
to protection during this accessary visit, though it might not be
for the shop-keeper's benefit, as during the principal visit, which
was. And if, instead of going himself, the customer were to
send his servant, the servant would be entitled to the same con-
INDERMAUR V. DAMES. 681
sideration as the master. The class to which the customer
belongs includes persons -who go not as mere volunteers, or
licensees, or guests, or servants, or persons whose employment is
such that danger may be considered as bargained for, but who go
upon business which concerns the occupier, and upon his invita-
tion, express or implied.
And, with respect to such a visitor at least, we consider it
settled law that he, using reasonable care on his part for his own
safety, is entitled to expect that the occupier shall on his part use
reasonable care to prevent damage from unusual danger [of] which
he knows or ought to know ; and that, where there is evidence
of neglect, the question whether such reasonable care has been
taken, by notice, lighting, guarding, or otherwise, and whether
there was contributory negligence in the sufferer, must be deter-
mined by a jury as matter of fact.
In the case of Wilkinson v. Fairrie, 1 H. & C. 633, 32 L. J.
Ex. 73, relied upon for the defendant, the distinction was
pointed out between ordinary accidents, such as falling down
stairs, which ought to be imputed to the carelessness or mis-
fortune of the sufferer, and accidents from unusual, covert
danger, such as that of falling down into a pit.
It was ably insisted for the defendant that he could only be
bound to keep his place of business in the same condition as other
places of business of the like kind, according to the best known
mode of construction. And this argument seems conclusive to
prove that there was no absolute duty to prevent danger, but only
a duty to make the place as little dangerous as such a place could
reasonably be, having regard to the contrivances necessarily used
in carrying on the business. But we think the argument is inap-
plicable to the facts of this case : first, because it was not shown,
and probably could not be, that there was any usage never to
fence shafts; secondly, because it was proved that, when the
shaft was not in use, a fence might be resorted to without incon-
venience ; and no usage could establish that what was in fact
necessarily dangerous was in law reasonably safe, as against
persons towards whom there was a duty to be careful.
Having fully considered the notes of the Lord Chief Justice,
we think there was evidence for the jury that the plaintiff was in
the place by the tacit invitation of the defendant, upon business
iu which he was concerned ; that there was by reason of the shaft
682 NEGLIGENCE.
unusual danger, known to the defendant ; and that the plaintiff
sustained damage by reason of that danger, and of the neglect of
the defendant and his servants to use reasonably sufficient means
to avert or warn him of it : and we cannot say that the proof of
contributory negligence was so clear that we ought on this ground
to set aside the verdict of the jury.
As for the argument that the plaintiff contributed to the acci-
dent by not following his guide, the answer may be, that the
guide, knowing the place, ought rather to have waited for
him ; and this point, as matter of fact, is set. at rest by the ver-
dict.
For these reasons, we think there was evidence of a cause of
action in respect of which the jury were properly directed ; and,
as every reservation of leave to enter a nonsuit carries with it an
implied condition that the court may amend, if necessary, in such
a manner as to raise the real question, leave ought to be given to
the plaintiff, in the event of the defendant desiring to appeal or
to bring a writ of error, to amend the declaration by stating the
facts as proved, — in effect, that the defendant was the occupier
of and carried on business at the place ; that there was a shaft,
very dangerous to persons in the place, which the defendant knew
and the plaintiff did not know ; that the plaintiff, by invitation
and permission of the defendant, was there near the shaft, upon
business of the defendant, in the way of his own craft as a gas-
fitter, for hire, &c, stating the circumstances, the negligence, and
that by reason thereof the plaintiff was injured. The details of
the amendment can, if necessary, be settled at Chambers.
As to the motion to arrest the judgment, for the reasons already
given, and upon condition that an amendment is to be made if
and when required by the defendant, it will follow the fate of the
motion to enter a nonsuit. The other arguments for the defend-
ants, to which we have not particularly adverted, were no more
than objections to the verdict as being against the evidence : but
it would be wrong to grant a new trial without a reasonable
expectation that another jury might take a different view of the
facts ; and, as the Lord Chief Justice does not express any dis-
satisfaction with the verdict, the rule upon this, the only remain-
ing ground, must also be discharged. Rule discharged.
Attorneys for plaintiff, Sturney $ Biggies. Attorney for de-
fendant, Gr. Henderson.
INDERMAUR V. DAMES. 683
The case was now carried by appeal to the Exchequer Chamber,
where the judgment above pronounced was affirmed. Law R. 2
C. P. 317. The opinion of the court was delivered by
Kelly, C. B., who, after quoting from and adopting the"opinion
of Willes, J., supra, that the plaintiff was not a licensee, said :
The question has been raised whether the plaintiff at the time of
the accident, and under the special circumstances of the case, was
more than a mere volunteer. Let us see what the case really was.
The work had been done on Saturday, and at the conclusion of
it an appointment was made for the plaintiff's employer or some
other workman to come on the following Tuesday to see if the
work was in proper order, and all the parts of it acting rightly.
The plaintiff, by his master's directions, went for that purpose,
and I own I do not see any distinction between the case of a
workman going upon the premises to perforin his employer's con-
tract, and that of his going after the contract is completed, but
for a purpose incidental to the contract, and so intimately con-
nected with it that few contracts are completed without a similar
act being done. The plaintiff went under circumstances such as
those last mentioned, and he comes therefore strictly within the
language used by Willes, J., " a person on lawful business in the
course of fulfilling a contract in which both the plaintiff and
defendant have an interest." What, then, is the duty imposed by
law on the owner of these premises ? They were used for the
purpose of a sugar refinery ; and it may very likely be true that
such premises usually have holes in the floors of the different
stories, and that they are left without any fence or safeguard
during the day while the work-people, who it may well be sup-
posed are acquainted with the dangerous character of the
premises, are about ; but if a person occupying such premises
enters into a contract, in the fulfilment of which workmen must
come on the premises who probably do not know what is usual in
such places, and are unacquainted with the danger they are likely
to incur, is he not bound either to put up some fence or safeguard
about the hole, or, if he does not, to give such workmen a reason-
able notice that they must take care and avoid the danger ? I
think the law does impose such an obligation on him. That view
was taken in the judgment below, where it is said, " With respect
to such a visitor at least, we consider it settled law that he, using
reasonable care on his part for his own safety, is entitled to
684 NEGLIGENCE.
expect that the occupier shall on his part use reasonahle care to
prevent damage from unusual danger [of] which he knows or
ought to know ; and that when there is evidence of neglect, the
question whether such reasonable care has been taken by notice,
lighting, guarding, or otherwise, and whether there was such con-
tributory negligence in the sufferer, must be determined by a jury
as a matter of fact."
It was so determined in this case ; and, though I am far from
saying that there was not evidence that the plaintiff largely con-
tributed to the accident by his own negligence, yet that was for
the jury ; and I think there was clearly some evidence for them
that the defendant had not used reasonable precautions, and that
the judge therefore would have been wrong if he had non-suited
the plaintiff.
Channell, B., Blackburn, J., Mellor, J., and Pigott, B., con-
curred. Judgment affirmed.
Roberts v. Smith and Another.
(2 Hurl. & N. 213. Exchequer Chamber, England, Easter Vacation, 1857.)
A declaration stated that the plaintiff, a bricklayer, entered into the service of the
defendants upon the terms that they should take and use all due, reasonable, and
proper means and precautions in order to prevent accident, damage, or injury, or
unreasonable or unnecessary risk, or damage from happening or occurring to the
plaintiff in the performance of his duty as such servant ; that the defendants did
not take such reasonable precautions, and by reason thereof, and of the neglect of
duty of the defendants, the plaintiff was employed on a scaffold which, for want
of such precautions, was rotten and unsafe, which the defendants knew, and whereof
the plaintiff was wholly ignorant, and in consequence thereof a part of the scaffold
broke, and the plaintiff fell to the ground. Pleas, — first, not guilty; second,
traverse of employment on the terms alleged. At the trial, it was -proved that
the defendants had employed a laborer to erect the scaffold. The materials for the
scaffold were in bad condition. The laborer broke several of the putlogs in trying
them. One of the defendants told him to break no more ; that the putlogs would
do very well. The laborer used such as he thought sound. One of the putlogs
so used having given way, the scaffold fell, and the plaintiff was injured. On this
evidence, the judge at the trial directed a nonsuit. Held, on appeal to the Court
of Exchequer Chamber, that there was evidence to go to the jury of the liability
of the defendants.
ROBERTS V. SMITH. 685
Declaration : That before, and until, and at the time of the
plaintiff's entering into the service of the defendants, and of the
committing- of the grievances, &c, the defendants carried on
the business of builders, and the plaintiff, being a bricklayer,
entered into the service of the defendants in the way of their trade,
upon the terms and conditions, amongst others, that the defendants
should take and use all due, reasonable, and proper means and
precautions in order to prevent accident, damage, or injury, or
unreasonable and unnecessary risk or danger from happening
or occurring to the plaintiff, in the performance of his duty
as such servant of the defendants ; and, although the plaintiff
did all things, &c, yet the defendants did not take or use due, or
reasonable, or proper means or precautions, but altogether omitted
so to do ; and by reason thereof, and of the default and neglect of
duty of the defendants, the plaintiff was directed and emploj-ed
by the defendants, as such their servant, to perform work
upon the wall of a house, and for that purpose to remain at a
great height from the ground upon a scaffold, affixed to such
house, and which scaffold, for want of the use of such means or
precautions, and by reason of the negligence and default of the
defendants, was and remained constructed very unsafely and un-
securely, and in such a defective, rotten, and improper state and
condition as to render it dangerous to remain upon the same for
the purpose of doing the work, which the defendants then well
knew, but whereof the plaintiff was wholly ignorant ; and in con-
sequence thereof, whilst the plaintiff was so engaged and employed,
a part of the scaffold broke and gave way, and the plaintiff was
precipitated to the ground, and his thigh was thereby fractured,
&c. Pleas, — first, not guilty ; second, traverse of the employ-
ment upon the terms alleged. Issues thereon.
The case was tried before Pollock, C. B., at the sittings at
"Westminster, after last Michaelmas Term, when the following
evidence was given for the plaintiff : —
The plaintiff stated that he was a bricklayer in defendants'
employment. On the 16th of July, in consequence of the break-
ing of a putlog, the plaintiff was precipitated from a scaffold into
the area, and broke his thigh. Another witness, a laborer, said :
" I was employed to get the scaffolding out of the defendants'
yard, and to erect the same. It is usual to examine the poles, &c.
I examined the materials, and found them in bad condition,
686 NEGLIGENCE.
dight, and worm-eaten. I broke several that were light and worm-
eaten. The defendant, William Smith, came afterwards ; he asked
who broke the putlogs ; I told him I did. Smith then said, ' You
have no business to do so ; they will do very well, as there are no
bricks or mortar to be put upon them ; don't break any more.'
I put aside such as I thought sound. I used three putlogs where
one would have done. I have been a laborer and scaffolder for
twentj'-five years. A sound putlog ought to bear from 15 ewt.
to a ton, or twenty men." Another witness, on cross-examina-
tion, stated, " The putlog which broke was the strongest of the
three ; I thought it was safe for the weight which was going on
it." Other witnesses stated that the putlogs and poles were both
rotten. At the conclusion of the plaintiff's case, it was objected
that there was no evidence to go to the jury ; and on that ground
the Lord Chief Baron directed a nonsuit, with liberty to the
plaintiff to move for a new trial, if there was any evidence to go
to the jury.
A rule was afterwards obtained by the plaintiff, catling upon
the defendants to show cause why the nonsuit should not be set
aside, and a new trial had, on the ground- that the evidence ought
to have been left to the jury. It was agreed between the plain-
tiffs and the defendants' counsel (in order that the plaintiff might
appeal) that this rule should be discharged by the Court of Ex-
chequer, and against such ruling this appeal was brought.
Temple, with whom was 0. Wray Lewis, for the plaintiff, now
moved for a new trial. The accident was caused by the improper
conduct of the defendant Smith, who prevented the servant whom
he had employed to erect the scaffold from trying the strength
of the putlogs which he was about to use. The principle which
governs these cases is laid down in Paterson v. Wallace, 1 Mac-
queen, 748. This was an action against the owners of a mine
by the family of a workman, who was killed in the mine by the
falling of a stone. It was proved that one Snedden was the un-
derground manager of the mine ; that there was some dispute
about not going to work on the day when the accident happened,
when the workmen pointed to the roof, and particularly to the
stone, which afterwards fell, as being in a very dangerous condi-
tion. Snedden said they were afraid of snow when none fell.
The deceased remonstrated, and Snedden ultimately agreed that
the stone should be removed. The deceased, not waiting for the
ROBERTS V. SMITH. 687
removal, passed under the stone, and was killed by its falling.
Lord Crauworth, C, said that it was necessary for the pursuers to
establish two propositions : first, that the stone was in a dangerous
position, owing to the negligence of the master ; and, next, that
the workman whose life was forfeited lost it by reason of that
negligence, and not of any rashness on his own part. He also
laid down the rule, " When a master employs a servant in a work
of a dangerous character, he is bound to take all reasonable
precautions for the safety of that workman. ... It is the
master's duty to be careful that his servant is not induced to work
under a notion that tackle or machinery is staunch or secure,
when, iu fact, the master knows, or ought to know, that it is not so ;
and if, from any negligence in this respect, damage arise, the mas-
ter is responsible." This ruling was confirmed in the case of
Brydon v. Stewart, 2 Macqueen, 30. If it had been proved that
every putlog was in a rotten state, that might have been evidence
for the jury that reasonable care had not been taken by the master.
Here, however, there was express evidence of recklessness on
the part of the master. [Cockburx, C. J. It is clear that there
was evidence to go to the jury that the accident was caused by the
negligence of the master ; the question is, not whether the master
believed the putlogs sufficiently strong, but whether he was jus-
tified in believing them so.]
Knowhs, with whom was Barnard, for the defendants, showed
cause. The declaration alleges that the plaintiff entered into the
service of the defendants, upon the terms that they should use
all due means and precautions in order to prevent accident or in-
jury, or unreasonable or unnecessary risk or damage from happen-
ing to the plaintiff in the performance of his duty as a servant.
Now, the law casts no duty upon a master in a case like the
present, except that of taking due care in selecting his servants.
[Cockburx, C. J. Suppose he employs competent servants, but
gives them materials that are rotten, and cannot safely be used.
Wig htm ax, J. Suppose that he does so knowing the materials
to be rotten. J The only duty is to take reasonable care in pro-
viding proper materials and servants. [Crompton, J. The alle-
gation means no more than that the defendant was to do all that
the law required of him.] In Seymour v. Maddox, 16 Q. B. 326,
it was held that the owner of a theatre was not liable for in-
jury to an actor, who fell through a hole in the floor, under the
688 NEGLIGENCE.
stage, which was not lighted or fenced. [Erle, J. In that case
the arrangement was an indispensable part of the stage mechan-
ism.] In Tarrant v. Webb, 18 C. B. 797, certain scaffolding had
been erected by a servant of the defendant, named Martin. Some
painters employed said it wanted an additional upright ; and the
defendant said that, if Martin hearkened to the painters, he would
have nothing else to do. The accident having occurred for want
of the additional upright, Crowder, J., told the jury that if they
were of opinion that the scaffolding was erected under the per-
sonal direction and interference of the defendant, and was insuf-
ficient, or that the person employed by the defendant for the
purpose of erecting it was an incompetent person, the plaintiff
was entitled to recover. The jury, having found a verdict for the
plaintiff, intimating that Martin was not a competent person,
the court granted a new trial. [Crompton7, J. That part of the
ruling of my brother Crowder which applies to this case is
against the defendants. Cockburn, C. J. There the plaintiff
sought to make the master responsible for the negligence of the
servant. Here it was the master who was himself guilty of negli-
gence. Crowder, J. The master there had nothing to do with
the scaffolding.]
Cockburn, C. J. We are all of opinion that there must be a
new trial, and that it was quite clear that there is evidence to
go to the jury.
Willes, J. It must be understood that this rule is granted
upon the ground that there appears to have been evidence of the
personal interference and negligence of the master.
Rule absolute for a new trial.
Nicholas Farwell v. The Boston and Worcester Railroad
Corporation.
(4 Met. 49. Supreme Court, Massachusetts, March Term, 1849.)
Where a master uses due diligence in the selection of competent and trusty servants,
and furnishes them with suitable means to perform the service in which he employs
them, he is not answerable to one of them for an injury received by him in con-
FARWELL V. BOSTON AND WORCESTER RAILROAD CORPORATION. 689
sequence of the carelessness of another while both are engaged in the same
service.
A railroad company employed A., who was careful and trusty in his general charac-
ter, to tend the switches on their road ; and, after lie had been long in their service,
they employed B. to run the passenger train of cars on the road, B. knowing the
employment and character of A. Held, that the company were not answerable to
B. for an injury received by him, while running the cars, in consequence of the
carelessness of A. in the management of the switches.
Ix an action of trespass upon the case, the plaintiff alleged in
his declaration that he agreed with the defendants to serve them
in the employment of an engineer in the management and care
of their engines and cars running on their railroad between
Boston and Worcester, and entered on said employment, and
continued to perform his duties as engineer till October 30,
1837, when the defendants, at Newton, by their servants, so care-
lessly, negligently, and unskilfully managed and used, and put and
placed the iron match rail, called the short switch, across the
rail or track of their said railroad, that the engine and cars,
upon which the plaintiff was engaged and employed in the dis-
charge of his said duties of engineer, were thrown from the
track of said railroad, and the plaintiff, by means thereof, was
thrown with great violence upon the ground ; by means of which
one of the wheels of one of said cars passed over the right hand
of the plaintiff, crushing and destroying the same.
The case was submitted to the court on the following facts
agreed by the parties : " The plaintiff was employed by the
defendants, in 1835, as an engineer, and went at first with the
merchandise cars, and afterwards with the passenger cars, and
so continued till October 30, 1837, at the wages of two dollars
per day, that being the usual wages paid to engine-men, which
are higher than the wages paid to a machinist, in which capacity
the plaintiff formerly was employed.
" On the 30th of October, 1837, the plaintiff, then being in
the employment of the defendants, as such engine-man, and run-
ning the passenger train, ran his engine off at a switch on the
road, which had been left in a wrong condition (as alleged by
the plaintiff, and, for the purposes of this trial, admitted by the
defendants) by one "Whitcomb, another servant of the defend-
ants, who had been long in their employment, as a switchman
or tender, and had the care of switches on the road, and was a
careful and trustworthy servant, in his general character, and as
44
690 NEGLIGENCE.
such servant was well known to the plaintiff; by which run-
ning off, the plaintiff sustained the injury complained of in his
declaration.
" The said Farwell (the plaintiff) and Whitcomb were both
appointed by the superintendent of the road, who was in the
habit of passing over the same very frequently in the cars, and
often rode on the engine.
" If the court shall be of opinion that, as matter of law, the
defendants are not liable to the plaintiff, he being a servant of
the corporation, and in their employment, for the injury he may
have received from the negligence of said Whitcomb, another
servant of the corporation, and in their employment, then the
plaintiff shall become nonsuit; but if the court shall be of opin-
ion, as matter of law, that the defendants may be liable in this
ease, then the case shall be submitted to a jury upon the facts
which may be proved in the case ; the defendants alleging negli-
gence on the part of the plaintiff."
0. Gr. Loring, for the plaintiff. Fletcher $• Morey, for the de-
fendants.
Shaw, C. J. This is an action of new impression in our
courts, and involves a principle of great importance. It pre-
sents a case where two persons are in the service and employ-
ment of one company, whose business it is to construct and
maintain a railroad, and to employ their trains of cars to carry
persons and merchandise for hire. They are appointed and
employed by the same company to perform separate duties and
services, all tending to the accomplishment of one and the same
purpose, — that of the safe and rapid transmission of the trains;
and they are paid for their respective services according to the
nature of their respective duties, and the labor and skill required
for their proper performance. The question is whether, for
damages sustained by one of the persons so employed, by means
of the carelessness and negligence of another, the party injured
has a remedy against the common employer. It is an argument
against such an action, though certainly not a decisive one, that
no such action has before been maintained.
It.is laid down by Blackstone, that if a servant, by his negli-
gence, does any damage to a stranger, the master shall be an-
swerable for his neglect. But the damage must be done while
he is actually employed in the master's service ; otherwise the
FARWELL V. BOSTON AND WORCESTER RAILROAD CORPORATION. 691
servant shall answer for his own misbehavior. 1 Bl. Com. 431 ;
M'Manus v. Crickett, 1 East, 106. This rule is obviously founded
on the great principle of social duty, that every man, in the
management of his own affairs, whether by himself or by his
agents or servants, shall so conduct them as not to injure
another ; and if he does not, and another thereby sustains dam-
age, he shall answer for it. If done by a servant, in the course
of his employment, and acting within the scope of his authority,
it is considered, in contemplation of law, so far the act of the
master that the latter shall be answerable civiliter. But this
presupposes that the parties stand to each other in the relation
of strangers, between whom there is no privity; and the action,
in such case, is an action sounding in tort. The form is tres-
pass on the case, for the consequential damage. The maxim
respondeat superior is adopted in that case from general consid-
erations of policy and security.
But this does not apply to the case of a servant bringing his
action against his own employer to recover damages for an in-
jury arising in the course of that employment, where all such
risks and perils as the employer and the servant respectively
intend to assume and bear may be regulated by the express or
implied contract between them, and which, in contemplation of
law, must be presumed to be thus regulated.
The same view seems to have been taken by the learned
counsel for the plaintiff in the argument ; and it was conceded
that the claim could not be placed on the principle indicated by
the maxim respondeat superior, which binds the master to in-
demnify a stranger for the damage caused by the careless, negli-
gent, or unskilful act of his servant in the conduct of his affairs.
The claim, therefore, is placed, and must be maintained, if
maintained at all, on the ground of contract. As there is no
express contract between the parties, applicable to this point, it
is placed on the footing of an implied contract of indemnity,
arising out of the relation of master and servant. It* would be
an implied promise, arising from the duty of the master to be
responsible to each person employed by him, in the conduct of
every branch of business, where two or more persons are em-
ployed, to pay for all damage occasioned by the negligence of
every other person employed in the same service. If such a
duty were established by law, — like that of a common carrier,
692 NEGLIGENCE.
to stand to all losses of goods not caused by the act of God or
of a public enemy, or that of an innkeeper, to be responsible,
in like manner, for the baggage of his guests, — it would be a rule
of frequent and familiar occurrence ; and its existence and appli-
cation, with all its qualifications and restrictions, would be set-
tled by judicial precedents. But we are of opinion that no
such rule has been established, and the authorities, as far as
they go, are opposed to the principle. Priestley v. Fowler, 3
Mees. & Welsb. 1 ; Murray v. South Carolina Railroad Com-
pany, 1 McMullan, 385.
The general rule resulting from considerations as well of jus-
tice as of policy is that he who engages in the employment of
another for the performance of specified duties and services, for
compensation, takes upon himself the natural and ordinary risks
and perils incident to the performance of such, services, and, in
legal presumption, the compensation is adjusted accordingly.
And we are not aware of any principle which should except the
perils arising from the carelessness and negligence of those who
are in the same employment. These are perils which the ser-
vant is as likely to know, and against which he can as effectually
guard, as the master. They are perils incident to the service,
and which can be as distinctly foreseen and provided for in the
rate of compensation as any others. To say that the master
shall be responsible because the damage is caused by his agents,
is assuming the very point which remains to be proved. They
are his agents to some extent, and for some purposes ; but
whether he is responsible, in a particular case, for their negli-
gence, is not decided by the single fact that they are, for some
purposes, his agents. It seems to be now well settled, what-
ever might have been thought formerly, that underwriters can-
not excuse themselves from payment of a loss by one of the
perils insured against, on the ground that the loss was caused
by the negligence or unskilfulness of the officers or crew of the
vessel, in the performance of their various duties as navigators,
although employed and paid by the owners, and, in the navi-
gation of the vessel, their agents. Copeland v. New England
Marine Ins. Co., 2 Met. 440-443, and cases there cited. I
am aware that the maritime law has its own rules and analogies,
and that we cannot always safely rely upon them in applying
them to other branches of law. But the rule in question seems
PARWELL V. BOSTON AND WORCESTER RAILROAD CORPORATION. 693
to be a good authority for the point that persons are not to be
responsible, in all cases, for the negligence of those employed by
them.
If we look from considerations of justice to those of policy,
they will strongly lead to the same conclusion. In considering
the rights and obligations arising out of particular relations, it is
competent for courts of justice to regard considerations of policy
and general convenience, and to draw from them such rules
as will, in their practical application, best promote the safety
and security of all parties concerned. This is, in truth, the
basis on which implied promises are raised, being duties legally
inferred from a consideration of what is best adapted to promote
the benefit of all persons concerned, under given circumstances.
To take the well-known and familiar cases already cited : a
common carrier, without regard to actual fault or neglect in
himself or his servants, is made liable for all losses of goods con-
fided to him for carriage, except those caused by the act of God
or of a public enemy, because he can best guard them against
all minor dangers, and because, in case of actual loss, it would
be extremely difficult for the owner to adduce proof of embez-
zlement, or other actual fault or neglect on the part of the car-
rier, although it may have been the real cause of the loss. The
risk is therefore thrown upon the carrier ; and he receives, in
the form of payment for the carriage, a premium for the risk
which he thus assumes. So of an innkeeper; he can best se-
cure the attendance of honest and faithful servants, and guard
his house against thieves. Whereas, if he were responsible
only upon proof of actual negligence, he might connive at the
presence of dishonest inmates and retainers, and even partici-
pate in the embezzlement of the property of the guests, during
the hours of their necessary sleep, and yet it would be difficult,
and often impossible, to prove these facts.
The liability of passenger carriers is founded on sinrilar con-
siderations. They are held to the strictest responsibility for
care, vigilance, and skill, on the part of themselves and all per-
sons employed by them, and they are paid accordingly. The
rule is founded on the expediency of throwing the risk upon
those who can best guard against it. Story on Bailments, § 590
et seq.
We are of opinion that these considerations apply strongly to
694 . NEGLIGENCE.
the case in question. Where several persons are employed in
the conduct of one common enterprise or undertaking, and the
safety of each depends much on the care and skill with which
each other shall perform his appropriate duty, each is an observer
of the conduct of the others, can give notice of any misconduct,
incapacity, or neglect of duty, and leave the service, if the com-
mon employer will not take such precautions, and employ such
agents, as the safety of the whole party may require. By these
means, the safety of each will be much more effectually secured
than could be done by a resort to the common employer for indem-
nity in case of loss by the negligence of each other. Regarding
it in this light, it is the ordinary case of one sustaining an injury
in the course of his own employment, in which he must bear the
loss himself, or seek his remedy, if he have any, against the actual
wrong-doer.
In applying these principles to the present case, it appears that
the plaintiff was employed by the defendants as an engineer, at
the rate of wages usually paid in that employment, being a higher
rate than the plaintiff had before received as a machinist. It was
a voluntary undertaking on his part, with a full knowledge of the
risks incident to the employment ; and the loss was sustained by
means of an ordinary casualty, caused by the negligence of another
servant of the company. Under these circumstances, the loss
must be deemed to be the result of a pure accident, like those -to
which all men, in all employments, and at all times, are more
or less exposed ; and, like similar losses from accidental causes, it
must rest where it first fell, unless the plaintiff has a remedy
against the person actually in default, of which we give no
opinion.
It was strongly pressed in the argument that although this
might be so, where two or more servants are employed in the
same department of duty, where each can exert some influence
over the conduct of the other, and thus to some extent provide
for his own security, yet that it could not apply where two or
more are employed in different departments of duty, at a distance
from each other, and where one can in no degree control or
influence the conduct of another. But we think this is founded
upon a supposed distinction, on which it would be extremely dif-
ficult to establish a practical rule. When the object to be accom-
plished is one and the same, when the employers are the same,
PARWELL V. BOSTON AND WORCESTER RAILROAD CORPORATION. 695
and the several persons employed derive their authority and their
compensation from the same source, it would be extremely diffi-
cult to distinguish what constitutes one department and what a
distinct department of duty. It would vary with the circum-
stances of every case. If it were made to depend upon the
nearness or distance of the persons from each other, the question
would immediately arise, how near or how distant must they be
to be in the same or different departments. In a blacksmith's
shop, persons working in the same building, at different fires, may
be quite independent of each other, though only a few feet distant.
In a rope walk several may be at work on the same piece of
cordage, at the same time, at many hundred feet distant from each
other, and beyond the reach of sight and voice, and yet acting
together.
Besides, it appears to us that the argument rests upon an
assumed principle of responsibility which does not exist. The
master, in the case supposed, is not exempt from liability because
the servant has better means of providing for his safety when he
is employed in immediate connection with those from whose neg-
ligence he might suffer, but because the implied contract of the
master does not extend to indemnify the servant against the
negligence of any one but himself ; and he is not liable in tort,
as for the negligence of his servant, because the person suffering
does not stand towards him in the relation of a stranger, but is
one whose rights are regulated by contract, express or implied.
The exemption of the master, therefore, from liability for the
negligence of a fellow-servant, does not depend exclusively upon
the consideration that the servant has better means to provide
for his own safety, but upon other grounds. Hence the separation
of the employment into different departments cannot create that
liability when it does not arise from express or implied contract,
or from a responsibility created by law to third persons and
strangers for the negligence of a servant.
A case may be put for the purpose of illustrating this distinc-
tion. Suppose the road had been owned by one set of proprietors
whose duty it was to keep it in repair, and have it at all times
ready and in fit condition for the running of engines and cars,
taking a toll, and that the engines and cars were owned by another
set of proprietors, paying toll to the proprietors of the road, and
receiving compensation from passengers for their carriage ; and
696 NEGLIGENCE.
suppose the engineer to suffer a loss from the negligence of the
switch-tender. We are inclined to the opinion that the engineer
might have a remedy against the railroad corporation ; and, if so,
it must be on the ground that as between the engineer employed
by the proprietors of the engines and cars, and the switch-tender
employed by the corporation, the engineer would be a stranger,
between whom and the corporation there could be no privity of
contract, and not because the engineer would have no means of
controlling the conduct of the switch-tender. The responsibility
which one is under for the negligence of his servant, in the con-
duct of his business, towards third persons, is founded on another
and distinct principle from that of implied contract, and stands on
its own reasons of policy. The same reasons of policy, we think,
limit this responsibility to the case of strangers, for whose security
alone it is established. Like considerations of policy and general
expediency forbid the extension of the principle, so far as to
warrant a servant in maintaining an action against his employer
for an indemnity which we think was not contemplated in the
nature and terms of the employment, and which, if established,
would not conduce to the general good.
In coming to the conclusion that the plaintiff, in the present
case, is not entitled to recover, considering it as in some measure
a nice question, we would add a caution against any hasty con-
clusion as to the application of this rule to a case not fully within
the same principle. It may be varied and modified by circum-
stances not appearing in the present case, in which it appears that
no wilful wrong or actual negligence was imputed to the corpora-
tion, and where suitable means were furnished and suitable persons
employed to accomplish the object in view. We are far from
intending to say that there are no implied warranties and under-
takings arising out of the relation of master and servant.
Whether, for instance, the employer would be responsible to
an engineer for a loss arising from a defective or ill-constructed
steam-engine ; whether this would depend upon an implied
warranty of its goodness and sufficiency, or upon the fact of
wilful misconduct or gross negligence on the part of the employer,
if a natural person, or of the superintendent or immediate repre-
sentative and managing agent in case of an incorporated com-
pany — are questions on which we give no opinion. In the present
case the claim of the plaintiff is not put on the ground that the
PERSONS INJURED WHILE ON DEFENDANT'S PREMISES. 697
defendants did not furnish a sufficient engine, a proper railroad
track, a well-constructed switch, and a person of suitable skill
and experience to attend it ; the gravamen of the complaint is
that that person was chargeable with negligence in not changing
the switch, in the particular instance, by means of which the
accident occurred by which the plaintiff sustained a severe loss.
It ought, perhaps, to be stated, in justice to the person to whom
this negligence is imputed, that the fact is strenuously denied by
the defendants, and has not been tried by the jury. By consent
of the parties, this fact was assumed without trial, in order to take
the opinion of the whole court upon the question of law, whether,
if such was the fact, the defendants, under the circumstances,
were liable. Upon this question, supposing the accident to have
occurred, and the loss to have been caused, by the negligence of
the person employed to attend to and change the switch, in his
not doing so in the particular case, the court are of opinion that
it is a loss for which the defendants are not liable, and that the
action cannot be maintained. Plaintiff nonsuit.
Persons (not servants) injured while But the rule is not always so easily
on Defendant'' s Premises. — Sweeny v. applied as stated. Who are licensees
Old Colony & N. R. Co. and Inder- or volunteers, and who are customers,
maur v. Dames have settled the dis- using each of these words in the broad
tinction between the duty which a man sense, as including all who take their
owes to persons who come upon his own risk, and all to whom the duty of
premises as bare volunteers or licensees, warning belongs ?
and those who come as customers or Upon careful examination of the
otherwise in the course of business, above and other cases, however, it will
upon the invitation, express or implied, be found that the authorities may be
of the occupier. As to the latter, the classed under three heads, to wit : —
occupier is bound to exercise reason- 1. Bare licensees or volunteers.
able care to prevent damage from un- 2. Those who are expressly invited
usual danger, of which the occupier has or induced by the active conduct of the
or ought to have knowledge ; and this, defendant to go upon his premises,
though the transaction had already been 3. Customers and others who go there
completed, and the plaintiff had re- on business with the occupier,
turned only for some incidental (if The general rule will then be that in
proper and usual) purpose connected those cases which fall under the first
with it. As to the former, the party head the party injured has no right of
takes his own risk ; and, so long as there action against the occupant of the prem-
is no active misconduct towards him, ises ; and the contrary in cases falling
no liability is incurred by the occupier under the second and third heads. But
of the premises by reason of injury sus- each of these classes requires further
tained by a visitor on his premises. examination.
698
NEGLIGENCE.
As to bare licensees and volunteers,
or even voluntary trespassers, it is by
no means true that an action will never
lie against the occupant. It has been
held in England, in a series of cases
beginning with Bird v. Holbrook, 4
Bing. 628, s. c. 1 Moore & P. 607,
that where the defendant has been
guilty of an inhuman (though possibly
not indictable) act, as the setting of a
spring gun in his premises without
notice, for the express purpose of
" catching a man," — one who has vol-
untary strayed upon the premises, and
been injured by the dangerous engine,
may maintain an action for the damage
sustained. If, however, the plaintiff
had notice of the existence of the dan-
gerous thing, he cannot recover. Uott
v. Wilks, 3 Barn. & Aid. 308. See
also Deane v. Clayton, 7 Taunt. 518 ;
Lynch t>. Nurdin, 1 Q. B. 37 ; Jordin
v. Crump, 8 Mees. & W. 782 ; Barnes
v. Ward, 9 Com. B. 392, 420 ; John-
son v. Patterson, 14 Conn. 1 ; Birge v.
Gardiner, 19 Conn. 507 ; all approving
the doctrine of Bird v. Holbrook.
A fortiori, if the plaintiff in such a
case as Bird v. Holbrook were not
guilty of fault, albeit he were a bare
licensee. See Collis v. Selden, Law
R. 3 Com. P. 495, where it was con-
ceded, in an action against a gas-fitter
for negligence in hanging a chandelier,
whereby the plaintiff, apparently a
licensee on the premises, was injured,
that if the defendant had known of the
defective hanging, he would have been
liable.
Nor is it true that a bare licensee
can never recover for injury sustained
where the defendant has not been guilty
of some great wickedness. If the act
of the defendant amounts to a public
nuisance, and the plaintiff has suffered
special damage thereby, he may recover
in some cases, though the damage was
sustained by reason of his going upon
the defendants's premises, if his going
there was accidental or without inten-
tion. Barnes e. Ward, 9 Com. B. 392.
The contrary, apparently, has been
held in Massachusetts, but we appre-
hend upon an incomplete view of the
subject. Howland v. Vincent, 10 Met.
371. In this case the plaintiff had been
injured by falling in the night-time into
a hole dug by the defendant in his prem-
ises. This hole, which had been dug
for the purpose of cellar rooms for the
defendant's hotel, extended to within a
foot and a half of the line of the high-
way, along which the plaintiff was law-
fully passing at the time. It was agreed
that the plaintiff had been free from
negligence ; but it was held that she
could not recover. The act of the de-
fendant, it was said, was lawful ; it had
been done without negligence ; and,
though the public may have been per-
mitted to pass over the vacant space
before the hole was dug, yet they had
acquired no rights thereby. And this
license had been lawfully revoked.
But the learned court overlooked
what would seem to be an answer to
this otherwise sound position ; to wit,
that the defendant, by digging the hole
so near the highway and leaving it ex-
posed as it was, had constructed a pub-
lic nuisance. (Comp. Murphy v. Brooks,
109 Mass. 202.) This was the ground
upon which Barnes v. Ward, supra, a
very similar case, was decided. The
learned judge at nisi prius had told the
jury that if there was a public way
abutting on the area, and it would be
dangerous to persons passing, unless
fenced, or if there was a public way so
near that it would produce danger to the
public unless fenced, the defendant
would be liable, unless the accident was
PERSONS INJURED WHILE ON DEFENDANT'S PREMISES.
699
occasioned by want of ordinary caution
on the part of the deceased. The jury
having found a verdict for the plaintiff,
a motion to set the same aside for
(inter alia) misdirection was now made.
The case was twice elaborately argued,
and the motion finally overruled. " In
the present ease," said Mr. Justice
Maule, in delivering judgment, " the
jury expressly found the way to have
existed inimemorially ; and they must
be taken to have found that the state
of the area made the way dangerous
for those passing along it, and that the
deceased was using ordinary caution in
the exercise of the right of way at the
time the accident happened. The re-
sult is, — considering that the present
case refers to a newly made excavation
adjoining an immemorial way, which
rendered the way unsafe to those who
used it with ordinary care, — it appears
to us, after much consideration, that
the defendant, in having made that ex-
cavation, was guilty of a public nui-
sance, even though the danger consisted
in the risk of accidentally deviating
from the road ; for the danger thus
created may reasonably deter prudent
persons from using the way, and thus
the full enjoyment of it by the public
is, in effect, as much impeded as in the
case of an ordinary nuisance to a high-
way."
The doctrine of this case has often
been approved. In Hardcastle v.
South Yorkshire By. Co., 4 Hurl. &
M. 67, the plaintiff's intestate was
drowned by walking into a reservoir.
The declaration alleged that the defend-
ants were possessed of land near to and
adjoining an ancient common and pub-
lic footway, and had constructed a cer-
tain large reservoir, hole, or dam, in
and upon their said land within a short
distance of the said footway, and filled
the same with water ; the existence of
the said reservoir so adjoining the foot-
way being dangerous to persons pass-
ing along the way by night or by day,
even if ordinary caution were employed.
Whereby it became the duty of the de-
fendants to properly guard the place ;
but, failing in the same, the deceased
had missed his path, and had fallen into
the reservoir. The evidence showed
that the reservoir was near, but not ad-
joining the footway ; and it was held
that the plaintiff could not recover.
Referring to Barnes v. Ward, supra, the
court observed that the doctrine that a
private injury arising from a public
nuisance is subject-matter of an action
for damages was as old as the common
law, and that if they were of opinion
that the state of the reservoir was a
nuisance to the footpath, and that the
plaintiff was substantially in the right,
they would be desirous to aid the plain-
tiff; but they were of opinion she had
no right of action. " When an exca-
vation," continued the court, by Pol-
lock, C. B., "is made adjoining to a
public way, so that a person walking
upon it might, by making a false step,
or being affected with sudden giddiness,
or, in the case of a horse or carriage-
way, might, by the sudden starting of a
horse, be thrown into the excavation,
it is reasonable that the person making
such excavation should be liable for the
consequences ; but when the excavation
is made at some distance from the way,
and the person falling into it would be
a trespasser upon the defendant's land
before he reached it, the case seems to
us to be different. We do not see
where the liability is to stop. A man
getting off a road on a dark night and
losing his way may wander to any ex-
tent; and if the question be for the
jury, no one could tell whether he was
700
NEGLIGENCE.
liable for the consequences of his act
upon his own land or not. We think
that the proper and true test of legal
liability is whether the excavation be
substantially adjoining the way, and it
would be very dangerous if it were
otherwise, — if, in every case, it was to
be left as a fact to the jury whether the
excavation were sufficiently near to the
highway to be dangerous."
In Hounsell v. Smyth, 7 Com. B. n.
S. 731, the declaration alleged that the
defendants were seized of certain waste
land upon which was a quarry that was
worked by a person, subject to the
payment of certain royalties to the
defendants ; that this waste land was
unenclosed and open to the public, and
that all persons having occasion to pass
over the waste had been used and ac-
customed to go upon and across the
same without interruption or hindrance
from, and with the license and permis-
sion of, the owners of the waste ; that
the quarry was situate near to and
between two public highways leading
over the waste, and was precipitous and
dangerous to persons who might acci-
dentally deviate or stray, or who might
have occasion to cross over the waste
for the purpose of passing from one
such road to the other, beside or near
the quarry ; that the defendants, know-
ing the premises, negligently and con-
trary to their duty left the quarry
unfenced, and took no care and used
no means for protecting the public or
any person so accidentally deviating
from the said roads, or passing over the
the waste, from falling into the quarry ;
and that the plaintiff, having occasion
to pass along one of the said roads, and
having, by reason of the darkness of
the night, accidentally taken the wrong
road, was crossing the waste for the
purpose of getting into the other, and,
not being aware of the existence or
locality of the quarry, and being unable
by reason of the darkness to perceive
the same, fell in, and was injured. On
demurrer, it was held that the declara-
tion disclosed no cause of action. Mr.
Justice Williams said that the allega-
tions, aside from that of use and license,
amounted to no more than this, that
there was a pit or quarry upon the
waste somewhere between two public
roads, — not so near to either as to
constitute a public nuisance, but so
near as to be dangerous, not to per-
sons passing along either of the public
ways, but to persons who might acci-
dentally deviate or stray, or who might
have occasion to cross over the waste
for the purpose of passing from the one
road to the other. This state of things
gave no right of action, unless it were
shown that the excavation was so near
the road as to amount to a public nui-
sance, which was not charged. And
the allegation of user and license, the
learned judge observed, had added
nothing to the declaration, because it
did not imply any substantive right.
" Suppose the owner of land near the
sea," said he, " gives another leave to
walk on the edge of a cliff, surely it
would be absurd to contend that such
permission cast upon the former the
burden of fencing. Can it make any
difference that there is a public high-
way open to, but at some distance from,
the cliff? "
Both of the above cases were de-
cided partly upon the authority of
Blyth v. Topham, Croke Jac. 158,
where it was held that if A., seized of
a waste adjacent to a highway, digs a
pit within thirty-six feet of the highway,
and the mare of B. escapes into the
waste, and falls into the pit, and dies
there, yet B. shall not have an action
PERSONS INJURED WHILE ON DEFENDANT'S PREMISES. 701
against A., because the making of the
pit in the waste, and not in the high-
way, was not any wrong to B. But it
was the default of B. himself that his
mare escaped into the waste.
In Dinks v. South Yorkshire Ry.
Co., 3 Best & S. 244, it appeared that
the defendants had constructed a canal
by the side of an ancient public foot-
way, at a distance of more than twenty
feet from it, with a tow-path on the bank
of the canal and an intermediate space;
and, in consequence of acts of persons
authorized by the company, the distinc-
tion between the footway and the canal
had become obliterated. It also ap-
peared that, though the public had no
right to pass over the space between the
footway and the canal, they were per-
mitted by the defendants to do so. The
plaintiff's intestate had, in passing along
the way, quitted the footpath, and, in
consequence of the dangerous state
of the canal, had fallen in and been
drowned. It was held that these facts
disclosed no cause of action against the
proprietors of the canal ; the doctrine
of the above cases being reaffirmed.
Blackburn, J., said: "I do not think
it is possible, on the evidence here, to
say that this canal was adjoining to the
highway originally. There was an inter-
vening breadth of towing-path of about
nine feet, and a strip of grass, which
was agreed to be a marked and real dis-
tinction." And as to the state of the
canal, he said : " In order to distinguish
this case from that to which I have re-
ferred [Hardcastle v. South Yorkshire
Ry. Co., supra], it was argued that
such alterations had been made in the
towing-path that they obliterated the
distinction between it and the footway,
and so rendered it not noticeable, es-
pecially at night, and consequently
dangerous. But I do not think that
that amounts to making the canal adjoin
the footway, if it did not do so before."
The acts of the defendants, he added,
did not amount to an inducement to the
public to quit the footway.
In Bolch w. Smith, 7 Hurl. & N".
736, it appeared that the plaintiff was a
workman in a government dockyard,
and the defendant a contractor there.
There were water-closets in the yard
for the use of the workmen, to which
several paths led. Across one of these
paths the defendant had by proper per-
mission placed certain machinery for
the purposes of his work ; and this
machinery he had partly covered with
planks. The plaintiff, in going along
this path to the water-closet, had
stumbled, and, putting his hand out
to save himself, his arm was caught in
the machinery and lacerated. The
court ruled that he could not recover.
"On full consideration," said Chan-
nell, B., " I am clearly of opinion that
the defendant was under no obligation
to fence the shaft. The case falls within
the law as explained in Hounsell v.
Smyth. We must assume that the
plaintiff was not a trespasser, and that
he was using the road with the permis-
sion of the owners of the soil ; but he
was not obliged to use it, for there
were two other ways to the same place,
though less convenient. Corby v. Hill,
4 Com. B. n. s. 556, is to my mind
distinguishable. In that case permis-
sion was given to the defendant to
place materials on a private road, and
the plaintiff, as one of the public, had
a right to use the road on which the
defendant had placed a quantity of
slates." As to the argument that, the
defendant having undertaken to fence,
he should have done so securely, the
learned baron said that there might be
force in such an argument if the insuf-
702
NEGLIGENCE.
ficiency of the fence had not been
apparent. It would then have come
within the observations of Mr. Justice
Willes in Corby v. Hill. See also
Cornman v. Eastern Counties Ry. Co.,
4 Hurl. & N. 781.
In Connecticut, where there is a
statutory duty resting upon municipal
corporations to protect travellers against
the dangers of excavation along the
highway, it is held that where a city
has been compelled to pay damages by
reason of a failure to perform this duty,
the city may recover over against the
party in charge of the obstruction upon
proof of his neglect to take the precau-
tion required of the city before the city
authorities had had an opportunity to
attend to the same ; and this, too, with-
out regard to the distance of the exca-
vation from the highway, provided it
endangered travel thereon. Norwich
v. Breed, 30 Conn. 535. Although the
court in this case profess to reject the
rigid test of liability of the English
cases, supposing that test to depend
upon distance from the highway, there
is probably little or no real difference
between the two rules. It is hardly
to be supposed that the English courts
mean to prescribe for every case a
limit of distance; to wit, that the dan-
gerous place must actually adjoin the
highway. The language above quoted
from the opinion of Pollock, C. B., in
Hardcastle v. South Yorkshire Ry. Co.
(which is quoted and adopted by Keat-
ing, J., in Hounsell v. Smyth), clearly
implies the contrary. The question as
he puts it requires that the person
injured must have become " a tres-
passer upon the defendant's land before
he reached" the excavation, in order
to excuse the occupier. That is, the
former must have rendered himself
liable to an action for trespass before
he sustained the injury; provided at
the same time the excavation is a public
nuisance. (He did not mean, of course,
that if a man's horse, in running away
with him, should rush through an open
field and precipitate him into a pit far
from the highway, the land-owner would
be liable.) This being taken in connec-
tion with the established principle that
the liability of the occupier depends
upon his having constructed a public
nuisance upon his premises, — i.e.,
something preventing the public from
using the highway as freely and fully
as before, — it is evident that the mat-
ter of distance cannot as a test be
adequate for all cases.
See, further, Coupland v. Harding-
ham. 3 Campb. 398 ; Jarvis v. Dean, 3
Bing. 447 ; 8. c. 11 J. B. Moore, 354;
Jordin v. Crump, 8 Mees. & W. 782;
Gautret v. Egerton, Law R. 2 Com. P.
371; Knight v. Ebert, 6 Barr, 472;
Roulston v. Clark, 3 E. D. Smith, 366 ;
Illinois Cent. R. Co. v. Carraher, 47
111. 333.
So much for the first class of cases;
namely, bare licensees. Let us now
consider the second class ; namely,
those who are expressly invited or in-
duced by the active conduct of the
defendant to go upon his premises.
To this class of cases belongs the
principal case, Sweeny «. Old Colony
& N. R. Co. The doctrine of this
authority is that where the plaintiff has
been induced by the active conduct of
the defendant (at the time ?) to go upon
the latter's premises, he will be liable
for injury there sustained by the former,
in case of the neglect of reasonable care
to protect him from danger. See also
Elliott v. Pray, 10 Allen, 378. And if
this be true, in a case where the conduct
of the defendant has induced the plain-
tiff to go upon his premises, it must be
PERSONS INJURED WHILE ON DEFENDANT'S PREMISES. 703
true a fortiori where the defendant has
expressly, i.e., byword of mouth, in-
vited the plaintiff.
Upon the latter point we must par-
ticularly notice the well-known case of
Southcote v. Stanley, 1 Hurl. & N.
247. The declaration alleged that the
defendant was possessed of a hotel into
which he had invited the plaintiff to
come as a visitor; that in the hotel
there was a glass door, which it was
necessary for the plaintiff to open for
the purpose of leaving the house ; and
that the plaintiff, by the permission of
the defendant and with his knowledge,
and without any warning from him,
lawfully opened the same for the purpose-
aforesaid, as a door which was in a
proper condition to be opened. Never-
theless, by and through the mere care-
lessness, negligence, and default of the
defendant, the door was then in an
insecure and dangerous condition, and
unfit to be opened, by reason whereof
a large piece of glass fell from the door
and wounded the plaintiff. On demurrer,
it was held that the declaration disclosed
no cause of action. The learned Chief
Baron rested his opinion on the ground
that the plaintiff, not being a guest,
could not be in a more favorable situa-
tion than a servant, who, he affirmed,
would have no right of action against
his master in such case ; referring to
the dicta of Priestley v. Fowler, 3 Jlees.
& W. 1, a case to be noticed hereafter.
Mr. Baron Bramwell based his opinion
upon the ground that no act of com-
mission had been alleged. Mr. Baron
Alderson simply concurred in the judg-
ment, without giving his reasons.
The decision was right, and is con-
sistent with the principle above stated,
for several reasons. First, it is to be
observed that the statement that the
plaintiff was "invited" into the hotel is
made in a declaration, in which case,
on a demurrer, words of a vague sense
are to be construed against the plaintiff.
And the words "invited "and "visitor"
are consistent with the character of
(what the plaintiff probably was, else
the language would have been stronger)
a mere caller. Indeed, the plaintiff's
argument shows that the allegation was
merely intended to show that the plain-
tiff was lawfully in the hotel. " Whether
it be a private house or a shop," said
counsel for the plaintiff, " a duty is so
far imposed on the occupier to keep
it reasonably secure that if a person
lawfully enters," &c. " Here it is
alleged that the defendant invited the
plaintiff to come into the hotel as a
visitor ; that shows that he was lawfully
there." Secondly, there was no allega-
tion that the defendant knew of the
insecure condition of the door ; and it
is a well-settled principle that, in order
to make a man liable for damages sus-
tained by reason of the insecure or
ruinous condition of his premises, it
must appear that he had notice of such
condition. Welfare v. London & B.
Ry. Co., Law R. 4 Q. B. 693. Thirdly,
there was no allegation of any misfea-
sance, or " act of commission," to use
the language of Bramwell, B. It was
not alleged that the plaintiff had put
the glass of the door in insecurely. It
was consistent with the allegation that
" through the mere carelessness, negli-
gence, and default of the defendant the
door was then in an insecure and dan-
gerous condition," that the glass had
become gradually loosened by constant
use of the door, and that the defendant
had had no notice of the fact. Plad
the plaintiff been a guest, it would
have been no defence that the landlord
had not been guilty of a misfeasance in
respect of the door. So, too, if the
704
NEGLIGENCE.
injury had been committed in a public
highway, that would have been no
defence. See ante, pp. 598, 599.
The person making the invitation
roust of course have authority so to do.
Eaton v. Delaware, &c, R. Co., 57 N.
Y. 382.
The third class of cases — the entry
of customers on business — is well illus-
trated by Chapman v. Rothwell, El., B.
& E. 168. This was a demurrer to a
declaration. The allegation was that
the defendant was in occupation of a
brewery and office and a passage lead-
ing thereto from the public street, used
by the defendant for the reception of
customers in his trade as a brewer,
wh:ch passage was the usual means of
access from the office to the street. Yet
the defendant wrongfully and negli-
gently permitted a trap-door in the
floor of the passage to be and remain
open, without being properly guarded
and lighted : and the plaintiff's wife,
who had gone to the office as a cus-
tomer of the defendant and otherwise
in the defendant's business, and was
lawfully passing along the said passage
on her return from the office to the
street, fell through the opening, and
was killed. It was held that the decla-
ration disclosed a good cause of action.
On Southcote v. Stanley, supra, being
cited, Erie, J., said: "The distinction
is between the case of a visitor (as the
plaintiff was in Southcote v. Stanley),
who must take care of himself, and a
customer, who, as one of the public, is
invited for the purposes of business
carried on by the defendant."
Freer v. Cameron, 4 Rich. 228, was
a similar case. The defendants' clerk
took a customer into a dark part of
their store, and while there she fell
through a trap-door, which had been
negligently left open, and was injured ;
and it was held that the defendants
were liable. See also Ellicott u. Pray,
10 Allen, 378 ; Zoebisch v. Tarbell, ib.
385; Karl v. Maillard, 3 Bosw. 591;
Pickard v. Smith, 10 Com. B. N. 8.
470.
In Carleton b. Franconia Iron Co.,
99 Mass. 216, the plaintiff brought an
action of tort for an injury to his vessel.
The defendants were owners of a wharf,
and had procured the plaintiff to bring
his vessel to it to be there discharged
of its cargo, and suffered the vessel to
be placed there, at high water, over a
rock sunk and concealed in the adjoin-
ing dock. The defendants were aware
'of the position of this rock, and of its
danger to vessels; but no notice thereof
had been given. With the ebb of the
tide, the vessel settled down upon the
rock, and sustained the injury com-
plained of; and for this the plaintiff was
held entitled to damages. Mr. Justice
Gray, in delivering the opinion of the
court, stated the rule thus: "The
owner or occupant of land is liable in
damages to those coming to it, using
due care, at his invitation or induce-
ment, express or implied, on any busi-
ness to be transacted with or permitted
by him for an injury occasioned by the
unsafe condition of the land or of the
access to it, which is known to him and
not to them, and which he has negli-
gently suffered to exist, and has given
them no notice of." The learned judge
referred to Wendell v. Baxter, 12 Gray,
494, where the proprietors of a wharf,
established for the use of the public,
were held liable for an injury resulting
from a defect in its surface, whether oc-
casioned by the action of the sea or by
other causes, which they by the exercise
of ordinary care and diligence could
have provided against, to a person
rightfully on the wharf with his horse
PERSONS INJURED WHILE ON DEFENDANT'S PREMISES. 705
and cart for the purpose of earning
mail-bags from a steamboat to the post-
office. Parnaby v. Lancaster Canal Co. ,
U Ad. & E. 223, s. c. 3 Nev. & P.
523, 3 Per. & D. 162 ; Gibbs ». Liver-
pool Docks, 3 Hurl. & N. 164, s. c.
sub nom. Mersey Docks v. Gibbs, 11
H. L. Cas. 687, Law R. 1 H. L. 93 ;
and Thompson v. North-eastern Ry.
Co., 2 Best. &S. 106 — were also cited
as similar cases.
The opinion of the court in the above
case of Carleton v. Franconia Iron Co.
upon the point of the ownership of the
soil of the dock in which the rock lay is
important, and we reproduce it. " It
does not indeed appear," said the court,
" that the defendants owned the soil of
the dock in which the rock was im-
bedded ; but they had excavated the
dock for the purpose of accommodating
vessels bringing cargoes to their wharf,
and such vessels were accustomed to
occupy it, and could not discharge at
that point of the wharf without doing
so. It is immaterial in this case
whether the danger bad been created
or increased by the excavation made by
the defendants, or had always existed,
if they, knowing of its existence, neg-
lected to remove it or to warn those
transacting business with them against
it. Even if the wharf was not public
but private, and the defendants had no
title in the dock, and the concealed and
dangerous obstacle was not created by
them or by any human agency, they
were still responsible for an injury
occasioned by it to a vessel which they
had induced for their own benefit to
come to the wharf, and which, without
negligence on the part of its owners or
their agents or servants, was put in a
place apparently adapted to its recep-
tion, but known by the defendants to be
unsafe. This case cannot be distin-
guished in principle from that of the
owner of land adjoining a highway,
who, knowing that there was a large
rock or a deep pit between the travelled
part of the highway and his own gate,
should tell a carrier, bringing goods to
his house at night, to drive in, without
warning him of the defect, and who
would be equally liable for an injury
sustained in acting upon his invitation,
whether he did or did not own the soil
under the highway." See further, as to
wharf-owners, Pittsburgh v. Grier, 22
Penn. St. 54.
As to this third class of cases, unless
the plaintiff comes also under the
second class, by being induced by the
defendant to come upon the premises,
it must be observed that, in order to
recover for injuries sustained, he must
have gone upon the premises for busi-
ness with the occupier. This appears
from Southcote v. Stanley, and from
Collis v. Selden, supra. There was
nothing to show in either case that the
plaintiff's business was with the pro-
prietor or occupant of the premises ;
and it is doubtless part of the plaintiff's
case to allege and prove that he went
upon the premises on account of busi-
ness with the defendant. See Carleton
v. Franconia Iron Co., supra; Tebbutt
v. Bristol & E. Ry. Co., Law R. 6 Q. B.
73, 75; Axford u. Prior, 14 Week. R.
611.
But this is not enough. A man has
no right to intrude himself upon anoth-
er, even for purposes of business. The
business which will justify an entry
upon the premises, in the absence of
an express invitation, or an engage-
ment for services, must be the ordinary
business of the occupant, not that of the
plaintiff. The ground of liability in
such cases is that of an implied invita-
tion; and an invitation can only be
45
706
NEGLIGENCE.
implied when the entry is made in con-
nection with the defendant's business.
A dealer in goods impliedly invites the
public to come in and buy ; and one who
enters his store in accordance with such
invitation is entitled to the reasonable
protection spoken of in the cases ;
otherwise, not.
It may, therefore, well be doubted
whether one who is drawn into a shop,
for instance, out of mere curiosity, can
be considered a customer within the
meaning of the rule. But qucere, if
the plaintiff entered the defendant's
place of business, in the usual manner,
to present a bill due by the defendant,
whether he would not be entitled to
protection ?
It is hardly necessary to add that
this duty owing to the customer ex-
tends to all parts of the defendant's
premises and their appurtenances to
which the customer has need of access
in the prosecution of the business. See
Smith v. London Docks Co., Law R. 3
Com. P. 326, where the plaintiff was
injured while going over a gangway
which the defendants had provided for
the passage from their dock to vessels
lying adjacent. The gangway was in
an insecure position to the knowledge
of the defendants, but not to the knowl-
edge of the plaintiff; and it was held
that the defendants were liable.
So, too, the defendant may be liable
where the business was not transacted
by the plaintiff in the usual way or
place, provided he could not so do it
with convenience, and was not prohibited
from doing it as he did; the defendants,
or their servants, seeing him at the time.
The plaintiff is not a licensee in such
case. Holmes v. North-eastern Ry.
Co., Law R. 4 Ex. 254; s. c. Law R.
6 Ex. 123.
But where the accident happened
not by reason of any abnormal condi-
tion of the defendant's premises, but by
a fall down an ordinary stairway, it is
not necessary for the defendant to give
notice of the existence of the place
where danger may happen. Wilkinson
i'. Fairrie, 1 Hurl. & C. 683.
Servants injured on Masters' Prem-
ises. — We have now to consider the
subject suggested by the principal case,
Roberts v. Smith ; to wit, the nature of
the duty which a man owes in the care
of his premises, machinery, &c, to-
wards his servants. Roberts v. Smith
shows that the master does owe a duty
to refrain from negligence towards his
servants ; but it has sometimes been
supposed that this duty, whatever it is,
is of a limited nature, peculiar to this
relation, and less extensive than that
which men owe to others who come by
invitation upon their premises for pur-
poses of business.
It has sometimes been supposed that
duties towards servants, in respect of
the condition of premises and machin-
ery, exist, if at all, by contract. See
Albro v. Jaquith, 4 Gray, 99 ; Coombs
v. New Bedford Cordage Co., 102
Mass. 572; and see the declaration in
Riley v. Baxendale, 3 Hurl. & N. 445.
Indeed, the declaration in the principal
case, Roberts v. Smith, alleged, when
strictly considered, a contractual duty ;
but the duty was throughout treated
as one raised by the law, and not by the
act of the parties. But the duty to
protect the servant (within its limita-
tions) is not contractual, as was ob-
served by Martin, B., in Riley v.
Baxendale, supra. The duty to refrain
from negligence towards a servant is,
as will presently appear, the same that
arises towards third persons. Suppose
the master to have made a contract in
writing to lodge and board the servant
SERVANTS INJURED ON MASTER'S PREMISES.
707
and pay him certain wages, could it be
supposed for a moment that the only-
duty which he owed his servant was to
perforin the requirements of that con-
tract? Surely his negligence towards
the safety of his servant could not be
barred (on the doctrine which excludes
parol evidence to vary a contract) by
the existence of the contract, though
in fact and in law that expresses all the
duty which the master contracted to
undertake. And, if it should be said that
it is one of the implied terms of such a
contract that the master should take
proper precautions for the safety of his
servants, the answer is that, if new terms
are to be inserted into the agreement,
every duty which the master owes might
be treated as contractual, since it
might be equally well assumed that the
parties had them in view in entering
into the relation of master and servant.
And thus the servant might sue his
master in contract for an assault and
battery.
Returning now to the point suggested
in the preceding paragraph, it is proper
to examine the dictum of Willes, J., in
Indermaur v. Dames as to the non-lia-
bility of a master for injuries sustained
by his servant by reason of defects in
the condition of the master's premises.
The doctrine is founded upon the dicta
of Lord Abinger in the well-known case
of Priestley v. Fowler, 3 Mees. & W. 1
and it has been advanced in other cases
Potts v. Plunkett, 9 Irish C. L. 290
Mellors v. Shaw, 1 Best. & S. 437
Southcote v. Stanley, 1 Hurl. & M
247 ; Coombs v. New Bedford Cordage
Co., 102 Mass. 572.
This doctrine is opposed by Mr.
Green upon grounds which seem con-
clusive of its unsoundness. With the
permission of that gentleman we repro-
duce the substance of his views, which
may be found at length in the 8th ed.
of Story on Agency, § 453 d, note.
All that Priestley v. Fowler decides,
Mr. Green observes, is that a master is
not liable for damage suffered by a
servant in the course of his employ-
ment when there has been no fault on
the part of the master ; which is clear
enough. And all the cases which are
supposed to have adopted the broader
view of the dicta of Lord Abinger are
cases in which the servant was injured
directly or indirectly by the fault of the
master. " And the cases warrant the
conclusion that wherever negligence or
a greater fault is imputable to the mas-
ter, there he is liable to the servant.
1. But for damage caused by the ordi-
nary risks of the employment, the mas-
ter is not liable. Here there is no
principle of law applicable to the rela-
tion of master and servant. In such
case no fault is imputable to the master.
These are the risks to which every one,
master and servant alike, is at all times
exposed throughout his life ; personal
prudence is the uncertain but only
guard which any one has against them.
The reason usually given for the non-
liability of the master for these risks is
that the hazard of the employment is
compensated by the rate of wages. . . .
But, however this may be, the rule needs
no special reasons for its support, be-
cause it is but an application of the
general principle that where there is no
fault there is no liability. 2. Where
the personal negligence of the master
has directly caused the injur}', there
also the master's liability to the servant
is the same as it would be to one not a
servant. Roberts v. Smith, 2 Hurl. &
M. 213; Ashworth v. Stanwix, 3 El. &
E. 701 ; Mellors v. Shaw, 1 Best & S.
437 ; Paulmeiser v. Erie R. Co., 34 N.
J. 151 ; Adesco Oil Co. v. Gilson, 63
708
NEGLIGENCE.
Penn. St. 146. 3. It is the duty of all
who occupy real property to which
others have the right to resort upon
business with the occupier to take care
that those so resorting there are not
exposed to hidden dangers. Such per-
sons have a right to expect that the
occupier will use reasonable care to
guard them from dangers of the exist-
ence of which he is or ought to be
aware, and of the existence of which
they are ignorant, provided he has no
good reason to presume that they have
equal knowledge upon the subject with
himself. . . . The same duty which is
imposed upon an occupier of real estate
towards those resorting there upon
lawful business is also imposed upon
one who, in the way of business, in-
trusts his machinery, tools, and imple-
ments, or his personal property of any
kind, to others to be used, towards
those thus using them. Story on Bailm.
§§ 275, 390, 391 a; Blakemore ». Bris-
tol, &o. Ry. Co., 8 El. & B. 1035, 1051 ;
McCarthy v. Young, 6 Hurl. & M. 329 ;
Redfield on Carriers, § 513, note ; Saw-
yer v. Rutland & B. R. Co., 27 Vt.
377 ; Smith v. New York & H. Ry. Co.,
19 N. Y. 127 ; Caswell v. Worth, 5 El.
&B.849. Notwithstanding the dictum
of Willes, J., in Indermaur v. Dames,
concerning the 'authorities, . . . re-
specting servants and others who con-
sent to incur a risk being inapplicable'
to that case, it is submitted that such
authorities are precisely in point, and
that the decided cases fully bear out
the assertion that the position of the
master toward his servant in respect to
his real estate, his machinery, or his
tools, is precisely the same as his posi-
tion in those respects to all other per-
sons with whom he has business relations
touching their use. In other words,
upon this point also there is no peculiar
law applicable to the relation of master
and servant. Cases may be unlike in
some of their circumstances, but the
rule of law applicable to them may be
the same. A servant may be as well
acquainted as, or better acquainted
than, his master, with the danger of
premises or the defects of machinery.
If he is, he cannot recover. But the
same is true of any other person hav-
ing business with the master. The
presumption of knowledge on the part
of the servant, the presumption of igno-
rance on the part of others, are pre-
sumptions of fact, and not of law. There
is no principle of law better established
or more constantly reiterated than that
it is the master's duty to take all rea-
sonable precautions for the safety of
his servant, and that when he knows,
or should know, that his premises, his
machinery, or his implements are un-
safe, and when the servant is ignorant
of the fact, the master having no suffi-
cient cause to presume his knowledge,
if damage from such cause happen to
the servant, the master is liable. Pat-
terson v. Wallace, 1 Macq. H. L. Cas.
748 ; Williams v. Clouch, 3 Hurl. & N.
258 ; Mellors v. Shaw, 1 Best & S. 437 ;
Ashworth v. Stanwix, 30 L. J. Q. B.
183 ; Roberts v. Smith, 2 Hurl. & M.
213 ; Skipp v. Eastern Counties Ry. Co.,
9 Ex. 223; Bartonshill Coal Co. v.
Reid, 3 Macq. H. L. Cas. 266 ; Bar-
tonshill Coal Co. v. McGuire, ib. 300;
Holmes v. Clarke, 6 Hurl. & M. 369 ;
Coombs v. New Bedford Cordage Co.,
102 Mass. 572, 586 ; O'Byrne v. Barne,
16 Ct. Sess. Cas. (2d series) 1025;
Grizzle v. Frost, 3 Fost. & F. 622;
Ogden v. Rummens, ib. 751 ; Snow v.
Housatonic R. Co., 8 Allen, 441 ;
[Walsh v. Peet Valve Co., 110 Mass.
23 ; Watling v. Oastler, Law R. 6 Ex.
73.] It is submitted that no case upon
SERVANTS INJURED FROM NEGLIGENCE OP FELLOW-SERVANTS. 709
the subject can be found which, apart
from the dicta it may contain, is not an
authority for the position that the duty
which the master owes to the servant is
precisely that which he owes to every
other person with whom he has business
relations.''
In Watling v. Oastler, supra, it was
held unnecessary for the servant to
allege his ignorance of the defect in the
machinery.
Servants injured from Xegligence of
Fettow-sercants. — But while the mas-
ter is liable for his own negligence to a
servant who is injured thereby, it is
well settled, in accordance with the
doctrine of the principal case, Farwell
v. Boston & W. R. Corp., that he is
not liable to a servant for injury caused
by the negligence of a fellow-servant,
provided he is himself free from the
imputation of negligence in connec-
tion with the injury. Bartonshill Coal
Co. v. Reid, 3 Macq. 266 ; Bartonshill
Coal Co. v. McGuire, ib. 300 ; Hutchin-
son v. Newcastle, &c. Ry. Co., 5 Ex.
343 ; Morgan v. Yale of Neath Ry. Co.,
Law R. 1 Q. B. 149 ; Gilman v. Eastern
Ry. Co.,10 Allen, 233 ; Ford b. Fitchburg
R. Co., 110 Mass. 240; Beaulieu v.
Portland, 48 Maine, 291; Weger v.
Penn. R. Co., 55 Penn. St. 460; Davis
v. Detroit & M. R. Co., 20 Mich. 105 ;
Harper v. Indianapolis &c. R. Co., 47
Mo. 567 ; LeClair v. St. Paul & P. R.
Co., 20 Minn. 90. See Chicago R. Co.
v. Ward, 61 111. 130.
But the master is guilty of negligence,
and is therefore liable for the negli-
gence of the servant, if he has employed
him knowing that he is an unfit person
for the business to which he has been
assigned, or if the servant has been re-
tained after notice of his unfitness.
Davis v. Detroit & M. R. Co., 20 Mich.
105; Harper v. Indianapolis, &c. R. Co.,
47 Mo. 567 ; Chapman u. Erie R. Co.,
55 N. Y. 529 ; Lawler v. Androsc. R.
Co., 62 Maine, 463. As to what is
evidence of knowledge, see Davis u.
Detroit & M. R. Co., supra; Toledo
&c. R. Co. v. Conray, 61 111. 162. So,
too, if the employer is at fault in em-
ploying defective machinery. LeClair
v. St. Paul & P. R. Co., 20 Minn. 9.
See also Salters v. Delaware & H. Canal
Co., 5 N. Y. Supreme, 559 ; Lawler v.
Androsc. R. Co., 62 Maine, 463.
So, if the injury be caused by one
who is not a fellow-servant within the
rule, the master may be liable. Ford
v. Fitchburg R. Co., 110 Mass. 240.
And this, too, though there may be no
evidence that the master knew, or had
reason to suspect, any incompetence in
the party by whom the injury was
caused. Ib.
In the above case an engineer on a
locomotive was injured by an explosion
of the engine, which was out of repair.
It was the duty of the agents of the
corporation to provide the machinery
for running the trains; and, in reply to
the objection that these agents were
fellow-servants, the court said: "The
rule of law which exempts the master
from responsibility to the servant for
injuries received from the ordinary risks
of his employment, including the negli-
gence of his fellow-servants, does not
excuse the employer from the exercise
of ordinary care in supplying and main-
taining suitable instrumentalities for the
performance of the work required. One
who enters the employment of another
has a right to count on this duty, and
is not required to assume the risks of
the master's negligence in this respect.
The fact that it is a duty which must
always be discharged, when the em-
ployer is a corporation, by officers and
agents does not relieve the corporation
710
NEGLIGENCE.
from the obligation. The agents who
are charged with the duty of supplying
safe machinery are not, in the true
sense of the rule, relied on, to be re-
garded as fellow-servants of those who
are engaged in operating it. They are
charged with the master's duty to his ser-
vant. They are employed in distinct and
independent departments of service ;
and there is no difficulty in distinguish-
ing them, even when the same person
renders service by turns in each, as the
convenience of the employer may re-
quire. In one the master cannot escape
the consequence of the agent's negli-
gence ; if the servant is injured in the
other, he may."
So it is held in Ohio that, if a subor-
dinate servant be injured by the neg-
ligence of his superior, the master is
liable. Pittsburgh, &c, R. Co. v. De-
vinney, 17 Ohio St. 197, 210. But see
Feltham v. England, Law R. 2 Q. B.
33 ; Lawler v. And. R. Co., 62 Maine,
463, and cases cited.
" The rule," says Mr. Green, " now
apparently established in England and
generally, perhaps, in this country is,
that the term fellow-servant includes
all who serve the same master, work
under the same control, derive authority
and compensation from the same source,
and are engaged in the same general
business, though it may be in different
grades and departments of it. Wonder
v. Baltimore & O. R. Co., 32 Md. 411 ;
Wilson v. Merry, Law R. 1 H. L.
Scotch, 326 ; Columbus & I. R. Co. v.
Arnold, 31 Ind. 174 ; Warner i>. Erie
Ry. Co., 39 N. Y. 470; Hard v. Ver-
mont & C. R. Co., 32 Vt. 480; Beau-
lieu v. Portland Co., 48 Maine, 291 ;
Wiggett v. Fox, 11 Ex. 832; Searle v.
Lindsey, 11 Conn. B. N. s. 429; Mor-
gan v. Vale of Neath R. Co., Law R.
1 Q. B. 149; Weger v. Penn. R. Co.,
55 Penn. St. 460 ; Harper v. Indianap-
olis, &c. R. Co., 47 Mo. 567." Story,
Agency, § 453 e, note, 8th ed. See also
Svenson v. Atlantic Steamship Co., 57
N. Y. 108 ; Michael v. Stanton, 5 N. Y.
Sup. 634; Lawler ». Androsc. R. Co.,
62 Maine, 463 ; Gallager v. Piper, 33
Law J. C. P. 335 ; Feltham v. England,
Law R. 2 Q. B. 33 ; Howells v. Landore
Steel Co., Law R. 10 Q. B. 62 ; Smith
v. Steele, ib. 125 ; Chicago v. Dermody,
61 111. 431 ; Louisville R. Co. v. Cavens,
9 Bush, 559.
The rule which excludes the liability
of the master for an injury by a fellow-
servant's negligence does not prevent a
recovery by the injured servant for con-
sequential damages sustained by him
by reason of an injury to his wife from
such negligence. Gannon v. Housa-
tonic R. Co., 112 Mass. 234.
In Albro v. Jaquith, 4 Gray, 99, it
was held that one fellow-servant was
not liable to another for damage caused
by his negligence in the course of the
common employment. See Southcote
v. Stanley, 1 Hurl. & N. 247. But see
the criticism on this doctrine in the
above cited note from Story on Agency ;
and see Dicey, Parties, 465, note;
Shearman & Redf., Negligence, § 112.
SUTTON V . WAUWATOSA. 711
Svtton v. The Town op Wauwatosa.
(29 Wis. 21. Supreme Court, Wisconsin, June Term, 1871.)
Contributor)/ Xegliyence. Violation of Sunday Law by Plaintiff. The fact that plaintiff,
at the time he suffered injuries to his person or property from the negligence of
defendant, was doing some unlawful act, will not prevent a recovery, unless the act
was of such a character as would naturally tend to produce the injury.
Thus, the fact that plaintiff was driving his cattle to market on Sunday, in violation
of the statute, when they were injured by the breaking down of a defective bridge
which the defendant town was bound to maintain, would not prevent a recovery
upon due proof of defendant's negligence in constructing and maintaining such
bridge.
The question whether plaintiff was guilty of contributory negligence, in driving
so large » number of cattle as he did upon the bridge at one time, should be left
to the jury, unless the evidence is decisive, not only as to the number of cattle so
driven upon the bridge, but also as to the weight which bridges or highways like
the one in question should be constructed to sustain.
A plaintiff should not be nonsuited unless it appears that the evidence in his behalf,
upon the most favorable construction that the jury would be at liberty to give it,
would not warrant a verdict for him.
Appeal from County Court for Milwaukee County. Action
against a town to recover damages for injuries to plaintiff's
cattle, caused by the breaking down of a defective bridge which
they were crossing.
The plaintiff started from Columbus on a Friday morning with
a drove of about fifty cattle, intending to take them to Milwau-
kee, and sell them. Stopping at Hartland over Saturday night,
he resumed his journey on Sunday morning, and at about four
o'clock, p. M., reached a public bridge of about seventy-two feet
span, over the Menomonee River, in the town of Wauwatosa.
The cattle were driven upon the bridge ; and, when the greater
part of them were near the middle of the span, the stringers
broke, some twelve feet from the abutments at each end, and
precipitated the structure, with the cattle upon it, into the river,
causing the death of some, severely injuring others, and rendering
the remainder, for a time, unsalable.
The complaint alleges, that the injury was caused by the dan-
gerous, unsafe, and rotten condition of the bridge, and the neglect
of the defendant to keep it in proper repair.
The answer denies the negligence charged to the defendant
712 NEGLIGENCE.
and alleges that the cattle were driven upon the bridge in so
careless and negligent a manner as to cause it to break, and also
that they were so driven upon the bridge on Sunday.
After hearing the evidence on the part of the plaintiff, the
court granted a nonsuit, on the ground that the plaintiff, being
in the act of violating the statute prohibiting the doing of sec-
ular business on Sunday, when the injury occurred, could not
recover therefor. The plaintiff appealed.
Jenkins and Elliott, for appellant.. 0. K. Martin and Palmer,
Hooker and Pitkin, for respondent.
Dixon, C. J. It is very clear that the plaintiff, in driving his
cattle along the road and over the bridge, to a market, on Sunday,
was at the time of the accident in the act of violating the pro-
visions of the statute of this State, which prohibits, under a
penalty not exceeding two dollars for each offence, the doing
of any manner of labor, business, or work on that day, except
only works of necessity or charity. It. S. c. 183, § 5. It was
upon this ground the nonsuit was directed by the court below ;
and the point thus presented, that the unlawful act of the plain-
tiff was negligence, or a fault on his part contributing to the
injury, and which will preclude a recovery against the town, is
not a new one ; nor is the law, as the court below held it to be,
without some adjudications directly in its favor, and those by a
judicial tribunal as eminent and much respected for its learning
and ability as any in this country. Bosworth v. Swansey, 10 Met.
363 ; Jones v. Andover, 10 Allen, 18. A similar if not the very
same principle has been maintained in other decisions of the same
tribunal. Gregg v. Wyman, 4 Cush. 322 ; May v. Foster, 1 Allen,
408. But in others still, as we shall hereafter have occasion to
observe, the same learned court has, as it appears to us, held to
a different and contradictory rule in a class of cases which it
would seem ought obviously to be governed by the same prin-
ciple. The two first above eases were in all material respects
like the present, and it was held there could be no recovery against
the towns. In the first, the opinion, delivered by Chief Justice
Shaw, and which is very short, commences with a statement of
the propositions, repeatedly decided by that court, "that to
maintain the action it must appear that the accident was oc-
casioned exclusively by the defect of the highway ; to establish
which, it must appear that the plaintiff himself is free from all
SUTTON V. WAUWATOSA. 713
just imputation of negligence or fault." The authorities to this
proposition are cited, and the statute against the pursuit of sec-
ular business and travel on the Lord's day then referred to ; and
the opinion proceeds : " The act of the plaintiff, therefore, in
doing which the accident occurred, was plainly unlawful, unless
he could bring himself within the excepted cases ; and this would
be a species of fault on his part, which would bring him within
the principle of the cases cited. It would show that his own
unlawful act concurred in causing the damage complained of."
This is all of the opinion touching the point under considera-
tion.
In the next case there was a little, and but a little, more
effort at reasoning upon the point. The illustrations on page
20, of negligence in a railway company in omitting to ring the
bell of the engine, or to sound the whistle at the crossing of a
highway, and of the traveller on the wrong side of the road with
his_ vehicle at the time of the collision, and the language of the
court alluding to such " conduct of the party as contributing to
the accident or injury which forms the groundwork of the ac-
tion," very clearly indicates the true ground upon which the
doctrine of contributory negligence, or want of due care in the
plaintiff, rests ; but it is not shown how or why the mere violation
of a statute by the plaintiff constitutes such ground. Upon this
point the court only say : " It is true that no direct unlawful act
of omission or commission by the plaintiff, done at the moment
when the accident occurred, and tending immediately to produce
it, is offered to be shown in evidence. But it is also true that,
if the plaintiff had not been engaged in the doing of an unlawful
act, the accident would not have happened, and the negligence
of the defendants in omitting to keep the road in proper repair
would not have contributed to produce an injury to the plaintiff.
It is the disregard of the requirements of the statute by the plain-
tiff, which constitutes the fault or want of due care, which is
fatal to the action." It would seem from this language that the
violation of the statute by the plaintiff is regarded only as a
species of remote negligence, or want of proper care on his part,
contributing to the injury.
The two other cases above cited were actions of tort by the
owners, to recover damages from the bailees for injuries to
personal property loaned and used on Sunday, — horses loaned
714 NEGLIGENCE.
and immoderately driven on that day. They were decided against
the plaintiffs, and chiefly on the ground of the unlawfulness of
the act of loaning or letting on Sunday of the horses, to be driven
on that day in violation of the statute, which the plaintiffs them-
selves were obliged to show, and the doctrine of par delictum
was applied. It was in substance held in each case that the plain-
tiff, by the first wrong committed by him, had placed himself
in pari delicto with the defendant, with respect to the subsequent
and distinct wrong committed by the latter ; and the actions were
dismissed upon the principle that the law will not permit a party
to prove his own illegal acts in order to establish his case.
In direct opposition to the above decisions are the numerous
cases decided by the courts of other States, and the courts of
Great Britain, which have been so diligently collected and ably
and forcibly presented in the brief of the learned counsel for the
present plaintiff. Of the cases thus cited, with some others, we
make particular note of the following : Woodman v. Hubbard, 5
Foster, 67 ; Mohney v. Cook, 26 Penn. 342 ; Norris v. Litchfield,
35 N. H. 271 ; Corey v. Bath, ib. 530 ; Merritt v. Earle, 29 N. Y.
115 ; Bigelow v. Reed, 51 Maine, 325 ; Hamilton v. Goding, 55
ib. 428 ; Baker v. The City of Portland, 58 ib. 199 ; Kerwhacker
v. Railway Co., 3 Ohio St. 172; Phila., &c. Railway Co. v. Phila.,
&c. Tow-boat Co., 23 How. (U. S.) 209 ; Bird v. Holbrook, 4
Bing. 628 ; Barnes v. Ward, 9 M., G. & S. 420.
It seems quite unnecessary, if indeed it were possible, to add
any thing to the force or conclusiveness of the reasons assigned
in some of these cases in support of the views taken and deci-
sions made by the courts. The eases may be summed up, and the
result stated generally to be the affirmance of two very just and
plain principles of law as applicable to civil actions of this nature ;
namely, first, that one party to the action, when called upon to
answer for the consequences of his own wrongful act done to the
other, cannot allege or reply the separate or distinct wrongful act
of the other, done not to himself nor to his. injury, and not neces-
sarily connected with or leading to or causing or producing the
wrongful act complained of ; and, secondly, that the fault, want of
due care, or negligence on the part of the plaintiff, which will pre-
clude a recovery for the injury complained of, as contributing to it,
must be some act or conduct of the plaintiff having the relation to
that injury of a cause to the effect produced by it. Under the oper-
SUTTON V. WAUWATOSA. 715
ation of the first principle, the defendant cannot exonerate him-
self or claim immunity from the consequences of his own tortious
act, voluntarily or negligently done to the injury of the plaintiff,
on the ground that the plaintiff has been guilty of some other and
independent wrong or violation of law. Wrongs or offences can-
not be set off against each other in this way. " But we should
work a confusion of relations,' and lend a very doubtful assist-
ance to morality," say the court in Mohney v. Cook, "if we
should allow one offender against the law to the injury of another
to set off against the plaintiff that he too is a public offender."
Himself guilty of a wrong, not dependent on nor caused by that
charged against the plaintiff, but arising from his own voluntary
act or his neglect, the defendant cannot assume the championship
of public rights, nor to prosecute the plaintiff as an offender
against the laws of the State, and thus to impose upon him a
penalty many times greater than what those laws prescribe.
Neither justice nor sound morals require this ; and it seems con-
trarj- to the dictates of both that such a defence should be al-
lowed to prevail. It would extend the maxim, ex turpe causa
non oritur actio, bej^ond the scope of its legitimate application,
and violate the maxim equally binding and wholesome, and more
extensive in its operation, that no man shall be permitted to take
advantage of his own wrong. To take advantage of his own
wrong, and to visit unmerited and over rigorous punishment upon
the plaintiff, constitute the sole motive for such defence on the
part of the person making it. In the cases of the horses let to
be driven on Sunday, so far as the owners were obliged to resort
to an action on the contract which was executory and illegal, of
course there could be no recovery; but to an action of tort,
founded not on the contract, but on the tort or wrong subse-
quently committed by the defendant, the illegality of the contract
furnished no defence, as is clearly demonstrated in Woodman v.
Hubbard, and the cases there cited. The decisions under the
provision of the constitution of this State abolishing imprisonment
for debt arising out of or founded on a contract, express or implied,
and some others in this court, strongly illustrate the same distinc-
tion. In re Mowry, 12 Wis. 52, 56, 57 ; Cotton v. Sharpstein, 14
Wis. 229, 230; Schennert v. Koehler, 23 Wis. 523, 527.
And as to the other principle that the act or conduct of the
plaintiff, which can be imputed to him as a fault, want of due care,
716 NEGLIGENCE.
or negligence on his part contributing to the injury, must have
some connection with the injury as cause to effect, this also seems
almost too clear to require thought or elaboration. To make good
the defence on this ground, it must appear that a relation existed
between the act or violation of law on the part of the plaintiff
and the injury or accident of which he complained ; and that rela-
tion must have been such as to have caused or helped to cause the
injury or accident, not in a remote or speculative sense, but in the
natural and ordinary course of events, as one event is known to
precede or follow another. It must have been some act, omission,
or fault naturally and ordinarily calculated to produce the injury,
or from which the injury or accident might naturally and reason-
ably have been anticipated under the circumstances. It is obvious
that a violation of the Sunday law is not of itself an act, omission,
or fault of this kind, with reference to a defect in the highway or
in a bridge over which a traveller may be passing, unlawfully
though it may be. The fact that the traveller may be violating
this law of the State has no natural or necessary tendency to cause
the injury which may happen to him from the defect. All other
conditions and circumstances remaining the same, the same acci-
dent or injury would have happened on any other day as well.
The same natural causes would have produced the same result
on any other day; and the time of the accident or injury, as that
it was on Sunday, is wholly immaterial so far as the cause of it
or the question of contributory, negligence is concerned. In this
respect it would be wholly immaterial also that the traveller was
within the exceptions of the statute, and travelling on an errand
of necessity or charity, and so was lawfully upon the highway.
The mere matter of time when an injury like this takes place
is not in general an element which does or can enter at all into
the consideration of the cause of it. Time and place are circum-
stances necessary in order that any event may happen or transpire ;
but they are not ordinarily, if they ever are, circumstances of cause
in transactions of this nature. There maybe concurrence or con-
nection of time and place between two or three or more events,
and yet one event not have the remotest influence in causing or
producing either of the others. A traveller on the highway, con-
trary to the provisions of the statute, yet peaceably and quietly
pursuing his course, might be assaulted and robbed by a highway-
man. It would be difficult in such case to perceive how the high-
SUTTON V. WAUWATOSA. 717
wayman could connect the unlawful act of the traveller with his
assault and robbeiy so as to justify or excuse them, or how it could
be said that the former had any natural or legitimate tendency to
cause or produce the latter. It is true, it might be said if the
traveller had not been present at that particular time or place, he
would not have been assaulted and robbed, but that too might be
said of any other assault or robbery committed upon him ; for if
his presence at one time and place be a fault or wrong on his part,
contributing to the assault and robbery in the nature of cause to
effect, it must be equally so at every other time and place, and so
always a defence in the mouth of a highwayman. Every high-
wayman must have his opportunity by the passing of some travel-
ler ; and so some one must pass over a rotten and unsafe bridge or
defective highway before any accident or injury can happen from
that cause. Connection, therefore, merely in point of time, be-
tween the unlawful act or fault of the plaintiff and the wrong or
omission of the defendant, the same being in other respects dis-
connected, and independent acts or events, does not suffice to
establish contributory negligence or to defeat the plaintiff's action
on that ground. As observed in Mohney v. Cook, such connec-
tion, if looked upon as in any sense a cause, whether sacred and
mysterious or otherwise, clearly falls under the rule causa proximo,
non remota spectatur.
'• The cause of an event," says Appleton, C. J., in Moulton v.
Sanford, 51 Maine, 134, " is the sum total of the contingencies
of every description, which, being realized, the event invariably
follows. It is rare, if ever, that the invariable sequence of events
subsists between one antecedent and one consequent. Ordinarily
that condition is usually termed the cause, whose share in the matter
is the most conspicuous and is the most immediately preceding and
proximate to the event." In the present case the weight of the same
cattle, upon the same bridge, either the day before or the day after
the event complained of, when the plaintiff would have been guilty
of no violation of law in driving them, would most unquestionably
have produced the same injurious result. And if, on that day even,
the driving had been a work of necessity or charity, as if the city
of Milwaukee had been in great part destroyed by fire, as Chicago
recently was, and great numbers of her inhabitants in a condition
of helplessness and starvation, and the plaintiff hurrying up his
drove of beef cattle for their relief, no one doubts the same acci-
718 NEGLIGENCE.
dent would then have happened, and the same injuries have ensued.
The law of gravitation would not then have been suspended, nor
would the rotten and defective stringers have refused to give way
under the superincumbent weight, precisely as they did do on the
present occasion. There are many other violations of law which
the traveller or other person passing along the highway may, at
the time he receives an injury from a defect in it, be in the act of
committing, and which are quite as closely connected with the
injury, or the cause of it, as is the violation of which complaint
is made against the present plaintiff. He may be engaged in
cruelly beating or torturing his horse, or ox, or other animal ; he
may be in the pursuit of game, with intent to kill or destroy it, at
a season of the year when this is prohibited ; he may be exposing
game for sale, or have it in his possession, when these are unlaw-
ful ; he may be in the act of committing an assault or resisting an
officer ; he may be fraudulently passing a toll-gate, without paying
his toll ; and he may be unlawfully setting or using a net or seine,
for the purpose of catching fish, in an inland lake or stream. All
of these are acts prohibited by the same chapter or statute in
which we find the prohibition from work and labor on Sunday,
and some of them under the same, but most under a greater
penalty than is prescribed for that offence, thus showing the
character or degree of culpability which was variously attached
to them in the opinion of the legislature. And there are many
other minor offences, mala prohibita merely, created by statute,
which might be in like manner committed. There are in Massa-
chusetts, and doubtless in many of the States, statutes against
blasphemy and profane cursing and swearing, the prevention of
which seems to be equally if not more an object of solicitude and
care on the part of the legislature than the prevention of labor,
travel, or other secular pursuits on Sunday, because more severely
punished. It has not yet transpired, we believe, even in Massa-
chusetts, that the action of any person to recover damages for an
injury sustained by reason of defects in a highway has been per-
emptorily dismissed because he was engaged at the time in profane
cursing or swearing, or because he was in a state of voluntary
intoxication, likewise prohibited under penalty by statute.
It is obvious that the breaking down of a bridge from the rotten-
ness of the timbers, or their inability to sustain the weight of the
person or of his horses and carriage, could not be effected by
SUTTON V. WAUWATOSA. 719
either of these circumstances ; and yet, on the principle of the
decisions above referred to in that State, it is not easy to see why
the action must not be dismissed. On principle there could be
no discrimination between the cases, and it could make no differ-
ence in what the unlawful act of the plaintiff consisted at the
time of recei\ ing the injury. We must reject the doctrine of those
cases entirely, and adopt that of the other cases cited, and which
is well expressed by the Supreme Court of Maine, in Baker v.
Portland, 59 Maine, 199, 204, as follows: "The defendant's
counsel contends that the simple fact that the plaintiff is in
the act of violating the law at the time of the injury is a bar to the
right of recovery. Undoubtedly there are many cases where the
contemporaneous violation of the law by the plaintiff is so con-
nected with his claim for damages as to preclude his recovery ;
but to lay down such a rule as the counsel claims, and disregard
the distinction in the ruling of which he complains, would be
productive oftentimes of palpable injustice. The fact that a party
plaintiff in an action of this description was at the time of the
injury passing another wayfarer on the wrong side of the street,
or without giving him half the road, or that he was travelling on
runners without bells, in contravention of the statute, or that he
was smoking a cigar in the street, in violation of municipal ordi-
nance, while it might subject the offender to a penalty, will not
excuse the town for a neglect to make its ways safe and con-
venient for travellers, if the commission of the plaintiff 's offence
did not in any degree contribute to produce the injury of which
he complains."
Strong analogy is afforded, and much weight and force of reason
bearing upon this question are found, in some of the cases which
have arisen upon life policies, and as to the meaning and effect
to be given to the condition usually contained in them, exempting
the company from liability in case the assured " shall die in the
known violation of any law," &c, and it has been held that the
violation must be such as is calculated to endanger life, by lead-
ing to acts of violence against, or to the bodily or personal injury
or exposure of, the assured, and so to operate in producing his
death in the connection of cause to effect. See opinions in Brad-
ley v. Mutual Benefit Life Ins. Co., 41 N. Y.
In the case of Clemens v. Clemens, recently decided by this
court, it became necessary to consider the same question, though
720 NEGLIGENCE.
under different circumstances, as to what violation of law on the
part of the plaintiff would bar his action in a court of justice, and
leave him remediless in the hands of an over-reaching and dis-
honest antagonist ; and the views there expressed are not without
their relevancy and adaptation to the question as here presented.
In that case, this court adopted the rule of law as settled in Mas-
sachusetts, favoring the remedy of the plaintiff, against the opposite
rule sustained by the adjudications in some of the other States ;
and consistency of decision seems now clearly to require that our
action should be reserved with respect to the rule established by
the cases here referred to. The inconsistency upon general prin-
ciple between these decisions of the same learned court and those
there relied upon and adopted, will, we think, be readily perceived
and conceded when carefully examined and considered in connec-
tion with each other.
The other question presented on the motion for a nonsuit, and
which the court below did not decide, but which has been argued
here, is one of more doubt and difficulty to our minds. It is
whether the plaintiff was guilty of contributory negligence in per-
mitting so many cattle to go upon the bridge at one time. To
sustain the nonsuit on this ground, it is necessary for us to look
at the facts in the most favorable light possible for the plaintiff,
in which the jury would have been at liberty to find them, and
then to say that there was no evidence which would have justified
a verdict in his favor, or such a clear and decided preponderance
of evidence against him as would have required the court to set
aside a verdict finding to the contrary. This court is not suffi-
ciently familiar with the modes of constructing and using bridges
upon country highways, the degree of strength required to render
them ordinarily and reasonably safe and passable, the weight
which they are expected or required to sustain, the care neces-
sary in passing over them, and especially with herds of cattle or
other animals, to say, with confidence in the correctness of its
own judgment, upon the evidence before it, that the plaintiff was
guilty of such negligence. The evidence given throws little or
no light upon these points, necessary to the formation of a cor-
rect judgment ; and they are matters upon the evidence, when in,
more properly to be considered by the jury, unless the evidence
should be such, within the rule above stated, as to make it the
duty of the court to withdraw them from the consideration of
GROUND OF DOCTRINE OP CONTRIBUTORY NEGLIGENCE.
721
*^e Jm7' an(i itself to determine the legal rights of the parties
upon the truth of the facts thus assumed to be indisputably-
shown.
B3- the court. Judgment reversed, and a venire de novo
awarded.
Ground of Doctrine of Contributory
Negligence. — Speaking in general
terms, it is a defence to an action in
tort that the negligence of the plaintiff
contributed to produce the injury. And
the reason of this, as has already been
intimated (ante, p. 609), is to be ex-
plained upon the legal principles of
causation. There is nothing peculiar in
the doctrine of contributory negligence.
The law makes men liable in tort for
those wrongs alone which they have
caused, either personally or by another
under their power or authority. If the
defendant (or his agent or servant)
have not caused the damage, he is not
liable; and it is part of the plaintiff's
case to prove that the defendant caused
the harm of which the complaint is
made. Now, if there intervened be-
tween the wrongful act or omission of
the defendant and the injury sustained
by the plaintiff a legal fault of the latter
which contributed to produce this in-
jury, it follows that the misfortune
might not have happened but for that
fault; and hence the plaintiff cannot
prove that the defendant caused the
harm, and cannot recover.
In some cases the evidence may be
such that the plaintiff cannot recover
even when the defendant's fault was an
adequate cause to produce the injury
without the plaintiff's negligence, as in
cases of collision and the like where the
fault on each side is contemporaneous.
See Murphy v. Deane, 101 Mass. 455 ;
infra, p. 724, where the point is more
fully considered. But in no case can
the plaintiff recover where the evidence
falls short of showing that the defend-
ant's act or omission caused, or was
adequate to cause, the injury. (As to
the contributory acts of strangers, see
ante, pp. 608 et seq.)
On the other hand, conditions must
not be confounded with causes. Even
as to violations of law of which the
plaintiff may be guilty at the time of
receiving the injury, it must, according
to reason as well as authority, be con-
sidered whether the conduct of the
plaintiff had a natural tendency, such
as exists between cause and effect, to
throw him into the danger which the
defendant left exposed. If it had not,
it did not in any proper sense contribute
to the injury. It is not enough that
the plaintiff was violating the rights of
the public, as in Sabbath-breaking or
gambling ; the law has a punishment of
its own for that, which cannot be made
use of by a citizen for his own purposes.
It is only where the plaintiff's violation
of duty consists in setting in motion the
wrongful act of the defendant, or in
infringing upon the defendant's rights
in direct connection with the injury,
that the plaintiff's act can be regarded 4
as an intervening cause.
The above are the doctrines of the
principal case, Sutton v. Wauwatosa;
and that case indicates the settled cur-
rent, or at least the strong tendency,
of the late cases. Even in Massachu-
setts, where there has been a contrary
set of authorities in cases under the
Sunday laws (see supra, p. 712), the
46
722
NEGLIGENCE.
court have to some extent receded from
their former position. Thus, in Hall
v. Corcoran, 107 Mass. 251, the case
of Gregg v. Wyman, 4 Cush. 322, in
which the defendant escaped liability
for killing the plaintiff 's horse, on the
ground that it had been let to him on
Sunday, was distinctly overruled.
So, too, it has been decided that one
who is walking on the highway on Sun-
day, simply for exercise and " to take
the air," may recover against a town
for negligence whereby the plaintiff
sustains injury ; though the Sunday
law imposes a fine upon persons trav-
elling on that day, except in cases of
necessity or charity. Hamilton v. Bos-
ton, 14 Allen, 475. But the court
held, in a learned opinion, that the
plaintiff was not travelling, within the
meaning of the statute ; and Bosworth
v, Swansey, 10 Met. 363, and Jones v.
Andover, 10 Allen, 18, were cited as
law.
So, also, it has been held by the
same court that one who had been
illegally travelling on the Lord's day,
and stopped at a hotel, leaving a buf-
falo robe in charge of the landlord's
servant, could recover for its loss dur-
ing the night. Cox v. Cook, 14 Allen,
165.
However, the doctrine of Bosworth
v. Swansey was upheld and applied in
Stanton v. Middlesex R. Co., 14 Allen,
485, and during the present year in
Connolly v. Boston, 117 Mass. 64. See
also Maynard v. Boston & Maine R.
Co., 115 Mass. 458, where also the
illegal act was not, properly speaking,
contributory ; Eames v. Salem & L. R.
Co., 98 Mass. 560; McDonnell v. Pitts-
field, &c. R. Corp., 115 Mass. 564.
Since most of the above cases it has
been held that the question whether
the plaintiff, under the Sunday law,
was travelling from necessity or charity
is for the jury. And it was decided
that the fact that the exercises of a
spiritualist camp-meeting included a
show to which an admittance fee of
twenty-five cents was charged, and
that some of the speakers declared that
they would throw away the Bible in
their search for truth, were not conclu-
sive that the plaintiff, who had gone on
Sunday to attend the meeting, had done
so unlawfully. Feital v. Middlesex R.
Co., 109 Mass. 398. See, further, Gor-
man v. Lowell, 117 Mass. 65.
In Murphy v. Deane, 101 Mass.
455, it was conceded by the court that
negligence on the part of the plaintiff
would not preclude a recovery for the
defendant's negligence unless it directly
contributed to produce the injury.
Now negligence is sometimes unlawful,
equally with Sabbath-breaking, as in
the case of careless driving, contrary to
a town ordinance. If, then, the rule
in Murphy v. Deane cover this case,
and is to be adhered to, the other rule
must in consistency give way. Sup-
pose, again, the plaintiff were injured
while cudgelling his horse (on his own
premises), contrary to the statute, and
while doing so should be injured by the
defendant's negligence, when if he had
been elsewhere he would not have been
hurt; would the court hold that the
illegality of the plaintiff's conduct per
se precluded recovery ?
Upon the principle above set forth,
one who becomes paralyzed by fear
through the misconduct of the defend-
ant, and, while in such a state of mind
and owing to it, rushes into danger and
is hurt, is not guilty of. contributory
negligence. The defendant's unlawful
act caused the fear, and what happened
afterwards was but the natural sequence
of effect following cause. And so we
GROUND OF DOCTRINE OF CONTRIBUTORY NEGLIGENCE. 723
find the eases. Coulter v. American
Exp. Co., 5 Lans. 67, s. c. 56 N. Y.
585 ; Indianapolis, &c. R. Co. v. Carr,
35 Ind. 510; Illinois Central R. Co. v.
Able, 59 111. 131 ; Frink ». Potter, 17
111. 406; Greenleaf v. Illinois Cent. R.
Co., 29 Iowa, 47 ; Stokes v. Saltonstall,
13 Peters, 181; Buel v. New York
Cent. R Co., 31 N. Y. 314; South-
western R. Co. v. Paulk, 24 Ga. 356 ;
Johnson v. West Chester & P. R. Co.,
70 Penn. St. 357 ; Galena & C. R. Co.
v. Yarwood, 17 111. 509 ; Snow v. Housa-
tonic R. Co., 8 Allen, 441 ; Sears v.
Dennis, 105 Mass. 310; Babson v.
Rockport, 101 Mass. 93 ; ante, p. 609.
But whether the fright or confusion
was caused by the defendant is a ques-
tion for the jury, and perhaps, too,
whether it was reasonable in the par-
ticular person. Johnson v. West Ches-
ter & P. R. Co. ; Galena & C. R. Co.
v. Yarwood, siipra. And what would be
reasonable in a child might not be in a
man, and so of other cases. Filer v.
New York Cent. R. Co., 49 N. Y. 47.
(As to questions for the jury, see ante,
p. 589. And as to what constitutes
negligence, consult the same note,
where the rules are stated for the deter-
mination of questions of the existence
of negligence, as a matter of law. As
to the law concerning deaf and blind
persons, see Illinois Central R. Co. v.
Buckner, 28 111. 299 ; Chicago & R. R.
Co. v. McKean, 40 111. 218; Sleeper
v. Sandown, 52 N. H. 244. As to
drunken persons, Cassidys. Stockbridge,
21 Vt. 391 ; Alger v. Lowell, 3 Allen,
402 ; Chicago & A. R. Co. v. Gregory,
58 111. 226; Thorp v. Brookfield, 36
Conn. 320; Toledo, &o. R. Co. v.
Riley, 47 111. 514.)
There are some cases which appar-
ently present exceptions to the prin-
ciple of causation, even as above
explained. We refer to cases like Bird
v. Holbrook, 4 Bing. 628, elsewhere
noticed, in which it has been held that
even a trespasser whose act has truly
contributed to the injury of which he
complains may sometimes recover dam-
ages. But these cases stand upon the
ground that the defendant has been
guilty of an enormous and inhuman
act, beside which the slight trespass of
the- plaintiff is not worthy of considera-
tion. The defendant has knowingly and
intentionally caused the plaintiff to be
maimed for venturing upon his premises
on a very innocent errand. The de-
fendant would have been no more guilty
had he himself sprung the trap or engine
upon the plaintiff's entry ; and the tres-
pass would be as properly the cause of
the injury in this case as in the other.
But, if the plaintiff had fallen into a well
which had been carelessly left uncov-
ered, the occupant of the premises
would not have been liable. See ante,
p. 697.
As to the proper mode of instructing
the jury in cases of contributory negli-
gence, the case of Tuff v. Warman, 5
Com. B. n. s. 573, has of late been
generally followed. See Hoffman v.
Union Ferry Co., 47 N. Y. 176 ; New
Jersey Express Co. tl. Nichols, 33 N.
J. 435 ; Scott v. Dublin & W. Ry. Co.
11 Irish C. L. 377; London, B., &c,
Ry. Co. v. Walton, 14 Law T. N. S.
253. (As to the proper province of
the court and jury, the rules of law are
not different from those stated ante,
p. 509. Several of the cases there cited
were cases of contributory negligence.)
In the above case of Tuff v. War-
man, the court laid down the following
as the proper question for the jury:
" Whether the damage was occasioned
entirely by the negligence or improper
conduct of the defendant, or whether
724
NEGLIGENCE.
the plaintiff himself so far contributed
to the misfortune by his own negli-
gence or want of ordinary and common
care and caution that, but for such
negligence or want ot ordinary care
and caution on his part, the misfor-
tune would not have happened." " In
the first case," say the court, " the
plaintiff would be entitled to recover;
in the latter, not, as but for his own
fault the misfortune would not have
happened. Mere negligence or want
of ordinary care or caution would not,
however, disentitle him to recover, un-
less it were such that, but for that
negligence or want of ordinary care
and caution, the misfortune could not
have happened ; nor if the defendant
might, by the exercise of care on his
part, have avoided the consequences of
the neglect or carelessness of the plain-
tiff." This, it was added, appeared to
be the result deducible from the opinion
of the judges in Butterfield v. Forrester,
11 East, 60; Bridge v. Grand Junction
Ry. Co., 3 Mees. & W. 246 ; Davies v.
Mann, 10 Mees. & W. 548; Dowell v.
General Steam Nav. Co., 5 El. & B.
206.
Well-founded doubts have been ex-
pressed of the correctness of such in-
structions as a universal formula. Un-
der it a plaintiff might in some cases
recover,contrary to all principle. " If it
should appear," said Wells, J., of this
case, in Murphy v. Deane, 101 Mass.
455, 464, " that the negligence of the
defendant was an adequate cause to
produce the result, the plaintiff must
recover, even though he was himself
equally, or even to a greater degree
than the defendant, in fault. If the
case can be supposed in which both
parties were equally in fault, the fault of
each beiDg equally proximate, direct,
and adequate to produce the result, so
that it might have occurred from the
conduct of either without the fault of
the other, there would then be a case of
contributory negligence, for the conse-
quences of which neither could recover
from the other. But upon the statement
quoted [supra] from Tuff v. Warman,
neither would be ' disentitled,' and
therefore both could recover, if both
suffered injury, each from the other.
Every case in which the proof fails to
show, or leaves it in doubt, which of
two sufficient causes was the actual
proximate cause of the injury, is practi-
cally such a case. It is manifest from
this illustration that, as a definition of
the limits of the right to recover in such
cases, the proposition must be logically
incorrect. Eliminating negatives from
the first branch of the proposition, it is
that a plaintiff .may recover in such
cases unless the misfortune could not
have happened but for his own negli-
gence. This, as we have seen, being
stated aflirmatively, is too broad and
not correct, although its supplement
or negative counterpart is correct as
far as it extends ; to wit, that he cannot
recover if the misfortune could not have
happened but for his own negligence."
The learned judge thought that the
rule, as stated by Pollock, C. B., in
Greenland v. Chaplin, 5 Ex. 248, was
accurate, except that it omitted the
consideration of the burden of proof
(as to which see infra). The rule
referred to was that, when the negli-
gence of the party injured did not in
any degree contribute to the immediate
cause of the accident, such negligence
ought not to' be set up as an answer to
the action. See Dowell v. General
Steam Navigation Co., 5 El. & B. 195;
Bridge v. Grand Junction Ry. Co., 3
Mees. & W. 244 ; Johnson v. Hudson
River R. Co., 20 N. Y. 65 ; Trow v.
BURDEN OP PROOF.
725
Vermont Cent. R. Co., 24 Vt. 487;
Beers i\ Housatonic R. Co., 19 Conn.
566.
The last clause in the rule stated in
Tuffi>. Warman (that the plaintiff might
recover if the defendant could have
avoided the consequences of his negli-
gence) is evidently applicable only to
cases in which, the plaintiff's negligence
precedes the defendant's. " But
where," says Wells, J., ut supra,
" the negligent conduct of the two par-
ties is contemporaneous, and the fault
of each relates directly and proximately
to the occurrence from which the injury
arises, the rule of law is rather that the
plaintiff cannot recover, if by due care
on his part he might have avoided the
consequences of the carelessness of the
defendant. Lucas v. New Bedford &
T.R. Co., 6 Gray, 64; Waite v. North-
eastern Ry. Co., 9 El. &B. 719 ; Robin-
son v. Cone, 22 Vt. 213 ; [Daniels v.
Clegg, 28 Mich. 32 ; Walsh v. Miss. R.
Co., 52 Mo. 434; Newhouse v. Mil-
ler, 35 Ind. 463] . Suppose the case
of a collision upon a public highway ;
both parties careless and equally in
fault, but either by the exercise of
proper care on his part might have
avoided the consequences of the care-
lessness of the other. By the proposi-
tion last quoted from Tuff v. Warman,
each would be liable to the other, and
each would be entitled to recover from
the others for whatever injuries he might
have received."
The true question for the jury in the
opinion of the court (aside from the
burden of proof) was whether there
was negligence on the part of the plain-
tiff, contributing directly, or as a prox-
imate cause, to the occurrence from
which the injury arose ; if there was,
the plaintiff could not recover.
This, it will be observed, is, in effect,
only another way (and for an average
jury, perhaps, a more suitable) of
stating the rule above mentioned, to
wit, that, if the plaintiffs conduct acted
as an intervening cause between the act
or omission of the defendant and the
injury, the plaintiff cannot recover,
since he cannot prove that the defend-
ant's misconduct was the cause of the
misfortune. The object of our exami-
nation has been to ascertain the ground
of the doctrine of negligence, and to
show that there is (or need be) noth-
ing peculiar in it.
In Illinois and Georgia, however,
the courts allow juries to apportion the
negligence of the plaintiff and defend-
ant, respectively, somewhat like the
rule in cases of marine torts, and to
allow the plaintiff to recover in case the
defendant's negligence was greater
than the plaintiffs, but denying the
right of recovery where the negligence
of the plaintiff was as great as, or
greater than, that of the defendant.
Chicago, &c, R. Co. v. Van Patten,
64 111. 510 ; Chicago & North-western
R. Co. v. Sweeney, 52 111. 330 ; Illinois
Cent. R. Co. v. Baches, 59 111. 379.
See O'Keefe v. Chicago, &c, R. Co.,
32 Iowa, 467. But this doctrine (called
the doctrine of comparative negligence)
applies, probably, only in those cases
where the plaintiffs negligence directly
contributed, as an intervening cause, to
the misfortune.
Burden of Proof. — Upon the ques-
tion of the burden of proof in respect
of contributory negligence, there is a
diversity of authority. In New Eng-
land, Illinois, and elsewhere, the rule
is that the plaintiff must show, in the
first instance, that, when the injury
occurred, he was in the exercise o
proper care, and that the misfortune
was not caused by his own negligence.
726
NEGLIGENCE.
Murphy v. Deane, supra ; Trow v.
Vermont Cent. R. Co., 24 Vt. 487;
Birge v. Gardiner, 19 Conn. 507 ; Park
v. O'Brien, 23 Conn. 339 ; Dickey «.
Maine Tel. Co., 43 Maine, 492; Dyer
v. Talcott, 16 111. 300; Galena & B. R.
Co. v. Fay, ib. 558; Dressier v. Davis,
7 Wis. 527 ; Evansville & I. R. Co. v.
HiatC 17 Ind. 102. And in the first
case cited it is stated that the plaintiff
does not sustain that burden if the
proof leaves it in doubt whether or not
the injury resulted, in whole or in part,
from the fault of the plaintiff.
In the Supreme Court of the United
States, in Pennsylvania, apparently in
New York, and elsewhere, the contrary
rule prevails ; the plaintiff not being re-
quired to give evidence of his own care
and prudence at the time of the acci-
dent. Railroad Co. v. Gladmon, 15
Wall. 401 ; Pennsylvania Land Co. v.
Bentley, 66 Penn. St. 30; Cleveland
R. Co. v. Rowan, ib. 393; Oldfield v.
New York & H. R. Co., 3 E. D. Smith,
103; s. C. 14 N. Y. 310; Johnson v.
Hudson River R. Co., 5 Duer, 21; 8. c.
20 N. Y. 65 ; Button v. Hudson River
R. Co., 18 N. Y. 248 ; Wilds v. Hud-
son River R. Co., 24 N. Y. 430; Smoot
v. Wetumpka, 24 Ala. 112; Durant v.
Palmer, 5 Dutch. 544 ; St. Anthony
Falls Co. v. Eastman, 20 Minn. 277.
This seems to be the more correct
doctrine. To hold the contrary is in
effect to raise a presumption of law that
the plaintiff himself caused the accident;
and this is contrary to the analogies of
the law. The presumption as to the
defendant is that he was acting accord-
ing to law; and it is difficult to see why
(in the absence of statute) the same pre-
sumption should not be raised in favor
of the plaintiff. All men are presumed
to act lawfully until the contrary is
shown.
Identification or Imputability. (a.)
Passenger and Carrier. — We conclude
this note on contributory negligence,
and with it our chief labor on this book,
with a consideration of what is some-
times called the doctrine of imputabil-
ity. The rule prevails in England and
in several of the States of this country
that a passenger in a stage or railway
coach becomes so far identified with the
carrier, by the act of obtaining passage,
that the negligence of the carrier is im-
puted to him, in the case of an action by
the passenger against another through
whose negligence an accident has oc-
curred to the plaintiff's coach, resulting
in injury to the plaintiff. That is, if the
carrier was guilty of contributory neg-
ligence, the passenger cannot recover
against the other. Thorogood v. Bryan,
8 Com. B. 115 ; Catlin v. Hills, ib. 123;
Armstrong v. Lancashire Ry. Co., Law
R. 10 Ex. 47 ; Cleveland, &c, R. Co.
v. Terry, 8 Ohio St. 570 ; Puterbaugh
v. Reasor, 9 Ohio St. 484; Smith v.
Smith, 2 Pick. 621 ; Lockhardt v. Lich-
tenthaler, 46 Penn. St. 151.
In Thorogood v. Bryan, supra, Colt-
man, J., said that the case raised dis-
tinctly the question whether a passenger
in an omnibus was to be considered so
far identified with the owner that neg-
ligence on the part of the owner or his
servant was to be considered negligence
of the passenger himself. " As I un-
derstand the law upon this subject,"
said he, "it is this: that a party who
sustains an injury from the careless or
negligent driving of another may main-
tain an action, unless he has himself
been guilty of such negligence or want
of due care as to have contributed or
conduced to the injury. In the present
case, the negligence that is relied on
as an excuse is, not the personal negli-
gence of the party injured, but the neg-
IDENTIFICATION OE IMPUTABIUTY.
727
ligence of the driver of the omnibus in
which he was a passenger. But it ap-
pears to me that, having trusted the
party by selecting the particular con-
veyance, the plaintiff has so far iden-
tified himself with the owner and her
servants that, if any injury results from
their negligence, he must be considered
a party to it. In other words, the pas-
senger is so far identified with the car-
riage in which he is travelling that want
of care on the part of the driver will be
a defence of the driver of the carriage
which directly caused the injury." Mr.
Justice Maule said: "On the part of
the plaintiff, it is suggested that a pas-
senger in a public conveyance has no
control over the driver. But I think
that cannot with propriety be said. He
selects the conveyance. He enters into
a contract with the owner, whom, by
his servant, the driver, he employs to
drive him. If he is dissatisfied with the •
mode of conveyance, he is not obliged
to avail himself of it. . . . If there is
negligence on the part of those who
have contracted to carry the passengers,
those who are injured have a clear and
undoubted remedy against them. But
it seems strange to say that, although
the defendant would not, under the
circumstances, be liable to the owner
of the other omnibus for any damage
done to his carriage, he still would be
responsible to a passenger." The other
judges concurred.
The above, it is believed, are the
only grounds which have been taken in
any of the cases for sustaining the rule.
The doctrine has not been received
without objection, even in England.
"If," say the learned editors of Smith's
Leading Cases (vol. i. p. 220, 4th Eng.
ed.), " two drunken stage-coachmen
were to drive their respective carriages
against each other and injure the pas-
sengers, each would have to bear the
injury to his carriage, no doubt ; but it
seems highly unreasonable that each set
of passengers should, by a fiction, be
identified with the coachmen who drove
them, so as to be restricted for remedy
to actions against their own driver or
his employer. This, nevertheless, ap-
pears to be the result of the decision
in Thorogood v. Bryan ; but it may be
questioned whether the reasoning of the
court in that case is consistent with
those of Rigby v. Hewitt, 5 Ex. 240,
and Greenland v. Chaplin, ib. 243, or
with the series of decisions from Quar-
man v. Burnett, 6 Mees. & W. 499, to
Beedie v. London & North-western Ky.
Co., 4 Ex. 244. Why in this particular
case both the wrong-doers should not
be considered liable to a person free
from all blame, not answerable for the
acts of either of them, and whom they
have both injured, is a question which
seems to deserve more consideration
than it received in Thorogood v.
Bryan." And this criticism is referred
to as " damaging" by Williams, J., in
the course of the argument of Tuff v.
Warman, 2 Com. B. K. s. 740, 750.
So, too, Dr. Lushington, in the High
Court of Admiralty, has declined to fol-
low Thorogood v. Bryan. The Milan,
1 Lush. 388. This was a case of col-
lision between two vessels, in mutual
fault, in which the plaintiffs, owners of
a cargo on one of the vessels, were
held entitled to recover half the dam-
ages from the other vessel. As to
Thorogood v. Bryan the learned judge
observed: "I decline to be bound by
it, because it is a single case ; because
I know upon inquiry that it has been
doubted by high authority ; because it
appears to me not reconcilable with
other principles laid down at common
law ; and, lastly, because it is directly
728
NEGLIGENCE.
against Hay v. LeNeve, 2 Shaw's Scotch
Appeals, 395, and the ordinary practice
of the Court of Admiralty ; for if, by
the practice of the Court of Admiralty,
the owner of a delinquent ship, where
both ships are to blame, may recover
one-half of his loss, a fortiori the inno-
cent owner of the cargo cannot be de-
prived of a like remedy."
But Thorogood v. Bryan has just
been reaffirmed in England. Armstrong
v. Lancashire By. Co., Law R. 10 Ex. 47.
The law of Scotland is also opposed
to Thorogood v. Bryan. Brown v. Mc-
Gregor, Hay, 10. In this case the rep-
resentatives of one Brown, a passenger
riding upon the top of a coach, who was
killed by the overturning of the coach
in consequence of a collision with a
post-chaise while both vehicles were
driving at unusual speed, were allowed
to recover against each of the proprie-
tors of the carriages.
In this country the decisions are in
conflict. In several of the States the
doctrine of Thorogood v. Bryan pre-
vails. See stipra, p. 726. In others the
contrary is held. Chapman v. New York
& N. H. R. Co., 19 N. Y. 341 ; Cole-
grove v. New York & N. H. R. Co., 20
N. Y. 492 ; Webster v. Hudson River R.
Co., 38 N. Y. 260; Danville, &c, Turn-
pike Co. v. Stewart, 2 Met. (Ky.) 119.
If any doubt was thrown upon the
subject in New York by the dicta of
Brown v. New York Cent. R. Co., 32
N. Y. 597, the question was settled by
Webster v. Hudson River R. Co., supra.
The doctrine of the latter cases is,
we apprehend, the correct one. It is
difficult to understand how the plaintiff
can become "identified" with the driver
or carrier. He certainly does not be-
come so physically ; and the only other
way he could lose his identity in an-
other, so far as such an expression has
any intelligible meaning, is either by
becoming the agent or servant of the
other, or by making the other his agent
or servant. The former would not be
suggested ; and the latter is quite as
untenable. It needs no argument to
show that the driver or carrier is not
the passenger's servant. If he were, he
could send him to another employment
in the midst of the journey. Nor is he
the passenger's agent. The situation is
not materially different from that be-
tween a telegraph company and the
sender of a telegram ; and we have else-
where endeavored to show that there is
no agency in the legal sense in such a
case. And for this we had some sup-
port from the authorities, which hold
that the telegraph company are not
agents of the sender of a despatch in-
correctly transmitted, so as to bind him
in contract to the receiver of the mes-
. sage. Henkel v. Pape, Law R. 6 Ex. 7;
Verdin v. Robertson, 10 Ct. Sess. Cas.
(3d series) 35. See ante, p. 624.
The driver or carrier is simply the
vehicle through which the plaintiff ac-
complishes his purpose. The plaintiff
has no control over him after starting.
He cannot terminate his authority ; he
cannot compel him to stop by the way ;
he cannot instruct him what road to
take, or how to drive, or how to pass a
coach or an obstruction. But an agent
is bound to obey the reasonable instruc-
tions of his principal.
In the case of The Milan, already
cited, Dr. Lushington, speaking to the
argument that a shipper who was not
owner or part-owtoer was either princi-
pal or agent of the master of the vessel,
said: "It is argued that he shall be
so considered, and deprived of his rem-
edy, because he himself, or his agent,
selected the ship by which his goods
were carried. But there is in my judg-
IDENTIFICATION OR IMPUTABILITY.
729
ment in the mere selection of the ship 4 Daly, 552 ; Chicago v. Starr, 42 111.
for the conveyance of his cargo none
of the ingredients which constitute any
kind of responsibility for a collision ; for
I cannot conceive a responsibility for an
act done where the individual has not,
either by himself or his agent, any power
of interference or control."
Again, if the relation of principal
and agent existed between the passen-
ger and carrier, the principal should be
liable for any negligence of the agent
in the course of the agency. Suppose
I engage the owner of a carriage to con-
vey me to an adjoining place, and that
on the way he negligently runs over a
man (who was free from fault) ; am I
liable?
The only case, we submit, where the
so-called doctrine of identification or
imputation can be applied is where the
passenger actually participates in the
carrier's fault, as by urging him on, or
by plainly manifesting approval of his
course, and thus encouraging him in it.
(6.) Parent and Child. The doc-
trine of imputability has appeared in
another form also. It has been held in
many cases that the negligence of the
parent or guardian of a young child in
allowing the child to fall into danger is
imputable to the child, so as to make
out a case of contributory negligence on
the part of the child in an action by it
for personal injury sustained by reason
of the negligence of another. Waite v.
North-eastern Ry. Co., EL, B. & E.
719 ; Holly v. Boston Gas Co., 8 Gray,
123 ; Callahan v. Bean, 9 Allen, 401 ;
Wright v. Maiden & M. R. Co., 4 Al-
len, 283 ; Lynch v. Smith, 104 Mass.
52; Brown v. Eastern, &c, Ry. Co.,
58 Maine, 384 ; Hartfield v. Roper, 21
Wend. 615; Lehman v. Brooklyn, 29
Barb. 234; Mangam v. Brooklyn City
R. Co., 36 Barb. 529; Flynn v. Hatton,
174; Pittsburgh, &c, R. Co. v. Vining,
27 Ind. 513; Lafayette, &c, R. Co. v.
Huffman, 28 Ind. 287; Louisville Ca-
nal Co. v. Murphy, 9 Bush, 522. See
Wharton, Negligence, §§ 309-312.
But there are as many decisions to
the contrary. Bobinson v. Cone, 22
Vt. 213; Norwich & W. R. Co. v.
Daly, 26 Conn. 591 ; Birge v. Gardiner,
19 Conn. 507 ; Bronson v. Southbury,
37 Conn. 199 ; Smith v. O'Connor, 48
Penn. St. 218 ; Glassey v. Hestonville,
57 Penn. 172 ; North Penn. R. Co. v.
Mahoney, ib. 187; Bellefontaine, &c,
R. Co. v. Snyder, 18 Ohio St. 399.
See also Pittsburgh Ry. Co. v. Caldwell,
74 Penn. St. 421, where it was held
that the negligence of a child's com-
panion could not be imputed to the
child ; Chicago, &c, R. Co. v . Gregory,
58 111. 226 ; Karr v. Parks, 40 Cal. 188 ;
Ihl v. Forty-second St. R. Co., 47 N.
Y. 317; Boland v. Missouri R. Co., 36
Mo. 484; Whirley v. Whittemore, 1
Head, 610.
It is clear, however, that the defend-
ant cannot be liable without proof of
negligence. Singleton v. Eastern Coun-
ties R. Co., 7 Com. B. n. s. 287.
This, also, is clear, that if the child
be itself guilty of contributory negli-
gence, independently of negligence in
its parent or guardian, there can be no
recovery against the defendant. And
whether the child was guilty of personal
negligence depends upon its age and
capacity to take proper care of itself.
Lynch v. Smith, 104 Mass. 52 ; Elkins
v. Boston & A. R. Co., 115 Mass. 190;
Dowd v. Chicopee, 116 Mass. 93 ;
Mulligan v. Curtis, 100 Mass. 512;
Munn v. Reed, 4 Allen, 431 ; Lynch v.
Nurdin, 1 Q. B. 29 ; Haycroft v. Lake
Shore R. Co., 5 N. Y. Sup. 49 ; Crissey
v. Hestonville Ry. Co., 75 Penn. 83;
730
NEGLIGENCE.
Phila. City Ry. Co. v. Hassard, ib. 367;
Railroad Co. v. Gilman, 15 Wall. 401 ;
Bronson v. Southbury, 37 Conn. 199;
Schmidt v. Milwaukee, &c. R. Co., 23
Wis. 186. In some eases it has, how-
ever, been held that the same discretion
is required of a child as of a man.
Burke v. Brooklyn R. Co., 49 Barb.
529 ; Pittsburgh, &c. R. Co. v. Vining,
27 Ind. 513. See, also, Hughes v.
Maefie, 2 Hurls. & C. 744 ; Lygo v.
Newbold, 9 Ex. 302; Hoveysberger
v. Second Av. R. Co., 2 Abb. App.
Dec. 378 ; Brown v. European, &c. R.
Co., 58 Maine, 384. And possibly this
may sometimes be true provided the
child is old enough to be capable of
negligence. Whether the question of
negligence be one of law or fact seems
to depend upon the nature of the
child's act or omission, as well as upon
age and capacity. See the above cases ;
also Mulligan v. Curtis, 100 Mass. 512.
It should seem, too, upon principle,
in the case of a child too young to be
capable of negligence, that if the neg-
ligence of the parent or person in
charge of it were in the proper sense
contributory to the injury, — that is, if
the injury was the natural and usual
effect, as effect follows cause, of the
guardian's negligence, — the defendant
cannot be liable. The plaintiff cannot
prove that the defendant caused the
misfortune; he cannot show that the
defendant is, as to him, a wrong-doer.
He is the guilty person who negligently
suffered the child to get into the dan-
ger; and qucere, if such person, when not
the child's parent or guardian, might
not be liable to the child P
If, however, in such a case the pa-
rent's fault did not in the proper sense
contribute to the injury, the defendant
should be liable for his negligence. The
parent or guardian could recover for an
injury done to himself under such cir-
cumstances, by all of the authorities ;
the mere fact of the negligence of the
injured man is nothing, unless it was in
the legal sense contributory to the acci-
dent. A fortiori, then, should a child
of tender years be able to recover in
such a case.
The relation of the parent or guar-
dian to the child has in our view nothing
to do with the situation, except as afford-
ing one of the conditions under which
the injury arose ; the only question
being whether the defendant caused the
misfortune.
In the case of a young child, the fact
that it was in a dangerous place will
doubtless raise a presumption that the
guardian was guilty of negligence, since
it is hardly conceivable that the child
should have found its way there had
there not been a neglect of due care
over it. And the question then will be
whether that neglect resulted, in the
natural sequence of effect following
cause, in the injury. If it did, the
defendant's negligence did not cause
the injury, and the defendant is not
liable ; if it did not, the reverse is true,
and the child is entitled to recover.
If the parent sue for himself, upon
the relation of master and servant, for
loss of service, the same principles
must apply. If the child be too young
to be capable of negligence, the ques-
tion will be whether the parent's negli-
gence contributed, in the legal sense, to
the misfortune ; and if the child were
capable of negligence, whether his
negligence or the parent's contributed
in law to the injury.
We apprehend that, when properly
understood, this is the meaning of the
doctrine of imputability. The term is
an unfortunate one ; but no case in
which this point is considered can be
IDENTIFICATION OR IMPDTABILITY.
731
found -which is an authority for the
position that the term is to be under-
stood in the broad sense that a child
can only recover when the parent or
guardian was not guilty of negligence
towards it. In some cases the decision
was made without considering whether
the parent's negligence was in the true
sense contributory. Lafayette, &c, R.
Co., v. Huffman, "28 Ind. 287. It is
submitted that in this case the demurrer
to the complaint should have been over-
ruled. It is not the natural and usual
effect of neglecting the custody of a
child that it should stray upon the
railroad track and get killed. But this
point does not appear to have been
taken.
In Waite v. North-eastern Ry. Co.,
EL, B. & E. 719, in which a child too
young to take care of itself was injured
by the defendants through lack of
proper care on the part of the person
in charge of it ; the court, in an action
by the child, said : " The jury must be
taken to have found that Mrs. Park, the
grandmother of the infant plaintiff, in
whose care he was when the accident
happened, was guilty of negligence,
without which the accident would not
have happened ; and that, notwithstand-
ing the negligence of the defendant, if
she had acted upon this occasion with
ordinary caution and prudence, neither
she nor the infant would have suffered.
Under such circumstances, had she sur-
vived [she was killed by the same acci-
dent], she could not have maintained
any action against the company ; and we
think that the infant is so identified with
her that the action in his name cannot
be maintained." The words last itali-
cized show why the child could not
recover. The grandmother's negligence
was contributory in the proper sense, —
that is, it operated as a true cause to
the injury, — else she, had she lived,
could have maintained an action. And
the facts of the case, as stated by the re-
porter, show that such was the nature of
the grandparent's negligence. She was
carelessly crossing the railway track,
and was hit by an approaching train.
So, too, in Mangan v. Atterton, Law
R. 1 Ex. 239, another case in which the
defendant was held not liable to a child
for negligence, the child's misfortune
was the direct and inevitable conse-
quence of his own act; and he was ap-
parently capable of negligence.
The recent case of Lynch v. Smith,
104 Mass. 52, is especially in point. It
was there held that if the parents of a
child were not negligent in permitting
him to cross a street alone, and while
crossing he was injured by the negli-
gence of another traveller, it is sufficient
to entitle him to recover for the injury,
if he was using that degree of care of
which he was capable, though a less de-
gree than would be required of an adult
under like circumstances; and that, even
if his parents were negligent in permit-
ting him to cross the street alone, their
negligence was not contributory, and he
might recover if, in crossing, he did no
act which prudence would have forbid-
den, and omitted no act which prudence
would have dictated, whatever his physi-
cal or intellectual capacity. " It does
not necessarily follow,'' said the court,
" because a parent negligently suffers
a child of tender age to cross a street,
that therefore the child cannot recover.
If the child, without being able to exer-
cise any judgment in regard to the mat-
ter, yet does no act which prudence
would forbid, and omits no act that
prudence would dictate, there has been
no negligence which was directly con-
tributory to the injury. The negligence
of the parent in such a case would be
732
NEGLIGENCE.
remote. But if the cbild has not acted
as reasonable care adapted to the cir-
cumstances of the case would dictate,
and the parent has also negligently suf-
fered him to be there, both these facts
concurring constitute negligence which
directly and immediately contributes
to the injury, for which the defendant
ought not to be required to make com-
pensation.1'
It would not be the natural and usual
consequence of allowing a child nearly
five years old, as was the plaintiff, to
cross a street, that it would be run over;
and hence, though the jury found the
parents guilty of neglecting proper care
of him, their negligence was not con-
tributory. But, as to the latter part of
the above language of the court, it can
hardly be supposed that it was meant
that there should be contributory negli-
gence on the part of both parent and
child. It is certainly enough that the
negligence of either was contributory.
See Jeffersonville, &c, R. Co. v. Bowen,
40 Ind. 545. See, further, Leslie v. Lew-
iston, 62 Maine, 468.
On the other hand, it cannot be ar-
gued that the child, by being itself free
from fault while the defendant was guilty
of negligence which resulted in the in-
jury, can always maintain his action,
— unless the negligence of the parent
and that of the defendant was concur-
rent and equally the cause of the injury.
If, for example, the parent negligently
push his child into a pit which the de-
fendant was bound to keep fenced,
the latter clearly is not a wrong-doer
towards the child, and cannot be liable
to him. The child is in no better posi-
tion than a man who without fault suffers
injury from the negligence of several ;
and we have seen that such a person can-
not maintain an action against another
for negligence, if between that negli-
gence and the injury there intervened
the wrongful act of a third person.
INDEX.
A.
ABANDONMENT PAGE
of prosecution 202, 203
ABATING NUISANCE,
right of entry for 383, 464
ACQUITTAL,
proof of, in malicious prosecution 196, 197
proof of, in conspiracy 214
ACTIO FURTI,
use of term by Bracton 585
ACTIO LEGIS AQUILINE,
use of term by Bracton 585
ACTIO VI BOXORUM RAPTORUM,
use of term by Bracton 586
ACTIONABLE WORDS,
(See Slander and Libel.)
AGENT,
fraudulent representations of 23-35
principal liable for agent's misconduct, when 34, 35
whether telegraph company can be considered as agent of the
sender of a message 624-626
carrier not passenger's agent 723, 724
ANIMALS,
(See Dangerous Animals and Works.)
APPEAL OF ROBBERY,
goods recovered in 349, 420, 422, 586
AQUEDUCT,
easement of 504, 505
AQUILIAN LAW
as to killing of slaves or beasts 585
as to culpa 586
ARCHITECTS AND BUILDERS,
their relation to each other, to the owner, and to third persons . 659, 660
ARREST,
(See False Imprisonment ; Malicious Prosecution.)
734 INDEX.
ASSAULT AND BATTERY,
Stephens v. Myers, leading case. Assault 217
Cole v. Turner, leading case. Battery 218
Elliott v. Brown, leading case. Son assault demesne .... 219
historical aspects of the subject 222-230
assault 230,231
what constitutes an assault 230
intention to commit 230, 231
pointing unloaded gun 230, 231
battery 231,232
what constitutes a battery 231
test of liability 231
unintentional injury in an unlawful act 231,232
boxing and prize-fighting 231, 232
son assault demesne 232
defences of property 232
master and servant 232-234
master lias right of action in case of loss of service .... 232, 233
• evidence of slight service sufficient 233
child of tender years beaten 233
binding engagement not necessary . 233
killing servant 233
servant may justify battery in favor of his master 233, 234
whether master may justify battery in favor of his servant . . 233, 234
ASSIZE,
trial by 346
of nuisance 462-464
ASSUMPSIT,
origin of the action 586-588
ATHENIAN LAW
as to ferocious animals 487
ATTACHMENT
of goods already levied on 441
ATTORNEY,
menaces against 226
liable for false imprisonment, when 279
B.
BADGE,
fraudulent use of 59
BAILIFF,
menace against 226
BAILMENT,
sale of goods held in 428-430
unauthorized use of chattels held in 428-440
repledge or sale of pledge 434, 435
pledging goods 438,439
riding horse beyond place agreed on with bailor 439
INDEX. 735
BAILMENT, — continued.
goods bailed on Sunday, injury to 440
of dangerous goods 610 gn
giving notice ' 610
BALLADS, ' ' '
libellous 107
ballad of Richard of Almaigne . , 107
BANK DIRECTORS AND BANK OFFICERS,
when directors personally liable 618, 619, 659
their relation to each other . . . 659
BATTERY,
(See Assault and Battery.)
BOOKSELLERS,
liability of, for libellous matter in books . Ill 112
BOXING,
injury received in 231 232
BRICKS,
burning of 468
BUILDERS AND ARCHITECTS,
their relation to each other, and to the owner and third persons . 659, 660
BUILDINGS, SUPPORT OF,
(See Support of Ground and Buildings.)
BUNDLING,
to the knowledge of parent 301
BURDEN OF PROOF,
of negligence 230, 560
of contributory negligence 725, 726
c.
CARRIER,
doctrine of passenger's identification with, considered .... 726-729
CASE, ACTIONS ON THE,
originated under St. of Westm. 2, ch. 24 . 17, 99, 191, 224, 351, 422, 586
deceit used as a model for, formerly 19
CAUSATION,
doctrine of, applied to negligence 608-613
applied to contributory negligence 721-725
CHILD,
doctrine that parent's negligence imputable to, considered . . . 729-732
CLERK OF COURT,
liable for false imprisonment, when 279
COLLISION
by vehicles in mutual fault 724-728
COMPARATIVE NEGLIGENCE,
what is . 725
doctrine prevails in Illinois and Georgia 725
CONDITION,
distinguished from cause 612,721
736 INDEX.
CONDONATION,
no bar to action for seduction 338
CONSTRUCTIVE POSSESSION,
sufficient to maintain trespass 356-358
also in certain cases to maintain trover 429-432
CONSPIRACY,
Hutchins v. Hutchins, leading case. Damage 207
historical aspects of the subject 210-214
modern doctrines 214-216
acquittal of parties 214
all acquitted but one 214
damage 215
when necessary to prove combination 215, 216
husband and wife 216
CONTAGIOUS DISEASE,
imputation of 105
CONTRACT,
action can be maintained against third person for causing breach 306-328
breaches of, whether damage to third person by, is actionable, . 613-626
CONTRACTORS,
not servants 323-328, 636, 654-657
CONTRIBUTORY NEGLIGENCE,
(See Negligence.)
CONVERSION,
Armory v. Delamirie, leading case. Finder of goods .... 388
Bristol v. Burt, leading case. What constitutes conversion . . 389
Loeschman v. Machin, leading case. Sale of chattel .... 393
Donald v. Suckling, leading case. Repledge of pledge . . . 394
historical aspects of the subject 420-424
possession and property 424-428
plaintiff must have possession or right of possession . . . . - 424
right of property 425
trover against one not in possession 425
trover against the owner of the goods 425,426
jus tertii 426
goods found by servant on master's premises 426, 427
retention of goods found for reasonable time 427, 428
what constitutes conversion 428-453
assertion of title 428
sale 428,429
right of action against purchaser 429
disposal of qualified interest 429,437
acts of bailee 429, 430
whether there may be a conversion without a right to trover . . 433-436
repledge or sale of pledge 434, 435
recovery in trover not necessarily the value of the goods . . .436,437
disposal of part of chattel 437
owner allowing another to sell his goods 437, 438
surpassing authority to sell 438
pledging of goods without authority 438, 439
INDEX. 737
CONVERSION, — continued.
appropriating an article held in bailment to different use from
that agreed upon 439,441
riding horse beyond place agreed on with bailor 439
injury of chattel 439
chattel bailed on Sunday 440
attachment of goods already levied on 441
where goods not com erted to defendant's use 441-444
intention to deprive owner of use 441
when one may deprive another of his goods 443,444
demand and refusal . 444-447
when demand necessary .... 444-447
refusal only evidence of conversion 444,445
refusal on ground that defendant is not satisfied that plaintiff
owns the goods . 445,446
where demand should be made 446
of whom it should be made . 446
taking possession of goods sold without right 446,447
acts of cotenants 447-453
whether one cotenant can maintain trover against another . . 447-453
dispossession by one cotenant .... 451
distinction between trespass and trover 452, 453
changing form of goods 453
CORPORATION,
liable for authorized deceit of agents 35
misrepresentations made before incorporation 35
directors of, their relation to the other officers .... 618, 619, 659
COTENANTS,
when guilty of trespass towards each other ...... 358-360
when guilty of conversion towards each other 447-453
CUSTOMERS,
injured on defendant's premises . 704-706
D.
DAMAGE,
must be proved in deceit ... 37-39
so in slander of title 54
so in slander 90, 107
not in libel 90, 107
in conspiracy 215
in malicious prosecution; • 204-206
when special damage must be proved 181, 204, 205
mitigation of damages in seduction 294, 295
entry on land without, actionable . 371,379
measure of in trover 436, 439
use of water of stream 517, 518
DANGEROUS ANIMALS AND WORKS,
May v. Burdett, leading case. Keeping fierce animals . . . 478
injuries by animals 487-492
738 INDEX.
DANGEROUS ANIMALS AND WORKS, — continued.
foreign law 482, 487
surrender of animal in recompense 487
scienter 488
injuries committed contra or secundum naturam 488, 489
injuries by domestic animals 489, 490
by rams 489
by dogs 489, 490
by horses 490
escape of animals 490
liability not dependent on negligence 490
killing vicious animals 491
detaining strays . 491,492
bringing dangerous things on one's premises 492—504
doctrine of Fletcher v. Rylands 492-504
duty to keep reservoirs harmless 492—504
nature of the duty 494
American cases in conflict on the point 496, 499
the New York cases considered 498-504
view of the Roman law . . 501
view of the French law 501,502
making fires on one's premises 501,502
servitude of aqueduct 504, 505
DEBT
originally included detinue, and could be brought for goods . . 421
DECEIT,
Pasley v. Freeman, leading case 1
historical aspects of actions of deceit 16-20
knowledge of falsity 20-35
honesty of statement not always a defence 21
statement of one's own knowledge 21
facts peculiarly within one's own knowledge 21
warranty of authority to act for another 22
result of cases 22
indemnification for act done under defendant's authority ... 23
fraudulent representations of agents 23-35
doctrine of Hern v. Nichols 23
American rule 23-24
English rule 24-32
consideration of the subject on principle 32-35
intention to deceive 35, 36
acting upon the misrepresentation, i.e., proof of damage . . . 37-39
representations concerning solvency 39-42
slander of title 42-59
fraudulent use of badge or trade-mark 59-72
DEMAND AND REFUSAL,
when demand necessary to constitute conversion 444-447
only evidence of conversion 444, 445
where demand should be made 446
of whom demand should be made 446
INDEX. 739
DETENTION,
of prisoner ■ 276
of strays 492,496
DETINUE,
origin of the action 420-422
time and place always alleged in the old law 424
DIRECTORS OF CORPORATIONS,
when personally liable 618, 619, 659
DISCONTIX UANCE
of prosecution 209 203
DISSEIZIN,
either actual or by election 462
nuisance treated as in the old law .... 464
DISTRESS,
an archaic principle . 383
DOGS,
(See Dangerous Animals and Works.)
DUTCH LAW
as to ferocious animals 487
E.
EASEMENT
of aqueduct 504,505
of light 558
(See Support or Ground and Buildings ; Water.)
EDITORS,
liability of, for libellous matter in prints under their charge . . 109-111
ENTICING AWAY,
(See Seduction and Enticing Away.)
ENTRY,
before right of action for mesne profits 360-370
to get one's goods 379, 380
to return goods . . '. 382
to abate nuisance 383, 464
(See Trespasses upon Property.)
EVIDENCE,
declarations of wife in seduction and enticing away .... 334
loose character of wife 338-340
proof of marriage 337, 338
reputation as to marriage 339
identity of reputed wife 340
EXCAVATIONS,
under street 476
beside the street 698-702
F.
FALSE IMPRISONMENT,
Barker v. Braham, leading case. Void ca. sa. sued out by
attorney 235
West v. Smallwood, leading case. Jurisdiction. Officer's liability 237
740 INDEX.
FALSE IMPRISONMENT, — continued.
Savacool v. Boughton, leading case. Jurisdiction 241
Pox v. Gaunt, leading case. Warrant. Misdemeanor . . . 250
Hogg v. Ward, leading case. Warrant. Felony. Suspicion . 252
Timothy v. Simpson, leading case. Warrant. Felony. Arrest
by private citizen 257
Allen v. Wright, leading case. Warrant. Felony. Suspicion 265
historical aspects of the subject 268-272
the arrest 272-275
definition of false imprisonment 272
contact not necessary 272
restraint in one's own house 272, 273
submission to arrest . . 274
whether restraint must be complete 274, 275
count for malicious prosecution may be joined 275
arrest with warrant 275-281
when a justification . . 275, 276
officer must arrest the right person 276
unless the latter deceive the officer 276
detention must be reasonable 276
writ must identify the person clearly 276
oppression and cruelty .... 276
retaking escaped prisoner without new process 276, 277
detention under several writs 277
void and voidable process 277, 278
jurisdiction of court 277, 278
clerk may be liable when writ void 279
.r attorney liable when 279
client liable when 279, 280
process set aside for mere error 281
arrest without warrant 281-285
on the spot 281,282
on suspicion in case of misdemeanor 282
before end of fray 282
on suspicion in case of felony . ... 282,283
reasonable ground of suspicion . 282, 283
whether probable cause for court or jury 283, 284
arrest by private citizen without warrant 284, 285
FELONY,
arrest on suspicion of 282, 283
FICTION OF SERVICE,
(See Seduction and Enticing Away.)
FRAUD,
without damage no cause of action 7
parent divested of daughter's service by 291
enticing to break contract 306-328
enticing servant away from master . . 306-328
enticing wife away from husband 328-337
(See Seduction and Enticing Away.)
trover for goods obtained by 428 429
(See Deceit.)
INDEX. 741
G.
GERMAN LAW
as to ferocious animals 488
GRANT AND PRESCRIPTION
as to water rights, surface and underground ... . 520-522, 524
H.
HISTORICAL NOTES,
deceit 16-20
slander and libel 99-101
malicious prosecution 190-196
conspiracy . 210-214
assault and battery 222-230
false imprisonment 268-272
seduction and enticing away 290, 291
trespasses upon property 345-352
conversion 420-424
nuisance 4(12-465
negligence 584-589
HORSE,
riding beyond place agreed on with bailor 423, 439
injury by vicious 490, 597
scienter as to viciousness of 597, 598
HUSBAND AND WIFE,
action for conspiracy against 216
I.
IDENTIFICATION
of passenger with carrier . 726-729
IMPUT ABILITY
of parent's negligence to-child 729-732
K.
KIND AND DEGREE,
vagueness of distinction between 473, 474
LANDLORD AND TENANT,
menaces causing tenant to leave landlord 227
whether landlord liable for tenant's negligence .... 495, 653, 654
LATERAL SUPPORT,
(See Support of Ground and Buildings.)
LIBEL,
(See Slander and Libel.)
742 INDEX.
LICENSEES,
injured on defendant's premises 697-702
LIGHT,
easement of 558
LOCALITY,
name of, as trade-mark 70
of nuisance 465-467
LORD'S DAY,
(See Sunday.)
M.
MALFEASANCE,
ground upon which actions on the case were originally justified . 587
MALICE,
(See Malicious Prosecution; Slander and Libel; Slander of Ttt£e.)
MALICIOUS PROSECUTION,
Vanderbilt v. Mathis, leading case. Elements of action ... 178
Byne v. Moore, leading case. Damage not proved .... 179
Grainger v. Hill, leading case. Malicious abuse of process . . 184
historical aspects of the subject 190-196
termination of the prosecution 196, 197
acquittal necessary generally 196
whether conviction conclusive of probable cause 196, 197
acquittal not necessary in ex parte proceedings, when .... 197
termination of civil action 197
want of probable cause 197-203
difficulty of stating rule 197
general criterion 197
determined by circumstances at time of arrest 198
belief in charge 198
must be that of a reasonable man 198
ground for prosecution, but the fact not known 198-200
charge laid before legal counsel 200-202
abandonment of prosecution 202, 203
discontinuance of civil suit 203
discharge by committing magistrate 203
want of probable cause not implied from proof of malice . . 203
malice may be inferred from want of probable cause .... 203
but malice a question of fact 203
what constitutes malice 203
damage 204^06
when special damage must be proved 204, 205
several distinct classes under head of malicious prosecution . . 205, 206
malicious abuse of process 206
allegation of conspiracy unnecessary 206
MARRIAGE,
proof of 338-340
evidence of reputation ■ 339
INDEX. 743
MASTER AND SERVANT,
master liable for acts of his servants, when 34, 35
privilege of master giving character for servant 169, 170
voluntary communication by master . 169, 170
communication made on request 170
master has right of action for beating servant, when .... 232, 233
evidence of slight service sufficient 233
child of tender years beaten 233
binding engagement not necessary . . 233
killing servant 233
servant may justify battery in favor of master 233, 234
whether master may justify battery in favor of servant . . . 233, 234
seduction of daughter and servant 286-305
(See Seduction.)
enticing servant from master 306-328
statute of laborers 323
enticing away contractee 306-328
servant caused to depart by threats 326
action for seduction of wife does not rest on relation of mas-
ter and servant 334, 335, 337
telegraph company not servant of sender of message .... 626
contractors not servants 636, 654-657
sub-contractors not servants 657
servants employing other servants not liable for acts of latter 657, 658
servants under double masters 658
servants injured on master's premises 706-710
liability does not rest on contract 706, 707
doctrine of Priestley v. Fowler considered 707-709
servant injured by negligence of fellow-servant 709, 710
MENACES,
actionable when followed by damage 226,227
against attorneys 226
against husbandmen 226
against bailiffs 226
against collectors of rent 226
against servants 226, 326
against tenants 227
must have been of life or limb . . . . - 227
MESNE PROFITS,
in the ancient law 346-347
entry before right of action for 360-370
(See Trespasses upon Property.)
MISDEMEANOR,
charge of 103, 104
arrest on suspicion of 282
MITIGATION OF DAMAGES,
(See Damage.)
MITIORI SENSU,
doctrine of, as to slanderous words exploded 101
MONKEYS,
injuries by 478
744 INDEX.
N.
NAVIGATION,
obstructing 473,474
NEGLIGENCE,
McCully v. Clark, leading case. When for the jury, and when not 559
Dixon v. Bell, leading case. Instruments of danger .... 568
Hammack v. White, leading case. Trying horse in a thorough-
fare 570
Byrne v. Boadle, leading case. Presumption of negligence . . 578
historical aspects of the subject 584-589
negligence as a question of law or of fact 589-596
what the standard 589-591
the conduct of the prudent man 590, 591
limits of this standard 590, 591
diligence of " expert" and " non-expert" 591
three tests given 591,592
consideration of the cases 592-596
presumptions of negligence 596-601
various examples 596-599
injuries by railway, steamboat, and stage-coach companies . . 599, 600
presumption as to charge over premises 600, 601
Roman and French law 601
Thomas v. Winchester, leading case. Mistake in labelling drug 602
causation 608-613
doctrine of Scott v. Shepherd 608
intervening persons 608-613
negligence of 608, 610
in cases of contract rule different 611
intervention of vis major 613
breaches of contract between others 613-626
English rule in Winterbottom v. Wright considered 613-626
duty exists independently of contract 614, 617
the American cases considered 617-626
generally opposed to English rule 617
especially the telegraph cases '. . . . ■ 619-626
action for non-delivery of telegram 619-621
action by receiver of message for error in transmission . . . 621-626
English rule opposed to American 622
whether telegraph company can be considered as agents or ser-
vants of sender in the legal sense 624-626
Fisher v. Thirkell, leading case. Excavations under public
streets. Who liable for injury 627
Hilliard v. Richardson, leading case. Owner and contractor . 636
who liable 653-660
landlord and tenant 653, 654
contractors 654-657
sub-contractors 657
servants employing others 657/658
servants under double masters 658, 659
INDEX. -745
NEGLIGENCE, — continued.
bank directors and bank officers 659
builders and architects . 659, 660
Sweeny r. Old Colony & N. R. Co. , leading case. License to go
on one's premises 660
Indermaur v. Dames, leading case. Duty to give notice of dan-
gerous place 668
Roberts t>. Smith, leading case. Master and servant .... 684
Farwell v. Boston & YV. R. Corp., leading case. Fellow-servants 688
persons (not servants) injured while on defendant's premises . . 697-706
bare licensees or volunteers 697-702
persons expressly invited 702-704
customers 704-706
servants injured on master's premises . 706-709
doctrine of Priestley v. Fowler considered .... . 707, 708
probably no distinction between servants and others . . . 707, 708
servants injured from negligence of fellow-servants . . . 709, 710
master not generally liable 709
exceptions 709, 710
who are fellow-servants 710
Sutton v. Wauwatosa, leading case. Contributory negligence.
Violation of Sunday law by plaintiff 711
ground of doctrine of contributory negligence 721-725
causation 721
Massachusetts rule 721,722
persons paralyzed by fear through defendant's conduct . . . . 722,723
when trespasser may recover for injur}' 723
proper mode of instructing jury 723-725
comparative negligence 725
burden of proof 560, 725, 726
cases in conflict ... . . 725, <26
identification or imputability 726-732
passenger and carrier .... 726-729
doctrine of Thorogood v. Bryan considered 726-729
parent and child 729-732
when the child may and when it may not recover 729-732
the negligence must have been contributory in the legal sense, to
prevent recovery 730-732
NON-ACTIONABLE WORDS,
proof of special damage necessary . 113
NONFEASANCE,
not actionable originally • • 587, 588
NOTICE,
of dangerous goods delivered to carrier 610, 611
NOXIOUS VAPORS AND GASES,
when constitute nuisance 467-469
NUISANCE,
right of entry to abate . ' • • 383, 464
St. Helen's Smelting Co. v. Tipping, leading case. Injury to
property. Physical discomfort. Locality 454
746 INDEX.
NUISANCE, — continued.
Rose v. Miles, leading case. Public nuisance 460
historical aspects of the subject 462-464
test of public or private nuisance 465
locality of nuisance 465-467
convenience of location 465, 466
not every annoyance actionable 467
bodily discomfort 467-470
distinction between injuries to property and personal annoyances 467, 468
burning of bricks 468
noxious gases, smoky vapors, &c 467-469
mental discomfort 470, 471
disturbance of Sabbath 470, 471
public nuisances 471-475
when actionable by private suit and when by public .... 471, 472
special damage, what 472, 473
distinction between kind and degree •. . 473, 474
obstruction of navigation 473, 474
obstruction of way 474, 475
who liable 475-477
leased premises 475, 476
excavations under street 476
action against grantee of wrong-doer 476
liability of municipality 476
things authorized by statute or municipal license 477
abuse of such authority - 477
o.
OBSTRUCTING WATER,
(See Water.)
OFFICER,
menaces against 226
right of entry to execute process • . . . . 380
trespass ab initio 378, 386, 387
(See False Imprisonment.)
OUSTER,
(See Cotenants.)
PARENT AND CHILD,
doctrine of imputability of negligence of former to latter con-
sidered . . . 729-732
PARTY-WALLS,
(See Support of Ground and Buildings.)
PASSENGER AND CARRIER,
doctrine of identification of former with latter considered . . . 726-729
INDEX. 747
PLEDGE,
repledge or sale of pledge 394, 434, 435
effect of pledging goods without authority ....!. .438,439
POLLUTING WATER,
actionable when ... . . 526
POSSESSION AND PROPERTY,
(See Conversion; Trespasses upon Property.)
PRESCRIPTION,
as to water rights, surface and underground 520-522, 524
PRESUMPTIONS
of negligence 596-601
PRINCIPAL AND AGENT,
(See Agent.)
PRIZE FIGHTING,
injury received in ... 231, 232
PROBABLE CAUSE,
history of doctrine of 195
proof of want of 197-203
in malicious prosecution . 197-203
in false imprisonment 282, 283
PROSECUTION,
(See Malicious Prosecution.)
PROXIMATE AND REMOTE CAUSE,
incorrectness of these terms 610
there can be but one cause, properly speaking 610
PUBLIC NUISANCE,
(See Nuisance.)
PUBLISHERS OF BOOKS AND NEWSPAPERS,
liability for libellous matter 109-111
E.
RAMS,
injuries by 489
RECAPTION,
right of 381,382
RE GI STRUM BREVIUM,
antiquity of 16
REMOTE CAUSE,
an improper term 610
REPLEVIN,
in the old law 420
RESERVOIRS,
duty to keep harmless 492-504
REVERSION,
injuries to 354-356
ROBBERY, APPEAL OF,
goods recovered in 349, 420, 586
748 INDEX.
s.
SABBATH, '
(See Sunday.)
SALE
of chattel held in bailment 428-430
SALIC LAW,
battery a civil injury only 222
vindication of movables under 422
wergeld of the 586
SCIENTER,
in deceit 20-35
of fierce animals 488,597
of viciousness of horse 597
SEDUCTION AND ENTICING AWAY,
Martin v. Payne, leading case. Daughter in employ of another 286
historical aspects of the subject 290,291
fiction of service 291-295
English rule stricter than American 291, 292
, acts of service need not be proved 291
absence of daughter on visit 292
adult daughter 292
service after majority . 292
whether seduction must be followed by pregnancy 293
not necessary that plaintiff should be the child's parent . . . 293
rights of step-father 293, 294
damages recoverable 294
mitigation of damages 294, 295
character of child 294
promise of marriage 295
loss of service must be proximate effect of the seduction . . . 295
rights of widow 295-304
bundling 301
consent of parent implied, when 301
daughter in service of third person 295-304
return and support of child through confinement 304, 305
Lumley v. Gye, leading case. Enticing to break contract. . . 306
consideration of the doctrine of this case 325-328
doctrine not founded on statute of laborers 325,326
Winsmore v. Greenbank, leading case. Enticing wife away . . 328
ground of action for enticing wife away 333
declarations of wife 334
request for return of wife . 334
actions against wife's father 335, 336
gist of the action the loss of consortium 337
seduction of wife 337-340
ground of action 337
separation by agreement followed by seduction 337
husband living in adultery 337
loose character of wife 337, 338
INDEX. 749
SEDUCTION AND ENTICING AWAY, — continued,
husband permitting wife to live as a prostitute 338
mere negligence of husband, short of connivance 338
condonation 338
proof of marriage . 338-340
evidence of reputation 339
identitv of reputed wife . . ... 340
SERVANT, '
(See Master and Servant.)
SERVITUDE,
(See Support of Ground and Buildings ; Water.)
SHERIFF,
right of entry to execute process 380
trespass ab initio 378, 386, 387
(See False Imprisonment.)
SLANDER AND LIBEL,
Peake r. Oldham, leading case. Interpretation of words . . . 73
Brooker t\ Coffin, leading case. Lewdness. Crime. Criterion
of action . . 77
Ward r. Clark, leading case. Imputation of crime . . . 81
Carslake v. Mapledoram, leading case. Imputation of contagious
disease .... 84
Lumby r. Allday, leading case. Disqualification for office . . 87
Thorley v. Kerry, leading case. Libel 90
actionable words ... . . . . . 99-113
classes of defamation 99
historical aspects of the subject ... 99-101
doctrine of mitiori sensu exploded 101
words of doubtful import 101
understanding of bystanders ... . . . ... 101
imputation of indictable offence . 102-105
various examples of the same . . 102, 103
whether the offence must subject to infamous punishment . . . 103-105
misdemeanors 103, 104
rule in Massachusetts 104
charge of unchastity 104
New York rule 104
imputation of contagious or infectious disorder ... . . 105
imputation affecting one in his avocation .... . . 105-107
ground of action 105
office of mere honor or confidence . . ., 105
menial occupation 106
when not necessary to allege that the words were spoken of plain-
tiff in his avocation 106
words tending to one's disherison 107
libel .... 107-113
distinction between slander and libel . . . ... 107, 108
whether the words are to be interpreted by jury . . . 108, 109
no immunity to editors, writers, or publishers of prints . . 109-111
booksellers • ■ HL H2
750 INDEX.
SLANDER AND LIBEL, — continued.
truth of the charge 112,113
belief in its truth 113
non-actionable words 113
special damage necessary 113
what meant by special damage 113
Chalmers v. Payne, leading case. Malice in law 113
origin of notion of malice in law 116,117
general rule stated 117
whether malice may be denied, when words defamatory . . . 117-120
words uttered in jest ' 118-120
belief in truth of the words 120
Hastings v. Lusk, leading case. Privilege. Trials. Language
of counsel 121
Bromage v. Prosser, leading case. Privilege. Honest advice . 131
Toogood v. Spyring, leading case. Privilege. Master and ser-
vant 139
DeCrespigny v. Wellesley, leading case. Privilege. Repeating
libel 151
malice in fact. Privileged communications 158-177
absolute privilege 158-162
proceedings before church organizations 162, 163
reports of trials and other public proceedings 163-168
when privileged 163—165
ex parte proceedings 165-167
proprietors, publishers, and editors of prints 167,168
master giving character to servant 169, 170
communications made to proper public authorities 170-174
communications between persons holding confidential relations . 174
publications in vindication of character 174,175
principle of the cases stated 175
repeating defamation 175-177
SLANDER OF TITLE,
Malachy v. Soper, leading case 42
doctrine stands on footing of deceit 54
proof of damage necessary ,54
distinguished from slander 54-58
no implication of malice 54-58
originally brought only for words affecting title to realty ... 58
but now extended to cases of personalty 58
whether it extends to words not relating to title 58, 59
SOLVENCY,
representations concerning 39-42
SON ASSAULT DEMESNE,
meaning of this plea 232
STATUTE OF LABORERS,
considered 323, 325-328
STATUTE OF WESTMINSTER 2, ch. 24.
actions on the case arose under ... 17, 99, 191, 224, 351, 422, 586
STEP-FATHER,
action by, for seduction of step-daughter, when maintainable . 293, 294
INDEX. 751
STRAYS,
detaining 491,492
SUNDAY,
disturbing worship on 470, 471
injuries received on 711-725
SUPPORT OF GROUND AND BUILDINGS,
Thurston c. Hancock, leading case. Lateral support .... 527
Humphries v. Brogden, leading case. Subjacent support . . 53G
lateral support of ground and houses 548-553
the Roman herctum 548
the French law 548
not in the nature of an easement 549
doctrine of Radcliff r. Brooklyn 549, 550
right of action depends on damage 551
statute of limitations 551
no right to support of underground water 551
putting heavy weight near line 551, 552
right of support of building in nature of easement .... 552
ill-built house 552
sinking of soil independently of weight of house 552, 553
support of contiguous houses 553, 554
Roman law 553
French law 553
meagreness of English authority 553, 554
party-walls 555, 556
Roman law 555
French law . . ._ 555
walls owned in severalty 555
walls owned in common 555, 556
tearing down common wall 556
running up common wall 556
subjacent support 556-558
overlying and underlying freeholds in land 556
right to subjacent strata a qualified right 556
right of support of upper tenements of houses 557, 558
French law 557,558
easement of light 558
does not exist in this country 558
SUSPICION,
arrest on in case of misdemeanor 282
in case of felony 2827283
TELEGRAPH COMPANIES,
action for non-delivery of telegram 619-621
action by receiver of message for error in transmission . . . 621-626
English rule opposed to American 622
whether company can be considered as agent or servant of sender 624-626
752 INDEX.
TERMINATION OF PROSECUTION,
(See Malicious Prosecution.)
THREATS,
(See Menaces.)
TRADE-MARK,
Sykes v. Sykes, leading ease .... 66
doctrine belongs to deceit ... 69
founded on fraud . . . . 69
name of a locality ... 70
injunction in chancery 70, 71
allegation when mark not exactly the same as plaintiff's ... 71
proof of deception and damage 71,72
act of Congress takes away no common-law rights ... . 72
TRESPASS AB INITIO,
Maleom v. Spoor, leading case. Officer . 378
Six Carpenters1 Case 386
house entered by fraud 387
TRESPASSES UPON PROPERTY,
Cutts D. Spring, leading case. Possession under invalid title . 341
Murray v. Hall, leading case. Cotenants 343
historical aspects of the subject 345-352
possession and property 352-370
possession as to wrong-doers 352-354
rule the same whether property real or personal . ... 352
what constitutes possession 352, 353
mixed possession 353
rights and things incapable of possession 353, 354
injuries to reversion . 354-356
not necessary always that plaintiff should have possession . . 354, 355
injuries not affecting reversion 355
constructive possession 356-358
cotenants 358-360
one of several, when can maintain trespass against the others . 358
ouster of possession 358-360
destruction of common property 358, 359
chattels real, severable, and entire 359
withholding possession from cotenant 359, 360
mesne profits 360-370
entry 360-370
doctrine of Liford's case, considered 360-366
when entry unnecessary 367-370
rents and profits now recoverable in first suit 369
possession obtained without suit 369
injuries to personalty 370
distinction between cases of realty and personalty 370
Williams v. Esling, leading case. Entry without damage . . 371
Anthony v. Haney, leading case. Entry to get one's goods . . 374
Maleom v. Spoor, leading case. Trespass ab initio .... 378
what constitutes a trespass 379-387
damage not necessary in entry on land 379
INDEX. 753
TRESPASSES UPON PROPERTY, — continued.
entry to get one's goods 379, 380
cases in which right of entry is given by law 380
sale of chattels authorizes entry, when 380, 381
recaption 381,382
entry to return goods 382
abating nuisance 383
tearing down house 383, 384
taking possession of chattel sold by one having no right . . . 384, 385
distinctions between trespass and trover 385
trespass ab initio 386, 387
TROVER,
history of the action 420-424
damages in 436-439
effect of judgment for plaintiff in 439, 440
(See Conversion.)
TRUTH OF CHARGE,
a good defence in slander and libel 112, 113
belief in truth of charge 113, 120
u.
UNCHASTITY,
charge of 104
V.
VOn) AND VOIDABLE PROCESS,
distinguished 277, 278
w.
WARRANT,
arrest with 275-281
without 281-285
WARRANTY,
breach of a ground of action in deceit 22
WATER,
collecting in reservoirs 492-504
doctrine of Fletcher v. Rylands 492-504
American cases in conflict 496-498
New York cases considered 498-500
view of the Roman law 501
view of the French law 501, 502
obstructing and diverting 506-526
Springfield v. Harris, leading case. Mill privilege 506
Elliot v. Fitchburg R. Co., leading case. Damage 509
surface water 515-522
foreign law 615' 616
usufruct and reasonable use 516-520
right of action not always dependent on damage 517, 518
48
754 INDEX.
WATER, — continued.
test of liability 518, 519
rule in the Pacific States 520
stream running wholly within a man's land 520
stream running between lands of adjoining owners 520
grant and prescription 520-522
sub-surface water 522-526
cutting off sub-surface water 522-526
no easement in percolating water 522, 524
underground streams ; 525, 526
polluting underground water 526
no right of support to underground water 551
WAY,
obstructing 474, 475
WERGELD
of the Anglo-Saxons and Salian Franks 586
WIDOW,
right of action by, for seduction of daughter 295-305
whether entitled to daughter's services 297-303
(See Seduction and Enticing Away.)
WIFE,
enticing away from husband 328-337
seduction of 337-340
(See Seduction and Enticing Away.)
WOOLSEY, CARDINAL,
articles of impeachment of, as to venereal distempers .... 100
WORDS,
how understood in slander and libel 101
whether to be interpreted by court or jury 108, 109
Cambridge: Press of John Wilson & Son.
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