Skip to main content

Full text of "Cases on the law of torts"

See other formats


QlornfU ICaui i^rlyool ICtbtarg 



Cornell University Library 
KF 1249.B67 
V.2 

Cases on the law of torts, 




3 1924 019 236 136 









Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924019236136 



GASES 



ON THE 



LAW OF TORTS 



SELECTED AND ANNOTATED 



FRANCIS H. BOHLEN 

Professor of Law, University of Pennsylvania 



IN TWO VOLUMES 
VOLUME II 



INDIANAPOLIS 

THE BOBBS-MERRILL COMPANY 

PUBLISHERS 



Copyright 1915 
THE BOBBS-MERRILIi COMPANY. 



BOOK ir 

JUSTIFICATIONS, EXCUSES AMTBEF^NSES. 




Part I. 

iDsfense of Person or Property and the Assertion 
of Right in Respect Thereto. 



CHAPTER I. 

Self-Defense. 



(a) Defense of one's person from wrongful violence. 



CHAPLEYN OF GREYE'S INNE v. 

Court of Exchequer, 1400. Y. B. 2 Henry IV, 8, pi. 40. 

In an inquest by a chaplain of Greye's Inne for a battery done to 
him, etc. And the defendants had justified that the wrong which 
the plaintiff had was from his own assault. Markham. Although 
a man make an assault upon another, if he upon whom the assault 
is made can escape with his life, it is not lawful for him to beat the 
other, who made the assault, quod tota curia concessit. Cockayn, 
C. B. But I am not bound to wait till the other has given a blow, 
for perhaps it will come too late afterwards, quod conceditur.^ 

^ As late as 1319 it had been held in a plea of trespass for a battery that 
the plaintiff should recover his damages, and the defendant go to prison, 
though the beating given the plaintiff "was because of his own assault, since 
the defendant could not otherwise escape," Y. B. 12, Ed. II, 381 (Rolls Ed.). 
See also, accord Y. B. 21 & 22, Ed. I, 586 (1294). 

In Anon., Y. B. Z3 Henry VI, 18, pi. 10 (14SS), it is held that son assault 
demesne is no plea to threats, unless the defendant has no other means of 
escape. 

So late as 1532, a statute, 24 Hen. 8, c. 5, providing that "a man killing 
a thief in self-defense shall not forfeit his goods" contains words indicating 
that many killings in self-defense did even then involve forfeiture of goods. 
It is probable that at a very early period one killing another in self-defense 
might purchase his pardon from the king and it is highly doubtful whether 
this pardon was ever refused, none the less it was required, nor probably 
did it, when obtained, protect the slayer from suit by the dead man's kin. It 
is certain that a pardon for killing by misadventure did not, and the two are 
treated throughout as governed by the same principles, as in the Statute of 
Gloucester (1278), in which it was provided that one killing another "must 
put himself upon the country" and if the jurors find the killing to be by 
misadventure or in self-defense, "there on the report of the justices the king 

891 



892 IOWA V. EVENSON. 



STATE OF IOWA v. EVENSON. 
Supreme Court of Iowa, 1904. 122 Iowa Reports, 88. 

Bishop, J. On the evening of December 15, 1902, the defend- 
ant, his brother, and two other young men were together on a side 
street of the town of Joice, in -Worth county. They had been drink- 
ing intoxicating Hquor, had indulged in much profane and obscene 
language, and there had been some fighting between them. After 
the fight was over, they moved to the main street of the town, where 
they stopped in front of a store. Here they continued their loud 
and boisterous talk, the same beingr more or less interspersed with 
profanity. In this situation a crowd of about a dozen citizens ap- 
peared on the scene, armed with horsewhips, and some of them an- 
nounced to defendant and his companions that they would give 
them five minutes to get Out of town. The defendant responded 
that "if they did not leave him alone he would lay some one cold." 
The citizens at once began using their whips on defendant and his 
companions, and when the whips were used up they resorted to their 
fists, one of the number also making use of a piece of board. De- 
fendant and his companions were forced back up the street by the 
onslaught made upon them, defending themselves meanwhile by 
the use of their fists. As they passed a platform scale standing on 
the sidewalk, defendant took therefrom the weight hanger, and, 
swinging it around his head, told the crowd to keep back. At this 
juncture one of the citizens, named Bilstead, seized the brother of 
the defendant about the body, and the two began to struggle, when 
defendant stepped up and struck Bilstead with the hanger, the blow 
being sufficient to fell Bilstead to the walk. 

The court, on its own motion, gave an instruction to the jury 
as follows : "The inhabitants of Joice had no right to drive the de- 
fendant and his party out of town by the use of force merely be- 
cause they were fighting or using bad language in the strfeets. If 
the defendant and his party had committed or were committing any 
public offense, the remedy which the law gave the inhabitants of 
Joice was to arrest them, and take them before a magistrate or peace 
officer. On the other hand, if the defendant and his party had rea- 

shall pardon if he will," see as to this subject Pollock and Maitland, History 
of the English Law, Vol. II, 476-481 ; Stephen, History of the Criminal Law, 
Vol. Ill, pp. 36-40, and Robert's Case, Seldon Soc, Vol. I, Pleas of the 
Crown 70 (1203), Y. B. 21 Ed. Ill, 17 pi. 22 (1348) and Fitz-Herbert Abr. 
Corone, 284 (1330). It is curious that though Blackstone recognizes that 
homicide in self-defense was excusable rather than justifiable and cites the 
act of 24 Hen. VIII, supra. Vol. IV, p. 184, he none the less speaks of self- 
defense as being "the primary law of nature" which "is not, neither can be, 
in fact taken away by the law of society," Vol. Ill, 4. His influence is shown 
in many statements of the earlier American judges such as the following 
extract from the opinion of Wheeler, J. in Lander v. State. 12 Tex. 462 
(1854), "It (self-defense) does not depend on any law of society. It is de- 
rived from a higher source, is coeval with man's natural being, and hence it 
is with truth and reason said that self-preservation is the first law of nature" ; 
compare Grotius "De Jure Belli et Pads", Lib. Ill, Cap. I. 



IOWA V. EVENSON. 893 

sonable opportunity to leave the scene in safety and avoid a con- 
flict with the town people when they approached with whips and 
threatened the use of force, then the defendant and his party should 
have taken that course, and avoided a conflict. But if the town 
people assailed the defendant and his party, so that they had no 
reasonable opportunity, after their intentions were known, to retire 
or retreat in safety, then they had the right to meet force with force, 
and defend themselves as in the case of any other assault." This 
instruction is complained of as error, the contention of counsel for 
appellant being that under the law the defendant, when threatened 
with an assault and battery, was not bound to retreat, but might 
stand his ground, and repel force with force, so long as he used only 
such force as was necessary. We think the doctrine thus contended 
for is sound. As applied to circumstances such as this record dis- 
closes, we do not understand it to be the law that one thus made the 
subject of attack is bound to retreat if there be time and opportunity 
to do so. In effect, the language of the instruction condemned was 
equivalent to saying to the jury that when one is assaulted, and the 
character thereof does not involve life or great bodily injury, the 
person assaulted, if he does not choose to stand and submit to a 
battery, must retreat if any way is open to him. Such is not the law. 
See, also, Gallagher v. State, 3 Minn. 270; Com. v. Drum, 58 Pa. 
21 ; State v. Bartlett, 170 Mo. Sup. 658 (71 S. W. Rep. 148, 59 L. R. 
A. 756) ; State v. King, 104 Iowa, 724 ; McClain's Criminal Law. 
We do not overlook the many cases wherein it is held that one may 
not, under the plea of self-defense, justify the taking of human life, 
if it reasonably appears that the same could have been avoided by 
making use of an avenue of escape open to him.^ But the prin- 
ciple thus declared upon has no application to a case where, as in 
the case at bar, one is wrongfully assaulted, and repels force by the 

'■See Dupree C. J. in State v. Sherman, 16, R. I. 631 (1889), generally 
a person wrongfully assailed cannot justify killing his assailant in mere self- 
defense, if he can safely avoid it by retreating. Retreat is not always obli- 
gatory even to avoid killing; for if attack be made with deadly weapons or 
murderous or felonious intent, the assailed may stand his ground and if need 
be kill his assailant, Commonwealth v. Drum, 58 Pa. St. 1 (1868) ; Page v. 
State, 141 Ind. 236 (1894), and see Professor J. H. Beale, Homicide in Self- 
Defense, 3 Col. L. R. 526, pp. 537-545, and 16 Harv. L. R. 567, and the valu- 
able note to the case State v. Gardner, 2 L. R. A. (N. S.) 51 et seq. 

In Moran v. Vicroy, 24 Ky. L. 2415 (1903), where the defendant shot 
the plaintiff, who had stepped towards him and raised and cocked his gun, 
it was held that the instruction asked, "that the defendant could only shoot if 
he had no apparently safe means of escape from the impending danger," had 
been frequently condemned by the Supreme Court of Kentucky. The right 
to kill without retreating if attacked in one's own house is clear. People v. 
Lewis, 117 Cal. 186 (1897). and see note to State v. Gardner, 2 L. R. A. 
(N.S.) 51. "If a man is in his house, and hears that such a one is coming 
to his house to beat him, he may well collect his friends and neighbors to 
help him in the defense of his person. But if one threatens to beat him if 
he goes to such a market or such other place, he may not lawfully collect 
his friends to protect him while going tliither, because it is not necessary 
for him to go, and he may have his remedy by a bond to keep the peace. 
But one's house is his castle and defense where he may properly abide." — 
Note by Fineux C. J., Anon., Y. B. 21, Henry VII, 39, pi. 50 (1505). 



894 GERMOLUS V. SAUSSER. 

use of like force. In the one case the law regards the liberty of the 
citizen to come and go as he pleases without molestation, save at the 
hands of the law, as the thing paramount. In the other case the 
law regards the temporary deprivation of the exercise of personal 
liberty on the part of one citizen as of less importance than is the 
life of another citizen, and this even though the latter is for the 
moment engaged in making an unlawful assault upon the former. 
Hence the injunction that a person assaulted must retreat, if he can 
do so in reasonable safety, before resorting to the extreme measure 
of taking the life of his assailant. 

Conceding, therefore, that the provocation for the assault upon 
defendant was great, still, being wrongful, and the defendant having 
the right to resist in defense of himself and of his brother, it fol- 
lows that the instruction given cannot be upheld. 

The judgment is reversed, and the cause remanded for a new 
trial. 

Reversed.^ 



GERMOLUS V. SAUSSER. 
Supreme Court of Minnesota, 1901. 83 Minn. Rep. 141. 

Start, C. J. Action to recover damages for personal injuries 
sustained by the plaintiff by reason of an assault and battery perpe- 
trated upon him November 21, 1899, by the defendant. The de- 
fense was that the act was done in self-defense. Verdict for the 
plaintiff for $1,100, and the defendant appealed from an order de- 
nying his motion for a new trial. 

All of the assignments of error, which are well assigned, re- 
late to exceptions to the charge of the trial court to the jury. The 
evidence on the part of the plaintiff tended to show that the defend- 
ant made an unprovoked assault upon him, and struck him over 
the head with the heavy end of a whip stock, whereby the plaintiff 
was knocked senseless, and sustained serious injuries. The evi- 
dence also tends to show that there had been some words between 
the parties growing out of the fact that the plaintiff, who had been 
ploughing a field lying along the highway, had ploughed within the 
limits of the highway. The plaintiff had stopped his team, and was 
standing by the side of his plough, some ten rods from the highway, 
when the defendant struck him. The defendant's own testimony 
was to this effect: 



^ See accord: State v. Sherman, 16 R. I. 631 (1889) ; Commonwealth v. 
Drum, 58 Pa. St. 1 (1868) ; Page v. State. 141 Ind. 236 (1894) ; Runyan v. 
Slnte, 57 Ind. 80 (1877); Moran v. Vicroy, 24 Ky. L. 2415 (1903). These 
are all criminal cases, but the principles governing the right of self-defense 
are the same in both criminal and civil actions, Thom,ason v. Gray, 82 Ala. 
291 (1886). 

Contra: Rowland v. Day, 56 Vt. 318 (1883) ; Armstrong v. Little, 4 Pen- 
new. 255 (Del. 1903) ; Woodruff J. in Keyes v. Devlin, 3 E. D, Smith 518 
(N. Y. 1854), p. 524, and see Morton J. in Monize v. Begaso, 190 Mass S7 
(1906), pp. 88-89. 



GERMOLUS V. SAUSSER. 895 

He (plaintiff) was ploughing and when he saw me driving 
on the highway he stopped his team, and called to me to come over, 
and repeated the call seven or eight times. I stopped my team, and 
asked him what he wanted. He said, "Come over this way." I got 
off the wagon, took my coat off, as it was too heavy (this was 
November 21st), and went over to the plaintiff, and asked him what 
he was calling to me for; and he swung his whip around hitting 
me on the arm, and I jerked it out of his hand, and hit him with it, 
and then he let himself drop. I had to hit him to protect myself. 
I had the whip near the stock, and I swung it over and gave it to 
him. 

The trial court gave to the jury, with others, the instructions 
following : 

"Now, in this case, you are to consider, in the first place, wheth- 
er any element of self-defense enters into it. According to the 
testimony of the defendant himself, even if that were true, that 
the plaintiff struck at him with a whip stock, was it then necessary 
for him, to defend himself, to jerk it out of the plaintiff's hands, 
and then strike the plaintiff with it? He was only justified in doing 
that if it was necessary for his own protection, in his own self- 
defense." 

"There is no full defense made out in this case, unless the de-. 
fendant has established by a preponderance of the evidence that 
the battery committed upon the plaintiff, as admitted, was necessary 
for his own self -protection, and to prevent the plaintiff from further 
battering him." 

It is the contention of the defendant that the first two instruc- 
tions given were erroneous, in that they, in effect, made his right 
of self-defense depend upon an actual necessity for the use of force 
in order to protect himself, instead of upon the then apparent ne- 
cessity of the situation, and withdrew from the jury the considera- 
tion of the question whether at the time the defendant entertained 
an honest and reasonable belief that it was necessary to use the 
force which he did use in order to protect himself. The rule as to 
self-defense is the same in civil and criminal actions. The rule is 
this : An act, otherwise criminal, is justifiable when it is done to 
protect the person committing it, or another whom he is bound to 
protect, from imminent personal injury, the act appearing reason- 
ably necessary to prevent the injury, nothing more being done than 
is reasonably necessary. G. S. 1894, § 6308. This does not require 
that the necessity for doing the act must be actual ; for it is sufficient , 
if there is either a real or apparent necessity for so doing.^ But 
the mere belief of a person that it is necessary to use force to pre- 
vent an injury to himself is not alone sufficient to make out a case 
of self-defense, for the facts as they appear to him at the time must 
be such as reasonably to justify such belief.^ 

^Shorter v. People, 2 N. Y. 193 (1849); Goodall v. State, 1 Ore. 353 
(1861) ; Murray v. Commonwealth, 79 Pa. St. 311 (187S) ; Enright v. People, 
155 111. 32 (1895). 

^Accord: Beck v. Minn. Union R. Co., 95 Minn. 73 (1905) ; New Orleans 



896 MORRIS V. PLATT. 

It follows that the instructions in this case were not strictly 
accurate, but the error was without prejudice; for, upon the de- 
fendant's own testimony, we hold as a matter of law that he was not 
justified in beating the plaintiff. To hold otherwise would be a re- 
proach to the administration of justice; for, accepting the defend- 
ant's own statement of what occurred, there was neither a real nor 
an apparent necessity for knocking the plaintiff down after he had 
been disarmed. Nor were the facts, viewed from any standpoint, 
such as reasonably to justify the defendant in believing that there 
was any such necessity. 

Order affirmed. 



MORRIS V. PLATT. 
Supreme Court of Errors, Connecticut, 1864. 32 Conn. Rep., 75. 

Butler, J. It appears from the evidence offered on the trial 
that the defendant wounded the plaintiff in two places by two shots 
fired from a pistol; and from the nature of the weapon, and the 
other conceded circumstances, the jury were authorized to find, and 
doubtless did find, that the wounds were inflicted with a design to 
take the life of the plaintiff. It was incumbent on' the defendant 

& N. E. R. Co. v. J opes, 142 U. S. 18 (1891) ; Higgins v. Minaghan, 78 Wis. 
602 (1891), p. 610; Baker v. Gausin, 76 Ind. 317. 

In State v. Bryson, 2 Winston 86 (X. Car. 1864), Manly J. says, "A right 
to act in self-defense does not depend upon the special state of mind of the 
subject of inquiry. He is judged by the rules which are applicable to men 
whose ner\-es are in an ordinarily sound and healthy state; and whatever 
may be his personal apprehension, if he has not reasonable ground to support 
them, he will not be protected by the principle of self-defense. The normal 
condition of the human passions and faculties must be regarded in establish- 
ing rules for the government of human conduct. The question, then, in such 
cases as the present, is not what were the apprehensions of the defendant, 
but what these ought to have been, when measured by a standard derived 
from observation of men of ordinary firmness and reflection." But see Pat- 
terson V. Standling, 91 111. App. 671 (1900), where it was held that it was 
error to instruct the jury that the circumstances must be such as to induce 
the mind of a courageous man to believe that he must strike to defend him- 
self, it being only required that they are sufficient to induce such a belief in 
the mind of a reasonably prudent man. 

The fear which will justify the use of force in self-defense must be the 
fear of imminent danger unless the blow be struck. One is not justified in 
shooting on sight a person who has threatened to kill him even though he 
has good reason to believe that an effort will be made to carry the threat 
into execution at some future time. Rippy v. State, 2 Head 217 (Tenn. 1858) ; 
Lander v. State, 12 Tex. 462 (1854) ; but see Bohannon v. Commonwealth, 
8 Bush 481 (Ky. 1871) ; and this is so though the person assaulted is at the 
time of the assault armed, Hulse v. Tollman, 49 111. App. 490 (1853). There 
must be something done by the person assaulted apparently indicating an 
attempt to attack the defendant, or, where there are threats, demonstrations 
appropriate to carry such threats into execution, Stoneman v. Commonwealth, 
25 Gratt. 837 (Va. 1874). Threats known to the defendant, however, are im- 
portant, as determining whether he is justified in believing; the conduct of 
the person assailed was an attempt or demonstration, State v. Evans, 65 Mo. 
574 (1877). Where there are antecedent threats or where the circumstances 
are such as to indicate an apparent intent on the part of the person assailed 



MORRIS V. PLATT. 897 

to justify or excuse their infliction. He in the first place attempted 
to justify them, and the obvious attempt to take life which aggra- 
vated them, by offering evidence to prove that he was assailed by 
the plaintiff and others in a manner which indicated a design to take 
his life, and "that he was in great bodily peril and in danger of losing 
his life by means of the attack," and that he fired the pistol "to pro- 
tect his life and his body from extreme bodily injury." If these 
facts were proved and found true, they fully justified the attempt 
of the defendant to take the life of the plaintiff as matter of law, 
and entitled the defendant to a verdict in his favor. And so the 
court were bound to tell the jury, if properly requested to do so by 
the defendant. 

The plaintiff, in answer to the defense made, denied that he was 
an assailant, and claimed that he was a bystander merely, and re- 
quested the court to charge the jury, in substance, that if they so 
found, he was entitled to recover, although they should also find 
the defendant to have been lawfully defending himself against his 
assailants, and the injury to the plaintiff accidental. That request 
of the plaintiff embodies the unqualified proposition that a man 
lawfully exercising the right of self-defense, is liable to third persons 
for any and all unintentional, accidental injurious consequences 
which may happen to them, and the court so charged the jury. Al- 
though there are one or two old cases and some dicta which seem to 
sustain it, that proposition is not law. 

It is well settled in this court that a man is not liable, in an action 
of trespass on the case, for any unintentional consequential injury 
resulting from a lawful act, where neither negligence nor folly can 
be imputed to him, and that the burden of proving the negligence 
or folly, where the act is lawful, is upon the plaintiff. Burroughs 
V. Housatonic R. R. Co., 15 Conn. 124. Is the rule different in tres- 
pass, where the injury is the immediate and direct, though unde- 
signed and accidental, result of a lawful act? 

If the defendant had been in the act of firing the pistol at an 
assailant in lawful self-defense, and a flash of lightning had blinded 
him at the instant and diverted his aim, or an earthquake had shaken 
him and produced the same result, or if his aim was perfect but a 
sudden puff of wind had diverted it or the ball after it had passed 
from the pistol, and in either case the ball by reason of the diversion 
had hit the plaintiff, the accident would have been so effected in 
part by the uncontrollable and unexpected operations of nature 
as to be inevitable or absolutely unavoidable ; and there is no prin- 
ciple or authority which would authorize a recovery by the plaintiff. 

And, in the second place, if while in the act of firing the pistol 
lawfully at an assailant, the defendant was stricken, or the pistol 



to assault tHe defendant, such equivocal conduct as putting the hand in the 
pocket, Keep v. Quallman, 68 Wis. 451 (1887) ; or upon the hip, Courvoisier 
V. Raymond, 23 Colo. 113 (1896) ; or a sudden onrush of a person believed 
to be one who had previously threatened violence, Crabtree v. Dawson, 119 
Ky. 148 (1904), have been held sufficient to justify a reasonable belief that 
the defendant was in imminent danger. 



MORRIS V. PLATT. 

seized or stricken by another assailant, so that its aim was unex- 
pectedly and uncontrollably diverted towards the plaintiff ; or if 
while in the act of firing with a correct aim, the assailant suddenly 
and unexpectedly stepped aside, and the ball passing over the spot 
hit the plaintiff, who till then was invisible and his presence un- 
known to the defendant ; or if the pistol was fired in other respects 
with all the care which the exigencies of the case required or the 
circumstances permitted, the accident was what has been correctly 
termed "unavoidable under the circumstances," and whether the de- 
fendant should in such case be hoiden liable or not is the question 
we have in hand. For, in the third place, if the act of firing the 
pistol was not lawful or was an act which the defendant was not 
required by any necessity or duty to perform, and was attended 
by possible danger to third persons which required of him more 
than ordinary circumspection and care, as if he had been firing at 
a mark merely; or if the act though strictly lawful and necessary 
was done with wantonness, negligence or folly, then, although the 
wounding was unintentional and accidental, it is conceded, and un- 
doubtedly true, that the defendant would be liable. 

In this case the rule of law claimed by the plaintiff, and given 
by the court to the jury, authorized them to find a verdict for the 
plaintiff if they found the accident to belong to the secona class, 
and to have been "unavoidable under the circumstances." We have 
seen that if the injury had been consequential and the form of 
action case, the defendant would not have been liable, and the ques- 
tion, returns, whether he can and should be hoiden liable because 
the injury was direct and immediate and the form of action is tres- 
pass. I think not, whether the decision of the question be made 
upon principle or governed by authority. 

We advise that a new trial be granted. 

In this opinion the other judges concurred. 

^Accord: Paxlon v. Boyer, (si 111. 132 (1873). So where the defendant 
intentionally strikes the plaintiff believing him to be a third person from 
whom he has such reason to apprehend danger as to justify striking in self- 
defense, he is not liable for the mistake in identity so long as his belief was 
honest and justifiable under the circumstances, Leavetfs Case {circa 1639) 
cited in Cook's Case Cro. Car. 538. The burden of proving that the mistake 
was negligent lies upon the plaintiff, Courvoisier v. Raymond, 23 Colo. 113 
(1896), a riotous gang had broken into the defendant's house and having been 
expelled by him continued throwing stones, etc., at it, the plaintiff, a police 
officer, coming upon the scene came towards the defendant, the defendant 
testified that as the plaintiff approached he put his hand to his hip pocket 
the defendant thereupon shot him, thinking that he was one of the riotous 
gang: in Crahtree v. Dawson, 119 Ky. 148 (1904), the defendant had ejected 
an intoxicated man from a room in his building in which a pay dance was 
given, the intruder threatened to return and "clean out the whole thing," the 
plaintiff, who had been invited to attend a dance given by the defendant's 
daughter and others in an adjacent room, for that purpose came up the stairs 
which were dimly lighted, the defendant mistaking him for the intruder, 
struck him over the head with a musket, knocking him down the stairs. In 
the latter case the court held that the jjurden of proving that the mistake 
was negligent rested upon the plaintiff, but that the defendant was bound to 
exercise the highest care practicable to ascertain whether the person whom 
he struck was the one from whom he had reason to apprehend danger. 



OGDEN V. CLAYCOMB. 899 

OGDEN V. CLAYCOMB. 
Supreme Court of Illinois, 1869. 52 ///. Rep., 365. 

Lawrence, J. This was an action for assault and battery, in 
which the jury found for the defendant. The verdict was against 
the evidence, and there was error in the instructions for the de- 
fendant. From the first instruction the jury would understand, if 
the plaintiff advanced upon the defendant in a threatening man- 
ner, for the purpose of fighting, and a fight followed, the plaintiff 
could not recover, even though the defendant had far exceeded the 
just bounds of self-defense, and inflicted an inhuman beating, pro- 
vided he desisted as soon as the plaintiff asked him to do so. The 
rule is, on the -contrary, that no more violence can be used than a 
reasonable man would, under the circumstances, regard necessary 
to. his defense.^ If he strikes a blow not necessary to his defense, 
or after all danger is past,^ or by way of revenge,'' he is guilty of 
an assault and battery. The third instruction tells the jury, among 
other things, that the plaintiff, in order to recover, should have been 
guilty of no provocation. This is error. It is wholly immaterial 
what language he may have used,* so far as the right to maintain 
an action is concerned, and even if he went beyond words, and com- 



^Cockroft V. Smith, 2 Salk. 642 (1705), an action of assault and battery 
and mayhem, Holt C. J. saying, that "for every assault he did not think it 
reasonable a man should be banged with a cudgel" ; Thomason v. Gray, 82 
Ala. 291 (1886). the jury may consider the relative size of the parties in de- 
termining whether the use of weapons was necessary ; see Edwards v. Leavitt, 
46 Vt. 126 (1873) ; Watsort v. Hastings, 1 Pennew., 47 (Del. 1897) ; Welis v. 
Englehart 118 111. App. 217 (1905) ; Tyson v. Booth, 100 Mass. 258 (1868), 
defendant fired his shotgun at boys who were throwing snowballs at him; 
Elliott v. Brown, 2 Wend. 497 (N. Y. 1829). 

The defendant must show that "the force used by him was appropriate 
in kind and suitable in degree," Rogers v. Waite, 44 Maine 275 (1857); 
O'Leary v. Rowan, 31 Mo. 117 (1860). "Ordinarily the question how far a 
party may properly go in self-defense i^ a question for the jury, not to be 
judged of loo nicely, but with due regard to the infirmity of human impulses 
and passions," Morton J.,, in Monise v. Begaso, 190 Mass. 87 (1906), p. 89; 
but the defendant must have both an honest and reasonable belief that the 
force he employs is necessary for his defense, Kent v. Cole, 84 Mich. 579 
(1891). 

'Hudson v. Crane, Noy 115 (1606); Watson v. Hastings, 1 Pennew. 47 
(Del. 1897) ; Beavers v. Bowen, 26 Ky. L. 291 (1904) ; Monise v. Begaso, 190 
Mass. 87 (1906). 

'Hetrick v. Crouch, 141 Mich. 649 (1905) ; Brouster v. Pox, 117 Mo. App. 
711 (1906") ;■ Hanson v. Europe & N. A. R. Co., 62 Maine 84 (1873) ; Monize 
v. Begaso, 190 Mass. 87 (1906). 

* Mere words, no matter how abusive, cannot justify an assault, Sorgen- 
frei V. Schroeder, 75 111. 397 (1885) ; Crosby v. Humphreys, 59 Minn. 92 
(1894) ; Murray v Boyne, 42 Mo. 472 (1868) ; Willev v. Carpenter, 64 Vt. 
212 (1892) ; but see Tuckers v. Walters, 78 Ga. 232 (1886) ; Gizler v. Witzel, 
82 111. 322 (1876). As to whether a defendant who has provoked an assault 
can justify force in defending himself, see Hulse v. Tollman, 49 111. App. 490 
(1893) ; Thomason v. Gray, 82 Ala. 291 (1886) ; Morris Hotel Co. v. Henley 
145 Ala. 678 (1906) ; but see Beavers v. Bowen, 26 Ky. L. 291 (1904). 



900 V. FAKENHAM. 

mitted a technical assault, the acts of the defendant must still be 
limited to a reasonable self-defense/ All the instructions for the 
defendant are pervaded to a greater or less degree by these errors, 
and should have been refused. The judgment must be reversed 
and the cause remanded. 

Judgment reversed. 

(b) Defense of others from wrongful violence. 



V. FAKENHAM. 



Court of Common Pleas, 1470.* 7. B. 9 Edw. IV, 48, pi. 4. 

In trespass for battery against Fakenham, he says that the 
plaintiff made an assault upon one W. F., son of the said defendant, 
and the defendant saw this and commanded one J., his servant, to 
go to his son and defend him, and keep him from damage, by force 
of which he went to him and assaulted the said son (plaintiff), and 
so the wrong which the plaintiff had was of the assault which he 
made upon the said W. F., and in defense of him, &c. Catesby. 
This is not to the purpose; for where a man assaults me, if I beat 
him in my defense, I shall be excused ; but if he assaults a stranger, 
I cannot beat him in his defense, for I have nothing to do with him, 
but I can part them, &c. Moyle and Needham, JJ. If I see a man 
assaulting another, I can part them and put my hand upon him who 
made the assault, and hold him so that he cannot come at the other, 
&c. ; but they said that I cannot draw my sword and beat the one 
who made the assault, &c. ; but it is otherwise if one assaults my 
master, I can beat him in defense of my master, &c. Choke, J. 
That is true, for the servant is held and bound to the master, and 
so he can for his mistress, &c. But the master cannot do as much 
for his servant, for he is not so held to do for his servant, &c.^ 
And then Genney says ut supra that the plaintiff assaulted the said 
son of the defendant then being present, &c., and he commanded 
such an one, his servant, to go to his son and part them, and keep 
his son without damage, by reason whereof he went to them and 
parted them, and put his hand upon this plaintiff, so that he should 
not approach the said son, &c., which is the same battery, &c.^ 

■^See McNatt v. McRae, 117 Ga. 898 (1903). 

^The right of a master to use force in defense of his servant is recog- 
nized in Seaman v. Cuppledick, Owen ISO (Circa 1607), on the ground that 
otherwise the master would lose his services, but see Leward v. Basely, 1 Ld. 
Raym. 62 (169.?), where it is said in such case the master has no right to 
defend his servant, since he has an action per quod servitium amisit; and 
Yelverton J., citing Y. B. 19 Henry VI, 60o, "A lord may justify in defense 
of his villein for he is his inheritance," per Crook J. in the same case. So in 
Anon., Y. B. 19 Hen. VI 31, pi. 59 (1440), a husband's right to defend his 
wife is put on a similar ground that she is his chattel. 

^The wife's right to defend her husband is recognized in Leward v. 
Basely, 1 Ld. Raym. 62 (1695). A child may defend its parents. Beavers v. 
Bowen. 26 Ky. L. 291 (1904) ; and Obier v. Neal, 1 Houston 449 (Del. 1855). 
In Higgins v. Minaghan, 78 \Vis. 602 (1891), it was held that a husband and 



MORRISON V. COMMONWEALTH. QOI 

OBIER V. NEAL. 
Superior Court of the State of Delaware, 18SS. 1 Houston, 449. 

Action for an assault and battery. Joseph Neal assaulted Obier 
with a large stick, uplifted with both hands, and drawn back in a 
threatening manner. Obier seized a small one, which he did not 
raise, but held in his hand by his side, when Neal struck him a hard 
blow on the top of his head with his stick, and then Obier returned 
the blow with his stick but with less violence, on the side of Neal's 
head. They then dropped their sticks and closed with each other, 
when William Neal seized the plaintiff by the right arm, and while 
he thus held him, William H. Neal caught up the stick which Joseph 
Neal had dropped, and struck the plaintiff Obier a severe blow over 
the head with it. William H. Neal pleaded a justification of his 
assault and battery upon the plaintiff in defense of his father, 
Joseph Neal ; and upon this evidence the counsel on both sides in- 
voked the charge of the court as to the sufficiency of his plea of 
justification under the circumstances. 

Gilpin, Ch. J., charged the jury: That to sustain the plea it 
must appear that the father was first assailed by the plaintiff, and 
was resisting his attack, when the son interfered to defend him. 
For if the father was the aggressor and committed the first assault, 
and was consequently a trespasser from the beginning of the com- 
bat, and was not himself justifiable in the assault and battery com- 
mitted by him upon the plaintiff, then the plea of the son could not 
avail him, for he became a co-trespasser with his father, and was 
liable with him in the action. But if the father was not the ag- 
gressor, and a trespasser himself from the beginning of the fight, 
and was only repelling the attack of the plaintiff in his own defense, 
when the son interposed, as he might lawfully do in such a case in 
defense of his parent, then he would not be liable ; provided he 
used only such force as the danger to which his father was exposed 
at the time rendered necessary for his defense and security. If, 
however, he exceeded that degree of force, even under such cir- 
cumstances, he would still be liable. 

Verdict for the plaintiff.^ 

MORRISON V. COMMONWEALTH. 

Kentucky Court of Appeals, 1903. 24 Ky. L., 2493. 

HoESON, J. So, the case comes to this: Did Morrison, when 
he saw Alex Dean committing an assault on his sister, and pushing 

father was justified in shooting at a party who were giving a "charivari" out- 
side his house, if he could not otherwise cause them to desist their noise and 
tumult which was terrifying his wife and children to an extent that affected 
their health and endangered their lives. 

^Accord: Jones v. Fortune, 128 111. S18 (1889), master defending servant; 
Beavers v. Bowen, 26 Ky. L. 291 (1904), son coming to defense of his father; 
Brouster v. Fox., 117 Mo. App. 711 (1906), semble. 



g02 . MORRISON V. COMMONWEALTH. ■ 

or striking her against the house, have a right to intervene between 
the brother and sister for his protection from a simple battery? In 

1 Bishop on Criminal Law, §877, it is said: "The doctrine here is 
that whatever one may do for himself he may do for another. The 
common case, indeed, is where a father, son, brother, husband, serv- 
ant, or the like, protects by the stronger arm the feebler. But 
a guest in a house may defend the house, or the neighbors of the 
occupant may assemble for its defense; and, on the whole, though 
distinctions have been taken and doubts expressed, the better view 
plainly is that one may do for another whatever the other may do 
for himself." The statement of the law, as applied to simple bat- 
teries and breaches of the peace, is broader than it is usually put 
in the authorities. Thus, in 3 Bl. Com. 3, it is said : "The defense of 
one's self or the mutual or reciprocal defense of such as stand in 
relations of husband and wife, parent and child, master and serv- 
ant. In these cases, if the party himself, or any of these, his re- 
lations, be forcibly attacked in his person or property, it is lawful 
for him to repel force by force ; and the breach of the peace which 
happens is chargeable upon him only who began the affray." In a 
note to this it is added : "When a person does not stand in either of 
these relations, he cannot justify an interference on behalf of the 
party injured, but merely as an indifferent person to preserve the 
peace." See, to the same effect, 2 Am. & Eng. Enc'. Law, p. 981 ; 

2 Roberson, Criminal Law, §453. 

When a felony is apparently about to be committed, as where 
there is apparent danger of loss of life by the person assailed or 
of great bodily harm to him, a different rule prevails, and there 
any third person may lawfully intervene for his protection, using 
such means for his defense as the person assaulted himself may 
lawfully use. But where the assault is not felonious, and the per- 
son intervening does not stand in any relations to the one assaulted 
except out of the common-law rule, then he who intervenes can 
act only for the preservation of the peace. He cannot come into 
the difficulty for the purpose of taking the place of the person as- 
sailed, and continuing the fight. This is the common-law rule, as 
we understand the authorities, and we cannot 'depart from it or 
extend it. 

It is conceded on all hands that Morrison ran down on tiptoe 
to where Alex Dean and his sister were, some 90 feet away. If, 
when he got there, he at once stabbed Dean, in the back, as stated 
by the witnesses for the commonwealth, he was the aggressor. The 
instruction of the court, which submitted to the jury the question 
whether Morrison believed, or had reasonable grounds to believe, 
himself in danger of death or great bodily harm at the hands of 
Dean, when he stabbed him, was more favorable to Morrison than 
the law warranted, as the court did not submit to the jury the ques- 
tion whether Morrison was the aggressor. Morrison knew that the 
illicit relations between him and Ida Dean were the foundation of 
the animosity of Alex Dean to him. He also knew that this was 
the cause of the quarrel between the brother and sister. With this 



MC ILVOY V. COCKRAN. 9O3 

knowledge he ran on tiptoe down to where they were, armed with a 
dirk, and if, as he says, he caught Alex Dean by the shoulder and 
shoved them apart, saying to him, "You can't beat her where I am," 
his interference was not as an indifferent person to preserve the 
peace, for his first act was to commit a battery on Alex Dean by 
taking him by the shoulder, and this was followed up by a declara- 
tion which he could not but know, under all the circumstances, 
would make Alex Dean regard him as an assailant. To hold that he 
intervened, under the evidence, as an indifferent person to preserve 
the peace, would be to give no real effect to the common-law rule 
allowing greater rights to parent and child, husband and wife, 
master and servant, or the like, than to other persons in cases of 
simple batteries or breaches of the peace. According to his own 
testimony, the manner of his approach, his conduct on reaching Alex 
Dean, and his declaration to him, under the circumstances, were 
not those of one bent on peace, but of one proposing to champion 
the woman and fight her battles for her. He was therefore the ag- 
gressor, and the court did not err in refusing to admit the proof as 
to the bad character of Alex Dean or his previous threats ; and this 
evidence, if admitted, could not have been of material service to 
the defendant under the view of the law which we have indicated, 
for the jury might have inferred that when he interfered with the 
knowledge of the previous threats and the character of Dean he 
anticipated the result that ensued. The verdict of the jury finding 
him guilty of manslaughter, and fixing its punishment at eleven 
years in the penitentiary, seems to have been due to their accepting 
the version of the transaction as given by the witnesses for the 
commonwealth, and their believing that Morrison acted in sudden 
heat on seeing the woman assailed by her brother. 

Judgment affirmed.^ 

(c) Defense of one's property from wrongful intrusion. 



McILVOY V. COCKRAN. 
Court of Appeals of Kentucky, 1820. 2 A. K. Marsh Ky. Rep., 271. 

Owsley, J. This is an appeal from a judgment recovered by 
Cockran in -an action of trespass, assault and battery, brought by 
him against !McIlvoy. 

(The declaration in substance charged that the defendant as- 
saulted and beat the plaintiff with "sticks, clubs, fists, hands and 
feet." The defendant pleaded, first, son assault demesne; and sec- 
ond, that he was lawfully in possession of a certain close which he 

^The members of a party of friends (or social party) have no special 
right to interfere in defense of their associates different from that of third 
parties generally, Brouster v. Fox, 117 Mo. App. 711 (1906), which also holds 
that the right of one to intervene when he believes that another's life is in 
imminent danger is limited as. the right to strike in defense of a father is 
limited in Obier v. Neal, 1 Houston 449 (Del. 18SS). 



904 5IC ILVOY V. COCKRAX. 

had enclosed with a fence and tha.t the plaintiff with force and arms 
and against his, the defendant's will, broke down some of the posts 
and rails and was attempting to break down others, when the de- 
fendant, being upon his said close, did defend his possession thereof 
and resisted the said attempt of the said plaintiff and in so doing 
did assault and beat the plaintiff, as mentioned in the declaration, 
so that if any injury happened to the plaintiff, it happened of his 
wrong and in the lawful and necessary defense of the defendant's 
close, posts, and rails.) ^ 

During the progress of the trial before the jury, and after the 
evidence was closed on both sides, the counsel of Mcllvoy moved 
the court to instruct the jury, tha^ if, from the evidence, they be- 
lieved Mcllvoy had supported the truth of his second plea, they 
ought to find for him ; but the court overruled the motion, and in- 
structed the jury that it was not every trespass that would justify 
so enormous a battery, and that if the jury believed, from the evi- 
dence, the plea was true, it ought to go in mitigation of damages. 

The jury, after retiring from the bar to consult of their ver- 
dict, returned a verdict of $1,000 in favor of Cockran : whereupon 
the counsel of Mcllvoy moved the court for a new trial, on the 
grounds — ist, of the verdict being against evidence ; and, 2d, 
for an error in the court's refusal to instruct as asked for by the 
counsel of Mcllvoy, and in giving the instructions it did to the jury. 
The motion was, however, overruled, and judgment rendered in 
conformity with the verdict. 

The examination of the sufficiency of the plea divides itself 
properly into two inquiries : — ist, As its sufficiency to bar any part 
of the cause of action, and if any, 2d, how much? 

In responding to these inquiries, it must be borne in mind that 
the declaration contains a charge of assault, battery and- wounding; 
and the plea alleges the injury to have been occasioned by Alcllvoy 
(the defendant in the circuit court) in defense of a close of which 
he was possessed ; and in resisting the attempt of Cockran forcibly 
to enter and demolish the fence thereto appertaining. 

It is not denied but that an assault and battery may be justi- 
fied in the defense of the possession of either real or personal prop- 
erty ;" but it is contended that previous to the use of force there 



^The pleadings, which are set out at length in the opinion, are much 
condensed. 

"In Laurences cases, 2 Rolle. Abr. 548 (1609), it was held that '"one may 
justify the battery of another who will enter my house, for it is my castle"; 
and in Anon., Y. B. 21 Henry VII, 39, pi. 50 (1505), it is said by Fineux C. J., 
that "if a man is in his house and hears that such a one is coming to his 
house to beat him, he may well collect his friends and neighbors to help him 
in the defense of his person." 

While more force may perhaps be used in defense of one's house or 
home, see Anon., supra, and Newcome v. Russell, 133 Ky. 29 (1909), the right 
to resist intrusion or to eject an intruder is not confined to the protection 
of one's home, but may be exercised by one in possession of any real property, 
as by an occupant of a business office, Morgan v. Durfee, 69 Mo. 469 (1879) ; 
Townsend v. Briggs, 99 Cal. 481 (1893). So a church, which has lawfully 
discharged its pastor, may use the force necessary to remove him from the 



MC ILVOY V. COCKRAN. 905 

should be a request to depart, and that the injury should not be 
justified in the mode adopted by Mcllvoy, but that he ought to have 
pleaded by way of moliter manus imposuit. 

That moliter manus is the proper mode to pleading of many 
actions brought for injuries arising in defense of the possession of 
property, will not be controverted ; but that it is the only admissible 
mode in every possible case, we apprehend, cannot be maintained. 

There are certainly cases where force may be employed in de- 
fense of possession, without a previous request to depart. Thus, 
in the case of Green v. Goddard, 2 Salk. 641, the court said, in 
cases of actual force, as breaking open a gate or door, it is lawful 
to oppose force with force ; and if one breaks down a gate, or 
comes into a close with force and arms, the possessor need not re- 
quest him to depart, but may lay hands upon him immediately, for 
it is but returning violence with violence :" so if one comes forcibly 
and takes away my goods, he may be opposed immediately, for 
there is no time to make a request : but, say the court, where one 
enters the close without actual force, although his entry will be con- 
strued a force in law, there must be a request to depart before the 
possessor can lay hands upon him and turn him out.* 

This case from Salkeld, whilst it discriminates between those 
cases where force may or may not be employed without a request 
to depart, illustrates conclusively the cases where moliter manus 
should properly be pleaded, as well as those where such a plea as 
that adopted by Mcllvoy may be adopted. It shows that where 



pulpit if he thereafter insists on occupying it, Conway v. Carpenter, 80 Hun 
428 (N. Y. 1894). 

The right is available against one seeking to enter under claim of adverse 
title; McCarty v. Fremont, 2Z Cal. 196 (1863) ; Drew v. Comstock, 57 Mich. 
176 (188S); O'Donnell v. Mclntyre, 118 N. Y. 156 (1890), or who seeks to 
enter without the owner's consent to get his goods which are on the premises, 
Newkirk V. Sabler, 9 Barb. 652 (N. Y. 1850). 

The right to use force in defense of the lawful possession of chattels was 
recognized in an Anonymous case, Y. B., 19 Henry VI, 31, pi. 59 (1440), 
though Fortescue, as counsel for the plaintiff, argued that the defendant had 
a sufficient remedy in the action of trespass de bonis asportatis; and Anon., 
Y. B., 9 Edw. IV, 28, pi. 42 (1469). 

^ So, when after notice not to come upon the defendant's premises, the 
plaintiff springs on the land in a threatening manner, the defendant may law- 
fully resist the intrusion, using no unnecessary force, Harrison v. Harrison, 
43 Vt. 417 (1871). 

* Tullay V. Reed, 1 C. & P. 6 (1823) ; State v. Elliott, 11 N. H. 540 (1841), 
semble; Scribner v. Beach, 4 Denio 448 (N. Y. 1847); Ayers v. Birtch, 35 
Mich. 501 (1877). So it is held in Thompson v. Berry, 1 Cranch. C. C. 45 
(U. S. C. C. 1801), to be a battery to push a trespasser from one's land with- 
out first requesting him to leave, and a mere antecedent notice not to tres- 
pass will not dispense with the necessity of endeavoring by peaceful means 
to prevent the trespass before resorting to force, Howell v. Hopkins, 8 Ky. 
L. 527 (1886), compare Harrison v. Harrison, 43 Vt. 417 (1871). 

So in defense of chattels, Scribner v. Beach, 4 Denio 448 (N. Y. 1847), 
and see Anon., Y. B., 9 Edw. IV, 28, pi. 42 (1469), "If a man will take my 
goods I may lay hands on him and prevent him, and if he will not desist, I 
may beat him, rather than let him carry them off." 

So one who has entered upon a revocable license, if he insist upon re- 
maining after the license is revoked and he is requested to leave, becomes 



9o6 MC ILVOY V. COCKRAN. 

possession has been invaded by implied force only, injuries in de- 
fense of the possession ought to be justified by way of moliter 
manus; but where the possession is attacked by actual force, as no 
request to desist is necessary, the injury may be justified by plead- 
ing the facts which authorize the employment of force in defense 
of the possession. 

We are aware that, in some reported cases, judges are said 
to have used expressions negativing the idea of any justification in 
defense of possession, other than by a plea of moliter manus; but 
in using those expressions, we apprehend, the court must have had 
in view injuries resulting in the defense of possession invaded, not 
by actual, but by constructive forc|. 

It was upon this distinction between actual and constructive 
force, and this only, and by applying the plea of moliter manus to 
the latter, and not the former, that the reported cases can be recon- 
ciled with each other ; and, understanding the court, when speaking 
on the subject of that plea, to have had in mind the cases of con- 
structive force, there is no difficulty in reconciling the authorities. 

But whilst each plea is admissible when applied to its appro- 
priate case, in neither mode can every species of injuries be justi- 
fied, exclusively in defense of possession. Where the possession 
is invaded by force in law, and the intruder refuses to depart, or 
where it is invaded by actual force, force may be employed by the 
possessor; and as every forcible laying of hands upon another is, 
in legal contemplation, a battery, it follows that, in either mode of 
pleading, an assault and battery may be justified. 

Notwithstanding, however, an assault and battery may be justi- 
fied in either mode of pleading, we apprehend a wounding cannot 
be : for it is well settled that in defense of possession a wounding 

a trespasser and may be ejected as such, Woodman v. Howell, 45 111. 367 
(1867) ; Townsend v. Briggs, 99 Cal. 481 (1893). 

So one who has by his misconduct forfeited his right to be on the prem- 
ises may, if he refuse to leave, be forcibly removed, as where one disturbs 
a meeting, religious,, political, social or sporting. Wall v. Lee, 34 N. Y. 141 
(1865), and cases cited therein; or where a scholar in a public school is tur- 
bulent and refractory. Peck v. Smith, 41 Conn. 442 (1874) ; and see Smith v. 
Slociim, 62 111. 354 (1872). Nor is the motive of the defendant in excluding 
the plaintiff from his premises or in revoking his license material, Slinger- 
land V. Gillispie, 70 N. J. L. 720 (1904) ; Townsend v. Briggs, 99 Cal. 481 
(1893) ; Brothers v. Morris, 49 Vt. 460 (1877). 

If the intruder refuse to leave when requested to do so, the owner may 
turn him out, using no unnecessary force. Weaver v. Bush, 8 T. R. 78 (1798) ; 
McDermott v. Kennedy, 1 Harr. 143 (Del. 1883) ; Lichtenwallner v.- Laubach, 
105 Pa. St. 366 (1884); Commonwealth v. Clark, 2 Mete. 23 (Mass. 1840) ; 
Coleman V. New York &c. R. Co., 106 Mass. 160 (1870) ; Drew v. Comstock, 
57 Mich. 176 (1885) ; Watrousv. Steel, 4 Vt. 629 (1829), and the intruder has 
no right to resist expulsion so that sufficient force may be used to overcome 
his violent resistance thereto, Coleman v. New York 6-c. R. Co., 106 Mass. 
160 (1870). The owner is liable if he uses excessive force to eject a tres- 
passer, Coleman v. New York &c. R. Co., 106 Mass. 160 (1870) ; Hunt v 
Caskey, 60 Atl. 42 (N. J. 1905) ; Brebach v. Johnson, 62 111. App. 131 (1895) ; 
Weaver v. Bush, 8 T. R. 78 (1798), in which it is said that in such case the 
plaintiff should new assign, but see to the effect that no new assignment is 
necessary, Simpson v. Morris, 4 Taunton, 821 (1813). 



UC ILVOY V. COCKRAN. 9O7 

cannot be justified. Com. Dig., title, Pleader, 3 m, 16, 17.° But 
although a wounding cannot be justified barely in defense of pos- 
session, yet if, in attempting to remove the intruder, or prevent his 
forcible entry, he should commit an assault upon the person of the 
possessor, or his family, and the owner should, in defense of him- 
self or family, wound him, the wounding may, no doubt, be justi- 
fied f but then, as the personal assault would form the grounds of 
justification, the plea should set out, specifically, the assault in justi- 
fication. 

From what has been said, it will be perceived that the plea of 
Mcllvoy, as it contains allegations of actual force on the part of 
Cockran, imports a defense to the assault and battery charged in 
the declaration;' but as it contains no allegation of a personal as- 
sault by Cockran, it furnishes no justification to the wounding 
stated in the declaration. It results, therefore, that if the plea was 
proven to be true, the jury, sworn to try also on other issues going 
to the whole cause of action, could not regularly have found a gen- 
eral verdict for Mcllvoy, and, consequently, the court properly re- 
fused the instructions to the jury asked by Mcllvoy. 

The only remaining question necessary to be noticed involves 
an inquiry into the decision of the court in refusing a new trial. 

It will be recollected the motion was made on the grounds of 
the verdict being against evidence, and on the grounds of the court 
having erred in their instruction to the jury. 

From what has already been observed, it will be perceived that 
there is no error in the decision of the court upon the motion to 
instruct. And with respect to the evidence it need only be remarked, 
that it appears to have been of a character peculiarly proper for the 
decision of the jury, and not such as will justify the interposition 
of this court. 

The judgment must be affirmed, with cost and damages.' 

^Accord: Wounding in defense of possession of land: Gregory v. Hill, 
8 T. R. 299 (1799) ; Everton v. Estgate, 24 Nebr. 23S (1888) ; and Newcome 
V. Russell, 133 Ky. 29 (1909), in which it is intimated that even wounding may- 
be justified if necessary for the defense of one's home. 

Wounding in defense of possession of chattels : Scribner v. Beach, 4 Denio 
448 (N. Y. 1847) ; Gates v. Lounsbury, 20 Johns. 427 (N. Y. 1823). 

Nor can the use of dangerous weapons be justified, Hinchcliffe's case, 1 
Lew. 161 (1823) ; Everton v. Estgate, 24 Nebr. 235 (1888) ; nor the throwing 
of stones or other missiles which, after they leave the thrower's hand, can 
not be guided, Cole v. Mamider, 2 Rolle. Abr. 548 (1635) ; but see Talmage 
V. Smith, 101 Mich. 370 (1883), where it was held that while an owner of 
property was not justified in throwing a stick at boys trespassing in his shed 
intending to hit them, he was justified in throwing it at them intending only 
to frighten thera, though in fact one of the boys was struck. 

Nor can the use of force be justified unless it is appropriate to rid the 
land of the intruder, so to throw down a ladder upon which a trespasser was 
standing held not to be justified since "it only left him on the ground at the 
foot of the ladder, instead o£ being upon it," Collins v. Renison, Sayer 138 
(1754). 

' See Robinson v. Hawkins, 4 T. B. Mon. 134 (Ky. 1826) ; Fossbinder v. 
Svitak, 16 Nebr. 499 (1884). 

' See Weaver v. Bush, 8 T. R. 78 (1798). 

'An occupier of land is not bound to impound trespassing cattle or in- 



908 LIFE V. BLACKWELDER. 

LIFE V. BLACKWELDER. 
Appellate Courts of Illinois, 1886. 25 III. App. Rep., 119. 

Conger^ P. J, This was an action originally brought by ap- 
pellant against appellee before a justice of the peace, for injuries 
inflicted by appellee upon appellant's dog. A trial was had before 
a jury, resulting in a verdict and judgment for appellee. Upon ap- 
peal to the circuit court and trial before a jury, the result was the 
same. 

The parties to the suit are farmers, residing about one mile 
apart. Appellant is the owner of seven or eight hounds which he 
keeps for hunting purposes. At the time of the alleged injury 
about twenty acres of appellee's land was in growing wheat, the 
land having been rented by appellee to one Nussman. It was 
claimed by appellee, and some evidence was offered tending to sup- 
port such claim, that in the early spring and during the time the 
wheat was maturing, the dogs of appellant were in the habit of 
running through this wheat, chasing rabbits and other game, until 
they had trampled down and destroyed eighteen or twenty bushels 
of the growing wheat, and had several times prior to the shooting 
been driven out with clubs. 



animate chattels wrongfully placed or allowed to remain' upon his premises, 
or coming accidentally thereon, but he may drive out the cattle, Tyrring ham's 
case, 4 Coke 36 b (1S83), even into the highway, and this without liability for 
their subsequent straying, Cory v. Little, 6 N. H. 213 (1813), or remove them 
to the other's premises, Grier v. Ward, 23 Ga. 145 (1857) ; Knapp v. Hortung, 
103 Pa. St. 400 (1893) ; Ryan v. State, 5 Ind. App. 396 (1894), using reason- 
able care to do no unnecessary harm. So when the plaintiff has hitched his 
horse to a shade tree, the owner of the tree, who, to prevent the horse from 
gnawing it, as horses are notoriously prone to do, may unhitch it and remove 
it and rehitch it to a nearby hitching post, is not liable in trespass de bonis 
asportatis, though he would be liable in case if he had not used reasonable 
care in rehitching it, Oilman v. Emery, 54 Maine 460 (1867). 

He may not set ferocious dogs upon trespassing cattle, Amick v. O'Hara, 
6 Black 253 (Ind. 1842), but unless the circumstances make it unduly danger- 
ous, Mclntire v. Plaisted, $7 N. H. 606 (1876), he may drive them out with 
ordinary farm dogs. Mitten v. Faudrye, Popham, 161 (1624) ; Wood v. La- 
Rue, 9 Mich. 158 (1881) ; Davis v. Campbell, 23 Vt. 236 (1851). 

In removing inanimate chattels the occupier of the land should remove 
them to some adjacent place for the owner's use. Crane v. Mason, Wright 
333 (Ohio 1853), and may not destroy them or expose them to unnecessary 
risk of injury, Grier v. Ward, 23 Ga. 145 (1857), though if the chattels are 
on his premises by their owner's wrong, he may regard his own interest and 
convenience rather than the chattels and need put himself to less trouble and 
expense to preserve them, Almy v. Grinnell, 12 Mete. S3 (Mass. 1846) ; with 
which compare Grier v. Ward, ante. Where the goods come on the land ac- 
cidentally or are otherwise thereon without their owner's fault, they must be 
removed with the least possible injury to them and inconvenience to their 
owner. Berry v. Carle, 3 Greenl. 269 (Maine, 1825), and Fosdick v. Collins, 
1 Stark. 138 (1816) ; the latter case holding that the plaintiff's goods having 
been left on the land by the consent of the vendor of the defendant, and he on 
taking possession having refused to allow the plaintiff to remove them, he 
could not justify removing them himself to a distance. 



LIFE V. BLACKWELDER. 909 

The circumstances of the shooting are thus detailed by the ap- 
pellee in his testimony: 

"Last June I shot one of plaintiff's hounds while he was running 
through my wheat; plaintiff's hounds had been accustomed to run 
in said field all season, and were damaging it by knocking it down. 
Mr. Nussman, my tenant, told me I must keep the dogs out of the 
wheat (to which last statement defendant objected and excepted). 
I saw them in there several times, and heard them at other times ; 
I never saw more than three or four hounds in there at any one 
time, and generally only saw two. There were eighteen or twenty 
acres of wheat in the piece. I heard a couple of hounds in the 
wheat and took my gun, loaded with No. 6 shot, and went into the 
wheat, and when the dogs came within about forty yards of me 
I shot one of them, a black and white fellow. I shot the dog when 
he was coming straight toward me, because he was in the wheat 
field and I could not keep them out any other way. The dogs had 
knocked down enough wheat to make twenty bushels of wheat ; 
they were running rabbits in the wheat, and made roads in it." 

The court, at the instance of appellee, gave the jury the follow- 
ing instructions : 

"The court instructs the jury that the defendant had the right 
to use such means as were necessary for the purpose of putting the 
dogs out of his field, and if in so doing it resulted in the mutilation 
of the animal in question it would not be a violation of law, and if 
the jury believe, from the evidence, that the defendant used such 
means as a reasonable man would use, all the circumstances con- 
sidered, to exclude the dogs from his field and his wheat, and did 
no more harm to the dog than was necessary, under all the circum- 
stances proved in the case, then the jury will find for the defendant." 
It is insisted that these instructions are erroneous; that however 
appropriate they might be, where one was defending his animate 
property from destruction, they are the law as applied to the pro- 
tection of inanimate property. 

Counsel state the proposition in the following words: "Ap- 
pellee had not the right to exercise the same force to protect his 
wheat field, inanimate property, which he might have been justified 
in using had appellant's dog been found worrying and seemingly 
about to destroy a valuable domestic animal, animate property, be- 
longing to him." 

We fail to see the propriety of the distinction made by counsel.^ 

Every man has a right to defend and protect his property of 
every kind and character from injury or destruction, provided he 



' Compare also, Ford v. Taggart, 4 Tex. 492 (1849) ; Champion v. Vincent, 
20 Tex. 811 (1858), and Ames, J., in Clark v, Keliher, 107 Mass. 406 (1871), 
to the eflfect that neither mules, ho^s, cattle or other "animals reclaimed and 
used for burden, husbandry or food" can be killed when found trespassing, 
even to preserve the crops from destruction, with Williams v. Dixon, 65 N. 
Car. 416 (1871), where it was held that the defendant might kill an ass which 
had thrown down his cow and was stamping on it; and see Canefox v. Cren- 
shaw, 24 Mo. 199 (1857) ; and Anderson v. Smith. 7 III. App. 354 (1880), p 
359. 



9IO LIFE V. BLACKWELDER. 

uses only such means as are reasonably necessary under the cir- 
cumstances. And the reasonableness or unreasonableness of the 
means used is always a question of fact for the jury. 

Thus, in Kline v. Kline, 6 Pa. St. 318, when a dog was killed 
in the act of getting fish down from the wall where they had been 
hung to dry, the court say: "And his property, whether meat or 
fish, in his cellar, in his kitchen or in his yard, it was lawful for him 
to preserve again.st any man's dog; and if he could not otherwise 
protect it, he might kill the dog when caught on his premises in the 
act of destruction. Whether he could not preserve his property 
and the customary use of it without destroying the animal commit- 
ting depredations, when found in -the act, ought to have been sub- 
mitted to the jury by the court, as a question within their province 
to decide." 

In the case at bar appellee had a right to protect his wheat 
from trespassing dogs, and if, in the opinion of the jury, it could 
not be done by any reasonable means except by those used by ap- 
pellee,^ and that such means were, under the circumstances reason- 
able and proper, he would not be liable to appellant for the injury 
resulting therefrom. 

In determining the question of the reasonableness of resorting 
to such extreme measure to protect proJ)erty, the value of the animal 
doing the mischief, the disturbance and mischief likely to be 
wrought,^ the probability of less severe measures being successful 
and the necessity for immediate action, are all elements to be con- 
sidered in reaching a conclusion.* 

^Accord: Anderson v. Smith, 7 111. App. 354 (1880) ; Nesbett v. Wilbur, 
177 Mass. 200 (1900) ; and see Cane fox v. Crenshaw, 24 Mo. 199 (1857), sem- 
ble. In Simmonds v. Holmes, 61 Conn. 1 (1891), in which the relative value 
of the animal killed and the property threatened or attacked by it was held 
to be immaterial, the defendant justified under a statute giving him the abso- 
lute right to kill animals running at large and injuring or threatening injury 
to property. 

" Compare the language of Holmes, C. J., in Nesbett v. Wilbur, 177 Mass. 
200 (1900). 

*In the following cases the dog being in the very act of attacking, injur- 
ing or consuming the defendant's property, his killing was held justifiable; 
King v. Kline (6 Pa. St. 318), cited in the principal case; Leonard v. Wilkins, 
9 Johns. 233 (N. Y. 1812), tlae dog had one of the defendant's fowls in his 
mouth and was running away with it when shot; Canefox v. Crenshaw, 24 
Mo. 199 (1875), buffalo bull shot in the act of destroying the defendant's 
property and polluting his herd of cattle; Williams v. Dixon, 65 N. Car. 
416 (1871). 

In Wright v. Ramscot, 1 Saunders 84 (1678), a plea setting forth 
that the defendant stabbed and killed the plaintiff's mastiff because it was 
attacking the dog of the defendant's mistress, was bad, it not alleging that 
he could not otherwise separate them ; accord : Hinckley v. Emerson, 4 Cowen 
351 (N. Y. 1825), dog making slight and more or less playful attacks on de- 
fendant's hogs, the attack was over and the dog under its master's charge 
when killed— but see Boecher v. Lutz, 13 Daly 28 (N. Y. 1885)—; and in 
Livermore v. Batchelder, 141 Mass. 179 (1886), it was held that a finding that 
the defendant had reasonable cause to believe that the dog was about to 
attack and kill his chickens did not justify killing the dog, in the absence of a 
finding that he had reasonable cause to believe that it was necessary to kill 
the dog to keep him from killing the chickens; compare Nesbett v. Wilbur, 



LIFE V. BLACK WELDER. 9II 

As was said in Anderson v. Smith, 7 111. App. 359, "There 
must be an apparent necessity for the defense, honestly believed to 
be real, and then the acts of defense must in themselves be reason- 
able. Acts beyond reason are excessive. The consequences of the 
proposed act to the aggressor should be considered in connection 
with the consequences of non-action to the party defending, whether 
the defense be made in favor of person or property." 

We think the instructions fairly submitted the law to the jury. 
Appellant's third instruction, which told the jury that if appellee 
shot the dog for no other reason than that the dog had been accus- 
tomed to run through his wheat, they should find for appellant, 
announced a correct principle of law, and had the evidence justified 
it, should have been given. 

But the evidence was undisputed that the dog was at the time 
of being shot trespassing upon the wheat, and appellee's uncon- 
tradicted statement being that he shot "because he was in the wheat- 
field and he could not keep him out any other way," it can hardly 
be presumed that the jury would indulge the presumption that ap- 
pellee shot the dog, for the reason given in the instruction. 

If the refusing of the instruction was error, we do not think 
it worked any injury to appellant. Neither do we think the remarks 
of the court in passing upon the evidence prejudiced the appellant. 

The judgment of the Circuit Court will be affirmed. 

Judgment affirmed.^ 

177 Mass. 200 (1900) ; and see Ulery v. Jones, 81 111. 403 (1876) ; and Cane- 
fox V. Crenshaw, 24 Mo. 199 (1857) ; contra, Parrott v. Hartsfield, 4 Dev. & 
Bat. 110 (N. Car. 1838), which makes a curious distinction between the kill- 
ing of dogs for the protection of animals in a wild state, and killing of dogs 
for the protection of sheep, cattle and other domesticated and useful animals. 
But compare Ten Hopen v. Walker, 96 Mich. 236 (1893), where it was held 
that a dog could not be shot even if about to destroy the defendant's plants, 
"because the law affords a remedy for the destruction of property caused by 
the beasts of another," with Throne v. Mead, 122 Mich. 273 (1899) ; and Mc- 
Chesney v. Wilson, 132 Mich. 252 (1903), and see Ames J. in Clark v. Keli- 
her, 107 Mass. 406 (1871). 

In the following cases the killing was held unjustifiable, the animal not 
being caught in the act, Janson v. Brown, 1 Camp. 41 (1807), the dog having 
dropped the fowl an instant before he was shot; Wells v. Head, 4 C. & P. 
568 (1831), dog had left the field where he had worried defendant's sheep; 
Vere v. Lord Cawdor, 11 East 568 (1809). dog shot chasing game; but com- 
pare Brother oe v. Mathews, 5 C. & P. 581 (1833) ; Barrington v. Turnet, 3 
Lev. 28 (1697) ; Wadhurst v. Damme, Cro. Jac. 45 (1604), where the dog was 
chasing game in a "park" or "warren" ; and Deane v. Clayton, 7 Taunton 489 
(1817) ; and see Johnson v. Patterson, 14 Conn. 1 (1840) ; Sosat v. State, 2 
Ind. App. 586 (1891) ; and Williams v. Dixon, 65 N. Car. 416 (1871). 

"Accord: McChesney v. Wilson, 132 Mich. 252 (1903); Marshall v. 
Btecifej/iw, 44 Iowa 475 (1876). 

An animal, whether cattle, dogs or fowl, cannot be killed merely because 
it is trespassing and cannot be kept out in any other way, Conner v. Champ- 
neys, Taunton Assizes 1814, cited in argument of Deane v. Clayton, 2 Marshall 
(C. P.) 684; Ten Hopen v. Walker, 96 Mich. 236 (1893) ; Clark v. Keliher, 
107 Mass. 406 (1871) ; Matthews v. Fiestal, 2 E. D. Smith, 90 (N. Y. 1853), 
even though its conduct while upon the land is highly annoying; Bowers v. 
Horan, 93 Mich. 420 (1899) ; or is in company with other dogs which had 
previously worried cattle. Barret v. Utley, 12 Bush 399 (Ky. 1896) ; nor can 



912 ALDRICH V. WRIGHT. 

ALDRICH V. WRIGHT. 
In the Supreme Judicial Court of New Hampshire, 1873. S3 N. H., 398. 

Debt, by Arthur R. Aldrich against Wells Wright, to recover 
the penalties prescribed by Sec. 2, Chap. 251, General Statutes, for 
killing minks. The defendant admitted the killing of four minks, 
but alleged, in justification, that the animals were at the time pur- 
suing his geese. 

The only evidence in the case was the testimony of George W. 
Blood, who, in common with the defendant, owned a small goose- 
pond. The dividing line between the premises of the witness and 
the defendant was the brook running into this pond ; and the houses 
occupied by the witness and the defendant were on the opposite 
sides of the brook, and but a few rods distant therefrom. The 
witness testified as follows: "I stood in my dooryard; heard the 
geese cackling; I came out on to a little knoll; I saw the four", 
minks swimming towards the geese ; some of the geese had then got 
on to the shore of the pond and some of them were in the water; 
the minks were from one to three rods distant from the geese; 
some of the geese within a rod of the minks, who were one old mink 
and three young ones, but all about the same size. As soon as the 
minks saw me they stopped pursuing the geese, and ran out upon a 
little island and there stopped. At the same time I came out the de- 
fendant also came out with his gan ; he came out near the end of the 
causeway that is laid across the lower end of the pond, and fired 
at the minks on the island, killing them all at one shot, the minks 
were all on the island when he fired ; the defendant carried the minks 
off to his house ; the geese were six old ones, and eight young ones 
about half grown ; geese had run in the pond two or three summers ; 
never knew of any mink chasing any geese there before or since; 
don't know whether minks are accustomed to kill geese or not." 
/ A verdict was taken for the plaintiff by consent, subject to the 
defendant's exception to a pro forma ruling that the defendant 
would not be justified in killing the minks if the geese were not in 
imminent danger, and could have been protected either by driving 
away the geese, or frightening or driving off the minks. 
' Ray, Drew and Heywood, for the defendant. 

G. A. Bingham and Aldrich, for the plaintiff. 



poison be put out to kill trespassing dogs, S3 Mo. App. S17 (1893) ; and see 
Townsend v. Walthen, 9 East. 277 (1808). But if dogs habitually assemble on 
the defendant's premises and by their fighting and howling make sleep impos- 
sible in his house and so become a nuisance, he may, after notice to their 
owners to restrain them, shoot them if he cannot otherwise keep them away 
Brill v. Flagler, 23 Wend. 3S4 (N. Y. 1840) ; Hubbard v. Preston, 90 Mich. 
221 (1892), though a dog may not be killed, merely because it has the habit of 
barking at vehicles in the street, Jacquay v. Hartzell, 1 Ind. App. 500 (1891). 
Contra: Ten Ho pen v. Walker, 96 Mich. 236 (1893), semble, in which, 
as in Brent v. Kimball, 60 111. 211 (1871), the right to kill a trespassing dog 
was said to be restricted to the statutory rights to kill a dog worrying or 
chasing sheep or when it is mad, or has been recently bitten by a mad Jog, or 



ALDRICH V. WRIGHT. 9I3 

Doe, J. In this case the question is, not of the real danger 
tnerely, but also of the danger, on reasonable grounds, really be- 
lieved by the defendant to exist. 

The reputation of the minks, their pursuit of the geese, and 
the alarm and retreat of the latter, may have shown apparent dan- 
ger, when the real character of the pursuers may have created no 
actual danger. Mr. Blood, a near neighbor of the defendant, did 
not know whether minks are accustomed to kill geese or not. The 
defendant may have been equally uninstructed. And it was not his 
duty to postpone the defense of his property until, neglecting his 
usual occupations and incurring expense, he could examine zoologi- 
cal authorities, consult experts, or take the opinion of the county, 
on the question whether his "half-grown" geese were actually en- 
dangered, in life or limb, by the incursion of "one old mink and 
three young ones," "all about the same size." The conclusion of the 
investigation might be too late. And if the question were found to 
be a debatable and doubtful one, it would not be his duty to settle 
it by trial at his own risk. The plaintiff's doctrine destroys the right 
of defense which exists in a case of merely apparent danger. 

The plaintiff's claim that the defendant is liable if the geese 
were not in imminent danger, taken in the sense for which the 
plaintiff contends, and the sense in which both parties, at the trial, 
probably understood it, cannot be sustained. 

The term "imminent" does not describe the proximity of the 
danger by any rule of mechanical measurement ; and, in its broad 
and popular signification, admitting a large degree of latitude and 
adaptation to circumstances, it may be properly used in this case. 
But it has been so much used in cases of defense against a human 
aggressor, and, in that class of cases, has, for peculiar reasons, 
acquired a legal meaning so special, restricted, and technical, that, 
if used in a case like the present, it should be accompanied by some 
explanation of the general comparative and relative sense in which 
it is used. 

It is probable that the parties understood that, by the doctrine 
of imminent danger, the defendant was liable unless the geese would, 
in a few moments, have been killed by the minks but for the de- 
fendant's shot. The doctrine, asserted in that form, would be er- 
roneous. It was for the jury to say, considering the defendant's 
valuable property in the geese, the absence of absolute property in 
the minks, their character, whether harmless or dangerous, the 
probability of their renewing their pursuit if he had gone about hi:, 
usual business and left the geese to their fate, the sufficiency and 
practicability of other kinds of defense, — considering all the ma- 
terial elements of the question, it was for the jury to say whether 
the danger was so imminent as to make the defendant's shot rea- 
sonably necessary in point of time. If, but for the shot, some of. 
the geese, continuing to resort as usual to the pond, apparently- 
v/ould have been killed by these minks, within a period quite iii- 

is ferocious and attacks persons, but see the criticism of this case in Anderson 
V. Smith,? m App. 354 (1880). 



914 ALDRICH V. WRIGHT. 

definite, and if other precautionary measures of a reasonable kind, 
as measured by consequences, would have been ineffectual, the dan- 
ger was imminent enough to justify the destruction of the minks 
for the protection of property. 

Neither was there a remedy in guarding the fowls day and 
night. The profit accruing from six old geese and eight young ones 
would not pay the expense of constant convoy. His property 
might as well be consumed by the minks as by the cost of a guard. 
But, however small the value of the property, he had a right to 
protect it by means reasonably necessary; reasonable necessity in- 
cluded a consideration of economy: and eternal vigilance, as the 
price of success in his limited anserine business, was not reasonable. 
According to the precedent of charging the watch to bid any one 
stand, and, if he will not stand, to let him go, the defendant should 
have been thankful if the minks, when challenged, had gone off; 
but their halt at the island showed no inclination to go any consid- 
erable distance. What practicable method was there of protecting 
the geese in the peaceful possession and enjoyment of the pond? 
Without a resort to firearms, his situation would seem to have been 
full of embarrassment. The invasion of his premises was annoy- 
ing ; the legal perplexities, with which it is now claimed he was en- 
vironed, had they been understood by him at the time, would have 
been distressing. 

If (as the jury would probably find the fact to be) it apparently 
was reasonably necessary for him to kill the minks in order to pre- 
vent their doing mischief to his property, the authorities do not show 
that he transcended the right of defense. 

The claim that the defendant was liable if the geese could have 
been protected by driving them away from the minks, cannot be 
sustained. 

Requiring the defendant to drive away the minks if he could, 
is an admission that he had a right to drive them away, and that 
they had no right to remain on his premises without his consent. 
But requiring him, if he could not drive them away from the geese, 
to drive the geese away from them, is a practical denial of his right 
to keep geese in his own pond or on his own land, if he could 
only keep them there by killing minks. It amounts to this : it being 
impracticable to permanently eject the assailants, he must banish 
the assailed; and, the raising of geese being impossible, the raising 
of minks is compulsory. A freeholder, permitted to fire blank 
cartridges only to cover the endless retreat of his poultry before 
these marauders^ and obliged to suffer such an enemy to ravage his 
lands and waters with boldness generated by impunity, is a result 
of turning the fact of the reasonable necessity of retreating to the 
wall before a human assailant into a universal rule of law. This 
rule practically compels the defendant to bring his poultry to the 
block prematurely, and to abandon an important branch of agri- 
cultural industry. His right of protecting his fowls is merely his 
right of exterminating them. 

To hold, in this case, that the geese should have been driven 



ANON. 915 

away from their home, would be equivalent to holding that they 
should have been killed. The doctrine of retreat would leave them a 
right to nothing but life in some place inaccessible to minks, where 
life might be unremunerative and burdensome. But that doctrine 
being irrelevant when the aggressor is not shielded by the inviolabil- 
ity of the human form and the sacred quality of human life, the 
geese were not bound to retreat. As against the minks, they had a 
right, not only to live, but to live where the defendant chose, on his 
soil and pond, and to enjoy such food, drink, and sanitary privileges 
as they found there, unmolested by these vermin, in a state of tran- 
quillity conducive to their profitable nurture. And it was for the 
jury to say, not whether he could have driven them away from the 
minks, but whether his shot was reasonably necessary for the pro- 
tection of his property, considering what adequate and economical 
means of permanent protection were available, the legal valuation of 
vermin life, and the disturbance of mischief likely to be wrought 
upon his real and personal estate if any other than a sanguinary de- 
fense were adopted. 

Verdict set aside.^ 



(d) Intrusion upon or destruction of property required by 
individual or public necessity. 



Rede, C. J. in Anon., Y. B. 21 Hen. VII, 27 PI. 5 (1506). 

When my cattle are damage feasant in another's land, I can- 
not enter to drive them out,^ and still it is a good deed to drive 
them out, lest they do more damage. But it is otherwise when a 
stranger drives my horse into another's close, where it does dam- 

'^ Accord: Marshall v. Blackshire, AA Iowa 475 (1876), the dog had chased 
the defendant's chickens and driven them from their feed and, on being 
driven away, had returned, whereupon the defendant shot him, it was held not 
to be error to charge that it was not necessary in order to justify the de- 
fendant in killing the dog that the dog should have been, at the instant of the 
shooting in the act of worrying and killing the defendant's chickens, if, when 
killed, his conduct was such as to create in the defendant's mind a reasonable 
apprehension of continued and renewed worrying and killing; Dunning v. 
Bird, 24 111. App. 270 (1887), defendant shot the dog, not knowing who owned 
it, as it was coming out of his smoke house ; and see Boecher v. Luts, 13 Daly 
28 (N. Y. 188S). 

In Parrott v. Hartsfield, 4 Dev. & Bat. 110 (N. Car. 1838), it is held that "a 
sheep stealing dog found lurking about or roaming over a man's land where 
sheep are kept, incurs the penalty of death" and may be shot on sight ; and see 
Throne v. Mead, 122 Mich. 273 (1899), in which it is held that such a killing 
is justifiable though not strictly within the statute giving the right to kill dogs 
found chasing sheep ; and Miller v. State, 5 Ga. App. 463 (1908), where it was 
held that a sheep killing dog might be killed even upon its owner's premises 
by the son of one whose sheep it had killed. 

Contra: Johnson v. Patterson, 14 Conn. 1 (1840), defendant scattered 
poisoned meat about to kill the plaintiff's chickens which had habitually 
trespassed upon the defendant's premises and destroyed his seeds thereon. 

'For, says Kingsmill, J., in the same case, "I ought first to tender 
amends." 

See Coif v. Kitts, IS Wend. SSO (N. Y. 1836), where it was held that the 



9l6 PLOOF V. PUTNAM. 

age; in such case I may justify an entry to drive it out, since the 
damage done was the fault of another. 

Choke, C. J., in Anon., Y. B. 6 Edw. IV, 7, PI. 18. 

If the thorns of a great tree had fallen on his land by the 
force of the wind, in this case he might come in to get them, be- 
cause the falling was not his act but the act of the wind.^ 



PLOOF V. PUTNAM. 
Supreme Court of Vermont, 1908. 81 Vermont Reports, 471. 

MuNSON, J. It is alleged as the ground of recovery that on 
the 13th day of November, 1904, the defendant was the owner of 
a certain island in Lake Champlain, and of a certain dock attached 
thereto, which island and dock were then in charge of the defend- 
ant's servant; that the plaintiff was then possessed of and sailing 
upon said lake a certain loaded sloop, on which were the plaintiff 
and his wife and two minor children ; that there then arose a sud- 
den and violent tempest, whereby the sloop and the property and 
persons therein were placed in great danger of destruction; that 
to save these from destruction or injury the plaintiff was com- 
pelled to, and did, moor the sloop to defendant's dock ; that the 
defendant by his servant unmoored the sloop, whereupon it was 
driven upon the shore by the tempest, without the plaintiff's fault ; 
and that the sloop and its contents were thereby destroyed, and the 
plaintiff and his wife and children cast into the lake and upon the 
shore receiving injuries. 

This claim is set forth in two counts : one in trespass, charg- 
ing that the defendant by his servant with force and arms wilfully 
and designedly unmoored the sloop; the. other in case, alleging that 
it was the duty of the defendant by his servant to permit the plain- 
tiff to moor his sloop to the dock, and to permit it to remain so 
moored during the continuance of the tempest, but that the de- 
fendant by his servant, in disregard of this duty, negligently, care- 
lessly and wrongfully unmoored the sloop. Both counts are de- 
murred to generally. 

There are many cases in the books which hold that necessity, 
and an inability to control movements inaugurated in the proper 
exercise of a strict right, will justify entries upon land and inter- 
ferences with personal property that would otherwise have been 

owner of a swarm of bees, which have made their hive on another's land, 
may not enter to reclaim them. 

"^ Accord: Popham C. J. in Mitten v. Faudrye, Popham 161 (1682), "if a 
tree grow in a hedge and the fruit fall into another's land, the owner may 
fetch it in the other's land." So it was held in Hoffman v. Armstrong, 48 
N. Y. 201 (1872), that an owner of land on which a fruit tree stands, whose 
branches overhang his neighbor's land, may enter the latter to take the fruit. 

But if the owner cut the thorns and they fall on the adjoining land, then 
it is held in the principal case that he may not enter and take them. 



PLOOF V. PUTNAM. QI/ 

trespasses. A reference to a few of these will be sufficient to illus- 
trate the doctrine. 

In Miller v. Faudrye, Poph. i6i, trespass was brought for 
chasing sheep, and the defendant pleaded that the sheep were tres- 
passing upon his land, and that he with a little dog chased them 
out, and that as soon as the sheep were off his land he called in 
the dog. It was argued that, although the defendant might law- 
fully drive the sheep from his land with a dog, and that the nature 
of a dog is such that he cannot be withdrawn in an instant, and 
that as the defendant had done his best to recall the dog trespass 
would not lie. 

In trespass of cattle taken in A, defendant pleaded that he 
was seized of C, and found the cattle there damage feasant, and 
chased them towards the pound, and that they escaped from him 
and went into A, and he presently retook them; and this was held 
a good plea. 21 Edw. IV, 64; Vin. Ab. Trespass, H. 34 pi. 19. 
If one have a way over the land of another for his beasts to pass, 
and tlTe beasts, being properly driven, feed the grass by morsels 
in passing, or run out of the way and are promptly pursued and 
brought back, trespass will not lie. See Vin. Ab. Trespass, K. a. 
pi. I. 

A traveler on a highway, who finds it obstructed from a sud- 
den and temporary cause, may pass upon the adjoining land with- 
out becoming a trespasser, because of the necessity. Henn's Case, 
W. Jones, 296; Campbell v. Race, 7 Cush. 408, 54 Am. Dec. 728; 
Hyde v. Jamaica, 27 Vt. 443 (459) ; Morey v. Fitzgerald, 56 Vt. 
487, 48 Am. Rep. 811.^ 

An entry upon land to save goods which are in danger of being 
lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 
27 ; Vin. Abr. Trespass, H. a.4, pi. 24, K. a. pi. 3.^ In Proctor v. 

^ Aliter, when as in Holmes v. Seeley, 19 Wend. 507 (N. Y. 1838) ; and 
Williams v. Safford, 7 Barb. 309 (N. Y. 1849), the way is private, whether by 
grant, see Bullard v. Harrison, 4 M. & S. 387 (1815), or prescription, Taylor v. 
Whitehead, 2 Dougl. 745 (1781). Notwithstanding the doubt expressed by 
Buller J. in Taylor v. Whitehead, 2 Dougl. 745 (1781), and Nelson C. J. in 
Holmes v. Seeley, 19 Wend. 107 (N. Y. 1838), it was held in Williams v. 
SafFord, 7 Barb. 309 (N. Y. 1849), that there is no distinction between a 
right of way by express grant and one of necessity, such right of way fol- 
lowing as an incident of the grant of property to which there is no other 
access. When once assigned by the grantor or selected by the grantee, "it 
stands on the same footing as any other way by grant and both parties are 
bound by it, the grantor not to obstruct it, and the grantee to be confined 
to it." 

If the owner of the land over which another has a right of way ob- 
structs it, it is held in Haley v. Colcord, 59 N. H. 7 (1879), that the owner 
of the way may go out of the way to pass around the obstruction, contra, 
Williams v. Safford, 7 Barb. 309 (N. Y. 1849), holding his only remedy to 
be to abate the nuisance or an action of damages. 

When the public have a right to use a path but subject to the right of 
the owner of the land to plow it, the public have no right to go extra viam 
to escape the obstruction or bad condition of the path caused by such plow- 
ing, Arnold v. Holbrook, L. R. 8 Q. B. 96 (1873). 

^ Aliter, if the goads of the landowner are imperilled by the wrongful 
act of the defendant, or a third person, against whom their owner might 



9l8 PLOOF V. PUTNAM. 

Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon 
the plaintiff's beach for the purpose of saving and restoring to the 
lawful owner a boat which had been driven ashore and was in 
danger of being carried off by the sea ; and it was held no trespass. 
See also Dunwich v. Sterry, i B. & Ad. 83 t. 

This doctrine of necessity applies with special force to the 
preservation of human life. One assaulted and in peril of his life 
may run through the close of another to escape from his assailant. 
37 Hen. VII, pi. 26. One may sacrifice the personal property of 
another to save his life or the lives of his fellows. In Mouse's 
Case, 12 Co. 63, the defendant was sued for taking and carrying 



have an action, so in Anon., Y. B. 21 Hen. VII, 27, pi. S, (1505), it was 
held that one who entered a field and gathered corn set apart - for tithes, 
and carried them to the barn of the plaintiff, the person entitled to them 
could not justify his conduct because the tithes were in danger of destruc- 
tion by cattle in the field. 

The right of any citizen to enter the property of another in order to 
extinguish a fire, the spread of which appears reasonably probable, is recog- 
nized in Metallic Compression Casting Co. v. Fitchburg R. R., 109 Mass. 277 
(1873) ; Hyde Park v. Gay, 120 Mass. 589 (1876). 

The right to destroy another's property to prevent the spread of fire, 
was held in Y. B., 9 Edw. IV, 35, (1469), to exist in a neighbor whose prop- 
ierty was threatened when the fire was due to the owner's negligence. Such 
a right is recognized in all citizens to prevent the spread of fire whatever 
its origin, when necessary for the common good, Maleverer v. Spinke, Dyer 
32 (1537), Saltpeter Case, 12 Coke, 13 (1606) ; Bishop v. Mayor of Macon, 7 
Ga. 200 (1849) ; Surocco v. Geary, 3 Cal. 69 (1853) ; Field v. Des Moines, 39 
Iowa 575 (1874); McDonald v. Red Wing, 13 Minn. 38 (1868), semble; 
Respublica v. Sparhawk, 1 Dall. 357 (1788), semble. 

The right is in the citizens as individuals and not in the state under its 
power of eminent domain, but while it is sometimes exercised by them as 
such, Conwell v. Emrie, 2 Ind. 35 (1850), it is more usually exercised by 
local authorities. Dewey v. White, M. & M. 56 (1827) ; Surocco v. Geary, 3 
Cal. 69 (1853) ; Bishop v. Mayor, 7 Ga. 200 (1849), Field v. Des Moines, 39 
Iowa 575 (1874), McDonald v. Red Wing, 13 Minn. 38 (1868). Its exer- 
cise is sometimes committed by statute to the discretion of the municipal 
authorities; as to the effect of such statutes, see American Printing Co. v. 
Lawrence, 23 N. J. L. 9 (N. J. 1847) ; Mayor v. Lord, 17 Wend. 285, 18 
Wend. 126 (N. Y. 1837), holding that they are not in exercise of the power 
of eminent domain, and Hale v. Lawrence, 1 Zab. 714 (N. J. 1848), holding 
that they are. 

In Bishop v. Mayor, 7 Ga. 200 (1849), it is held that the person whose 
property is destroyed is by common law entitled to compensation from those 
whose property is thus preserved, see Mouse's Case, cited in principal case. 

The right of destruction is not limited to the prevention of the spread 
of fire, it exists whenever there is a great and imminent and far-reaching 
danger to persons or property; so in Dewey v. White, M. & M. 56 (1827), 
firemen were held justified in tearing down ruinous chimneys, which were 
in danger of falling into the adjacent highway, in Newcomb v. Tisdale, 62 
Cal. 575 (1881), it was held that a levee might be cut to prevent a general 
inundation, though the plaintiff's land was thereby flooded; and see Meeker 
V. Van Rensselaer, 15 Wend. 397 (N. Y. 1836), and Fields v. Stokley, 99 
Pa. St. 306 (1882), and in Harman v Lynchburg, 33 Grat. 37 (Va. 1880), it 
was held that the police might destroy whiskey at a time when the town was 
full of disbanded troops; but see Reed v. Bias, 8 Watts & Serg. 189 (Pa. 
1844), where it was held that the tearing down of a building which excited 
the wrath of a mob was not a justifiable means of avoiding mob violence. 



PLOOF V. PUTNAM. 9I9 

away the plaintiff's casket and its contents. It appeared that the 
ferryman of Gravesend took forty-seven passengers into his barge 
to pass to London, among whom were the plaintiff and defendant ; 
and the barge being put upon the water a great tempest happened, 
and a strong wind, so that the barge and all the passengers were in 
danger of being lost if certain ponderous things were not cast out, 
and the defendant thereupon cast out the plaintiff's casket. It was 
resolved that in case of necessity, to save the lives of the passengers, 
it was lawful for the defendant, being a passenger, to cast the 
plaintiff's casket out of the barge; that if the ferryman surcharge 
the barge the owner shall have his remedy upon the surcharge 
against the ferryman, but that if there be no surcharge, and the 
danger accrue only by the act of God, as by tempest, without fault 
of the ferryman, every one ought to bear his loss, to safeguard the 
life of man. 

It is clear that an entry upon the land of another may be justi- 
fied by necessity, and that the declaration before us discloses a ne- 
cessity for mooring the sloop. But the defendant questions the 
sufficiency of the counts because they do not negative the existence 
of natural objects to which the plaintiff could have moored with 
equal safety. The allegations are, in substance, that the stress of 
a sudden and violent tempest compelled the plaintiff to moor to 
defendant's dock to save his sloop and the people in it. The aver- 
ment of necessity is complete, for it covers not only the necessity 
of mooring, but the necessity of mooring to the dock; and the de- 
tails of the situation which created this necessity, whatever the 
legal requirements regarding them, are matters of proof and need 
not be alleged. It is certain that the rule suggested cannot be held 
applicable irrespective of circumstances, and the question must be 
left for adjudication upon proceedings had with reference to the 
evidence or the charge. 

The defendant insists that the counts are defective in that 
they fail to show that the servant, in casting off the rope, was act- 
ing within the scope of his employment. It is said that the allega- 
tion that the island and dock were in charge of the servant does 
not imply authority to do an unlawful act ; and that the allegations 
as a whole fairly indicate that the servant unmoored the sloop 
for a wrongful purpose of his own, and not by virtue of any gen-: 
eral authority or special instruction received from the defendant. 
But we think the counts are sufficient in this respect. The allega- 
tion is that the defendant did this by his servant. The words "wil- 
fully and designedly" in one count, and "negligently, carelessly and 
wrongfully" in the other, are not applied to the servant, but to the 
defendant acting through the servant. The necessary implication 
is that the servant was acting within the scope of his employment. 
13 Ency. PI. & Pr. 922 ; Voegeli v. Picket Marble, etc., Co., 49 Mo. 
App. 643; Wabash Ry. Co. v. Savage, no Ind. 156, 9 N. E. 85. 



920 NEWTON V. HARLAND. 

See also, Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. 
Rep. 125. 

Judgment affirmed and cause remanded.^ 



CHAPTER II. 

Self Help. 



(a) Re-entry upon real property. 

NEWTON V. HARLAND. 
Court of Common Pleas, 1840. 1 Manning &■ Granger's Reports, 644. 

Trespass for assault and battery. 

The plaintiff and his wife declare for an assault on the wife 
and forcing her into the street, and the defendants justify by reason 
of the landlord (one of the defendants) being in the lawful pos- 
session of the house and the wife of the tenant "being unlawfully 
therein and disturbing him in his enjoyment thereof, whereupon 
they gently put out the wife, who had refused when requested to 
depart from the same." ^ 

The cause was tried before Parke B. at the Summer assizes for 
the county of York, 1837. The facts were not very clearly ascer- 
tained at this trial, but as they ultimately appeared at the subsequent 
trials they were as follows: The plaintiff, A. Newton, on the ist of 
September 1836, hired of the defendant Harland, for the period 
of six months, several rooms in a house which Harland occupied at 
Studley, near Ripon, in the county of York. The six months ex- 
pired on the 1st of March 1837, ^^^ the rent not having been 
paid, Harland on the following day, and the other defendant Bailey 
as his assistant, distrained the goods of the plaintiff A. Newton, and 
Mrs. Newton having locked the doors of the rooms, and refused 
to give up the keys, Harland employed a blacksmith to pick the 
locks. In the evening of the same day Mrs. Newton was requested 
to quit the premises, and having refused, Harland again entered 
the rooms, accompanied by four or five persons, and compelled Mrs. 
Newton and her children and servants to leave the apartments, 
Harland himself laying hold of Mrs. Newton's arm, and leading 
her out. 

Upon the facts as proved at the first trial, Parke B. told the 

^In Vincent v. Lake Erie Transportation Co., 109 Minn. 456 (1910), it 
was held that though such use of a dock might not be an actionable tres- 
pass, if no damage resulted, yet the defendant deliberately using another's 
property for his own protection, without the owner's permission, must an- 
swer for any damage which he does. 

^ The statement of the pleadings is taken from the second opinion of Tin- 
dal, C. J. 



NEWTON V. HARLAND. 921 

jury that the second plea was made out, and directed them to find 
the issue raised by that plea for the defendants. The jury having, 
in pursuance of this direction, found their verdict on the second 
issue for the defendants. 

TiNDAL, C. J. It seems to me that the cause must go down 
again to a new trial, in order that the facts with respect to the time 
and the manner of the entry by the defendants may be more pre- 
cisely ascertained, and the matter placed in such a shape as will en- 
able either party, if so advised, to obtain the judgment of a court 
of error upon the point. 

The cause was again tried before Alderson B. at the York- 
shire Simimer assizes, 1838. The facts having been given in evi- 
dence, and Hillary v. Gay, 6 C. & P. 284, cited on the part of the 
plaintiffs, the learned Baron told the jury that the question of justi- 
fication was a mixed question of law and fact ; that where a part 
of a house is let for a certain period, and the tenant refuses to quit 
at the expiration of the term, his license to remain ceases, and the 
landlord is entitled to turn him out, using no unnecessary violence. 
That, with respect to the second issue, the questions for the jury 
to consider were, whether the apartments had been hired by the 
plaintiff A. Newton for a certain time which had expired, and 
whether Mrs. Newton, on bejng required to quit, had refused to do 
so. The learned baron said that, if these facts were made out to 
their satisfaction, they must find for the defendants on the second 
issue ; but lest the Court of Common Pleas should not agree in opin- 
ion with him, his lordship directed the jury to assess the damage 
upon that issue contingently. 

The jury returned their verdict for the plaintiffs on the first 
issue, and for the defendants on the second, and they assessed the 
contingent damages at £100. 

Warren, in Michaelmas term, 1837, in pursuance of leave re- 
served to him at the trial, moved to enter a verdict for the plain- 
tifl^s on the second issue for the damages assessed by the jury, or 
for a new trial on the ground of misdirection. The court refused 
a rule to enter a verdict for the plaintiff on the second issue for the 
damages contingently assessed, as the defendants had not consented 
to the assessment, but granted a rule for a new trial. 

The court, which was composed of Tindal, C. J., and 
Vaughan, Coltman and Erskine, JJ., took time to consider ; but 
Mr. Justice Vaughan dying, and Mr. Justice Coltman differing 
in opinion from the Lord Chief Justice and Mr. Justice, Erskine, 
the court desired that the case might be re-argued. It was accord- 
ingly again argued in Easter term last, before Tindal, C. J., and 
Bosanquet, Coltman and Erskine, JJ. 

Tindal, C. J. This case involves a question of great importance 
and one of very general application, namely, whether, after a ten- 
ancy has been determined by a notice to quit, the landlord may enter 
on the premises whilst the tenant still remains personally in pos- 
session, and after requesting him to depart and give up the posses- 
sion, and his refusing so to do, may turn him out of possession by 



922 NEWTON V. HARLAND. 

force, using as much force and no more than is necessary for that 
purpose. Upon the pleadings in this case the plaintiff and his wife 
declare for an assault on the wife, and forcing her into the street; 
and the defendants justify by reason of the landlord being in the 
lawful possession of the house, and the wife of the tenant being un- 
lawfully therein, and disturbing him in his enjoyment thereof, 
whereupon they gently put out the wife, who had refused, when 
requested, to depart from the same. 

The point above stated must be necessarily determined before 
this case is ultimately decided. It appears, however, to me, that 
such question cannot, upon the present finding of the jury, be prop- 
erly brought before us; but that*' there is a preliminary question 
which must be first ascertained, namely, whether, upon the facts 
in this case, the landlord entered upon the premises in a forcible 
manner, against the provisions and enactments of the statutes made 
against forcible entry, or, at all events, so as to render himself liable 
to an indictment at common law. For if the landlord, in making his 
entry upon the tenant, has been guilty either of a breach of a posi- 
tive statute, or of an offense against the common law, it appears 
to me that such violation of the law in making the entry causes the 
possession thereby obtained to be illegal; and that the allegation 
in the plea that one of the defendants >vas lawfully in possession at 
the time the assault was committed, is negatived. 

In the present case the defendant Harland, accompanied with 
five other rhen, entered into the apartments which had been in the 
plaintiff's occupation, whilst his wife still remained in possession, 
under circumstances which, at least, leave it as a question for the 
jury to determine, with proper directions from the judge at the trial 
of the cause, whether such entry was forcible or not. The case, 
indeed, was sent down by the court to a second trial for the ex- 
press purpose of the jury finding this point, either in the negative 
or the affirmative. The point, however, has not been left to them ; 
and I think, upon this ground, without entering into any discussion 
of the question to which I have above adverted, on which I forbear 
at present to state my opinion, that the cause should go down to 
another trial. 

BosANQUET, J. I agree with my Lord Chief Justice in thinking 
that a new trial ought to be granted in this case. Some things are 
clear. If a tenant hold over the land after the expiration of his 
term, he cannot treat the lessor who enters peaceably as- a tres- 
passer ; and the lessor, in such case, may justify his own entry upon 
the land by virtue of his title to the possession. Taylor v. Cole, 3 T. 
R. 295 ; Taunton v., Costar, 7 T. R. 431. On the other hand, thel 
lessor, who is out of possession, cannot maintain an action of tres- 
pass against the tenant holding over. He must first acquire a lawful 
possession before he can maintain such action. But if the lessor 
enter upon the land to take possession, he may treat as trespassers 
all those who afterwards come upon it ; //^y v. Moorhouse, 6 New 
Cases, 52; 8 Scott 156; or who, having unlawfully taken possession, 
wrongfully continue upon the land, as in the case of Butcher v. 



NEWTON V. HARLAND. 923 

Butcher, 7 B. & C. 399, where the defendant had come into posses- 
sion of the land by intrusion, and the rightful owner, having en- 
tered, was held entitled to maintain an action of trespass against 
him. 

The lessor may even break and enter a house, provided it be 
empty, which has been occupied and held over by his tenant, though 
the tenant may have left some of his property therein. Turner v. 
Meymott, i Bing. 158. But no case has yet been decided in which 
the lessor has been held to be justified in expelling by force from a 
dwelling house a person who, having lawfully come into possession 
of it, has merely continued to hold possession after the expiration 
of his title. 

The lessor who is entitled to possession may acquire such pos- 
session by lawful entry; but entry by force is not lawful. Such 
entry is expressly prohibited by the statute 5 Rich. II, c. 7, even 
where entry is given by law : "The king def endeth that none shall 
make entry on lands and tenements but in cases where entry is 
given by law ; and in that case not with strong hand nor with multi- 
tude of people, but only in a peaceable and easy manner." 

It was said in one case by Lord Kenyon, Taunton V. Costar, 7 
T. R. 431, that if the party had entered and expelled the tenant by 
force, he might have been indicted for a forcible entry ; from which 
it seems to have been supposed that the entry was valid, though the 
party entering might be indicted for it. But if the act be expressly 
prohibited by statute, it must, I apprehend, be illegal and void. If 
the lessor enter with a strong hand, his act is unlawful, and he can- 
not, as it seems to me, acquire lawful possession by an unlawful act. 

This is an action for assault and battery. The defendant Har- 
land justifies his act upon the ground that he was lawfully in pos- 
session ; that the plaintiff Mrs. Newton was on the premises, was 
required to go away, and refused, whereupon he removed her in 
defense of his possession, using no more force than was necessary. 
To maintain this plea the defendants must be prepared to show that 
the defendant Harland had lawfully acquired possession, which, 
from the reason already stated, I think he had not, if force was em- 
ployed to obtain it. 

It is quite unnecessary to say whether, if the defendant had 
quietly entered and obtained possession of the house while the plain- 
tiff's wife remained in possession of her apartment, he could have 
justified turning her out by force.- The passage referred to in Ba- 
con's Abr., tit. Forcible Entry and Detainer (B), treats the force 
employed in turning a party out as making the original entry, 
though peaceable, a forcible entry within the meaning of the statute. 

In the present case there was evidence tending to show that the 
entry of the defendant was made with a strong hand, and accom- 
panied with such acts of violence as to bring the case within the 
prohibition of the statute of 5 Rich. II. But this evidence appears 
to have been considered by the learned judge as immaterial, for he 



= See Edwich v. Hawkes, 18 Ch. Div. 199 (1881). 



924 NEWTON V. HARLAND. 

said the only questions were, whether the rooms were let for a cer- 
tain term, whether the term was over, and, if so, whether the plain- 
tiff, when required, would not go out. If that was proved, he said, 
the verdict in law must be for the defendant. 

The direction appears to me to be incorrect, and that there 
ought therefore to be a new trial. 

CoLTMANj J. Having the misfortune in this case to differ from 
the rest of the court, it is right that I should state the grounds of 
my opinion ; but as the case will go to a new trial, and the question 
may be raised in a more formal way on the record, it will be sufificient 
to state them very briefly. 

The law of England recognizeg two modes of asserting the right 
to lands wrongfully withheld, — ^by entry and by action. 

Iri the cases in which the remedy by entry was allowed, where, 
to use' the phrase so familiarly met with in our old books, the entry 
is congeable, the remedy by entry was looked upon as favorably as 
the remedy by action. The effect of such entry is, that it gives a 
man seisin, or puts into immediate possession him that has right of 
entry on the estate, and thereby makes him complete owner ; 3 Bla. 
Comm. 176. Agreeably to this, Mr. Justice Bayley said, in the case 
of Butcher v. Butcher, 7 B. & C. 399, "I think that a party having 
the right to land acquires by entry the lawful possession of it, and 
may maintain trespass against any person who, being in possession 
at the time of the entry, wrongfully continues on the land." 

I am not aware that any doubt exists, that after the entry made, 
he may turn any ordinary trespasser off the land ; and I am unable 
to see any principle which should prevent him from treating his 
tenant at sufferance in the same way, for such a tenant is a mere 
wrongdoer : Co. Lit. 57b, Pike and Hassen's case, 3 Leon. 233, Sir 
Moil Finche's case, 2 Leon. 143. 

But it is said that a person who has a right of entry ought to 
enter peaceably. The true doctrine on this subject is stated, as I 
apprehend, correctly, in the case of Taylor v. Cole, 3 T. R. 295, 
where it is said: "It is true, persons having only a right are not 
to assert that right by force ; if any violence is used it becomes the 
subject of a criminal prosecution." So, in Taunton v. Costar, 7 T. 
R. 431, it is said: "If the landlord had entered with a strong hand 
to dispossess the tenant by force, he might have been indicted for 
a forcible entry; but there can be no doubt of his right to enter 
upon the land at the expiration of the term." 

For the preservation of the peace, the law will punish for the 
forcible entry ; but the tenant at sufferance being himself a wrong- 
doer, ought not to be heard to complain in a civil action for that 
which is the result of his own misconduct and injustice. 

The distinction between the civil rights of a person forcibly 
turned out of the possession of land, and the penal sanctions by 
which he Is protected from being forcibly dispossessed, are drawn 
in a marked way in the cases in our old books relating to the 
statutes of forcible entry. Although, by those statutes, all forcible 
entries were prohibited, even by those who had title to enter, yet 



NEWTON V. HARLAND. 925 

the party dispossessed could maintain no action on the statutes. 
This ispointedly laid down in the Year Book, 9 H. 6, 19, 15 H. 7, 17, 
F. N. B. 248 H., vide post 669. 

On these grounds I am of opinion that, although the defendant, 
if guilty of a forcible entry, is responsible for it in the way of a 
criminal prosecution, yet that as against the plaintiffs, who are 
wrongdoers, and altogether without title, he has obtained by his 
entry a lawful possession, and may justify in a civil action the re- 
moving them, in like manner as in the case of any other trespasser.^ 

Erskine, J. There are, it is true, many cases, some of which 
were cited at the argument, in which it has been held that no action 
for trespass, quare clausum fregit, will lie at the suit of a tenant 
against the landlord for a forcible entry after the expiration of the 
term. The earlier authorities upon this point are collected in Dal- 
ton's Justice, c. 129, p. 431, and the same doctrine is clearly estab- 
lished by the cases of Taylor v. Cole, 3 T. R. 292, Taunton v. Cos- 

' Accord: Pollen v. Brewer, 7 C. B. (N. S.) 371 (1859) ; Beatiie v. Mair, 
L. R. 10 Irish 208 (1882) ; Tribble v. Frame, 7 J. J. Marsh. 599 (Ky. 1834), 
semble; Sampson v. Henry, 13 Pick. 36 (Mass. 1832), though it was held that 
an action would lie for personal injuries inflicted during the eviction; but see 
Low V. Elwell, 121 Mass. 309 (1876) ; Curtis v. Galvin, 1 Allen 215 (Mass. 
1861); Coughlin v. Gray, 131 Mass. 56 (1881), semble; Fuhr v. Dean, 
26 Mo. 116 (1857) ; Sterling v. Warden, 51 N. H. 217 (1871) ; Hyatt v. 
Wood, 4 Johns. 150 (N. Y. 1809) ; Overdeer v. Lewis, 1 W. & S. 90 (Pa. 
1841) ; and Adams v. Adams, 7 Phila. 160 (Pa. 1869), though this is held in 
Frick v. Fiscus, 164 Pa. St. 623 (1891), to apply only when the plaintifif is the 
defendant's tenant at will; Rush v. Aiken Mfg. Co., 58 S. Car. 145 (1900) ; 
Roberts v. Tarver, 1 Lea 441 (Tenn. 1878). 

Contra: Larkin v. Avery, 23 Conn. 304 (1854), semble; Entelman v. Ha- 
good, 95 Ga. 390 (1894) ; Moore v. Boyd, 24 Maine 242 (1844) ; Emerson v. 
Sturgeon, 59 Mo. 404 (1875), compare Fuhr v. Dean, 26 Mo. 116 (1857); 
Frick V. Fiscus, 164 Pa. St. 623 (1891), a mortgagor in possession may main- 
tain trespass quare clausum fregit against a purchaser at sheriff's sale under 
the mortgage if the latter forcibly dispossess him; but see Coughlin v. Gray, 
131 Mass. 56 (1881), contra; Dustin v. Cowdry, 23 Vt. 631 (1851) ; Whitta- 
ker V. Perry, 38 Vt. 107 (1865). 

In Reeder v. Purdy, 41 111. 279 (1866), it is held that while trespass quare 
clausum fregit lies in such case, yet only nominal or punitive damages can be 
recovered, compensatory damages being allowed only for the attendant injury 
to the plaintiff's person or personal property; accord: Dearlove v. Harring- 
ton, 70 111. 251 (1873) ; Mosseler v. Beaver, 106 N. Car. 494 (1890) ; while in 
McDonald v. Lightfoot, Morris 450 (Iowa, 1845), it was held that the fact 
that the defendant had the right to enter, while no defense in trespass quare 
clausum fregit, could be shown in mitigation of the damages. So trespass de 
bonis asportatis will not lie for the loss of the wrongful possession of 
property, though forcibly retaken by the owner. Mills v. Wooters, 59 111. 
234 (1871) ; Cleveland, Cincinnati & St. L. R. Co. v. Moline Plow Co., 13 
Ind. App. 225 (1895), nor can such a taking constitute special damage, Beattie 
V. Mair, L. R. 10 Ir. 208 (1882). If the wrongful taker has incorporated 
the chattel with his own from which it cannot be separated without injury 
thereto, the true owner may none the less retake it peaceably without liability 
for the necessary injury to the wrongdoer's property. White v. Twitchell, 25 
Vt. 620 (1853), in which it was further held that the owner need not notify 
the wrongdoer of the retaking, though it made the structure from which it 
was taken unsafe for use, and was not liable for personal injury to the 
wrongful taker due to his using the structure in ignorance of the change in 
its condition, but see Corby v. Hill, ante. 



926 NEWTON V. HARLAND. 

tar, 7 T. R. 431, Argent v. Durrani, 8 T. R. 403, Turner v. Mey- 
mott, I Bingh. 158, 7 Moore, 574. But then the reason for this is 
also given, namely, that the plaintiff, having no title to the posses- 
sion as against the landlord, can have no right of action against 
him as a trespasser for entering upon his own land, even with a 
force, for, although the law had been violated by the defendant, for 
which he was liable to be punished under a criminal prosecution, 
no right of the plaintiff had been infringed, and no injury had been 
sustained by him for which he could be entitled to compensation 
in damages. 

But in the case now before the court the plaintiffs do not seek 
to recover damages for any supposed trespass upon their posses- 
sion of the rooms ; but they seek a compensation for a personal 
injury, and they deny that the defendant had by his entry entitled 
himself to treat them as trespassers. 

By the 5 R. 2 stat. i. c. 8., it is enacted, "that none from hence- 
forth make any entry into any lands and tenements but in case when 
entry is given by law, and in such case with strong hand, nor with 
multitude of people, but only in peaceable and easy manner." It is 
true that the punishment of fine and imprisonment is expressly 
added as the statutable consequence of a violation of this prohibi- 
tion. Yet, inasmuch as the act is directly prohibited, the act itself 
is made unlawful, even if it were not already so at common law; 
and it seems to me, therefore, to follow as a consequence that a 
landlord, under the circumstances of this case, though he has a right 
of entry, must, in order to reinvest himself with the lawful posses- 
sion of premises held over by his tenant, exercise his right of entry 
peaceably; and that he cannot found a legal right to remove the 
tenant upon the illegal act of a forcible possession. 

And this opinion is much fortified by the various provisions 
made by the legislature to facilitate the recovery of premises 
wrongfully held over by tenants after the expiration of their terms, 
and especially by stat. i G. 4, c. 87, i & 2 Vict. c. 74, and 56 G. 
3, c. 88, for Ireland ; and I cannot but apprehend that, if it were once 
established at law that a landlord might, in all cases where his ten- 
ant holds over, enter by force upon the premises and expel the 
tenant, and thereby subject himself to no greater risk than the peril 
of an indictment for a forcible entry, under which no restitution 
could be awarded, the peace of the country would be endangered 
by the frequent resort to their summary proceedings ; and there- 
fore, though I have entertained much doubt upon the point, I am 
anxious that this question should be placed in such a shape as may 
bring it under the consideration of all the judges, which will prob- 
ably be the result of sending the case down to a new trial. 

I am of opinion, therefore, for the reasons which I have al- 
ready given, that the rule for a new trial should be made absolute. 

Rule absolute.* 



*The later English cases are accord, notwithstanding the dicta of Parke 
and Alderson BB. in Harvey v. Brydges, 14 M. & W. 437 (1845), in which 
they adhere to the opinions expressed by them as trial judges in Newton v. 



BLADES V. HIGGS. 927 

(b) Recaption of personal property. 



BLADES V. HIGGS. 
Court of Common Pleas, 1861. 10 Common Bench Reports (N. S.), 713. 

The declaration charged that the defendants assaulted and beat 
and pushed about the plaintiff, and took from him his goods, that 
is to say, dead rabbits. 

The defendants pleaded, amongst other pleas, — thirdly, as to 
the assaulting, beating, and pushing about the plaintifif, that the 
plaintiff, at the said time then, &c., had wrongfully in his posses- 
sion certain dead rabbits of and belonging to the Marquis of Exeter ; 
that the said rabbits were then ia the possession of the plaintiff 
without the leave and license and against the will of the said mar- 

Harland, and express disapproval of the action of the Court in Banc. In Bed- 
dall V. Maitland, L. R. 17 Ch. Div. 174 (1881), Fry, J., held that while an occu- 
pant of another's premises by the latter's permission, who retained possession 
after the permission was withdrawn, could not recover damages for his forci- 
ble eviction (his possession being unlawful), he might recover for injuries 
to his furniture in removing it, since such removal could only be justified 
by a lawful possession, which was not gained by the forcible evictor, see ac- 
cord, Millar v. Long, 75 L. T. 728 (1883), where it was held that the dispos- 
sessed occupant could recover for injury done to his chattels ; but see Beattie 
V. Mair, L. R. 10 Ir. 208 (1882), to the effect that he cannot recover for the 
asportation or injury to chattels owned by the defendant. In Edwick v. 
Hawkes, 18 Ch. Div. 199 (1881), a landlord, having a right of entry which 
he might have enforced by proper means, having peaceably entered the prem- 
ises wrongfully held by his tenant, was held liable for an assault committed 
in forcibly expelling the tenant's wife therefrom, such subsequent conduct 
making the entry, though otherwise peaceable, a forcible entry. 

These later cases, says Sir Frederick Pollock, Law of Torts, 9th Ed. 
397, "makes the ingenious distinction — certainly not made by the majority 
(in Newton v. Harland) — of collateral wrongs from the forcible eviction 
itself"; but see Edwick v. Hawkes, 18 Ch. Div. 199 (1881), where the assault 
was the very violence which made the entry, otherwise peaceable and lawful, 
illegal as a forcible entry. 

Where it is held that one, forcibly ousted from his wrongful possession 
by the owner, having the right of entry, may maintain trespass quare clausum 
fregit, see note 2, supra, a fortiori, he can recover for injuries to his person 
or the removal or injury to his chattels, either as aggravation of the trespass 
or in an action of assault and battery or trespass de bonis asportatis. 

In some jurisdictions in which it is either held that no action of trespass 
quare clausum fregit lies, or where the point has not been decided, it is held 
that an action may be maintained for injuries to the person or for the removal 
of or injury to chattels; Denver &• R. G. R. Co. v. Harris, 122 U. S. 597 
(1886) ; Hyatt v. Wood. 4 Johns. ISO (N. Y. 1809), p. 160; Bristor v. Burr, 
120 N. Y. 427 (1890) ; Pitford v. Armstrong, Wright 94 (Ohio, 1832) ; and 
see Sampson v. Henry, 13 Pick. 36 (Mass. 1832) ; and, for a valuable critical 
review for the cases upon the whole subject prior to 1870, see 2 Am. L. Rev. 
429. 

Though one has by irrevocable license, express or implied, the right to 
enter another's premises to recover his chaattels or to take possession of his 
property situate thereon, he cannot justify an assault to overcome resistance 
to the immediate exercise of such license, Churchill v. Hulbert, 110 Mass. 42 
(1872^ ; Drury v. Hervey, 126 Mass. 519 (1879) ; Fredericksen v. Singer Mfg. 
Co., 38 Minn. 356 (1888). 



928 BLADES V. HIGGS. 

quis; and that the plaintiff was about wrongfully and unlawfully 
to take and carry away the said rabbits and convert the same to his 
own use; whereupon the defendants, as the servants of the mar- 
quis, and by his command, requested the plaintiff to refrain from 
carrying away and converting the same rabbits, and to quit pos- 
session thereof to the defendants as such servants, which the plain- 
tiff refused to do; and that thereupon the defendants, as the serv- 
ants of the said marquis, and by his command, gently laid their 
hands upon the plaintiff, and took the said rabbits from him, using 
no more force than necessary; which were the alleged trespasses 
in the declaration mentioned, &c. Demurrer and joinder. 

Erle, C. J. The declaration was in this case for an assault 
and battery. The substance of the justification was, that, the plain- 
tiff having wrongfully in his possession rabbits belonging to the 
defendants (we consider the servants here the same as the master), 
and being about to carry them away, the defendants requested him 
to refrain, and, on his refusal, mollitur mones imposuerunt, and 
used no more force than was necessary to take the rabbits from 
him. To this the plaintiff has demurred, and thereby admits that 
he was doing the wrong, and that the defendants were maintaining 
the right, as alleged : and he contends they are not justified in using 
necessary force, on account of the danger to the public peace: but 
he adduces no authority to support his contention. The defendants 
likewise have failed to adduce any case where the justification was 
supported without an allegation to explain how the plaintiff took 
the property of the defendant and became the holder thereof.^ But 
the principles of law are in our judgments decisive to show that 
the plea is good, although that allegation is not made. 

If the defendants had actual possession of the chattels, and 
the plaintiff took them from them against their will, it is not dis- 
puted that the defendants might justify using the force sufficient 
to defend their right and retake the chattels: and we think there 
is no substantial distinction between that case and the present ; 
for, if the defendants were the owners of the chattels, and entitled 
to possession of them, and the plaintiff wrongfully detained them 
from them after request, the defendants in law would have the pos- 
session,^ and the plaintiff's wrongful detention against the request 
of the defendants would be the same violation of the right of prop- 
erty as the taking of the chattels out of the actual possession of the 
owner. 

It has been decided that the owner of land entitled to the pos- 
session may enter thereon and use force sufficient to remove a 
wrongdoer therefrom. In respect of land, as well as chattels, the 

^In Anon., Keilwey 92, pi. 4 (1506), the plaintiff having refused to give 
up a horse which he had taken from the defendant's possession (how long 
before does not appear) the defendant said if the plaintiff did not return it 
he would take it in spite of him, and taking up a staff came towards the plain- 
tiff, this was held an assault justifiable. 

= So in Hodgeden v. Hubbard. 18 Vt. 504 (1846), the plaintiff, who had 
obtained a stove by fraud, was held to have gained no lawful possession 
thereby. 



BOWMAN V. BROWN. 929 

wrongdoers have argued that they ought to be allowed to keep 
what they are wrongfully holding, and that the owner cannot use 
force to defend his property, but must bring his action, lest the 
peace should be endangered if force was justified: see Newton v. 
Harland, i M. & G. 644, i Scott N. R. 474. But, in respect of land, 
that argument has been overruled in Harvey v. Brydges, 14 M. & 
W. 442. Parke, B., says: "where a breach of the peace is com- 
mitted by a freeholder, who, in order to get possession of his land, 
assaults a person wrongfully holding possession of it against his 
will, although the freeholder may be responsible to the public in the 
shape of an indictment for a forcible entry, he is not liable to the 
other party. I cannot see how it is possible to doubt that it is a 
perfectly good justification to say that the plaintiflf was in possession 
of the land against the will of the defendant, who was owner, and 
that he entered upon it accordingly; even though in so doing a 
breach of the peace was committed." 

In our opinion, all that is so said of the right- of property in 
land, applies in principle to a right of property in a chattel, and 
supports the present justification. If the owner was compellable 
by law to seek redress by action for a violation of his right of 
property, the remedy would be often worse than the mischief, and 
the law would aggravate the injury instead of redressing it.^ 

For these reasons, our judgment is for the defendants. 

Judgment for the defendants.* 



BOWMAN V. BROWN AND HALL. 

Supreme Court of Vermont, 1882. SS Vermont Reports, 184. 

Trespass. The third count was for assault and battery. Plea, 
general issue. Trial by court, Windsor County, May Term, 1881, 
Taft, J., presiding. Judgment for the plaintiff. 

' "If a man meetg another in the highway, and by false and fraudulent 
misrepresentation induced that other to surrender to him the possession of 
his horse and carriage, and when he has so obtained possession, shows a dif- 
ferent purpose, by word or act, to appropriate it to his own use, and to escape 
with it, surely it will not be held the person so deprived of property is com- 
pelled to stand with folded arms and see the fellow so escape beyond the 
reach of the law, or a hope of a restitution of his property, or be guilty of a 
violation of law in attempting to recover possession." — Turney, J., in Ander- 
son &■ Austin v. State, 6 Baxter 608 (Tenn. 1872). 

* Hopkins v. Dickson, 59 N. H. 235 (1879), the property had been wrong- 
fully taken, how long before not stated, from the defendant's possession ; 
Sterling v. Warden, 51 N. H. 217 (1871), a postmaster forcibly took posses- 
sion of post-office property, wrongfully withheld by his predecessor. The 
right of an owner to forcibly retake his chattel, wrongfully taken or with- 
held from him, is stated broadly and without qualification in Baldwin v. Hay- 
den, 6 Conn. 453 {\W) ; Barr v. Post, 56 Nebr. 698 (1898), semhle; and 
Winter v. Atkinson, 92 111. App. 162 (1900), though there the effort to retake 
the goods was made immediately upon the plaintiff's refusal to give them up. 
In Winter v. Atkinson, 92 111. App. 162 (1900), a master was held entitled to 
retake by force, from a servant about to leave his employment, a book con- 
taining a list of customers, which had been entrusted to the servant for 



930 BOWMAN V. BROWN. 

It appeared on trial that the defendant's cow was kept in a 
pasture near the plaintiff's enclosure, with an arable field between 
the pasture and enclosure ; that there was a fence between the field 
and pasture, but by agreement of the owners none between the 
field and said enclosure; that the cow escaped into this field and 
thence on to the plaintiff's land, where he seized her, tied her to a 
post and was about to drive her to the pound, when said Hall, a 
servant of said Brown, and by his direction, forcibly took the cow 
from the plaintiff ; that said Brown, when he learned where his cow 
was, went to the plaintiff and proposed to pay for any damage that 
had been done by the cow ; that the plaintiff said all he wanted was 
that the defendant should take tbe cow and take care of her, but 
said Brown did not give him to understand that he would do so, 
but proceeded to untie the cow, and finally directed his servant. 
Hall, as stated above. The testimony was conflicting; but the court 
found that the plaintiff did not relinquish possession of the cow, 
of his intent to impound her, and that he was guilty of no unrea- 
sonable delay in carrying his design to impound her into execution ; 
and further found that the plaintiff in his attempt to retain posses- 
sion of the cow was injured in his person, by reason of the acts 
of the defendants, and suffered damages in consequence thereof 
to the amount of sixty dollars. 

Veazey, J. The recovery below was -had, under the count for 
assault and battery, for injuries received by the plaintiff while pro- 
ceeding to impound the cow of the defendant Brown and in resist- 
ing the assaults of the defendants in their efforts to rescue the cow. 
The defendants claimed they had the right to retake the cow and to 
use such force as was necessary for that purpose, for the alleged 
reason that under the facts found the plaintiff had no legal right 
to impound the cow. The plaintiff had not obtained possession 
wrongfully or with any fraudulent purpose. The cow was in his 
enclosure and he was proceeding to deal with it as he thought he 
had a right to do. Defendant's counsel insist that the rule is estab- 
lished in this state to the effect that a person who is out of pos- 
session may lawfully "fight himself" into legal possession. This 
rule has not been expressly adopted except in cases where the 



use in his service, and which the latter refused to give up, claiming it as 
his own. The facts in Barr v. Post, 56 Nebr. 698 (1898), were similar, in 
both cases the right of recaption from one wrongfully holding a chattel 
from the rightful owner is stated generally, but see the suggestion in Davis 
V. Whitridge, 2 Strob. 232 (S. Car. 1847), that as the possession of the serv- 
ant is the possession of the owner, his master, the latter has a right to 
forcible recaption against him, though he might not have such a right 
against a stranger wrongfully withholding possession; but, where the serv- 
ant claims the chattel as his own, it is held in Kirby v. Foster, 17 R. I. 
437 (1891), that the constructive possession of the master would cease and 
the servant's retention would be adverse and in his own right. The right 
of a master to retake his goods from a servant or workman to whom they 
have been entrusted for the purpose of the service or the work, and who 
wrongfully refuses to give them up upon demand, is denied in Monson v 
Lewis, 123 Wis. 583 (1905), and in Winter v. Beebe, 126 Wis. 379 (1905). 



GYRE V. CULVER. 



931 



owner was dispossessed by force or fraud^ and the pursuit was 
fresh.^ Hodgeden v. Hubbard, 18 Vt. 504. And such cases have 
been somewhat criticised but not overruled. Dustin v. Cowdry, et 
al, 23 Vt. 631. 

The judgment of the County Court is affirmed. 



GYRE V. CULVER. 

Supreme Court of New York, 1867. 47 Barbour's N. Y. Sup. Ct. Rep., 592. 

This is an appeal by the plaintifif from an order granting a new 
trial. The action was for assault and battery. The defense was 
that the plaintiff was trespassing on the defendant's land, or land 
of John Culver, of which he had charge as agent for the owner, 
stealing wood; that he ordered her off the premises; that she re- 

^ Accord: State v. Dooley, 121 Mo. 591 (1891), where the pursuit was 
in fact fresh, the court holding that forcible recaption is permissible, though 
not at the precise time and place of the wrongful taking; Shellaharger v. 
Morris, 115 Mo. App. 556 (1905), here the chattel, a straying chicken, was 
on the plaintiff's premises, and the right to enter such premises is also in- 
volved; Stanley v. Payne, 78 Vt. 235 (1905), where the defendant in giving 
up his tenancy of a farm, agreed with his landlord that a box of his should 
remain in the barn during the spring, and that he might remove it there- 
after. The plaintiff, who succeeded him as tenant, knew nothing of this 
agreement and when the defendant came to remove the box, refused to give 
it up till he had consulted the landlord, and, the defendant insisting on 
taking it, injured the plaintiff in the scuffle. 

In Kirhy v. Foster, 17 R. I. 437 (1891), the plaintiff was given money 
by the agent of his employer to pay off the latter's help, and acting under the 
advice of counsel, pocketed $50 to repay money which he claimed had 
been improperly deducted from his salary, and returned the balance, saying 
he was now paid and would leave. The defendants, the agent and a fellow- 
employe, thereupon seized him and in the struggle injured him. The court 
held that the right of forcible recaption existed only where there was "a 
purely wrongful taking or conversion, without a claim of right"; and in 
Sabre v. Mott, 88 Fed. 780i (Circ. Ct. of Vt. 1898), it was held that the de- 
fendant was not justified in using force, much less in committing an as- 
sault, to retake property which had been in the plaintiff's peaceable posses- 
sion for a day and "the title being in dispute." In many cases, however, 
forcible recaption has been allowed though the property had been taken 
or its return denied under a bona fide claim of title, Commonwealth v. Don- 
ahue, 148 Mass. 529 (1889), the facts of which are in substance similar to 
those in Kirby v. Foster, 17 R. I. 437 (1891) ; State v. Elliot, 11 N. H. 540 
(1841); State v. Dooley, 121 Mo. 591 (1894); Winter V. Atkinson, 92 111. 
App. 162 (1900); Hamilton v. Arnold, 116 Mich. 684 (1898), and Johnson 
V. Perry, 56 Vt. 703 (1884). In State v. Elliot and State v. Dooley, it is 
however, said that less force must be used when there is an honest claim 
of title than when the taking is felonious, while in Harris v. Marco, 16 
S. Car. 575 (1881), the court, while intimating that a man may resist the 
taking of his property within his view, though not in his manual possession, 
even by an assault and battery, if the taking be felonious or without claim of 
right, he may not commit a breach of the peace in an attempt to retake his 
property even taken within his view under a claim of right. 

"Acoord: Shellaharger v. Morris, 115 Mo. App. 556 (1905); State v. 
Elliot, 11 N. H. 540 (1841), p. 545; and see Sir Frederick Pollock's comment 
upon Blade v. Higgs, "but probably that case goes too far in allowing re- 
caption by force, except perhaps on fresh pursuit."— Law of Torts, 9th Ed. 
386, note (h), 399, note (g). 



932 GYRE V. CULVER. 

fused to go, that defendant thereupon ejected her, using no more 
force than was necessary — which is the assault and battery com- 
plained of. On the trial the defendant gave evidence tending to 
establish this defense. The court charged the jury "the defendant 
is strictly or technically liable to respond in this action. Any such 
interference with her person cannot be justified even if she was 
trespassing, &c." To this the defendant excepted. The defendant 
thereupon also requested the court to charge that if the plaintiff 
was trespassing upon the farm of the defendant's father at the 
time of the taking of the wood in question, and if on being required 
to leave the premises, the plaintiff refused, the defendant had a right 
to use sufficient force to eject her from the premises, and that if 
he used no more force than was sufficient for the purpose, the 
plaintiff was not entitled to recover. The court refused so to 
charge, and the defendant excepted. 

The court further charged the jury to "find for the plaintiff 
such a verdict as you think will be just and proper," and they 
found $ioo. 

Johnson, J. I am of the opinion that the new trial in this 
case was properly granted. Where one person has unlawfully en- 
tered upon the premises of another and possessed himself of the 
goods of the owner, such owner, or his agent, may surely, while 
upon his own premises, prevent the wrongdoer from taking such 
goods away, and may lawfully use so much force as may be neces- 
sary to retain his property and prevent its removal out of his cus- 
tody and beyond his reach. The law does not oblige the owner of 
property to stand idly by and see a thief or trespasser take his 
property from his premises, or limit him to mere verbal remon- 



So it is said by Holmes, J., in Commonwealth v. Donahue, 148 Mass. 
529 (1889), that "it is settled by ancient and modern authority that . . . 
a man may defend or regain his temporarily interrupted possession by the 
use of reasonable force, short of wounding or the employment of a dan- 
gerous weapon." This is quoted with approval in Hemingway v. Heming- 
ziiay, 58 Conn. 443 (1890). In the first case the defendant offered to rtturn 
goods purchased or to pay a sum less than that asked for them, the plaintiff 
accepted the lesser sum but immediately repudiated the condition and de- 
manded the balance, thereupon the defendant forcibly repossessed himself 
of the money. In the latter case the plaintiff, a director of a company, and 
as such entitled to access to its letter book, took memoranda from it for 
the benefit of a rival company, whereupon the defendant, the secretary, on 
the plaintiff's refusal to give it up, then and there took it from him by force. 

In the following cases in which the right of forcible recaption is rec- 
ognized without qualification, the possession was in fact only momentarily 
uninterrupted and the defendant tried to regain his property as soon as he 
knew that it was wrongfully taken or withheld, Baldwin v. Hayden. 6 Conn. 
453 (1827), plaintiff was carrying off a letter just before given to him to read; 
Re.x V. Milton, 1 M. & M. 107 (1827), plaintiff refused to give up a warrant 
which had been handed to him upon his request to see it; State v. Elliot, 11 
X. H. 540 (1841); Carter v. Sutherland, 52 Mich. 597 (1894) ; so in Wright 
V. Southern Express Co., 80 Fed. 85 (1897) ; Hadgeden v. Hubharjd, 18 Vt. 
504 (1846) ; Anderson & Austin v. State, 6 Baxter 608 (Tenn. 1872) ; Com- 
monwealth v. Donahue, 148 Mass. 529 (1889), the defendant sought to re- 
take his property as soon as he discovered the fraud by which it had been 
obtained or the repudiation of the condition upon which it had been given. 



GYRE V. CULVER. 933 

strance. He may act promptly, and whether he may use force or 
not in the first instance, and what degree of force, depends upon the 
exigency of the particular case.' The mere taking of the property 
by the owner, under such circumstances, from the custody of the 
wrongdoer, without other force or violence, would not constitute 
an assault and battery.^ If the taking, or the attempt to take, is 
resisted by the trespasser,^ and he persists in his attempts to retain 
possession, and carry the property off, then the owner may law- 
fully use so much additional force as may be necessary to prevent 
it. Such being the rule of law, both the charge and the refusal to 
charge as requested, were erroneous. The learned judge charged 
the jury that the defendant was not justifiable in using the force 
he, did, conceding his own version of the matter to be in all respects 
correct. The evidence was conflicting, and the difference between 
the plaintiff's version of the affair and that of the defendant was 
quite marked, if not wholly irreconcilable. But, upon the hypothesis 
of the entire correctness of the defendant's testimony, it clearly 
cannot be said, as matter of law, that any unnecessary or unjustifi- 
able force was used to prevent the removal of the property; espe- 
cially in view of the persistent efforts of the plaintiff to take the 
property away after it had been taken from her by the defendant. ■ 
The request to charge the jury embodied a proposition strictly in 
accordance with the law, as I understand the rule, and quite per- 
tinent to the case, upon the evidence. The exception to the refusal 
to so charge was well taken. The order granting a new trial must 
therefore be affirmed.* 



''Accord: Carter v. Sutherland, 52 Mich. 597 (1884); Mengedocht v. 
Van Dorn, 48 Nebr. 880 (1896) ; Kunkle v. State, 32 Ind. 220 (1869). The 
force must be reasonable and, unless the taking be felonious — State v. Doo- 
ley, 121 Mo. 591 (1894) — must stop short of wounding or the use of dan- 
gerous weapons, Commonwealth v. Donahue, 148 Mass. 529 (1889) ; Kunkle 
V. State, 32 Ind. 220 (1869). It is no defense to an action of false imprison- 
ment that the plaintiff was detained and imprisoned for the purpose of 
forcing him to give up the wrongful possession of the defendant's chattel, 
Harvey v. Mayne, Ir. Rep. 6 C. L. 417 (1872) ; Davis v. Whitridge, 2 Strob. 
232 (S. Car. 1847). 

"In Hodgeden v. Hubbard, 18 Vt. 504 (1846), emphasis is laid on the 
fact that "to obtain possession of the property in question, no violence to 
the person of the plaintiff was necessary, or required, unless from his re- 
sistance." It was not like property carried about the person, as a watch 
or monev; accord: State v. Elliot, 11 N. H. 540 (1841); Johnson v. Perry, 
56 Vt. 703 (1884). 

'"The person in wrongful possession has no right to resist the attempt 
of the defendant to regain his propertj'"; cases cited in Note 2, supra. But 
see Sims V. Reed, 12 B. Monr. 51 (1851), holding that one may use force 
to defend his peaceable though wrongful possession even against the owner. 

* Accord: Johnson v. Perry, 56 Vt. 703 (1884), the plaintiff had gone 
on the defendant's premises and taken slabs belonging to the latter and had 
loaded them upon his sled and was about to remove them, when the de- 
fendant interfered and threw the slabs from the sled, using such force 
as was necessary to overcome the plaintiff's opposition thereto ; Hamilton 
V. Arnold, 116 Mich. 684 (1898), the plaintiff had picked plums on land, 
found by the jury to belong to the defendant, but honestly claimed by the 
plaintiff's husband, and was attempting to carry them away; and see Winter 
v. Atkinson, 92 III. App 162 (1900), and Baldwin v. Hayden, 6 Conn. 453 
(1827). 



934 ANDRE V. JOHNSON. 

ANDRE V. JOHNSON. 
Supreme Court of Indiana, 1843. 6 Blackford's Ind. Reps., 375. 

Dewey, J. This was .an action of trespass by Johnson against 
Andre. The first count of the declaration alleges thai; the defendant 
assaulted the plaintiff, forced and pushed him with great violence 
off his horse, threw him down upon the ground, struck him violent- 
ly, and with great force, insult, and abuse, wrested the horse, sad- 
dle, and bridle of the plaintiff from his possession. The second 
count is for taking and carrying away the horse, saddle, and bridle 
of the plaintiff. 

The defendant pleaded, i. The general issue. 2. That the 
supposed trespasses in the first and second counts mentioned were 
one and the same, and not other or different trespasses ; that as to 
the force, &c., and all the supposed trespasses in the declaration men- 
tioned, except the forcing the plaintiff off his horse, pushing him 
down upon the ground, wresting the horse, saddle, and bridle from 
him, carrying them away, the defendant was not guilty, and put 
himself upon the country. And as to the residue of the supposed 
trespasses, actio non, because the horse was the property of the 
defendant; that the plaintiff, with his own saddle and bridle, was 
"tortiously" mounted upon the horse in a public street ; that the de- 
fendant requested him to dismount and give up the horse; that he 
refused ; whereupon the defendant, for the purpose of obtaining 
possession of the horse, "gently laid his hands upon the plaintiiF' 
and dismounted him; that the defendant took possession of the 
horse, and in so doing necessarily forced and pushed the plaintiff 
down upon the ground ; and that he necessarily removed the saddle 
and bridle to a small and convenient distance, (specifying the 
place), where he left them for the use of the plaintiff, doing them 
no needless injury; which were the same, &c. 

The plaintiff replied de injuria, &c., upon which there was 
issue. Verdict for the plaintiff. Motion for a new trial overruled, 
and judgment on the verdict. 

It is contended that the court erred in overruling the motion 
for a new trial. 

It appears by the record, that the plaintiff fully established by 
testimony the assault and battery as laid in the first count, except 
the striking of him by the defendant. Whether the defendant 
proved the facts set forth in his special plea we have not inquired, 
because if he did, they constituted no justification of that part of 
the assault and battery to which they refer. The plea shows no 
force on the part of the plaintiff in obtaining possession of the 
horse, nor at what time Ke obtained it. It simply states, in refer- 
ence to this matter, that he was tortiously possessed in a public 
street, and that he refused to give up the horse on the demand of 
the defendant. It is not lawful for the owner of property to take 
it from the peaceable though wrongful possession of another, by 



CHAMBERS V. BEDELL. 935 

means of violence upon his person ; the remedy lies in a resort to 
law, not- to force. ^ 3 Bl. Comm. 4. 



CHAMBERS v. BEDELL. 
Supreme Court of Pennsylvania, 1841. 2 Watts & Sergeant's Penn. Rep., 225. 

Error to the District Court of Allegheny county. 

Andrew Bedell against William Chambers and others. This 
was an action of trespass quare clausum fregit, in which the de- 
fendant pleaded not guilty. 

The parties were owners of adjoining tracts of land, and dis- 
puted about their partition line. The plaintiff cut a quantity ot 
rails upon the land in dispute, and hauled them to another part of 
his land, which was not in dispute. The defendant went there in 
the night and hauled the rails away, for which this action of tres- 
pass was brought. 

It appeared clearly on the trial that the land where the rails 
were cut belonged to the plaintiff. The court below, in answer to 
a point put by the defendants, instructed the jury, that whether 
the land belonged to the plaintiff or not, he was at least entitled to 
recover nominal damages; but that the evidence clearly and con- 
clusively established the plaintiff's title, and he was therefore en- 
titled to recover the value of the property taken in damages. 

Per curiam. It is 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 
it be put there without the fault or consent of either party, the 
owner of the chattel may enter and take it peaceably,^ after de- 



"■ Accord: Bohh v. Bosworth, 2 Littell's Selected Cases, 81 (Ky. 1808); 
Barnes v. MarUn. 15 Wis. 240 (1862) ; Bliss v. Johnson, 73 N. Y. 529 
(1878), semble; Street v. Sinclair, 71 Ala. 110 (1881), semble; Watson v. 
Rinderknecht, 82 Minn. 235 (1901); and see Stanley v. Payne, 78 Vt. 235 
(1905), though there neither the original possession nor the detention, that 
of a bailee pending consultation with his bailor, was wrongful, and see 
Fredericksen v. Singer Mfg. Co., 38 Minn. 356 (1888). 

In Hendrix v. State, 50 Ala. 148 (1873), it was held that it was no de- 
fense to an indictment for assault and battery, committed in an attempt to 
obtain possession of a horse, ridden by the prosecutor, that the horse had 
been stolen from the defendant some time before, by a person not named. 
And in Sabre v. -Matt, 88 Fed. 780 (Circ. Ct. of Vt. 1898), it was held that 
the defendant was not justified "in using force, much less in committing an 
assault to retake property which had been in the plaintiff's peaceable pos- 
session for a day," though here, as in Bobb v. Bosworth, 2 Littell's Selected 
Cases, 81 (Ky. 1808), the title was in dispute. 

'^Accord: Richardson v. Anthony, 12 Vt. 273 (1840), the heifers in ques- 
tion had been for a year in the peaceable possession of the plaintiff, who for- 
bade the defendant to enter and retake them ; there being no averment or 
evidence how they had come into the plaintiff's possession, it was held that 
"no fault is attributable to either party so far," but they, being detained 
"under wrongful claim of title after request to return them or to allow 



936 CHAMBERS V. BEDELL. 

mand and refusal of permission, repairing, however, any damage 
which may be occasioned by his entry.^ So, also, where the parties 
are in equal default, for instance, 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.^ But all the books agree, that where 
a chattel escapes from the possession of its owner by his consent, 
exclusive negligence, or other default, he cannot pursue' it into the 
close of another, without becoming a trespasser by his entry;* but 
that he may lawfully enter and retake his property, where it has 
been wrongfully taken or received by the owner of the land.^ Now, 

.the owner to remove them, were in his enclosure, when they were taken, 
by his own wrong." Contra: Salisb'Ury v. Green, 17 R. I. 758 (1892), where 
also the plaintiff had had long continued peaceable possession of chattels 
under claim of right; Blake v. Jerome, 14 Johns. 406 (N. Y. 1817) ; Roach 
V. Damron, 2 Humph. 425 (Tenn. 1841) ; Chess v. Kelly, 33 Blackf. 438 (Ind. 
1834) ; and see Chase v. Jefferson, 1 Houst. 257 (Del. 1856) . The right to 
enter after demand and refusal, when the chattels come on the land by their 
owner's wrong or consent, is denied in Newkirk v. Sabler, 9 Barb. 652 (N. 
Y. 1850). The mere fact that the defendant's goods are on the plaintiff's 
land, gives no right to enter, at least before demand and refusal, so a plea 
merely alleging the defendant's goods to be on the plaintiff's premises without 
showing how they came there, was held in Anthony v. Haney, 8 Bing. 186 
(1832), to be bad on demurrer; Goff v. Kalts, 15 Wend. 550 (N. Y. 1836); 
Salisbury v. Green, and other cases cited above as contra to Richardson v. 
Anthony, 12 Vt. 273 (1840). 

'In Anthony v. Haney, 8 Bing. 186 (1832), it was intimated that no 
matter how the goods came on the premises of the owner "if the occupier 
refused to deliver them up or make no answer to the owner's demand, at 
any rate the owner might in such case enter and take his property, subject 
to the payment of any damage he might commit." This is sharply criticised 
by Judge Cooley, law of Torts, 50 n. 2; "If," he says, "he were liable in 
damages for the entry, it must be because it is unlawful; and in that case 
it might be resisted. There can be no such absurdity as a right of entry 
and a co-existent right to resist the entry." — but see Vincent v. Ljike Erie 
Co., cited in Note 3 to Ploof v. Putnam, post. The right of entry was al- 
lowed in Richardson v. Anthony, 12 Vt. 273 (1840), without any such con- 
dition. 

' 1 Dane's Abr. C. 134, §13, cited in Wheelden v. Lowell, 50 Maine 499 
(1862). 

' So where the owner has himself put the goods on the other's land, 
{Newkirk v. Sabler, 9 Barb. 652 (N. Y. 1850), or has consented to their 
being put or kept thereon, Crocker v. Carson, 33 Maine 436 (1851) ; Roach 
v. Damron, 2 Humph. 425 (Tenn. 1841) ; or has bailed the goods to such 
other, McLeod v. Jones, 105 Mass. 403 (1870) — ^but see Madden v. Brown, 
8 App. Div. 454 (N. Y. 1896), — though he has the right to their possession, 
he cannot enter to take them without the owner's permission, unless the 
nature of the dealings between the parties requires the implication of a li- 
cense to enter. Where one sells, Xeitleton v. Sikes, 8 Mete. 34 (Mass. 1834) ; 
Newkirk v. Sabler, 9 Barb. 652 (N. Y. 1850) ; McLeod v. J ones, 105 Mass. 
403 (1870), semble, — ^but compare Crocker v. Carson, 33 Maine 436 (1851), 
or mortgages, Zimmler v. Manning, 2 S. C. R. (N. S. W.) 235 (1863) , semble ; 
McNeal v. Emerson, 15 Gray 384 (Mass. 1860), goods on his premises, there 
is an implied license to enter such premises to remove them, but not to enter 
other premises to which they may have been removed; McLeod v. Jones, 
105 Mass. 403 (1870), and such license only binds the vendor or mortgagor. 
Roach v. Damron, 2 Humph. 425 (Tenn. 1841) ; Zimmler v. Manning 2 S. C. 
R. (N. S. W.) 235 (1863). 

°In Patrick v. Colerick, 3 i\I. & W. 483 (1838), Parke, B., says, "that 
when a party places the goods of another upon his own close, he gives to 



CHAMBERS V. BEDELL. 937 

if the property in the rails in question had been in the defendant, 
the plaintiff who had piled them up on his land, could not have re- 
covered even nominal damages for the defendant's entry to remove 
them; and in this respect the direction would have been wrong. 
But it was in clear and uncontradicted proof, that the defendant, 
Chambers, had not even a colourable title to the land where the rails 
were grown and made, and consequently not even a colourable title 
to enter on the plaintiff's land in order to carry them away ; and 
the inaccuracy of the charge, in this abstract particular, was there- 
fore immaterial. 

Judgment affirmed." 



the owner an implied license to' enter for the purpose of recaption." But 
the plea held good alleged a wrongful taking by the plaintiff from the de- 
fendant's possession and a fresh pursuit. 

When the plaintiff has wrongfully taken the goods, the right of entry 
is generally allowed; Anon., Y. B. 9 Edw. IV, 3S, pi. 10 (1469), per Little- 
ton, J.; Salisbury v. Green, 17 R. I. 758 (1892), semhle; Madden v. Brown, 
8 App. Div. 454 (N. Y. 1896) ; Wheelden v. Lowell, 50 Maine 499 (1862) ; 
goods obtained by fraudulent purchase; McLeod v. Jones, 105 Mass. 403 
(1870), semble; Murray v. M'Neil. 1 N. S. W. W. N. 136 (1885), semblc, 
Graham v. Green, 10 New Brunswick (5 Allen) 330 (1802), and if the taker 
refuse to give them up, the owner in order to retake them may break into 
his close to obtain them. In Pollyes Case, Godbolt 282 (1620), it is said that in 
such case the owner may justify an entry upon the wrongful taker's land 
but not his house, for that is "his castle," into which another man may not 
enter without his consent"; accord: Cutler v. Smith, 17 111. 252 (1870). But 
see Anon., (1638), Clayton, 65 (pi. Ill), where the defendant, whose goods 
had been wrongfully distrained, was held justified in entering the wrong- 
doer's house to retake them. 

So where the goods are taken by a third party and placed with the plain- 
tiff's consent on his land. Chapman v. Thumblethorp, Cro. Eliz. 329 (1594), 
in which, while the court stated broadly that whenever the defendant's beasts 
are taken from him by wrong and are not out of his possession by his own 
delivery, he may justify the taking of them in any place he may find them, 
the plea which was held good averred that the wrongful taker placed the 
goods on the plaintiff's close with his assent. Accord: Zimmler v. Manning, 
2 S. C. R. (N: S. W.) 235 (1863). 

If goods, originally stolen, Collomb v. Taylor, 9 Humph. 689 (Tenn. 
1849), semble, or transferred in fraud of the owner's rights, Murray v. M'Neil, 
1 N. S. W. W. N. 136 (1885), are in the possession of a bona fide holder, 
the owner though entitled to the possession, cannot justify an entry upon 
the premises of the purchaser for the purpose of retaking them. 

°"If a man wrongfully imprisons me in his house, I may break the win- 
dows and hedge to escape, &c., for in all these cases it is the plaintiff's 
wrong"; Littleton, J., Y. B., 9 Edw. IV, 34, pi. 10 (1469). So one, who is 
in possession of goods upon the premises of another, may justify breaking 
doors or gates to remove them, if the occupier of the premises attempts to 
unlawfully detain them by locking the gates, Robson v. Jones, 2 Bailey 4 
(S. Car. 1830). 

One upon whose lands another's goods have been placed or allowed to 
remain, may justify taking them and putting them upon the owner's prem- 
ises, and in so doing is not guilty of either trespass quare clausum fregit or 
de bonis asportatis, Cole v. Maunder, 2 Rolle. Abr. 548 (1635), J^ea v. 
Sheward, 2 M. & W. 424 (1837), but he must do so in a reasonable manner 
and put them in a place where they will cause no unnecessary damage or in- 
convenience, Burnham v. Jenness, 54 'Vt. 272 (1881). 



938 CUNNINGHAM V. YEOMAN. 

CUNNINGHAM v. YEOMAN. 
Supreme Court of New South Wales, 1868. 7 Sup. Ct. Rep. N. S. W., 149. 

Action of trespass quare clausum fregit. Declaration in sub- 
stance alleged that defendant broke into and entered plaintiff's 
dwelling house with his servants, and broke and pulled down the 
doors of same, and with the servants remained therein a long time. 
Plea, that before and at the time of the alleged grievance the de- 
fendant was possessed of certain horses which had been feloniously 
stolen from him by certain persons and were by or with the priv- 
ity of the plaintiff placed upon the premises of the plaintiff, and 
that the defendant being informed and having probable cause to 
believe that the horses were on the said premises, made pursuit after 
his horses and quietly and peaceably entered with his servants to 
view the said horses so belonging to him and carry them away as 
he lawfully might, doing no unnecessary damage. Demurrer and 
joinder. 

Stephen, C. J. If a chattel be feloniously taken, and put on 
a third person's premises by the latter's consent, the latter, although 
not cognizant of the felony, justly incurs the risk of the thing turn- 
ing out to be stolen ; and for the sake of public justice, and the re- 
pressing of crime, the owner of the property has, and ought to have 
at any time, the right of entry on such person's premises, and of re- 
taking the chattel. I see no reason why the right of recaption 
should be limited to cases where there is fresh pursuit. It has been 
held that in cases of trespass, hue and cry makes no difference. 
Public policy, which supersedes all questions of private interest, 
requires that every felony should be punished, and that an oppor- 
tunity of prosecuting the thief to conviction should be facilitated 
by the production of the stolen property; and I think this dis- 
tinguishes the cases of goods taken by trespass and by felony. If 
a stolen horse is on land not with the consent of the owner of the 
land, an entry by the owner of the horse on such land may be un- 
lawful ;^ but if the owner of the land has allowed a stolen horse to 
be placed there, why may not the owner of the horse in the interest 
of the public enter and retake him? Baldwin v. Noaks, in 2 Lut- 
wyche 1309, supports this proposition; and in that case there is no 
mention of fresh pursuit. The authority of Blackstone, cited and 
approved of by Lord Chief Justice Tindal, in Anthony v. Haney, 
implies that the right of recaption exists where the goods have been 
feloniously stolen. I doubt whether a search warrant was neces- 
sary under such circumstances. Such an authority would be neces- 



'In Webb v. Bevatt, 6 M. & G. 1055 (1844), the plea held good alleged 
merely that his recently stolen mare was in the plaintiflf's stable; but see 
the reporter's note (b), in which he says: "The entry upon the plaintiff's 
land would appear to be lawful if the defendant's goods were brought there 
with the privity of the plaintiff or it would seem, if brought there by any 
person who was upon the close with the permission of the owner. 



CUNNINGHAM V. YEOMAN. 939 

sary, if it turned out that the goods were not on the premises ; nor 
could outer doors be broken open, unless under such a warrant.^ 

As to the breaking of doors for the purpose, that may or may 
not be justifiable. But that question does not yet arise; for, as 
complained of in the declaration, it is matter incidental only to the 
entry, and therefore is matter of aggravation merely. If the plain- 
tiff desires to make it matter of substantial complaint, he can new- 
assign. 

I am not clear whether, if the horse here had been taken by 
trespass merely, but put on the plaintiff's premises by his consent, 
after such trespass, the authority of Zimmler v. Manning would 
apply. 

Cheeke, J., concurred. 

Faucett, J. The breaking and pulling down the doors, and 
the remaining in the plaintiff's house for a long time, is, it is clear, 
only matter of aggravation ; and the pleader who drew the de- 
murrer evidently was of this opinion ; for the plea is not stated to 
be insufficient on any such ground. 

I give no opinion whether the entry is justifiable if the horse 
has been taken by trespass; but I have no hesitation in acting on 
the authority of Higgins V. Andrews, which is referred to in 2 Lut- 
wyche, and has been constantly recognized in the Abridgments, and 
which is relied on in the passage from Blackstone's Commentaries, 
quoted with approval by Lord Chief Justice Tindal in Anthony v. 
Haney. Where goods have been stolen, the owner of the land 
where those goods are placed with his privity, although ignorant 
that the felony has been committed,^ cannot complain if the 
owner of the goods enters upon his land and retakes them. No 
notice or demand is in such case necessary. The rule is founded on 
public policy, and that the ends of justice may not be defeated. I 
think it is not necessary to allege fresh pursuit ;* for it is plain that 
it may be some time before it is known where the stolen property 
is to be found. 

Judgment for the defendant.^ 

'See PoUyes case, note 5 to Chambers v. Beddell, ante. 

"As to whether it is necessary, when goods are tortiously taken by a 
third party and placed by him on the plaintiff's land, to show not merely that 
the plaintiff assented to the goods being placed there, but that he did so 
knowing them to be tortiously taken, see Baldwin v. Noaks, 2 Lutw. 1309 
(1684) ; Wells, J., in McLeod v. Jones, lOS Mass. 403 (1870), intimating that 
the owner of the land must be a participant in the wrongful taking; and 
Bennett, J., dissenting in Richardson v. Anthony, 12 Vt. 273 (1840), p. 279, s 
who says that by his consent, "the landholder becomes a participant in the 
wrong." 

*Both wrongful taking and fresh pursuit is held essential in Salisbury 
V. Green, 17 R. I. 758 (1892) ; compare Kirby v. Foster, note to Blades v. 
Higgs, ante. 

"In Higgins v. Andrews, 2 RoUe. Abr. 564 (1618), 2 RoUe. Rep. 55, it 
is held that I cannot justify entering another's house on the common report 
that a third person, who has wrongfully torn up my trees, has placed them 
in such house "inasmuch as the taking away qf these trees annexed to the 
freehold was not a felony but only a trespass." 

In Topladye v. Stalye, Style 165 (1649), it was held a plea that mere 



940 ANONYMOUS. 

(c) Abatement of nuisance. 



ANONYMOUS. 
In the Common Pleas, 1469. Year Book, 9 Edward IV, f. 34, pi. 10. 

Writ of right. Choke, J. The main question is, whether the 
pulling up of the stakes of the pond was lawful; for, if so, the 
tearing down of the house was lawful, for he says in his plea that 
he could not have pulled up the stakes without the house falling 
down. , 

Fairfax. It seems that he shall be put to his action of tres- 
pass or nuisance, for he could not enter the freehold of the plain- 
tiif ; and, sir, if a man has a sewer running from his place in Lon- 
don to the Thames, and it is stopped up, he cannot break the soil 
to clear it, but is put to his action. 

Littleton, J. It seems that he may well pull up the stakes, 
for they were erected to his nuisance ; and if he had waited to bring 
an action, his land might have been surrounded, and he woyld have 
lost the profits of his mill meanwhile,^ and it seems to me that the 

common rumor that stolen sheep were on the plaintiff's land would not justi- 
fy an entry, since it did not show how they came thereon, whether as strays 
or by theft of the plaintiff, or placed there by the thief with the plaintiff's 
consent. 

^ But one abating a nuisance, private or public, is liable for any damage 
done which is not necessary to effect the abatement, Gates v. Blincoe, 2 Dana 
158 (Ky. 1834) ; Calef v. Thomas, 81 111. 478 (1876) ; Indianapolis v. Miller, 
27 Ind. 394 (1866) ; Moffett v. Brewer, 1 G. Greene 348 (Iowa 1848) ; Chilli- 
cothe V. Bryan, 103 Mo. App. 409 (1S03), though he -s not bound to do so 
in the manner most convenient to the owner of the nuisance, it being the 
interests of the person aggrieved which must prevail, Great Falls Co. v. 
Worster, IS N. H. 412 (1844) ; McKeesport Sawmill Co. v. Pennsylvania Co., 
122 Fed. 184 (1903). 

Only so much of the offending things as constitute the nuisance can be 
removed, Moffett v. Brewer, 1 G. Greene 348 (Iowa 1848) ; Moodv v. Ni- 
agara, 46 Barb. 649 (N. Y. 1866) ; Dyer v. Depui, 5 Whart. S84 (Pa. 1840) ; 
nor can the offending structure be destroyed, if its removal will abate the 
nuisance, Smart v. Commonwealth, 27 Grat. 950 (Va. 1876), nor can a stuc- 
ture be removed, Morrison v. Marquardt, 24 Iowa 35 (1868), or a pond 
filled up, Finley v. Hershey, 41 Iowa 389 (1875), if its offensive character 
can otherwise be remedied. So while one, over whose land the branches of 
a neighbor's trees extend, may cut off the intruding branches, Grandona v. 
Lovdal, 70 Cal. 161 (1886) ; Robinson v. Clapp, 65 Conn. 365 (1895) ; Hickey 
V. Mich. Cen. R. Co., 96 Mich. 498 (1893), he may not cut down the trees, 
Grandona v. Lovdal, 70 Cal. 161 (1886) ; Hickey v. Mich. Cen. R. Co., 96 
Mich. 498 (1893). 

So a building cannot be destroyed because it is so used as to create a- 
nuisance, "the remedy is to stop such use," Woodward, J., in Barclay v 
Commonwealth, 25 Pa. St. 503 (1855) ; Earp v. Lee, 71 111. 193 (1873) ; Brown 
V Perkins^ 12 Gray 89 (Mass. 1858) ; State v. Paul, 5 R. I. 185 (1858) ; 
State V. Keeran, 4 R. I. 497 (1858) ; Moody v. Niagara, 46 Barb. 659 (N. Y. 
1866), unless such use cannot be stopped save by the destruction of the 
building, Harvey v. Dewoody, 18 Ark. 252 (1856), a wooden shanty fre- 
quented by vagrants. 

And one assuming to abate a condition or structure as a nuisance, takes 
the risk of proving to the satisfaction of the jury that it is in fact a nuisance. 



HARROWER V. RITSON. 94I 

entry upon the plaintiff's land was lawful; to abate the nuisance 
for the wrong done was the wrong of the plaintiff.^ 

And if water flows juxta villain and is stopped, any one in the 
vill may tear down the obstruction, &c., or otherwise the whole 
vill would be surrounded, &c. And if a man wrongfully imprisons 
me in his house, I may break the windows and hedge to escape, &c., 
for in all these cases it is the plaintiff's wrong, and so here. 

Needham, J. If a man puts up a house to the nuisance of my 
house, I may be in my own house or land and pull down his house, 
and justify this ; so in this case the defendant shall not be punished 
for pulling down the house nor removing the stakes ; but as to the 
entry upon the land, this action is not brought for the entry, &c. ; 
wherefore, &c. ; but I think the entry is not lawful. 

Danby, C. J. And, sir, in the case at bar the removal of the 
stakes seems lawful; for supposing the defendant were tenant for 
years, he could not have an assize of nuisance; and if he brought 
trespass he would recover damage for the wrong done before the 
purchase of the writ, and a nuisance, notwithstanding such suit, 
would continue; and so it would be mischievous if he could not 
abate the nuisance. And the opinion of all the judges was, that the 
destruction of the house was lawful, qumre as to the entry. 

Littleton said that Danby was of opinion that the entry was 
lawful, &c., wherefore, if a man makes a ditch in his land, by which 
the flow of water to my mill is diminished, I may refill the ditch 
with the earth dug up, &c.^ 



HARROWER v. RITSON. 

Supreme Court of the State of New York, 1861. 57 Barb. Rep. 301. 

Allen, J. The encroachment of the plaintiff's fence upon the 
highway was, it would seem, hardly disputed upon the trial. The 
only question of fact upon which conflicting evidence was given 
was whether the fence was an obstruction to the travel, and in- 
terfered with the use of the road by the public. And upon this 
branch of the case several witnesses, in behalf of the plaintiffs, 
testified that the fence torn down did not and could not interfere 
with the travel west of the angle; and all the testimony was that 



Tissot V. Great Southern Tel. Co., 39 La. Ann. 996 (1887), and see Shars- 
wood, J., in Fields v. St ok ley, 99 Pa. St. 306 (1882) ; and Reed v. Seely, 13 
Pa. Co. Ct. 529 (1893), municipal officers abating public nuisances witliout 
authority of the municipal legislative councils. 

'Accord: Mayhew v. Burns, 103 Ind. 328 (1885); Lancaster Turnpike 
Co. V. Rogers, 2 Barr 114 (Pa. 1845), semble; Amoskeag Mfg. Co. v. Good- 
ale, 46 N. H. S3 (1857) ; Larson v. Furlong, 63 Wis. 323 (1885). 

^So in Y. B., 8 Edw. IV, 5, pi. IS (1468), that Choke, J., held that by 
common law, I may abate a house upon another's land so built as to cause the 
water to run upon my land, and Danby said, "That if water runs upon the 
land of M. and M. stops the water frorn its course, so that it surrounds my 
land, I can well abate that which stops it, and to my mind he shall not have 
an action for the entry into his close, because that is by his own wrong." 



942 HARROWER V. RITSON. 

at the angle and with the fence a single team could easily and safely 
pass, and that without the fence two teams could not pass. 

The fence was undoubtedly, upon, the finding of the jury, an 
encroachment upon the highway, which might have been removed 
by proceedings under the statute, (i R. S. 521.) It was also a 
public nuisance, and indictable as such. (4 Bl. Com. 167.) And 
had the plaintiffs been indicted for erecting the nuisance, the charge 
of the judge would have been strictly accurate. It would have 
constituted no defense that travel was not entirely obstructed and 
hindered. The public have the right to the entire width of the 
road — a right of passage in the rq^d to its utmost extent, unob- 
structed by any impediment. The plaintiffs could not lawfully by 
their fence render the passage over the road less convenient or safe 
than it would have been, but for the encroachment. (People v. 
Cunningham, i Denio, 524. King v. Russell, 6 East, 427. Per 
Denio, Ch. J., Davis v. Mayor of New York, 14 N. Y. Rep. 524.) 
"Any permanent or habitual obstruction in a public street or high- 
way is an indictable nuisance, although there be room enough left 
for carriages to pass." (See also Rex v. Lord Grosvenor, 2 Stark. 
511 ; Queen v. Betts, 16 Q. B. Rep. 1022.) If every indictable nui- 
sance may be abated by any one, upon his own motion, who chooses 
to take the law into his own hands, the justification of the defend- 
ants was completed, and the court properly refused the instructions 
asked for, to the effect that an individual was not authorized to 
abate the nuisance by the removal of the fence, unless it interfered 
with the use of the road. The claim is that the erection and main- 
tenance of the nuisance being a misdemeanor, any one may abate 
it, as it is for the interest of the public that it should not exist. If 
this is so, it is the only case where, in the absence of any necessity, 
the vindication and execution" of the law are devolved upon the 
private citizen; and I have found no case that goes this length. 
The doctrine would tend, manifestly, to breaches of the public peace, 
and might lead to the oppression of wrongdoers, which should be 
guarded against. Private nuisances may be abated by the indi- 
viduals aggrieved by them. (3 Bl. Com. 5, 2 Bouv. Inst. 574.) 
And public nuisances should only be subject to abatement by one 
especially aggrieved by them. Blackstone says: "If a new gate be 
erected across the public highway, which is a common nuisance, 
any of the king's subjects passing that way may cut it down and 
destroy it." The reason assigned is, that the injury requires an 
immediate remedy. (3 Black. Com. 6.) The instance given is that 
of a total obstruction of the road by the erection of a gate across 
it, rendering its destruction by the passerby a necessity. Mr. 
Broom, commenting on and explaining this passage from Black- 
stone, says that to justify a private individual in abating, on his 
own authority, such a nuisance, it must appear that it does him a 
special injury; and he can only interfere with it as far as may be 
necessary to exercise his passing along the highway with reasonable 
convenience, and not because the obstruction happens to be there. 
(Broom on Com. Law, 250.) The Mayor &c. of Colchester v. 



HARROWER V. RITSON. 943 

Brooks, (7 Q. B. Rep. 339) was an action on the case for injuring 
the plaintiff's oyster beds in a river, by improper navigation of the 
defendant's vessels. * * * The Court of Queen's Bench held that 
although the oysters were placed in the channel of a public nav- 
igable river so as to create a public nuisance, a person navigating 
was not justified in damaging such property by running his vessel 
against it, if he had room to pass without so doing ; for an individual 
could not abate a nuisance if he was not otherwise injured by it 
than as one of the public ; and therefore the fact that such property 
was a nuisance was no excuse for running upon it negligently. 
Lord Denman, Ch. J., delivered the opinion of the court, and says 
if there was abundance of room and of water for the vessel to have 
passed up without going near the alleged nuisance, "however wrong- 
ful the act of the plaintiff, yet, as the defendant sustained no special 
inconvenience thereby, he certainly could not have been justified 
in wilfully infringing upon or destroying the oysters, even for the 
purpose of abating the nuisance." Again, "In the case of a private 
nuisance, the individual aggrieved may abate, (3 Black. Com. 5,) 
so as he commits no riot in doing it ; and a public nuisance be- 
comes a private one to him who is specially and in some particular 
way incommoded thereby, as in the case of a gate across a high- 
way which prevents a traveler from passing, and which he may 
therefore throw down ; but the ordinary remedy for a public nui- 
sance is itself public, that of indictment;^ and each individual who 
is only injured as one of the public, can no more proceed to abate 
than he can bring an action." The same principle was distinctly 
reaffirmed in Dimes v. Petley, (15 Q. B. Rep. 276,) Lord Campbell, 



^ While it is generally stated that the remedy for a purely public nuisance 
is by indictment, Griffith v. McCullum, 46 Barb. 561 (N. Y. 1866) ; Earp v. 
Lee, 71 111. 193 (1873), unless some other remedy is provided by statute, 
and while it is held that, where the statute declaring the nuisance prescribes 
the method of removing it, such method is the exclusive remedy, Brozim v. 
Perkins, 12 Gray 89 (Mass. 1858) ; Hamilton v. Coding, 55 Maine 419 (1867), 
yet it is held in many cases that public authorities, charged with the duty 
of care of highways, Reynolds v. Urban Council, &c., L. R. 1896, 1 Q. B. 
604, may abate any unlawful obstruction of such highway, Neal v. Gilmore, 
141 Mich. 519 (1905), such obstruction being said to be a special grievance 
to him by reason of his duty, and municipal authorities have been held en- 
titled to remove obstructions interfering with the use of public wharves, etc., 
Hart V. Albany, 9 Wend. 571 (N. Y. 1832), pp. 590 and 609; McLean v 
Mathews, 7 111. App. 599 (1880) ; Gunter v. Ceary, 1 Cal. 462 (1851), semble. 
A municipality has the power to abate nuisances under the police power 
delegated to it by its charter or by statute, Baker v. Boston, 12 Pick. 184 
(Mass. 1831), and cases cited Cent. Dig. Vol. 36, Municipal Corporations, 
§ 1371. 

"A municipality may, with a strong hand, abate a public or common 
nuisance, which endangers either the health or safety of its citizens" — Pax- 
son, C. J., in Easton &c. Pass. R. Co. v. Easton, 133 Pa. St. 505 (1890), p. 
520; Fields v. Stokley, 99 Pa. St. 306 (1882), the mayor of Philadelphia held 
entitled to tear down wooden shanties adjacent to the grounds and buildings 
of the Centennial Exhibition, and threatening them with imminent danger 
of a conflagration; Harvey v. Dewoody, 18 Ark. 252 (1856), vacant wooden 
building, frequented by reckless and disorderly persons, torn down by order 
of the mayor and town council. 



944 HARROWER V. RITSON. 

Ch. J. delivering the judgment of the court, in which he says: 
"Now it is fully established by the recent cases, (citing them,) 
that if there be a nuisance in a public highway a private individual 
cannot of his own authority abate it, unless it does him a special 
injury : and he can only interfere with it as far as it is necessary 
to exercise his right of passing along the highway; and without 
considering whether he must show that the abatement of the nui- 
sance was absolutely necessary to enable him to pass, we clearly 
think that he cannot justify doing any damage to the property of 
the person who has improperly placed the nuisance in the high- 
way, if, avoiding it, he might have passed on with reasonable con- 
venience." One who is injured by an obstruction placed unlaw- 
fully in a highway cannot maintain an action for damages, if it 
appears he did not use ordinary care by which the obstruction 
might have been avoided. (Irvin v. Sprigg, 6 Gill, 200. Smith v. 
Smith, 2 Pick. 621. Davies v. Mann, 10 Mees. & Wells. 545.) 

The precise question presented here was considered and decided 
in Bateman v. Bluck, (18 Q. B. Rep. 870,) which was trespass for 
entering the plaintiff's close and^ pulling down a wall therein. Plea 
that the close was a public pavement within the metropolitan paving 
act of 57 Geo. III., ch. 29; that the plaintiff unlawfully, and con- 
trary to the act, erected thereon the said wall ; and because the wall 
incumbered the pavement, and the plaintiif refused, on the de- 
fendant's request, to remove the same, the defendant entered and 
pulled it down. And it was held, on motion for judgment non ob- 
stante veredicto, that the plea was bad for not showing that it was 
absolutely necessary for the defendant, in order to exercise the al- 
leged right of passage, to remove the wall. In Arundell v. McCul- 
loch, (10 Mass. Rep. 70,) the navigation of a navigable river was 
obstructed by a bridge erected by the plaintiffs, and the bridge was 
removed by the defendant to facilitate the passage of a vessel be- 
longing to him, built above the bridge, and as little damage was done 
to the bridge as was possible. The court held the defendant justi- 
fied; saying, "Here nothing more was done than was necessary to 
procure a safe passage for the defendant's vessel." 

The question has not been directly passed upon by the courts 
of this state, but general expressions of judges have led to the in- 
ference that every common nuisance which was indictable might be 
abated by any individual; that indictment, and abatement by indi- 
vidual action, were concurrent remedies for all public nuisances. 
And in Hart v. Mayor of Albany, (9 Wend. 571,) some of the 
members of the court for the correction of errors were of the opin- 
ion that any person might abate a common nuisance, whether he 
was specially aggrieved by it or not. But it was not necessary to 
pass upon it, as the defendants had full power to remove all ob- 
structions from the river and harbor, under the city charter. And 
the reporter, in the head note to the case, leaves the proposition 
in this form: "Whether an individual without being specially ag- 
grieved, has a right to abate or remove such nuisance, qucere."^ 

^ A part of the opinion discussing the cases of Rogers v. Rogers, 14 Wend. 



HARROWER V. RITSON. \ 945 

If the unqualified right exists, and any person may of his vo- 
Htion and without process of law abate a public nuisance upon the 
peril only of showing in justification that the property destroyed 
or removed is a nuisance, and indictable as such, there can be no 
distinction made as to the kind or character of the nuisance. It may 
be a particular trade, which is only obnoxious because carried on 
in a particular place or in a particular manner f it may be some- 
thing which affects the health, or the air, or renders the enjoyment 
of property uncomfortable, or depreciates the value of property.; 
or it may be something which tends to a breach of the public peace — 
a disorderly house, a gaming house, or a hospital,* as well as the 
obstruction of a navigable river, or a public highway, or the in- 
closure of a common. To suflfer any one, without necessity, to 
become the executor of this branch o£ the common law, without 
the intervention of the ordinary forms of law and a resort to the 
process of the courts, would tend to gross injustice, breaches of 
the peace and riots, and the remedy would be worse than the evil 
to be redressed. But if individual action, in the abatement of 
nuisances, be restricted and the power qualified and limited as by 
the EngHsh cases, and thus cited from the courts of some of the 
United States, no serious mischief can arise, and none of which 
the wrongdoer has a right to complain. An individual aggrieved 
by a private nuisance may have his action, or he may abate the 
nuisance.*^ A party sustaining a special injury from a public or 
common nuisance may also have his action, and in the like case he 
may abate the nuisance. In the language of Lord Campbell, it be- 

131 (N. Y. 1835) ; Wetmore v. Tracy, 14 Wend. 2S0 (N. Y. 1835), and Ren- 
wick V. Morris, 3 Hill 621, 7 Hill 575 (N. Y. 1844), and holding the statements 
asserting a general, right of abating public nuisance, contained therein, to 
be mere dicta, is omitted. 

^When the nuisance consists in the use of a building, and not its physi- 
cal character -or condition, the proper remedy is the termination of the wrong- 
ful use, and not the removal or the destruction- of the building, Brown 'v. 
Perkins, 12 Gray 89 (Mass. 1858) ; State v. Paul, 5 R. I. 185 (1858) ; State 
V. Keeran, 4 R. I. 497 (18S8) ; Moody v. Niagara Co., 46 Barb. 659 (N. Y. 
1866) ; Barclay v. Commonwealth, 25 Pa. St. 508 (1855) ; but see Harvey v. 
Dewoody, IS Ark. 252 (1856), where the improper use could practically not 
be prevented except by destroying the building. 

■* So it is held that private individuals cannot destroy whiskey, kept for 
sale against a statutory prohibition, whether the statute declares such keep- 
ing a nuisance or not. Brown v. Perkins, 12 Gray 89 (Mass. 1858) ; Hamil- 
ton V. Coding, 55 Maine 419 (1867) ; nor tear down a building where such 
whiskev is kept, Brown v. Perkins, 12 Gray 89 (Mass. 1858) ; Earp v. Lee. 71 
111. 193' (1873) ; State v. Paul,S R. I. 185 (1858) ; State v. Keeran, 4 R. I. 
497 (1858) ; or which is used in a manner to be a nuisance by common law 
or by statute. Moody v. Niagara Co., 46 Barb. 659 (N. Y. 1866), affirmed 
under the name of Ely v. Niagara County, 36 N. Y. 297 (1867), a bawdy- 
house destroyed by a mob; Welch v. Stowell, 2 Dougl. 332 (Mich. 1849). 

" The right to abate is usually said to exist if, and only if, there is a right 
of action for damages, Watts v. Norfolk & W. R. Co., 39 W. Va. 196 (1894^) ; 
Priewe v. Fitssimmons Sf-c. Co., 117 Wis. 497 (1903). "In the case of a pri- 
vate nuisance," says Marvin, J,, in Griffith v. McCullum, 46 Barb. 561 (N. Y. 
1866), p. 569, "the aggrieved party has his election of remedies. He may re- 
move the nuisance or he may have his action for the private damages sus- 
tained by him. He cannot have both remedies." So, as he has no right 3f ac- 



946 HARROWER V. RITSON. 

comes to him a private nuisance. He may remove that which in- 
terferes with his right, to the extent necessary to the reasonable 
enjoyment of the right of which the thing interposed would de- 
prive him, doing no unnecessary damage. A party, by erecting a 
nuisance, does not put himself, or his property, beyond the protec- 
tion of the law. If an individual or member of the community can 
with reasonable care, notwithstanding the act complained of, enjoy 
the right of franchise belonging to him, he is not at liberty to' de- 
stroy or interfere with the property of the wrongdoer. 

In this case, whatever might have been proper had the plain- 
tiffs been on trial upon an indictment for the nuisance, the requests 
of their counsel were proper, and tj;ie instructions should have been 
given to the jury as asked for.® The justification of the defendants 
was limited by the necessity of the case, and if the use of the road 
was not interfered with, the defendants were trespassers in re- 
moving the fence. The instructions asked were substantially the 
same as those given in Renwick v. Morris. 

The judgment must be reversed, and a new trial granted; costs 
to abide the event. 

Bacon and Mullin, Justices, concurred. 



tion for a condition which threatens merely possible injury at some future 
time, he cannot abate it, Gates v. Blincoe, 2 Dana 158 (Ky. 1834) ; Moffett v. 
Brewer, 1 G. Greene 348 (Iowa 1848) ; Toledo, St. L. & K. R. Co. v. Loop, 139 
Ind. 542 (1894) ; Graves v. Shattuck, 35 N. H. 257 (1857) ; Priewe v. Fits- 
simmons, 117 Wis. 497 (1903), unless the condition or structure, though 
causing no immediate tangible loss or inconvenience, constitutes "an infringe- 
ment of his right which might ripen into an easement," when, since an action 
\Yould lie for nominal damages, the person whose right is infringed may enter 
and abate it, Amoskeag Mfg. Co. v. Goodale, 46 N. H. S3 (1857) ; see also, the 
cases recognizing a general right in any member of a community to remove 
gates or fences erected by landowners across public rights of way over their 
lands. Brake v. Crider, 107 Pa. St. 210 (1884), semble. So, since, with certain 
exceptions no action lies against a vendee or lessee, who omits to remove a 
nuisance created by his vendor or lessor, until notice is given him to remove 
it, Penruddock's case, 5 Coke 101a (1597) ; Johnson v. Lewis, 13 Conn. 303 
(1839), such a nuisance cannot be abated until such notice is given, Jones 
v. Williams, 11 M. & W. 176 (1843). But one, whose right as a member 
of the public to pass along highways, or navigate rivers or streams, is 
obstrutted, is held entitled to remove the obstruction, yet the mere obstruc- 
tion of such right is not of itself held sufficient private damage to support 
an action for damages. 

°"The court was requested to charge, 1. That a mere encroachment on 
the road by the fence did not authorize the removal of the fence by the de- 
fendants, unless it hindered, impeded or obstructed the use of the road by 
the public; and 2d. That an encroachment of a fence upon the road is not 
a public nuisance, so as to authorize an individual to abate it, unless it inter- 
feres with the use of the road by the public." 

"These instructions were refused, on the ground that it was not such a 
case; although there might be cases where persons might interfere with 
a mere encroachment, and that this amounted to an obstruction if it was 
within the limits of the highway as actually fenced and used. That the de- 
fendants had a right to the full width of the road as fenced and used, al- 
though they may have been able to get by the obstruction without any serious 
inconvenience. The plaintiffs had no right to narrow the road, and if they 
did put their fence in the road, the defendants could remove it, doing no 
unnecessary damage" 



PATTERSON V. NUTTER. 947 

Morgan, J. (dissenting.) By tlie common law, any encroach- 
ment or incumbrance upon the highway, by which it is rendered 
less commodious to the people, is a public nuisance, and may be 
abated without suit, (i Haw. P. C. 212.) Every portion of the 
road, as laid out and used, is dedicated to the public and cannot 
be obstructed so as to interfere with the public travel over such 
portions, although there may be room to pass on the opposite side. 
(Id. 365. 16 Vin. Abr. tit. Nuisance, W.) There may be excep- 
tions to this rule, but they have only been allowed in cases where 
the pretended obstructions were, temporary, or the alleged en- 
croachment was beneficial. It is upon this ground that ornamental 
trees are considered a public benefit, instead of an obstruction. 
But there is no allegation of benefit here, and by the finding of the 
jury the plaintififs' fence was placed within the limits of the high- 
way. It is now said that teams could have passed on the other side 
without difficulty, or at least the jury might have found so by their 
verdict. But this is not the test. 

New trial granted.'' 



(d) 



Use of force necessary for the preservation of discipline. 

PATTERSON v. NUTTER. 

Supreme Judicial Court of Maine, 1886. 78 Maine Reports, 509. 

Emery, J. Free political institutions are possible only where 
the great body of the people are moral, intelligent and habituated 
to self-control, and to obedience to lawful authority. The per- 
manency of such institutions depends largely upon the efficient in- 

' In the following cases it is held that a public nuisance can only be 
abated by a private individual if he be specially injured or aggrieved, or is 
especially impeded in the exercise of his rights. 

Obstructions in the highway not seriously interfering with the defend- 
ants' convenient use thereof or impeding his passage, Clark v. Lake St. 
Clair &c. Ice Co., 24 Mich. SOS (1872) ; Corthell v. Holmes, 87 Maine 24 
(1894); Hopkins v. Crombie, 4 N. H. 520 (1829), the structure removed, 
though not interfering with the convenient use of the highway, was an en- 
croachment thereon, and, as such, was by statute declared to be a public 
nuisance; but see Lancaster Turnpike Co. v. Rogers, 2 Barr. 114 (Pa. 1845), 
where it was held that a landowner could remove an abandoned toll-house, 
built partly on her land and partly on an adjacent highway, though it did not 
appear that it interfered with her convenient use thereof. 

Obstructions to navigation in navigable rivers and streams ; Fort Plain 
Bridge Co. v. Smith, 30 N. Y. 44 (1864), semble, a bridge company held to 
have no right to destroy another's bridge, though it obstructed navigation; 
Gumbert v. Wood, 146 Pa. St. 370 (1891) ; Shaw, C. J., in Brown v. Perkins, 
12 Gray 89 (Mass. 1858) ; Griffith v. Holman, 23 Wash. 347 (1910), semble; 
Watts V. Norfolk & W. R. Co., 39 W. Va. 196 (1894), p. 212, semble; Larson 
V. Furlong, 50 Wis. 681 (1881). 

A building, a nuisance because injurious, in itself or as used, to the public 
peace, good order or morals, see cases cited in Notes 3 and 4 and see also 
Bowden v. Leims, 13 R. I. 189 (1881) ; Fields v. Stokley, 99 Pa. St. 306 
(1882); Klinger v. Bicket, 117 Pa. St. 326 (1887), semble. Contra: Meeker 



948 PATTERSON V. NUTTER. 

struction and training of children in those virtues. It is to secure 
this permanency that the state provides schools and teachers. 
School teachers, therefore, have important duties and functions. 
Much depends upon their ability, skill and faithfulness. They 
must train as well as instruct their pupils. R. S., c. ii, § 97. The 
acquiring of learning is not the only object of our public schools. 
Tc become good citizens, children must be taught self-restraint, 
obedience, and other civic virtues. 

To accomplish these desirable ends, the master of a school is 
necessarily invested with much discretionary power. He is placed 
in chai-ge some times of large numbers of children, perhaps of 
both sexes, of various ages, tetnperaments, dispositions, and of 
various degrees of docility and intelligence. He must govern these 
pupils, quicken the slothful, spur the indolent, restrain the impetu- 
ous, and control the stubborn. He must make rules, give com- 
mands, and punish disobedience. What rules, what commands, 
and what punishments shall be imposed, are necessarily largely 
within the discretion of the master, where none are defined by 
the school board. In State v. Pendergrass, 2 D. & B. (N. C.) 
365, (S. C. 31 Am. Dec. 416), it was said: "One of the most sacred 
duties of parents is to train up and qualify their children for be- 
coming useful and virtuous members of society; this duty cannot 
be effectually performed without the ability to command obedience, 
to control stubbornness, to quicken diligence and to reform bad 
habits ; and to enable him to exercise this salutary sway, he is armed 
with the power to administer moderate correction, when he shall 



V. VanRensselaer, IS Wend. 2i97 (N. Y. 1836), individuals held entitled to 
tear down, during an epidemic of Asiatic cholera, a filthy and overcrowded 
tenement house. 

Many of the earlier cases contain dicta following Blackstone's broad 
assertion of a right in any one to abate a public nuisance, but in every case 
the nuisance was abated by the municipal authorities, Hart v. Albany, 9 Wend. 
571 (N. Y. 1832) ; Rung v. Schoneherger, 2 Watts 23 (Pa. 1833) ; Harvey 
v. Dewoody, 18 Ark. 252 (1856) ; or the thing abated was held to be no 
nuisance, Gunter v. Geary, 1 Cal. 462 (1851), note 1; Graved v. Shattuck, 35 
N. H. 257 (1857) ; Bumham v. Hotchkiss, 14 Conn. 311 (1841) ; Rogers v. 
Rogers, 14 Wend. 131 (N. Y. 1835) ; Low v. Knowlton, 26 Maine 128 (1846). 

In the following cases one specially aggrieved by a pubUc nuisance may 
abate it; obstructions interfering with the convenient use of a highway, 
James v. Hayward, Cro. Jac. 184 (1630) ; Hubbard v. Deming, 21 Conn. 356 
(1851) ; Marcy v. Taylor, 27 111. 634 (1858) ; Corthell v. Holmes, 88 Maine 376 
(1896) ; Pontiac Src. Plank Road Co. v. Hilton, 69 Mich. 115 (1888) ; Griffith 
V. McCullum, 46 Barb. 561 (N. Y. 1866) ; Dimmett v. Eskridge, 6 Mumf. 308 
(Va. 1819) ; Goodsell v. Fleming, 59 Wis. 52 (1883) ; and see Shea v. Sixth 
Ave. R. Co., 62 N. Y. 180 (1875), where the plaintiff was held to have the 
right to pass over the platform of a street car, stopped so as to block the 
crossing, and the conductor had no right to resist her passage; or which 
interferes with the defendant's access to his abutting premises; obstruction 
to the defendant's navigation of a river or stream, Philiber v. Matson, 14 
Pa. St. 306 (1850) ; Beach v Schotf, 28 Pa. St. 195 (1857) ; State v. Parrott, 
71 N. Car. 311 (1874) ; Selman v. Wolfe, 27 Tex. 68 (1863) ; Larson v. Fur- 
long, 63 Wis. 323 (1885), excavation in street from which the water, col- 
lected therein, flowed upon the defendant's land, State v. Smith, 52 Wis. 134 
(1881). 



PATTERSON V. NUTTER. 949 

believe it to be just and necessary.^ The teacher is the substitute 
of the parent; is charged in part with the performance of his 
duties, and in the exercise of these delegated duties, is invested 
with his power.^ The law has not undertaken to prescribe stated 
punishments for particular offenses, (by a pupil) but has contented 
itself with the general grant of the power of moderate correction, 
and has confided the graduation of punishments, within the limits 
of this grant, to the discretion of the teacher." 

This power of moderate correction unquestionably includes 
corporal punishment. Authorities are not needed for this proposi- 
tion. The subject was incidentally considered in Stevens v. Fas- 
sett, 27 Maine, 296, and it was declared by this court, through Judge 
Shepley, that personal chastisement was lawful in our schools, 
and was properly resorted where milder means of restraint were 
unavailing. Indeed, the plaintiff's counsel does not question that 
personal chastisement has been the practice, and has often been 



^As to the limits of the right of a parent, or one in loco parentis, to 
corporally punish his child, see State v. Alford, 68 N. Car. 322 (1873) ; State 
V. Jones, 95 N. Car. 588 (1886) ; People v. Green, 155 Mich. 524 (1909), with 
valuable note; State v. Koonse, 123 Mo. App. 655 (1907); Clasen v. Pruhs, 
69 Nebr. 278 (1903) ; and see Winterburn v. Brooks, 2 Car. & Kirw. 16 
(1846). In Smith v. Slocum, 62 111. 354 (1872), a father, as the head of a 
household, is held to have the right to employ the force necessary to pre- 
serve good, order and propriety of his household, and may remove from the 
room a grown daughter who is quarreling with the servant and slandering 
her step-mother, and who, after being told to go to her room, refuses to do so. 

No civil action for personal injury of any sort will lie by the child 
against his parent so long as the relation continues, Hewlett v. George, 68 
Miss. 703 (1891) ; Foley v. Foley, 61 111. App. 577 (1895) ; McKelvey v. Mc- 
Kelvey, 111 Tenn. 388 (1903) ; all cases of assault for excessive and cruel 
discipline; Roller v. Roller, 37 Wash. 242 (1905), assault for rape by father. 
In Fortinberry v. Holmes, 89 Miss. 373 (1906), it was held that a woman 
to whom the child's mother gave it to support and treat "as her own" stood 
in loco parentis, and was not liable to an action by the child for chastising 
it, though the mother had given instructions that the child was not to be 
whipped. But the parent, if he exercises his rights improperly, may be 
punished criminally, cases cited supra, or be deprived of the custody and 
control of the child, Cunningham's Case, 61 N. J. Eq. 454 (1901). 

In Clasen v. Pruhs, 69 Nebr. 278 (1903), it was held that where a child 
had been chastised by an aunt standing to her in loco parentis, she might 
maintain an action against such person after the relation had terminated; 
and in Treschman v. Treschman, 28 Ind. App. 206 (1901), a step-daughter 
successfully maintained an action against Iier step-mother. 

' So Cockburn, C. J., says, in Fitzgerald v. Northcote, 4 F. & F. 656 
(1865), p. 689, "A parent when he places his child with a schoolmaster, he 
delegates to him all his authority so far as it is necessary for the welfare 
of the child"; and see Mansell v. Griffin, L. R. 1908, 1 K. B. 160, per Walton, 
J., p. 169, holding that the fact that the school regulations, not known to her 
parent, forbade corporal punishment, did not make moderate punishment 
wrongful. 

In Lander v. Seaver, 32 Vt. 114 (1859), p. 123, it is held that the school- 
master "cannot be safely trusted with all a parent's authority, for he does 
not act from the instinct of parental affection." 

As to the liability of the head of a rehgious community to whom the 
child's parent has, in common with the other parents in the community, sur- 
rendered her right of punishment, see Donnelley v. Territory of Arizona, S 
Ariz. 291 (1898). 



950 PATTERSON V. NUTTER. 

declared to be lawful. He eloquently urges, however, that corporal 
punishment is a "relic of barbarism," that it has been ' abolished 
in the army and navy, and has been forbidden in many schools by 
school boards. He urges that the greater humanity and tender- 
ness of this age should not tolerate it in any schools, and that the 
courts of this day should recognize it as a proper mode of school 
punishment. Whatever force this argument might have with legis- 
latures or school boards, it should not move the court from the 
well established doctrine. 

The extent of the school-master's discretion in the exercises 
of this power of personal chastisement, is the only question here; 
and upon this question we thinly the law is well and correctly stated 
in Lander v. Seaver, 32 Vt. 1 14, as follows : "A school-master has 
the right to inflict reasonable corporal punishment. He must ex- 
ercise reasonable judgment and discretion, in determining when to 
punish and to what extent. In determining what is reasonable 
punishment, various considerations must be regarded, the nature 
of the offence, the apparent motive and disposition of the offender, 
the influence of his example and conduct upon others, and the sex, 
age, size and strength of the pupil to be punished. Among rea- 
sonable persons much difference prevails as to the circumstances 
which will justify the infliction of punishment, and the extent to 
which it may properly be administered. On account of this differ- 
ence of opinion and the difificulty which exists in determining what 
is a reasonable punishment, and the advantage which the master 
has, by being on the spot, to know all the circumstances, the man- 
ner, look, tone, gestures and language of the offender, (which are 
not always easily described) and thus to form a correct opinion 
as to the necessity and extent of the punishment, considerable 
allowance should be made to the teacher by the way of protecting 
him in the exercise of his discretion. Especially should he have 
this indulgence when he appears to have acted from good motives 
and not from anger or malice. Hence the teacher is not to be held 
liable on the ground of the excess of punishment, unless the pun- 
ishment is clearly excessive, and would be held so in the general 
judgment of reasonable men. If the punishment be thus clearly 
excessive, then the master would be liable for such excess, though 
he acted from good motives in inflicting the punishment, and in 
his own judgment considered it necessary and not excessive;^ but 



' He is equally liable if the punishment is inflicted without proper cause, 
Anderson v. State, 3 Head 455 (Tenn. 1859) ; State v. Misner, 50 Iowa 145 
(1878), child punished for not studying subjects which his parent had di- 
rected that he should not study; State v. Vanderbilt, 116 Ind. 11 (1888), 
child punished for not paying for school property destroyed by it, the regu- 
lation requiring such payment being held unreasonable, it being also inti- 
mated that a child may not be punished for carelessness, in which there is 
no purpose to do wrong, compare Heritage v. Dodge, 64 N. H. 297 (1886). 
Morrow v. Wood, 35 Wis. 59 (1874), child punished for acts outside of a 
teacher's jurisdiction, but a child may be punished for acts done outside the 
school, Cleary v. Booth, (1893) 1 Q. B. 465; Bolting v. State, 23 Tex. App. 172 
(1887), where the acts directly tend to injure the school discipline, Lander 



PATTERSON V. NUTTER. 951 

if there be any reasonable doubt whether the punishment was ex- 
cessive, the master should have the benefit of the doubt."* The 
foregoing statement of the law is well supported by the authorities 
cited in the notes to that case, in 76 Am. Dec. 163. 

Now comparing the judge's rulings in this case with the above 
clear exposition of the law, it will be seen that in one respect at 
least, there was error. It is true the master should be held to have 
exceeded his discretion and thus become liable as a trespasser, un- 
less the punishment is clearly excessive; but the judge ruled that 
the punishment must be so clearly excessive "that all hands would 
at once say it was excessive." The correct rule holds the teacher 
liable if he inflicts a punishment which the general judgment of 
such men, after thought and reflection, would call clearly excessive. 
The rule given at the trial of this case, however, would permit a 
teacher to proceed in severity of punishment until it became so 
great as to excite the instant condemnation of all men, the stupid 
and ignorant as well as the rational and intelligent. Such a ruling 
is clearly wrong and there should be a new trial. 

Exceptions sustained. New trial granted. 



V. Seaver, 32 Vt. 114 (1859). The master has no right to punish a pupil who 
is ignorant of the reason for it, State v. Mizner, supra. 

* Accord: Sheehan v. Sturges, 53 Conn. 481 (1885); Cooper v. Mclun- 
kin, 4 Ind. 290 (1840), with which compare Vanvactor v. State, 113 Ind. 276 
(1887) ; Comntionwealth v. Randall, 4 Gray 36 (Mass. 1855) ; Haycraft v. 
Grigsby, 88 Mo. App. 354 (1901) ; Lander v. Seaver, 32 Vt. 114 (1859), and 
see Keifs case, cited in 3 Salk. 47 (1692), and Fitzgerald v. Northcote, 4 F. & 
F. 656 (1856), and Regina v. Hopley, 2 F. & F. 202 (1860). 

On the other hand, many cases hold that, like a parent, a schoolmaster 
is the sole judge as to. Rentage v. Dodge, 64 N. H. 291 (1886), the necessity 
for and the severity of the punishment, Boyd v. State, 88 Ala. 169 (1890) ; 
Fox v. People, 84 111. App. 270 (1899) ; Commonwealth v. Seed, 5 Clark 78 
(Pa. 1850) ; State v. Pendergrass, 2 Dev. & B. 365 (N. Car. 1837) ; State 
V. Jones, 95 N. Car. 588 (1886), semble, and he is not answerable for errors 
of judgment, if he acts in good faith and without malice. 

In State v. Pendergrass, 2 Dev. & B. 365 (N. Car. 1837), and State v. 
Jones, 95 N. Car. 588 (1886), it is held that punishment "which may serious- 
ly endanger life and limb, or health, or shall disfigure the child, or cause 
any other permanent injury, may be pronounced of itself immoderate, as not 
only being unnecessary for, but inconsistent with the purpose for which 
correction is authorized," i. e., the future welfare of the child; and see 1 
Hawk, P. C, 261, 473-4. In Boyd v. State, 88 Ala. 169 (1890), the use of 
such an instrument is regarded as evidence of malice, see Commonwealth v. 
Seed, 5 Clark 78 (Pa. 1850). So malice may be inferred from the excessive 
nature of the beating, State v. Thornton, 136 N. Car. 610 (1904). 

In all jurisdictions it is an assault and battery to beat a pupil or son un- 
der pretext of duty, State v. Long, 117 N. Car. 791 (1895) ; or for spite, Com- 
monwealth v. Ebert, 11 Pa. Dist. Rep. 199 (1901) ; or out of revenge, State v. 
Thornton, 136 N. Car. 610 (1904), or from caprice, anger or bad temper, Bris- 
son v. Lafontaine, 8 Lower Can. Jur. 173 (1864) ; or to inflict a cruel punish- 
ment, Marlsbary v. State, 10 Ind. App. 21 (1833) ; Hathaway v. Rice, 19 Vt. 
102 (1846). 

The right of a master to correct his apprentice though denied in 1481, 
Anon., Y. B. 21 Edw. IV, 6, pi. 1, on the ground that he might have a writ 
of covenant for any misconduct, was allowed in the same year in Anon., Y. 
B. 21 Edw. IV, S3, pi. 17, accord: Commonwealth v. Baird, 1 Ashm. 267 (Pa. 
1830), semble, but this right does not extend to the correction of ordinary 



952 BROWX V. HOWARD. 

BROWN, HUSSEY AND ERITH v. HOWARD. 
Supreme Court of the state of New York, 1817. 14 Johnson's Rep. 118. 

The defendants in error brought an action, in the Court below, 
against the plaintiffs in error, for an assault and battery and false 
imprisonment on the high seas, on board the ship Tea-plant, on a 
voyage from Liverpool to New York. Brown, the master of the 
ship, pleaded not guilty, and son assault demesne, and the other 
two defendants, who were mates on board of the same vessel, 
pleaded not guilty, and justifial that they acted by the orders of 
Brown, the master. 

At the trial in the Court below, which was without a jury, five 
witnesses, who were seamen on board of the same vessel, testified 
on the part of the plaintiff below, also a seaman on board, that 
while it was blowing very hard, and the plaintiff and some other 
of the hands were engaged in hoisting and belaying the foresail, 
the captain took up a mallet, and after cursing at them, threatened 
to knock out their brains if they did not exert themselves more; 
that they were then ordered aft by the captain to hoist the mizzeii 
staysail, who, having, procured a rope about half an inch thick, 
violently struck the sailors, and attacked the plaintiff below, and 
gave him eight or ten blows with the rope ; that the plaintiff below 
asked him what he meant by such conduct, whereupon the captain 
again attacked him, and struck him a number of blows, and then 
endeavored to force him to go aloft to slush the skysail mast, a thin 
spar where there was nothing to hold by but the mast itself, and 
where, from the roughness of the sea, a man could not go with 
safety ; that the plaintiff below said that he had been so beaten that 
he could not hold on, and seized and clung to some part of the rig- 
ging, the . captain still pulling him with violence, until he forced 
him away, and both, by the violence of the captain's effort, and 
the rolling of the ship, fell upon the deck, the captain upon the 
plaintiff ; and, the other two defendants being present all this time, 
the second mate took the captain off from the plaintiff below, and 
the captain then ordered the two mates to tie the plaintiff below, 
hand and foot, which they did, and laid him on the quarter-deck; 
that the plaintiff remained bound in this manner, without the 
power of moving himself, exposed to the inclemency of the weather, 
in the month of March, for five days and nights, except during two 
nights, when the weather was so very bad that the captain ordered 
him to be put below; that after this the plaintiff below was asked 
by the captain if he would do his duty, to which, on replying in the 
affirmative, he was released, but was afterwards confined to his 
berth for some time by rheumatism, and that to relieve him the 
captain ordered one of the mates to apply some remedy to the part 



hired servants. Commonwealth v. Baird, 1 Ashm. 267 (Pa. 1830) ; Tinkle 
V. Dunivant, 16 Lea 503 (Tenn. 1886). 



BROWN V. HOWARD. 953 

affected, which was done accordingly. The justice gave judgment 
for the plaintiff below, for one hundred and twenty-five dollars. 

Although a captain may have a right to inflict corporal punish- 
ment upon a seaman under his command, yet it is not an arbitrary 
and uncontrolled right : he is amenable to the law for the due exer- 
cise of it. He ought to be able to show, not only that there was a 
sufficient cause for chastisement, but that the chastisement itself 
was reasonable and moderate. (2 Bos. & Pull. 224. 3 Day's Rep. 
285.) The rule on this subject is well laid down by Abbot. (On 
Shipping, 125.) By the common law, says he, the master has 
authority over all the mariners on board the ship, and it is their 
duty to obey his commands in all lawful matters, relative to the 
navigation of the ship, and the preservation of good order; and, 
in case of disobedience or disorderly conduct, he may lawfully 
correct them in a reasonable manner ; his authority, in this -respect, 
being analogous to that of a parent over a child, or a master over 
his apprentice, or scholar.^ Such an authority is absolutely neces- 
sary to the safety of the ship, and of the lives of the persons on 
board ; but ii behooves the master to be very careful in the exer- 
cise of it, and not to make his parental power a pretext for cruelty 
and oppression.^ 

Not being able to discover, from the return, the least justi- 
fication for the captain's treatment of the plaintiff below, and the 



^ The master's power is not co-extensive with that of the parent or even 
the schoolmaster, he can only punish for faults, which relate to the duties 
of (he seaman as such, or which tend to subvert the discipline of the ship, 
but not for general immoralities or improper conduct though tending to injure 
the discipline of the crew of another ship, Bangs v. Little, 1 Ware 520 (1839). 

" The force must be shown to be clearly excessive, Butler v. McLean, 1 
Ware 220 (1832) ; Benton v. Whitney, 1 Crabbe 417 (1841), for the reasons 
which require that the master shall have a wide discretion as to when and 
how to use violence to maintain discipline, see Ware J. in Bangs v. Little, 1 
Ware 520 (1839), and Hopkinson J. in Benton v. Whitney, 1 Crabbe 417 
(1841). In Forbes v. Parsons, Crabbe 283 (1839), Hopkinson J. says, p. 
288, that recovery should be allowed "first, when personal violence was af- 
flicted upon him, although not excessively, wantonly and without any provo- 
cation or cause; second, when provocation and cause were given by the 
seaman but the punishment was cruel and excessive, having no reasonable 
proportion to the provocation or fault for which it was inflicted; third, I 
have always looked with a severe eye to the instrument used in punishing." 
A rope, he regards as the proper punishment, the, fist barely permissible, 
while the use of a handspike, bludgeon, sword, or other deadly weapon, 
when there is no appearance of mutiny, Schelter v. York, 1 Crabbe 449 
(1841), or stamping upon the seaman when prostrate, are said to be clearly 
improper. But when there is cause and a proper instrument is used, he 
says, "I cannot institute a nice or scrupulous comparison between the of- 
fense of the sailor and the number or violence of the blows inflicted upon 
him for it." 

A sailor may be corporally chastised as well as imprisoned in punish- 
ment for a past offense. The Lowther Castle, 1 Hagg. Adm. 384 (1825); 
Michaelson v. Dennison, 3 Day 294 (1808) ; City of Mobile, 116 Fed. 212 
(1902), though in Padmore v. Piltz, 44 Fed. 104 (1890), it was held that 
a sailor may not be punished for insubordination, the ship being in a civil- 
ized port. Except under exceptional circumstances requiring immediate 
action, punishment should not be inflicted ■ without inquiry and hearing the 



954 BROWN V. HOWARD. 

mates having been acquainted with the whole transaction, I can 
perceive no ground upon which they can be exonerated as parties, 
nor, of course, admissible as witnesses. The judgment below must, 
accordingly, be affirmed. 

Judgment affirmed. 

sailor in his own defense, The Agincourt, 1 Hagg. Adm. 271 (1824) ; Mur- 
ray V. Moutrie, 6 C. & P. 471 (1834). 

The master of a vessel has the right to use force to preserve decent 
discipline among its passengers, and may imprison a disorderly passenger, 
Boyce v. Bayliffe, 1 Camp. 58 (1807), but he may not do so merely because 
such passenger shows him disrespect, King v. Franklin, 1 F. & F. 360 (1858), 
passenger, during a dispute in regar^ to playing cards, called the captain 
"the landlord of a floating hotel"; Aldworth y. Stewart, 4 F. & F. 957 (1866), 
passenger assaulted and imprisoned for putting his fingers to his nose at the 
captain in the course of a complaint in regard to the character of the food 
furnished. 



Part 2. 

Acts Harmful to Others Excused Because Freedom 

of Action or the Act is Regarded as 

of Social Benefit. 



CHAPTER I. 

Conduct Excused Because of the Necessity of Preserving the 

Independence of the Sovereign in Its Dealings 

With Other Nations. 



UNDERBILL v. HERNANDEZ. 
United States Court of Appeals, 1897. 168 U. S. 2S0. 

Hernandez was in command of a revolutionary army in Vene- 
zuela when an engagement took place with the government forces 
which resulted in the defeat of the latter, and the occupation of 
Bolivar by the former. Underbill was living in Bolivar, where be 
had constructed a waterworks system for the city under a contract 
with the government, and carried on a machinery repair business. 
He applied for a passport to leave the city, which was refused by 
Hernandez with a view to coerce bim to operate his waterworks 
and bis repair works for the benefit of the community and the revo- 
lutionary forces. Subsequently a passport was given bim. The 
revolutionary government under which Hernandez was acting was 
recognized by the United States as the legitimate government of 
Venezuela. Subsequently Underbill sued Hernandez in the Circuit 
Court for the Second Circuit to recover damages caused by the re- 
fusal to grant the passport, for alleged confinement of him to his 
own house, and for alleged assaults and affronts by Hernandez' sol- 
diers. Judgment being rendered for defendant the case was taken 
to the Circuit Court of Appeals, where the judgment was affirmed. 
Thereupon the case was brought to this court on certiorari. 

Mr. Chief Justice F]uller, after stating the case, delivered 
the opinion of the court. 

Every sovereign state is bound to respect the independence of 
every other sovereign state, and the courts of one country will not 
sit in judgment on the acts of the government of another done 
within its own territory. Redress of grievances by reason of such 

955 



956 UNDERHILL V. HERNANDEZ. 

acts must be obtained through the means open to be availed of by 
sovereign powers as between themselves. 

Nor can the principle be confined to lawful or recognized gov- 
ernments, or to cases where redress can manifestly be had through 
public channels. The immunity of individuals from suits brought 
in foreign tribunals for acts done within their own States, in the 
exercise of governmental authority, whether as civil officers or as 
military commanders, must necessarily extend to the agents of gov- 
ernments ruling by paramount force as matter of fact. Where a 
civil war prevails, that is, where the people of a country are divided 
into two hostile parties, who take up arms and oppose one another 
by military force, generally speaking foreign nations do not assume 
to judge of the merits of the quarrel. If the party seeking to dis- 
lodge the existing government succeeds, and the independence of 
the government it has set up is recognized, then the acts of such 
government from the commencement of its existence are regarded 
as those of an independent nation. If the political revolt fails of 
success, still if actual war has been waged, acts of legitimate war- 
fare cannot be made the basis of individual liability. United States 
V. Rice, 4 Wheat. 246 ; Fleming v. Page, 9 How. 603 ; Thorington v. 
Smith, 8 Wall, i ; Williams v. Bruify, 96 U. S. 176 ; Ford v. Surgett, 
97 U. S. 594; Dow V. Johnson, 100 U. S. 158 ; and other cases.^ 



CHAPTER II. 

Conduct Excused When Necessary to Secure the Proper Admin- 
istration of Justice. 



SECTION 1. 



Immunity of the Judiciary. 



Glanville — Book 8, Chapter 9 — (_Ca. 1,200) Beame's Edition, p. 210. 

"If any one should declare against the Court for passing a false Judg- 
ment, and, therefore false, because when one party had said thus, and the 
other answered thus, the Court in question had judged falsely of their allega- 
tions by deciding in such words, and that the Court had given such false 
Judgment by the mouth of N. ; and, if he were disposed to deny the present 

^"The transactions of independent states between each other are gov- 
erned by other laws than those which municipal courts administer; such 
courts have neither the means of deciding what is right, nor the power of 
enforcing any decision that they make," Secretary of State in Council of 
India v. Kamachee Boye Sahaba, 13 Moo. P. C. 22 (18S9), p. 75, "The 
appeal is to the sword and to almighty Justice, and not to courts of law or 
equity. In the exercise of sovereign right, the sovereign is sole arbiter of 
his own justice. The penalty of wrong is war and subjugation." — Johnson, J. 
in Cherokee Nation v. Georgia, S Peters 1 (U. _S. 1831), p. 28. 

Nor can a foreign subject maintain an action against an official for acts 



ANDERSON V. GORRIE. 957 

charge, the other was prepared to prove it against him, chiefly by such proper 
witness, who was ready to enter upon the proof. Thus may the matter, and 
that very properly, be decided by the Duel.^ But, whether such Court is 
obliged to defend itself by one of its own members, or may have recourse 
to a stranger, may be questioned?" 



ANDERSON v. GORRIE. 
Court of Appeal, 1894. 189S Law Reports, 1 Queen's Bench Div. 668. 

Lord Esher, M. R. In this case an action was brought by the 
plaintiff against several judges of the Supreme Court of a colony 
for damages for wrongful acts done by them in committing him for 
contempt of Court, and in holding him to excessive bail. 

The defendants were judges of a Supreme Court in a colony, 
and the first question is whether these matters were matters with 
which they had jurisdiction to deal. As to the contempt of Court, 
it cannot be denied that they had jurisdiction to inquire whether a 
contempt had been committed, and, further, it cannot be denied that 
they had power to hold a person to bail in the cases provided for by 
the colonial statute which expressly gives that power. These two 
matters were obviously within the jurisdiction of the Court. No 
one can doubt that if any judge exercises his jurisdiction from ma- 
licious motives he has been guilty of a gross dereliction of duty ; 
but the question that arises is what is to be done in such a case. In 
this country a judge can be removed from his office on an address 
by both Houses of Parliament to the Crown. In a colony such an 
address is not necessary. The governor of the colony represents 
the Sovereign, and over him is the Secretary of State for the Col- 
onies, who represents Her Majesty and can direct the removal of 
the judge. But the existence of a remedy would not in either of 
these cases of itself prevent an action by a private person; so that 
the question arises whether there can be an action against a judge 
of a Court of Record for doing something within his jurisdiction, 
but doing it maliciously and contrary to good faith. By the com- 
mon law of England it is the law that no such action will lie. The 
ground alleged from the earliest times as that on which this rule 

injurious to him, if the official's action is done under the antecedent command 
of his government or is ratified by its subsequent approval and adoption, Ruan 
V. Perry, 3 Caines, 120 (N. Y. 1805) ; Durand v. Hollins, 4 Blatchf. 451 
(Dist. Ct. U. S. 1860), property destroyed in bombardment of Greytown, 
Nicaragua; Bur on v. Denman, 2 Exch. 167 (1848). 

The Privy Council have regarded the dealings of the East India Com- 
pany, and the Indian Empire as its successor, with independent native states 
and their subjects as within this principle, Secretary of State in Council of 
India v. Kamachee Boye Sahaba, 13 Moo. P. C. 22 (1859). 

^"The liberty of falsifying a Judgment was allowed by the Assises of 
Jerusalem. But the person, availing himself of this dangerous privilege, 
seems to have been obliged to fight all the persons composing the Court, not 
merely the Judges, but the Suitors, one after the other. Under these cir- 
cumstances, the privilege would, probably, not often be claimed. (Assis. de 
Jerusalem, c. 111.)" 



958 ANDERSON V. GORRIE. 

rests is that if such an action would lie the judges would lose their 
independence, and that the absolute freedom and independence of 
the judges is necessary for the administration of justice. That is 
the ground stated in Miller v. Hope, 2 Shaw Sc.App. Cas. 125, in 
the year 1824, by Lord Giflford by his judgment in the House of 
Lords; and in 1892, in Haggard v. Pelicier Freres, (1892) A. C. 61, 
at p. 68, Lord Watson says : "It is due to the appellant to state that 
the respondents in their pleadings make no imputation of dishon- 
esty, although their Lordships do not mean to suggest that such an 
imputation, if it had been made and proved, would have deprived 
him of the immunity which the law accords to a judge in his posi- 
tion." Crompton J. in Fray v. Bl^kburn, 3 B. & S. 576, at p. 578, 
said : "It is a principle of our law that no action will lie against a 
judge of one of the superior Courts for a judicial act, though it be 
alleged to have been done maliciously and corruptly. * * * The 
public are deeply interested in this rule, which indeed exists for 
their benefit, and was established in order to secure the independence 
of the judges, and prevent their being harassed by vexatious ac- 
tions." 

The reasons for the rule were more fully stated by Kelly C. B. 
in Scott V. Stansfield, Law Rep. 3 Ex. 220. If a judge goes beyond 
his jurisdiction a different set of considerations arise. The only 
difference between judges of the Superior Courts and other judges 
consists in the extent of their respective jurisdiction.' It follows 
from what I have said that, taking the findings of the jury to be true 
to the fullest extent, the action will not lie against the defendant, 
and the appeal must he dismissed. 

Kay, L. J. I am of the same opinion. I take the law to be 
clear that for an act done by a judge in his capacity of judge he 
cannot be made liable in an action, even though he acted maliciously 
and for the purpose of gratifying private spleen. It cannot be de- 
nied that all the acts complained of were done by the defendant in 
his capacity of judge, and whether he acted rightly or wrongly can- 
not be questioned in this action. Agreeing entirely with what the 
Master of the Rolls has said, and with the judgment of Kelly C. B. 
in Scott V. Stansfield, Law Rep. 3 Ex. 220, I come to the conclusion 
that this action will not lie.^ 

Appeal dismissed. 

^ "There is a marked distinction between courts of general jurisdiction 
and inferior tribunals having only a special or limited jurisdiction. In the 
former case, the presumption of law is that they had jurisdiction until the 
contrary is shown; but with regard to inferior courts and magistrates, it 
is for them, when claiming any right or exemption under their proceedings, 
to show affirmatively that they acted within the limits of their jurisdiction." 
— Bigelow, J. in Piper v. Pearson, 2 Gray 120 (Mass. 1854) ; Lund v. Hennes- 
sey, 67 III. App. 233 (1896), but see IVright v. Hazen &■ Gordon, 24 Vt. 143 
(18S2). 

■"Accord: Lib. Ass. 27 Ed. Ill, p. 18 (1352); Y. B. 9 Hen. VI, 60, pi. 
9 (1430) ; Y. B. 9 Edw. IV, 3 pi. 10 (1469) ; 27 Edw. VI, 67, pi. 49 (1572) ; 
Floyd V. Barker, 12 Coke 23 (1608) ; Hammond v. Howell, 2 Mod 218 
(1688), cited in Yates v. Lansing. 5 Johns. 282 (N. Y. 1810), by Kent, C J.; 
Pray v. Blackburn. 3 B. & S. 576 (1863) ; Bradley v. Fisher, 13 Wall. 335 
(U. S. S. C. 1871) ; Woodruff v. Stewart, 63 Ala. 206 (1879) ; Borden v 



MC CREADIE V. .THOMSON. 959 

McCREADIE v. THOMSON. 

Court of Session, 1907. 1907 Session Cases, 1176. 

Lord Justice-Clerk. — This case raises a question of much 
importance. The pursuer asks for damages from a Magistrate sit- 
ting in a summary Court on the ground that he sentenced her to im- 
prisonment without the option of a fine, under a complaint based 
upon a clause of a statute which did not empower him to pronounce 
a sentence of imprisonment except as an alternative to the nonpay- 
ment of a pecuniary penalty, the prayer of the complaint being in 
terms of the statute. She alleges that although it was pointed out 
by the clerk as the Court's assessor that such a sentence could not be 
pronounced, he insisted on inflicting it, on the view that he could 
deal with the matter, not as it was charged in the complaint, but as 
constituting an offence at common law, viz., a breach of the peace, 



State, 11 Ark. 519 (1851) ; Hughes v. McCoy, 11 Colo. 591 (1888) ; Elmore 
V. Overton, 104 Ind. 548 (1885), semble; Harrison v. Redden, S3 Kans. 265 
(1894), where a judge was accused of having notified a defendant of the 
plaintiff's intention to sue for alimony and having advised him to leave the 
jurisdiction; Stewart v. Cooley, 23 Minn. 347 (1877), semble; Yates v. Lan- 
sing, S Johns. 282 (N. Y. 1810) ; Lange v. Benedict, IZ N. Y. 12 (1878) ; 
Ross V. Rittenhouse, 2 Dall. 160 (Pa. 1792), 1 Yeats 443 (Pa. 1795) ; Brodie v. 
Rutledge, 2 Bay 69 (S. Car. 1796) ; Cope v. Ramsey, 2 Heisk. 197 (Tenii. 
1870.) This privilege extends to "every judge, whether of a higher or lower 
court, exercising the jurisdiction vested in him by law," Shaw, C. J., Pratt 
V. Gardner, 2 Cush. 63 (Mass. 1848), including justices of the peace, magis- 
trates, etc., Cunningham v. Dilliard. 4 Dev. & B. 351 (N. Car. 1839) ; Pepper 
V. Mayes, 81 Ky. 673 (1884) ; Fausler v. Parsons, 6 W. Va. 486 (1873) ; Reid 
V. Hood, 2 N. & McC. 168 (S. Car. 1819) ; Lund v. Hennessey, 67 111. App. 
233 (1896) ; Sorensen v. Wellman, 69 Kans. 6Z7 (1904) ; Tylor v. Alford, 38 
Maine 530 (1854) ; Curnow v. Kessler, 110 Mich. 10 (1896) ; Stone v. Graves, 
8 Mo. 148 (1843) ; Burnham v. Stevens, 33 N. H. 247 (1856) ; Handshaw v. 
Arthur, 161 N. Y. 664 (1900) ; Hanna v. Slevin, 8 Pa. S. C. 509 (1898) ; 
Hoggatt v. Bigley, 6 Humph. 236 (Tenn. 1845) ; Gaines v. Newbrough, 12 
Tex. Civ. App. 466 (1896); Cooke v. Bangs, 31 Fed. 640 (1887), compare 
Yates V. Lansing, 5 Johns. 282 (N. Y. 1810). 

While for a time it seemed to be doubtful whether British judges of 
courts not of record were liable for malicious or corrupt exercise of their 
judicial powers. Clerk & Lindsell on Torts, 6th ed. (1912), pp. 808-809, a 
consular court, which was not a court of record, was held entitled to pro- 
tection equal to that given such courts. Haggard v. Pelicier Freres, L. R. 
1892 A. C. 61. Some American jurisdictions lay down the rule that a 
Justice of the Peace or other inferior judge, is not liable unless he 
acts maliciously or corruptly. Baker v. Morgan, 5 Ky. L. 323 (1883)- 
but see Pepper v. Mayes, 81 Ky. 673 (1884) ; Gault v. Wallis, 53 Ga. 675 
(1875); Heath v. Half hill, 106 Iowa 131 (1898); Knell v. Briscoe, 49 Md 
414 (1878); while m_ Stewart v. Cooley, 23 Minn. 347 (1877), it is held 
while the motives which prompt the judicial action of a judge are imma- 
terial, he may be liable for participating in_ a conspiracy with a suitor to 
injure the plaintiff by the abuse of his judicial function. 

As to the immunity of public officers, as such exercising quasi-judicial 
functions, such as tax assessors or selectmen appraising property for taxation. 
Weaver v. Devendorf, 3 Denio 117 (N. Y. 1846) ; Fawcett v. Dole, 67 N. H. 168 
(1891) ; Stearns v. Miller, 25 Vt. 20 (1852), or dividing among churches the 
rents from land, granted for their use, Univ. Soc. v. Leach, 35 Vt. 108 (1862), 
a city council awarding contracts, East River, etc., Co. v. Donnelly, 93 N. Y. 557 



960 MC CREADIE V. THOMSON. 

for which he had by law the power to pronounce a sentence of im- 
prisonment as a direct punishment. That he erred in this cannot be 
doubted, and that consequently he acted outwith and in excess of his 
jurisdiction is equally plain. The question now before the Court is 
whether an action of damages can be competently and relevantly 
raised against him in these circumstances. 

We had the advantage of a very able and full argument from 
the Bar, the one party alleging that a Judge sitting as the defender 
did is immune from all action at law for damages for anything done 
by him when sitting in his judicial capacity; the other party main- 
taining that while such immunity from attack in a Court of law ap- 
plies to Judges of superior jurisdiction, there is no law to the effect 
that inferior Magistrates may not be called upon to make reparation 
where they have gone outside their powers and inflicted a wrong. 

Upon the question of immunity of the Judges of the Supreme 
Court there can be no doubt. The principle is clear and the de- 
cisions are emphatic. The principle is that such Judges are the 
King's Judges' directly, bound to administer the law between his 
subjects and even between his subjects and himself. To make 
them amenable to actions of damages for things done in 
their judicial capacity, to be dealt with by Judges only their 
equals in authority and by juries, would be to make them not 
responsible to the King, but subject to other considerations than 
their duty to him in giving their decisions, and to expose 
them to be dealt with as servants not of him but of the public. 



(1883), a superintendent of a State Insane Asylum determining that a per- 
son should be detained as dangerously insane. Van Deusen v. Newcomer, 40 
Mich. 90 (1879), a surveyor general revoking the commission of a deputy. 
Reed v. Conway, 20 Mo. 22 (1854), a superintendent of schools refusing to 
issue a teacher's license, Elmore v. Overton, 104 Ind. 548 (1885), see Dona- 
hoe V. Richards, 38 JNIaine 379 (1854), there is a conflict of authority, in 
Weaver v. Devendorf and East River Co. v. Donnelly, their immunity is held 
to be as complete as that of judges; in Van Deusen v. Newcomer, they are 
held not liable for "acts done understandingly and in good faith"; in Faiv- 
cett V. Dole, assessors are said not to be liable "for errors of judgment, un- 
intentional mistakes, irregularities or illegalities in the assessment"; in Reed 
V. Conway, they are held liable only if they act maliciously or corruptly, see 
Pepper V. Mayes, 81 Ky. 673 (1884), and Elmore v. Overton, and Donahoe v. 
Richards, where, though it is said that their functions are not judicial but ad- 
ministrative, liability is held to depend on proof of malice or corrupt motives; 
while in Stearns v. Miller and Univ. Soc. v. Leach, they are held liable for 
injurious errors due to fraud, malice, or "want of common care and skill." 
As to the liability of officials given by statute the power to destroy prop- 
erty if it be harmful to the public, as horses having glanders, etc., or Boards 
of Health empowered to destroy property endangering the health of the 
community or of officers obeying their orders, compare Miller v. Horton, 
152 Mass. 540 (1891) and Pearson v. Zehr, 138 111. 48 (1891) with Raymond 
V. Fish, 51 Conn. 80 (1883) and Valentine v. Englewood, 76 N. J. L. 509 
(1908). 

As to the liability of election officers for refusing to receive the vote 
of a qualified voter, compare Morgan v. Dudley, 18 B. Mon. 693 (Ky. 1857), 
Bevard v. Hoffman, 18 Md. 479 (1862), holding that they are liable only if 
they do so maliciously or from corrupt motives, with Lincoln v. Hapgood, 
11 Mass. 350 (1814), where a mere refusal is, without more, held to entail 
liability. 



MC CREADIE V. THOMSON. 961 

Accordingly the remedy in this case, if they flagrantly offend against 
duty, is not by proceedings in any Court, but only by addresses to 
the Crown from the Houses of Parliament. Between their position 
and that of Judges appointed not by the King but by the community 
or some authority in the community not having the kingly preroga- 
tive, but only acting by a delegated authority for local administra- 
tion as in the case of Justices of the Peace appointed by the Lord 
Chancellor, there is no analogy. Therefore any claim for immunity 
for acts done in local summary Courts cannot be based on the fact 
of the immunity of the Supreme Court Judges. That the highest 
Courts of justice are designated "Supreme Courts" of itself indi- 
cates the distinction. The Supreme Courts have power to right 
wrongs done in the inferior Courts, their jurisdiction being uni- 
versal, and their duty being to see justice done throughout the land. 
The other Courts have no jurisdiction beyond their own border, and 
cannot review the conduct of any other Judge within their border. 

Is there, then, any immunity attaching to the Judges of the in- 
ferior Courts for their actings when sitting in judgment? Certainly 
there is. They cannot be made amenable for words used, however 
severely they may comment on the conduct of individuals, provided 
such words are uttered where acting in the exercise of their magis- 
terial functions. Of this the case at Waterston, 4 F. 783, is the 
latest and most emphatic instance. 

But while this is so, it is a totally different question whether a 
Magistrate who when sitting as such does official acts which he has 
no power to do under a statute in accordance with which he is bound 
to act, and which judicial acts have the effect of restraining the 
liberty of the subject, and subjecting him to penalty in his person, 
is immune from civil consequences for the wrong he has done. I 
do not think that this has ever been held, and the opposite has been 
held in many cases. Where a Magistrate professing to sit as such, 
and dealing with a case which he has no jurisdiction to deal with at 
all, commits what is an undoubted wrong upon a citizen, both by 
principle and practice he is held liable for the wrong done. If that 
is so, can it be said that a Magistrate who has before him a case 
which he can competently try under an Act of Parliament on which 
the complaint is founded, and who, instead of dealing with the case 
as it is before him, and on conviction awarding such punishment as 
the Act prescribes and allows, proceeds knowingly to pronounce a 
sentence which is not competent under the Act of Parliament, and 
thereby sends a person to prison contrary to the Act of Parlia- 
ment, — I say, can it be said that he is in any more favorable posi- 
tion than a Magistrate trying a case in circumstances where he has 
no jurisdiction? In the one case his sentence is illegal, because he 
has no complaint before him on which he can pronounce a sentence 
at all. In the other he has a complaint before him, on which he can- 
not pronounce the sentence which he does pronounce. The wrong 
is as great in the latter case as in the former. For as well might he 
have no jurisdiction at all as step outside the jurisdiction which he 
does possess, to do something which he could not do if he held him- 



962 MC CREADIE V. THOMSON. 

self within the limits prescribed to him by the law under which he 
was called to exercise his jurisdiction. The case of Groome v. For- 
rester, 5 Maule & Selwyn, 314, decided in England, is a forcible 
illustration of the fact that there may be liability in a Magistrate, 
not merely for acting without jurisdiction, but for doing an act in 
excess of the jurisdiction he was called upon to exercise. In that 
case, as here, the Magistrate could have pronounced an effective 
judgment, under which incarceration might have taken place. The 
mistake made was that while the thing complained of was that an 
overseer had refused to obey an order of the Court by delivering 
up a certain book, he was committed till he should have delivered 
up "all and every, the books," &c.. In that case the Magistrates were 
held liable in damages for "a clear excess of jurisdiction." 

Here I think it is necessary to draw a distinction. It is where 
the error committed by the inferior Magistrate takes effect that his 
liability to answer for the wrong done arises. It is not for what he 
has ordered, but for what he has caused another to suffer that he is 
amenable to the law. That he has pronounced an illegal sentence 
is not sufficient to subject him in damages if nothing has been done 
upon it. But when it has been carried out so that the wrong has 
been made effective, then he may be answerable. This is illustrated 
by the English case, Barton v. Bricknell, 13 Q. B. (Ad. & El. N. S.) 
393, where an illegal sentence ordering confinement in the stocks 
was pronounced, but was not carried out, so that the wrong was not 
suffered. Accordingly it was held that no claim for damages could 
be sustained. 

It only remains to be seen whether, under the legal decisions 
which have been pronounced, it can be held that in such a case as 
the present, in which a Magistrate sitting in a Police Court has pro- 
nounced a sentence of imprisonment for a term, without the option 
of a fine, where he had no jurisdiction to do so, he is free from any 
action. I am unable to find, after an examination of the cases 
quoted in the debate, that they lead to any such conclusion. One 
other case was referred to in reply by the reclaimer — that of Ander- 
son V. Gorrie, L. R. (1895) i Q. B. 668. That case also has no bear- 
ing, being the case of a Supreme Court Judge of a colony, and it was 
held that his position was analogous to that of a Supreme Court 
Judge in this country, and that he could not be sued for an act done 
in his capacity as Judge, whether he acted rightly or wrongly. 

On the question whether in this case it is necessary to aver 
specific malice, and to put malice in issue, I concur with the Lord 
Ordinary that the case being one in which the wrong complained 
of was an entirely ultra vires act by the magistrate, it is not neces- 
sary for the pursuer to prove malice. I adopt the words of Lord 
Pitmilly, who said in a similar case, (Strachan v. Stoddart, 7 S., at 
p. 6) — "It is no matter whether it was from error or malice, if 
. . . grossly illegal and irregular, the party is entitled to claim 
damages alike from the private party and the judge. ^ 



^ Accord: Crepps v. Durden, 2 Cowp. 640 (1777) ; Burlingham v. Wylee, 
2 Root 152 (Conn. 1794) ; Lanpher v. Dewell, 56 Iowa 153 (1881) ; Sheldon v. 



HOULDEN V. SMITH. 963 

HOULDEN V. SMITH. 

Court of Exchequer, 1850. 14 Adolphus &■ Ellis (N. S.) 841. 

Patterson, J. This was an action for trespass and false im- 
prisonment against the defendant, the judge of the county court in 
Lincolnshire. The defendant pleaded Not guilty, but not saying 
"by statute ;" also a plea of want of notice of action ; but the notice 
was proved at the trial. The facts appear to be that the plaintiff, 
being resident in Cambridgeshire, was sued in the county court at 
Spilsby in Lincolnshire by special order of the defendant under the 
60th section of stat. 9 & lo Vict. c. 95. The plaintiff was served 
with the summons in Cambridgeshire, and not appearing, judgment 
was given against him by default at the court at Spilsby on the i8th 
of August, 1847. A judgment order was served on the plaintiff in 
Cambridgeshire on the 25th of August. A warrant against the 
goods of the plaintiff within the jurisdiction of the Spilsby court 
was issued on the 14th of September, which was transmitted, under 
the 104th section of the Act, (see stat. 15 & 16 Vict. c. 54, s. 5.) to 
the county court in Cambridgeshire, and returned "no effects." So 
far the proceedings were all regular. On the 21st of September a 
summons was issued by order of the defendant, calling on the plain- 
tiff to appear at the Spilsby court on the 7th of October, and be ex- 
amined as to his not paying the debt and costs, and as to his estate 
and effects. This summons was without jurisdiction; for the sec- 
tion, 98, which authorizes the issuing such summons, directs it to 
be issued by the county court within the limits of which the party 
shall then dwell or carry on his business ; which in this case was the 
county seat at Cambridgeshire ; for in that county only the plaintiff 
dwelt and carried on his business during the whole of these proceed- 
ings. This summons was served on the plaintiff in Cambridgeshire 
on the 27th of September, On the 7th of October the plaintiff did 
not appear at the county court at Spilsby ; and, the service of the 
last summons having been proved, the defendant, as judge of the 
court, believing that he had power and authority to do so, made a 
minute in the minute book of the court, whereby it was ordered that 
the plaintiff should, for contempt in not attending, be committed to 

Hill, 33 Mich. 171 (1876) ; Estopinal v. Peyroux, 37 La. Ann. 477 (1885) ; 
Patzack V. Von Gerichten, 10 Mo. App. 424 (1881); and see Kennedy v. Bdr- 
nett, 64 Pa. 141 (1870), semble. 

Contra: Austin v. Vrooman, 128 N. Y. 229 (1891.) ; Handshaw v. Arthur, 
9 App. Div. 175 (N. Y. 1896), 161 N. Y. 664 (1900) ; Sorensen v. Wellman, 69 
Kans.637 (1904) ; Curnow v. Kessler,\lQ Mich. 10 (1896) ; Comstock v. Eagle- 
ton, 11 Okla. 487 (1902), holding that where a justice of the peace or other 
inferior judicial officer of limited jurisdiction has jurisdiction of the subject 
matter and person, he is no more liable than a judge of a superior court is lia- 
ble though his action is in excess of the powers conferred upon him by statute 
or is expressly forbidden thereby, Bradley v. Fisher, 13 Wall. 335 (U. S. 
1871) ; Yates v. Lansing, 5 Johns. 282 (N. Y. 1810) ; Hughes v. McCoy, 11 
Colo. 591 (1888); Robertson v. Parker, 99 Wis. 652 (1898); cf. Heller v. 
Clarke, 121 Wis. 71 (1904); see Cooke v. Bangs, 31 Fed. 640 (1887), and 
Robertson v. Hale, 68 N. H. 538 (1896). 



964 HOULDEN V. SMITH. 

Cambridge gaol for fourteen days. A warrant was made out ac- 
cordingly ; and he was so committed. 

That this commitment was without jurisdiction is plain; that 
the defendant ordered it under a mistake of the law and not of the 
facts is equally plain ; for it is impossible that he could be ignorant 
that the plaintiff dwelt and carried on his business in Cambridge- 
shire, the service of all the processes having been proved to have 
been made there, and the defendant having originally specially al- 
lowed the plaint to be made in his court, within the jurisdiction 
of which the cause of action accrued, the defendant (the now plain- 
tiff) residing in Cambridgeshire. This case is not therefore within 
the principle of Lowther V. The ^arl of Radnor, 8 East, 113, 119, 
or Gwinne v. Poole, 2 Lutw. Appendix, 1560, 1566, where the facts 
of the case, although subsequently found to be false, were such as, 
if true, would give jurisdiction, and it was held that the question as 
to jurisdiction or not must depend on the state of facts as they ap- 
peared to the magistrate or judge assuming to have jurisdiction.' 
Here the facts of the case, which were before the defendant and 
could not be unknown to him, showed that he had no jurisdiction ; 
and his mistaking the law as applied to those facts cannot give him ' 
even a prima facie jurisdiction, or semblance of any. The only 
questions, therefore, are, whether the defendant is protected from 
liability at common law, being and acting as the judge of a court of 
record, in which case the plea of Not guilty would be sufficient ; or 
whether he is protected by the provisions of any statute, and if so, 
whether he can take advantage of such statute, having omitted the 
words "by statute" in his plea and the margin of it. 

As to the first question, although it is clear that the judge of a 
court of record is not answerable at common law in an action for an 
erroneous judgment, or for the act of any officer of the court wrong- 
fully done, not in pursuance of, though under color of, a judgment 
of the court, yet we have found no authority for saying that he is not 
answerable in an action for an act done by his command and author- 
ity when he has no jurisdiction. Here the defendant had not only no 
jurisdiction to commit the plaintiff to the gaol of Cambridgeshire, 
but he had no jurisdiction to summon him to show cause why he 
had not paid the debt. The summons ought to have been issued out 
of the county court of Cambridge. 

We cannot therefore hold that the defendant in this case is pro- 
tected from liability at common law. 

Is he then protected by any statute? We find no statute which 
gives such protection.- The statutes of 21 Ja. i, c. 12, s. 5, and 42 G. 
3, c. 85, s. 6, enable the defence, when it exists, to be given in evi- 
dence under the general issue, but they do not protect a party acting 
without jurisdiction; and now even that privilege of pleading the 



^Accord: Cave v. Mountain, 1 Man. & Gr. 257 (1840) ; Calder v. Halket, 
3 Moore P. C. Cases 28 (1839) ; Pike v. Carter, 3 Bing. 78 (182S), aliter where 
the court has means of knowledge of which he should have availed him- 
self ; see The Case of Marshalsea, 10 Coke 68 b. as explained by Powel B. in 

Gwinn v. Poole. 



GROVE V. VAN DUYN. 965 

general issue only is coupled with this qualification, that the plea 
must be stated to be "by statute," which words are omitted here. 
The judgment must therefore be for the plaintiff. 

Judgment for plaintiff.^ 

GROVE V. VAN DUYN. 

Court of Errors and Appeals, 1882. 44 ^V^. /. L. 6S4. 

On error to the Middlesex Circuit. 

This was an action for trespass for assault and unlawful im- 
prisonment. The defendant, Cornelius Van Duyn, pleaded the gen- 
eral issue of not guilty to the declaration, which was in its usual 
form in trespass, for assault and unlawful imprisonment. 

The defendant Charles L. Stout also pleaded the general issue 
to the said declaration, and gave notice of special matter in evidence 
under said plea, setting up that he was one of the justices of the 
peace of the county of Middlesex, and that the following complaint 
was made before him by Cornelius Van Duyn : 

State of New Jersey, Middlesex county, ss. — Cornelius Van 
Duyn, administrator of Samuel Van Tilburgh, deceased, of the 
township of Franklin, county of Somerset, upon his oath complains 
that on the 1st day of December, 1879, at the township of South 
Brunswick, in the county of Middlesex, Simeon P. Grove, William 
H. Grove, Jr., and Jediah Higgins, with force and arms, did enter 
upon the lands of Samuel Van Tilburgh, deceased, and with force 
and arms did unlawfully carry away about four hundred bundles of 
cornstalks, to the value of $8, and were engaged in carrying other 
cornstalks from said lands of said Van Tilburgh, deceased; and 
therefore he prays that, the said Simeon P. Grove, William H. 
Grove, Jr., and Jediah Higgins may be apprehended and held to 
answer said complaint and dealt with as law and justice may require. 

C. Van Duyn, 
Administrator. 
Sworn and subscribed before me this ist day of December, 1879. 

Chas. L. Stout, 
Justice of the Peace. 

Stout, as such justice, thereupon issued his warrant in the ordi- 
nary form, directing the said two persons and the said Higgins to 

'Accord: Terry v. Huntington, Hard. 480 (1668) ; Smith v. Bouchier, 2 
Strange 993 (1731) ; Wingate v. Waite, 6 M. & W. 739 (1840) ; Ely v. Thomp- 
son, 3 A. K. Marsh. 70 (Ky. 1820) ; Piper v. Pearson, 2 Gray 120 (Mass. 
1854) ; Selby v. Platts, 3 Chand. 183_ (Wis. 1851) ; Woodward v. Paine, 15 
Johns. 493 (N. Y. 1818) ; Mitchell v. Galen, 1 Alaska 339 (1901) ; Craig v. Bur- 
nett, 32 Ala. 728 (1858) ; Russell v. Perry, 14 N. H. 152 (1843) ; Clark v. 
Holmes, 1 Dougl. 390 (Mich. 1844) ; Call v. Pike, 66 Maine 350 (1876) ; and 
McVea v. Walker, 11 Tex. Civ. App. 46 (1895), both cases where the magis- 
trate was disqualified by reason of relationship to one of the parties ; Morgan 
V. Allen, 27 N. Car. 156 (1844), value of matter in controversy exceeded that 
over which justices had jurisdiction; but see Young v. Herbert, 2 N. & McC. 
172 (S. Car. 1819) ; Morrill v. Thurston, 46 Vt. 732 (1874) ; Vaughn v. Cong- 
don, 56 Vt. Ill (1883), arrest on a warrant issued upon a complaint showing 
on its face that the statute of limitation had run on the offense charged. 



966 GROVE V. VAN DUYN. 

be brought before him to answer the said complaint ; and such three 
persons having been arrested by a constable, on such warrant, and 
being brought before such justice, and having waived on examina- 
tion, were by him committed to the jail of the county for the cause 
mentioned in the complaint, to await the action of the next grand 
jury. Having given bail the next day the persons so arrested were 
discharged, and thereupon one of them, William H. Grove, Jr., 
brought this suit in trespass for the above-mentioned imprisonment. 
At the trial the plaintiff was nonsuited, and to review that judgment 
this writ of error was brought. 

For the plaintiff in error, A. V. Schenk and E. T. Green. 

For the defendants in error^ l^. H. Stewart. 

The opinion of the court was delivered by 

Beasley, C. J. Most of the general principles of law pertain- 
ing to that branch of this controversy which relates to the alleged 
liability of the defendant in this suit, who was a justice of the peace, 
are so completely settled as not to be open to discussion. The doc- 
trine that an action will not lie against a judge for a wrongful com- 
mitment, or for an erroneous judgment, or for any other act made 
or done by him in his judicial capacity, is as thoroughly established 
as are any other of the primary maxims of the law. Such an ex- 
emption is absolutely essential to the very existence, in any valuable 
form, of the judicial office itself; for a judge could not be either 
respected or independent if his motives for his official actions or his 
conclusions, no matter how erroneous, could be put in question at 
the instance of every malignant or disappointed suitor. Hence we 
find this judicial immunity has been conferred by the laws of every 
civilized people. That it exists in this state in its fullest extent has 
been repeatedly declared by our own courts. Such was pronounced 
by the Supreme Court to be the admitted principle in the case of 
Little V. Moore, i South. 75 ; Taylor v. Doremus, i Harr. 473 ; Man- 
gold V. Thorpe, 4 Vroom 134; and by this court in Loftus v. Fraz, 
14 Vroom 667. To this extent there is no uncertainty or difficulty 
whatever in the subject. 

Btit the embarrassment arises where an attempt is made to ex- 
press with perfect definiteness when it is, the acts done by a judge 
and which purport to be judicial acts, are such within the meaning 
of the rule to which reference has just been made. It is said every- 
where in the text-books and decisions, that the officer, in order to 
entitle himself to claim the immunity that belongs to judicial con- 
duct, must restrict his action within the bounds of his jurisdiction, 
and jurisdiction has been defined to be "the authority of the law to 
act officially in the particular matter in hand." Cooley on Torts 417. 
But these maxims, although true in a general way, are not suf- 
ficiently broad to embrace the principle of immunity that appertains 
to a court or judge exercising a general authority. Their defect is 
that they leave out of account all those cases in which the officer in 
the discharge of his public duty is bound to decide whether or not 
a particular case, under the circumstances as presented to him, is 
within his jurisdiction, and he falls into error in arriving at his con- 



GROVE V. VAN DUYN. 967 

tlusion. In such instance, the judge, in point of fact and law, has 
no jurisdiction, according to the definition just given, over "the 
particular matter in hand," and yet, in my opinion, very plainly he 
is not responsible for the results that wait upon his mistake. And 
it is upon this precise point that we find confusion in the decisions. 
There are certainly cases which hold that if a magistrate, in the regu- 
lar discharge of his functions, causes an arrest to be made under his 
warrant on a complaint which does not contain the charge of a crime 
cognizable by him, he is answerable in an action for the injury that 
has ensued. But I think these cases are deflections from the correct 
rule; they make no allowance for matters of doubt and difficulty. 
If the facts presented for the decision of the justice are of uncertain 
signification with respect to their legal effect, and he decides one 
way, and exercises a cognizance over the case ; if the superior court 
in which the question arises in a suit against the justice differs with 
him on this close legal question, is he open, by reason of his error, 
to an attack by action? If the officer's exemption from liability is 
to depend on the question whether he had jurisdiction over the par- 
ticular case, it is clear that such oificer is often liable under such 
conditions, because the higher court, in deciding a doubtful point 
of law, may have declared that some element was wanting in the 
complaint which was essential to bring this case within the judicial 
competency of the magistrate. But there are many decisions which, 
perhaps, without defining any very clear rule on the subject, have 
maintained that the judicial officer was not liable under such condi- 
tions. The very copious brief of the counsel of the defendants 
abounds in such illustrations. As an example, we may refer to the 
old case of Gwynne v. Poole, 2 Lutw. 387, in which it was held that 
the justice was justified because he had reason to believe that he had 
jurisdiction, although there was an arrest in an action which arose 
out of the justice's jurisdiction. This case has been since approved 
in Kemp v. Neville, 10 C. B. (N. S.) 550. Here, if the test of official 
liability had been the mere fact of the right to take cognizance over 
the particular matter in hand, considered in the light of strict legal 
rules, this decision would have been the opposite of what it is. In 
the same way the subject is elucidated in Brittain v. Kinnard, i B. 
& B. 432, the facts being a conviction by a justice of a person of 
having gunpowder in a certain boat, a special act authorizing the 
detention of any suspected boat; and when the magistrate was sued 
in trespass for an illegal conviction, it was declared that the plain- 
tiff, in order to show the defendant's want of cognizance over the 
proceedings leading to the conviction, could not give evidence that 
the craft in question was a vessel and not a boat, because the justice 
had judicially determined that point. And in this case likewise, the 
test of jurisdiction in the magistrate in point of fact and of law, was 
rejected; an inquiry into the authority by force of which the pro- 
ceedings had been taken being disallowed for the reason that such 
question had been passed upon by the magistrate himself, the point 
being before him for adjudication. The same doctrine was pro- 
mulgated in explicit and forcible terms by Mr. Justice Field, deliv- 
ering the opinion of the Supreme Court of the United States, in the 



g68 GROVE V. VAN DUYN. 

case of Bradley v. Fisher, 13 Wall. 335, this being his language: 
"If a judge of a criminal court, invested with general criminal juris- 
diction over offences committed within a certain district, should hold 
a particular act to be a public offence which it is not, and proceed 
to the arrest and trial of a party charged with such act, ... no 
personal liability to civil action for such acts would attach to the 
judge, although those acts would be in excess of his jurisdiction, 
or of the jurisdiction of the court held by him, for these are particu- 
lars for his judicial consideration, whenever this general jurisdiction 
over the subject-matter is invoked." 

These decisions, in my estimation, stand upon a proper foot- 
ing, and many others of the same kind might he have referred to, 
but such course is not called for, as it must be admitted that there 
is much contrariety of results in this field, and the references above 
given are amply sufficient as illustrations for my present purposes. 
The assertion, I think, may be safely made, that the great weight of 
judicial opinion is in opposition to the theory that if a judge, as a 
matter of law and fact, has not jurisdiction over the particular case, 
that thereby, in all cases, he incurs the liability to be sued by any 
one injuriously affected by his assumption of cognizance over it. 
The doctrine that an officer having, general powers of judicature, 
must, at his peril, pass upon the question, which is often one dif- 
ficult of solution, whether the facts before him place the given case 
under his cognizance, is as unreasonable as it is impolitic. Such a 
regulation would be applicable alike to all courts and to all judicial 
officers acting under a general authority, and it would thus involve 
in its liabilities all tribunals except those of last resort. It would 
also subject to suit persons participating in the execution of orders 
and judgments rendered in the absence of a real ground of juris- 
diction.^ By force of such a rule, if the Supreme Court of this state, 
upon a writ being served in a certain manner, should declare that 
it acquired jurisdiction over the defendant, and judgment should 
be entered by default against him, and if, upon error brought, this 
court should reverse such judgment on the ground that the service 
of the writ in question did not give the inferior court jurisdiction 
in the case, no reason can be assigned why the justices of the Su- 
preme Court should not be liable to suit for any injurious conse- 
quence to the defendant proceeding from their judgment. As I 
have said, in my judgment, the jurisdictional test of the measure of 
judicial responsibility must be rejected. 

Nevertheless, it must be conceded that it is also plain that in 
many cases a transgression of the boundaries of his jurisdiction by 
a judge, will impose upon him a liabilty to an action in favor of the 
person who has been injured by such excess. If a magistrate should, 
of his own motion, without oath or complaint being made to him, 
on mere hearsay, issue a warrant and cause an arrest for an alleged 
larceny, it cannot be doubted that the person so illegally imprisoned 
could seek redress by a suit against such officer. It would be no 
legal answer for the magistrate to assert that he had a general 
cognizance over criminal offences, for the conclusive reply would 



GROVE V. VAN DUYN. 969 

be, that this particular case was not, by any form of proceeding, put 
under his authority. 

From these legal conditions of the subject my inference is, that 
the true general rule with respect to the actionable responsibility of a 
judicial officer having the right to exercise general powers, is, that 
he is so responsible in any given case belonging to a class over which 
he has cognizance, unless such case is by complaint or other pro- 
ceeding put at least color ably under his jurisdiction. Whether the 
judge is called upon by the facts before him to decide whether his 
authority extends over the matter, such an act is a judicial act, and 
such officer is not liable in a suit to the person aflfected by his 
decision, whether such decision be right or wrong. But when no 
facts are present, only such facts as have neither legal value nor 
color of legal value in the affair, then, in that event, for the magis- 
trate to take jurisdiction is not, in any manner, the performance of 
a judicial act, but simply the commission of an unofficial wrong. 
This criterion seems a reasonable one ; it protects a judge against 
the consequences of every error of judgment, but it leaves him an- 
swerable for the commission of wrong that is practically wilful ; 
such protection is necessary to the independence and usefulness of 
the judicial officer, and such responsibility is important to guard the 
citizen, against official oppression. 

The application of the above-stated rule to this case must, obvi- 
ously, result in a judgment affirming the decision of the Circuit 
judge. There was a complaint, under oath, before this justice, pre- 
senting for his consideration a set of facts to which it became his 
duty to apply the law. The essential things there stated were, that 
the plaintiff, in combination with two other persons, "with force 
and arms," entered upon certain lands, and "with force and arms 
did unlawfully carry away^ about four hundred bundles of corn- 
stalks, of the value," &c., and were engaged in carrying other corn- 
stalks from said lands. By a statute of this state, (Rev., p. 244, 
§ 99,) it is declared to be an indictable offence, "if any persdn shall 
wilfully, unlawfully and maliciously" set fire to or burn, carry off 
or destroy any barrack, cock, crib, rick or stack of hay, corn, wheat, 
rye, barley, oats or grain of any kind, * * * or any trees, herbage, 
growing grass, hay or other vegetables, &c. Now although the mis- 
conduct described in the complaint is not the misconduct described 
in this act, nevertheless the question of their identity was colorably 
before the magistrate, and it was his duty to decide it; and under 
the rule above formulated, he is not answerable to the person in- 
jured for his erroneous application of the law to the case that was 
before him. 

As to the other defendant, all he did was to make his complaint 
on oath before the justice, setting forth the facts truly, and for such 
an act he could not be held liable for the judicial action which en- 
sued, even if such action had been extra-judicial. But as the case 
was, as we have seen, brought within the jurisdiction of the judicial 
officer, neither this defendant, nor any other person could be treated 
as a trespasser for his co-operation in procuring a decision and com- 



970 SULLIVAN V. JONES. 

mitment which were valid in law, until they had been set aside ty 
a superior tribunal. 

Let the judgment be affirmed. 

For affirmance — The Chancellor, Chief Justice, Depue, Dixon, 
Knapp, Magie; Parker, Reed, Van Syckel, Clement, Cole, Kirk, 
Green, Paterson. 14. 

For reversal — None.^ 



SULLIVAN V. JONES. 
Supreme Court of Masswhusetts, 18S4. 2 Gray, 570. 

Trespass for false imprisonment of the plaintiff on an execu- 
tion, issued by Jones, a justice of the peace, on a judgment recovered 
before him against the plaintiff on a debt less than five dollars; 
which execution contained a command to the officer, for want of 
money or goods, to take the body of the plaintiff, and commit him 
to prison ; and on which the plaintiff, by the direction of Jeremiah 
Russell, the other defendant, the attorney who brought the suit on 
which the judgment was recovered, was arrested and committed to 
jail. 

Merrick, J. The Rev. Sts. c. 97, §§ 44, 45, expressly declare 
that no person shall be imprisoned on mesne process or execution 
for any debt less than five dollars, or on any execution issued upon 
a judgment rendered upon a former judgment founded upon such 
a debt. And the forms of all executions are required to be so varied 
as to adapt them to that prohibition. § 47. In view of these pro- 
visions, there can be no doubt that the command, contained in the 
execution which was issued by Jones against the plaintiff, to take 
the body of the plaintiff and commit him to the Commonwealth's 
jail, was a direct violation of the positive requirements of the law. 
This is not denied by the defendants. But their defence is placed 

^Accord: Busteed v. Parsons, S4 Ala. 393 (1875) ; Mcintosh v. Bullard, 
95 Ark. 227 (1910) ; Clark v. Spicer, 6 Kans. 440 (1870) ; Gillett v. Thiebold, 
9 Kans. 427 (1872) ; Rush v. Buckley, 100 Maine 322 (1905) ; Landt v. Hilts, 
19 Barb. 283 (N. Y. 1855) ; Ayers v. Russell, SO Hun 282 (N. Y. 1888) ; McCall 
V. Cohen, 16 S. Car. 445 (1881) ; Marks v. Sullivan, 9 Utah 12 (1893) ; see 
Austin v. Vrooman, 128 N. Y. 229 (1891), and compare Mitchell v. Foster, 
12 A. & E. 472 (1840), and Truesdell v. Combs, 3i Ohio St. 186 (1877). 

In determining the existence of facts necessary to give it jurisdiction 
either a superior court of limited jurisdiction or a justice of the peace acts ju- 
dicially and is not liable for error in taking jurisdiction, Lange v. Benedict, 73 
N. Y. 12 (1878), semble, Roderigas v. East River Savings Institution, 63 N. 
Y. 460 (1875) ; Scott v. McNeal, 154 U. S. 34 (1894). 

In Thompson v. Jackson, 93 Iowa 376 (1895) ; Bell v. McKinney, 63 Miss. 
187 (1885), and Anderson v. Roberts, 35 S. W. 416 (Tex. Civ. App. 1896), 
it is held that a magistrate is not liable for acting outside his jurisdiction 
unless he does so knowingly or in bad faith, and see Young v. Herbert, 2 
Nott & McC. 172 (S. Car. 1819). 

In Pratt v. Sanger, 4 Gray 84 (Mass. 1855), it is held that a justice is 
liable if the law under which he acts is unconstitutional, but compare Clark v. 
Spicer, 6 Kans. 440 (1870), and Cotfam v. Oregon, 98 Fed. 570, (C. C Dist. 
of Oregon 1899). 



SULLIVAN V. JONES. 971 

by them on a wholly different ground. They insist that, in framing 
and issuing the execution, Jones acted in his judicial capacity as a 
justice of the peace, and for that reason is not responsible in any 
civil action to the plaintiff for any injurious consequences resulting 
from it. 

If the position assumed by the defendants could be maintained 
as a matter of fact, the consequence contended for by them would 
undoubtedly follow. There is a familiar and well-known distinction 
between the judicial and ministerial powers and duties of justices of 
the peace. When acting in the former capacity, and within the 
limits of the jurisdiction conferred upon them, like the judges of 
other courts, they are exempted from liability to answer elsewhere 
in private actions for their official orders, decrees and judgments. 
Pratt V. Gardner, 2 Cush. 63. But they have always been held re- 
sponsible to individuals in civil suits for all the injurious conse- 
quences arising from every illegal act they may have done, either 
in the adjudication of causes of which they had no jurisdiction, or 
in the exercise of their ministerial powers, or in the discharge of 
their ministerial duties. Briggs v. Wardwell, 10 Mass. 356. Perci- 
val V. Jones, 2 Johns. Cas. 49. Spencer v. Perry, 17 Maine, 413. 
Clarke v. May, ante, 410. 

When, in the progress of a suit, a final judgment has been ren- 
dered, there can remain no further judicial duty to be performed. 
The court or magistrate has then no longer a question upon which 
to deliberate, or a cause between contending parties to decide. Noth- 
ing is left to be done but to carry the judgrnent into effect. That, 
under our law, is accomplished by means of an execution. It was 
early determined by this court that the issuing of such an execution 
by a justice of the peace was merely a ministerial act; and in a par- 
ticular instance, where such process was issued erroneously, the 
magistrate was held responsible in damages for the commitment to 
prison of a party under it. Briggs v. Wardwell, 10 Mass. 356.^ 



^Accord: Fairchild v. Keith, 29 Ohio St. 156 (1876); and Larson v. 
Kelly, 64 Minn. SI (1896), facts similar to those in principal case; McLendon 
V. American Freehold &c. Co., 119 Ala. 518 (1898), false certificate of the 
acknowledgment of a deed; Stone v. Graves, 8 Mo. 148 (1843). In Abrams 
V. Carlisle, 18 S. Car. 242 (1882) ; the premature entry of judgment and issu- 
ing of execution was held a judicial and not a ministerial act_; and see also 
Ward v. Freeman, 2 Ir. C. L. 460 (1852), where four of eight judges follow- 
ing Linford v. Fitzroy, 13 A. & E. (N. S.) 240 (1849), held that if any part 
of the duties of the magistrate was judicial, the whole must be, it being im- 
permissible to split up and divide his duty. 

Even a judge of a superior court may be charged with the performance ' 
of purely ministerial duties, and is liable for neglect or misperformance of 
them, Grider v. Tally, 77 Ala. 422 (1884), refusal to issue liquor license. 

As to the liability of a judge for the custody of money paid into 
court, see Disbrow v. Mills, 62 N. Y. 604 (1875) ; State v. Faulkner, 31 Hun 
317 (N. Y. 1884). 

"The essential and characteristic difference between a judicial and minis- 
terial officer is, that the former is to give judgment, which requires perfect 
freedom of opinion, that the latter is to execute, which supposes obedience to 
some mandate prescribing what is to be done; and leaving nothing to opin- 
ion."— Richardson, J. in Reid v. Hood & Burdine, 2 Nott & McC. 168 (S. Car. 
1819). 



972 



GARING V. FRASER. 

SECTION 2. 
Immunity of Witnesses. 



GARING V. FRASER. 
Supreme Judicial Court of Maine, 1884. 76 Maine 37. 

Virgin, J. The plaintiff alleges in substance that the defend- 
ants maliciously conspired to f^sely accuse, and, by means of false 
testimony, to procure him to be indicted and convicted of the crime 
of maintaining a nuisance ; that by false and perjured testimony the 
defendants did accuse him of said crime before the grand jury who 
found an indictment therefor against him ; that he was tried on said 
indictment, and, by means of false and perjured testimony given by 
them at the trial, the jury found him guilty of the charge; that the 
court set aside the verdict because of said false and perjured testi- 
mony; and that thereupon the county attorney entered upon the 
records of the court a nolle prosequi to said indictment with allega- 
gations of damages. 

The gist of the action is not the conspiracy alleged, but the tort 
committed by the defendants and the damage resulting therefrom. 

The acts of the defendants are alleged to be false and perjured 
testimony. But at common law an action will not lie against one 
for perjury. Dunlap v. Glidden, 31 Maine, 435, 439; Severance V. 
Judkins, 73 Maine, 379 ; Damport v. Sympson, Cro. Eliz. 520 ; Eyres 



There is much conflict as to what acts of a magistrate or other inferior 
judicial officer are ministerial. The granting of an appeal is held to be a 
ministerial act in Tyler v. Alford, 38 Maine 530 (1854), though demanding 
the exercise of discretion and the justice is liable if he act corruptly; contra, 
Jordan v. Hanson, 49 N. H. 199 (1870), while in Ward v. Freeman, 2 Ir. C. 
L. 460 (1852), a judgment for defendant in an action against an "Assistant 
Barrister" for his refusal to receive an appeal was affirmed by a divided 
court; and see Cunningham v. Dilliard, 4 Dev. & B. 351 (N. Car. 1839). In 
Legates v. Lingo, 8 Houst. 154 (Del. 1888), and Tompkins v. Sands, 8 Wend. 
462 (N. Y. 1832), a refusal to approve an appeal bond was held a ministerial 
act, for which, if done from a corrupt motive, the justice was liable; contra. 
Rains v. Simpson, 50 Tex. 495 (1878), an approval of inadequate sheriff's 
bond; Howe v. Mason, 14 Iowa 510 (1863), an approval of replevin bond were 
held judicial acts. So in Chickering v. Robinson, 3 Cush. 543 (Mass. 1849), 
the approval of an invalid recognizance is held to be a judicial act. In Groh- 
mann v. Kirschman, 168 Pa. St. 189 (1895), and Flack v. Harrington, 1 Breese 
165 (111. 1826), justices of the peace, and in Gihbs v. Randlett, 58 N. H. 407 
(1878), a sheriff, refusing to admit to bail or to receive adequate bail offered, 
were held liable; but see Evans v. Foster, 1 N. H. 374 (1819), in which it was 
intimated that a justice was not liable for demanding excessive bail. As to 
the liability of a justice issuing a warrant of his own motion or without the 
complaint required by law, see McCarthy v. De Armit. 99 Pa. St. 63 (1881), 
and Wallsworth v. McCullough, 10 Johns. 93 (K. Y. 1813), and see Banister 
V. Wakeman, 64 Vt. 203 (1891), a justice held to be acting ministerially in 
issuing a mittimus in a criminal case. 



GARING V. FRASER. 973 

V. Sedgwicke, Cro. Jac. 6oi ; Phelps v. Stearns, 4 Gray, 106 ; Rice 
V. Coolidge, 121 Mass. 395, and cases cited. 

But it is said that the English Sts. of 5 and 28 Eliz. provide that 
a party grieved by a judgment obtained by the perjury of witnesses 
might, after the reversal of the judgment, "recover his damages 
against every such person as did procure such judgment against him, 
by action on the case." Assuming, however, that these statutes are 
in force here, neither of them can be seriously contended to be ap- 
plicable to this case. To be sure, it is a general rule of the common 
law and it has been substantially engrafted into Art. i, § ig of our 
constitution, that a man shall have remedy for every injury. 
3 Black. Com. 123 ; Ashby v. White, i Salk. 21. But the law has 
more than one idea. And this principle however sound must be un- 
derstood with such qualifications and limitations as other principles 
of law equally sound and important impose upon it. Morton, J., 
II Pick. 532. Thus notwithstanding the rule first above mentioned, 
words spoken in the course of judicial proceedings, though they im- 
pute crime to another, and therefore, if spoken elsewhere, would 
import malice and be actionable in themselves, are not actionable if 
applicable and pertinent to the subject of inquiry. Barnes v. Mc- 
Crate, 32 Maine, 442 ; Hoar v. Wood, 3 Met. 193. So in the case 
at bar, while the law declares that every person shall have a remedy 
for every wrong, public policy requires that witnesses shall not be 
restrained by the fear of being vexed by actions at the instance of 
those who are dissatisfied with their testimony ; but if they perjure 
themselves they may be indicted and punished therefor. Barber v. 
Lesiter, 7 C. B. (N. S.) (Erie, J.) 186. 

Exceptions overruled.'^ 

^ While the judgment against the plaintiff stands unreversed, no action 
is allowed against either the adverse party whose alleged perjury or suborna- 
tion of perjury has procured such judgment, Phelps v. Stearns, 4 Gray lOS 
(Mass. 1855) ; Curtis v. Fairbanks, 16 N. H. 542 (1845) ; Severance v. Judkins, 
73 Maine 376 (1882) ; Damport v. Sympson, Cro. Eliz. 520 (1596) ; Byres v. 
Sedgwicke, Cro. Jac. 601 (1621) ; Bostwick v. Lewis, 2 Day 447 (Conn. 1807) ; 
Smith v. Lewis, 3 Johns. 157 (N. Y. 1808) ; or against a witness. Grove v. 
Brandenburg, 1 Blackf. 234 (Ind. 1844) ; Cunningham v. Brown, 18 Vt. 123 
(1846) ; Dunlap v. Glidden, 31 Maine 435 (1850), where, however, the wit- 
nesses were joined as defendants with the successful adversary, and see 
Taylor v. Bidwell, 65 Cal. 489 (1884), since this involves raising the same 
issues already decided, for the purpose of collaterally attacking the judgment, 
which as to such party is final and conclusive until reversed upon appeal or 
set aside upon motion for new trial or other direct proceedings. Where, 
however, the plaintiff is not party to the judgment this reason does not ap- 
ply and since the public policy which gives immunity of the witness does not 
require the protection of one suborning his perjury, a woman whose reputa- 
tion was injured by a verdict in a divorce case finding the respondent guilty 
of adultery with her was held in Rice v. Coolidge, 121 Mass. 393 (1876), en- 
titled to maintain an action against the parties to the divorce proceedings 
who had suborned a witness to falsely testify to the acts of adultery, but com- 
pare Taylor v. Bedwell, where, however, the plaintiff had been convicted of a 
criminal offense and had served his term of imprisonment before he had dis- 
covered the alleged perjury. 



974 BURNS V. ERBEN. 



SECTION 3. 

The Right to Arrest With or Without Warrant or to Seize Prop- 
erty Under Judicial Process. 



(a) Arrest without warrant. 



BURNS* t'. ERBEN. 
Court of Appeals of New York, 1869. 40 N. Y. 463. 

Woodruff, J. By section 8 of the act to establish a Metropoli- 
tan Police District, passed April 15th, 1857 (chap. 569 of Laws of 
1857), the members of the police force of that district are given "in 
every part of the state of New York, all the common law and statu- 
tory powers of constables, except for the service of civil process." 
And in the amendatory act passed April 10, i860 (chap. 259 of 
Laws of i860), it is declared in the 28th section, that the members 
of the police force of that district "shall possess in every part of the 
state all the common law and statutory powers of constables, except 
for the service of civil process." 

In pursuance of information given by the defendant, Erben, 
the defendant. Frost, accompanied by Erben, arrested the plaintiff 
without a .warrant, took her to the police station, where she was 
detained a few minutes, and after some conversation with the officer 
in charge, she was permitted to return to her residence. For this 
she has brought the present action for false imprisonment. 

A felony had been committed that evening, at the house of Mr. 
Henry Erben, the defendant's father. On that point there is no 
dispute or conflict. The plaintiff had visited the house that evening, 
and, according to the information upon which the defendant acted, 
was the only person not a member of the family, who had been in 
the basement. Silver had been stolen from the basement. It was 
there when the plaintiff entered and until after 8 o'clock ; and it was 
missed very shortly after she left the house. Of these facts the 
proof was distinct and without contradiction. 

Upon a report of these facts. Frost, accompanied by the de- 
fendant, Erben, made the arrest as above stated. 

The inquiry is, therefore, whether under the statutes above 
cited and the common law rule in respect of arrests made or aided 
by private persons, the plaintiff was entitled to recover. There were 
no facts in dispute requiring the submission of any question to the 
jury, unless it be held that there was no justification. 

I have no doubt upon the subject. The writers upon criminal 
law and the reported cases, so far as I have examined them, hold 
uniform language. 



BURNS V. ERBEN. 975 

Lord Tenterden, Ch. J., in Beckwith v. Philby (6 Barn. & Cres., 
63s), says: "The only question of law in this case is,, whether a 
constable, having a reasonable cause to suspect that a person has 
committed a felony, may detain such person until he can be brought 
before a justice of the peace to have his conduct investigated. There 
is this distinction between a private individual and a constable : in 
order to justify the former in causing the imprisonment of a per- 
son, he must not only make out a reasonable ground of suspicion, 
but he must prove that a felony has actually been committed; 
whereas a constable having reasonable ground to suspect that a fel- 
ony has been committed, is authorized to -detain the party suspected 
until inquiry can be made by the proper authorities." (See Hawk 
P. C, book 2, chap. 12, 13 ; i Russell on Crime, 594, 5 ; S'teph. Cr. 
L., 242, 3; I Chit. Cr. L., 15, 17; Samuel v. Payne, Doug., 358; 
Lawrence v. Hedger, 3 Taunt., 14; Regina V. Toohy, 2 Ld. Ray- 
mond, 130; Hobbs V. Brandscomb, 3 Camp., 420; Davis v. Russell, 
5 Bing., 354; Cowles v. Dunbar, 2 Car. and P., 565.) 

In Ledwith v. Catchpole (Cald. Cas., 291, and ist Burns, Jus- 
tice, p. 130, i). Lord Mansfield says, in an action against the officer: 
"The question is, whether a felony has been committed or not. And 
then the fundamental distinction is, that if a felony has actually 
been committed, a private person may, as well as a police officer, 
arrest ; if not, the question always turns upon this, was the arrest 
bona iide? Was the act done fairly and in pursuit of an officer, or 
by design, or malice, or ill will ? * * * It would be a terrible thing, 
if, under probable cause, an arrest could not be made * * * ; 
many an innocent man has and may be taken up upon suspicion ; but 
the mischief and inconvenience to the public in this point of view, 
is comparatively nothing ; it is of great consequence to the police of 
the country."^ 

The justification of an arrest by a private person was made in 
Allen V. Wright (8 Carr and Payne, 522), to depend on first, the 
fact that a felony had been actually committed ; and second, that the 
circumstances were such that a reasonable person, acting without 
passion and prejudice, would have fairly suspected the plaintiff of 
being the person who did it.^ 



^In Wakely v. Hart, 6 Binney 316 (Pa. 1814), it was unsuccessfully con- 
tended that the provision in the constitution of Pennsylvania, common to all 
state constitutions, declaring that all persons shall be secure against unrea- 
sonable searches and seizures and providing that no warrants shall issue with- 
out describing the person or property "as nearly as may be nor without prob- 
able cause supported by oath", had made illegal the arrest without warrant of 
a person even if actually guilty of it\ony; accord: Rohan-v.Sazi!in,5 Cush. 281 
(Mass. 1850), arrest by constable on reasonable suspicion, Dewey, J. saying 
that such provisions do not "conflict with the authority of constables or other 
peace officers or private persons under proper limitations to arrest without 
warrant those who have committed (or, if the arrest is by a constable, are 
reasonably suspected to have committed) felonies. The publicsafety and the 
due apprehension of criminals charged with heinous offences, imperiously re- 
quire that such arrests should be made without warrant by officers of the 
law"; see also, McCarthy v. De Armit, 99 Pa. St. 63 (1881). 

'Accord: Long v.-State, 12 Ga. 293 (18S2) ; Gamier v. Squires, 62 Kans. 
321 (1900) ; Maliniemi v. Gronlund, 92 Mich. 222 (1892) ; Spencer v. Anness, 



976 BURNS V. ERBEN. 

These principles are affirmed in this State in Mix V. Clute (3 
Wend., 350), in very distinct terms. "If a felony has been com- 
mitted by the person arrested, the arrest may be justified by any per- 
son without a warrant." If an innocent person is arrested upon sus- 
picion by a private individual, such individual is excused if a felony 
was in fact committed, and there was reasonable ground to suspect 
the person arrested. But if no felony was committed by any one, and 
a private individual arrest without warrant, such arrest is illegal,* 
though an officer would be justified if he acted upon information 
from another which he had reason to believe."" 



32 N. J. L. 100 (1866) ; Reuck v. McGregor. 32 N. J. L. 70 (1866) ; McCarthy 
V. De Armit, 99 Pa. St. 63 (1881), semble; Brooks v. Commonwealth, 61 Pa. 
352 (1869), semble; but see Grinnell v. Weston, 95 App. Div. 454 (N. Y. 1904) ; 
Brockway v. Crawford, 48 N. Car. 433 (1856). The plea should set forth 
the grounds for the defendant's suspicion of the plaintiff's guilt, Mure v. 
Kaye, 4 Taunt. 34 (1811); Spencer v. Anness, 32 N. J. L. 100 (1866) and 
Edger v. Burke, 96 Md. 715 (1903), and the question as to whether the de- 
fendant, whether private person or officer, had reason to suspect the plain- 
tiff, is a question for the decision of the court, Howard v. Clarke, L. R. 20 Q. 
B. Div. 558 (1888) ; Spencer v. Anness, 32 N. J. L. 100 (1866) ; McCarthy v. 
De Armit, 99 Pa. St. 63 (1881) ; but see Grinnell v. Weston, 95 App. Div. 
454 (N. Y. 1904) : Cochran v. Taker, 14 Minn. 385 (1869), and Rohan v. 
Sawin,S Cush. 28j (Mass. 1849). 

In Dodds v. Board, 43 111. 95 (1867), Kindred v. Stitt, 51 111. 401 (1869), 
and Rohan v. Sawin, 5 Cush. 281 (Mass. 1849), it is held that a private per- 
son can only justify by showing the actual guilt of the person arrested; see 
also Lander V. Miles, 3 Ore. 35 (1868) ; see Gold V. Armer, 140 App. Div. 73 
(N. Y. 1910), p. 75. 

' Wakely v. Hart, and Rohan v. Sazvin, 5 Cush. 281 (Mass. 1849), Note 1; 
Wrexford v. Smith, 2 Root 171 (Conn. 1795). So a private person may ar- 
rest a felon who has escaped from a prison in the state in which the arrest 
occurs, State v. Holmes, 48 N. H. 377 (1869), but not a fugitive from justice 
from another jurisdiction, Botts v. Williams, 17 B. Mon. 687 (Ky. 1856) ; 
Wells V. Johnston, 52 La. Ann. 713 (1900) ; but see Cochran v. Toher, 14 
Minn. 385 (1869). 

* Doughty v. State, 33 Tex. 1 (1870), and see dicta in many of the cases 
cited in Note 2. 

^Accord: Samuel v. Payne, 1 Douglas 359 (1780), Lord Mansfield say- 
ing "it would be most mischievous that the officer should be bound," (before 
making the arrest), "first to try, and at his peril exercise his judgment on 
the truth of the charge"; Hobbs v. Branscomb, 3 Camp. 420 (1813) ; Hogg v. 
M^ard, 3 H. & N. 417 (1858) ; Johnson v. State, 30 Ga. 426 (1860) ; Dodds v. 
Board, 43 111. 95 (1867), semble; Doering v. State, 49 Ind. 56 (1874) ; Gar- 
nier v. Squires, 62 Kans. 321 (1900) ; Werner v. Commonwealth, 80 Ky. 387 
(1882) ; Cochran v. Toher, 14 Minn. 385 (1869) ; Filer v. Smith, 96 Mich. 347 
(1893) ; Neal v. Joyner, 89 N. Car. 287 (1883) ; McCarthy v. De Armit, 99 
Pa. St. 63 (1881) ; Earns v. State, 6 Humph. S3 (Tenn. 1845) ; Burke v. Bell, 
36 Maine 317 (1853) ; Edger v. Burke, 96 Md. 715 (1903) ; Rohan v. Sawin. 
5 Cush. 281 (Mass. 1849). In such case the person making the charge is 
answerable, the officer is not liable, Samuel v. Payne, 1 Douglass 359 (1780), 
and Holly v. Mix. 

A peace officer enjoys equal immunity where he acts on his own motion, 
having from his own knowledge reasonable grounds to suspect that a felony 
has been committed, Beckwith v. Phelby, cited in the principal case; Johnson 
V. Collins, 28 Ky. L. 375 (1905); Brisk v. Carter, 98 Md. 445 (1904) ; Mc- 
Carthy v. De Armit, 99 Pa. St. 63 (1881) ; Brockway v. Crawford 3 Tones 
(Law) 433 (N. Car. 1856). 

The fact that the warrant has been issued is sufficient grounds for sus- 
picion, Filer v. Smith, 96 Mich. 347 (1893) ; Creagk v. Gamble, 24 L. R. Ir. 



STATE V. LEWIS. 977 

The fact being proved in this case that a felony had in fact been 
committed, I have no hesitation in saying that, however unfortunate 
it was to the plaintiff, the circumstances fully justified the sus- 
picion which led to her arrest. It is claimed that these circumstances 
should have been submitted to the jury. Not so ; a verdict finding 
no reasonable ground of suspicion would have been against evi- 
dence. There was no conflict of testimony, and that the arrest was 
made without malice, in good faith, and upon reasonable grounds, 
is to my mind incontrovertible. 

The appeal appears to me to have been taken upon a misappre- 
hension of the construction and effect of the statutes conferring 
power on the policeman. I think the power perfectly clear, and I 
notice that the rules and regulations of the board of police are in 
conformity therewith ; and it is made the duty of the officer to take 
the arrested person immediately before the Police Court, or if made 
at night or when the courts are not open, immediately to the station 
house, where the officer on duty is required to examine whether 
there is reasonable ground for the complaint, and if so, to cause the 
party to be taken before the court the next morning. Under such 
a system, innocent parties may sometimes be subjected to inconve- 
nience and mortification; but any more lax rules would be greatly 
dangerous to the peace of the community and make the escape of 
criminals frequent and easy. 

The judgment should be affirmed. 

All the judges concurring, judgment affirmed.® 



STATE V. LEWIS. 
Supreme Court of Ohio, 1893. SO Ohio St. 179. 

Bradbury, C. J. The defendant was indicted for murder in 
the second degree for causing the death of one Edward Elliott, in 
the course of an attempt to arrest the latter for the commission of 
a misdemeanor. The defendant was marshal of the village of 
Hillsboro, in Highland county, and being put upon trial for the 
homicide, it. became material to inquire into the authority of such 
officers to make arrests without a written warrant therefor. 

That the defendant was marshal of the village of Hillsboro; 



458 (1888). But the officer is bound to know the law, he is not excused if 
he erroneously supposed that certain acts copimitted, or reasonably believed 
to have been committed, by the plaintiff constituted a felony, Malcolmson v. 
Scott, 56 Mich. 459 (1885). In Sugg v. Pool, 2 Stew. & P. 196 (Ala. 1832), 
Vice V. Holly, 88 Miss. 572 (1906), cf. Formwalt v. Hylton, 66 Tex. 288 (1886), 
it is held, relying on cases holding that an officer arresting on a warrant must 
at his peril arrest the person named therein, that a mistake in identity is at 
the officer's peril; contra, Edger v. Burke, Brockway v. Crawford, Filer v 
Smith, 96 Mich. 347 (1893). 

"The right of arrest without warrant is not affected by the fact that 
there was time to obtain a warrant, Davis v. Russell, 5 Bing. 354 (1829) ■ 
Holley v. Mix, 3 Wend. 350 (N. Y. 1829) ; Rohan v. Sawin, 5 Cush 281 
(Mass. 1849). 



97^ STATE V. LEWIS. 

did not witness the affray nor procure from a magistrate a warrant 
for the arrest of the deceased, are conceded facts. In addition to 
this the testimony given in behalf of the state tended to prove that 
the deceased had participated in an affray in a saloon within the 
village of Hillsboro, on the day of the homicide ; that the defendant 
was absent and did not hear or see any part of the affray; that a 
few minutes thereafter he received information that a breach of the 
peace had been committed, and at once went to the saloon where it 
had occurred ; that when he reached the saloon, the parties to it had 
gone and good order had been restored ; that upon inquiry the de- 
fendant was told that an affray had been committed, in which the 
deceased had participated, and ascertaining the direction taken by 
the deceased, the defendant, with(ftit obtaining a warrant, immedi- 
ately pursued, soon after overtook and proceeded to arrest him for 
that offense; that the deceased, though having knowledge of the 
official character of the defendant, resisted the arrest, and in the 
resulting struggle was shot and killed by the defendant. 

The authority of peace officers to arrest without a warrant from 
a magistrate is a subject that has received the attention of the courts 
and text-writers from an early period in the history and develop- 
ment of the common law in both England and America. Some of 
the earlier English authorities, while the prerogatives of the govern- 
ment were more highly considered than at a later day, maintained 
the power. (2 Hale P. C. 90.) But even then the doctrine met 
with a resistance which finally overturned it. (i East P. C. 305.) 
Regina v. Tooley, 2 Lord Raymond, 1301, where Lord Holt, in de- 
livering the opinion of the majority of the court, is reported as say- 
ing: "The prisoners in this case had sufficient provocation; for if 
one be imprisoned upon an unlawful authority, it is a sufficient 
provocation to all people out of compassion ; much more where it is 
done under a color of justice, and where the liberty of the subject 
is invaded, it is a provocation to all the subjects of England. He 
said, that a constable cannot arrest, but when he sees an actual 
breach of the peace,^ and if the affray be over, he cannot arrest." 
See also 2 Hawk. Crim. Law, 13, Sec. 8. The later English authori- 



^ The right of a constable or other peace officer to immediately arrest for 
breach of the peace committed in his presence is universally recognized. 
Anon. Y. B. 7 Henry VII 6 pi. 12 (1480) ; United States v. Hart, Peters 390 
(U. S. 1817) ; Vandeveer v. Mattocks, 3 Ind. 479 (1852) ; Hutchinson v. 
Songster, 4 G. Greene 340 (Iowa 1854) ; Taaffe v. Kyne, 9 Mo. App. IS 
(1880) ; Commonwealth v. Deacon, 8 S. & R. 47 (Pa. 1822) ; Perry v. Pa R. 
Co., 41 Pa. S. C. 591 (1910) ; Taylor v. Strong, 3 Wend. 384 (N. Y. 1829) ; 
State V. Bowen, 17 S. Car. 58 (1881) ; Ross v. State, 10 Tex. App. 455 (1881) ; 
Main v. McCarty, 15 111. 441 (1854). At common law the right of a peace 
officer to arrest without warrant upon view of offenses less than felony, was 
confined to breaches of the peace and offenses punishable in a summary man- 
ner. Clerk and Lindsell on Torts, 6th ed. 350; Park v. Taylor, 118 Fed 34 
(1902); Commonwealth v. Wright, 158 Mass. 149 (1893); Way's Case 41 
Mich. 299 (1879) ; Donovan v. Jones, 36 N. H. 246 (1858) ; Booth v. Hanley, 
2 C. & P. 288 (1826), arrest of one committing a nuisance, see Mumford V. 
Starmont, 139 Mich. 188 (1905), Schnider v. Montross, 158 Mich. 263 (1909) 
and Moore v. Durgin, 68 Maine 148 (1878); contra, State v. McNally, 87 Mo' 
644 (1885), [holding also that killing to effect arrest is justifiable, as to 



STATE V. LEWIS. 979 

ties seem to settle the law there in accordance with the views of 
Lord Holt. Coupey v. Henley et al., 2 Esp. 540; Baynes v. Brew- 
ster, 2 A. & E. (N. S.) 375 ; Regina v. Mable, 9 C. & P. 474; Tim- 
othy V. Simpson, i C. M.. & R. 757 ; Grant v. Moser, 5 Mann & G. 
123; I Russ. on Cri. (8th ed.) 410, 805." In the case of Cook v. 
Nethercote, 6 C. & P. 741, Alderson, B., in summing up says : "If, 
however, there has been an affray, and that affray were over, then 
the constable had not and ought not to have the power of appre- 
hending the persons engaged in it ; for the power is given him by 
law to prevent a breach of the peace; and where a breach of the 
peace had been committed, and was over, the constable must pro- 
ceed in the same way as any other person, namely, by obtaining a 
warrant from a magistrate." Id. 744. 

The American authorities establish the same rule. ■ Roberts v. 
The State, 14 Mo. 138; The People v. James Haley, 48 Mich. 495; 
Phillips V. Trull, 11 John. 486; Pow v. Beckner et al., 3 Ind. 475; 
I Bishop on Cr. Procedure, 183, 184; Quinn v. Heisel, 40 Mich. 576; 
In re Sarah Way, 41 Mich. 299; Commonwealth v. Carey, 12 Cush. 
246.^ 

This court has held that city council may lawfully authorize 
police officers to arrest upon view any person found in the act of 
violating the ordinances of the city, made for the preservation of 
good order and public convenience. White v. Kent, 11 Ohio St. 
550. Also that the officer in making arrest upon view is not bound 
to disclose his official character. Wolf v. State, 19 Ohio St. 248. 
And that it is lawful to arrest, without warrant, one who is unlaw- 
fully carrying a concealed weapon, though the officer had no previ- 
ous knowledge of the fact if he acted bona fide upon knowledge 
which induced an honest belief that the person was violating the 
law in this respect. Ballard V. State, 43 Ohio St. 340. But the 
facts in those cases disclose that the person arrested was taken while 
in the act of committing the offense for which he was apprehended, 
while in the case under consideration the evidence tended to show 
that the defendant acted upon information only, and that the affray 
was over, and public order restored before he attempted to pursue 
or arrest the supposed offender. 



which see Tiner v. State, 44 Tex. 128 (187S)] ; Webb v. State, 51 N. J. L. 189 
(1889), semble, Percival v. Bailey, 70 S. Car. 72 (1904), and Baltimore & 
Ohio R. Co. V. Cain, 81 Md. 87 (189S). 

'Accord: Kurts v. Moffitt, 115 U. S. 487 (1885), arrest of deserter from 
the United States army; Sharrock v. Hannemer, Cro. Eliz. 375 (1S9S) ; 
Cohen v. Huskisson, 2 M. & W. 477 (1837) ; Ross v. Leggett, 61 Mich. 445 
(1886) ; People v. McLean, 68 Mich. 480 (1888) ; Percival v. Bailey, 70 S. Car. 
72 (1904) ; Thome v. Turck, 94 N. Y. 90 (1883), and Fox v. Gaunt, 3 B. & Ad. 
798 (1832), both cases of arrest for obtaining money under false pretenses; 
Pinkerton v. Verberg, 78 Mich. 573 (1889), and State ex rel. Kingsley v. 
Pratt, 22 Hun 300 (N. Y. 1880), women arrested as "street-walkers"; but 
see Smith v. Donelly, 66 111. 464 (1873J), where an owner of a horse and wagon 
which had been untied, unlawfully taken and drawn off by mischievous boys, 
was held justified in arresting them while still driving the horse, though the 
taking was not a felony but a high misdemeanor; and see State v. Diets, 59 
Kans. 576 (1898). 



980 BALTIMORE &C. R. CO. Z: CAIX. 

BALTmORE & OHIO R. CO. z: CAIN. 
Court of Appeals of Maryland, 1895. 81 Md. 87. 

McSherry, J., delivered thfe opinion of the Court. 

During the progress of the trial, which resulted in a verdict and 
judgment for the plaintiff, four exceptions were reserved and the 
defendant then took the pending appeal. 

The plaintiff with three companions, including one by the name 
of Watkins, were passengers on the defendant's train going to 
Washington, D. C. They entered the ladies' car, and while, the 
evidence was conflicting, the testimony for the defendant was to the 
effect that they were intoxicated and behaved in a disgraceful, 
shocking and disorderly manner, using profane language so obscene 
as to drive the female passengers from the car. Many of the other 
passengers complained to the conductor, who feeling himself unable 
to cope with them and personally eject them, telegraphed to Wash- 
ington for an officer to arrest them. When the train reached Wash- 
ington the policeman was there, and the conductor pointing out the 
plaintiff, arrested him and took him to the station house, where the 
conductor appearing against him he was fined five dollars.^ 

W'ith these facts before the jury, there were two prayers pre- 
sented by the plaintiff, both of which were granted ; and there were 
nine presented by the defendant, all of which, except the sixth, were 
rejected. The view we take of the case dispenses with a separate 
consideration of each of these prayers, inasmuch as the defendant's 
fifth prayer raises the crucial inquiry contained in the record; and 
what we shall say in discussing the prayer will, with a few brief 
additional observations, dispose of most, if not all, of the others. 
The fifth prayer maintains that if the plaintiff was riotous and dis- 
orderly the conductor had the right to eject him; that if the con- 
ductor was unable to do this by reason of the threat of resistance, 
then the conductor was justified in requesting the first police officer 
whom he could find to arrest the plaintiff ; and it proceeds, "if the 
jury further find, that the police officer at the Washington depot 
was the first police officer the conductor saw, and that the conductor 
used due diligence in procuring a police officer, and that the con- 
ductor directed the police officer to arrest the plaintiff for said dis- 
orderly conduct, that the defendant is not liable for this arrest, and 
the verdict of the jury must be for the defendant." From this 
prayer, considered in connection with the evidence to which allusion 
has been made, it is obvious at a glance that the predominant and 
controlling question before us involves the legality of the conceded 
arrest made in the city of Washington. Under the undisputed proof 
that arrest was made without a warrant having been first procured. 

It was not made for an alleged felony, nor for a misdemeanor 
or breach of the peace committed within view of the officer who took 



^ The statement of facts is condensed from those given in the opinion of 
the Court. 



BALTIMORE &C. R. CO. V. CAIN. 981 

the plaintiff into custody; but, if the evidence of the defendant's 
witnesses be credited, it was made for a flagrant breach of the peace, 
which began at Washington Grove and continued into Washington 
City, on the moving train of the defendant, and was made at the 
instance of the conductor the very moment he reached a place where 
he could deliver these intoxicated offenders into the custody of a 
police officer. Was the arrest so made illegal ? 

It is settled that an officer has the right to arrest without a war- 
rant for any crime committed within his view. It was his duty to 
do so at the common law, and this is still the law. Roddy v. Finne- 
gan, 43 Mo. 504; Phillips V. Trull, 11 Johns. 486; Derecourt v. Cor- 
bishly, 5 El. & Bl. 188 f and in cases of felony he may arrest upon 
information, without warrant, where he has reasonable cause. Rex 
V. Birnie, i Moody & R. 160; Rohan v. Sawin, 5 Cush. 281. And 
so any person, though not an officer, in whose view a felony is com- 
mitted, may arrest the offender. RulofF v. People, 45 N. Y. 213. 
But the right of a person not an officer to make an arrest is not 
confined to cases of felony, for he may take into custody, without a 
warrant, one who in his presence is guilty of an affray or a breach 
of the peace. Knot v. Gay, 1 Root, 66. "It seems agreed that any 
one who sees others fighting may lawfully part them, and also stay 
them till 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 sureties for the peace."^ i Rus. on Crimes, 272; i Arch. 
Crim. Prac. & PI. 82; i Haw. P. C, ch. 63, sec. 11 and 17; 2 Hale 
P. C, 90; East P. C, 306; Timothy v. Simpson, i C. M. & R. 757. 
The case last cited was one of 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 the plaintiff en- 
tered the same and then and there insulted, abused and ill-treated 
the defendant and his servants, and greatly disturbed them in the 
peaceable enjoyment 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 thereupon the defendant, in order to preserve the peace and 
restore good order in the house, gave charge of the plaintiff to a po- 
liceman, and requested the policeman to take the plaintiff into his 
custody to be dealt with according to law, and the policeman gently 
"laid his hands on the plaintiff and took him into custody. It ap- 
peared in evidence that the plaintiff entered the defendant's shop 
to purchase an article, when a dispute arose between the plaintiff 
and the defendant's shopman ; that plaintiff refused on request to go 
out of the shop; the shopman endeavored to turn him out and an 
affray ensued between- them ; that the defendant came into the shop 
during the affray, which continued for a short time after he came 

" But see Note 1 to State v. Lewis, ante, p. 977. 

"A witness to any breach of the peace may summon the police and give 
the offender unto custody, Ingle v. Bell, 1 M. & W. 516 (1836) ; Cohen v. 
Huskisson, 2 M. & W. 477 (1837). So when the constable though present 
fails to act, a bystander may call on him to do his duty and make the arrest, 
Derecourt v. Corbishley, 5 E. & B. 188 (1855). 



982 BALTIMORE &C. R. CO. V. CAIN. 

in ; that the defendant then requested the plaintiff to leave the shop 
quietly ; but he refusing to do so, the defendant gave him in charge 
to a policeman, who took him to a station house. Parke, B., in 
course of his lucid opinion, said, "it is unquestionably true that any 
bystander may and ought to interfere 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 affray- 
ers and detain them until the heat be over, and then deliver them to 
a constable." Then quoting from Haw. P. C, the same passage we 
have transcribed from i Rus. on Crimes, the learned Baron went 
on, "and pleas founded upon this rule and signed by Mr. Justice 
BuUer are to be found in 9 Went. Pl^ad. 344, 345, and DeGrey, 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 until 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 cannot arrest an 
affrayer after the actual violence is over, but whilst he shows a dis- 
position 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 as- 
sembled 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. 



* Accord: Cohen v. Huskisson, 2 M. & W. 477 (1837) note; Price v. 
Seeley, 10 CI. & F. 28 (1843) ; Quinn v. Heisel, 40 Mich. 576 (1879). Sim- 
ilarly either a private person or an officer has the right to arrest one, who 
though not having previously broken the peace, gives such person or officer, 
by his overt acts, reasonable ground to apprehend that unless arrested he 
will immediately break the peace, but the mere fact that the plaintiff is still 
at the place where he has previously broken the peace will not justify the 
belief that he intends to renew the affray, Quinn v. Heisel. 40 Mich. 576 
(1879), nor will the past commission of a misdemeanor together with oppor- 
tunity to repeat it justify an arrest, Pinkerton V. Verberg, 78 Mich. 573 
{\?&9),Reg. v. Mahel, 9 C. & P. 474 (1840), Knot v. Gay, 1 Root 66 (Conn. 
1774). "Preventive measures to be effective, must be taken on the appearance 
of things. It is too late, after the mischief is accomplished" — Hayes v. 
Mitchell, 80 Ala. 183 (1885). Any person is entitled to restrain one who is- 
about to commit a felony and keep him in custody until he can be handed 
over to a constable, Handcock v. Baker, 2 B. & P. 260 (1800). 

°The right of a private person arresting or causing the arrest depends 
on the actual guilt of the person arrested, suspicion, no matter how reason- 
able, gives no such right. Palmer v. Maine Cent. R. Co., 92 Maine 399 (1899) ; 
and see Cook v. Nethercote, 6 C. & P. 741 (1835). As to the right of a peace 
officer to arrest on reasonable suspicion of a breach of the peace, or criminal 
offence less than felony, compare Shanley v. Wells, 71 111. 78 (1873) Phillips 
v. Fadden, 125 Mass. 198 (1878), Gold v. Armer, 140 App. Div 73 (N Y 
1910) ; and State v. Hunter, 106 N. Car. 796 (1890), with State v. Johnson 5 
Harr. 507 (Del. 1853), and McCullough v. Commonwealth. 67 Pa. 30 (1870) • 
and see Palmer v. Maine Cent. R. Co., 92 Maine 399 (1899), and Enright v! 
Gibson, 219 111. 550 (1906), construing the provisions of the Illinois Criminal 
Code. 



BALTIMORE &C R. CO. V. CAIN. 983 

but on the information and complaint of another, arrest the of- 
fender ; and, of course, the person so complaining is justified in giv- 
ing the charge to the constable. Lord Hale, P. C, 89 * * * It is 
clear upon facts that there was a defence on the ground of the de- 
fendant's right to arrest for a breach of the peace in his presence." 
See also Grant v. Moser, 5 M. & Gr. 127 ; Simmons v. MilUgan, 2 C. 
B. 524; Webster v. Watts, 11 Q. B. 311 (63 E. C. L. R.) ; Cohen v. 
Huskision, 2 M. & W. 477 ; Shaw v. Chairitie, 3 C. & K. 21 ; Burns 
V. Erben, 40 N. Y. 466; Smith v. Donnelly, 66 111. 464; Tiedeman 
on Lim. Police Power, 84; State v. Sims, 16 S. Car. 486 — a case 
strikingly opposite. 

Now, if it be true that the plaintiff was guilty of the reprehen- 
sible and disorderly conduct attributed to him by the witnesses, he 
was incontestably engaged in a flagrant and outrageous breach of 
the peace, as pronounced as if there had been an actual affray dur- 
ing the whole time he was in the defendant's car ; and it was clearly 
lawful, under these conditions, for the conductor to expel him and 
his drunken companions from the train if he had a sufficient force 
to overcome their threatened resistance, or else to arrest them all 
without warrant and then deliver them to the first peace officer he 
could procure within a reasonable time. If this were not so, then, 
as said by Lord C. J. Denman in Webster v. Watts, supra, "the 
peace of all the world would be in jeopardy." And it would be in 
jeopardy because if in such and similar instances no arrest could be 
lawfully made without a warrant, the culprit, "if transient and un- 
known, would escape altogether," before a warrant could be ob- 
tained. Mitchell V. Lemmon, 34 Md. 181. And there would soon 
cease to be any order or any security or protection afforded the pub- 
lic on swiftly moving railroad trains, or even elsewhere, unless a 
peace officer were constantly present. The delay necessarily inci- 
dent to obtaining a warrant would be in many, if not in most cases 
of this and a kindred character, equivalent to an absolute immunity 
from arrest and punishment; and should the name of the offender 
be unknown, he most probably never would be apprehended if once 
suffered to depart. The law is not so impotent and ineffective as that. 
Being physically unable to expel these alleged riotous persons from 
the train, the conductor telegraphed for a peace officer, and without 
delay, and whilst the plaintiff was still drunk, caused his arrest the 
instant the officer thus summoned came in view of the plaintiff. If, 
then, any bystander could, in the language of Baron Parke, "for the 
sake of the preservation of the peace * * * restrain the liberty of 
him whom he sees breaking" the peace, the act of the conductor in 
telegraphing for the policeman and within a short space of time 
thereafter handing the plaintiff over to the officer, was in no respect 
different from a formal arrest of the plaintiff by the conductor, in 
the midst of the riot and disorder, and the prompt delivery of him 
afterward to the officer. If the plaintiff w;as not in fact arrested by 
the conductor because of the presence of superior resisting force, 
that fact cannot make the subsequent act of the conductor in point- 
ing out the plaintiff to the officer, wrongful or illegal. The charge, 



984 WAHL V. WALTON. 

according to the plaintiff's own testimony, was sustained; a fine 
was imposed and he paid it. The accusation was therefore well- 
founded,' and what was done by the conductor, if the facts testified 
to by the defendant's witnesses be credited, was undeniably lawful 
under all the circumstances. If this be so, then there is obviously no 
cause of action against the defendant, because no wrong has been 
done to the plaintiff. This is the theory of the defendant's fifth 
prayer. That prayer being correct in principle and proper in form 
ought to have been granted. 

Judgment reversed with posts above and below, and new trial 
awarded. 



WAHL V. WALTON. 
Supreme Court of Minnesota, 1883. 30 Minn. 506. 

GiLFiLLAN, C. J. Gen. St. 1878, c. 105, § 11, provides: "A 
peace ofificer may, without a warrant, arrest a person — First, for a 
public offense committed or attempted in his presence; second, 
when a person arrested has committed a felony, although not in his 
presence ; third, when a felony has in fact been committed, and he 
has reasonable cause for believing the person arrested to have com- 
mitted it ; fourth, on a charge made, upon reasonable cause, of the 
commission of a felony by the party arrested." 

This action is for false imprisonment. The defendant justi- 
fies the imprisonment as upon an arrest of plaintiff, made by him, 
then a police officer of the city of Minneapolis, without a warrant, 
for a violation, in his presence, of an ordinance of that city. There 
was evidence tending to show that, about noon, the plaintiff violated 
the ordinance in the presence of defendant. The defendant did not 
then attempt to make the arrest, but went about his other duties 
during the afternoon, and arrested plaintiff at 5 or 6 o'clock in the 
evening. There was also evidence tending to show that plaintiff 
was committing a similar violation of the ordinance at the time of 
the arrest. The court instructed the jury, in effect, that if plaintiff 
was, at the time of the arrest, committing a violation of the ordi- 
nance, that would justify the arrest, though without a warrant, but 
that defendant had no authority to arrest in the evening for a vio- 
lation at noon. 

At the common law, a constable might, without warrant, arrest 
for a breach of the peace committed in his view. 4 Bl. Com. 292. 
But it was well settled that in case of an offence not a felony, the 
arrest must have been made at the time of, or within a reasonable 
time after, its commission. Regina v. Walker, 25 Eng. Law & Eq. 
589 ; Cook V. Nethercote, 6 C. & P. 741 ; Clifford v. Brandon, 2 
Camp. 358; Derecourt v. Corbishley, 5 El. & Bl. 188; Phillips v. 
Trull, 1 1 John. 486 ; Taylor v. Strong, 3 Wend. 384 ; Meyer v. Clark, 
41 N. Y. Sup. Ct. 107. In case of felony actually committed, al- 
though not in his presence, he might, upon probable suspicion, arrest 
without a warrant. The reason for the distinction lay in the greater 



LEGER V. WARREN. 985 

gravity of the latter class of offences, and the greater importance to 
the public of bringing the offenders to punishment. 

When it is said that the arrest must be made at the time of or 
immediately after the offence, reference is had, not merely to time, 
but rather to sequence of events. The officer may not be able, at 
the exact time, to make the arrest ; he may be opposed by friends of 
the offender ; may find it necessary to procure assistance ; consider- 
able time may be employed in the pursuit. The officer must at once set 
about the arrest, and follow up the effort until the arrest is effected. 
In Regina v. Walker, supra, some two hours had elapsed between 
the offence and the arrest, and it was held that the authority to 
arrest was gone, because there was no continued pursuit ; and the 
same was held in Meyer v. Clark, supra, because the officer had de- 
parted and afterward returned, the court saying, the shortness of the 
interval does not affect the question. In this case, some five hours 
having elapsed between what occurred at noon and the arrest, dur- 
ing which the defendant was not about anything connected with the 
arrest, the court was right in its instructions that there was no au- 
thority to arrest for that occurrence. 

The record of the plaintiff's conviction before the municipal 
court was res inter alios acta, and therefore not competent. 

Order affirmed.^ 



LEGER V. WARREN. 

Supreme Court of Ohio, 1900. 62 Ohio St. SOO. 

Williams, J. It was shown on the trial, that the plaintiff was 
arrested by the defendant officers without warrant, as alleged in the 
petition, and was imprisoned after such arrest for a period of more 
than five days, without any warrant for his detention, and without 
any charge having been made against him before any competent 
tribunal, or opportunity allowed him for a trial ; that during his 
imprisonment he frequently demanded to be informed of the nature 
of the charge on which he was detained, and to be taken before a 
proper court for a hearing thereon ; and that, at the end of the 
period named, when he was discharged from prison, no complaint 
had been filed against him, nor trial allowed him. These facts were 
not disputed. The evidence of the defense was directed entirely to 
the establishment of good cause for the arrest, and to the subject of 
damages. There was no impropriety, therefore, in the court treat- 
ing as undisputed the facts above stated and no complaint is urged 
here on that account. The objection made, is to that part of the 
charge by which the jury were instructed, in substance, that though 
the defendants making the arrest or causing it to be made, had good 
cause therefor, that did not justify the imprisonment of the plaintiff 
thereunder for a longer period than was reasonably necessary to 
enable the defendants to obtain a warrant, or authority from some 
competent tribunal, for his further detention; and, that his con- 

^See also, State v. Lewis, SO Ohio St. 179 (1893), p. 187. semhle. 



986 LEGER Z'. WARREN. 

tinued imprisonment without such warrant or authority, rendered 
them Hable as wrongdoers from the beginning, leaving only the 
question of damages for the consideration of the jury. In this 
charge we think there was no error. It is provided by Section 7130, 
of the Revised Statutes, that : "When a felony has been committed, 
any person may, without a warrant, arrest another who he believes, 
and has reasonable cause to believe, is guilty of the offense, and may 
detain him until a legal warrant can be obtained." 

The right to make arrests without warrant is conferred by the 
statute in order to prevent the escape of criminals where that is 
likely to result from delay in procuring a writ for their apprehen- 
sion; and it was not the purpose to dispense with the necessity of 
obtaining such writ as soon as the situation will reasonably permit. 
To afford protection to the oificer or person making the arrest, the 
authority must be strictly pursued; and no unreasonable delay in 
procuring a proper warrant for the prisoner's detention can be ex- 
cused or tolerated. Any other rule would leave the power open to 
great abuse and oppression. The detention of the plaintiff in prison 
for a period of five days, and more, without any writ, or order of 
any court, and in disregard of his repeated demands to be given a 
hearing, was without excuse or palliation. None was offered. It 
was a palpable and arbitrary abuse of official power. Not having 
pursued their authority to arrest without warrant, by failing to ob- 
tain within a reasonable time, a writ or order for the plaintiff's de- 
tention, the defendants placed themselves in the same situation as 
if they had originally acted without authority. It is a familiar rule 
that one who abuses an authority given him by law becomes a tres- 
passer ab initio.'^ 

In behalf of the plaintiffs in error, Leger, Miller, and Frank, it 
is contended that, as they were subordinate officers acting under 
orders from the chief of the police force in arresting the defendant 
in error and delivering him into the custody of the patrolmen, who 
conveyed him to the city prison in obedience to the chief's orders, 
they should not be held responsible for his subsequent imprisonment, 
nor for the omission to obtain the necessary warrant and bring him 
to trial. But the delivery of the plaintiff after his arrest, into the 
custody of another person, to be by him taken to prison, could not, 
we think, absolve the arresting officers from the duty required of 
them to obtain the writ necessary to legalize his further imprison- 
ment. If it could, the imprisonment might with impunity be pro- 
longed indefinitely by the change of custodians and places of con- 
finement, at short intervals. The arrest having been made without 



*As to this see Gray, J. in Brock v. Stimson, 108 Mass. 520 (1871), p. 
521, "If he fails to execute or return the process as required, he may not per- 
haps in the strictest sense be said to be a trespasser ab initio; but he is often 
called such, for his whole justification fails, and he stands as if he never had 
any authority to take the property" (or seize the plaintiff's person), "and 
therefore appears to have been a trespasser from the beginning" See also 
Mulberry V. FuelVart, 203 Pa. St. 573 (1902), holding that a failure to pro- 
ceed with the prosecution, as required, being a mere nonfeasance, could not 
make the original arrest a trespass ab initio. 



RUSH V. BUCKLEY. 987 

warrant, it was necessary, in order to preserve the legality of that 
action, that the proper steps should be taken to prevent the further 
detention of the prisoner from becoming unlawful ; for, as we have 
seen, unless those steps be taken, all legal protection for such arrest 
ceases, and the arresting officers become wrongdoers from the be- 
ginning, liable as such, equally with those by whom the unlawful 
imprisonment is continued. If the arresting officers choose to rely 
on some other person to perform that required duty, they take upon 
themselves the risk of its being performed, and unless it is done in 
proper time, their liability to the person imprisoned, is in no wise 
lessened or affected. There was no order of a superior officer in 
this case that did or could prevent the defendants who made the 
arrest from complying with the requirement of the law in the re- 
spect indicated, nor excuse their omission to comply therewith. 

Judgment affirmed.^ 

(b) Arrest under warrant and seizure of goods under judicial 

process. 



RUSH V. BUCKLEY. 
Supreme Judicial Court of Maine, 190S. 100 Maine, 322. 

WiswELL, C. J. The plaintiff had been arrested upon two oc- 
casions, brought before the Augusta Municipal Court, tried, con- 
victed, sentenced to pay a fine in each case and committed to jail in 
default of such payment, upon warrants issued by that court. The 
offense alleged in the complaint and warrant in each case was the 
violation of an ordinance of the City of Augusta regulating public 
carriages therein, and which prohibited all persons from driving 
such a carnage in the City of Augusta without a license therefor, 
under a penalty therein provided. In these two cases, reported and 
argued together, the plaintiff sues the judge of the municipal court 
who issued the warrants, the officer who served them and the per- 
sons who made the two complaints, for false imprisonment, upon 
the ground that the ordinance had never gone into effect, and was 
void, because it never had been published in some newspaper printed 
in Augusta as required by the statute authorizing such ordinances. 
R. S., c. 4, sec. 93, paragraph IX. 

Assuming that the ordinance never became effective because of 



'Accord: Burke v. Bell, 36 Maine 317 (1853) ; Linnen v. Banfield, 114 
Mich. 93 (1897); Burk v. Howley, 179 Pa. St. 539 (1897); Newby ^1 Gwm. 
74 Tex. 455 (1889). See also. Brock v. Stimson, 108 Mass. 520 (1871), fail- 
ure to go on with prosecution, plaintiff released after an hour's detention ; 
Phillips v. Fadden, 125 Mass. 198 (1878), where, however, the plaintiff's re- 
lease was at his own request; H alley v. Mix, 3 Wend. 350 (N. Y. 1829), and 
Gamier v. Squires, 62 Kans. 321 (1900), in the first case an officer, in the 
second a private person, used the arrest to extort the return of money alleged 
to be stolen; Richardson v. Dybedahl, 14 S. Dak. 126 (1900); Gibson v. 
Holmes, 78 Vt. 110 (1905), plaintiff taken to jail in another county. 



988 RUSH V. BUCKLEY. 

this failure to publish it, the question presented by the two cases is, 
whether the judge who issued the warrants, the officer who served 
them, and the persons who made the complaints upon which they 
were issued, or either of them, are liable in damages to the plaintiff 
for this alleged false imprisonment. 

As to the liability of the defendants who made the original com- 
plaints upon which the warrants were issued: It is settled by an 
almost unbroken line of authorities, that where a person does no 
more than to prefer a complaint to a magistrate, in a matter over 
which the latter has a general jurisdiction, he is not liable in tres- 
pass for false imprisonment for the acts done under the warrant 
which the magistrate thereupon issues, even though the magistrate 
has no jurisdiction over the parficular complaint. Barker v. Stet- 
son, 7 Gray, 53 ; Lancjford v. Boston & Albany R. R. Co., 144 Mass. 
431 ; afford V. Wiggins, 50 Minn. 401 ; Murph'v V. Walters, 34 
Mich. 180; Teal v. Fissel, 28 Fed. R. 351. If the complaint is 
malicious, and without probable cause, the complainant would be 
answerable in another form of action, and it would be no defense 
that the acts stated to the magistrate, upon which the warrant was 
issued, did not constitute a criminal offense. Finn V. Brink, 84 
Maine, 261. In order for a complainant to be liable in this form of 
action, whether his motives were malicious or not, he must do 
something more than merely to make complaint before a magistrate 
having jurisdiction of the party and over the general subject-mat- 
ter, by interfering and instigating the officer to enforce the war- 
rant. "The rule is, that if a stranger voluntarily takes upon him- 
self to direct or aid in the service of a bad warrant, or interposes 
and sets the officer to do execution, he must take care to find a 
record that will support the process, or he cannot set up and main- 
tain his justification." Emery v. Hapgood, 7 Gray, 55. 

There is no evidence in this case sufficient to take it out of the 
general rule as to the liability of the complainants. Neither of these 
complainants aided or in any way participated in the arrest of the 
plaintiff upon the warrants or in his commitment to jail after the 
hearing in default of the payment of the fine imposed. They did not 
in any way take part in the plaintiff's arrest or commitment, nor did 
they officiously interfere therewith by giving directions to the officer, 
or otherwise. It is true, that one of the complainants, when asked 
by the judge, after the imposition of the fine, as to whether or not 
he wanted the sentence enforced, replied in the affirmative, but this 
was no such interference with the service of the warrant of arrest, 
or of commitment, as should make him liable therefor, and amounted 
to no more than the making of the original complaint. 

As to the liability of the officer: For reasons founded on 
public policy, and in order to secure a prompt and effective service 
of legal process, the law protects its officers in the performance of 
their duties, if there is no defect or want of jurisdiction apparent 
on the face of the writ or warrant under which they act. The officer 
is not bound to look beyond his warrant. He is not to exercise his 
judgment touching the validity of the process in point of law; but 



UUSJI V. liUCKLliY. 989 

if it is in clue form, and is issued by a court or magistrate appar- 
ently having jurisdiction of the case or Kubject-matter, he is to obey 
its commands. In such case, he may justify under it although in 
fact it may have been issued without authority, and therefore be 
wholly void. Emery V. Hapgood, 7 Gray, 55. The theory of the 
law is to protect an officer in his acts of official duty so far as it 
reasonably can without injustice to others. The rule should be lib- 
erally inter])reted in the officer's behalf. Elsemore v. Longfellow, 
76 Maine, 128. Where the process is in due form and comes from 
a court of general jurisdiction over the subject-matter, the officer 
is justified in acting according to its tenor, even if irregularities 
making the process voidable have previously occurred. Tellefsen v. 
Fee, 168 Mass. 188, wherein numerous cases are cited and consid- 
ered. Where, however, the process is void on its face, or where the 
court or magistrate issuing the warrant has no general jurisdiction 
over the subject-matter, the officer is not protected by his procoss. 

We have numerous illustrations of this latter rule in the re- 
ported decisions of this court, some of which may be referred to 
for the purpose of showing the ground upon which all of these de- 
cisions have been based. In Warren v. Kelley, 80 Maine, 512, the 
process commanded the officer to seize a vessel for the purpose of 
enforcing a lien created by a state statute for repairs upon a vessel. 
The statute authorizing the enforcement of such a lien by a pro- 
ceeding in the state court was unconstitutional. The court had 
no jurisdiction over the subject-matter, which, by the constitution 
of the United States, was vested in the federal courts. It was there- 
fore held by this court that the officer was not protected by the 
process, because the process was absolutely void inasmuch as the 
state court had no jurisdiction over the subject-matter, and, "suffi- 
cient appeared upon its face (the process) to show that it was not 
from a court of competent jurisdiction in reference to the subject- 
matter."' 

In Stilphen v. Ulmer, 88 Maine, 211, the plaintiff resided and 



'■Accord: Campbell v. Sherman, 35 Wis. 103 (1874), closely similar 
facts; I'isher v. McGirr, 1 (]ray 1 (Mass. 1854), general search warrant issued 
under act subsequently held unconstitutional; Sumner v. Beeler, SO Ind. 341 
(187S), arrest for drunUcrniess under unconstitutional act; Ely v. Thompson 
3 A. K. Marsh, 70 (Ky. 1820) ; but see Cottam v. Oregon, 98 Fed. 570 (C c' 
Dist. of Oregon 1899) and Williams v. Morris, 22 Ohio Circ. (32 O. C. C. R.) 
453 (1911). As to the liability of a party who sues out and directs the exe- 
cution of process issued in strict compliance with a statute afterwards de- 
clared unconstiiutioiial, see Mcrrit v. St. Paul, 11 Minn. 223 (1866). So a 
ministerial officer is nut protected by a process of court or command of a 
superior, even the sovereign, which is prohibited by the constitution, unwrit- 
ten or written, or, though not prohibited, is beyond the constitutional power 
of such court or superior, linlick v. Carrington, 2 Wils, 275, 19 How. St. Tr. 
1029 (1765), general search warrant issued by one of His Majesty's principal 
Secretaries of Stale; Grumon v. Raymond, 1 Conn. 40 (1814); Sandford v. 
Nichols, 13 Mass. 286 (1816), siinilar warrants issued by a magistrate; Wise 
v. IVithcrs, 3 Cranch 331 (U. S. 1806), process for collection of fine imposed 
by Court Martial upon one exempt by the Constitution from military 
service; Kilbournv. Thompson, 103 U. S. 168 (1880), Sergeant-at-Arms ex- 
ecuting order which congressional committee had no power to make. 



990 RUSH V. BUCKLEY. 

was arrested in Kennebec County upon a warrant issued by a trial 
justice of Knox County for violating the fish and game laws in 
Lincoln County; the trial justice clearly had no jurisdiction over 
the subject-matter of the oflfense, or over the offender, and these 
facts were apparent upon the face of the warrant, so that the officer 
who served the process was not protected by it. In Brown v. 
Howard, 86 Maine, 342, the writ under which the officer justified, 
in an action of trover against him, was void, and the defect was ap- 
parent upon the face of the writ and disclosed to the officer a want 
of jurisdiction. It was therefore held that it afforded him no pro- 
tection. In Elsemore v. Longfellow, 76 Maine, 128, where the 
court said: "The officer is protected unless the process is void, and 
unless he can see from the face of the process itself that it is void," 
the court held that the absolute want of jurisdiction in the magis- 
trate was apparent upon the face of the papers and therefore af- 
forded no protection to the officer who justified thereunder. In 
Jacques V. Parks, 96 Mairie, 268, the tax warrant upon which the 
officer arrested the plaintiff was "upon its face invalid and void." 
It was therefore held to afford the officer no protection. 

It is apparent that in all of these decisions of our own court, 
some of which are cited and relied upon by counsel for the plain- 
tiff, the officer was held liable because of the fact that the proc- 
ess under which he attempted to justify was void upon its face,^ 
or because the court or magistrate by whom the process was issued 
had no jurisdiction over the subject-matter, and the process itself 
clearly showed the want of jurisdiction.^ None of these cases are 
authority for the proposition that a warrant, fair upon its face, 
which discloses no defect or want of jurisdiction, and which was in 
fact issued by a court having general jurisdiction of offenses of 
like nature, does not afford protection to the officer. Upon the other 
hand, the doctrine that an officer is protected under such circum- 
stances is abundantly supported by the authorities. 



'Accord: Campbell v. Webb, 11 Md. 471 (1857), attachment served 
without the duplicate "short note" required by statute to be served vi^ith it; 
Sprague v. Birchard, 1 Wis. 457 (1853), warrant on its face defective; Clyma 
V. Kennedy, 64 Conn. 310 (1894) ; mittimus not stating cause of commitment; 
Hazen v. Creller, 83 Vt. 460 (1910), warrant issued on unsigned complaint 
attached to it; Lueck v. Heisler, 87 Wis. 644 (1894), warrant on which the 
plaintiff was arrested for obtaining goods under false pretenses stated that 
the seller knew the falsity of the pretense; Pearce v. Atwood, 13 Mass. 324 
(1816), warrant issued on Sunday. 

' Hilbish V. Hower, 58 Pa. 93 (1868), warrant for school taxes issued by 
justices of peace instead of school board; Stephens v. Wilkins, 6 Pa. 260 
(1847), tax warrant issued to improper officer; Heller v. Clarke, 121 Wis. 71 
(1904), warrant issued by magistrate whose jurisdiction over criminal of- 
fenses had by act of legislature been transferred to another tribunal ; Bagnall 
V, Ableman, 4 Wis. 163 (1855), arrest for a bailable offense in Wisconsin 
under warrant commanding the bringing of the person forthwith into the 
custody of the United States Marshal in Michigan, without giving him op- 
portunity to find bail; and see cases cited by Lathrop, J. in Telle f sen v. Pee, 
post. Under the provisions of the Georgia Code, § 2991, an officer who in 
good faith executes a warrant defective in form or void for want of jurisdic- 
tion is not guilty of false imprisonment. Mantling v. Mitchell 73 Ga 660 
(1884). 



RUSH V. BUCKLEY. 991 

In Nowell v. Tripp, 6i Maine, 426, wherein this court held that 
a collector of taxes was protected by the warrant delivered to him 
by the assessors, in arresting the plaintiif who had removed to and 
become a citizen of another town, the court quotes with approval 
the following language from Erskine V. Hohnbach, 14 Wall. 613: 
"Whatever may have been the conflict at one time in the adjudged 
cases, as to the extent of protection afforded to ministerial officers 
acting in obedience to process, or orders issued to them by tribunals 
or officers invested by law with authority to pass upon and deter- 
mine particular facts, and render judgment thereon, it is well set- 
tled now, that if the officer or tribunal possesses jurisdiction over 
the subject-matter upon which judgment is passed, with power to 
issue an order or process for the enforcement of such judgment, 
and the order or process issued thereon to the ministerial officer 
is regular on its face, showing no departure from the law, or defect 
of jurisdiction over the person or property affected, then, and in 
such cases, the order or process will give full and entire protection 
to the ministerial officer in its regular enforcement against any 
prosecution which the party aggrieved thereby may institute against 
him, although serious errors may have been committed by the of- 
ficer or tribunal in reaching the conclusion or judgment upon which 
the order or process is issued."* 



* Accord: Savacool v. Boughton, 5 Wend. 170 (N. Y. 1830); Webber v. 
Gay, 24 Wend. 48S (N. Y. 1840) ; Champaign County Bank v. Smith, 7 Ohio 
St. 42 (1857) ; Barnes v. Barber, 1 Gilm. (6 111.) 401 (1844) ; McDonald v. 
Wilkie. 13 111. 22 (1851) ; Harmon v. Gould, Wright 709 (Ohio 1834) ; Blanch- 
ard V. Goss, 2 N. H. 491 (1822), failure to acquire jurisdiction over person or 
lack of jurisdiction because of place where or time when the offense was 
committed, or the debt contracted; Marks v. Townsend, 97 N. Y. 590 (1885), 
arrest of person previously arrested for same debt; Holz v. Rediske, 116 
Wis. 353 (1903), process issued by court which had lost jurisdiction by im- 
proper adjournments; see also, Clarke v. Mav, 2 Gray 410 (Mass. 1854) ; and 
Mcintosh V. Bullard et al., 95 Ark. 227 (1910) ; Andrews v. Morris, 1 Ad. & 
E. (N. S.) 3 (1841), execution personally issued by clerk of court of requests 
on default of payment of money ordered to be paid in instalments, the clerk 
having no authority to issue execution for such defaults except on order of the 
commissioners; Paul v. Van Kirk, 6 Binney 123 (Pa. 1813), joint execution is- 
sued on separate judgments ; Jennings v. Thompson, 54 N. J. L. 55 (1891), writ 
not conforming to order of the court; Babe v. Coyne, S3 Cal. 261 (1878); 
Garnet V. Wimp, 3 B. Mon. 360 (Ky. 1843) ; Cody v. Quinn, 6 Ire. (Law) 
191 (N. Car. 1845) ; Billings v. Russell, 23 Pa. 189 (1854) ; Kelsey v. Kla- 
bunde, 54 Nebr. 760 (1898), defects in affidavits, bonds or other irregularities 
which render void, or voidable, or afford a defense to, the proceedings in 
which the process was issued, and this though the process is subsequently 
vacated, Coleman v. Brown, 126 App. Div. 44 (N. Y. 1908) ; Chase v. Ingalls, 
97 Mass. 524 (1867), magistrate issuing warrant was also the attorney who 
drew the writ; Watson v. Watson, 9 Conn. 140 (1832), writ of replevin for 
animal never impounded; Barnett v. Reed, 51 Pa. St. 190 (1865), execution 
on judgment issued after the debt had been paid; Carle v. Delesdernter, 13 
Maine 363 (1836), and Woods v. Davis, 34 N. H. 328 (1857). arrest of per- 
sons privileged from arrest; see also, cases cited by Lathrop and Knowlton, 
JJ. in Tellefsen v. Fee, post. The immunity of a sheriff attaching goods does 
not depend on the successful prosecution or validity of the action in which 
it issued, Livingston v. Smith, 5 Pet. 90 (U. S. 1831) ; Jackson v. Kimball. 
121 Mass. 204 (1876), original action discontinued; Rice v. Miller, 70 Tex. 613 
(1888), sheriff knew the action was brought maliciously and without sufficient 



992 RUSH V. BUCKLEY. 

The case of Hofschulte v. Doe, 78 Fed. R. 436, is very much in 
point and contains a full discussion of this question. It was there 
decided that when a court which, though of inferior and local juris- 
diction, has general jurisdiction with respect to the violation of the 
ordinances of the town, entertains a complaint under such an ordi- 
nance, and thereupon issues process, fair on its face, to an officer, 
the process is a justification to the officer in doing the acts thereby 
required, notwithstanding the ordinance under which the court acts 
is invalid, and that no action lies against an officer for the acts done 
by him pursuant to such process. 

In accordance with these general principles it is clear that the 
officer who served these warranto upon the plaintiff is not liable in 
damages to him, even if the ordinance upon which the complaints 
and warrants were based had never gone into effect for the reason 
before stated. The warrants were issued by the judge of the 
municipal court of the city of Augusta, which court had general 
jurisdiction over the subject-matter of the violation of city ordi- 
nances. When we speak of a court as having jurisdiction over the 
subject-matter, we mean, as said in State v. Neville, no Mo. 345, 
19 S. W. 491, "the power to hear and determine cases of the gen- 
eral class to which the proceeding in question belongs." The com- 
plaints were for the violation of a city ordinance in regard to the 
regulation of public carriages. The city had power to pass such an 
ordinance, express authority therefor being given by the statute 
R. S., c. 4, sec. 93, paragraph 9. This ordinance was duly passed 
by the city government, and only claimed to be invalid or ineffective 



grounds; Lashus v. Matthews, 75 Maine 446 (1883), aliter where the seizure 
under an attachment or execution of goods, prima facie the property of a 
stranger to the writ, is justified on the ground that they have been trans- 
ferred to such stranger by the defendant in the writ in fraud of his creditors, 
or are otherwise liable for the payment of his debts, as in Miller v. Bannister, 
109 Mass. 289 (1871), in which case the sheriff must show, by judgment ren- 
dered in favor of the plaintiff in the writ or otherwise, that the debt is ac- 
tually due, Damon v. Bryant, 2 Pick. 411 (Mass. 1824) ; Sexey v. Adkinson, 
34 Cal. 346 (1867) ; Cook v. Hopper, 23 Mich. 511 (1871) ; Cross v. Phelps, 
16 Barb. 502 (N. Y. 18S3). In the following cases officers, serving tax war- 
rants "fair" on their face, have been held protected, though the tax was levied 
on property improperly listed, Hill v. Figley, 25 111. 156 (1860) ; Bird v. Per- 
kins, 33 Mich. 28 (1875); Moore v. Allegheny, 18 Pa. 55 (1851); St. 
Louis Mut. Life Ins. Co. v. Charles, 47 Mo. 462 (1871) ; Walden v. Dudley, 
49 Mo. 419 (1872) ; or on a person not liable to assessment, as a nonresident, 
Kelley v. Noyes, 43 N. H. 209 (1861) ; or where the tax was invalid because 
of the absence of some condition precedent to the right to ass^s it, Cunning- 
ham V. Mitchell, 67 Pa. 78 (1870) with which compare Leachman v. Dough- 
erty, 81 111. 324 (1876). See also, Matthews v. Densmore, 109 U. S. 216 
(1883) ; Oswalt v. Smith, 97 Ala. 627 (1893) ; Goodwine v. Stephens, 63 Ind. 
112 (1878) ; Stoddard v. Tarbell, 20 Vt. 321 (1848). 

The protection generally given an officer by process regular on its face 
does not extend to a case where "the officer attempts to overthrow a sale by 
the debtor on the ground of fraud." "He must go back of his process and 
show authority for issuing it. If he act under an execution, he must show 
a judgment ; and if he seizes under an attachment, he must show the attach- 
ment regularly issued" — Noble v. Holmes, 5 Hill 194 (N. Y. 1843) ; Matthews 
V. Densmore, 43 Mich. 461 (1880), reversed in 109 U. S. 216 (1883) ; Hines 
v. Chambers, 29 Minn. 7 (1882) ; Williams v. Eikenberry, 25 Nebr. 721 '(188^). 



TELLEFSEN V. FEE. 993 

because it was never published in some newspaper printed in the 
city as required by the statute referred to. The warrants con- 
tained nothing upon their face to indicate that the court which 
issued them, and which had general jurisdiction over the subject- 
matter, did not have jurisdiction over this particular ofifense, or that 
the facts stated in the complaint did not constitute an offense be- 
cause of this failure to comply with the preliminary requisite as to 
publication. If it were necessary for an officer, before serving a 
warrant issued by such a court, having general jurisdiction of of- 
fenses of this nature, and over the alleged offender, to first make 
inquiries as to whether all of the necessary preliminaries necessary 
to make a city ordinance effective had been complied with, it would 
cause intolerable delay and very seriously interfere with the efficient 
administration of the criminal laws. The ministerial officer is 
bound to know the jurisdiction of the court which issues process to 
him, he is bound to know whether, from constitutional or other 
reasons, the court has jurisdiction over offenses of that nature, but 
he is not bound to inquire into the question of fact as to whether 
or not a city ordinance in relation to a subject-matter, concerning 
which the city is by statute authorized to pass ordinances, has been 
published as required by the statute. ° 



TELLEFSEN v. FEE. 
Supreme Judicial Court of Massachusetts, 1897. 168 Mass. 188. 

Lathrop, J. The Municipal Court of the city of Boston had 
no jurisdiction of the action brought against the plaintiff in this 
case for wages alleged to be due one Johnson, and the writ upon 
which the plaintiff was arrested on mesne process was of no effect. 

It appears, therefore,^ that the consul of Sweden and Norway 
had exclusive jurisdiction of the controversy or difference between 
Johnson and Tellefsen, and that the Municipal Court of the city 
of Boston had no jurisdiction either of the subject-matter or of the 
persons of the parties in the action which the seaman saw fit to 
bring against the master. The officer who arrested the master was 
therefore acting illegally and without justification, and is liable in 
this action, unless he is protected by virtue of his writ. This' pre- 
sents a question of some difficulty and one which is not wholly free 
from doubt. 

Before proceeding to consider the principal question, it may 
be well to state briefly certain principles laid down by the courts 
in regard to which there is little or no dispute. '• 

Where the process is in due form and comes from a court of 
general jurisdiction over the subject-matter, the officer is justified 

'Henke v. McCord, 55 Iowa 379 (1880^, warrant issued to enforce an 
ordinance outside the powers conferred by the state upon the municipality 
enacting it, and see Walden v. Dudley, 49 Mo. 419 (1872). 

^ By virtue of § 13 of the treaty of 1827 between the United States and 
Sweden and Norway, 8 U. S. Statutes, 346-352. 



994 TELLEFSEN V. FEE. 

in acting according to its tenor, even if irregularities making the 
process voidable have previously occurred. Savacool v. Boughton, 
5 Wend. 170; Earl v. Camp, 16 Wend. 562; Ela v. Shepard, 32 N. 
H. zyj ; Howard v. Proctor, 7 Gray, 128 ; Dwinnel? v. Boynton, 3 
Allen, 310; Chase v. Ingalls, 97 Mass. 524; Hubbard v. Garfield, 102 
Mass. 72; Bergen v. Hayward, 102 Mass. 414; Rawson v. Spencer, 
113 Mass. 40; Chesebro v. Barme, 163 Mass. 79, 82 ; Hines v. Cham- 
bers, 29 Minn. 7; Hann v. Lloyd, 21 Vroom, i. 

Where, however, the. process is void on its face, the officer is 
not protected. Clark v. Woods, 2 Exch. 395. Pearce v. Atwood, 
13 Mass. 324. Eames v. Johnson, 4 Allen, 382. Thurston v. Adams, 
41 Maine, 419. Harwood v. Siphers, 70 Maine, 464. Brown v. 
Howard, 86 Maine, 342. Rosen'v. Fischel, 44 Conn. 371. Frazier 
V. Turner, 76 Wis. 562. Sheldon v. /ft//, 33 Mich. 171. Poulk v. 
Slocum, 3 Blackf. 421. 

An officer is bound to know the law, and to know the juris- 
diction of the court whose officer he is; if, therefore, he does an 
act in obedience to a precept of the court, and the court has no 
jurisdiction in the matter, either because the statute under which 
the court acted is unconstitutional, or there is a want of jurisdiction 
for any other reason, it would seem that the officer is not protected. 
There are many authorities to this effect. Fisher v. McGirr, i 
Gray, I, 45. Warren v. Kelley, 80 Maine, 512. Batchelder v. Cur- 
rier, 45 N. H. 460. Thurston v. Martin, 5 Mason, 497. Campbell 
V. Sherman, 35 Wis. 103. Sumner v. Beeler, 50 Ind. 341. The 
Marshalsea, 10 Rep. 68 b. Crepps v. Durden, Cowp. 640. Brown 
V. Compton, 8 T. R. 424. Watson v. Bodell, 14 M. & W. 57.^ 

Whether this doctrine applies to a case like the present, where 
the court had general jurisdiction over the subject-matter, but no 
jurisdiction over the particular controversy between the parties, 
and no jurisdiction over their persons, we need not decide, because 
on the facts in this case we are of opinion that the officer may be 
held liable. 

He was informed before making the arrest that the vessel was 
a Norwegian vessel, and the captain of the vessel a Norwegian, and 
that the claim of Johnson would be adjusted at the consulate of the 
Kingdom of Sweden and Norway. Being informed of the facts, 
he was bound to know the law, that the court had no jurisdiction 
over' the person of the captain or the subject-matter of the action. 
Sprague v. Birchard, I Wis. 457, 464, 469. Grace v. Mitchell, 31 • 
Wis. 533, 539, 545. Leachman v. Dougherty, 81 111. 324, 327, 328.' 

There are, without doubt, cases which lay down a more strin- 
gent rule, and say that the officer need not look beyond his precept, 
and is not bound to take notice of extrinsic facts ; but all of these 
are cases which are distinguishable from the case at bar. The lead- 
ing case on this subject is People v. Warren, 5 Hill (N. Y.) 440. 
The defendant was indicted for assaulting an officer. The in- 

' Note that in all of these cases lack of jurisdiction was apparent on the 
face of the process. 

' See Gould, C. J. in Tierney v. Frazier, 57 Tex. 437 (1882), p. 440. 



TELLEFSEN V. FEE. 995 

specters of an election issued a warrant to a constable for the arrest 
of the defendant, for interrupting the proceedings at the election 
by disorderly conduct in the presence of the inspectors. The de- 
fendant offered to show that he had not been in the presence of 
the inspectors at any time during the election, and that the con- 
stable knew it. This was held to be rightly excluded. The opinion 
is per curiam, and is very brief. While it says that the inspectors 
had no jurisdiction of the subject-matter, yet the clear meaning is, 
that, if the defendant was not in their presence, they acted in ex- 
'cess of their jurisdiction. Knowledge by an officer that a man was 
innocent would of course be no excuse for assaulting the officer, 
if he arrested the man upon a warrant from a court of competent 
jurisdiction. An officer in a criminal case is obliged to obey his 
warrant, whatever his knowledge may be. This disposes also of the 
case of State v. Weed, 21 N. H. 262. 

Several cases have been called to our attention in which there 
are dicta to the effect that an officer is not bound to look beyond his 
precept, ev^ if he has knowledge that the court has no jurisdiction ; 
but an examination of these cases shows that the facts known to 
the officer did not affect the jurisdiction of the court, but related 
to irregularities in the prior proceedings, or to matters merely of 
defence to the action. See cases above cited. 

Of course, where the court has jurisdiction of the subject-mat- 
ter and of the parties to an action, knowledge on the part of the 
officer, or information to him that there is some irregularity in the 
proceeding can make no difference. Underwood v. Robinson, 106 
Mass. 296.* Nor can it make any difference that the officer is in- 
formed that there is a defence to the action, such as that the de- 
fendant has a receipt; Twitchell v. Shaw, 10 Cush. 46; or a dis- 
charge in insolvency ; Wilmarth v. Burt, 7 Met. 257 ;'* or that the de- 
fendant is an infant; Gassier V. Fales, 139 Mass, 461.* 

But the question of jurisdiction is a more serious matter, and 
if facts are brought to the attention of the officer about which he 
can have no reasonable doubt, and he knows, or is bound to know, 
that on these facts the court has no jurisdiction of the controversy, 
he may well be held to proceed at his peril. 

We can see no hardship upon the officer in holding him respon- 
sible in this case for an illegal arrest and for false imprisonment. 
If an officer has reasonable cause to doubt the lawfulness of an ar- 



* The magistrate who took the afBdavit and signed the certificate as at- 
torney for the plaintiff made out the writ and it was held that the officer was 
not bound by his familiarity with the magistrate's writing to take notice of 
resulting invalidity of the writ. 

' Twitchell v. Shaw and Witmarch v. Burt are relied upon by Sheldon, J. 
in Leachman v. Doughert'^, as authority for his dissenftherein. 

"Accord: O'Shaughnessy v. Baxter, 121 Mass. 515 (1877), the officer, who 
arrested the person named in and intended by the writ of execution, knew that 
the note on which the action was brought was signed by another person of 
the same name; Rice v. Miller, 70 Tex. 613 (1888), sheriff attaching goods 
knew the insufficiency of the original cause of action and that it had been 
brought maliciously; see also, Woods v. Davis, 34 N. H. 328 (1857), arrest of 
person privileged therefrom, semble. 



996 TELLEFSEX V. FEE. 

rest, he may demand from the plaintiff a bond of indemnity, and 
so save himself harmless. Marsh v. Gold, 2 Pick. 285, 290. We 
are not aware that this case has ever been doubted ; and in practice, 
bonds of indemnity have often been required. 

In the case at bar, after receiving full information, he chose 
to proceed, and, in defiance of the treaty, to subject the subject of a 
foreign nation to a gross indignity, for the purpose of extorting 
money from him, under the guise of a precept which the court had 
no jurisdiction to issue, and which it would not have issued had the 
facts been before it. 

We approve of the language of Mr. Freeman in 21 Am. Dec. 
204, where, after a discussion of the cases bearing -upon the ques- 
tion of the liability of an officer, he Says: ,"We apprehend, at all 
events, that the protection of process cannot so far extend as to 
protect an officer who, from all the circumstances of the case, does 
not appear to have acted in good faith, and whose conduct shows 
that his eyes were wilfully closed to enable him not to see and know 
that he was a too ready instrument in the perpetration of a griev- 
ous wrong." 

In the opinion of a majority of the court, the instruction re- 
quested should have been given. 
Exceptions sustained. 

Knowlton, J. It seems to me that the opinion of the majority 
of the court is wrong in holding that the defendant was bound to re- 
ceive statements made by the plaintiff or others for the purpose of 
determining whether he could lawfully serve a writ which was reg- 
ular in form, and which on its face showed a case within the juris- 
diction of the court. The exceptions on this point present a naked 
proposition of law, and raise no question in regard to the good faith 
of the defendant in performing his official duty. The writ which 
he served stated an ordinary case for the collection of a debt. An 
officer is bound to know the law, even to the extent of determining 
whether a statute on which his process is founded is or is not con- 
stitutional. But for the facts, he is not called upon to take the testi- 
mony of anybody in regard to anything outside of the statements 
contained in the process, nor even to act upon what he believes to 
be his own knowledge. The jurisdiction which the court must have 
in order to justify him is jurisdiction of the case stated in the writ. 
It may turn out that there was no real case upon which to issue a 
writ, and that the prosecution is grossly malicious, or that there is 
a real case materially different from that stated, and which does not 
come within the jurisdiction of the court, but the officer is not bound 
to inquire into matters of this kind. This has been held in a great 
many cases in Massachusetts and elsewhere, and the reasons for the 
rule have been elaborately stated in different jurisdictions. These 
reasons seem to me fully to cover the present case. Twitchell v. 
Shaw, 10 Cush. 46. Wilmarth V. Burt, 7 Met. 257. Donahoe v. 
Shed, 8 Met. 326. Fisher v. McGirr, I Gray, I, 45. Clarke v. May, 
2 Gray, 410. Chase v. Ingalls, 97 Mass. 524. Underwood v. Rob- 
inson, 106 Mass. 296, 297. Rawson v. Spencer, 113 Mass. 40, 46. 



BUCK V. COLBATH. 997 

Gassier V. Fates, 139 Mass. 461. State v. Weed, 21 N. H. 262. 
Batchelder v. Currier, 45 N. H. 460. Watson v. Watson, 9 Conn. 
140. Warren v. Kelley, 80 Maine, 512, 531. Earl v. Camp, 16 
Wend. 562. Webber v. Gay, 24 Wend. 485. People v. Warren, 5 
Hill (N. Y.) 440. //aww v. Lloyd, 21 Vroom, i. Taylor v. /i/^;i;- 
ander, 6 Ohio, 144, 147. Henline v. Reese, 54 Ohio St. 599. f^aW 
V. Trumbull, 16 Mich. 228, 234.'' 

The cases in Wisconsin and Illinois cited in the opinion are the 
only ones that I have been able to find, after considerable investiga- 
tion, which hold a different doctrine. On the authorities cited above 
I am unable to see that it makes any difference whether the outside 
information communicated to the officer, if taken to be true, would 
show the real case to be one upon which such a precept cannot prop- 
erly be issued, because it comes within a treaty giving exclusive ju- 
risdiction to another tribunal, or would show the precept to be un- 
warranted for any one of numerous other causes. That the de- 
fendant in the original action happens to be a captain of a Nor- 
wegian ship, and to owe the plaintiff in his official capacity, gives 
him a privilege of which he may or may not avail himself to take 
the case out of the general jurisdiction of the court. I think this 
fact calls for the application of the same principle as a strictly per- 
sonal privilege. Indeed, the principle of the case seems to cover 
every kind of external fact which operates to take away a jurisdic- 
tion that appears to be perfect on the face of the papers. 

It has been held that an officer may, if he chooses, act upon his 
knowledge or information of actual facts which show that the court 
was without jurisdiction, and refuse to serve the writ. Earl v. 
Camp, 16 Wend. 562. Henline v. Reese, 54 Ohio St. 599. But this 
is very different from requiring him, at his peril, to determine ques- 
tions of fact. I think the exceptions should be overruled. 



BUCK V. COLBATH. 
Supreme Court of the United States, 1865. 70 U. S. 334. 

Colbath sued Buck in one of the State courts of Minnesota, in 
an action of trespass for taking goods. Buck pleaded in defence, 
that he was marshal of the United States for the district of Min- 
nesota, and that having in his hands a writ of attachment against 
certain parties whom he named, he levied the same upon the goods, 
for taking which he was now sued by Colbath. But he did not aver 
that they were the goods of the defendants in the writ of attachment. 

On the trial Colbath made proof of his ownership of the goods, 
and Buck relied solely on the fact that he was marshal and held the 
goods under the writ in the attachment suit. 

The court refused to instruct the jury that the defence thus set 



''Accord: Tierney v. Frazier, 57 Tex. 437 (1882), facts closely sirntlar 
to Twitchell v. Shaw; Rainey v. State, 20 Tex. App. 4SS (1886), defects in 
affidavits and bond making a writ of attachment void; Marlis v. Sullivan, 9 
Utah 12 (1893) ; and see Bird T. Perkins, 33 Mich. 28 (1875). 



ggS BUCK V. colbath. 

up was a sufficient one; and the plaintiff had a verdict and judg- 
ment. The judgment was affirmed on error in the Supreme Court 
of Minnesota, and the defendant brought the case here under the 
25th section of the Judiciary Act. 

Mr. Justice Miller. How far the courts are bound to inter- 
fere for the protection of their own officers is a question not dis- 
cussed in the case of Freeman V. Howe,^ but which demands a pass- 
ing notice here. In its consideration, however, we are reminded at 
the outset, that property may be seized by an officer of the court 
under a variety of writs, orders, or processes of the court. For our 
present purpose, these may be divided into two classes : 

1. Those in which the process or order of the court describe 
the property to be seized, and which contain a direct command to 
the officer to take possession of that particular property. Of this 
class are the writ of replevin at common law, orders of sequestra- 
tion in chancery, arid nearly all the processes of the admiralty courts, 
by which the res is brought before it for its action. 

2. Those in which the officer is directed to levy the process 
upon property of one of the parties to the litigation, sufficient to 
satisfy the demand against him, without describing any specific 
property to be thus taken. Of this class are the writ of attachment, 
or other mesne process, by which property is seized before judg- 
ment to answer to such judgment when rendered, and the final 
process of execution, elegit, or other writ, by which an ordinary 
judgment is carried into effect. 

It is obvious on a moment's consideration, that the claim of the 
officer executing these writs, to the protection of the courts from 
which they issue, stands upon very different grounds in the two 
classes of process just described. In the first class he has no discre- 
tion to use, no judgment to exercise, no duty to perform but to seize 
the property described. It follows from this, as a rule of law of 
universal application, that if the court issuing the process had juris- 
diction in the case before it to issue that process, and it was a valid 
process when placed in the officer's hands, and that, in the execution 
of such process, he kept himself strictly within the mandatory clause 
of the process, then such writ of process is a complete protection to 
him, not only in the court which issued it, but in all other courts.'' 

In the other class of writs to which we have referred, the officer 
has a very large and important field for the exercise of his judgment 
and discretion. First, in ascertaining that the property on which 
he proposes to levy, is the property of the person against whom the 
writ is directed ; secondly, that it is property which, by law, is sub- 

'In Freeman v. Howe, 24 How. 4S0 (U. S. 1860), it had been decided that 
a United States marshal having levied a writ of attachment in an action in a 
Federal Court, upon goods of one a stranger to the writ, the rightful owner 
could not obtain possession of them by a writ of replevin issued by a State 
Court, since to allow it would lead "to endless strife" "between courts whose 
powers are derived from entirely different sources, while their jurisdiction is 
concurrent as to the parties and the subject-matter of the suit." 

'Accord: As to the seizing of the very property named in writ of re- 
plevin, Watson V. Watson, 9 Conn. 140 (1832), but the officer is liable if he 
seizes property not named therein, Kane v. Hutchisson, 93 Mich. 488 (1892). 



HALBERSTADT V. NEW YORK LIFE INS. CO. 999 

ject to be taken under the writ; and thirdly, as to the quantity of 
such property necessary to be seized in the case in hand. In all these 
particulars he is bound to exercise his own judgment, and is legally 
responsible to any gerson for the consequences of any error or mis- 
take in. its exercise'to his prejudice. He is so liable to plaintiff, to 
defendant, or to any third person whom his erroneous action in the 
premises may injure. And what is more important to our present 
inquiry, the court can afford him no protection against the parties 
so injured; for the court is in no wise responsible for the manner 
in which he exercises that discretion which the law reposes in him, 
and in no one else. 

In the case before us, the writ under which the defendant justi- 
fied his act and now claims our protection, belongs to this latter 
class. Yet the plea on which he relied contains no denial that the 
property seized was the property of plaintiff, nor any averment that 
it was the property of either of the defendants in the attachment 
suit, or that it was in any other manner subject to be taken under 
the writ. 

We see nothing therefore in the mere fact that the writ issued 
from the Federal court, to prevent the marshal from being sued in 
the State court, in trespass for his own tort, in levying it upon the 
property of a man against whom the writ did not run, and on prop- 
erty which was not liable to it. 

Judgment affirmed with costs.^ 



SECTION 4. 

Right to Institute Legal Proceedings for the Punishment of 
Crime or for Private Redress 



(a) Malicious prosecution. 



(1) Institution of proceedings and their termination. 

HALBERSTADT v. NEW YORK LIFE INSURANCE CO. 
Court of Appeals of New York, 1909. 194 New York Reports. 1. 

Appeal, by permission, from an order of the Appellate Divi- 
sion of the Supreme Court in the first judicial department, entered 
May 8, 1908, which reversed an interlocutory judgment of Spe- 

^ Sanderson v. Baker, 2 Wm. Black. 832 (1771), A's goods seized on a {i. 
fa. against B.; Glasspoole v. Young, 9 B. & C. 696 (1829), female plaintiff's 
goods seized under a H. fa. against one M., who had gone through a form of 
marriage with the plaintiff. She, believing the marriage valid and the property 
in the goods transferred thereby to M., acquiesced in the seizufe. It was held 
that on discovering the piarriage to be invalid, she might maintain trover 



lOOO HALBERSTADT V. ti'E^N YORK LIFE IKS. CO. 

cial Term sustaining a demurrer to the second and third defenses 
of the answer and overruled such demurrer. 

The action is brought to recover damages for an alleged mali- 
cious prosecution claimed to have been instituted by the respond- 
ent against the appellant in Mexico. It is in the- complaint, amongst 
other things, alleged that the respondent through its agent in the 
Criminal Court in the city of Mexico charged the appellant with 
the crime of embezzlement "and thereupon and in and by virtue of 
said charge and the institution of said criminal proceedings a war- 
rant was issued by said court for the arrest of the plaintiff (in this 
action)," and that thereafter "the said criminal proceedings for 
the punishment of said plaintiff were dismissed and extinguished 
and the said prosecution was thereby "wholly determined * * * 
in favor of the plaintiff." 

The respondent, by its second defense, which is challenged here 
for insufficiency, alleged, in substance, that before the warrant re- 
ferred to in the complaint could be served upon the appellant and 
before he could be apprehended, "he left the Republic of Mexico, 
and thereby continuously remained absent * * * and by such 
absence avoided being arrested under such warrant, or being tried 
* * * but remained absent from said Republic of Mexico for 
a sufficient period of time to enable him to procure the dismissal 
of said proceedings under the law of Mexico on account solely of 
the lapse of time," and, conversely, that said criminal proceedings 
"were not- dismissed on account of a determination of the case in 
favor of the plaintiff on the trial thereof on the merits, nor was it 
dismissed for failure to prosecute said case except as above set 
forth, nor was it dismissed on account of any withdrawal of the 
complaint." 

The third defense, also challenged, (was substantially the 
same) repeats the foregoing allegations and alleges that "the de- 
parture of the plaintiff * * * -was for the purpose of avoiding 
arrest, and by so absconding the said plaintiff did avoid arrest," and 
in substance that he did so for the purpose and with the result of 
procuring a dismissal of the criminal proceedings in accordance 
with the laws of Mexico on account of the lapse of time alone, and 
"by reason of the premises said plaintiff could not be brought to 
trial and was never tried in said court to answer said charge." 

HiscocK, J. This appeal involves interesting questions in an 
action for malicious prosecution raised by demurrer to certain af- 
firmative defenses which have been pleaded. 

against the sheriff; North v. Peters, 138 U. S. 271 (1890), injunction granted 
to compel sheriff to release goods and restraining him from further levy- 
thereon; People ex rel. Kellogg x. Schuyler, 4 Corns, 173 (N. Y. 18S0) ; Ball 
V. Pratt, 36 Barb. 402 (N. Y. 1862) ; Heidenheimer v. Sides, 67 Tex. 32 
(1886) ; and see Miller v. Commonwealth, 5 Pa. 294 (1847). 

So an officer executing a warrant, or a jailor receiving a prisoner from 
him, is bound at his peril to arrest the person named therein, Aaron v. Alex- 
ander, 3 Camp. 35 (1811) ; Griswold v. Sedgwick, 6 Cow. 456 (N. Y. 1826), 
1 Wend. 126 (1828) ; Mead v. Haws, 7 Cow. 332 (1827) ; Miller v. Foley, 28 
Barb. 630 (N. Y. 1859) ; Hays v. Creary, 60 Tex. 445 (1883) ; Landnim v. 
Wells, 7 Tex. Civ. App. 625 (1894). 



HALBERSTADT V. NEW YORK LIFE INS. CO. !<->( IOCi\ ^<, 

vV .^^' 

The respondent's first reply to the appellants attack aoonM.ts .r^ 
answer is of the tu quoque nature, it insisting that the compl^kaijAV^j:^ 
as deficient in the statement of a good cause of action as the answer 
is alleged to be in the statement of a good defense. This conten- 
tion is based upon the fact that the complaint does not allege any 
act subsequent or in addition to the mere issuance of a warrant in 
the criminal proceeding complained of ; does not allege that the war- 
rant was ever executed in any way whatever, or that the appellant 
was ever brought into said proceedings either by force of process 
or voluntary appearance. Therefore, the question is presented 
whether the mere application for and issuance to a proper officer 
for the execution of a warrant on a criminal charge may institute 
and constitute such a prosecution as may be made the basis of a 
subsequent civil action by the party claimed to have been injured. 
In considering this question we must keep in mind that the facts al- 
leged in the complaint, and in the light of which it is to be deter- 
mined, do not show, as the answer does, that the defendant in those 
proceedings was beyond the jurisdiction of the court. 

This question does not seem to have been settled by any decision 
which we regard as controlling on us. 

The respondent cites the following authorities deciding it in 
the negative: Newfield v. Copperman (Spl. Term) (15 Abb. Pr. 
(N. S.) 360) ; Lawyer v. Loomis (3 T. & C. 393) ; Cooper v. Ar- 
mour (42 Fed. Repr. 215) ; Heyward v. Cuthbert (4 McCord (S. C.) 
354); O'Driscoll v. McBurney (2 Nott & McCord (S. C.) 54); 
Bartlett V. Christliff (14 Atlantic Repr. 518) ; Gregory v. Derby (8 
C. & P. 749) ; Paul V. Fargo (84 App. Div. 9).^ 

The case last cited was concerned with an alleged malicious 
prosecution by means of civil process and what was there said must 
be interprieted with reference to that fact, and thus interpreted it 
is not applicable here. Of the other cases, only two, Heyward v. 
Cuthbert and Cooper v. Armour, considered the question here in- 
volved with sufficient thoroughness to require brief comment. An 
examination will show that the decision in each of them rested in 
whole or in part on a principle not, as I believe, adopted in this 
state. In the former it was said that "The foundation of this sort 
of action is the wrong done to the plaintiff by the direct detention 
or imprisonment of his person." As I think we shall see hereafter, 



^ See also, Davis v. Sanders, 133 Ala. 275 (1901), semble, "an averment 
of the issuance of process, properly describing it, and the plaintiff's arrest 
and irnprisonment by virtue thereof, is essential in an action of malicious 
proseciition." In Mitchell v. Donanski, 28 R. I. 94 (1906), the defendant ob- 
tained a warrant against the plaintiff charging him with conduct not consti- 
tuting any crime, the warrant was never served, the defendant voluntarily 
directing the officer not to serve it, dismissing that complaint and paying the 
costs, it was held that no action lay, citing Byne v. Moore, 5 Taunt. 187, 1 
Marsh. 12 (1813), where a plaintiff, who proved that a bill of indictment was 
presented to the grand jury and not found, was held to have no action since 
he proved no damage, the indictment not containing scandal nor the charge 
putting the plaintiff to any expense. But in Mitchell v. Donanski, it is inti- 
mated, p. 97, that such a charge of a criminal offence, actionable per se (in 
slander) or putting the accused to special damage might support an action. 



1002 HALBERSTADT V. NEW YORK LIFE INS. CO. 

that is not a correct statement of the law in this state. In the other 
case it was stated, "The only injury sustained by the person accused, 
when he is not taken into custody, and no process has been issued 
against him, is to his reputation ; and for such an injury the action 
of libel or slander is the appropriate remedy, and would seem to be 
the only remedy." I think that this doctrine, which if correct would 
provide an adequate remedy outside of an action for malicious 
prosecution for an injured party in a case where no warrant had 
been executed, also is opposed to the weight of authority both in 
this state and elsewhere hereafter to be referred to. 

The authorities holding to the contrary on the question above 
stated, and that the execution of the warrant is not necessary to 
lay the foundation for an action of m^icious prosecution, are : Ad- 
dison on Torts (Vol. 2 (4th Eng. Ed.), p. 478) ; Newell on Mali- 
cious Prosecution (sect. 30) ; Stephens on Malicious Prosecution 
(Am. Ed., sect. 8) ; Stapp v. Partlow (Dudley's Repts. (Ga.) 176) ; 
Clark V. Postan (6 C. & P. 423) ; Feazle v. Simpson (2 111. 30) ; 
Britton v. Granger (13 Ohio Cir. Ct. Repts. 281, 291) ; Holmes v, 
Johnson (Busbee's L. R. (N. C.) 44) ; Coffey v. Myers (84 Ind. 

And to the like eflfect in the absence of special statutory pro- 
visions is Swift V. Witchard (103 Ga. 193). 

Thus it is apparent, as before stated, that there is no control- 
ling decision on this question and we are remitted to a search for 
some general considerations which may be decisive. It seems to 
me that these may be found and that they favor the view that a 
prosecution may be regarded as having been instituted though a 
warrant has not been executed. 

The first one of these considerations 'is found in the rule ap- 
plied in civil actions and proceedings to an analogous situation. 
There it has many times been held that the mere issue of various 
forms of civil process for service or other execution is sufficiently 
independent of statute to effect the commencement of a case or pro- 
ceeding.^ 

I see no reason why a similar rule should be applied to crim- 
inal proceedings, at least for the purpose of such an action as this. 

Then there is another reason resting on justice which seems to 
me to lead us to adopt this conclusion. In opposition to what was 
said in the South Carolina case already referred to, the sole foun- 
dation for an action of malicious prosecution is not "the wrong done 
to the plaintiff by the direct detention or imprisonment of his per- 
son." In an action for false imprisonment that would be so. But 
in an action of the present type, the substantial injury for which 
damages are recovered and which serves as a basis for the action 
may be that inflicted upon the feelings, reputation and character 
by a false accusation as well as that caused by arrest and imprison- 

"Citing Carpenter v. Butter field, 3 Johns. Cases, 145 (N. Y. 1802) ; Cheet- 
ham V. Lewis, 3 Johns. 42 (N. Y. 1808) ; Branson v. Earl, 17 Johns. 63 (N Y 
1819) ; Ross v. Luther, 4 Cow. 158 (N. Y. 1825) ; Mills v. Corbett, 8 How Pr 
500 (N. Y. 1853) ; Hancock v. Ritchie, 11 Ind. 48, 52 (1858) ; Howell v Shep- 
ard, 48 Mich. 472 (1882) ; Webster v. Sharpe, 116 N. Car. 466, 471 (1895) 



HALBERSTADT V. NEW YORK LIFE INS. CO. IOO3 

ment. This element "indeed is in many cases the gravamen of the 
action." {Sheldon v. Carpenter, 4 N. Y. 579, 580 ; Woods v. Finnell, 
13 Bush (Ky.) Repts. 628; Townsend on Slander, sec. 420; Wheel- 
er V. Hanson, 161 Mass. 370; Gundermann V. Buschner, 73 111. App. 
180; Lawrence v. Hagerman, 56 111. 68; Davis v. Seeley, 91 Iowa 

583-) 

But no matter how false and damaging the charge may be in 
a criminal proceeding upon which a warrant may be issued, damages 
for the injury caused thereby can not under any ordinary circum- 
stances be recovered in an action for libel or slander.' 

Therefore, it follows that a person who has most grievously 
injured another by falsely making a serious criminal accusation 
against him whereon a warrant has been actually issued, may escape 
all liability by procuring the warrant to be withheld unless an ac^ 
tion for malicious prosecution will lie. It seems to me that under 
such circumstances we should hold that such action will lie, if for 
no other reason than to satisfy that principle of law which demands 
an adequate remedy for every legal wrong. 

Deciding, therefore, that the appellant's complaint does state 
a cause of action, we are brought to the direct consideration of the 
respondent's answer. I do not think that there is such substantial 
difference between the two defenses which are questioned as calls 
for any separate treatment of them. Liberally construed, as the 
pleader is entitled to have them in the face of a demurrer, each one 
amounts to this, that the appellant fled from Mexico before the 
warrant could be served on him for the purpose of avoiding serv- 
ice, and remained out of the country and beyond the jurisdiction 
of the court for such a length of time that the criminal proceeding 
was finally dismissed, presumably because prosecution was not and 
could not be carried on. The question is whether a dismissal or 
discontinuance of a criminal proceeding under such circumstances 
is that kind of a termination which will support an action for mali- 
cious prosecution. If it is, the answers are bad ; otherwise, not. 

While it is elementary that a criminal proceeding must be ter- 
minated before an action for malicious prosecution can be begun,* 



' Citing Howard v. Thompson, 21 Wend. 319, 324 (N. Y. 1839) ; Woods v. 
Wiman, 47 Hun 362, 364 (N. Y. 1866) ; Sheldon v. Carpenter, 4 N. Y. 579, 580 
(1851) ; Dale v. Harris, 109 Mass. 193 (1872) ; Gabriel v. McMullin, 127 Iowa 
426 (1905) ; Hamilton v. Eno, 81 N. Y. 116 (1880) ; Newell on Malicious Pros- 
ecution, sec. 10. 

* "Otherwise he might recover in the action and yet be convicted in the 
original prosecution", Fisher v. Bristow, 1 Douglas 215 (1779), and see cases ■■ 
cited in note to Graves v. Scott. 2 L. R. A. N. S. 927 (1905), pp. 927-928.. 
Therefore the statute of limitations does not run until the original prosecu- ^ 
tion is terminated, Rider v. Kite, 61 N. J. L. 8 (1897). This is equally so in ' 
an action for the malicious prosecution of civil actions and for the same 
reason, Bonney v. King, 103 111. App. 601 (1902), 201 111. 47 (1903) ; Wilson 
V. Hale, 178 Mass. Ill (1901). But if the nature of the proceeding is such 
that the plaintiff has no opportunity to make a defense and it is thus impos- 
sible for the proceedings to terminate in his favor, as where the proceedings 
are ex parte and the court or magistrate has no discretion but acts as it were 
ministerially upon the defendant's complaint, an action will lie if the pro- 
ceedings are without probable cause and malicious, Steward v. Gromett, 7 C, 



I004 HALBERSTADT V. NEW YORK LIFE INS. CO. 

there has been much discussion of the nature of this necessary ter- 
mination. The best idea of what is essential may be gathered by 
reference to some pertinent authorities. 

In Wilkinson v. Howell (22 E. C. L. R. 368; i M. & M. N. P. 
495) it appeared that the court in the criminal proceeding com- 
plained of had ordered a stet processus with the consent of the par- 
ties. It was said by Lord Tenterden, "That the termination (of the 
criminal proceeding) must be such as to furnish prima facie evi- 
dence that the action was without foundation," and that the termina- 
tion in question did not furnish any such evidence.^ 

In McCormick v. Sisson (7 Cowen, 715, 717) criminal proceed- 
ings were suspended because the parties declared that they had set- 
tled all matters of difficulty between them. The court held that 
there was no proper termination of the proceeding, saying: "It is 
essential that the plaintiff prove he has been acquitted. The dis- 
charge must be in consequence of the acquittal. The action can not 
be sustained unless the proceedings are at an end by reason of an 
acquittal." 

In Gallagher v. Stoddard (47 Hun, loi) it appeared that the 
plaintiff, after being arrested, paid the officer having him in custody 
some money, which was receipted for by the defendant and the of- 
ficer, and he was thereupon discharged. It was held that this was 
not enough. 

In Atwood V. Beirne (73 Hun, 547) it appeared that there had 
been cross-criminal proceedings and it was arranged that the re- 
spective complainants should be absent on the days to which the 
proceedings were adjourned and each complaint thus fell for want 
of prosecution: It was held that this was not a sufficient termina- 
tion to support a subsequent action for malicious prosecution. 

In Jones v. Foster (43 App. Div. 33, 35) it was said that the 
theory on which such an action as this is sustainable "is that the 
proceeding out of which the action arose has terminated success- 
fully to the defendant, exonerating him from the charge made." 

In Leyenberger v. Paul (40 111. App. 516) it was established 
that there had been an adjournment of the criminal proceedings to 
a certain day and that the attorney for the defendant in that pro- 

B. (N. S.) 191 (18S9), peace warrant issued on information before a magis- 
trate that the plaintiff had used threatening language, Hyde v. Greuch, 62 
Md. 577 (1884), — aliter, where the plaintiff was held to bail to keep the peace 
after a hearing, Hill v. Egan, 160 Pa. St. 119 (1894), — Steward v. Gromett, 7 

C. B. (N. S.) 191 (1859), — an attachment issued upon the defendant's oath 
that the plaintiff had left the country with intent to defraud his creditors; 
Bump v. Belts, 19 Wend. 421 (N. Y. 1838). So in McSwain v. Edge, 6 Ga. 
App. 9 (1909), it was held that an action would lie by a tenant evicted under 
a summary warrant obtained ex parte by the defendant, his landlord, there 
being no way after eviction for arresting the process or for forming an issue 
thereon. But the mere fact that there is no right of appeal from a conviction 
by a justice after hearing does not warrant an indirect review of the con- 
viction in an action of malicious prosecution, Basehe v. Matthews, L. R. 2 C. 
P. 684 (1867). 

"He also says, "If this_ should be allowed, the defendant would be de- 
ceived by the consent, as without that he would certainly have gone on with 
the action, and might have shown a foundation for it. 



HALBERSTADT V. NEW YORK LIFE INS. CO. IOO5 

ceeding in violation of his agreement went before the magistrate 
and procured the dismissal of the charge for want of prosecution. 
It was held that this was not sufficient, the court saying: "But a 
nolle prosequi by consent, or by way of compromise, or where such 
exemption from further prosecution has been demanded as a right, 
or sought for as a favor, is not enough. * * * The principle 
of the cases is that the discharge or acquittal must be by judicial 
action under such circumstances as that the party accused has not 
avoided or prevented judicial investigation." 

And it has been held in many different jurisdictions under 
varying circumstances that the entry of a nolle prosequi by the 
prosecuting officer or the termination of a criminal proceeding by 
the procurement of the party prosecuted or by his consent or by way 
of compromise is not such a termination of a prosecution as will 
enable the party thereby discharged to maintain an action for ma- 
licious prosecution. (Langford v. B. & A. R. R. Co., 144 Mass. 
431 ; Russell v. Morgan, 24 R. I. 134; Craig V. Ginn, 94 Am. State 
Repts. yy; Welch v. Cheek, 115 N. C. 310; Marcus v. Bernstein, 
117 N. C. 31 ; Holliday v. Holliday, 123 Cal. 26; Rosenberg v. Hart, 
33 111. App. 262; Marbourg v. Smith, 11 Kans. 554.)® 

From all of these authorities added to others which are more 
familiar I think two rules fairly may be deduced. The first one is 
that where a criminal proceeding has been terminated in favor of 
the accused by judicial action of the proper court or official in any 
way involving the merits or propriety of the proceeding or by a 
dismissal or discontinuance based on some act chargeable to the 
complainant as his consent or his withdrawal or abandonment of 
his prosecution, a foundation in this respect has been laid for an 
action of malicious prosecution.'' The other and reverse rule is that 

"Accord: Emery v. Ginnan, 24 111. App. 65 (1887) ; Wickstrom v. Swan- 
son, 107 Minn. 482 (1909) ; Baxter v. Gordon, Ironsides and Fares, 13 Ont. 
L. R. 598 (1906) ; but see Craig v. Hasell, 4 A. & E. (N. S.) 481 (1843). So 
where one charged with embezzlement is discharged on payment of the 
money which he was ch.arged with taking, Fadner v. Filer, 27 111. App. 506 
(1888) ; but see White v. Int. Book Co. and Darley v. Donath, infra. Note 8. 

A discontinuance or abandonment of a civil suit upon a compromise or 
payment of the amount claimed is not a termination of it, Sartwell v. Parker, 
141 Mass. 405 (1886) ; Rounds v. Humes, 7 R. I. 535 (1863) ; Forster v. Orr, 
17 Ore. 447 ( 18893 . 

But the accused, though present in person or by attorney, need not object 
to the proceedings being dropped. Lamprey v. Hood, Ti N.H. 384 (1905), he 
or his counsel may even protest against his being held any longer on the 
charge and so lead the state's attorney to enter a nolle prosequi, Driggs v. 
Burton, supra. Where the magistrate refuses to consider an agreement to 
settle a felony, but hears the case and discharges the accused, an action for 
malicious prosecution was held to lie, Van Voorhes v. Leonard, 1 Thomps. & 
C. 148 (N. Y. 1873). 

' It is not necessary that the termination shall be such as to preclude 
another prosecution for the same offense, it is enough that it is a final deter- 
mination of the present proceeding, "so that it can not be revived but the 
prosecutor if he wishes to proceed further, must institute proceedings de 
novo;' Graves v. Scott, 104 Va. 372 (1905); Vinal v. Core, 18 W. Va. 1 
(1881) ; Leyenberger v. Paul, 40 111. App. 516 (1890). 

But if the prosecutor, notwithstanding that a warrant is dismissed by a 
magistrate, proceeds with the prosecution as by procuring an indictment to 



I006 HALBERSTADT V. NEW YORK LIFE INS. CO. 

where the proceeding has been terminated without regard to its 
merits or propriety by agreement or settlement of the parties or 
solely by the procurement of the accused as a matter of favor or 
as the result of some act, trick or device preventing action and con- 
sideration by the court, there is no such termination as may be 



be presented to the grand jury, which prosecution is still pending or has 
terminated in the conviction of the accused, such subsequent prosecution is 
held in Hartshorn v. Smith, 104 Ga. 235 (1898), to be in effect a continuation 
of the original prosecution ;.o<:cord; Schippel v. Norton, 38 Kans. 567 (1888),, 
prosecution before a justice of the peace withdrawn by district attorney 
and the same day a new prosecution begun in the district court; Hales v. 
Raines, 162 Mo. App. 46 (1911), involuntary non-suit suffered in a civil case 
and a second action thereafter begun for same cause, and see Rogers v. 
Mullins, 26 Tex. Civ. App. 250 (1901). 

The earlier English cases required that there should be an acquittal by 
a jury after a trial on the merits, Pantsune v. Marshall, Sayer 162 (1754), 
Morgan v. Hughes, 2 T. R. 225 (1788), or at least a determination in favor 
of the accused upon the merits, Goddard v. Smith, 6 Mod. 261 (1704), 1 
Salk. 21, 2 Salk. 456, 3 Salk. 245, as to the present state of the English law 
see Clerk and Lindsell on Torts, 6th ed. 700-702 (1912), citing Delegal v. 
Highley, 3 Bing. N. C. 950 (1837), and Craig v. Hasell, 4 A. & E. (N. S.) 
481 (1843). Dicta to the same effect occur in many early American cases, 
Monroe v. Maples, 1 Root 553 (Conn. 1793) ; Williams v. Woodhouse, 3 Dev. 
Law 257 (N. Car. 1831); Hibbing v. Hyde, 50 Cal. 206 (1875); Scott and 
Boyd V. Shelor, 28 Grat. 891 (Va. 1877), and cases cited in the note to 
Graves v. Scott in 2 L. R. A. (N. S.) 927, pp. 930-932. 

But the later American cases do not, as a rule, require an acquittal after 
a trial on the merits. Where the accused is discharged by the court having 
jurisdiction, whether a trial or appellate court or a committing magistrate 
or a justice of the peace, this is generally held a suflficient termination of the 
case, though it is sometimes held that the plaintiff must show that the prose- 
cution has been thereafter abandoned, Page v. Citizen's Banking Co., Ill 
Ga. 73 (1900) ; Dreyfus v. Aul, 29 Nebr. 191 (1890) ; Waldron v. S perry, 53 
W. Va. 116 (1903) ; and see Hartshorn v. Smith and Schippel v. Morton, 
supra. 

The charge may be dismissed and the accused discharged by the court 
itself, Delegal v. Highley, supra; Findley v. Buchanan, 1 Blackf. 12 (Ind. 
1818) ; Sayles v. Briggs, 4 Mete. 421 (Mass. 1842) ; Rider v. Kite, 61 N. J. 
L. 8 (1897) ; Secor v. Babcock, 2 Johns. 203 (N. Y. 1807) ; Mentel v. Hip- 
pely, 165 Pa. St. 558 (1895), and see Zebley v. Storey, 117 Pa. St. 478 
(1888), semble; Graves v. Scott, 104 Va. 372 (1905), and cases cited in the 
note thereto in 2 L. R. A. (N. S.) 927, at pp. 933-935, either after a hear- 
ing on the merits, Cascarella v. National Grocer Co., 151 Mich. IS (1908), or 
without a hearing; Smith v. Clark, 37 Utah 116 (1910); McDonald v. Na- 
tional Art Co., 125 N. Y. S. 708 (1910) ; but see Whaley v. Lawton, 57 S. Car. 
256 (1899), though no action lies where the magistrate, after holding the ac- 
cused to bail, illegally discharged him without bail. Hill v. Egan, 160 Pa. St. 
119 (1894). 

The accused may be discharged by order of a court after a grand jury 
had ignored the bill of indictment. Graves v. Dawson, 130 Mass. 78 (1881) ; 
Stewart V. Thompson, SI Pa. St. 1S8 (1865) ; Taylor v. Dominick, 36 S. Car. 
368 (1891) ; Kneeland v. Spitzka, 10 Jones & Spencer 470 (N. Y. 1877) ; Hower 
V. Lezvton, 18 Fla. 328 (1881), aliter, in some jurisdictions where though the 
grand jury has ignored the bill, there has been no discharge by order of the 
court, Buller, J. in Morgan v. Hughes, 2 T. R. 225 (1788) ; Thomas v. De 
Graff enreid, 2 Nott & McC. 143 (S. Car. 1819) ; Knott v. Sargent, 12S Mass. 
95 (1878); contra. Potter v. Casterline, 41 N. J. L. 22 (1879), and Weisner 
v. Hansen, 81 N. J. L. 601 (1911) ; Wells v. Parker, 76 Ark. 41 (1905) ; 
Schoonover v. Myers, 28 111. 308 (1862) ; Horn v. Sims, 92 Ga. 421 (1893) ; 
Auer V. Mauser, 6 Pa. S. C. 618 (1898), but mere failure to find a true bill 



HALBERSTADT V. NEW YORK LIFE INS. CO. IOO7 

availed of for the purpose of such an action. The underlying dis- 
tinction which leads to these different rules is apparent. In one 
case the termination of the proceeding is of such a character as es- 
tablishes or fairly implies lack of a reasonable ground for his prose- 
cution. In the other case no such implication reasonably follows. 
(Townsend on Slander, section 423.) 

When we apply these rules to the defenses which have been 



at the first term of the court is not enough. Von Koehring v. Witte, IS Tex. 
Civ. App. 646 (1897). 

Or he may be discharged after an indictment has been quashed, Hays 
V. Blizzard, 30 Ind. 457 (1868), though on motion of counsel for the ac- 
cused, Lytton V. Baird, 95 Ind. 349 (1883) ; McKensie v. M. P. R. Co.. 24 Mo. 
App. 392 (1887), or on the refusal of the prosecution to give security for 
costs, Casebeer v. Rice, 18 Nebr. 203 (1885). 

The accused may be discharged because the prosecutor abandons the 
prosecution and withdraws the complaint, Brown v. Randall, 36 Conn. 
56 (1869) ; Clegg v. Waterbury, 88 Ind. 21 (1882) ; Beemer v. Beemer, 9 Ont. 
L. R. 69 (1904) ; Shaul v. Brown, 28 Iowa 37 (1869) ; Bell v. Mathews, 37 
Kans. 686 (1887), or because the State Attorney fails to appear or to proceed 
with the prosecution, Swensgaard v. Davis, 33 Minn. 368 (1885), especially 
when no further steps are taken to press the charge. Fay v. O'Neill, 36 N. Y. 
11 (1867) ; Waldron v. Sperry, 53 W. Va. 116 (1903), or requests the court to 
dismiss the charge, South. Car & Foundry Co. v. Adams, 131 Ala. 147 
(1901) ; Welch v. Cheek, 115 N. Car. 310 (1894). 

An abandonment of or a failure to proceed with the prosecution is 
held in many cages to be sufficient though no action is taken by the court 
either in discharging the accused or releasing his securities or giving leave 
to the prosecutor to abandon the prosecution, Craig v. Ginn, 3 Penn. 117 
(Del. 1901) ; Green v. Cochran, 43 Iowa 544 (1876) ; Leever v. Hamill, 57 
Ind. 423 (1877); Pharis v. Lambert, 1 Sneed 228 (Tenn. 1853); contra. 
Clark V. Cleveland, 6 Hill 344 (N. Y. 1844) ; Apgar v. Woolston, 43 N. J. L. 57 
(1881) ; Holmes w. Johnson, Busbee 44 (iST. Car. 1852) ; Rice v. Ponder, 7 
Ire. L. 390 (N. Car. 1847) ; Murray v. Lackey, 2 Murphy 368 (N. Car. 1818) ; 
Lueck V. Heisler, 87 Wis. 644 (1894), and Gillespie v. Hudson, 11 Kans. 163 
(1893) ; Strehlow V. Pettit, 96 Wis. 22 (1897), but see King v. Johnston, 81 
Wis. 578 (1892); Walker v. Curran, 1 Phila. 113 (Pa. 1850), but compare 
Murphy V. Moore, supra. 

Some of the earlier cases state in general terms that a plaintiff cannot 
maintain an action for a malicious criminal prosecution by indictment, by show- 
ing that the prosecution has been determined by a nolle prosequi, Shaw, C. J. 
in Parker v. Farley, 10 Cush. 279 (Mass. 18521; Goddard v. Smith, supra; 
though a plea of not guilty accepted by the Attorney-General was in the 
latter case said to be sufficient; the tendency of the later cases is, how- 
ever, to hold that, when the accused was thereupon discharged, there is a 
sufficient termination. Graves v. Dawson, 133 Mass. 419 C1882), semble; 
Stanton v. Hart, 27 Mich. 539 (1873) ; Douglas v. Allen, 56 Ohio St. 156 
(1897); Driggs v. Burton, 44 Vt. 124- (1871), a discharge by the court but 
not by formal order; Hatch v. Cohen, 84 N. Car. 602 (1881), and this though 
the court grants leave to issue, at some later time, a capias on the same 
bill, if in fact the prosecution is never renewed, Wilkinson v. Wilkinson, 
159 N. Car. 265 (1912). 

The withdrawal of the charge by the State Attorney is held a sufficient 
termination in Fancourt v. Heaven, 18 Ont. L. R. 492 (1909). 

When the prosecuting attorney merely enters a nolle prosequi without 
further action by the court, this is held sufficient in Murphy v. Moore, 11 
Atl. 665 CPa. Sup. Ct. 1887); Thompson v. Price, 100 Mich. 558 (1894); 
Yocum V. Polly, 1 B. Monr. 358 (Ky. 1841) ; Woodman v. Prescott, 66 N. H. 
375 (1890) ; Marcus v. Bernstein, 117 N. Car. 31 (1895) ; Woodworth v. 
Mills, 61 Wis. 44 (1884), nolle prosequi entered with leave of the court; 
Mouiton V. Beecher, 8 Hun 100 (N. Y. 1876) ; accord: Graves v. Scott, 104 



I008 HALBERSTADT V. NEW YORK LIFE INS. CO. 

pleaded it is evident that they sufficiently allege a termination of 
the Mexican Proceeding which is not of a character to sustain this 
action, and ought not to be. That proceeding came to a dismissal 
and end, not because of any judicial action in favor of the accused 

Va. 372 (1905), semhle, expressly overruling Ward v. Reasor, 98 Va. 399 
(1900), contra. 

Contra: Craig v. Ginn, 3 Penn. 117 (Del. 1901) ; Parker v. Farley, 
supra, semble; Coupal v. Ward, 106 Mass. 289 (1871) ; Caring v. Fraser, 76 
Maine 57 (1884) ; Driggs v. Burton, supra, semble; Heyward v. Cuthbert, 
4 McCord 354 (S. Car. 1827) ; Smith v. Shackleford, 1 Nott & McC. 36 
(S. Car. 1817) ; and see Hurd v. Show, 20 111. 355 (1858). 

A discharge on habeas corpus, the prosecution being then abandoned, is 
held in Zebley v. Storey, 117 Pa. St. 47% (1888"); Holliday v. Holliday, 123 
Cal. 26 (1898") : Millar v. Sollitt, 131 111. Apo. 196 (1907) ; see Walker v. 
Martin, 43 111. 508 (1867), to be a sufficient termination; contra, McKinnon 
V. McLaughlin Carriage Co.. 37 New Brunswick, 3 (1904) ; Merriman v. 
Morgan, 7 Ore. 68 (1879) ; Haglin v. A>'i'le, 65 Ark. 274 (1898) : Swartwout 
v. Dickelman, 12 Hun 358 (N. Y. 1877) ; Hinds v. Parker. 11 App. Div. 
327 (N. Y. 1896). 

In those jurisdictions in which an action lies for malicious prosecution 
of a civil action, such action must be shown to have so terminated that it 
cannot be revived, ' though a new action may be brought on the same cause 
of action, Hurgren v. Union Mutual Life Ins. Co., 141 Cal. 585' (1904) ; 
McNamee V. Minke, 49 Md. 122 (1878); Blalock v. Randall, 76 111. 224 
(1875). The action being entirely in the control of the plaintiff therein, his 
dismissal, discontinuance, or failure to proceed with it for such time as pre- 
cludes further prosecution of it is universaljy held to be a sufficient termina- 
tion, Pierce v. Street, 3 B. & Ad. 397 (1832) ; Emery v. Ginnan, 24 111. App. 
65 (1887) ; Coffey v. Myers, 84 Ind. 105 (1882) ; Burhans v. Sanford, 19 
Wend. 417 (N. Y. 1838) ; Hurgren v. Ins. Co., supra; Norrish v. Richards, 
3 A. & E. 733 (1835); Cameron v. Pergusson, 3 U. C. Q. B. (O. S.) 318 
(1834). 

An action may be brought after judgment though the time for moving 
for a new trial or for an appeal has not elapsed, Foster v. Denison, 19 R. I. 
351 (1896); Marks v Townsend, 97 N. Y. 590 (1885), and see Carter v 
Paige, 80 Cal. 390 (1889). But an action cannot be maintained if an ap- 
peal is actually pending, Griffith v. Ward, 22 U. C. Q. B. 31 (1863) ; How- 
ell V. Edwards, 8 Ired. L. 516 (N. Car. 1848) ; Sutton v. Van Akin, 51 Mich. 
463 (1883) ; Spring v. Besore, 12 B. Monr. 551 (Ky. 1851) ; Reynolds v. De 
Geer, 13 111. App. 113 (1883), appeal from judgment of a justice, which va- 
cated the judgment and rernoved the case to the district court for trial 
de novo; contra, Marks v. Townsend, supra, an appeal only furnishes a reason 
for staying the trial of the action for malicious prosecution till the appeal be 
determined, Luby v. Bennett, 111 Wis. 613 (1901), semble. 

When the plaintiff is arrested or his property seized or attached in a civil 
action, if the arrest, seizure or attachment is wrongful only in that the princi- 
pal action is improperly brought, it must be shown that such action is termi- 
nated, Parton v. Hill, 12 W. R. 754 (1864) ; Johnson v Finch, 93 N. Car. 205 
(1885), plaintiff, actually about to leave the state, arrested for debt, and 
see Murson v. Austin, 2 Phila. 116 (Pa. 1856). 

When the process is awarded for arrest of the plaintiff, or attachment 
or seizure of his goods, upon an application setting forth the facts, not 
involving the merits of the principal action, it is enough that the order of 
process be vacated, dismissed or abandoned, Ingram v. Root, 51 Hun 238 
(N. Y. 1889); Zinn v. Rice, 154 Mass. 1 (1891), p. 12; Bank of Miller v. 
Richmon, 64 Nebr. Ill (1902); Hogg v. Pinckney, 16 S. Car. 387 (1881); 
Tisdale v. Kingman, 34 S. Car. 326 (1890) ; Pixley v. Reed, 26 Minn. 80 
(1879), though if it be granted on ex parte application the plaintiff having 
no opportunity to defend or vacate, Griffith v. Hall, 26 U. C. Q. B. 94 (1866) ; 
Erickson v. Brand, 14 Ont. App. R. 614 (1888) ; Fortman v. Rattier, 8 Ohio 
St. 548 (1858); Donnell v. Jones, 13 Ala. 490 (1848), and see Rossiter v. 



HALBERSTADl* V. NEW YORK LIFE INS. CO. IOO9 

for lack of merits or because of a withdrawal or abandonment of 
it by the prosecuting party, but simply because the defendant there- 
in succeeded in escaping from the country and eluding the juris- 
diction of the court and thereby preventing a prosecution. He by 
his flight, as in other cases the accused had done by agreement, set- 
tlement or trick, prevented a consideration of the merits, and he 
ought not now to be allowed to claim that there were no merits.* 

In opposition to these views it is insisted by appellant that there 
is a line of cases which treats the discharge of the defendant in the 
criminal proceeding as a mere technical condition precedent to the 
action for malicious prosecution and sustain his theory that the dis- 
missal of the proceeding against him was sufficient for the pur- 
poses of this action, specific reference being made to the cases of 
Clark V. Cleveland (6 Hill, 344) ; Moulton v. Beecher (8 Hun, 
100) ; Fay v. O'Neill (36 N. Y. 11) ; Coffey v. Myers (84 Ind. 
105), and Robbins v. Robbins (133 N. Y. 597)." * * * 

It is, however, the Robbins case upon which the appellant 
most relies. In that case it appeared that the accused had been dis- 
charged in the criminal proceeding after a hearing by a police jus- 
tice and the only question was whether she was discharged because 
there was not sufficient evidence against her or whether she was 
erroneously discharged as a matter of sympathy upon her promise 
of good behavior. This question was one of fact for the jury, 
which presumably resolved it in favor of the plaintiff. But even 
if the justice under the circumstances was actuated by erroneous 
or improper motives in discharging her, it nevertheless beyond any 
question was a sufficient termination of the proceeding under all 
of the authorities bearing on that subject, and on either theory the 

Minn., etc. Co., 37 Minn. 296 (1887), or if to procure the release of himself 
or his goods he is forced to pay the demand or give bond for payment, the 
execution of the process is itself a sufficient termination, Spaids v. Barrett, 
S7 111. 289 (1870) ; Brand v. Hinchman, 68 Mich. 590 (1888), see Cadwell v. 
Corey, 91 Mich. 335 (1892), and compare Rachelman v. Skinner, 46 Minn. 
196 (1891). 

*When, however, the plaintiff alleged that the criminal charge was false 
and that he had fled the jurisdiction because a conspiracy existed to pre- 
vent him from establishing his innocence and that the proceedings were' dis- 
missed because the originators thereof "became convinced that they could 
not maintain the prosecution," an action for malicious prosecution was 
held to lie in Coffey v. Myers, 84 Ind. 105 (1882). The payment of costs 
by the accused on being discharged by the magistrate after a hearing on 
the merits, he being told that unless he did so he would have to go back 
to jail, does not constitute a consent on his part to the termination of the 
proceedings, Cascarella v. National Grocer Co., 151 Mich. 15 (1908), and 
an action of malicious prosecution lies by one, who being arrested on a 
writ, pays the amount claimed under protest to obtain his liberty, and such 
payment does not preclude him from showing want of probable cause, 
Morton v. Young, 55 Maine 24 (1867) ; White v. International Text Book Co., 
136 N. W. 121 (Iowa 1912) ; and see Brand v. Hinchman, 68 Mich. 590 
(1888), payment no bar to action for suing out malicious attachment, and 
Daily v. Donath, 100 111. App. 52 (1901), where the criminal process was 
abused by its use as a means of enforcing payment of a debt claimed to 
be due. _ . - 

°A portion of the opinion, reviewing Clark v. Cleveland, Moulton \. 
Beecher, Fay v. O'Neill and Coffey v. Myers, is omitted. 



lOIO HALBERSTADT V. NEW YORK LIFE IXS. CO. 

basis was laid for an action of malicious prosecution. Under these 
circumstances the learned judge who wrote the opinion made use 
of some expressions which interpreted by themselves are quite 
broad and general and are quite confidently quoted by this appel- 
lant. He said, among other things: "It can not in reason make 
any difference how the criminal prosecution is terminated, provided 
it is terminated. * * * The circumstances under which she 
(the plaintiff in that case) is discharged may furnish competent 
evidence upon the issue of probable cause and malice, and on the 
question of damages. * * * -phe termination of the criminal 
proceeding is a mere technical matter in no way concerning the 
merits of the action and isi a mere condition precedent to its main- 
tenance." (P. 600.) • 

In my opinion these remarks shoiild not be construed as mean- 
ing and were not intended to mean what the appellant claims. For 
instance, it is not possible that it was intended to disregard the en- 
tire current of authority that a termination of criminal proceedings 
by agreement or settlement is not such an one as will support an ac- 
tion for malicious prosecution, and yet literally the language em- 
ployed would include that case. We must construe the language 
used by Judge Earl in the light of the events he was considering, 
and these were the discharge of an accused by a magistrate acting 
judicially even though erroneously after a hearing. This was what 
the judge had in mind when, after discussing the effect of a con- 
viction, he mentioned the other termination resulting "favorably to 
the accused or without his conviction," as sufficient. Aod when he 
said "It can not in reason make any difference how the criminal 
prosecution is terminated provided it is terminated," he immediate- 
ly referred as illustrating his meaning to the case then in hand, 
where the accused had been duly discharged by the justice although 
as claimed erroneously. Termination as the result of judicial con- 
sideration and decision was what he was talking about and this 
was the kind he contemplated when with his concluding words he 
said: "Therefore any termination siich as we have above men- 
tioned, as a general rule, furnishes the condition precedent." (P. 
6cxj.) 

Therefore, I think that these cases do not either singly or col- 
lectively susta;in the burden which appellant has sought to impose 
especially upon them of furnishing an authority for the reversal of 
the order appealed from, and for all the reasons stated the latter 
should be affirmed, with costs, and the questions certified to us an- 
swered in the negative. 

Vann, J. I concur in the result because there was merely an 
attempt to prosecute with no actual prosecution. The Mexican 
court did not acquire jurisdiction of the person of the plaintiff, for 
he was not arrested, nor was process or notice of any kind served 
upon him. He was not brought into court and the prosecution 
could not end because it was never begun. He could not be a party 
defendant until he was notified or voluntarily appeared. He was 
threatened with prosecution, but neither his person nor his prop- 



QUARTZ HILL MIN. CO. V. EYRE. lOII 

erty was touched. There can be no prosecution unless knowledge 
thereof is brought home to the alleged defendant in some way. 
If there had been a prosecution commenced the crime could not 
have outlawed during the defendant's absence, as is admitted of 
record.' While in civil actions, in order to arrest the Statute of 
Limitations, "an attempt to commence an action, in a court of rec- 
ord, is equivalent to the commencement thereof," still the attempt 
goes for naught unless followed by service, actual or constructive, 
within sixty days. (Code Civ. Proc, sec. 399.) The rule was 
similar at common law. Although, in order to prevent injustice, 
an action was deemed to be commenced by the delivery of process 
for service, it was never treated as effectual for any purpose un- 
less actual service was subsequently made. The authorities cited 
in the prevailing opinion illustrate this proposition. 

In the absence of controlling authority, which it is conceded 
does not exist, I favor restricting rather than enlarging the scope 
of the action. This accords with the general position of the court 
upon the subject. 

Gray, Haight and Chase, JJ., concur with Hiscock, J. ; CuL- 
LEN, Ch. J., and Willard Bartlett, J., concur with Vann, J. 

Order affirmed. 



(2) Nature of the proceedings. 



QUARTZ HILL GOLD MINING COMPANY v. EYRE. 
Court of Appeal, 1883. Law Reports 1882-83, 11 Q. B. D. 674. 

Bowen, L. J. The plaintifif company complains that the de- 
fendant falsely and maliciously presented a petition to wind it up.^ 
When the action came on to be tried before Stephen, J., at the con- 
clusion of the plaintiff's case the learned judge nonsuited the com- 
pany, on the ground that if the action would lie under any circum- 
stances, at all events it would not lie without proof of special dam- 
age. Without actually deciding the point, he expressed an opinion 
that the plaintiff company had failed to make out malice or a want 
of reasonable or probable cause, and the burden of proving each of 
these elements in the case lay on the company. He thought that 
the defendant had pointed out a fatal blot in the company's case 
by reason of a failure to shew such special damage as would main- 
tain the action. 

The first question to be considered is, whether an action will 
lie for falsely and maliciously presenting a petition to wind up a 
company ; and the second is, whether an action will lie without f ur- 



^It was averred in the complaint and proved at the trial that the de- 
fendants had upon the presentation of the petition advertised the same 
in the London Gazette and other papers, and that two days before the pres- 
ent action was brought, the "etition was dismissed by the court and wholly 
determined in the plaintiff's favor. 



IOI2 QUARTZ HILL MIN. CO. V. EYRE. 

ther proof of special damage than was presented to the judge in 
this case. I think that both the questions can be answered at once 
because, as it seems to me, the discussion which exhausts the one, 
presents the materials for determining the other. I start with this, 
that at the present day the bringing of an action under our -present 
rules of procedure, and with the consequences attaching under our 
present law, although the action is brought falsely and maliciously 
and without reasonable or probable cause, and whatever may be 
the allegations contained in the pleadings, will not furnish a ground 
for a subsequent complaint by the person who has been sued, nor 
support an action on his part for maliciously bringing the first ac- 
tion. To speak broadly, and without travelling into every corner of 
the law, whenever a man complains before a court of justice of the 
false and malicious legal proceedings of another, his complaint, in 
order to give a good and substantial cause of action, must shew 
that the false and malicious legal proceedings have been accom- 
panied by damage express or implied. The reason why, to my 
mind, the bringing of an action under our present rules of proced- 
ure and under our present law, even if it is brought without rea- 
sonable or probable cause and with malice, gives rise to no ground 
of complaint, appears to me easily to be seen upon referring to the 
doctrine laid down by Holt, C. J., in Savile v. Roberts, i Ld. Raym. 
374, at p. 378. He there said that there were three sorts of dam- 
age, any one of which would be sufficient to support an action for 
malicious prosecution, "(i) The damage to a man's fame, as if 
the matter whereof he is accused be scandalous. And this was the 
ground of the case between Sir Andrew Henley and Dr. Burstall: 
Raym. 180. * * * (2) The second sort of damages, which 
would support such an action, are such as are done to the person ; 
as where a man is put in danger to lose his life, or limb, or liberty, 
which has been always allowed a good foundation of such an ac- 
tion.^ * * * (3) The third sort of damages, which will sup- 
port an action, is damage to a man's property, as where he is forced 
to expend his money in necessary charges, to acquit himself of the 
crime of which he is accused, which is the present charge. That a 
man in such case is put to expenses, is without doubt, which is an 
injury to his property, and if that injury is done to him malicious- 
ly, it is reasonable that he shall have an action to repair himself." 
It is clear that Holt, C. J., considered one of those three heads of 
damage necessary to support an action for malicious prosecution. 
To apply this test to any action that can be conceived under our 
present mode of procedure and under our present law, it seems to 
me that no mere bringing of an action, although it is brought mali- 



'See Byne v. Moore, 5 Taunt. 187, 1 Marsh 12 (1813), where a bill of 
indictment was preferred for assault and battery but ignored by the grand 
jury and the accused was not arrested — held no action lay, the indictment 
not containing "scandal" — (as to this see Clerk and Lindsell on Torts, 
6th ed., 693) and Mitchell v. Donanski, 28 R. I. 94 (1906), warrant obtained, 
never served but abandoned, charging acts not constituting any crime, held 
not actionable unless the oflfence charged is actionable slander per se or the 
plaintiff can show special damage. 



QUARTZ HILL MIN. CO. V. EYRE. IOI3 

fcfously and without reasonable or probable cause, will give rise to 
an action for malicious prosecution. In no action, in all events in 
none of the ordinary kind, not even in those based upon fraud 
where there are scandalous allegations in the pleadings, is damage 
to a man's fair fame the necessary and natural consequence of 
bringing the action. Incidentally matters connected with the ac- 
tion, such as the publication of the proceedings in the action, may 
do a man an injury; but the bringing of the action is of itself no 
injury to him. When the action is tried in public, his fair fame 
will be cleared, if it deserves to be cleared; if the action is not 
tried, his fair fame can not be assailed in any way by the bringing 
of the action. Apply the second head of damage, namely, those 
injuries which are done to the person; the bringing of no action 
under our present law and under the ordinary rules of procedure 
will involve as a necessary and natural consequence damage to the 
person. The third sort of damage, the existence of which will sup- 
port such an action as this, is damage to a man's property. The 
same observation applies to this third head of damage. The bring- 
ing of an ordinary action does not as a natural or necessary conse- 
quence involve any injury to a man's property, for this reason, that 
the only costs which the law recognizes, and for which it will com- 
pensate him, are the costs properly incurred in the action itself. 
For those the successful defendant will have been already compen- 
sated, so far as the law chooses to compensate him.^ If the judge 
refuses to give him costs, it is because he does not deserve them : 
if he deserves them, he will get them in the original action ; if he 
does not deserve them, he ought not to get them in a subsequent 
action. Therefore the broad canon is true that in the present day, 
and according to our present law, the bringing of an ordinary ac- 
tion, however maliciously, and however great the want of rea- 
sonable and probable cause, will not support a subsequent action 
for malicious prosecution.* I do not say that if one travels into 

' "The common law has made provision to hinder malicious and friv- 
olous and vexatious suits, that every plaintiff should find pledges, who were 
amerced, if the claim was false; which judgment the court always gave, and 
then a writ issued to the coroners, and they affeered them according to the 
proportion di the vexation. See 8 Co. 39 b, F. N. B. 76 a" (Fitzherbert 
de Natura Brevium). "But that method became disused and then to supply 
it, the statutes" (4 Jac. 1 c 3 and 8 Eliz. c 2) "gave costs to the defendant. 
And though the practice of levying amercements be disused, yet the Courts 
must give judgment according to the law and not vary their judgments 
by accidents. But there was no amercement upon indictments, and the 
party had not any remedy to reimburse himself but by action" — Holt, C. J, 
in Saville v. Roberts, 1 Ld. Raym. 374 (1700), p. 380; and see Putnam, J., in 
Lindsay v. Lamed, 17 Mass. 190 (1821). 

* Accord: Tamblyn v. Johnston, 126 Fed. 267 (C. C. A. 8th Circ. 1903) 
semble; Mitchell v. Southwestern R. Co., 75 Ga. 378 (1898) ; Smith v. Mich- 
igan Buggy Co., 175 111. 619 (1898); Wetmore v. Mellinger, 64 Iowa 741 
(1884) ; Cade v. Yocum, 8 La. Ann. 477 (1852) ; McNamee v. Minke, 49 Md. 
122 (1878) ; Supreme Lodge, etc., v. Unversagt, 76 Md. 104 (1894) ; Wood- 
mansie V. Logan, 2 N. J. L. (1 Penn.) 93 (1806) ; Potts v. Imlay, 4 N. J L 
(1 South.) 330 (1816) ; Bitz v. Myer, 40 N. J. L. 252 (1878) ; Paul v. Fargo 
84 App. Div. 9 (N. Y. 1903), Adams, P. J., dissenting on the ground that 
the injury to his reputation caused by the charge, practically amount- 



IOI4 QUARTZ HILL MIN. CO. V. EYRE. 

the past and looks through the cases cited to us, one will not find 
scattered observations and even scattered cases which seem to 
shew that in other days, under other systems of procedure and 
law, in which the consequences of actions were different from those 
of the present day, it was supposed that there might be some kind 
of action which, if it were brought maliciously and unreasonably, 
might subsequently give rise to an action for malicious, prosecution. 
It is unnecessary to say that there could not be an action of that 
kind in the past, and it is unnecessary to say that there may not 
be such an action in the future, although it can not be found at the 
present day. The counsel for the plaintiff company have argued this 
case with great ability ; but they can not point to a single instance 
since Westminster Hall began to be the seat of justice in which an 
ordinary action, similar to the actions of the present day, has been 
considered to justify a subsequent action on the ground that it was 
brought maliciously and without reasonable and probable cause. 
And although every judge of the present day will be swift to do 
justice and slow to allow, himself as to matters of justice to be en- 
cumbered with either precedents or technicalities, still every wise 
judge who sits to administer justice must feel the greatest respect 
for the wisdom of the past presents us with no decisive authority 
for the broad proposition in its entirety which, the counsel for the 
plaintiff company have put forward. 

But although an action does not give rise to an action for ma- 
licious prosecution, inasmuch as it does not necessarily or naturally 
involve damage, there are legal proceedings which do necessarily and 
naturally involve that damage; and when proceedings of that kind 
have been taken falsely and maliciously, and without reasonable or 
probable cause, then, inasmuch as an injury has been done, the law 
gives a remedy. Such proceedings are indictments — I do not say 
every indictment, but I mean all indictments involving either scan- 
dal to reputation or the possible loss of liberty to the person, that 

ing to one of larceny, upon which the original action was based, constituted 
a special or added grievance; Willard v. Holmes, Booth & Hayden, 142 N. 
Y. 492 (1894), semble; Terry v. Davis, 114 N. Car. 31 (1894) ; Cincinnati 
Daily Tribune Co. v. Bruck, 61 Ohio St. 489 (1899), Kramer v. Stock, 10 
Watts lis (Pa. 1840); Muldoon v. Rickey, 103 Pa. St. 110 (1883); Mitchell 
v. Donanski, 28 R. I. 94 (1906); Johnson v. King, 64 Tex. 226 (1885); 
Abbott v. Thome, 34 Wash. 692 (1904) ; Luby v. Bennett, 111 Wis. 61 (1901), 
semble. 

In Mitchell v. Southwestern R. Co., Terry v. Davis, and Abbott v. 
Thome, 34 Wash. 692 (1904), it is said that such an action lies when special 
damage, other than that which necessarily result from all prosecutions of like 
causes, is shown; in Willard v. Holmes et al., 142 N. Y. 492 (1894), that 
it lies where the party "has been subjected to some special or added griev- 
ance," but the residue of the sentence seems to confine actionable special 
grievances to interferences with persons or property, and even such actions, it 
is said, ought not to be encouraged, and in Wetmoxe v. Mellinger, 64 Iowa 
741 (1884), it is said that if the action be so prosecuted as to entail unusual 
hardship upon the defendant, he ought to be compensated, see Pangburn v. 
Bull, 1 Wend. 34S (N. Y. 1828), defendant brought action after action, dis- 
continuing the one and starting another, and Pope v. Pollock, 46 Ohio St. 367 
(1889), advantage taken of the peculiar incidents of a statutory action in or- 
der to harass the plaintiff and subject him to special loss of property and 
reputation. 



QUARTZ HILL MIN. CO. V. EYRE. IOI5 

is, all ordinary indictments for ordinary offences. In its very na- 
ture the presentation or the prosecution of an indictment involves 
damage, which cannot be afterwards repaired by the failure of 
the proceedings, to the fair fame of the person assailed, and for 
that reason, as it seems to me, the law considers that to present and 
prosecute an indictment falsely and without reasonable or prob- 
able cause, is a foundation for a subsequent action for malicious 
prosecution. 

But there are other proceedings which necessarily involve dam- 
age, such as the presentation of a bankruptcy petition against a 
trader. In the past, when a trader's property was touched by 
making him a bankrupt in the first instance, and he was left to get 
rid of the misfortune as best he could, of course he suffered a di- 
rect injury to his property. But a trader's credit seems to me to 
be as valuable as his property, and the present proceedings in bank- 
ruptcy, although they are dissimilar to proceedings in bankruptcy 
under former Acts, resemble them in this, that they strike home at 
a man's credit, and therefore I think the view of those judges cor- 
rect who held, in Johnson v. Emerson, Law Rep. 6 Ex. 329, that 
the false and malicious presentation, without reasonable and prob- 
able cause, of a bankruptcy petition against a trader, under the 
Bankruptcy Act, 1869, gave rise to an action for malicious prose- 
cution. ° 



'^Accord: Chapman v. Pickersgill, 2 Wils. 14S (1762) ; Stewart v. Sonne- 
born, 98 U. S. 187 (1878); Wilkinson v. Goodfellow, 141 Fed. 218 (1905); 
Lawton v. Green, 5 Hun 157 (N. Y. 1875) ; King v. Sullivan, 92 S. W. 51 
(Texas Civ. App. 1906) ; McNamee v. Minke, 49 Md. 122 (1878), semhle; 
Hess V. German Baking Co., Z7 Ore. 297 (1900), semhle. 

So an action lies against one who has maliciously obtained a temporary- 
injunction. Such an injunction, it is said in Cincinnati Daily Tribune Co. v. 
Bruck, 61 Ohio St. 489 (1899), "imposes a restraint upon the owner over 
his property, as hurtful to .him as if it were in fact seized ;" Mitchell v. 
Southwestern R. Co., 75 Ga. 398 (1885) ; Crate v. Kohlsaat, 44 111. App. 460 
(1892); Beach v. Williams, 79 N. W. 393 (Iowa 1899); Burt v. Smith, 84 
App. Div. 47 (N. Y. 1903), compare Clements v. Odorless Excavating Ap- 
paratus Co., 67 Md. 461 (1887) ; Newark Coal Co. v. Upson, 40 Ohio St. 
17 (1883); Hess v. German Baking Co., 37 Ore. 297 (1900), semhle, in 
which the plaintiff failed, because owing to the death of the defendant he 
was forced to strike out of his declaration the averments of malice and 
want of probable cause; Williams v. Ainsworth, 121 Wis. 6(X) (1904); but 
the injunction must have been dissolved and the main suit finally de- 
termined in the plaintiff's favor before an action will lie, Munce v. Black, 
7 Ir. C. L. R. 475 (1858), dispossessory injunction obtained in a dispute 
between landlord and tenant; Williams v. Ainsworth, 121 Wis. 600 (1904), 
in which itwas also held that the plaintiff must show that he was damaged 
by such injunction, and that no action lay for maliciously restraining the 
sale of goods in the absence of proof that they brought less when sold than 
they would have done Jiad their sale not been restrained. 

So in Slater v. Kimbro, 91 Ga. 217 (1892), it was held that a tenant, a 
boarding-house Tceeper, against whom her landlord maliciously and without 
probable cause sued out and had executed a summary statutory process to 
dispossess her, could recover the cost of procuring the bond and sureties 
required to prevent immediate eviction and damages for loss of board- 
ers caused thereby; and see Tavenner v. Morehead, 41 W. Va. 116 (1895); 
contra: Everly v. Rupp, 90 Pa. St. 259 (1879), semble, writ of estrep- 
ment — "this writ is purely preventive, it neither arrests the person, nor 



IOl6 QUARTZ HILL MIN. CO. V. EYRE. 

I wish to suggest an analogy, not with the view of laying 
down any principle of law, but rather because it is a matter which 
may throw light on what I have been saying, and nothing which has 
fallen from the Master of the Rolls leads me to suppose that any- 
thing which I am about to say is contrary to what he thinks. In 
my opinion some, though perhaps not a perfect, analogy may be 
found in the law of libel and slander. The essence of the law as 
to libel and slander is that the words must be published falsely and 
maliciously. With regard to written words or libel, the law does 
not require proof of special damage, but with regards to some kind 
of slander or words spoken the law is different. I am aware that 
the point is controverted, and that it has never been exactly settled 
why this difference exists; but it does* exist, and it is remarkable 
that the cases in which words spoken are actionable, are either 
those where damage has been actually sustained, or where the dam- 
age is of such a kind as to be involved in the slander itself, that is 
to say, to be the natural and necessary consequence of the words 
spoken, as, for example, when the slander charges that a man has 
been guilty of an indictable offence which is criminal and scan- 
dalous in its character, and involves the loss of liberty or fair 
fame. What other slanders are actionable? Those which impute 
to a man a disease necessarily rendering him unfit for society, 
and those which touch a man in his trade or profession. Put those 
two classes together — ^the class of malicious prosecutions which the 
law recognizes and the class of slanders which the law recognizes 
— and although the two may not be based on exactly the same prin- 
ciples, perhaps a student may find material for pursuing the an- 
alogy between them. 

In the present instance we have to consider whether a petition 
to wind up a company falls upon the one side of the line or the 
other — whether, as the Master of the Rolls has said, it is more like 
an action which does not necessarily involve damage, and there- 
fore will not, however maliciously and wrongfully brought. Justify 
an action for malicious prosecution, or whether it is more like a 
bankruptcy petition. I do not see how a petition to wind up a com- 
pany can be presented and advertised in the newspapers without 
striking a blow at its credit. I suppose that most of the lawyers 
of the present day have seen a great increase of three kinds of 
abuses, all of which are indulged in for the purpose of extorting 
the payment of some debt, which ought to be the subject of some 
civil redress. There is the abuse of the police courts when their 
process is used to extort money ; there is the abuse of the bank- 
ruptcy law; and there is the abuse of the provisions in the Com- 
panies Act, 1862, for winding up companies. In all these three 
forms of abuse the aim is to wreck credit, and I should be sorry to 



seizes the goods of the defendant"; and see Batson v. Paris Mountain Water 
Co., 73 S. Car. 368 (1906), where it is held that the remedy, if any, must be 
upon the bond required by statute and ordered by the court to be given by 
the complainant in the injunction proceedings, and Manlove v. Vick, 55 
Miss. 567 (1878), doubting whether such remedy is exclusive. 



EASTIN V. BANK OF STOCKTON. IOI7 

^hink that since they all involve a blow at the credit of those against 
whom they are instituted, the law did not afterwards place in the 
hands of the injured and aggrieved persons who have been wrong- 
fully assailed, a means of righting themselves, as far as can be, 
for the mischief done to them. I therefore answer the two first 
questions — whether this action will lie, and whether it will lie 
without further proof of special damage — in the following man- 
ner : I think that the. action will lie, for the reason that special 
damage is involved in the very institution of the proceedings 
I (which ex hypothesi are unjust and without reasonable or prob- 
able cause) for the purpose of winding up a going company." 



LORD HOLT, C. J., IN SAVILE v. ROBERTS. 

1 Lord Raymond, 374 (1700), p. 379. 

"There is a great difference between suing an action mali- 
ciously and the indicting of a man maliciously. When a man sues 
an action he claims a right to himself or complains of an injury 
done to him ; and if a man fancies he has a right, he may sue an 
action, 4 Co. 17 (a) makes a difference, that if a man calls A, who 
is an heir at law to B a bastard, A may have an action against the 
man ; but if the man says A is a bastard, and I am heir to B, no 
action lies. If then the law will permit a man to make a claim out 
of a court of justice, a fortiori when he proceeds to assert his right 
in a legal course."^ 



EASTIN V. BANK OF STOCKTON. 
Supreme Court of the State of California, 1884. 66 Cal. Rep. 123. 

The cause, of action set forth in the complaint was in sub- 
stance, that the plaintiff had executed two promissory notes to 
Barney & Co., which notes he had paid at the defendant bank ; that 
after the notes had been paid the plaintiff lost them and the bank 
became possessed of them ; that the bank and its co-defendant Ho- 
gan, entered into a conspiracy for the purpose of extorting money 
from him by means of the possession of the notes and the plaintiffs 

"Accord: Luby v. Bennett, 111 Wis. 613 (1901), application for the 
dissolution of a partnership and the appointment of a receiver, but the suit 
in which the application was made must have terminated. Liquid Carbonic 
Acid Co. V. Convert, 82 111. App. 39 (1898). 

'See Lockenour v. Sides, 57 Ind. 360 (1877), where it is said that an ac- 
tion for malicious prosecution would lie against one maliciously and with- 
out probable cause instituting proceedings to place the plaintiff under guard- 
ianship as insane, "they being not entirely like a civil action, in which the 
plaintiff therein claims some right in herself. * * * The defendants 
were ofificious intermeddlers, without any claim of right or interest in the 
matter"; and see Smith v. Smith, 20 Hun 555 (N. Y. 1880), where it was held 
that an action would lie against one who maliciously and without prob- 
able cause filed a notice of "lis pendens" against the plaintiff's property 
to prevent her from selling it, with which compare Gerard v. Dickinson, post. 



I0l8 EASTIN V. BANK OF STOCKTON. 

supposed inability to produce evidence of their payment; that in 
pursuance of this conspiracy the defendant maliciously, wilfully 
and without reasonable or probable cause, and with the intent to 
vex, harass and injure the credit of the plaintiff, commenced an 
action in the district court for the recovery of the sum for which 
the notes were given ; that the process in that action was served 
upon the plaintiff who expended for counsel fees and costs the sum 
of $650 ; and that by reason of the commencement and prosecution 
of that action the plaintiff was damaged in the amount of $5,000, 
by injury to his credit, neglect of his business, etc. ; and the action 
resulted in a judgment for the defendant therein — the plaintiff 
here. 

The answer of the defendants pilt in issue the material aver- 
ments of the complaint, and a trial was had with a jury, resulting 
in a verdict for the plaintiff for the sum of $3,000; and the judg- 
ment was entered against the defendants for that sum and costs. ^ 

Ross^ J.. As the case must be sent back for a new trial, it is 
proper to decide another question raised, and that is, whether in 
this state an action can be maintained for the malicious prosecu- 
tion of a civil action, in which no process other than the summons 
was issued. The weight of the authorities, American as well as 
English, is against the maintenance of such an action; and so are 
most of the text-writers. The question has never been determined 
in this State, and we are, therefore, at liberty to adopt the rule 
that we think is founded on the better reason. The point was made 
in the case of Smith v. George, 52 Cal. 344, but was not decided, 
the court holding that it was unnecessary to decide it, but remark- 
ing that "the adjudged cases in England and America are conflict- 
ing upon the question, and depending to a considerable degree, it 
would seem, upon the prevailing statutory provisions as to the re- 
covery of costs by the defendant upon the termination of a civil 
action in his favor." The cases are collected and reviewed by Mr. 
Lawson, in an instructive article upon the subject, published in the 
American Law Register, and which will be found in the 21st vol., 
at pages 281-353. The cases are too numerous to be here referred 
to in detail. The English cases which deny the right to rhaintain 
the action, stand upon the ground that the successful defendant is 
adequately compensated for the damages he sustains by the costs 
allowed him by the statute.^ Those costs, it seems, include the at- 



^ The facts are abridged from those stated in the opinion of Ross, I., 
a part of whose opinion is omitted, holding that the court below erred in 
leaving the question of probable cause to the jury and in instructing them 
that, if they found a verdict for the defendant, they should allow him for all 
he had paid out in defense in the original action, without regard to whether 
such expenditures were reasonable or not. 

"As to the remedy, before the enactment of such statutes, of one 
against whom an unsuccessful action was brought, see Holt, C. J., in Savile v. 
Roberts, Note 3 to Quartz Hill Gold Mining Co. v. Eyre. In Mitchell v. 
Southwestern R. Co., 75 Ga. 398 (1885), Blandford, J., says, p. 404, "before 
the statute of 52 Henry IH., 1277, it was the practice constantly to hold 
that, when one sued another maliciously and without probable cause, he 
was liable to such person for damages in an action of trespass on the case." 



EASTIN V. BANK OF STOCKTON. IOI9 

torney's charge for preparing the case for trial in all its parts, the 
fees of the witnesses and the court officials, and even the hon- 
orarium of the barrister who conducted the case in court. The 
reason upon which the English rule . rests would not, therefore, 
seem to apply here, where the costs recoverable under the statute 
are confined to much narrower limits. Under our system the de- 
fendant may be subjected, or he may subject himself, to expenses 
not recoverable, even if the suit terminates in his favor; but of 
this he has no legal ground to complain when the suit is brought 
and prosecuted in good faith, because, as said in Closson v. Sta- 
ples, 42 Vt. 209, "it is the ordinary and natural consequences of a 
uniform and well regulated system, to which all parties in civil 
actions are required to conform. But when the action is brought 
and prosecuted maliciously, and without reasonable or probable 
cause, the plaintiff asserts no claim in respect to which he had any 
right to invoke the aid of the law. In such cases the plaintiff, by 
an abuse of legal process, unjustly subjects the defendant to dam- 
ages which are not fully compensated by the costs he recovers. The 
plaintiff, in such case, has no legal or equitable right to claim that 
the rule of law which allows a suit to be brought and prosecuted 
in good faith without liability of the plaintiff to pay the defendant 
damages, except by way and to the extent of the taxable costs,- if 
judgment be rendered in his favor, should extend to a case where 
the suit was maliciously prosecuted without probable cause. But 
where the damages sustained by the defendant in defending a suit 
maliciously prosecuted without reasonable or probable cause, ex- 
ceed the costs obtained by him, he has, and of right should have, 
a remedy by action on the case. 

Two other objections made to the maintenance of the action — 
first, the claim that if such suits are allowed, litigation will become 
interminable, because every successful action will be followed by 
another, alleging malice in the prosecution of the former ; and, sec- 
ond, that if the defendant may sue for damages sustained by an 
unfounded prosecution, the plaintiff may equally bring an action 
when the defendant makes a groundless defense — are well an- 
swered in the article already alluded to : "To the first objection, it 
is enough to say that the action will never lie for an unsuccessful 
prosecution, unless begun and carried on with malice and without 
probable cause. With the burden of this difficult proof upon hirh, 
the litigant will need a very clear case, before he will be willing to 
begin a suit of this character. The second argument fails to dis- 
tinguish between the position of the parties, plaintiff and defend- 
ant, in an action at law. The plaintiff sets the law in motion ; but 
if he does so groundlessly and maliciously, he is the cause of the 
defendant's' damage. But the defendant stands only on his legal 
rights — the plaintiff having taken his case to cotirt, the defendant 
has the privilege of calling upon him to prove it to the satisfaction 
of the judge or jury, and he is guilty of no wrong in exercising this 
privilege."^ 

"But see Hoyt v. Macon, 2 Colo. 113 (1873), where the defendant mali- 
ciously intervened to prevent the plaintiff from pre-empting public land. 



I020 BURT V. SMITH. 

Judgment and order reversed, and the cause remanded for a 
new trial.* 



(3) Want of probable cause and malice. 



BURT V. SMITH. 
Court of Appeals of New York, 1905. 181 N. Y. 1. 

Vann, J. A malicious prosecution is one that is begun in 
inalice, without probable cause to believe it can succeed, and which 
finally ends in failure. An action for malicious prosecution is 
usually based upon an arrest in criminal proceedings, although it 
may be founded upon a civil action when commenced simply to 
harass and oppress the defendant. (Pangburn v. Bull, i Wend. 
345; Vanduzor v. Linderman, lo Johns. ib6; Bump v. Belts, 19 
Wend. 421 ; Cooley on Torts, 187; 19 Am. & Eng. Encyc. Law (2d 
ed.), 652) damages are rarely recovered, however, for the malicious 
prosecution of a civil action unless person or property is interfered 
with by some incidental remedy, such as arrest, attachment or in- 
junction. As public policy requires that all persons should freely 
resort to the courts for redress of wrongs, the law protects them 
when they act in good faith and upon reasonable grounds in com- 
mencing either a civil or criminal prosecution. While malice is 
the root of the action, malice alone even when extreme, is not 
enough, for want of probable cause must also be shown. Prob- 
able cause is the knowledge of facts, actual or apparent, strong 
enough to justify a reasonable man in the belief that he has law- 
ful grounds for prosecuting the defendant in the manner com- 
plained of. The want of probable cause does not mean the want 
of any cause, but the want of any reasonable cause, such as would 
persuade a man of ordinary care and prudence to believe in the 
truth of the charge.^ Probable cause does not necessarily depend 

'■Accord: Cooper v. Armour, 42 Fed. 215 (Cir. Ct. N. Y. 1890), semhle; 
Wade V. National Bank, 114 Fed. 377 (Cir. Ct. Wash. 1902) ; Berson v. Ewing, 
84 Cal. 89; Whipple v. Fuller, 11 Conn. 582 (1836), the plaintiflf's property 
was in fact attached, as it was in Wall v. Toomey, 52 Conn. 35 (1884) ; 
Whitesell v. Study, 37 Ind. App. 429 (1906) ; Marbourg v. Smith, 11 Kans. 
554 (1873) ; IVoods v. Finnell, 13 Bush 628 (Ky. 1878) ; Antcliff v. June, 81 
:Mich. 477 (1890) ; MacPherson v. Runyon, 41 Minn. 524 (1889) ; Smith v. 
Burrus, 106 Mo. 94 (1891) ; McCormick Harvesting Mach. Co. v. Willan, 
63 Nebr. 391 (1901); Kolka v. Jones. 6 N. Dak. 461 (1897); Lipscomb v. 
Schofner, 96 Tenn. 112 (1896) ; Closson v. Staples, 42 Vt. 209. 

In Allen V. Codman, 139 Mass. 136 (1885), an action for the malicious 
prosecution of an action of ejectment "the main question," is said by 
Holmes, J., "to be whether the court below was right in ruling that there 
was probable cause for the defendant's suit in ejectment." 

^In Heyne v. Blair, 62 N. Y. 19 (1875), probable cause is said to be 
"such a state of fact and circumstances as would lead a man of ordinary 
caution and precedence, acting conscientiously, impartially, reasonably and 
without prejudice upon the facts within his laiowledge, to believe the partv 
accused is guilty;" accord: Jordan v. Alabama G. S. R. Co.. 81 Ala. 220 
(1887), p. 226; Kansas & Tex. Coal Co. v. Galloway, 71 Ark. 351 (1903), 
somewhat similar is the language of Shaw, C. J., in Bacon v. Towne, 4 Cush. 



BURT V. SMITH. I02I 

Upon the actual guilt of the person prosecuted, but may rest upon 
the prosecutor's belief in his guilt when based on reasonable 
grounds. One may act upon what appears to be true, even if it 
turns out to be false, provided he believes it to be true^ and the 
appearances are sufficient to justify the behef as reasonable. Be- 
lief alone, however sincere, is not sufficient, for it must be founded 
on circumstances which make the belief reasonable. If probable 
cause exists, it is an absolute protection against an action for ma- 

217 (Mass. 1849), and Sterrett, J., in McClafferty v. Philp, ISl Pa. St. 
86 (1892), and see Tindal, C. J., in Broad v. Ham. S Bingh. N. C. 722 (1839), 
p. 725, "There must be a reasonable cause — such as would operate in the mind 
of a discreet man; there must also be probable cause— such as would operate 
in the mind of a reasonable man;" and Weaver, J., in Flam v. Lee, 116 
Iowa 289 (1902), p. 298, and Day, C, in Bank of Miller v. Richmon, 64 
Nebr. Ill (1902), Thompson v. Beacon Valley Rubber Co., 56 Conn. 493 
(1888), Robitzek v. Daum, 220 Pa. St. 61 (1908), and Davis v. McMillan, 
142 Mich. 391 (1905), where the, question of probable cause is said to de- 
pend upon what "an ordinarily fair and careful business man" would be 
likely to believe. 

In some cases it is said that there must be "a reasonable ground of 
suspicion, supported by circumstances sufficiently strong in themselves to 
warrant a cautious man in the belief, that the person accused is guilty of the 
offense with which he is charged"; Munns v. Dupont de Nemours, 3 Wash. 
C. C. 31 (1811) ; Eoshay v. Ferguson, 2 Denio 617 (N. Y. 1846) ; Richev v. 
McBean, 17 111. 63 (1855) ; Wilson v. Bo-wen, 64 Mich. 133 (1887) ; Cole v. 
Curtis, 16 Minn. 182 (1870) ; Ash v. Marlow, 20 Ohio 119 (1853) ; but in Mc- 
Clafferty v. Fhilp, 151 Pa. St. 86 (1892), the word "cautious" is held to be 
improper since it "suggests the idea of timidity"; accord: Eggett v. Allen, 
106 Wis. 633 (1900), but see same case 119 Wis. 625 (1903). 

Information from reputable sources may furnish reasonable cause, 
Lister V. Ferryman, L. R., 4 H. L. (E. & I. App.) 521 (1870); Bank of 
Miller V. Richmon, 64 Nebr. Ill (1902) ; Wilson v. Bowen, 64 Mich. 133 
(1887); Baldwin v. Von der Ahe, 184 Pa. St. 116 (1898); Smith v. Ege, 
.52 Pa. 419 (1866), defendant acted on information of a detective employed 
by him to investigate a crime; and this though the informant being an al- 
leged accomplice of the plaintiff, could not testify against him, Dawson v. 
Vansandau, 11 W. R. 516 (1863). It is held in Hicks v. Faulkner, L. R. 8 
Q. B. Div. 167 (1878), that a defendant is acting reasonably in trusting to 
his memory which has in the past proved reliable, though on the partic- 
ular occasion it plays him false. 

The defendant's mistake may be one of fact, he may have suspected the 
plaintiff of criminal acts which he has never committed, or he may have 
erroneously bejieved that the plaintiff's actual conduct constituted the crime 
charged. Some cases intimate that an accuser, if he chooses to act with- 
out legal advice, must at his peril know the law. Wills v. Noyes, 12 Pick. 
324 (Mass. 1832) ; Urban v. Tyszka, 16 Dist. R. 625 (Pa. 1907) ; Gaertner v. 
Heyl, 179 Pa. St. 391 (1897) ; Hall v. Hawkins, 5 Humph. 357 (Tenn. 1844) ; 
while Whipple v. Gorsuch, 82 Ark. 252 (1907), holds that a "well founded 
doubt as to the law may constitute probabIe_ cause * * * t}jg game as 
a doubt concerning the facts," Bramwell, B., in Johnson v. Emerson, L. R. 
6 Exch. p. 329 (1871), semble, where the defendant was a solicitor prosecut- 
ing bankruptcy proceedings for a client. Where, however, the mistake is as 
to a difficult and disputed question of law,^ it is held that such mistake hon- 
estly entertained is reasonable cause, Fhilipps v. Naylor, 4 ■ H. & N. 565 
(1859), McCoy v. Kalbach, 51 Pa. Super. Ct. 364 (1912), but see Nehr v. 
Dobhs, 47 Nebr. 863 (1896). 

' "It would be quite outrageous if, where a party is proved to believe a 
charge is unfounded, it were to be held that he could have reasonable and 
probable cause," Lord Denman, C. J., in Haddrick v. Heslop, and Raine, 
12 Ad. & E. (N. S.) (Q. B.) 267 (1848) ; Broad v. Ham. 5 Bing. N. C. 722 
(1839) ; Turner v. Ambler. 10 A. & E. (N. S.) (Q. B.) 252 (1847) ; Ball v. 



I022 BURT V. SMITH. 

licious pfosecution, even when express malice is proved.^ Thus 
an innocent person may be prosecuted unjustly and subjected to 
expense and disgrace with no right to call the prosecutor to ac- 
count, provided he acted upon an honest and reasonable belief in 
commencing the proceeding complained of. Peace and good order 
exact this hardship from the individual for the benefit of the peo- 
ple at large, so that citizens may not be prevented by the fear of 
the consequences from attempting to assert their own rights or to 
vindicate the cause of public justice by ,an appeal to the courts. 
(Hazard v. Flury, 120 N. Y. 223; Heyne v. Blair, 62 N. Y. 19; 
Farnam v. Feeley, 56 N. Y. 451 ; Carl v. Ayers, 53 N. Y. 14; Long 
Island Bottlers' Union v. Seitz, 180 N. Y. 243 ; Foshay v. Ferguson, 
2 Den. 617; Bishop on Non-Contract Law, 238; Bigelow on Torts, 
194; Addison on Torts, 592; Newell on Malicious Prosecution, 
252.) 

Probable cause is always a question of law for the court, to 
be decided outright if there is no conflict in the evidence, other- 
wise by instructing the jury as to what facts if found will establish 
a want of probable cause.* In the case now before us the trial 

Rawls, 93 Cal. 222 (1892) ; Donnelly v. Burkett, 75 Iowa 613 (1887) ; Peck 
V. Chouteau, 91 Mo. 138 (1886) ; Kniseley v. Shenberger. 7 Watts 193 (Pa. 
1838) ; Spear v. Hiles, 67 Wis. 350 (1886). It is constantly said that the de- 
fendant's belief in the plaintiff's guilt must be "honest" as well as rea- 
sonable, Mitchell V. Wall, 111 Mass. 492 (1873); El Reno Gas Co. v. Spur- 
geon, 30 Okla. 88 (1911) ; Stewart v. Sonneborn, 98 U. S. 187 (1878). So it 
is said that the test -is the defendant's belief based on reasonable grounds, 
Mitch'ell v. Logati, 172 Pa. St. 349 (1896). 

The innocence of the plaintiff is immaterial. El Reno Gas &c. Co. v. 
Spurgeon, 30 Okla. 88 (1911), the existence of probable cause depends on 
the sufficiency of the facts which are known or ought to have been known 
to defendant when he prosecuted the plaintiff, Thompson v. Beacon Valley 
■Rubber Co., 56 Conn. 493 (1888) ; Delegal v. Highley, 3 Bingh. N. C. 950 
(1837) ; Mitchell v. Logan, 172 Pa. St. 349 (1896) ; Seibert v. Price, 5 Watts 
& S. 438 (Pa. 1843); Maynard v. Sigman, 65 Nebr. 590 (1902); Scott v. 
Shelor, 28 Grat. 891 (Va. 1877) ; contra, Vinal v. Core, 18 W. Va. 1 (1881), 
discussing the earlier cases. 

'Accord: Johnstone v. Sutton, 1 T. R. 510 (1786), p. 545; Mitchell v. 
Jenkins, 5 B. & Ad. 588 (1833) ; Turner v. Ambler, 10 A. & E. (N. S.) 252 
(1847); Stewart v. Sonneborn, 98 U. S. 187 (1878); Jordan v. Alabama 
G. S. R. Co., 81 Ala. 220 (1886) ; Renfro v. Prior, 22 Mo. App. 403 (1886) ; 
Foshay v. Ferguson, 2 Denio 617 (N. Y. 1846), Diets v. Langfitt, 63 Pa. 
234 (1869) ; this is equally so when the action is for maliciously instituting 
civil proceedings in which the person or property of the defendant therein 
is seized, Emerson v. Cochran, 111 Pa. St. 619 (1886). 

'"'The question of probable cause is a mixed proposition of law and 
fact" says the court in Johnstone v. Sutton, 1 T. R. 510 (1786), "Whether 
the circumstances alleged to show it probable or not probable, are true and 
existed, is matter of fact; but whether supposing them true, they amount 
to probable cause, is a question of law; and upon^this distinction proceeded 
the case of Reynolds v. Kennedy." It is however a question of law only 
in sense that it is to be determined by the judge, see Lords Chelmsford 
and Westbury in Lister v. Ferryman, L. R. 4 E. & I. App. 521 (1870), the 
latter regretting that the existence of such cause, which he says is "an in- 
ference of fact" which "must be derived from all the circumstances of the 
case," "is an inference to be drawn by the judge and not by the ju^y"; see 
also, Panton v. Williams, 2 Ad. & E. CN. S.) 169 (1841). As to the prac- 
tice in the earlier writ of conspiracy, see Coxe v. Wirrall, Cro. Jac. 193. The 



BURT V. SMITH. IO23 

judge decided that probable cause existed and although he ^ave 
a wrong reason for his decision, we think his conclusion was right. 
The prima facie case made out by the order granting the injunc- 
tion was not overcome by the other evidence introduced by the 
plaintiffs.. The case presented by them in the state court, so far 
as the question of probable cause is concerned, differed in no con- 
trolling feature from that presented to the Federal court when 
the injunction was. granted. Aside from the alleged infringement 
of the registered trade-mark, there was still a prima facie case of 
infringement of the common-law trade-mark. While some new 
facts were proved, it did not appear that they were known to the de- 
fendant when he applied for the injunction. With some difference 
in detail, there was a general resemblance in the size, color and ap- 
pearance of the cough drops and packages used by the respective 
parties. The defendant had used his design in substantially the same 
form for nearly twenty years until it had become generally known 
as his property. It had been protected bv the judgments and orders 
of both state and federal courts in many cases. 

The burden of proof was upon the plaintiffs to establish a 
want of probable cause, but we think their own evidence shows 
that the defendant had probable cause to commence the action and 
procure the injunction, because the packages and drops of the 
plaintiff resembled his own so closely as to be "calculated to de- 
ceive the careless and unwary." The average purchaser would 
not know the difference. 



weight of American authority is accord: Stewart v. Sonnehorn, 98 U. S. 
187 (1878) ; Whipple v. Gorsuch, 82 Ark. 252 (1907) ; Holliday v. HolUday, 
123 Cal. 26 (1898), compare Johnson v. Mitler, 63 Iowa 529 (1884), with 
69 Iowa 562 (1886), Ahrens v. Hoeher, 106 Ky. 692 (1899) ; Cloon v. Gerry, 
13 Gray 201 (Mass. 1859) ; Wilson v. Bowen, 64 Mich. 133 (1887) ; Bank of 
Miller v. Richmon, 64 Nebr. Ill (1902) ; Rawson v. Leggett, 184 N. Y. 504 
(1906) ; Jones v. W. & W. R. Co.. 125 N. Car. 227 (1889) ; Robitsek v. 
Daum, 220 Pa. St. 61 (1908) ; see, however, Ritter v. Bwing, 174 Pa. St. 341 
(1896). But see Krehbiel v. Henkle, 142 Iowa 677 (1909), and Stuhhs v. Mul- 
holland, 168 Mo. 47 (1901) ; Harris v. Quincy, Omaha & Kansas City R. 
Co., 172 Mo. App. 261 (1913), with which compare Carp v. Queen Ins. Co., 
203 Mo. 295 (1907), p. 351, and Smith v. Glynn. 144 S. W. 149 (Mo. App. 
1912). 

As to the proper method to be pursued by the court when the facts are 
in dispute, see Bowen, J., in Abrath v. N. E. R. Co., L. R. 11 Q. B. Div. 
79 (1883), p. 455, where he points out three methods by which, where the 
functions of the court and jury can be principally adjusted, where there is 
conflicting evidence as to the facts alleged to show the presence or absence 
of probable cause: (1) To charge a jury generally as to the effect of the 
evidence, leaving them to give a general verdict. This, as he points out, is 
extremely difficult to do clearly and satisfactorily where the facts are at all 
complicated. (2) To instruct the jury as to what facts, if proved, would 
show probable cause or show the absence thereof, leaving to them to determine 
which state of facts exist and to render a verdict in accordance with such 
state of evidence. This is the course usually pursued in America. {See 
cases above cited and Thomas v. Smith, 51 Mo. App. 605 (1892).) (3) To 
require the jury to give a special verdict setting forth the actual state of 
facts which they find to exist. This practice, while usual in England, is 
hardly ever followed in America. 



1024 MUNNS V. DUPONT. 

MUNNS V. DUPONT et al. 
Circuit Court of United Stated, 1811. 3 B. Wash. U. S. C. C. 31. 

Washington, J. (charging the jury). The question upon 
which this cause must be decided, is not whether the plaintiff has 
suffered from a charge of which the defendants, were the authors, 
and which was not founded in truth, but whether the charge was 
made maliciously, and without probable cause. In trials of actions 
of this nature, it is of infinite consequence to mark with precision, 
the line to which the law will justify the defendant in going, and 
will punish him if he goes beyond it. On the other hand, public 
justice and public security require, -that offenders against the laws 
should be brought to trial and punishment, if their guilt be estab- 
lished. Courts and juries, and the law officers, whose duty it is to 
conduct the prosecution of public offenders, must in most instances, 
if not in all, proceed upon the information of individuals; and if 
these actions are too much encouraged, — if the informer acts upon 
his own responsibility, and is bound to make good his charge at all 
events, under the penalty of responding in damages to the accused, 
few will be found bold enough, at so great a risk, to endeavor to 
promote the public good. The informer can seldom have a full 
view of the whole ground, and must expect to be frequently disap- 
pointed, by evidence which the accused only can furnish. Even if 
he be possessed of the whole evidence, he may err in judgment ; and 
in many instances a jury may acquit, where to his mind the proofs 
of guilt were complete. It is not always the fate of those to com- 
mand success, who deserve it. 

On the other hand, the rights of individuals are not to be lightly 
sported with ; and he who invades them, ought to take care that he 
acts from pure motives, and with reasonable caution. For the in- 
tegrity of his own conduct, he must be responsible; and his sin- 
cerity must be judged of by others, from the circumstances under 
which he acted. If, without probable cause, he has inculpated an- 
other, and subjected him to injury, in his person, character, or 
estate, it is fair to suspect the purity of his motives, and the jury are 
warranted in presuming malice. But though malice should be 
proved, yet if the accusation appear to have been founded upon 
probable ground of suspicion, he is excused by the law. Both must 
be established against him viz. malice, and the want of probable 
cause. Of the former, the jury are exclusively the judges — the 
latter, is a mixed question of fact and law. What circumstances 
are sufficient to prove a probable cause, must be judged of, and 
decided by the court. But to the jury it must be referred, whether 
the circumstances which amount to probable cause, are proved by 
credible testimony or not. 



BowEN, L. J. in Abrath v. North Eastern Ry. Co. (1883), Law Reports 
1882-83, 11 Q. B. D. 440. This action is for malicious proseculion, and in an 



SKEFFINGTON V. EYLWAED. IO25 

action for malicious prosecution the plaintiff has to prove, first, that he was 
innocent and that his innocence was pronounced by the tribunal before which 
the accusation was made; secondly, that there was a want of reasonable and 
probable cause for the prosecution, or, as it may be otherwise stated, that the 
circumstances of the case were such as to be in the eyes of the judge incon- 
sistent with the existence of reasonable and probable cause; and, lastly, that 
the proceedings of which he complains were initiated in a malicious spirit, 
.that is, from an indirect and improper motive, and not in furtherance of jus- 
tice. All those three propositions the plaintiff has to make out, and if any 
step is necessary to make out any one of those three propositions, the burden 
of making good that step rests upon the plaintiff. 



SKEFFINGTON v. EYLWARD. 
Supreme Court of Minnesota, 1906. 97 Minn. Rep. 244. 

Start, C. J. This is an appeal by the defendant from an order 
of the district court of the county of Rice denying his motion for a 
n&w trial in an action for malicious prosecution, in which there was 
a verdict for the plaintiff for $250. 

The undisputed evidence establishes these facts: The defend- 
ant was chairman of the board of town supervisors of the town of 
Webster. Complaint having been made to him that the plaintiff had 
obstructed a public highway of the town, he investigated the charge, 
consulted with the county attorney with reference to the matter, 
and then made a complaint before the municipal court of the city of 
Northfield charging the plaintiff with such offense. The plaintiff 
pleaded not guilty to the charge, but upon a trial by the judge with- 
out a jury he was found guilty, and appealed from the judgment to 
the district court. The cause was dismissed and the plaintiff dis- 
charged in the district court upon motion of the county attorney. 

I. The first contention of the defendant is that the conviction 
of the plaintiff by the municipal court is conclusive evidence that the 
defendant had probable cause for instituting the prosecution. 
Therefore there was no evidence to support the verdict. The juris- 
diction of the municipal court of the city of Northfield in criminal 
cases triable within the county is the same as that of justice of the 
peace. We have, then, the question whether the conviction of a 
party in a justice or muncipal court, which is reversed on appeal of 
the case to the district court, is conclusive or prima facie evidence 
of probable cause for instituting the prosecution. 

A number of cases, especially the earlier ones, holding that if 
the defendant in a criminal proceeding is convicted in the first in- 
stance, and appeals, and is acquitted in the appellate court, the con- 
viction below is nevertheless conclusive of probable cause for his 
prosecution.^ Cooley, Torts, *i8s. Another class of cases, perhaps 
the greater number, hold that a judgment convicting the defendant 

^Reynolds v. Kennedy, 1 Wils. 232 (1748); Herman v. Brookerhoff. 8 
Watts 240 (Pa. 1839), sembte; Whitney v. Peckham, IS Mass. 243 (1818); 
Uof-row V. Wheeler &■ Wilson Mfg. Co., 165 Mass. 349 (1896). 



1026 SKEFFINGTON V. EYLWARD. 

in a criminal case, although reversed on appeal and the defendant 
acquitted, is conclusive proof of probable cause in an action by the 
defendant to recover damages for malicious prosecution, unless he 
alleges and proves that the judgment w,as obtained by fraud or per- 
jury.^ Newell, Mai. Pros. 299: 19 Am. & Eng. Ency. (2d Ed.) 
667. A third class of cases holds that a judgment convicting the de- 
fendant in a criminal proceeding, which is reversed on appeal, is not 
conclusive, but prima facie evidence of probable cause, which may 
be rebutted by any competent evidence which clearly overcomes the 
presumption arising from the fact of the defendant's conviction in 
the first instance, i Jaggard, Torts, 618; Burt v. Place, 4 Wend. 
591 ; Nicholson v. Sternberg, 61 Apj. Div. 51, 70 N. Y. Supp. 212; 
Goodrich v. Warner, 21 Conn. 432 ; Ross v. Hixon, 46 Kans. 550, 
26 Pac. 955, 12 L. R. A. 760, 26 Am. St. Rep. 123 ; Barber v. Scott, 
92 Iowa, 52, 59, 60 N. W. 497 ; Nehr v. Dobbs, 47 Neb. 863, 66 N. 
W. 864; Bechel v. Pacific, 65 Neb. 826, 91 N. W. 853.^ 

'Accord: Crescent City Live Stock Landing &c. Co. v. Butchers' 
Union &c. Co., 120 U. S. 141 (1887); Holliday v. Holliday, 123 Cal. 26 
(1898), justice of the peace binding plaintiff over to keep the peace; 
Thomas v. Muehlmann, 92 111. App. 571 (1900) ; Adams v. Bicknell. 126 
Ind. 210 (1890) ; Blucher v. Zonker, 19 Ind. App. 615 (1898) ; Bowman v. 
Brown, 52 Iowa 437 (1879) ; Witham v. Gowen, 14 Maine 362 (1837) ; Pay- 
son V. Caswell, 22 Maine 212 (1842) ; Cloon v. Gerry, U Gray 201 (Mass. 
1859), semble; Schnider v. Montrose, .158 Mich. 263 (1909); Boogher v. 
Hough, 99 Mo. 183 (1889) ; Burt v. Place, 4 Wend. 591 (N. Y. 1830), semUe; 
and see Burt v. Smith, 181 N. Y. 1 (190S) ; Grohmann v. Kirschman, 168 Pa. 
St. 189 (1895), semhle; Welch v. Boston & P. R. Corp., 14 R. I. 609 (1884) ; 
Saunders v. Baldwin, 112 Va. 431 (1911). In Short v. Spragins, 104 Ga. 628 
(1898), an order of a superior court granting an injunction and appointing 
a receiver was held to have a similar effect, aliter, where a court merely 
awards a temporary and provisional injunction pendente lite, Burt v. Smith, 
181 N. Y. 1(1905). A distinction is drawn in Indiana between a reversal 
of the judgment of an inferior court and such court's own action in setting 
aside a conviction before it and granting a new trial, which is said to put the 
case as though it had never been tried, so that the conviction is no evidence 
of probable cause, Richter v. Koster, 45 Ind. 440 (1874). 

A distinction is also sometimes made between a conviction by a magis- 
trate having power to try the charge and the action of an examining or 
committing magistrate in binding over or committing the olaintiff. which 
latter is held to be prima facie evidence only, see Israel v. Brooks, 23 111. 
S7S (1860) ; Spalding v. Lowe, 56 Mich. 366 (1885) ; Ross v. Hixon, 46 Kans. 
550 (1891), and cases cited therein; see also, Johnston v. Meaghr, 14 Utah 
426 (1894). 

' "If, upon a full and fair trial, the evidence against the plaintiff was suf- 
ficient to satisfy the court of his guilt, that circumstance will afford strong 
presumptive evidence of probable cause" — Waite, J. in Goodrich v. Warner. 
"If," says Williams, J., in Nicholson v. Sternberg, "the case is so weak that 
the defendant would be charged with want of probable cause in the absence 
of the decision of the justice, all rights the defendant is entitled to will be 
secured to him by making the decision prima facie evidence of probable 
cause, and requiring the plaintiff to overcome this prima facie case, and leav- 
ing the whole question of fact to the jury." In Moffatt v. Fisher, 47 Iowa 
473 (1877) ; Olson v. Neal. 63 Iowa 214 (1884), and Nehr v. Dobbs, it was 
held that the prima facie effect of a conviction as of probable cause could be 
rebutted by showing that it was due to an error of law on the part of the 
judge, justice, or magistrate, while in Bechel v-. Pac. etc. Co., committal by 
examining magistrate, Maynard v. Sigman, 65 Nebr. 590 (1902), a conviction 
by justices, it was said to be rebuttable by any evidence which destroyed its 



SKEFFINGTON V. EYLWARD. 102/ 

It is difRcult to see any substantial distinction between the first 
and second class of cases to which we have referred.* If the pre- 

probative value, while in Barber v. Scott, it was held that a verdict for the 
plaintiff would stand, though he had been convicted by a justice of the peace, 
if the jury could properly find that the defendant knew all -the material facts 
and they were insufficient in law to support the charge, so that he must be 
taken to know their insufficiency. In McDonald v. Schroeder, 214 Pa. St. 411 
(1906), it was held that where the defendant admitted on the trial of the 
original prosecution that he brought it for the improper purpose of collect- 
ing a debt due by the plaintiff, is bound to show that he had probable cause 
to believe him guilty of the crime charged notwithstanding the fact that he 
had been convicted. 

In many jurisdictions the plaintiff's discharge by a justice of the peace 
or committing magistrate is held to be prima facie evidence of want of prob- 
able cause, Barnholdt v. Souillard, 36 La. Ann. 103 (1884) ; Frost v. Hol- 
land, 75 Maine 108 (1883) ; Straus v. Young, 36 Md. 246 (1872) ; Thomas v. 
Smith, 51 Mo. App. 60S (1892); Stubbs v. Mulholland. 168 Mo. 47 (1902), 
at least when coupled with proof of the plaintiff's good character ; Johnston 
V. Martin, 3 Murph. 248 (N. Car. 1819) ; Rosenkrans v. Haas, 20 N. Y. S. 
880 (1892) ; Bernar v. Dunlap, 94 Pa. 329 (1880), unless the evidence pro- 
duced by the plaintiff shows that the defendant had reasonable ground to 
believe the plaintiff guilty; Madison v. R. Co., 147 Pa. St. 509 (1892); 
Barhight v. Tammany, 158 Pa. St. 545 (1893), aliter when discharge is be- 
cause of the magistrate's lack of jurisdiction, McClafferty v. Philp, 151 Pa. 
St. 86 (1892); Williams v. Norwood, 2 Yerg. 329 (Tenn. 1829); Jones v. 
Finch, 84 Va. 204 (1887) ; Vinal v. Core, 18 W. Va. 1 (1881) ; Eggett v. Al- 
len, 119 Wis. 625 (1903) ; Chapman v. Dodd, 10 Minn. 350 (1865), if solely 
upon the defendant's testimony, aliter if after both sides, Cole v. Curtis, 16 
xMinn. 182 (1870); accord: Barbour V. Gettings, 26 U. C. Q. B. 544 (1867); 
see also, Flickinger v. Wagner, 46 Md. 580 (1877), where a discharge by a 
magistrate, unable to decide on conflicting testimony and giving the accused 
the benefit of the doubt, held not to make a prima facie case. Contra: Hark- 
rader v. Moore, 44 Cal. 144 (1872) ; Israel v. Brooks, 23 111. 575 (1860) ; 
Wright v. Fansler, 90 Ind. 492 (1883); Davis v. McMillan. 142 Mich. 391 
(1905) ; Heldt v. Webster, 60 Tex. 207 (1883). The fact that the grand jury 
ignores the bill is held in Apgar v. Woolston, 43 N. J. L. 57 (1881), and Le 
Maistre v. Hunter, Brightly N. P. 494 (Pa. 1851), to be no evidence of want 
of probable cause. 

On the other hand an acquittal after the trial is generally held neither 
to make a prima facie case shifting the burden of proof nor to be of itself 
sufficient evidence to support a verdict for the plaintiff, Thompson v. Bea- 
con Valley Co., 56 Conn. 493 (1888) ; Bitting v. Ten Eyck, 82 Ind. 421 (1882) ; 
Garrard v. Willet, 4 J. J. Marsh. 628 (Ky. 1830), where, however, the plain- 
tiff had been committed for trial by a magistrate ; Stone v. Crocker, 24 Pick. 
81 (Mass. 1831) ; Britton v. Granger, 13 Ohio C. C. 281 (1897) ; Eastman v. 
Monnastes, 32 Ore. 291 (1898). And this is so even in jurisdictions hold- 
ing that a discharge by an examining magistrate makes out a prima facie 
case, Staub v. Van Benthuysen, 36 La. Ann. 467 (1884) ; Boeger v. Langen- 
berg, 97 Mo. 390 (1888) ; Christian v. Hanna, 58 Mo. App. 2,7 (1894) ; Bell 
V. Pearcy, 11 Ired. 233 (N. Car. 1850) ; and see Vinal v. Core, supra, and Hale 
V. Boylen, 22 W. Va. 234 (1883); contra, Whitfield v. Westbrook, 40 Miss. 
311 (1866), and Miller v. Hammer, 141 Pa. St. 196 (1891). with which, how- 
ever, compare Grohmann v. Kirschman, 168 Pa. St. 189 (1895). In some jur- 
isdictions it is held to be no evidence of want of probable cause, Skidmore v. 
Bricker, 77 111. 164 (1875) ; Bekkeland v. Lyons, 96 Tex. 255 (1903), 64 L. 
R. A. 474 with valuable note; Stewart v. Sonneborn, 98 U. S. 187 (1878), 
semble. 

* In some jurisdictions a conviction is conclusive though procured by 
fraud, false testimony or by preventing the accused producing exculpatory 
facts, known by the defendant to exist, Clements v. Odorless' etc. Co:, 67 Md. 
461 (1887), Bryan, J., diss., p. 605; Parker v. Huntington, 7 Gray 36 (Mass. 



1028 RAVENGA V. MACKINTOSH. 

sumption of probable cause, arising from a judgment in the first 
instance which is reversed on appeal, can only be rebutted by alleg- 
ing and proving that the judgment was obtained by fraud or 
perjury, then the judgment is practically conclusive evidence of a 
probable cause, because any judgment, although it imports absolute 
verity, may be impeached for fraud or perjury in a proper action 
or proceeding. The true and logical reason why a conviction, re- 
versed on appeal and the defendant discharged, is relevant evidence 
on the issue of probable cause, is not that the judgment imports ab- 
solute verity; for, after the reversal and discharge there is in fact 
and law no judgment. The true reason, as stated in the case of 
Nehr v. Dobbs, supra, is the fact that, ordinarily, if a court having 
jurisdiction has upon a full and fair trial proceeded to conviction, 
it must have had before it such evidence as would convince a pru- 
dent and reasonable man of the guilt of the accused. Therefore, 
while a subsequent reversal may show that the accused was in fact 
innocent, yet it does not show that there was no probable cause for 
believing him guilty. 

If such be the basis for receiving in evidence a judgment, which 
has been reversed, on a trial of the question of probable cause, it 
logically follows that it is not conclusive, but prima facie, evidence 
of probable cause, which is entitled to serious consideration in deter- 
mining the issue. It follows that, the presumption arising from such 
evidence being a rebuttable one, the evidence to rebut it cannot be 
limited to a direct impeachment of the judgment for fraud or per- 
jury, but that any competent evidence is admissible which tends to 
show that the prosecutor did not have probable cause. We accord- 
ingly hold that, in an action for malicious prosecution, a conviction 
of the plaintiff, which was reversed on appeal and the plaintiff dis- 
charged, is not conclusive, but strong prima facie, evidence of prob- 
able cause, which may be rebutted, not only by evidence tending to 
show that the conviction was obtained by fraud or perjury, but also 
by any competent evidence which satisfies the jury that the prose- 
cutor did not have probable cause for instituting the prosecution. 

Order affirmed. 



RAVENGA V. MACKINTOSH. 

Court of King's Bench, 1824. 2 Barnewall & Cresswell 693. 

The Lord Chief Justice directed the jury to find a verdict for 
the defendant, if they were of opinion that, at the time when the 
arrest was made. Mackintosh acted truly and sincerely upon the 
faith of the opinion given by his professional adviser, actually be- 
lieving that Ravenga was personally liable, and that he might be 
lawfully arrested, and that he {Mackintosh) could recover in that 
action; but to find for the plaintiff, if they were of opinion that 



1856), but compare Cloon v. Gerry, 13 Gray (Mass.) 201; Griffis v. Sellars, 
2 Dev. & B. 492 (N. Car. 1837); Smith v. Thomas, 149 N. Car. 100 (1908), 
semhle. 



RAVENGA V. MACKINTOSH. IO29 

Mackintosh believed that he must fail in the action, and that he in- 
tended to use the opinion 'as a protection, in case the proceedings 
were afterwards called in question ; and that he made the arrest, not 
with a view of obtaining his debt, but to compel the plaintiff to sanc- 
tion his debentures. The jury found a verdict for the plaintiff with 
£250 damages. 

The Attorney-General now moved for a new trial. 

Bayley J. I have no doubt that in this case there was a want 
of probable cause. I accede to the proposition, that if a party lays 
all the facts of his case 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 of this description. A 
party, however, may take the opinions of six different persons, of 

^Accord: Steed v. Knowles, 79 Ala. 446 (188S) ; Ross v. Innis, 35 111. 
487 (1864) ; Smith v. Walter, 125 Pa. St. 453 (1889) ; Stewart v. Sonneborn, 
98 U. S.-187 (1878); Tompson v. Mussey, 3 Maine 305 (1825); Cooper 
V. Utterbach, 37 Md. 282 (1872) ; Wakely v. Johnson, 115 Mich. 285 (1897) ; 
Bell v. Atlantic City R. Co., 58 N. J. L. 227 (1895) ; Radctiffe v. Holly field, 
216 Pa. 367 (1907), see Barhight v. Tammany, 158 Pa. St. S4S (1893). 
As to the effect of failure to state facts in the bona fide but mistaken belief 
that they are not material, compare Hill v. Palm, 38 Mo. 13 (1866) ; Sharpe v. 
Johnston, 59 Mo. 557 (1875), and Dunlap v. New Zealand Fire &c. Ins. Co., 
109 Cal. 365 (1895), with Baldwin v. Weed, 17 Wend. 224 (N. Y. 1837), and 
Harris v. Woodford, 98 Mich. 147 (1893). Many jurisdictions hold that he 
must disclose also facts which he could have discovered had he used reasonable 
diligence, Steed V. Knowles, 79 Ala. 446 (1885) ; Wyatt v. Burdette, 43 Colo. 
208 (1908); Ross v. Innis, 35 111. 487 (1864); Galloway v. Stewart, 49 Ind. 
156 (1874) ; Dorr Cattle Co. v. Des Moines Nat. Bank, 127 Iowa 153 (1905) ; 
Stevens v. Fassett, 27 Maine 266 X1847) ; Stubbs v. Mulholland, 168 Mo. 
47 (1902) ; Carp v. Queen Insurance Co., 203 Mo. 295 (1907), and see Moore 
V. R. Co., 37 Minn. 147 (1887), and Johnson v. Miller, 69 Iowa 562 (1886). 
Contra, Dunlap v. New Zealand Fire &-c. Ins. Co., 109 Cal. 365 (1895) ; 
Gillispie v. Stafford, 96 N. W. 1039 (Nebr. 1903) ; Hess v. Oregon German 
Baking Co., 31 Ore. 503 (1897); King v. Apple River Power Co., 131 Wis. 
575 (1907). If the defendant, subsequent to the consultation, learn of ma- 
terial facts he cannot rely on the advice seriously received as a protection, 
Dunlap v. New Zealand Fire &c. Insurance Co., 109 Cal. 365 (1895) ; Ash 
V. Marlow, 20 Ohio 119 (1851), and for a full citation and valuable discus- 
sion of the American decisions on these points and the whole subject of the 
principal case see the notes to Van Meter v. Bass, 18 L. R. A. (N. S.) 49 
(1909). 

'Accord: McLeod v. McLeod, 7i Ala. 42 (1882); Clement v. Major, 
8 Colo. App. 86 (1896) ; Ross v. Innis, 35 111. 487 (1864) ; Kimmel v. Henry, 
64 111. 505 (1872), prosecution instituted for improper purpose; Fisher v. 
Forrester, 23 Pa. 501 (1859) ; Neufeld v. Rodeminski, 144 111. 83 (1893). See 
also, the cases collected in 18 L. R. A. (N. S.) 62 to 65. An opinion given 
after the prosecution, is of course no justification therefor. Blunt v. Little, 
3 Mason 102 (U. S. 1822) ; Murphy v. Eidlitz, 121 App. Div. 224 (N. Y. 
1907), but see Hopkins v. McGillicuddy. 69 Maine 273 (1879). 

The advice of counsel affords no protection if the defendant in fact does 
not believe the plaintiff guilty, Stewart v. Sonneborn, 98 U. S. 187 (1878); 
Dawson v. Schloss, 93 Cal. 194 (1892) ; Connelly v. White, 122 Iowa 391 
(1904) ; Hyde v. Greuch, 62 Md. 577 (1884) ; Haas v. Powers, 130 Wis. 406 
(1906) ; Harris v. Woodford, 98 Mich. 147 (1893) ; Sparling v. Conway 75 
Mo. 510 (1882), and see 18 L. R. A. (N. S.) 63-64. 

'Accord: Steed v. Knowles, 79 Ala. 446 (1885) ; Neufeld v. Rodeminski, 
144 111. 83 (1893); Paddock v. Watts, 116 Ind. 146 (1888); Fleckinger v. 
Taffee, 149 Mich. 678 (1907) ; Cooper v. Flemming, 114 Tenn. 40 (1904) 
especially if the persons consulted are prosecuting officers of the state' 



1030 RAVENGA V. MACKINTOSH. 

which three are one way and three another.* It is therefore a ques- 
tion for the jury, whether he acted bona fide on the opinion, believ- 
ing 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 beheve that he had any cause of action whatever. Assuming 
that the defendant's belief that he had a cause of action 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 prob- 
able cause of action. 

Rule refused." 



Laughlin v. Clawson, 27 Pa. 328 (1856) ; Smith v. Austin, 49 Mich. 286 
(1882) ; Ambs v. A. T. & S. F. R. Co.. 114 Fed. 317 (1899). In Haszard v. 
Flury, 120 N. Y. 223 (1890), Parker, J., held that the fact that the defendant's 
counsel may have mistakenly advised him "while proper on the question of 
malice, does not form the basis for a finding of fact that he had probable 
cause to believe the plaintiff' guilty of larceny. Probable cause," he says, 
"may be founded on misinformation as to the facts but not as' to the law ;" 
and see Lange v. III. Cent. R. Co., 107 La. 687 (1902). The Georgia Civil 
Code of 1910, § 4958, makes the defendant responsible for acting on er- 
roneous legal advice and gives him an action over against his adviser, Luke 
V. Hill, 137 Ga. 159 (1911). On the whole subject see 18 L. R. A. (N. S.) 
67-68. Nor is the defendant responsible for the bad faith of his legal ad- 
viser, Peterson v. Toner, 80 Mich. 350 (1890), unless the two are in collu- 
sion, Watt V. Corey, 76 Maine 87 (1884), or knows he that it is given in bad 
faith. Shea v. Cloquet Lumber Co., 92 Minn. 348 (1904), or is the adviser 
known to be prejudiced and partial. Smith v. King, 62 Conn. 515 (1893), and 
see 18 L. R. A. (N. S.) 66. 

*See Stevens v. Fassett, 27 Maine 266 (1847). 

"The advice must be given by a practicing lawyer of good reputation 
for competency and integrity, Marks v. Hastings, 101 Ala. 165 (1892) ; 
Clement v. Major, 8 Colo. App. 86 (1896) ; Walter v. Sample, Schattgen v. 
Holnback, 149 III. 646 (1894) ; Stuhhs v. Mulholland, 168 Mo. 47 (1902) ; 
Heath, J., in Hewlett v. Cruchley, 5 Taunt. 277 (1813). The mere fact that 
the adviser is admitted to the bar or has a state license to practice law is 
not enough, Roy v. Goings, 112 111. 656 (1885) ; Stubbs v. Mulholland, 168 
Mo. 47 (1902). The public prosecuting attorney is of course a proper person 
upon whose advice to rely, Cooper v. Fleming, 114 Tenn. 40 (1904) ; Gilbert- 
son V. Fuller, AQ Minn. 413 (1889), but the advice of the defendant's regular 
counsel will protect him, Kansas etc. Co. v. Galloway, 71 Ark. 351 (1903), 
unless his previous connection with the matter or person's interest is such 
as to indicate that he is prejudiced, Perrenoud v. Helm, 65 Nebr. 77 (1902) ; 
Charles City Plow 6-c. Co. v. Jones, 71 Iowa 234 (1887) ; White v. Carr, 71 
Maine 555 (1880). But if the defendant is himself a lawyer his own advice to 
himself is of course no defense. Buck & Son Lumber Co. v. Atlantic Lumber 
Co., 121 Fed. 233 (1903) ; Terre Haute & L R. Co. v. Mason, 148 Ind. 578 
(1897). The advice of a justice of the peace or magistrate, if a layman, is no 
protection, Necker v. Bates, 118 Iowa 545 (1902) ; Olmstead v. Partridge, 16 
Gray 381 (Mass. 1860); but see Monaghan v. Cox, 155 Mass. 487 (1892); 
Brobst V. Ruff, 100 Pa. St. 91 (1882) ; Beihofer v. Loeffert, 159 Pa. St. 374 
(1893) ; but in Monaghan v. Cox, 155 Mass. 487 (1892), it was held that such 
advice is evidence of probable cause. For a valuable collection of cases on 
the whole subject, see 18 L. R. A. (N. S.) 69-74. 

The majority of jurisdictions regard the advice of counsel as proof of 
probable cause, Stewart v. Sonneborn, 98 U. S. 187 (1878) ; Jordan v. Ala. 
G. S. R. Co., 81 Ala. 220 (1886) ; Olmstead v. Partridge, 16 Gray 381 (Mass. 
1860) ; Cooper v. Fleming, 114 Tenn. 40 (1904) ; in others it is regarded as 
only evidence of the absence of malice, Smith v. Glynn, 144 S. 'W. 149 (Mo. 



JOHNS V. MARSH. IO3I 

JOHNS V. MARSH. 

Court of Appeals of Maryland, 1879. 52 Md. Rep. 323. 

Alvey, J. While the malice necessary to the right of recovery 
may not be deduced as a necessary legal conclusion from a mere act, 
irrespective of, the motive with which the act was done, yet, any 
motive other than that of instituting the prosecution for the pur- 
pose of bringing the party to justice, is a malicious motive on the 
part of the person who acts under the influence of it.^ As was ac- 
curately stated by Mr. Justice Parke, afterwards Baron Parke, in 
the case of Mitchell v. Jenkins, 5 B. & Ad., 594, "the term 'malice,' 
in this form of action, is not to be considered in the sense of spite 
or hatred against an individual, but of malus animus, and as denot- 
ing that the party is actuated by improper and indirect motives." 
If, for example, a prosecution is initiated upon weak and unsubstan- 
tial ground for purposes of annoyance, or of frightening and coerc- 
ing the party prosecuted into the settlement of a demand, the sur- 
render of goods, or for the accomplishment of any other object, 
aside from the apparent object of the prosecution and the vindica- 
tion of public justice, the party who puts the criminal law in motion 
under such circumstances lays himself open to the charge of being 
actuated by malice. Such motives are indirect and improper, and 
for the gratification of which the criminal law should not be made 
the instrument. Add. on Torts, pp. 594, 613; 2 Greenl. Ev., sec. 
453-=' 



App. 1912), in others as rebutting the inference of malice arising out of 
the absence of probable cause. Brooks v. Bradford, 4 Colo. App. 410 n894) ; 
McClafferty v. Phelp, supra; Lipowics v. Jervis, 209 Pa. 315 (1904) ; 
but see Walter v. Sample, supra, in others it is regarded as going to both 
probable cause and malice. Flora v. Russell, 138 Ind. 153 (1894) ; Folger v. 
Washburn, 137 Mass. 60 (1884); Brinsley v. Schulz, 124 Wis. -426 (190S), 
and see cases collected in 18 L. R. A. (N. S.) S1-S4. 

^ A suit is malicious if actuated by actual ill will, which may be shown by 
any evidence tending to prove its existence, as threats made. Brooks v. Jones, 
33 N. Car. 260 (1850), Thurston v. Wright, 77 Mich. 96 (1889) ; or a quarrel 
with plaintiff's family, Long v. Rodgers, 19 Ala. 321 (1851) ; see also, Van- 
derbilt v. Mathis, 5 Duer 304 (N. Y. 1856). 

'Accord: Metropolitan Life Ins. Co. v. Miller, 114 Ky. 754 (1903), 
mahce may be inferred from the use of crimiiial process to compel the plain- 
tiff to settle a disputed claim, Whiteford v. Henthorn, 10 Ind. App. 97 (1894) ; 
Krug V. Ward, 77 111. 603 (1875), or to give up property, Grinnell v. Stewart, 
32 Barb. 544 (N. Y. 1860) ; Peterson v Reisdorph, 49 Nebr. 529 (1896) ; 
Callaway v. Burr, 32 Mich. 332 (1875) ; Kelly v. Sage, 12 Kans. 109 (1873) ; 
Gabel v. Weisensee, 49 Tex. 131 (1878); Reed v. Loosemore, 197 Pa. 
261 (1900) — ^but such inference is merely one of fact and can not be rebutted, 
IVenger v. Philips, 195 Pa. St. 214 (1900) — or to extort a confession as to the 
plaintiff's supposed accomplices, so as to locate stolen property, Burk v. 
Howley, 179 Pa. St. 539 (1897), but to prosecute for the sake of making 
the plaintiff an example is not evidence of malice, Coleman v. Allen, 79 Ga. 
637 (1888). Nor does the fact that the ulterior object was to force the pay- 
ment of a debt conclusively show malice where the defendant was also ac- 
tuated by a desire to bring the plaintiff to justice, Williams v. Keyes, 9 Colo. 
App. 220 (1897), Jackson v. Linnington, 47 Kans. 396 (1891). 



1032 SCHOFIELD V. FERRERS. 

SCHOFIELD V. FERRERS. 

Supreme Court of Pennsylvania, 1864. 47 Penna. 194. 

Strong, J. But the court instructed the jury that if there was 
not probable cause, they should find for the plaintiff. This was 
leaving out of view the second essential to the maintenance of such 
an action, namely, whether the prosecution was instituted mali- 
ciously, a question always for the jury, and one which must be 
proved affirmatively to entitle the plaintiff to a verdict. It is true, 
that want of probable cause is evidence of malice, but it is not 
malice itself. It is to be submitted to the jury for them to draw the 
proper inference. This appears to be almost, if not quite, the uni- 
versal rule. How a criminal prosecution can be without malice, 
when it is instituted without probable cause ; how it can have orig- 
inated from any other than bad motives, which the law denominates 
malice, is not very apparent in most cases, yet the authorities uni- 
formly hold that absence of probable cause is only evidence of 
malice. It has not the force of a legal conclusion, and therefore the 
existence of malice is a fact to be found by a jury. It is true, there 
are certain things which, if proved, the law declares to be conclusive 
evidence of malice, but mere want of probable cause is not one of 
them. If a prosecution be instituted for the purpose of extorting 
money or other property, the law implies malice : Prough' v. Entri- 
ken, II Pa. 81, and if in this case the prosecution against the plaintiff 
below was begun or continued to obtain a title to the horse alleged 
to have been stolen by him, that fact was conclusive evidence of 
malice, which the jury were bound to receive as such. Still it was 
for them to find whether such was the motive for the prosecution. 
This seems to have been inadvertently overlooked in the charge, 
very probably because the contest on the trial was mainly over the 
question whether there was probable cause for the prosecution. 
For this reason the judgment must be reversed.^ 

* The earlier cases seem to regard the want of probable cause as mat- 
ter tending to show the defendant's knowledge that the accusation is with- 
out foundation, or his lack of sincere belief in the plaintiff's guilt, the ab- 
sence of which of course makes the prosecution malicious, see Redfield, 
C. J., in Barron v. Mason, 31 Vt. 189 (1858), p. 197, and so as evidence from 
which malice can be inferred, see Johnstone v. Sutton, 1 T. R. 510 (1785), 
p. 544, "from the want of probable cause, malice may be, and most commonly 
is, implied," "to support the verdict, there was nothing necessary to be proved, 
but that there was no probable cause, from whence the jury might imply malice 
and might imply that the defendant knew there was no probable cause," 
Ellenborough, C. J., in Purcell v. McNamara, 9 East 361 (1808), "the want 
of probable cause may be so strong and plain as to amount to evidence of 
malice," Shaw, C. J., in Willis v. Noyes. 12 Pick. 324 (Mass. 1832), "The 
groundlessness of the suit may in some instances be so obvious and palpa- 
ble that the existence of malice may be inferred from it," Billings v. Chapin, 
2 111. App. 555 (1878), "malice might not be inferred unless the charge is 
wilfully false", see also, Story, J., in Wiggin v. Coffin, 3 Story 1 (1836), 
and Bicknell, C. C, in Bitting v. Ten Eyck, 82 Ind. 421 (1882). On the 
other hand it is said in some cases that "the want of proper motive inferrable 
from a wrongful act, (a prosecution in fact enforced) based on no reasonable 



SOUTH ROYALTON BANK V. SUFFOLK BANK. IO33 

THE SOUTH ROYALTON BANK v. THE SUFFOLK BANK. 
Supreme Court of Vermont, 18S4. 27 Vt. 505. 

Bennett, J. This case comes up upon a general demurrer to 
the plaintiff's declaration, and, of course, the only question is 
whether a legal cause of action is set out in the declaration. It may 
with truth be said, that an attempt to maintain an action upon the 
facts stated in the declaration is novel; but this does not prove con- 
.clusively that the action cannot be sustained in this age of progress. 
The facts stated in the declaration are briefly that the plaintiffs, 
being a banking corporation, had put in circulation a large amount 
of their bills, and the bills would have had a continued and extended 
circulation, had it not been for the acts of the defendants, to the 
great gain and profit of the plaintiffs; and that the Suffolk Bank 
bought them up from time to time and have refused again to ex- 
change them for other money, and kept them out of circulation ; and 
have called upon and compelled the plaintiffs to redeem the bills in 
specie. 

The declaration charges that the acts of the defendants were 
performed with wicked and corrupt motives, and with an intent to 
injure, oppress and embarrass the plaintiffs in their business, where- 
by they have been damnified in their business, harassed, oppressed, 
and deprived of great gains, as they say, which they otherwise 
would have made, to wit, ten thousand dollars. It is hardly neces- 
sary to say that the plaintiffs issued their bills as a circulating me- 
dium in lieu of specie currency, and that it was the right of the de- 
fendants, in common with others, to purchase in their bills, and 
thus withdraw them from circulation, until they should choose 

ground, constitutes of itself all tie. malice deemed essential in law to the 
maintenance of the action," Daniel, J., in Spengler v. Davy, 15 Grat. 381 
(Va.), and see accord: to the effect that the jury may, but are not legally 
bound to, infer malice from want of probable cause if they find the latter 
to exist, Stewart v. Sonneborn, 98 U. S. 187 (1878) ; Vanderbilt v. Maihis, 
5 Duer 304 (N. Y. 1856) ; Chicago, R. I. & P. R, Co. v. Holleday, 30 Okla. 
680 (1912); Pohlman v. Chicago, M. &■ St. P R. Co., 131 Iowa 89 (1906), 
and the multitude of cases cited in the American Digest, Cent. Ed., Vol. 33, 
1880-1882, Decennial Ed., Vol. 12, Malicious Prosecution, § 32; but see 
Sharpe v. Johnston, 76 Mo. 660 (1882), to the effect that malice cannot be 
directly inferred from want of probable cause though the former may be in- 
ferred from the same circumstances which go to establish the latter. The 
inference is enough unless explained to carry the case to the jury, Madison 
V. P. R. Co., 147 Pa. St. 509 (1902), though the court will nonsuit if the evi- 
dence produced by the plaintiff itself proves the defendant's lack of malice, 
Madison v. P. R. Co., 147 Pa. St. 509 (1902). Lack of probable cause may, 
however, not to be inferred from malice, Johnstone v. Sutton, and cases cited, 
supra. Steed v. Knowles, 79 Ala. 446 (1885), but see Prough v. Entriken, 
11 Pa. 81 (1849); MacDonald v. Schroeder, 214 Pa. St. 411 (1906), hold- 
ing that where the defendant has instituted criminal proceedings for the 
purpose not of bringing a supposed criminal to justice, but to force him to 
pay a debt, whether justly due or not, the burden of proving probable cause 
is shifted to him, compare Mayer v. Walter, 64 Pa. 283 (1870), and Grainger 
V. Hill, 4 Bing. N. C. 212 (1838), and see Bonney v. King, 103 111. App. 601 
(1902). 



1034 SOUTH ROYALTON BANK V. SUFFOLK BANK. 

again to put them in circulation or call upon the plaintiffs to redeem 
their promise by the payment of their bills in specie. 

The defendants are not charged with doing any act in itself 
considered wrong; but it is attempted to make the acts actionable 
by reason of the bad motive imputed to the defendants in doing them. 
This case, seems to us, but an ordinary one of a creditor calling 
upon his debtor for his pay, at a time, and at a place, and in a man- 
ner to which the debtor has no right to make objection. It was 
morally and legally the duty of the plaintiffs at all times to be ready 
and willing to redeem their bills, and it has operated to their injury 
to be called upon at any particular time to redeem a particular- 
amount, it is "damnum absque injuria!' Here was no unlawful 
conspiracy by the defendants with others, either to do a lawful act 
in an unlawful manner, or an unlawful act to the injury of the 
plaintiffs ; but the declaration charges, in effect, that the acts were 
done from bad motives in the defendants. This, we think, is not 
enough. Motive alone is not enough to render the defendants liable 
for doing those acts, which they had a right to do. It is too well 
settled to need authority that malice alone will not sustain an action 
for 'a vexatious suit. There must also be want of probable cause. 
This principle is enough to settle this case. If the defendants could 
not be sued for instituting suits maliciously to collect pay upon the 
plaintiff's bills which they lawfully held,^ much less could they be 



^Accord: Buck v. Latham, 110 Minn. 523 (1910), the defendant in an 
action on a promissory note alleged by way of counter claim that the plain- 
tiff had bought the note and instituted suit thereon, not for the purpose of 
serving any interest of his own but for the sole purpose of harassing and op- 
pressing the defendant. These allegations were held to show no cause of 
action; O'Brien v. Barry, 106 Mass. 300 (1871); Jenkins v. Fowler, 24 Pa. 
308 (1855), semble; Hamilton v. Windolf, 36 Md. 301 (1852) ; Stevenson v. 
Newnham, 13 C. B. 285 (1853) ; Friel v. Plumer, 69 N. H. 498 (1898), semble. 
Nor is it a defense to an action of trespass that it was one of a number of 
civil and criminal actions instituted against the defendant brought to harass 
him and force him to leave the neighborhood, Jacobson v, Van Boening, 48 
Nebr. 80 (1896), or to an action to collect a valid debt that the creditor has 
not selected the least troublesome and expensive process for its collection, 
4nihes v. Schroeder, 74 Nebr. 172 (1905). 

So it is not unlawful for a mortgagee to foreclose an overdue mortgage 
though he deliberately does so at a time when, the debtor being temporarily 
embarrassed, the insistence on his legal right will ruin the debtor and this 
whether his purpose is to acquire the property at a price below its value, 
Morris v. Tuthill, 72 N. Y. 575 (1878), or to ruin the creditor without benefit 
to himself, Randall v. Hazleton, 12 .Allen 412 (Mass. 1866), p. 415; Madden, 
C. J., in Martell v. Victorian Coal Miners' Assn., 29 Vict. L. R. 475 (1903), 
p. 510. 

Nor will the motives of the former holder of a mortgage, negotiable 
instrument or assignable chose in action in selling, or of the purchaser in 
buying, defeat a subsequent action thereon or make the sale or purchase an 
actionable wrong, Morris v. Tuthill, supra, Randall v. Hazleton, supra. 

Under the law of France and Quebec, one guilty of abuse of his right 
to litigate even a well-founded claim may be liable in damages, F. P. Wal- 
ron, Esq., 22 Ilarv. L. R. 501, p. 508 and notes 4 and 5. 

And see on this point as well as on the right of a landowner to secure 
his property from unlawful interference or intrusion and for a very valuable 
discussion of the whole subject, the essay by the late Professor James Barr 
Ames on "How far an Act may be a Tort because of the Wrongful Motive 



NEWTON V. WEAVER. IO35 

sued for simply calling upon the defendants for pay, without the 
intervention of a suit, though done with malice. 

The result is, the judgment of the county court is affirmed. 



(a) Guilt of person prosecuted and acquitted. 



NEWTON V. WEAVER. 
Supreme Court of Rhode Island, 1882. 13 Rhode Island, 616. 

Matteson, J. This is an action of the case for malicious prose- 
cution. The prosecution alleged to have been malicious was an ac- 
tion of trover, brought against the plaintiff by the defendant, for 
the conversion of a quantity of hardware and other materials, sold 
to the plaintiff by the defendant, to be used in the erection of cer- 
tain dwelling-houses, which the plaintiff was engaged in building. 
At the trial of the present action the defendant offered to show, by 
examination of the plaintiff and another witness, certain facts tend- 
ing to prove that the plaintiff purchased the goods with the in- 
tent not to pay for them, and so was guilty of the conversion of the 
goods charged against him in the trover suit. The court excluded 
the testimony and the defendant excepted. 

But though inadmissible to establish probable cause, or to rebut 
the charge of malice, (because not known to the defendant when he 
brought the suit in trover^), we think the testimony should have 
been received. The action for malicious prosecution was designed 
for the benefit of the innocent and not of the guilty. It matters not 
whether there was probable cause for the prosecution, or how ma- 
licious may have been the motive of the prosecutor, if the accused 
is guilty he has no legal cause for complaint. The grounds of this 
action, says Ruffin, C. J. in Bell v. Pearcey, 5 Ired. 83, 84, quoting 
from Buller Nisi Prius, 14, have been said to be "on the plaintiff's 
side, innocence; on the defendant's, malice." Again, in the same 
case, page 86, he says : "There is no doubt that a defendant in this 
action may allege that the plaintiff, though acquitted in the prose- 
cution, was actually guilty, and that he may prove the guilt by any 
evidence in his power, though discovered after the prosecution 
began, or after it ended. The law does not give the action to a guilty 
man. He brings it as an innocent one, and if it appears on the trial 
in any way that he is not, he must fail." See also, Johnson v. Cham- 
bers, 10 Ired. 287, 291 ; Bacon v. Towne, 4 Cush. 217, 241 ; Barber 
V. Gould, 27 N. Y. Supreme Court, 446, 447; Turner v. Dinnegar, 
27 N. Y, Supreme Court, 465, 466. As the testimony offered tended 



of the Actor," 18 Harv. L. R. 411, especially pp. 414-415, and for a some- 
what different view "Privilege, Malice and Intent," by Mr. Justice Holmes 
8 Harv. L. R. 1. 

^A part of the opinion is omitted holding that, for this reason, the 
evidence was inadmissible for these purposes. 



1036 NEWTON V. WEAVER 

to prove that the plaintiff was guilty of the alleged conversion of the 
goods, and as his guilt, if established, would have barred his right 
to recover, we think the court erred in rejecting it, and, therefore, 
sustain the first three exceptions.^ 



(b) Abuse of process. 



MAYER V. WALTER. 
Supreme Court of Pennsylvania, 1870. 64 Penna. St. Rep. 283. 

Sharswood, J. There is a distinction between a malicious use 
and a malicious abuse of the legal process. An abuse is where the 
party employs it for some unlawful object, not the purpose which it 
is intended by the law to effect ; in other words, a perversion of it. 
Thus, if a man is arrested, or his goods seized in order to extort 
money from him, even though it be to pay a just claim, other than 
that in suit, or to compel him to give up possession of a deed or other 
thing of value, not the legal object of the process, it is settled that 
in an action for such malicious abuse it is not necessary to prove 
that the action in which the process issued has been determined, or 
to aver that it was sued out without reasonable or probable cause : 
Grainger v. Hill, 4 Bing. N. C. 212. It is evident that when such a 
wrong has been perpetrated, it is entirely immaterial whether the 
proceeding itself was baseless or otherwise. We know that the law 
is good, but only if a man use it lawfully.^ 

'^ Accord: Whitehurst v. Ward, 12 Ala. 264 (1847) ; Shannon v. Sims, 146 
Ala. 673 (1906) ; Whipple v. Gorsuch, 82 Ala. 252 (1907) ; Brtdey v. Rose. 
57 Iowa 651 (1882) ; Lancaster v. McKay, 103 Ky. 616 (1898) ; Threefoot v. 
Nuckols, 68 Miss. 116 (1890) ; Morris v. Corson, 7 Cow. 281 (N. Y. 1827) ; 
Johnson v. Chambers, 10 Iredell 287 (N. Car. 1849), in all of which the 
prosecution terminated by the grand jury refusing to indict, the justice of 
the peace dismissing the complaint, or in some other way, before trial on 
the merits by a jury or other body having final determination thereof. In 
Turner v. Dinnegar, 20 Hun 46S (N. Y. 1880) ; Bell v. Pearcey, b Iredell 83 
(N. Car. 1844J ; Parkhurst v. Masteller, 57 Iowa 474 (1881), where the 
grand jury formed a true bill, and Mack v. Sharp, 138 Mich. 448 (1904), 
the final termination of the prosecution does not appear, though in Mack v. 
Sharp, the plaintiff is said to have been "acquitted," and in Parkhurst v. Mas- 
teller, the court says that "the defendant may prove, that the defendant, not- 
withstanding his acquittal, was in fact guilty." The word acquittal is how- 
ever, appropriate to any termination of the prosecution in favor of the ac- 
cused and does not involve the idea of a verdict of a jury in his favor. In 
Bacon v. Towne, 4 Cush. 217 (Mass. 1849), Shaw, C. J., says, p. 241, that the 
plaintiff's actual guilt may be proved in mitigation of the damages and that 
the facts proving it, though not shown to have been known by the defendant 
when he instituted the prosecution, are admissible on the question of prob- 
able cause, since he may have then known them, though now unable to prove 
that he did, and see Jervis, C. J., and Pollock, C. B., in Heslop v. Chapman 
23 L. J. Q. B. 49 (1853), p. 52. y f . 

Contra: Williams v. Banks, 1 F. & F. 557 (1859). and see Clerk and 
Lindsell on Torts, 6th ed., 710. 

^Accord: McClenny v. Inverarity, 80 Kans. 569 (1909), "the warrant" says 
Benson, J., "was used to extort money and not to bring the alleged offender 



SCOTT V. STANSFIELD. IO37 

On the other hand, legal process, civil or criminal, may be ma- 
liciously used so as to give rise to a cause of action where no object 
is contemplated to be gained by it other than its proper effect and 
execution. As every man has a legal power to prosecute his claims 
in a court of law and justice, no matter by what motives of malice 
he may be actuated in doing so, it is necessary in this class to aver 
and prove that he has acted not only maliciously, but without rea- 
sonable or probable cause. It is clearly settled also, that the pro- 
ceeding must be determined finally before any action lies for the 
injury; because, as it is said in Arundell v. Tregono, Yelv. 117, the 
plaintiff will clear himself too soon, viz., before the fact tried, 
which will be inconvenient; besides, the two determinations might 
be contrary and inconsistent. 



CHAPTER III. 

Defamation Excused by the Necessity of Preserving the Right to 

Speak Freely When Such Freedom is to the Public Interest 

or Necessary for Protection of the Speaker or Others. 



SECTION 1. 
"Absolute Privilege"— "Defeasible Immunity." 



(a) Immunity of judges, witnesses, counsel and parties to 

actions. 



SCOTT V. STANSFIELD. 

Court of Exchequer, 1868. L. R. 3 Exch. 220. 

The declaration set forth that the plaintiff carried on the busi- 
ness of an accountant and scrivener and that the defendant had 
spoken of him in relation to his business as such the following 
words, "You are a harpey preying on the vitals of the poor." 

before the magistrate, to break the law not to enforce it"; White v. Apsley 
Rubber Co., 181 Mass. 339 (1902), 194 Mass. 97 (1907), criminal law "in- 
voked not for the purpose of vindicating justice but to get rid of a trouble- 
some tenant"; Wood v. Graves, 144 Mass. 365 (1887), defendant procured an 
indictment against the plaintiff and caused his arrest and detention thereon 
until he had settled a debt; in Prough v. Entriken, 11 Pa. 81 (1849), it is 
held that where criminal process is used to collect even a just debt, as may 
be inferred from the fact that the creditor drops the prosecution after it is 
paid, "the onus of proving probable cause" is thrown on him if an action of 
malicious prosecution is brought against him, Macdonald v. Schroeder 
214 Pa. St. 411 (1906). • ' 

In Rossiter v. Minnesota Bradner-Smith Paper Co., Zl Minn. 296 (1887), 



1038 SCOTT V. STANSFIELD. 

Plea that the defendant was a judge of a court of record, the 
County Court of Yorkshire, and spoke the words complained of 
while hearing and trying a cause within his jurisdiction, in which 
the new plaintiff was defendant. 

Replication : That the said words so spoken and published by 
the defendant as aforesaid, were spoken falsely and maliciously, 
and without any reasonable, probable or justifiable cause, and with- 
out any foundation whatever, and not bona fide in discharge of his 
duty as judge as aforesaid, and were wholly uncalled for, immate- 
rial, irrelevant, and impertinent, in reference to, or in respect of, the 
matters before him, and were wholly unwarranted on the said occa- 
sion, of all which premises the defendant had notice before and at 
the time of the committing of the said grievance, and then well 
knew. 

Demurrer and joinder.^ 

Kelly, C. B. I am of opinion that our judgment must be for 
the defendant. The question raised upon this record is whether an 
action is maintainable against the judge of a county court, which is 
a court of record, for words spoken by him in his judicial character 
and in the exercise of his functions as judge in the court over 
which he presides, where such words would as against an ordinary 
individual constitute a cause of action, and where they are al- 
leged to have been spoken maliciously and without probable cause, 
and to have been irrelevant to the matter before him. The question 
arises perhaps, for the first time with reference to a county court 
judge, but a series of decisions uniformly to the same effect, extend- 
ing from the time of Lord Coke to the present time, establish the 
general proposition that no action will lie against a judge for any 
acts done or words spoken in his judicial capacity in a court of jus- 
tice. This doctrine has been applied not only to the superior courts, 
but to the court of a coroner and to a court martial, which is not a 
court of record. It is essential in all courts that the judges who are 
appointed to administer the law should be permitted to administer 
it under the protection of the law independently and freely, without 



the seizure under process of goods, by statute exempt therefrom, is held a 
malicious abuse of process, compare Priel v. Plumer, 69 N. H. 498 (1898), 
where it is said to be "a trespass, for which the legal process aflfords no jus- 
tification." The boundary between the malicious use and the abuse of legal 
process is by no means sharply defined, and while "abuse implies irregular 
and improper use, not merely regular and proper use", Jeffery v. Robbins, 
73 111. App. 353 (1897), p. 361, it is not easy to distinguish between the two, 
compare Bonney v. King, 103 III. App. 601 (1902), 201 111. 47 (1903), with 
Wood V. Graves and Prough v. Entriken, supra. In Hazard v. Harding, 
63 How. Pr. 326 (N. Y. 1882), the malicious unwarranted procuring of an- 
cillary process, such as an attachment or arrest on a statutory capias in 
debt, is treated as abuse of process ; but see Pittsburgh etc. R. Co. v. Wake- 
field Hardware Co., 138 N. Car. 174 (1905), and Tamblyn v. Johnston, 126 
Fed. 267 (1903), and cases cited therein; and see Malone v. Belcher, 103 N. 
E. 637 (Mass. 1914), where the defendant, who, for the purpose of preventing 
the sale of the plaintiff's real estate, had levied an attachment thereon in a 
suit to collect commissions alleged to be due, was held guilty of malicious 
abuse of process. 

^The declaration and plea are abridged. 



DAWKINS V. LORD ROKEBY. IO39 

favor and without fear. This provision of the law is not for the 
protection or benefit of a malicious or corrupt judge, but for the 
benefit of the public, whose interest it is that the judges should be 
at liberty to exercise their functions with independence and with- 
out fear of consequences. How could a judge so exercise his office 
if he were in daily or hourly fear of an action being brought against 
him, and of having the question submitted to a jury whether a mat- 
ter on which he had commented judicially was or was not relevant 
to the case before him? Again, if a question arose as to the bona 
fides of the judge it would have, if the analogy of similar cases is 
to be followed, to be submitted to the jury. Thus if we were to hold 
that an action is maintainable against a judge for words spoken by 
him in his judicial capacity, under such circumstances as those ap- 
pearing on these pleadings, we should expose him to constant dan- 
ger of having questions such as that of good faith or relevancy 
raised against him before a jury, and of having the mode in which 
he might administer justice in his court submitted to their deter- 
mination. It is impossible to overestimate the inconvenience of 
such a result. For these reasons I am most strongly of opinion that 
no such action as this can, under any circumstances, be maintain-- 
able. 

Channell, B.'' I am of the same opinion. If the facts alleged 
by the replication were true, no doubt there would be misconduct on 
the part of the defendant. It does not follow from the decision 
which we now pronounce, that a county court judge can so miscon- 
duct himself with impunity. If a county court judge be guilty of 
misconduct in the exercise of his office, the Lord Chancellor may, 
if he think it expedient, remove him from such office, but no action 
will, in my opinion, lie against him for anything done by him in his 
judicial capacity. For the benefit of the public and the due adminis- 
tration of justice, the law provides that a judge is to be so far free 
and unfettered in the exercise of his office as not to be liable to an 
action for what he does in the capacity of judge, and so placed under 
restraint in the discharge of his duty. 

Judgment for the defendant. 



DAWKINS V. LORD ROKEBY. 
House of Lords, 1875. L. R. 7 English &■ Irish Appeals 744. 

The Lord Chief Baron (Sir F. Kelly), in the name of the 
consulted Judges, gave the following answer to the question pro- 
posed : — 

My Lords, these of Her Majesty's Judges who have had the 
honour of attending your Lordships during the argument of this 
case, are unanimously of opinion that the question put to them by 
your Lordships must be answered in the affirmative. 

A long series of decisions has settled that no action will lie 



'The concurring opinions of Martin and Bramwell, B.. are omitted. 



I040 DAWKINS V. LORD ROKEBY. 

against a witness for what he says or writes in giving evidence be- 
fore a Court of Justice. This does not proceed on the ground that 
the occasion rebuts the prima facie presumption that words dispar- 
aging to another are mahciously spoken or written. If this were 
all, evidence of express malice would remove this ground. But the 
principle, we apprehend, is that public policy requires that witnesses 
should give their testimony free from any fear of being harassed 
by an action on an allegation, whether true or false, that they acted 
from malice.^ The authorities, as regards witnesses in the ordinary 
Courts of Justice, are numerous and uniform. In the present case, 
it appears in the bill of exceptions that the words and writing com- 
plained of were published by the defendant, a military man, bound 
to appear and give testimony before a Court of Inquiry. All that 
he said and wrote had reference to that inquiry ; and we can see no 
reason why public policy should not equally prevent an action being 
brought against such a witness as against one giving evidence in an 
ordinary Court of Justice. 

The Lord Chancellor (Lord Cairns) : — 

Now, my Lords, adopting expressions of the learned Judges 
with regards to what I take to be the settled law as to the protec- 
tion of witnesses in judicial proceedings, I certainly am of opinion 
that upon all principles, and certainly upon all considerations of 
convenience and of public policy, the same protection which is ex- 
tended to a witness in a judicial proceeding who has been examined 
on oath ought to be extended, and must be extended, to a military 
man who is called before a Court of Inquiry of this kind for the 
purpose of testifying there upon a matter of military discipline con- 
nected with the army.^ It is not denied that the statements which 

^See Pigot, C. B., in Kenned':/ v. miliar d, 10 Ir. C. L. Rep. 195 (1876), 
p. 209, "I take it that this is a rule of law not founded (as is the protection 
in other cases of privileged statements) on the absence of malice in the 
party sued, but founded upon public policy, which requires a Judge, in deal- 
ing with a matter before him, a party in preferring or resisting a legal pro- 
ceeding, and a witness in giving evidence, oral or written, in a Court of 
Justice, shall do so with his mind uninfluenced by the fear of an action for 
defamation or a prosecution for libel. It is of far less importance that oc- 
casional mischief should be done by slander under such circumstances, than 
that the whole course of Justice should be enfeebled and impeded." 

So in the early case of Cutler v. Dixon, 4 Coke 14 (1584), it was held 
that no action lay upon any matter contained in pleadings, affidavits or pe- 
titions of persons pursuing the ordinary course of Justice, for otherwise 
"those who have just cause of complaint would not dare to complain for 
fear of infinite vexation." The immunity of counsel for their statements 
while pleading a client's cause is said by Brett, M. R. in Munster v. Lamb, 
L. R. 11 Q. B. Div. 588 (1883), p. 604 to be necessary as otherwise "he would 
have his mind so embarrassed that he could not do the duty he has to per- 
form. * * * jf ti^ie rule were otherwise the most innocent of counsel 
might be unrighteously harassed with suits, and therefore it is better to make 
the rule of law so large that an innocent counsel shall never be troubled, 
although, by making so large counsel are included who have been guilty o£ 
malice and misconduct." 

""GoSin v. Donnelly, L. R. 6 Q. B. Div. 307 (1881), witness before select 
committees (of inquiry) of House of Commons; Wright v. Lothrop, pos*; 
Sheppard v. Bryant, 191 Mass. 591 (1906), witnesses before legislative in- 
vestigating committees; but see Blakeslee v. Carroll, 64 Conn. 223 (189'i), 



DAWKINS V. LORD ROKEBY. IO4I 

he made, both those which were made viva voce and those which 
were made in writing, were relative to that inquiry. 

Under those circumstances, my Lords, I submit to your Lord- 
ships that the conclusion of the learned Judges is in all respects one 
which we ought to adopt, and that your Lordships will hold that 
statements made under these particular circumstances are state- 
ments which cannot become the foundation of an action at law. I 
therefore move your Lordships that the judgment of the Court o£ 
Exchequere Chamber be affirmed, and this appeal dismissed with 
costs. 

Lord Penzance: — 

My Lords, I also agree in the view that has been stated, but I 
wish to say one word on the supposed hardship of the law which is 
brought into question by this appeal. 

It is said that a statement of fact of a libellous nature which is 
palpably untrue — known to be untrue by him who made it, and dic- 
tated by malice — ought to be the subject of a civil remedy, though 
made in the course of a purely military inquiry. This mode of 
stating the question assumes the untruth and assumes the malice. 
If by any process of demonstration, free from the defects of human 
judgment, the untruth and malice could be set above and beyond all 
question or doubt, there might be ground for contending, that the 
law of the land should give damages to the injured man. 

But this is not the state of things under which this question of 
law has to be determined. Whether the statements were, in fact, 
untrue, and whether they were dictated by malice, are, and always 
will be, open questions, upon which opinions may differ, and which 
can only be resolved by the exercise of human judgment. And the 
real question is, whether it is proper on grounds of public policy to 
remit such questions to the judgment of a jury. The reasons against 
doing so are simple and obvious. A witness may be utterly free 
from malice, and may yet in the eyes of a jury be open to that im- 



holding the proceedings of an investigating committee of the whole of a board 
of aldermen not to be judicial or quasi-judicial and the privilege of a wit- 
ness before them to be conditional only. An administrative council, to whom 
had been transferred part of the administrative functions previously exer- 
cised by the courts, does not in the exercise of such function act as a ju- 
dicial tribunal, Royal Aquarium Society v. Parkinson, L. R. 1892 1 Q. 
B. 431. 

There are many dicta to the effect that the immunity only attaches to 
proceedings in a court having jurisdiction, Buckley v. Wood, 4 Coke 14a 
(1590), Hoar v. Wood, 3 Mete. 193 (Mass, 1841), Johnson v. Brown, 13 W. 
Va. 71 (1878), p. 133, pleadings of parties to the proceedings and cases 
cited 9 Col. L. R. 602, n. 4; Contra, Lake v. King, 1 Mod. 58 (1670) ; Gwinue 
V. Poole, 2 Lutw. 1560 (1692); Runge v. Franklin, 72 'Tex. 585 (1889). 
In Bower on "Actionable Defamation", p. 371, the law of England is said to 
be that "it is different if the proceeding, so far as the party defaming has 
any reason to know, is lawful and conducted with annarent regularity" ; see 
also, McCahe v. Joynt, 1901 2 Jr. R. 115. In Perkins v. Mitchell, 31 Barb. 
461 (N. Y. 1860), a distinction is made between a witness, subpoenaed to 
testify or required to make an affidavit, who is not required to know if the 
court has jurisdiction, and one, who voluntarily appears in a' form of proceed- 
ing not known to the common law, who must see that jurisdiction is acquired 
before he can claim immunity. 



1042 SEAMAN V. NETHERCLIFT. 

putation; or, again, the witness may be cleared by the jury of the 
imputation, and may yet have to encounter the expenses and dis- 
tress of a harassing Htigation. With such possibihties hanging over 
his head, a witness cannot be expected to speak with that free and 
open mind which the adriiinistration of justice demands. 

These considerations have long since led to the legal doctrine 
that a witness in the Courts of Law is free from any action ; and I 
fail to perceive any reason why the same considerations should not 
be applied to an inquiry such as the present, and with the same re- 
sult. 



SEAMAN V. NETHERCLIFT. 
In the Court of Appeal, 1876. L. R. 2 C. P. Div. S3. 

Appeal from the decision of the Common Pleas Division, order- 
ing judgment to be entered for the defendant, i C. P. D. 540. 

Claim : that defendant said of a will, to the signature of which 
the plaintiff was a witness, "I believe the signature of the will to be 
a rank forgery, and I shall believe so till the day of my death," 
meaning that the plaintiff had been guilty of forging the signature 
of the testator, or of aiding and abetting in the forgery. 

Defence : that defendant spoke the words in the course of giv- 
ing his evidence as a witness on a charge of forgery before a magis- 
trate. 

Reply : that the words were not bona fide spoken by defendant 
as a witness, or in answer to any question put to him as a witness, 
and he was a mere volunteer in speaking them for his own purposes 
otherwise than as a witness and maliciously and out of the course of 
his examination. 

CocKBURN, C. J. The case is, to my mind, so abundantly clear, 
and I believe to the minds of my learned Brothers, that I think we 
ought not to hesitate to at once pronounce our decision. 

At the trial before Lord Coleridge it appeared that in the Pro- 
bate suit of Davies v. May the defendant had been examined, as an 
adept, to express his opinion as to the genuineness of a signature to 
a will, and he gave it as his opinion that the signature was a forgery. 
The president of the Court, in addressing the jury, made some very 
strong observations on the rashness of the defendant in expressing 
so confident an opinion in the face of the direct evidence. Soon 
afterwards, on a prosecution for forgery before the magistrate, the 
defendant was called as an adept by the person charged, when he 
expressed an opinion favourable to the genuineness of the docu- 
ment. He was then asked by the counsel for the prosecution 
whether he had been a witness in the suit of Davies v. May. He 
answered "Yes." And he was then asked, "Did you repeat a report 
of the observations which the presiding judge made on your evi- 
dence?" He again said "Yes." And then the counsel stopped. I 
presume the circumstances of the trial were well known, and the 
counsel thought he had done enough. The defendant, the witness. 



SEAMAN V. NETHERCLIFT. IO43 

expressed a desire to make a statement. The magistrate told him 
he could not hear it. Nevertheless the defendant persisted and 
made the statement, the subject-matter of this action of slander. 

On the proof of these facts Lord Coleridge reserved leave to 
the defendant to move to enter judgment, if the Court should be 
of opinion that there was no evidence on behalf of the plaintiff which 
ought to be left to the jury. It occurred to him, however, that it 
would be as well to take the opinion of the jury, and they found 
that the replication was true, viz. that the words were spoken not as 
a witness in the course of the inquiry, but maliciously for his own 
purpose, that is, with intent to injure the plaintiff. Upon these find- 
ings judgment was entered for the plaintiff, leave being again re- 
served to enter judgment for the defendant, and the Court of Com- 
mon Pleas gave judgment for the defendant. 

Now, if the findings of the jury have been founded upon evi- 
dence upon which they could have been supported, I might have 
had some hesitation about the decision. But they were not; and 
we are asked to come to a conclusion contrary to what has been 
established law for nearly three centuries. 

If there is anything as to which the authority is overwhelming 
it is that a witness is privileged to the extent of what he says in 
course of his examination. Neither is that privilege affected by the 
relevancy or irrelevancy of what he says; for then he would be 
obliged to judge of what is relevant or irrelevant, and the questions 
might be, and are, constantly asked which are not strictly relevant 
to the issue.^ But that, beyond all question, this unqualified privi- 
lege extends to a witness is established by a long series of cases, the 
last of which is Dawkins v. Lord Rokeby, Law Rep. 7 H. L. 744, 
after which to contend to the contrary is hopeless. It was there 



'■ The tendency of British decision is to hold that the immunity does not 
depend on the relevancy of the statements made in answer to question or vol- 
unteered by a witness while testifying, Munsfer v. Lamb, L. R. 11 Q. B. Div. 
588 (1883), semble, p. 601; Kennedy v. Hilliard, 10 Ir. C. L. Rep. 195 (1859), 
semble, p. 211, or made orally or in pleadings, affidavits or petitions by par- 
ties to litigation, Kennedy v. Hilliard, 10 Ir. C. L. Rep. 195 (1859) ; Hodson 
V. Pace, L. R. 1899, 1 Q. B. 455 ; or by counsel in the trial of his client's cause, 
Munster v. Lamb, L. R. 11 Q. B. Div. 588 (1883J. Some of the earHer cases 
seem to give protection to a witness only if he testified on the matter or 
point in issue, so that if his testimony is false, he was guilty of perjury 
under the statute S Eliz. c. 9 § 6, Eyres v. Sedgewicke, Palm. 142 (1620), Cro. 
Jac. 601, or to counsel only if he "give in evidence" anything not material 
to the issue, since "he is to discern at his peril what to deliver" and is under 
no duty to his client to deliver "matter not pertinent to the issue or the mat- 
ter in question." 

The following American cases adopt or contain dicta approving the doc- 
trine of the later English cases, Hunckel v. Voneiff, 69 Md. 179 (1888), wit- 
ness, (as to the immunity extended in that state to pleadings and counsel, 
see Note 4 to Wright v. Lothrop, post;) Sebree v. Thompson, 126 Ky. 223 
(1907), semble; Chambliss v. Blau, 127 Ala. 86 (1899), semble; Terry v. 
Fellows, 21 La. Ann. 375 (1869), semble, also witnesses; Runge v. Franklin, 
72 Tex. 585 (1889), pleadings of party. 

The immunity is not confined to statements defamatory of parties to 
the litigation, Henderson V. Broomhead, 4 H. & N. 569 (1859), Crockett v. 
McLenahan, 109 Tenn. 517 (1902) ; Cooley v. Galyon, 109 Tenn. 1 (1909). 



I044 SEAMAN V. NETHERCLIFT. 

expressly decided that the evidence of a witness with reference to 
the inquiry is privileged, notwithstanding it may be malicious ; and 
to ask us to decide to the contrary is to ask what is beyond our 
power. But I agree that if this case, beyond being spoken mali- 
ciously, the words had not been spoken in the character of a wit- 
ness or not while he was giving evidence in the case, the result might 
have been different. For I am very far from desiring to be con- 
sidered as laying down as law that what a witness states altogether 
out of the character and sphere of a witness, or what he may say 
dehors the matter in hand, is necessarily protected. I quite agree 
that what he says before he enters or after he has left the witness- 
box is not privileged, which was the question in the case before Lord 
Ellenborough, Trotman v. Dunn, 4 Camp. 211.^ Or if a man when 
in the witness-box were to take advantage of his position to utter 
something having no reference to the cause or matter of inquiry in 
order to assail the character of another, as if he were asked : Were 
you at York on a certain day ? and he were to answer : Yes, and 
A.B. picked my pocket there ; it certainly might well be said in such 
a case that the statement was altogether dehors the character of 
witness, and not within the privilege. 

If, therefore, the findings of the jury, that the defendant had 
ceased to be a witness when he spoke the words, were justified by 
the evidence, I should hesitate before I decided in his favour. But 
I think the defendant was entitled to judgment on the first reserva- 
tion. There was no evidence to go to the jury upon the plaintiff's 
case. What the defendant said was said in his character of witness ; 
for there can be no doubt that the words were spoken in conse- 
quence of the question put to him by counsel for the prosecution, 
the object and effect of the cross-examination having been to dam- 
age his credibility as a witness before the magistrate, and of this 
the witness was conscious. The counsel, having put the question, 
stops ; and if there had been counsel present for the prisoner who 
had re-examined the witness, he would have put the proper ques- 
tions to rehabilitate him to the degree of credit to which he was en- 
titled. That such questions would have been relevant I cannot bring 
myself for a moment to doubt, relating as they do to the credibility 
of the witness, which is part of the matter of which the magistrate 
has to take cognizance. That being so, the witness himself, who is 
sworn to speak the whole truth, is properly entitled, not only with 
a view to his own vindication, but in the interest of justice, to make 
such an observation in explanation of his former answer as is just 
and fair under the circumstances. That is what the defendant did. 
The sitting magistrate having allowed the disparaging question to 



'Accord: Morgan v. Booth, 76 Ky. 480. A witness testifying before a 
grand jury has absolute immunity, Schultz v. Strauss, 127 Wis. 325 (1906), 
and statements made to the district attorney, whether after a bill of indict- 
ment has been preferred, Schultz v. Strauss, 127 Wis. 325 (1906), or giving 
information to enable him to begin a prosecution, Vogel v. Gruaz, 110 U. S. 
311 (1883), are absolutely privileged, and so are statements made to or by 
an attorney in the preparation of his client's case, Watson v. Jones, 1905 A. 
C. 380; Youmans v. Smith, 153 N. Y. 214 (1897). 



SEAMAN V. NETHERCLIFT. 'IO45 

be put and answered, ought not to have interfered to prevent the 
defendant from giving an explanation. I think the statement, com- 
ing immediately after the damaging question had been put to him, 
must be taken to be part of his testimony touching the matter in 
question, as it affects his credibility as a witness in the matter as to 
which he was called. It was given as part of his evidence before 
he had become divested of his character of witness; and but for 
the question of the opposite counsel he never would have made the 
statement at all. 

In my opinion, the Lord Chief Justice should have nonsuited 
the plaintiff, which is the conclusion at whicH the Court of Common 
Pleas ultimately arrived ; for there really was no evidence that the 
defendant was speaking otherwise than as a witness and relevantly 
to the matters in issue, because relevantly to his own character and 
credibility as a witness in the matter. That being so, even if express 
malice could have been properly inferred from the circumstances, 
the case of Dawkins v. Lord Rokeby, Law. Rep. 7 H. L. 744, con- 
clusively decides that malice has ceased to be an element in the con- 
sideration of such cases, unless it can be shewn that the statement 
was made not in the course of giving evidence, and therefore not in 
the character of a witness. 

Bramwell, J. A. I am of the same opinion. The judgment of 
the Common Pleas affirmed two propositions. First, that what the 
defendant said was said as a witness, and was relevant to the in- 
quiry before the magistrate ; secondly, that, that being so, the Lord 
Chief Justice should have stopped the trial of the action by non- 
suiting the plaintiff. 

As to the first proposition, I am by no means sure that the word 
"relevant" is the best word that could be used ; the phrases used by 
the Lord Chief Baron and the Lord Chancellor in Dawkins v. Lord 
Rokeby, Law Rep. 7 H. L. at p. 744, would seem preferable, "hav- 
ing reference," or "made with reference to the inquiry." Now, 
were the judges of the Common Pleas Division right in holding that 
this statement of the defendant had reference to the inquiry? I 
think that they were. There can be no doubt that the question put 
by the cross-examining counsel ought not to have been allowed : 
"Have you read what Sir James Hannen is reported to have said 
as to your evidence in Davies v. May?" What Sir James Hannen 
had said in a former case was not evidence. It was, therefore, an 
improper question, and the answer to it, if untrue, would not have 
subjected the witness to an indictment for perjury. But the ques- 
tion having been put, and the answer having been in the affirmative 
—and the question being, as Lord Coleridge observed, "ingeniously 
suggestive," viz. : that the way the defendant had been dealt with 
on the former occasion did not redound to his credit as a witness — 
the defendant insisted on making in addition the statement com- 
plained of. He did so, in my opinion, very foolishly. It would have 
been better to have been satisfied with retaining his own opinion 
without setting it up in direct opposition to the positive testimony 
of eyewitnesses. But he foolishly, as I think, and coarsely ex- 



1046 WRIGHT V. LOTHROP. 

claimed, "I believe the will to be a rank forgery, and shall believe 
so to the day of my death." Suppose after he had said "yes," he 
had added in a decent and becoming manner, "and I am sorry Sir 
James Hannen said what he did, for I took great pains to form my 
own opinion, and I shall always retain it, as I still think it right." 
Would not that have had reference to the inquiry before the magis- 
trate? And would it not have been reasonable and right that the 
witness should have added that statement in justification of him- 
self? Surely, yes. Mr. Clarke said he was prepared to maintain 
that as long as a witness spoke as a witness in the witness-box, he 
was protected, whethei* the matter had reference to the inquiry or 
not. I am reluctant to affirm so extreme a proposition. Suppose 
while the witness was in the box, a man were to come in at the door, 
and the witness were to exclaim, "that man picked my pocket." I 
can hardly think that would be privileged. I can scarcely think a 
witness would be protected for anything he might say in the witness- 
box, wantonly and without reference to the inquiry. I do not say 
he would not be protected. It might be held that it was better that 
everything a witness said as a witness should be protected, than 
that witnesses should be under the impression that what they said 
in the witness-box might subject them to an action. I should cer- 
tainly pause before I affirmed so extreme a proposition, but with- 
out affirming that, I think the words "having reference to the in- 
quiry" ought to have a very wide and comprehensive application, 
and ought not to be limited to statements for which, if not true, a 
witness might be indicted for perjury, or the exclusion of which by 
the judge would give ground for a new trial ; but ought to extend to 
that which a witness might naturally and reasonably say when giv- 
ing evidence with reference to the inquiry as to which he had been 
called as a witness. Taking that view, I think the first proposition 
is established, that the statement of the defendant was made as 
witness and had reference to the inquiry. 



WRIGHT V. LOTHROP. 
Supreme Judicial Court of Massachusetts, 1889. 149 Mass. 385. 

Field, J. It appeared that an order had been introduced, at the 
suggestion of Lothrop, in the House of Representatives of the Com- 
monwealth, "That the Committee on Insurance consider the ex- 
pediency of such legislation as will make 'tenants at will' liable for 
damages from fire caused by their carelessness;" that this order 
had been ultimately referred to the Committee on the Judiciary; 
and that after the order was referred to this committee, Lothrop 
appeared before the committee and called its attention to the report 
of the case of Lothrop v. Thayer, in 138 Mass. 466, which had then 
been published, and was the report of the decision by this court of 
the action he had brought against Thayer and Wright for the burn- 
ing of his property. Lothrop desired the committee to report a bill 
making tenants at will liable for the negligent burning of prop- 



WRIGHT V. LOTHROP. IO47 

erty in their possession, and, while advocating this before the com- 
mittee, he explained the action which he had brought and the de- 
cision of the court, and said to different members of the committee 
that the tenants, meaning the plaintiffs, had wilfully burned his 
building, or that he thought they had, although he could not prove 
it. There is some evidence that he said this without having been 
specifically asked a question upon this subject by the committee, and 
that the committee room was open to the public at the time. 

The second of these actions is an action of tort, brought by 
Wright against Lothrop, for slander, in making the statement con- 
cerning the burning of his property which has been recited. The 
answer sets up, among other things, that the statement was a priv- 
ileged communication made to a committee of the Legislature upon 
a subject then under consideration by the committee, and concern- 
ing which the committee had a duty to perform, and that the state- 
ment was made without malice and under the belief that it was 
true, and that this was a reasonable belief. The privilege of a wit- 
ness appearing before a committee of the Legislature, in a matter 
within the jurisdiction of the committee, is undoubtedly the same 
as that of a witness in proceedings before a court of justice.^ 

The examination of witnesses is regulated b_y the tribunal be- 
fore which they testify, and if witnesses answer pertinently ques- 
tions asked them by counsel which are not excluded by the tribunal, 
or answer pertinently questions asked them by the tribunal, they 
ought to be absolutely protected.^ It is not the duty of a witness to 
decide for himself whether the questions asked him under the di- 
rection of the tribunal are relevant.^ As the witness is sworn to 



' See cases cited in note 2 to Dawkins v. Rpkeby, ante, p. 1040. 

^ Statements responsive to questions put by counsel or court are gen- 
erally held to be absolutely privileged, Hendrix v. Daughtry, 3 Ga. App. 481 
(1908) ; Buschbaum v. Heriot, 5 Ga. App. 521 (1909) ; Baldwin v. Hutchin- 
son, 8 Ind. App. 454 (1893) ; Brooks v. Briggs, 32 Maine 447 (1851) ; Cooley 
V. Galyon, 109 Tenn. 1 (1902), with which compare Shadden v. McElwell, 86 
Tenn. 146 (1887). In Smith v. Howard, 28 Iowa 51 (1869), it is said that if 
a witness "in answer to questions, put by attorneys, spoke the words, with- 
out malice, believing them to be responsive, he would not be liable"; see 
Hutchinson v. Lewis, 75 Ind. 55 (1881) ; while in Acre v. Starkweather^ 118 
Mich. 214 (1898), reasonable belief that they were responsive is held to be 
enough to give immunity. In Steinecke v. Marx, 10 Mo. App. 580 (1881), 
the question is said to be "not as to the pertinency and relevancy of the 
testimony but whether they were spoken by the witness without being stopped 
by the court or counsel, and under the supposition that they were relevant." 
So where a witness is asked to tell his story in his own way it is held in 
Sheppard v. Bryant, 191 Mass. 591 (1906), that he has the right to assume 
that the court will stop him if he states anything not desired by it and that 
anything said before such interruption is responsive to the original question. 

" Compare Cockburn, C. J., in Seaman v. Netherclift, L. R. 2 C. P. Div. 
53 (1876), p. 56. 

Accord: Moore V. Manufacturers' Nat. Bank, 123 N. Y. 420 (1890), p. 
426, semble. Bond, J., in Lamberson v. Long, 66 Mo. App. 253 (1906), and 
Crecelius v. Bierman, 59 Mo. App. 513 (1894) ; Buschbaum v. Heriot, 5 Ga. 
App. 521 (1909), witness held not tobe protected if he volunteer false testi- 
mony, "the immateriality of which is apparent to any ordinary mind." In 
other cases it is said that it is enough if he in good faith believes his state- 
ments to be material. White v. Carroll, 42 N. Y. 161 (1870) ; Marsh v. Elliott, 



1048 WRIGHT V. LOTHROP. 

tell the whole truth relating to the matter concerning which his tes- 
timony is taken, he ought also to be absolutely protected in testify- 
ing to any matter which is relevant to the inquiry, or which he rea- 
sonably believes to be relevant to it. But a witness ought not to be 
permitted with impunity to volunteer defamatory statements which 
are irrelevant to the matter of inquiry, and which he does not believe 
to be relevant. This statement of the law, we think, is supported by 
the decisions in this Commonwealth. The English decisions, per- 
haps, go somewhat further than this in favor of a witness; cer- 
tainly they apply the rule liberally for his protection. Marsh v. 
Ellsworth, 50 N. Y. 309. 

If, then, the statement of Lothrop.to the committee be regarded 
as the pertinent answer of a witness to questions put to him by mem- 
bers of the committee, the action cannot be maintained. Lothrop 
may have been treated as a witness by the committee, although he 
was not sworn.* 



SO N. Y. 309 (1872), p. 313; Shadden v, McEliaee, 86 Tenn. 146 (1887). See 
also, Hastings v. Lusk, 22 Wend. 410 (N. Y. 1839), p. 421, discussing the im- 
munity of counsel or a party conducting the litigation himself. In Cooper 
V. Phipps, 24 Ore. 357 (1893), it is said that some cases hold that the wit- 
ness is not protected if it is proved that he abused his privilege by false 
statements which he'knew to be impertinent and immaterial. See also, Liles 
V. Caster, 42 Ohio St. 631 (1885), which seems to leave open the question 
whether the witnesses privilege is absolute or conditional, McDavitt v. Boyer, 
169 111. 475 (1897) ; McNahb v. Neat, 88 111. App. 571 (1900). 

*A similar relevancy is required of statements in pleadings or affidavits 
or made by counsel in the conduct of his client's cause, ' /o/jnjore v. Brown, 
13 W. Va. 71 (1878), Kemper v. Fort, 219 Pa. 85 (1907), Carr v. Selden, 
4 N. Y. 91 (1850), Jones v. Brownlee, 161 Mo. 258 (1901), Crockett v. Mc- 
Lanahan, 109 Tenn. 517 (1902), pleadings and affidavits; Hoar v. Wood, 3 
Mete. 193 (Mass. 1841), McMillan v. Birch, 1 Binney 178 (Pa. 1806), "if," 
said, Tilghman, C. J., "any man should abuse the privilege and under pre- 
tence of pleading his cause, wander designedly from the point in question 
and maliciously heap slander on his adversary, I will not say that he is not 
responsible in an action at law;" Hastings v. Lusk, 22 Wend. 410 (N. Y. 
1839). And see for full citation of American decisions Van Vechten 
Veeder, Absolute Immunity in Defamation, 9 Col. L. R. 463-600 (1909), note 
12, p. 60S. Compare the three Maryland cases, decided in the same term 
dealing respectively with the immunity of witness, party making defamatory 
statements in his pleadings and counsel, Hunckel v. Voneiff, 69 Md. 179 
(1888) ; Bartlett v. Christhilf, 69 Md. 219, and Maulsby v. Reif snider, 69 
Md. 143. 

The burden of proving that the statement of the witness is irrelevant 
rests on the plaintiff, Emerman V. Bruder, 7 Ohio Dec. 311 (1897) ; Bond, J., 
in Crecelius v. Bierman, 59 Mo. App. 513 (1894), and see Kennedy v. Hilliard, 
10 Ir. C. L. R. 195 (1859), pp. 210, 226, Kemper v. Fort, 219 Pa. 85 (1907), 
cases where the question, was. the immunity of parties to an action for de- 
famatory statements in the pleadings, holding that all doubt should be re- 
solved in favor of relevancy. 

The question of the actual relevancy of the statements is for the court, 
Johnson v. Brown, 13 W. Va. 71 (1878), p. 146; Jones v. Brownlee, 161 Mo. 
258 (1901); Crockett v. McLanahan, 109 Tenn. 517 (1902), while the ques- 
tion of the witnesses belief in their relevancy is, where it is regarded as ma- 
terial, a question for the jurv. Marsh v. Ellsworth, SO N. Y. 309 (1872), Has- 
tings V. Lusk, 22 Wend. 410 (N. Y. 1839). 

In some jurisdictions statements not actually relevant, Kelley v. Gt. 
Western R. Co., 145 N. W. 664 (Wis. 1914), or not responsive to questions 
of counsel and clearly irrelevant to any ordinary mind, Bushbaum v. Hcriot, 



COFFIN V. COFFIN. IO49 

(b) Immunity of legislators and governmental officers. 



"Freedom of speech and debate or proceedings in Parliament 
ought not to be impeached or questioned in any Court or place."^ 
— I William and Mary Sess. ii, c. 2, § i. 



COFFIN V. COFFIN. 
Supreme Judicial Court of Massachusetts, 1808. 4 Mass. 1. 

Parsons, C. J. The plaintifif has commenced an action on the 
case, demanding damages of the defendant for an injury to his 
character, committed by the defendant, in maliciously uttering and 
publishing defamatory words, which imported that the plaintiff had 
committed a felony by robbing the Nantucket Bank. 

To this demand the defendant pleaded not guilty, and also, by 
leave of the -Court, a special plea in bar, justifying the speaking of 
the words, because, he alleged, at the time when they were spoken, 
he and Benjamin Russell were members of the House of Representa- 
tives, then in session, and that he spoke the words to Russell, in de- 
liberation in the House, concerning the appointment of a notary pub- 
lic, and that the words had relation to the subject of their delibera- 
tion. 

The plaintiff, in his replication, denies these allegations; and 
avers that the words were spoken by the defendant of his own 
wrong, and without such cause as he had alleged, and tenders an 
issue to the country. The defendant does not demur to the replica- 
tion, but joins the issue thus tendered. 

Both the issues came on to trial, and it appeared from the evi- 
dence, that when the words were spoken, the defendant and Russell 
were members of the House of Representatives, then in session. 
The occasion, manner and circumstances, of speaking them are thus 
related by Russell, the witness. He, having some acquaintance 
with the plaintiff, and thinking highly of his integrity, was applied 
to by him to move a resolution for the appointment of an addi- 



5 Ga. App. 521 (1909), while losing their absolute immunity are conditionally 
privileged, the witness's belief or lack of belief being evidence of malice, 
compare Smith v. Howard, 28 Iowa 51 (1869), and see the opinions of Rom- 
bauer, P. J., in Lamberson v. Long and Crecelius v. Bierman, 59 Mo. App. 
513 (1894). 

^ This section of the "bill of rights'' while held to give absolute im- 
munity to defamatory statements about an individual made in a speech in 
Parliament, Dillon v. Balfour, 20 L. R. Ir. 600 (1887), and while said to be 
"declaratory, not enacting". Fielding v. Thomas, L. R. 1896 A. C. 600, p. 
612, was originally designed to protect Parliament and its members from 
coercion by the crown. For the history oi the long struggle for Par- 
liamentary freedom of speech, see Van Vechten Veeder, Esq., Absolute Im- 
munity in Defamation, 10 Col. L. Rev. 131 (1910), pp. 131-134, and Dillon 
V. Balfcur, 20 L. R. 600 (1887). Similar provisions occur in the constitutions 
of practically all countries which have constitutions, see 10 Col. L. R. 131, n. 1. 



1050 COFFIN V. COFFIN. 

tional notary for Nantucket, the town represented by the defend- 
ant. Russell made the motion, and had leave to lay the resolution 
on the table. The defendant, in his place, inquired where Russel' 
had the information of the facts on which the resolution was moved. 
The witness answered, from a respectable gentleman from Nan- 
tucket. The resolution then passed, and the speaker took up some 
other business. Russell then left his place, and was standing in 
the passage-way, within the room, conversing with several gentle- 
men. The defendant, leaving his place, came over to Russell, and 
asked him who was the respectable gentleman, from whom he had 
received the information he had communicated to the house. Rus- 
sell answered carelessly, he was perhaps one of his relations, and 
named Coffin, as most of the Nantucket people were of that name. 
The witness, then, perceiving the plaintiff sitting behind the bar, 
pointed to him, and informed the defendant he was the man. The 
defendant looked towards him, and said, "What, that convict?" 
Russell surprised at the question, asked the defendant what he 
meant; he replied, "Don't thee know the business of Nantucket 
Bank?" Witness said, "Yes, but he was honorably acquitted." The 
defendant then said, "That did not make him less guilty thee knows." 
It further appears that this conversation passed a little before one 
o'clock, that the election of notaries was not then before the house, 
but was made that afternoon, or the next day, and that the plain- 
tiff was not a candidate for that office. And there is no evidence 
that the resolution laid on the table by Russell, and passed, or the 
subject-matter of it, was ever after called up in the house. 

The defendant insisted the evidence supported the justification 
contained in the bar, and that by law the second issue ought to be 
found for him. 

The judge gave to the jury his construction of the article, and 
declared to them his opinion, that the facts did not in law maintain 
the issue for the defendant; and the jury found a verdict for the 
plaintiff. 

The twenty-first article of the declaration of rights declares 
that "The freedom of deliberation, speech, and debate, in either 
house of the legislature, is so essential to the rights of the people, 
that it cannot be the foundation of any accusation or prosecution, 
action or complaint, in any other court or place whatsoever." 

In considering this article, it appears to me that the privilege 
secured by it is not so much the privilege of the house, as an or- 
ganized body, as of each individual member composing it, who is 
entitled to this privilege, even against the declared will of the house. 
For he does not hold this privilege at the pleasure of the house, 
but derives it from the will of the people, expressed in the consti- 
tution, which is paramount to the will of either or both branches of 
the legislature. 

These privileges are thus secured, not with the intention of pro- 
tecting the members against prosecutions for their own benefit, but 
to support the rights of the people, by enabling their representa- 
tives to execute the functions of their office without fear of prose^ 



COFFIN V. COFFIN. IO5I 

cutions, civil or crimihal. I therefore think that the article ought 
not to be construed strictly, but liberally, that the full design of it 
may be answered. I will not confine it to delivering an opinion, 
uttering a speech, or haranguing in a debate; but will extend it to 
the giving of a vote, to the making of a written report, and to every 
other act resulting from the nature, and in the execution, of the 
office ; and I would define the article as securing to every member 
exemption from prosecution, for every thing said or done by him, 
as a representative, in the exercise of the functions of that office, 
without inquiring whether the exercise was regular according to the 
rules of the house, or irregular and against their rules. I do not 
confine the member to his place in the house ; and I am satisfied that 
there are cases in which he in entitled to this privilege, when not 
within the walls of the representatives' chamber. 

He cannot be exercising the functions of his office as member of 
a body, unless the body be in existence. The house must be in 
session, to enable him to claim this privilege; and it is in session, 
notwithstanding the occasional adjournments, for short intervals, 
for the convenience of its members. If a member, therefore, be 
out of the chamber, sitting in committee, executing the commission 
of the house, it appears to me that such member is within the reason 
of the article, and ought to be considered within the privilege. The 
body of which he is a member, is in session, and he, as a member of 
that body, is in fact discharging the duties of his office. He ought, 
therefore, to be protected from the civil or criminal prosecutions for 
every thing said or done by him in the exercise of his functions, as 
a representative, in committee, either in debating, in assenting tO, 
or in draughting a report. Neither can I deny the member his 
privilege, when executing the duties of his office, in a convention of 
both houses, although the convention should be holden in the sen- 
ate chamber. 

To this construction of the article it is objected, that a private 
citizen may have his character basely defamed, without any pe- 
cuniary recompense or satisfaction. The truth of the objection is 
admitted. But he may have other compensation awarded to him by 
the house, who have power, as a necessary incident, to demand of 
any of its members a retraction, or apology, of or for any thing 
he has said, while discharging the duties of his office, either in the 
house, in committee, or in a convention of the two houses, on pain 
of expulsion. But if it allowed that the remedy is inadequate, then 
a private Jj^nefit must submit to the public good. The injury to 
the reputation of a private citizen is of less importanc& to the com- 
monwealth, than the free and unreserved exercise of the duties of 
a representative, unawed by the fear of legal prosecutions. 

If this very liberal construction of the twenty-first article be 
just; if it be warranted by its language; if it be consonant to its 
manifest intent and design, — the question before the court lies in' a 
narrow compass. 

Was Coffin, the defendant, in speaking the defamatory woros, 
executing the duties of his office? Or, in other language, was he 



1052 COFFIN V. COFFIN. 

acting as a representative ? If he was, he is entitled to the privilege 
he claims ; if he was not, but was acting as a private citizen, as a 
private citizen he must answer. 

Upon information given by the plaintiff to Russell, a member, 
he had moved a resolution providing for the choice of another no- 
tary for Nantucket; and on Russell's stating that his information 
was from a respectable person from that place, the resolution had 
passed; the house had proceeded to other business; and the sub- 
ject-matter of the resolution, or of the information, was not in 
fact before the house, although it is certain that any member might 
have moved to rescind the resolution. Russell, his brother member, 
was in the passage-way, conversing with several gentlemen: the de- 
fendant came to him, and inquired the "name of Russell's informant, 
who, he had declared, was a respectable gentleman from Nantucket. 
Was this inquiry, thus made, the act of a representative, dis- 
charging his duty, or of a private citizen, to gratify his curiosity? 
It was the former, says the defendant's counsel. Whether it was 
or not, certainly it was innocent. But to pursue the evidence; the 
defendant was answered ; whatever was his motive, he had received 
the information. If, upon it, he intended again to call up the 
resolution, he might have done it. But no motion for that pur- 
pose was ever made. He then utters to Russell the de- 
famatory words. What part of his legislative duty was he now 
performing? It is said that he might apprehend that the plaintiff 
was a candidate for the office of notary, and that his motive might 
be to dissuade Russell from giving his vote. But there is no evi- 
dence that the defendant supposed the plaintiff to be a candidate, 
and it is in evidence that the plaintiff was not a candidate. It is 
also apparent that the defendant believed that Russell was not ig- 
norant of the indictment against the plaintiff, and of his acquittal. 
I cannot, therefore, assign to the defendant any other motive for 
his indiscreet language, but to correct Russell for giving to the 
plaintiff the appellation of a respectable gentleman, and to justify 
the correction by asserting that an honorable acquittal, by the ver- 
dict of a jury, is not evidence of innocence. It is not, therefore, 
possible for me to presume that the defendant, in using thus pub- 
licly the defamatory words, even contemplated that he was in the 
discharge of any official duty. This inquiry by the defendant, and 
his replies, might have been made, for all the purposes intended by 
him, in State Street, or in any other place, as well as the repre- 
sentatives' chamber ; and it is not easy for me to conceive that any 
language or- conduct of a representative must be considered as offi- 
cial, merely because he chooses the representatives' chamber for 
the scene. 

But in actions for defamatory words against a member, he 
may, in cases to which his privilege does not extend, defend himself 
like any other citizen, by proving that the words were spoken for a 
justifiable purpose, not maliciously, nor with a design to defame the 
character of any man. And this defence will avail every man 
charged with slander, although it may be that the words uttered ::re 



CHATTERTON V. SECRETARY OF STATE. IO53 

not true. I do not, therefore, consider any citizen, who is a repre- 
sentative, answerable in a prosecution for defamation, where the 
words charged were uttered in the execution of his official duty, 
although they were spoken maliciously; or where they were not 
uttered in the execution of his official duty, if they were not spoken 
maliciously, with an intent to defame the character of any person. 
And I do not consider a representative holden to answer for de- 
famatory words, spoken maliciously, and not in discharging the func- 
tions of his office. But to consider every malicious slander, uttered 
by a citizen, who is a representative, as within his privilege, because 
it was uttered in the walls of the representatives' chamber to an- 
other member, but not uttered in executing his official duty, would 
be to extend the privilege farther than was intended by the peo- 
ple, or than is consistent with sound policy, and would render the 
representatives' chamber a sanctuary for calumny — an effect which 
never has been, and, I confidently trust, never will be, endured by 
any House of Representatives of Massachusetts. 

I am convinced, after much consideration, that the facts pre- 
sented by the case do not entitle the defendant to the privilege 
which he claims; and that, for this cause, the verdict ought not to 
be set aside. 

Under this impression, to give a different opinion would be a 
desertion of a solemn duty, and a gross prevarication with my own 
conscience. 

In this opinion the Chief Justice, the other judges, viz., Sedg- 
wick, Sewall, Thatcher, and Parker, severally declare their full 
and entire concurrence.^ 



CHATTERTON v. SECRETARY OF STATE FOR INDIA IN 

COUNCIL. 

Court of Appeal, 1895. L. R. 189S, 2 Q. B. 189. 

Lord Esher^ M. R. The plaintiff in this case has brought an 
action of libel against the Secretary of State for India in Council. 
It would seem from the form of the action that it is meant to be 
brought against him in his official capacity, treating him as a cor- 

^ Accord: Kilboum v. Thompson, 103 U. S. 168 (1880), and this though 
the proceedings, an investigation of the matter then pending in the courts, was 
beyond the powers of Congress. It is held in Greenwood v. Cobbey, 26 Nebr. 
449 (1889), that the privilege of members of boards or bodies exercising 
local legislative functions and of executive officers making official communi- 
cations to them is conditional merely, Weber v. Lane, 99 Mo. App. 69 
(1903), report of a committee of board of aldermen held privileged unless 
inspired by "actual malice"; contra, WachSmuth v. Merchants' Nat. Bank, 
96 Mich. 426 (1893), libellous resolution offered in a city council, and Trebil- 
cock V. Anderson, 117 Mich. 39 (1898), libellous statements in a mayor's 
message to a city council explaining his veto of a resolution passed by it. 
The pjiivilege of citizens taking part in the proceedings of "town meetings" 
is clearly conditional and not absolute, Bradley v. Heath, 12 Pick. 163 (Mass 
1831) ; Henry v. Moberly, 6 Ind. App. 490 (1892) ; Bradford v. Clark, 90 Maine 
298 (1897). In Burch v. Bernard, 107 Minn. 210 (1909), Callahan v. Ingram 
122 Mo. 355 (1894), Mauk v. Brmdage, 68 Ohio St. 89 (1903), and McGaw 



I054 CHATTERTON V. SECRETARY OF STATE. 

poration, not against him personally. But it would have made no 
difference if.it had been brought against him as an individual. The 
substance of the case is that it is an action brought against him in 
respect of a communication in writing made by him as Secretary of 
State, and, therefore, a high official of the state, to an Under-Sec- 
retary of State in the course of the performance of his official duty. 
The master, the judge at chambers, and the Divisional Court have 
all come to the conclusion that the action is one which cannot by 
any possibility be maintained; that it is not competent to a civil 
court to entertain a suit in respect of the action of an official of 
state in making such a communication to another official in the 
course of his official duty, or to inquire whether or not he acted ma- 
liciously in making it. I think that*conclusion was correct. The 
authorities which have been cited to us appear to shew that, as a 
matter of clear law, a Judge at the trial would be bound to refuse 
to allow such an inquiry to proceed, whether any objection be 
taken by the parties concerned or not. It follows that such an action 
as this cannot possibly in point of law be maintained ; and, that be- 
ing so, to allow it to proceed' would be merely vexatious and a waste 
of time and money. The reason for the law on this subject plainly 
appears from what Lord Ellenborough and many other judges have 
said. It is that it would be injurious to the public interest that such 
an inquiry should be allowed, because it would tend to take from an 
officer of state his freedom of action in a matter concerning the pub- 
lic weal. If an officer of state were liable to an action of libel in 
respect of such a communication as this, actual malice could be 
alleged to rebut a plea of privilege, and it would be necessary that 
he should be called as a witness to deny that he acted maliciously. 
That he should be placed in such a position, and that his conduct 
should be so questioned before a jury, would clearly be against 
the public interest, and prejudicial to the independence necessary 
for the performance of "his functions as an official of state. There- 
fore the law confers upon him an absolute privilege in such a case. 
For these reasons, I think the order of the Divisional Court was 
right, and should be affirmed.^ 



V. Hamilton, J84 Pa. St. 108 (1898), there is no intimation as to whether the 
immunity is absolute or conditional, it being held that the privilege does not 
extend to statements not pertinent to matters under 'discussion nor to an 
irrelevant preamble to a resolution. In Burch v. Bernard and Mauk v. 
Brundage, a disposition is shown to restrict the privilege within very narrow 
bounds. 

^Accord: Grant v. Secretary of State for India, L. R. 2 C. P t> 445 
(1877) ; Spalding v. Vilas, 161 U. S. 483 (1896). In De Arnaud v. Ainsworth. 
24 App. D. C. 167 (1904), the protection is extended to a report by the head 
of a bureau to the Secretary of War. The privilege of inferior ofificers or of 
investigating committees is however conditional and not absolute, Ranson v 
West, 125 Ky. 457 (1907) ; Howland v. Flood, 160 Mass. 509 (1894) ; Barry 
V. McCollom, 81 Conn. 293 (1908) ; Hemmens v. Nelson, 138 N. Y. 517 (1893). 
As to the immunity of reports by military officers to their superiors or to the 
War Office or Department, see Dawkins v. Paulet, L. R. 5 Q. B. 94 (1869), 
holding such reports absolutely privileged, Maurice v. Warden, 54 Md. 233 
(1880), contra, and see 10 Col. L. R. 142-144. Petitions to parliament are ab- 
solutely privileged, Lake v. King, 1 Saund. 120 (1667) ; accord: Harris - 



BROW V. HATHAWAY. IOS5 

SECTION 2. 
"Qualified Privilege" — Defeasible Immunity. 



(a) Communications made for the protection of the maker's 
property, interests, or reputation. 



BROW V. HATHAWAY. 
Supreme Judicial Court of Massachusetts, 1866. 13 Allen, 239. 

Wells, J. The defendant's wife having lost goods from her 
store, and having grounds to suspect that the plaintiff had stolen 
them, the defendant applied to the chief of police, and, at his sug- 
gestion, went with a police officer to the house where the plaintiff 
resided with her mother, to make inquiry into the matter. No 
search-warrant was taken, but a search was made by permission of 
the mother and the plaintiff. No stolen goods were found. 

The words alleged as slanderous were spoken by the defendant 
on that occasion, in reply to the inquiry of the mother as to "what 
they wanted," and in explanation of their visit. They all related 
to the subject-matter of the supposed theft, and the grounds which 
the defendant had to suspect the plaintiff. This statement furnishes 
the conditions which establish the legal position of "privilege," re- 
butting the presumption of malice which the law would otherwise 
imply, and making it incumbent upon the plaintiff to show malice 
in fact in order to recover. 

The broad general principle is carefully stated in the case of 
Toogood V. Spyring, 4 Tyrwh. 582, which is referred to in nearly 



Huntington, 2 Tyler 129 (Vt. 1802) ; Reid v. Delorme, 2 Brev. 16 (S. Car. 
1806), but "petitions to subordinate legislative or other official bodies or to 
executive or administrative officers are privileged only if made in good 
faith", 10 Col. L. R. 139; Kent v. Bongartz, IS R. I. 72 (1885); Thorn v 
Blanchard, S Johns. 508 (N. Y. 1809) ; Proctor v. Webster, L. R. 16 Q. B. 
Div. 112 (1885) ; White v. Nicholls, 3 How. 266 (U. S. 1845) ; Woods v. Wi- 
man, 122 N. Y. 445 (1890) ; Gray v. Pentland, 2 Serg. & R. 23 (Pa. 1815) ; 
Ramsey v. Cheek, 109 N. Car. 278 (1891), but see Larkin v. Noonan, 19 Wis. 
82 (1865). 

This has no operation in English and American law between the sov- 
ereign and his subjects, the nation or state and its citizen. Since no action 
can be brought against the sovereign or state without its express consent, the 
only protection that the subject or citizen has against abuse of sovereign 
power is suit against the minister in the name of the sovereign who' gives or 
the official who executes commands in excess of the constitutional^power of 
the sovereign. See cases cited in note 1 to Rush v. Buckley, 100 Me. 322. 
Nor is the office protected by a statutory power if the statute be unconstitu- 
tional, in fact one of the more usual means of testing the constitutionality of 
legislative enactments is by an action brought against the officer acting under 
it. This subject like perhaps that dealt with in the principal case is more 
properly part of administrative law. 



1056 BROW V. HATHAWAY. 

all the later decisions upon this subject, and its doctrines have been 
quoted and approved by this court in Swan v. Tappan, 5 Cush. 104, 
and Gassett v. Gilbert, 6 Gray, 94. A narrower statement, appli- 
cable to the facts of the present case, is made by Lord EUenborough 
in Delany v. Jones, 4 Esp. 191, namely : "If done bona Ude, as with 
a view of investigating a fact, in which the party making it is inter- 
ested, it is not libellous." To the same effect are Padmore v. Law- 
rence, II Ad. & El. 380, and Fowler v. Homer, 3 Camp. 294. In 
Blackham v. Pugh, 2 C. B. 620, Chief Justice Tindal says : "A com- 
munication made by a person immediately concerned in interest in 
the subject-matter to which it relates, for the purpose of protecting 
his own interest, in the full belief thafrthe communication is true and 
without any malicious motive, is held to be excused from responsi- 
bility in an action for libel."^ 

The judge who tried this cause instructed the jury that if the 



^In Blackham v. Pugh, 2 C. B. 611 (1846), the defendant, a creditor 
of the plaintiff, sent a notice to the auctioneer who had sold the latter's 
goods not .to pay over the proceeds to him, "he having committed an act 
of bankruptcy." 

Accord: Baker v. Carrick, L. R. 1894, 1 Q. B. 838, facts similar to 
those in Blackham v. Pugh, 2 C. B. 611 (1846) ; Campbell v. Bostick, 22 
S. W. 828 (Tex. Civ. App. 1893) ; Whitely v. Adams, IS C. B. (N. S.) 392 
(1863), statements explaining or defending one's business conduct; Boh- 
linger v. Germania Life Ins. Co., 100 Ark. 477 (1911) ; Harrison v. Garrett, 
132 N. Car. 172 (1903) ; Nichols v. Eaton, 110 Iowa, 509 (1900) ; Phillips v. 
Bradshaw, 167 Ala. 199 (1910), communications by a principal to his agent 
or an owner to his manager in regard to other agents, employes or customers ; 
Hehner v. Great Northern R. Co., 78 Minn. 289 (1899) ; Tench v. Great 
Western R. Co., 33 U. Can. Q. B. 8 (1873), and Hunt v. Great Northern R. 
Co., L. R. 1891, 2 Q. B. 189, communication to railway employes of the 
reasons for dismissing a fellow employe; Bourgard v. Barthelmes, 24 Ont. 
App. 431 (1897), statements by a master to a workman that the material 
that he was using was the property of a third person, stolen by a fellow 
workman; Somerville v. Hawkins, 10 C. B. 583 (1851), warning given to 
servants not to associate with another, who had been discharged ; Toogood v. 
Spyring, 1 C. M. & R. 181 (1834), complaints by a tenant to his landlord 
or the latter's agent, against a workman sent to do repairs ; Amann v. Damm, 
8 C. B. (N. S.) 597 (1860), by one trader to another against a clerk of the 
latter sent on business to the former's premises; Clapp v. Devlin, 35 N. Y. 
Sup. Ct. 170 (1872), a consignor of a cargo, in an interview with the ship- 
owner in which he claimed that part of the cargo had not been delivered 
and accused the captain of stealing it; Smith v. Smith, 73 Mich. 445 (1889), 
semble, notice to tradesmen not to give credit to the defendant's wife, 
stated to have deserted him; Echard v. Morton, 26 Pa. S. C. 579 (1904), 
defendant, when confronted with a deed giving a right of way over his 
property, the existence of which he denied, made a statement implying tliat 
it was forged; Force v. Warren, IS C. B. N. S. 806 (1864), the defendant, 
a butcher, had accused the plaintiff, a customer, of stealing meat, the plain- 
tiff threatened him with an action, the defendant turned to another cus- 
tomer, present throughout the occurrence, and said, "She stole the meat, 
did you not see her do it?"; Croft v. Stevens, 7 H. & N. 570 (1862), a per- 
son alleged to have ordered goods from a tradesman wrote denying the 
order, which he stated was forged by the plaintiff. 

A solicitor or attorney may make statements necessary for the pro- 
tection of his client's interests as fully as he, himself, may do, Hanna v. De 
Blaquiere, 11 U. Can. Q. B. 310 (1852) ; Hargrove v. Le Breton, 4 Burr. 2422 
(1769). 



BROW V. HATHAWAY. IO57 

defendant used the words alleged, he was liable, "although he may 
have believed them to be true and may have had no malicious de- 
sign to defame the plaintiff." This ruling; as it seems, must have 
been based upon the ground, either that the occasion was not one 
which furnished the excuse of "privilege," or that the defendant 
had, by some abuse of the privilege, lost the benefit of its protection. 
If upon the former ground, we think it was wrong as matter of law, 
both upon the authorities and upon principle. If upon the latter, 
it was a question not for the court, but for the jury. 

This case must be distinguished from those in which the party 
pleading the excuse of "privilege" is guilty of making use of the 
occasion to utter charges of a character foreign to its legitimate 
purpose. As, for instance, if this defendant had, in addition to his 
statements in relation to the supposed theft, gone on to criminate 
the plaintiff generally, or to accuse her of unchastity, it would then 
have been the duty of the court, in an action for uttering such 
charges, to instruct the jury that as to such words, not appropriate 
to the legitimate objects of the occasion, it furnished the defendant 
no excuse whatever.^ But in this case the language all related to 
the subject of the theft which they were investigating, and it should 
have been left to the jury to determine, upon all the circumstances 
of the case, whether the defendant was guilty of actual malice 

Exceptions sustained. 



'^ Accord: Chapman v. Battle, 124 Ga. 574 (190S), similar facts, and see 
Moore v. Butler, 48 N. H. 161 (1868) ; Smith v. Smith, 73 Mich. 445 (1889), 
the defendant inserted, m a notice not to give credit to his wife because 
of her desertion, scandalous and unnecessary imputations upon her ; Finden 
V. Westlake, Moody & Malkin 461 (1829) ; Daniel v. New York News Pub. 
Co., 21 N. Y. S. 862 (1893), affirmed without an opinion 142 N. Y. 660 (1894), 
and Tillinghast v. McLeod, 17 R. I. 208 (1891), semble. 

The defendant must have an existing interest for the protection of 
which the information is appropriate, so a letter written by the agent of a 
defeated candidate for parliament to the agent of the successful candidate, 
accusing him of bribery, was held not to be privileged, Dickeson v. Hilliard, 
L, R. 9 Exch. 79 (1874). The recipient must be a person whose knowledge 
of the facts communicated will advance or protect the defendant's interests, 
Bailey v. Holland, 7 D. C. App. 184 (1895), letter by a stockholder of a bank, 
owned and managed by negroes, to the United States senator, complaining 
of the conduct of the plaintiff, also a negro, toward the bank and intimating 
that being false to his race he should be removed from a position held by 
him in the government service; and see Simmonds v. Dunne, Ir. R. 5 C. L. 
358 (1871), and Lynam v. Cowing, L. R. 6 Ir. 259 (1880). Nor is the de- 
fendant privileged to introduce into a letter, though written on a matter of 
business interest to him, charges against third persons, not necessary for the 
protection of his interests or the proper statement of his business position, 
Merchants Insurance Co. v. Buckner, 98 Fed. 222 (C. C. A. 6th Circ. Taft, 
Lurton and Day, JJ. 1899) . 

But if the occasion be privileged it is immaterial in an action of libel 
or slander, that the defendant had obtained the information wrongfully, 
Thurston V. Charles, 21 Times L. R. 659 (1905), defendant wrongfully con- 
verted to his own use a letter from a third party to the plaintiff which he 
showed to another, whose relation to him made the occasion privileged, the 
plaintiff joined counts in libel and conversion, it was held he could not re- 
cover in the first count, though he was allowed to recover in the second. 
It is equally immaterial that the communication is a breach of confidence or 



1058 GASSETT V. GILBERT. 

bASSETT V. GILBERT. 
Supreme Judicial Court of Massachusetts, 18S6. 6 Gray 94. 

BiGELOw, J. There can be no doubt that the publication of the 
notice or "caution to the public," set out in the declaration, had a 
direct tendency to hold the plaintiff up to public reproach and dis- 
grace ; and was therefore actionable, unless it falls within the class 
of communications or statements usually termed privileged, that is, 
authorized by law, notwithstanding they may injuriously affect pri- 
vate character. The law regards the publication of all defamatory 
matter, which is false in fact, as malJtious, and affords to the party 
injured a remedy in damages therefor. This is the general ruJe. 
But there are cases which constitute an exception to it. These are, 
when the cause or occasion of the publication is such as to render 
it proper and necessary for common convenience and the general 
welfare of society that the party making it should be protected from 
liability. In such cases, the occasion rebuts the inference of malice, 
which the law would otherwise draw from an unauthorized publica- 
tion, and renders it necessary for the party injured to show actual 
malice, or, as it is sometimes called, malice in fact, as an essential 
element in support of his action. 

The precise limits within which the publication of defamatory 
matter is allowed, as being privileged by the occasion, are best de- 
fined by Baron Parke, in the leading case of Toogood v. Spyring, 
I Cr. M. & R. 193, and 4 Tyrwh. 595. It is there laid down,, that 
a publication "fairly made by a person in the discharge 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," 
comes within the class of privileged or authorized communications. 
A party can not be held responsible for a statement or publication 
tending to disparage private character, if it is called for by the ordi- 
nary exigencies of social duty, or is necessary and proper to enable 
him to protect his own interest or that of another, provided it is 
made in good faith, and without a wilful design to defame. This 
general statement of the doctrine on this point seems to be conso- 
nant with sound principle, and is supported by numerous authorities. 
Bui. N. P. 8. Hargrave v. Le Breton, 4 Bur. 2425. Bromage v. 
Prosser, 4 B. & C. 578. Child v. AMeck, 9 B. & C. 403. Somerville 
V. Hawkins, 10 C. B. 583. I Stark. Sland. 292. 

By the application of these well-settled principles, the question 
raised in the present case can be satisfactorily determined. It ap- 
pears that the defendants were the directors of a corporation called 
the Female Medical Education Society, established for the purpose 
of educating females in the science of medicine ; that, for the pur- 
pose of raising funds in aid of the objects contemplated by their 
act of incorporation, they had resorted to the method of obtaining 



professional duty, see Robshaw v. Smith, 38 L. T. 423 (1878) ; Bower on 
Actionable Defamation, 126 n. (c). 



GERARD V. DICKENSON. IO59 

subscriptions from the public at large in various towns of this com- 
monwealth, and that they had originally employed the plaintiff as an 
agent to obtain and collect such subscriptions. It further appears 
that the plaintiff ceased to be the agent of the corporation in De- 
cember, 1850, and her authority to receive subscriptions and collect 
money in their behalf was then revoked. 

There can be no doubt that it was the duty of the defendants, 
as directors of the corporation, to look after its prudential and finan- 
cial concerns, and to take all the proper measures to see that the 
money raised by subscription, in aid of the institution under their 
charge, was collected and appropriated according to the intention 
of those from whom it was obtained. If they believed that the 
plaintiff, after her authority as such agent had ceased, was falsely 
representing herself as still authorized to collect subscriptions in be- 
half of the corporation, and was thereby wrongfully obtaining 
money from the public, they were justified in publishing a notice, 
couched in such language as was necessary and proper to put per- 
sons on their guard against her unauthorized representations, and 
to prevent her from receiving money under the false pretense that 
it was collected for the use and benefit of the corporation. Their 
private interest and their duty to the public alike required that such 
notice should be given, if they believed the facts stated in it to be 
true, and acted honestly and in good faith in-making the publica- 
tion. To this extent, we think that the occasion justified the de- 
fendants.^ 



GERARD V. DICKENSON. 

Court of King's Bench, 1577. 2 Coke Reports, Part IV, 18. 

The plaintiff declared that he was seised of the manor and 
castle of H. in the county of Stafford in fee by purchase from 
George Lord Audley ; and that he was in communication to demise 
the said castle and manor to Ralph Egerton for twenty-two years, 
for £200 fine, and £ioo rental per annum; and that the defendant 
(prcemissor-iim non ignara) said, "I have a lease of the castle and 
manor of H. for ninety years ;" and then and there showed and pub- 
Hshed a demise supposed to be made by George Lord Audley, grand- 

^ Accord: Holmes v. Royal Fraternal Order, 222 Mo. 556 (1909), letter 
from the Order to its members notifying them of the removal of the plain- 
tiff, as collecting officer, giving reasons and warning them not to pay their 
dues to him; Hatch v. Lane, 105 Mass. 394 (1870), notice to customers not 
to pay their bills to a discharged employe, vifho the defendant stated to have 
"taken upon himself the privilege of collecting my bills ;" Nevill v. Fine Art 
& Gen. Ins. Co., L. R. 1897, A. C. 68, notification to customers, etc., of ter- 
mination of plaintiff's agency, but see Warner v. Clark, 45 La. Ann. 863 
(1893) ; Sheftall v. Cent, of Ga. R. Co., 123 Ga. 589 (1905), bulletin issued 
by the company to its conductors warning them not to accept certain tickets 
stated to have been improperly retained bv the plaintiff, a discharged con- 
ductor; Holmes v. Clishy, 121 Ga. 241 (1904), semble, statements by a manu- 
facturer that genuine first-hand goods could be only procured from a par- 
ticular retailer. 



I060 GERARD V. DICKENSON. 

father to the said George Lord Audley, for ninety years, to Edward 
Dickenson her husband, and published the said demise as a true 
and good lease ; and so affirmed it, and offered to sell it ; uhi re vera 
the said lease was counterfeited by her husband, and that the de- 
fendant knew it to be counterfeited ; by reason of which words and 
publication, the said Ralph Egerton did not proceed to accept the 
said lease, to damage, &c. The defendant pleaded in bar, quod talis 
indentura (qualis in the declaration is alleged) came to the defend- 
ant's hands by trover, and traversed that she knew of the forgery, 
upon which the plaintiff demurred in law. And in this case three 
points were resolved, i. If the defendant had affirmed and pub- 
lished, that the plaintiff had no right,to the castle and manor of H. 
but that she herself had right to them, in that case, because the de- 
fendant herself pretends right to them, although in truth she had 
none, yet no action lies.^ For if an action should lie when the de- 
fendant herself claims an interest, how can any make claim of title 
to any land, or begin any suit, or seek advice and counsel, but he 
should be subject to an action, which would be inconvenient.' 
Which resolution agrees with the opinion in Banister's Case before, 



* The later cases allow an action against even a rival claimant if "made 
mala fide for the purpose of injuring the plaintiff and not in the bona fide 
defense of the defendant's own property;" Coleridge, C. J. in Halsey v. Broth- 
erhood, L. R. 19 Ch. Div. 386 (1881) ; Linville v. Rhoades, 73 Mo. App. 217 
(1898), unless made in the pleadings or testimony in legal proceedmgs to 
assert or defend a supposed right, Bailey v. Dean, 5 Barb. 297 (N. Y. 1848) ; 
Maginn v. Schmick, 127 Mo. App. 411 (1907). 

'Accord: Hargrove v. Le Breton, 4 Burr. 2422 (1769) ; Smith v. Spooner, 
3 Taunt. 246 (1810), in both, notice of defendant's adverse claim was given 
at auction of plaintiff's property; Ontario Industrial Loan and Investment 
Co. V. Lindsey, 4 Ont. R. 473 (1883); Hill v. Ward, 13 Ala. 310 (1848), 
notice of adverse claim given to intending purchaser of slaves; Bailey v. 
Dean, S Barb. 297 (N. Y. 1848), semhle; Butts v. Long, 106 Mo. App. 313 
(1904) ; Harrison v. Howe, 109 Mich. 476 (1896), and Hopkins v. Drowne, 
21 R. I. 20 (1898), notice by landlord to one intending to sublet from tenant, 
that the lease gave no right to do so; Stieh v. Todd, 11 Montg. L. R. 70 (Pa. 
1893), notice, at sale of tenant's goods, of a levy for rent, in fact discharged 
upon payment; McDaniel v. Baca, 2 Cal. 326 (1852), notice to intending pur- 
chaser that plaintiff had obtained the property from the defendant by fraud; 
Duncan v. Griswold, 92 Ky. S46 (1892), notice that judgment held by de- 
fendant covered land about to be sold by plaintiff; Brady v. Carteret Realty 
Co., 67 N. J. Eq. 641 (1904), semhle, notice of adverse claim at sheriff's 
sale; and see Walkley v. Bostwick, 49 Mich. 374 (1882), and Thompson v. 
White, 70 Cal. 135 (1886). 

So one claiming to own a patent right, or that a certain article or 
process is covered by a patent owned by him, may notify the public of his 
claim and warn them against infringing upon his supposed right; Wren v. 
Weild, L. R. 4 Q. B. 213 (1869) ; Hovey v. Rubber Tip Pencil Co., 57 N. Y 
119 (1874); Squires v. Wason Mfg. Co., 182 Mass. 137 (1902), especially if 
advised by counsel that his claim is valid, Everett Piano Co. v. Bent, 60 111. 
App. 372 (1895), but by statute 7 Edw. VII, c. 29, § 36, he must show that 
the acts complained of are actually infringements, or must "with due dili- 
gence and prosecute an action for infringement of his patent," see Skinner 
V. Shew, L. R. 1893, 1 Ch. 413. So one believing that he has a copyright of a 
poem may publish a statement that the publication of the poem by others 
is an infringement thereof, Lovell Co. V. Houghton, 116 N. Y. 520 (1889). 
The defendant's statement or notice must show that he is asserting 



CARDON V. MC CONNELL. IO61 

2 E. 4. 5. b. &c. 15 E. 4. 32 a. b. no action upon the case lies against 
one who publishes another to be his villain, without saying that he 
lies in wait to imprison him, et tales & tantas minas in ipsum fecit, 
quod circa negotia sua palam intendere non audebat. Vide 22 E. 3. 
I. in Cro. Eliz. 197, Conspiracy, 38 E. 3. 33. 43. E. 3. 20. F. N. 
B. 116. b. And therefore it was resolved, that for the said words, 
"I have a lease of the manor of H. for ninety years," although it is 
false, yet no action lies for "slandering of his title or interest in the 
said castle and manor. And although it appears by the defendant's 
bar, that she has no title or interest in the said lease, but is a stranger 
to it; yet forasmuch as the matter alleged in the declaration doth 
not maintain the action, the bar will not make it good. 2. It was 
resolved, that there was other matter in the declaration sufficient to 
maintain the action, and that was because it was alleged in the dec- 
laration that the defendant knew of the communication of the 
making of the said lease to Ralph Egerton, and also that she knew 
that the lease was forged and counterfeited, and yet (against her 
own knowledge) she has affirmed and published, that it was a good 
and true lease, by which the plaintiff was defeated of his bargain. 
Vide 5 E. 4. 126. If a man forges a bond in my name, and puts it 
in suit against me, by which I am vexed and damnified, I shall have 
an action on the case, 42 Aff. 8., B. offered eight oxen to sell to A. as 
his proper goods, knowing them to be the proper goods of P. A. 
trusting in the fidelity of B. bought them for £8 and afterwards P. 
retook the oxen ; in that case A. shall have an action upon the case 
against B. 

And these are all in effect all the cases in our books. 



FAIRCLOTH, C. J. IN CARDON v. McCONNELL. 

Supreme Court of North Carolina, 1897. 120 JV. C. Rep., 461. 

It is the duty of one, believing 'that he has such a claim or interest, to 
proclaim and assert it when a sale is in contemplation by another, in order 
that innocent persons may not be deceived or misled to their injury. If one 
be inquired of, he must speak the truth as he understands it and believes it 
to be. If he is present at a public sale of property claimed by himself, he 
must speak for the protection of purchasers or he will be forever estopped. 
If, at last, upon investigation, the defendant fails to show any title or in- 



some right claimed by him, it is not enough that he is in fact a rival claim- 
ant, Earl of Northumberland v. Byrt, Cro. Jac. 163 (1607), and even one speak- 
ing as a claimant may not make disparaging statements as to the plaintiff's 
title not necessary to the assertion of his claim, Brady v. Carteret Realty Co., 
67 N. J. Eq. 641 (1904). 

While a trader is not privileged in positively disparaging his rival's 
goods in order to prosper at his expense, Brown v. Vanaman, note to Over 
V. Schiffling, ante, Whittemore v. Weiss, 33 Mich. 348 (but see Clerk and 
Lindsell on Torts, 6th ed., pp. 687-688), it seems that mere disparaging 
comparison of a rival's goods with those of the defendant is only actionable, 
if known to be false or done solely to injure the rival and without any 
desire for self-advancement, Herschell, L. C. in White v. Mellin, L. R. 1©5, 
A. C. 154, pp. 160-161. 



I062 DWYER V. ESMONDE. 

terest in possession or in remainder, still, if his acts were done in good 
faith at the time he spoke, no action will lie. The plaintiff, claiming damages, 
must show malice — that there was no probable cause for the defendant's 
belief — ^that he could not honestly have maintained such belief. The pre- 
vention of a sale by the assertion of a claim by A, although unfounded, is 
not actionable unless it be knowingly bottomed on fraud. 4 Rep. 18; 4 
Burr. 2422. 



DWYER V. ESMONDE. 
Court of Appeal, 1878. L. R. Ireland, 1878-79, Vol. II, 243. 

The Lord Chancellor : — This is«an appeal from a decision of 
th6 Court of Exchequer, allowing a demurrer to a plea in an action 
for libel. The plea is in effect that the publication complained of 
was a privileged communication. Mr. Esmonde was candidate for 
the representation of the county of Waterford in Parliament. In 
"The Freeman's Journal" there appeared "an address" to the 
farmers of that county, purporting to come from the Kilkenny 
Farmers' Association, intended to injure Mr. Esmonde's canvass, 
and condemning his conduct as a landlord, particularly in relation 
to the present plaintiff Dwyer, who had been his tenant, and was 
evicted for non-payment of rent. Mr. Esmonde wrote in "The 
Freeman's Journal," by way of answer to this address, a letter 
which is the libel now complained of. The plea defends its publica- 
tion on the ground that the publication of the address in "The Free- 
man's Journal" was caused by the plaintiff and others, that journal 
being extensively circulated in the county of Waterford among the 
electors ; that the letter sued upon was written and published in 
answer to the charges made in the address against the defendant, in 
defense of himself in relation thereto, bona iide, without malice, 
and believing the same to be true. 

It is to be observed that the Court of Exchequer, by a majority 
of its judges, refused to admit the "Address of the Kilkenny Tenant 
Farmers' Association" to be read upon the argument of the de- 
murrer; whereas this Court, by a majority of its members, has de- 
cided that this address is incorporated with the plea, and that the 
entire of it is to be taken into consideration by the Court. We 
have, therefore, elements for our judgment which the Court of Ex- 
chequer had not. 

The address makes general charges against Mr. Esmonde as 
landlord of a property in Kilkenny ; and even goes so far as to desig- 
nate him as "the true type of a bad Irish landlord, the scourge of 
the country." But for the purpose of the present appeal, I think 
attention need only be directed to such allegations as relate to the 
present plaintiff, which I now read : — 

"One tenant, John Dwyer, holding sixty acres, met with an 
accident, and became embarrassed — old arrears hanging over him! 
Mr. Esmonde dispossessed him ; he is able and willing to undertake 
the farm — yet it is lying waste and idle on Mr. Esmonde's hands 
for the last two years ; and let that gentleman inform you whether. 



DWYER V. ESMONDE. I063 

with the keen competition for the land in the locality, it is the bad 
land or the bad landlord that deters any man from becoming his 
tenant, or for a long time from becoming even a caretaker of the 
farm ?" 

The charge here appears to be by no means confined to the evic- 
tion from the farm ; supposing that to have occurred from non-pay- 
ment of rent, caused by an accident, then when Dwyer was able and 
willing to undertake the farm, Mr. Esmonde still, rather than set 
it to him, keeps the land idle on his own hands. 

The charge against Mr. Esmonde being of this character, he 
defends himself by giving a sketch of the man who, it is alleged, 
should have been retained, or, when evicted, reinstated in the farm ; 
and here I refer to the document, and do not confine myself to the 
extracts in the plaint. He says that the reason why he ejected John 
Dwyer was simply for non-payment of rent ; that the Dwyer family 
consisted of John and two sisters, and that, on the day after the 
execution of the habere, they forced the lock of the door, and were 
found seated before the fire within the dwelling house; the aid of 
the sub-sheriff had again to be called in before he could regain pos- 
session of his property; that for nine months he was unable, al- 
though he advertised, to procure a caretaker for the farm; and, 
some months afterwards, he discovered that the plaintiff had got a 
meadow of four and a-half acres mown, and had carried off the 
hay and sold it — a matter which Mr. Esmonde suggests was a crime 
for which Dwyer could have been made amenable ; that, besides all 
this, Dwyer had acted ill to his sisters, who had portions charged on 
the very farm — not paying them, any more than the landlord ; and, 
finally, Mr. Esmonde points out that it was due to a threatening 
notice that the land had not been let. The innuendos of the plaint 
suggest that this amounts to definite charges that the plaintiff was 
guilty of forcible entry, of intimidating anyone from becoming care- 
taker, of an indictable offence in selling the hay, of fraudulently 
retaining from his sisters their portions, and of being instrumental 
in having the threatening notices feloniously sent to an intending 
tenant of the farm. 

The case of O'Donoghue v. Hussey, Ir. R. 5 C. L. 124, decided 
by the Irish Court of Exchequer ChamJDer, established that if a per- 
son be assailed in a newspaper, he is excused if in self-defense he 
has recourse to the public press, and brings forward bona fide, with- 
out malice, in the belief that they are true, statements having rela- 
tion to the charge, which, in themselves, and apart from the occasion, 
would be libels without excuse. The circumstances rebut the pre- 
sumption of malice otherwise arising from the words. In order to 
take the present case out of this rule, it is argued that what is 
alleged by Mr. Esmonde in respect of the plaintiff, particularly as 
to his conduct to his sisters, is not relevant to the charge made 
against Mr. Esmonde in the Kilkenny Farmer's Address. But is 
this so? Observe Mr. Esmonde is, in that document, held up for 
condemnation, not only in respect of the eviction of Dwyer, but also 
for subsequently excluding him from the farm, when it is said he 



1064 DWYER V. ESMONDE. 

was able to undertake it. All the matters put forward in explana- 
tion of the course adopted had their origin in Dwyer's original posi- 
tion as tenant. The portions of his sisters were charged upon the 
farm, and payable by him out of its proceeds. The reasoning is in 
effect that, whether regard be had to his non-fulfilment of his 
obligations to his landlord or his sisters in connection with the farm 
while he continued tenant, or to his personal conduct after he was 
evicted, he is not a person whom a landlord can be justly censured 
for not restoring. If what was stated tended to establish that con- 
clusion, it was relevant — perhaps I ought to go farther, and say that 
whatever tended to establish it for the tribunal to which the address 
and the answer were both directed, namely, the electors of the 
county of Waterford, was also relevant. Whichever test we adopt, 
it appears to me that the defamatory matter which has in this case 
been complained of was sufficiently connected with the vindication 
of the defendant's character to remove any objection to its publica- 
tion founded upon want of relevancy. The demurrer should, in my 
opinion, have been overruled, of course with costs, in the court be- 
low ; and, in this case, we think the plaintiff must also pay the costs 
in the Court of Appeal. 

Morris, C. J. : — The chief reliance of the plaintiff during the 
argument has been on the fourth charge ; that is, that the plaintiff 
had fraudulently retained from his sisters sums to which they were 
entitled under their father's will, charged on the farm. This is not 
a charge of independent and unconnected improper conduct by the 
plaintiff, but of improper conduct in relation to his tenancy of the 
farm the subject of discussion, and in relation to which farm the 
plaintiff had accused the defendant of gross misconduct and harsh- 
ness, as landlord, to him the plaintiff, as his tenant. 

Christian, L. J. : — Well, Mr. Esmonde, thus arraigned, before 
the electors of the county of Waterford in particular, as one utterly 
unfit to be chosen as their representative, and before the public in 
general, including his own tenantry, as a cruel and tyrannical land- 
lord, had two courses open to him : — ^he might either have thought 
of what he owed to himself as a man and a proprietor, and to the 
interests of public order, by bringing his libellers before the tri- 
bunals of the land ; or, he might only have regarded his chances as a 
candidate, and pleaded at the bar of the rural forum before which 
his assailants had brought him. Well, he chose the latter course. 
Instead of an action or an indictment, he stooped to the level of his 
assailants, and put his vindication in the shape of a letter to the 
editor of the same newspaper. That was the form it took, but in 
substance the persons addressed were the tenant-farmers of the 
county of Waterford. And, however others may blame his choice 
of a course, assuredly it does not lie in the mouth of the plaintiff or 
of his co-libellers to do so. Under these circumstances, it is as 
plain a proposition as was ever enunciated that the occasion gave 
to Mr. Esmonde a privilege of laying before the electors of the 
county he was canvassing' every circumstance of Dwyer's conduct 
in relation to the farm — (I might put it further, but it is needless 



MCDOUGALL V. CLARIDGE. IO65 

to do so) — which would be calculated to satisfy ordinarily reason- 
able men that he was one whom a just and even an indulgent land- 
lord might reasonably object to retaining, still more, to reinstating 
on his land. That those circumstances would be in the highest de- 
gree defamatory, if Dwyer himself had not been the aggressor, 
might make them all the more proper to be covered by the privilege, 
because all the more demonstrative of Dwyer's objectionableness. 
The defendant might, in exercising this privilege, fall into excesses 
of phrase or intemperance in expression which would indica'te an 
animus going beyond the bounds of self-defense. But the effect of 
that would be, not to take the subject out of the privilege, but to 
constitute evidence from which the jury might or might not infer 
malice in fact ; the malice in law, which is implied prima facie in the 
mere publishing of defamatory matter being repelled by the privi- 
lege of the occasion.^ 



(b) Communications for the protection of the common interests 
of the maker and recipient. 



McDOUGALL v. CLARIDGE. 
Court of King's Bench, 1808. 1 Campbell, 267. 

This was an action for a libel on the plaintiff in his profession 
as a solicitor. — Plea, the general issue. 

The libel set out in the declaration was contained in a letter 
written by the defendant to Messrs. Wright & Co., bankers at Not- 
tingham, and charged the plaintiff with improper conduct in the 
management of their concerns. It appeared, however, that the 

^Accord: Hermmings v. Gasson, E. B. & E. 346 (1858) ; Hibbs v. Wilkin- 
son, 1 F. & F. 608 (1859) ; Koenig v. Ritchie, 3 F. &. F. 413 (1862) ; Reg. v. 
Veley, 4 F. & F. 1117 (1867) ; Laughton v. Bishop of Sodor and Man, L. R. 
4 P. C. 495 (1872), p. 508; Mielly v. Soule, 49 La. Ann. 800 (1897) ; Shep- 
herd V. Baer, 96 Md. 152 (1902) ; Myers v. Kaichen, 75 Mich. 272 (1889) ; 
Fish V. St. Louis, etc.. Publishing Co., 102 Mo. App. 6 (1903), semble; 
Chaffin v. Lynch, 83 Va. 106 (1887), 84 Va. 884 (1888), and an agent of a 
corporation may answer an attack upon it, Koenig v. Ritchie, supra. 

But one insult does not justify or be set off against another, Bourland 
V. Eidson, 8 Grat. 27 (Va. 1851), and the fact that the plaintiff had slandered 
or libeled the defendant does not justify him in publishing orally, Senior 
V. Medland, 4 Jur. N. S. 1039 (1858), De Pew v. Robinson, 95 Ind. 109 
(1884), or in the public press, defamatory statement in regard to the plaintiff 
not responsive to or explanatory of the latter's attack, Fish v. St. Louis, etc.. 
Publishing Co., 102 Mo, App. 6 (1903), Xavier v. Oliver, 80 App. Div. 292 
(N. Y. 1903), nor, while he can accuse him of untruthfulness or "propensity 
to make injurious statements devoid of foundation" and give instances of 
indulgence therein, O'Donoghue v. Hussey, Ir. R. 5 C. L. 124 (1871), may 
he accuse him of unconnected crimes to show him to be degraded and so 
unworthy of credit, Brewer v. Chase, 121 Mich. 526 (1899). 

In Murphy v. Halpin, Ir. R. 8 C. L. 127 (1874), it was held that the de- 
fendant was not privileged to publish in the public papers an attack upon the 
plaintiff, in answer to statements made by the latter at a meeting of a board 



I066 MCDOUGALL V. CLARIDGE. 

letter was intended as a confidential communication to these gentle* 
men, and that the defendant was himself interested in the affairs 
which he supposed to be mismanaged by the plaintiff. — After the 
case had been opened by the plaintiff's counsel — 

Lord Ellenborough said, if the letter had been written by the 
defendant confidentially, and under the impression that its state- 
ments were well founded, he was clearly of opinion that the action 
could,not be maintained. It was impossible to say that the defendant 
had maliciously published a libel to aggrieve the plaintiff, if he was 
acting bona Me, with a view to the interests of himself and the per- 
sons whom he addressed ; and if a communication of this sort, which 
was not meant to go beyond those immediately interested in it, were 
the subject of an action for damages, it would be impossible for 
the affairs of mankind to be conducted.^ His Lordship referred to 

of guardians of which he was a member, though reported without his pro- 
curement or consent in a newspaper. 

As to the right in private communications to cast imputations upon others 
or to comment publicly upon their conduct in repelling a charge made against 
oneself or in explaining one's conduct so as to prevent injurious interpre- 
tations being put upon it, see Coward v. Wellington, 7 C. & P. 531 (1836), 
Whiteley v. Adams, IS C. B. (N. S.) 392 (1863), and O'Connor v. Sill, 60 
Mich. 175 (1886). 

^ So the stockholders of a company may inform one another or the offi- 
cers of the company of anything which they honestly believe to have been 
done by a fellow stockholder, official, or employe of the company prejudicial to 
their joint interest, either privately, Chambers v. Leiser, 43 Wash. 285 (1906) ; 
Quarts Hill Co. v. Beall, L. R., 20 Ch. Div. 501 (1882) ; Haney v. Trost, 
34 La. Ann. 1146 (1882) ; Scullin v. Harper, 78 Fed. 460 (C. C. A. 1897), or 
in a meeting of the stockholders, Parsons v. Surgey, 4 F. & F. 247 (1864) ; 
Broughton v. McGrew, 39 Fed. 672 (1889). So a member of an association, 
social, beneficial, fraternal or professional may make complaint to the society 
or its officers of supposed conduct of a fellow member in violation of the 
by-laws or prejudicial to it or contrary to its objects and ideals, McKnight v. 
Hasbrouek, 17 R. I. 70 (1890); Graham v. State, 6 Ga. App. 436 (1909); 
Lovejoy v. Whitcomb, 174 Mass. 586 (1899), semble, if, and only if, such 
complaint is made in order to bring about an investigation leading to the 
expulsion or discipline of the offending member. 

So a corporation may inform its stockholders by letter or circular of the 
supposed misconduct of an officer or employee, P. W. &• B. R. Co. v. Quig- 
ley, 21 How. 202 (U. S. 1858) ; Lawless v. Anglo-Egyptian Cotton & Oil Co., 
L. R. 4 Q. B. 262 (1869), or may explain its corporate acts, though the expla- 
nation is defamatory to third persons, Montgomery v. Knox, 23 Fla. 595 
(1887). The same privilege attaches to the reports of a college board of 
trustees to its contributors of its reasons for removing its president, Gattis 
V. Kilgo, 140 N. Car. 106 (1905), or of a fraternal association to its members 
of the expulsion of a member, Kirkpatrick v. Eagle Lodge, 26 Kans. 384 
(1881). 

In Redgate v. Roush, 61 Kans. 480 (1900), it is held that the officers of 
a church may communicate to all the other members of the same denomina- 
tion, through the medium of their church papers, notice of the disposition of 
their pastor and the reasons therefor, Shurtleff v. Stevens, 51 Vt. 501 (1879) ; 
Konkle V. Haven, 140 Mich. 472 (1905) ; Clark v. Molyneux, L. R. 3 Q. B. D. 
237 (1877) ; Whiteley v. Adams, 15 C. B. (N. S.) 392 (1863) ; James v. Bos- 
ton, 2 C. & K. 4 (1845); and compare Shurtleff v. Parker, 130 Mass. 293 
(1881), where it was held that a member of and a preacher in one congrega- 
tional association was not privileged to inform a member of another such 
association of the supposed character of another member of the latter, who 
was in fact a dismissed preacher, 



HARRISON V. BUSH. I067 

a case of Cleaver v. Sarraude, tried on the northern circuit while he 
was at the bar ; where, in an action like the present, it appeared that 
the letter had been written confidentially to the Bishop of Durham, 
who employed the plaintiff as steward to his estates, to inform him 
of certain supposed mal-practices on the part of the plaintiff ; upon 
which the judge who presided declared himself of opinion, that 
the action was not maintainable, as the defendant had been acting 
jona fide ; and the nonsuit which he directed had been acquiesced 
in, from a conviction entertained by the plaintiff's counsel of its 
being founded in law. 



HARRISON V. BUSH. 
Queen's Bench, 18SS. S Ellis &• Blackburn, 344. 

Lord Campbell, C. J., in this term (May 24th) delivered the 
judgment of the court.^ 

This was an action for a libel, tried before my Brother Crowder 
at the last Salisbury assizes. The defendant pleaded not guilty, and 
a justification. 

It appeared that Dr. Harrison, the plaintiff, before and at the 
time when the cause of action accrued, was a justice of peace for the 
county of Somerset, and was in the habit of acting at petty sessions 
held in the borough of Frome. In the month of October last, there 
was a contested election, for a member to represent this borough in 
Parliament. During the election, there was much excitement ; many 
windows were broken by the mob ; and there were dangerous riots 
in the streets. The defendant was an elector and an inhabitant of 
the borough ; and, after the election was over, he and several hun- 
dred other inhabitants of the borough prepared, signed and trans- 
mitted to Viscount Palmerston a memorial complaining of the con- 
duct of the plaintiff as a magistrate during the election, imputing to 
him that he had made speeches directly inciting to a breach of the 
peace ; that, after reading the Riot Act, he had sent a man into the 

In the following cases statements made for the protection of a common 
interest were held privileged, Knight v. Gibbs, 1 A. & E. 43 (1834), landlord 
made statements to tenant as to inmates of the house occupied by the latter ; 
Wilson V. Robinson, 7 Q. B. 68 (1845), statements by one who had sold his 
interest in a vessel to the other joint owner, as to the plaintiff's conduct 
while managing their joint interests; Hamon v. Falle, L. R. 4 A. C. 247 
(1879), an insurance company wrote to an owner of a vessel refusing to in- 
sure it if the plaintiff was made the captain of the vessel; Wagner v. Scott, * 
164 Mo. 289 (1901), the defendant and the person to whom the statement 
was made jointly employed the plaintiff; Trimble v. Morrish, 1S2 Mich. 624 
(1908), doctor made defamatory statements to a druggist, who by contract 
had the right to fill the doctor's prescriptions, in regard to the druggist's 
clerk; Allen v. Cape Fear, etc., R. Co., 100 N. Car. 397 (1888) ; Warner v. 
Missouri Pacific R. Co., 112 Fed. 114 (1901), statements in regard to con- 
signor of freight, made by one connecting railroad to another ; and see Wie- 
man v. Mabee, 45 Mich. 484 (1881). , 

^ Only so much of the opinion is given as relates to the question as to 
whether the memorial was privileged if sent to a person who had the power 
to remove the plaintiff from his magistracy. 



Io68 HARRISON V. BUSH. 

streets armed with a bludgeon, and ordered him to strike any per- 
son he might meet, indiscriminately ; and that he had himself violent- 
ly struck and kicked several men and women. The memorial alleged 
that the plaintiff ought not to be allowed to remain in her Majesty's 
commission of the peace, and concluded thus: "Yo''r memorialists 
therefore earnestly pray that your Lordships will cause such an 
inquiry to be made into the conduct of the said Dr. Harrison as 
your Lordship may think fit ; and that, on the allegations contained 
in the memorial being duly substantiated and verified, your Lord- 
ship will feel it to be your duty to recommend to her Majesty that 
the said Dr. Harrison be removed from the commission of the 
peace." , 

The learned judge said that, on the authority of Blagg v. Sturt, 
lo Q. B. 899, he should rule that the memorial to the Secretary of 
State was not a privileged communication, but would reserve leave 
to the defendant to move to enter a verdict for him, if the jury 
found bona fides. 

A rule has been obtained to enter a verdict for the defendant ; 
and this, we think, ought to be made absolute. 

During the argument, a legal canon was propounded for our 
guidance by the' plaintiff's counsel; and this we are willing to adopt, 
as we think that it is supported by the principles and authorities 
upon which the doctrine of privileged communications rest. "A 
communication made bona fide upon any subject-matter in which 
the party communicating has an interest, or in reference to which 
he has a duty, is privileged, if made to a person having a correspond- 
ing interest or duty, although it contain criminatory matter which, 
without this privilege, would be slanderous and actionable." In the 
present case, little need be said to show that the communicator had 
both an interest and a duty in the subject-matter of the communi- 
cation. Assuming that Dr. Harrison had misconducted himself as 
a magistrate in the manner alleged, all the electors and inhabitants 
of Frome had suffered a grievance by a magistrate having fomented 
the riot instead of quelling it, and having endangered instead 
of protecting life and property within the borough. They have an 
interest that they may not longer remain subject to the jurisdiction 
of a magistrate who so violates the law. Again, if Dr. Harrison had 
so misconducted himself as a magistrate, he had committed an 
offence ; and it was the duty of those who witnessed it to try by all 
reasonable means in their power that it should be inquired into and 
punished. "Duty," in the proposed canon, cannot be confined to 
legal duties which may be enforced by indictment action, or man- 
damus, but must include moral and social duties of imperfect obliga- 
tion. One mode of proceeding for this offence would have been by 
applying to us for a criminal information, and seeking to have the 
offender punished by fine and imprisonment. But another, which, 
though milder, may be more effectual, is to try by lawful and con- 
stitutional means to have the offender removed from his office, with- 
out calling down upon him the sentence of a criminal court. In this 
land of law and liberty, all who are aggrieved may seek redress ; 



HARRISON V. BUSH. I069 

and the alleged misconduct of any who are clothed with public 
authority may be brought to the notice of those who have the power 
and the duty to inquire into it, and to take steps which may prevent 
the repetition of it.* 

But it was hardly contended that this memorial would not have 
a privileged communication if it had been addressed to a public 
functionary possessing the direct power of removing a magistrate 
from the commission of the peace. 

We think that we are not called upon at present to decide how 
far an honest mistake in seeking redress subjects a person to civil 
or criminal responsibility ; and we give no opinion on the question 
whether action or indictment could be maintained against individuals 
living under the jurisdiction of a county court judge in the county 
palatine of Lancaster, who should bona iide present a criminatory 
memorial against him to the Lord High Chancellor, praying for his 
removal, instead of presenting it to the Chancellor of the Duchy 
of Lancaster, in whom, and in whom alone, the power of removing 
him is vested.^ 

We are of opinion that the defendant fell into no mistake what- 
ever in the course which he adopted, and that, although he might 
have addressed the memorial to the Lord Chancellor, in which case 
it certainly would have been privileged, it is equally privileged being 
addressed to the Secretary of State. Rule absolute.* 

' So complaints of the conduct of an official, made to his superiors, for 
the purpose of obtaining redress or of securing better behavior in the fu- 
ture, are privileged, Woodward v. Lander, 6 C. & P. 548 (1834) ; Corbett v. 
Jackson, 1 U. C. Q. B. 128 (1843) ; Mclntire v. McBean, 13 U. C. Q. B. 534 
(18SS), and so is a petition to a governor to veto a bill. Wood v. Wiman, 
122 N. Y. 445 (1890), a taxpayer's protest against the allowance of fees 
charged by a State's Attorney, Young v. Richardson, 4 111. App. 364 (1879), 
or a petition remonstrating against the granting of a liquor license, Vander- 
see V. McGregor, 12 Wend. 545 (N. Y. 1834) ; Coloney v. Farrow, 5 App. Div. 
(N. Y.) 607 (1896) ; Metsler v. Romine, 9 Pa. Co. Ct. R. 171 (1890) ; Werner 
V. Ascher, 86 Wis. 349 (1893), semble. 

So petitions to the king or parliament, or a secretary of state, for the 
redress of a grievance are held privileged in Fairman v. Ives, 5 B. & Aid. 642 
(1822) ; Rogers v. Spalding, 1 U. C. Q. B. 258 (1843), Reid v. Delorme, 2 
Brev. 76 (S. Car. 1806), petition to legislature complaining of the failure of 
the Attorney-General to institute certain prosecution. 

° Defamatory statements as to the conduct of public officers are not privi- 
leged if made to the public, Werner v. Ascher, supra, or to an official known 
to have no power to investigate the matter and remove or control such offi- 
cers, Logan v. Hodges, 146 N. Car. 38 (1907), and see Callahan v. Ingram, 
122 Mo. 355 (1894). 

Nor are statements of the purely private conduct of a public officer, hav- 
ing no connection with his public duties, Wood v. Boyle, \77 Pa. St. 620 

As to the right of the community to know how their public officers con- 
duct themselves, and so a newspaper's privilege to publish in good faith infor- 
mation thereof honestly and with good cause believed to be true, see 
O'Rourke v. Lewiston Sun, 89 Maine 310 (1896), but mere gossip or rumors 
affords no justification, especially if the defendant refuse or neglect an op- 
portunity offered by the plaintiff to investigate their truth, State v. Ford, 82 
Minn. 452 (1901). 

* Accord: Communications or petitions asking for the removal of a pub- 
lic officer addressed to a person or body having power of removal ; White v. 



I070 COLEMAN V. MAC LENNAN. 

COLEMAN V. MacLENNAN. 
Supreme Court of Kansas, 1908. 78 Kansas Reports, 711. 

BuRCH, J. The moral and social duty of members of a great 
fraternity, or of a great church organization, to inform their brothers 
of the scandalous conduct of a fellow member or one of their 
leaders, is no higher or stronger than that of electors to keep the 
public administration pure by warnings respecting the character 
and conduct of a candidate for office; and if false words are not 
actionable in one case, unless published with actual malice, they are 
privileged to the same extent in the other. Such is the clear declara- 
tion of the court in the case of The State v. Balch, 31 Kans. 465, 
2 Pac. 609. True, that was a criminal case, but the rule of privi- 
lege is the same in both civil and criminal actions. It is the occa- 
sion which gives rise to privilege, and this is unaffected by the char- 
acter of subsequent proceedings in which it may be pleaded. 

In Balch's case, a printed article making grave charges against 
the character of a candidate for county attorney, was circulated 
among the voters of the county previous to the election. In the 
opinion holding the occasion to be privileged the court said : 

"If the supposed libelous article was circulated only among the 
voters of Chase county, and only for the purpose of giving what 
the defendants believed to be truthful information, and only for 
the purpose of enabling such voters to cast their ballots more intel- 
ligently, and the whole thing was done in good faith, we think the 



Nicholls, 3 How. 266 (U. S. 1845) ; Pearce v. Brower, 72 Ga. 243 (1884) ; 
Greenwood v. Cohhey, 26 Nebr. 449 (1889) ; State v. Burnham, 9 N. H. 34 
(1837) ; Frank v. Dessena, 5 N. J. L. Journ. 185 (1882) ; Thorn v. Blanchard, 

5 Johns. 508 (N. Y. 1809) ; Van Wyck v. Aspinwall, 17 N. Y. 190 (1858) ; 
report of a committee of the College of Pharmacy to the Secretary of the 
United States Treasury, complaining of the conduct of an inspector of 
drugs; Bradsher v. Cheek, 109 N. Car. 278 (1891) ; Gray v. Pentland, 2 Serg. 

6 R. 23 (Pa. 1815) ; Kent v. Bongarts, 15 R. I. 72 (188S) ; Hart v. von Gum- 
pach, L. R. 4 P. C. 439 (1872), complaint by a Chinese official to Chinese 
board of conduct of a professor in its employ; or to a committee or officer 
investigating his conduct, Blakeslee v. Carroll, 64 Conn. 223 (1894) ; Beatson 
v. Skene, 5 H. & N. 838 (1860) : Communications, petitions and complaints 
against public school teachers made to school boards, etc., Bodwell v. Os- 
good, 3 Pick. 379 (Mass. 1825) ; Decker v. Gaylord, 35 Hun 584 (N. Y. 1885) ; 
Malone v. Carrico, 16 Ky. L. 155 (1894) : Communications as to character of 
an applicant for office made to persons having power of appointment, Coogler 
v. Rhodes, 38 Fla. 240 (1902) ; Harris v. H-untington, 2 Tyler 129 (Vt. 1802), 
or to an officer investigating the character of the applicant, Posnett v. Mar- 
ble, 62 Vt. 481 (1889), or to a senator, who as such votes upon the confirma- 
tion of the applicant's nomination, Law v. Scott, 5 Har. & J. 438 (Md. 1822). 

Such petitions and communications are qualifiedly, not absolutely, privi- 
leged. Proctor V. Webster, L. R. 16 Q. B. Div. 112 (1885) ; Dickson v. Wil- 
ton, 1 F. & F. 419 (1859), and cases cited above, but see Larkin v. Noonan, 
19 Wis. 82 (1865). In Howard v. Thompson, 21 Wend. 319 (N. Y. 1839), it 
is held that the action for such a complaint while in form for libel is in sub- 
stance for malicious prosecution and plaintiff must show both lack of prob- 
able cause and malice, accord. Cook v. Hill. 3 Sandf. 341 (N. Y. 1849), and 
compare Woods v. Wiman, 122 N. Y. 445 (1890). 



COLEMAN V. MAC LENNAN. IO7I 

article was privileged and the defendants should have been acquitted, 
although the principal matters contained in the article were untrue 
in fact and derogatory to the character of the prosecuting witness. 
* * * Generally, we think, a person may, in good faith, publish what- 
ever he may honestly believe to be true, and essential to the protec- 
tion of his own interests or the interests of the person or persons to 
whom he makes the publication, without committing any public 
offense, although what he publishes may, in fact, not be true and 
may be injurious to the character of others. And we further think 
that every voter is interested in electing to ofBce none but persons 
of good moral character, and such only as are reasonably qualified 
to perform the duties of the office. This applies with great force to 
the election of county attorneys." 

The plaintiff asks that the decisions of this court quoted aoove 
be overruled, and that they be supplanted by one which shall express 
the narrow conception of the law of privilege held by the majority 
of the courts. 

The fact that so many courts of this country, all ot high charac- 
ter, of great learning and ability, and all equally interested in cor- 
rectly solving the problems of free government, differ from us, 
makes us pause ; but a reversal of policy and the overturning of what 
has been so long accepted as settled law would be tantamount, under 
the circumstances, to legislation. Such a step ought not to be 
urged upon the court except for conclusive reasons. What are the 
reasons supporting the majority rule? The decisions most freely 
quoted since it was rendered, in 1893, and chiefly relied upon by the 
plaintiff here, is that of the United States circuit court of appeals 
for the sixth circuit in the case of Post Publishing Company v. Hal- 
lam, 16 U. S. App. 613, 8 C. C. A. 201, 59 Fed. 530. Counsel in the 
case had argued from the duty of newspapers to keep the public in- 
formed concerning, those who are seeking their suffrages and con- 
fidence, and had asked if it were possible that the privilege allowed 
in discussing the character of public servants should be less than that 
which protects defamatory statements made concerning a private 
servant. The opinion states this argument, and then proceeds as 
follows : 

"The existence and extent of privilege in communications is 
determined by balancing the needs and good of_ society with the 
right of an individual to enjoy a good reputation when he has done 
nothing which ought to injure his reputation. The privilege should 
always cease where the sacrifice of the individual right becomes so 
great that the public good to be derived from it is outweighed. 
Where conditional privilege is extended to cover statements of dis- 
graceful facts to a master concerning a servant, or one applying for 
service, the privilege covers a bona fide statement on reasonable 
grounds to the master only, and the injury done to the servant's 
reputation is with the -master only. This is the extent of the sacri- 
fice which the rule compels the servant to suffer in what was thouglit 
to be, when the rule became law, a most important interest of 
society. But if the privilege is to extend to cases like that at bir. 



1072 COLEMAN V. MAC CLENNAN. 

then a man who offers himself as a candidate must submit uncom- 
plainingly to the loss of his reputation, not with one person only, 
or a small class of persons, but with every member of the public 
whenever an untrue charge of disgraceful conduct is made against 
him, if only his accuser honestly believes the charge upon reason- 
able grounds. We think that not only is a sacrifice not required of 
every one who consents to become a candidate for office, but that 
to sanction such a doctrine would do the public more harm than 
good. 

"We are aware that public officers and candidates for public 
office are often corrupt when it is impossible to make legal proof 
thereof, and of course it would be <well if the public could be in- 
formed in such a case of what lies hidden by concealment and per- 
jury from judicial investigation. But the danger that worthy and 
honorable men may be driven from politics and public service by 
allowing too great latitude in attacks upon their character, out- 
weighs any benefit that might occasionally accrue to the public from 
charges of corruption that are true in fact but are incapable of legal 
proof. The freedom of the press is not in danger from the enforce- 
ment of the rule we uphold. No one reading the newspaper of the 
present day can be impressed with the idea that statements of fact 
concerning public men and charges against them are unduly guarded 
or restricted, and yet the rule complained of is the law in England." 
(Page 652.) 

Here the rule by which privilege is to be measured is correctly 
stated, as in Wason v. Walter, L. R. 4 Q. B. (Eng.) 73 — the balance 
of public good against private hurt. The argument of counsel is 
then answered, and the statement is made that a candidate ought 
not suffer a loss in reputation with the whole public for the public 
good. That is the question to be decided, and not a reason why it 
should be so decided. Then the sole reason for the decision is 
stated — that honorable and worthy men will be driven from politics. 
Then the consequences of the decision are commented upon : Free- 
dom of the press will not be endangered — an assertion, as shown by 
the manner in which public men are handled by the press at the 
present time — an appeal to experience for proof. 

The single reason upon which the Hallam decision is based is 
also in the nature of a prediction, and is not new. It was advanced 
in this country in 1808, by Mr. Chief Justice Parsons {Common- 
wealth V. Clap, 4 Mass. 163),^ and by Chancellor Walworth in 1829, 
in the case of King v. Root, 4 Wend. (N. Y.) 114. 

The Hallam case quotes the Supreme Court of Ohio in opposi- 
tion to the liberal doctrine, as follows : 

"We do not think the doctrine either sound or wholesome. In our 
opinion, a person who enters upon a public office, or becomes a can- 
didate for one, no more surrenders to the public his private charac- 
ter than he does his private property. Remedy by due course of law, 
for injury to each, is secured by the same constitutional guaranty. 



But see Commonwealth v. Wardwell, 136 Mass. 164 (1883). 



COLEMAN V. MAC LENNAN. IO73 

and the one is no less inviolate than the other. To hold otherwise 
would, in our judgment, drive reputable men from public positions, 
and fill their place with others having no regard for their reputa- 
tion, and thus defeat the object of the rule contended for and over- 
turn the reason upon which it is sought to sustain it." {The Post 
Publishing Company v. Moloney, 50 Ohio St. yi, 89, 33 N. E. 921.) 
Manifestly a candidate must surrender to public scrutiny and 
discussion so much of his private character a.s affects his fitness for 
office, and the liberal rule requires no more.^ But in measuring the 
extent of a candidate's profert of character it should always be re- 
membered that the people have good authority for believing that 
grapes do not grow on thorns nor figs on thistles. The other argu- 
ments furnished by the Ohio quotation have already been con- 
sidered. The Hallam case contains nothing further worthy of note.** 

° See accord, Cockburn, C. J., in Seymour v. Butterworth, 3 F. & F. 372 
(1862) ; President Robertson in Bruce v. Leisk, 19 Rettie 482 (Scottish Ct. of 
Sess. 1892); Cooley, Constitutional Limitations, 440; Van Vechten Veeder, 
Esq., Freedom of Public Discussion, 23 Harv. L. R. 413 (1910), pp. 429-431, 
compare Commonwealth v. Wardwell, infra. Note 3, and Wood v. Boyle, \77 
Pa. St. 620 (1896) ; Broadhent v. Small, 2 Vict. L. R. Law 121 (1876). 

^Accord: George v. Goddard, 2 F. & F. 689 (1861) ; Wisdom v. Brown, 
1 T. L. R. 412 (1885) ; but see Harwood v. Astley, 1 B. & P. N. R. 47 (1804) ; 
Bruce v. Leisk, 19 Rettie 482 (Scottish Ct. of Sess. 1892) ; Burke v. Mas- 
carich, 81 Cal. 302 (1889), semble; Mott v. Dawson, 46 Iowa 533 (1877) ; 
Bays V. Hunt, 60 Iowa 251 (1882) ; Briggs v. Garrett, 111 Pa. St. 404 (1886) ; 
Ross V. Ward, 14 S. Dak. 240 (1901), all cases of private communications be- 
tween voters as to candidates for office are made at meetings to consider the 
fitness of such candidates; Myers v. Longstaff, 14 S. Dak. 98 (1900) ; Boucher 
V, Clark Publishing Co., 14 S. Dak. 72 (1900) ; Marks v. Baker, 28 Minn. 162 
(1881) ; State v. Ford, 82 Minn. 452 (1901), semble; Express Printing Co. v. 
Copeland, 64 Tex. 354 (1885), but see Forke v. Homann, 14 Tex. Civ. App. 
670 (1896), similar statements published in newspapers. In Sweeney v. 
Baker, 13 W. Va. 158 (1878), a distinction is drawn between allegations of 
mental or physical unfitness for the office, which are said to be absolutely 
privileged and attacks on the candidate's moral character which can only be 
justified by proof of their truth. 

In most of the American cases it is held that the statements must not 
only be published in good faith for the guidance of voters but there must be 
reasonable grounds to believe them true and statements based on mere gossip 
or rumor are not privileged, Burke v. Mascarich, 81 Cal. 302 (1889) ; State v. 
Ford, 82 Minn. 452 (1901), compare Briggs v. Garrett, 111 Pa. St. 404 
(1886), contra. Bays v. Hunt, 60 Iowa 251 (1882). 

Statements made in town meetings by officers thereof or by taxpayers 
in regard to the conduct of the town affairs are privileged, Bradley v. Heath, 
12 Pick. 163 (Mass. 1831) ; Smith v. Higgins, 16 Gray 251 (Mass. 1860) ; 
Bradford v. Clark, 90 Maine 298 (1897), but see Dodds v. Henry, 9 Mass. 
262 (1812).. 

Contra: Jarman v. Rea, 137 Cal. 339 (1902) ; Dauphiny v. Buhne, 153 
Cal. 757 (1908); Jones, Vartium & Co. v. Townsend, 21 Fla. 431 (1885), 
semble; Rearick v. Wilcox, 81 111. 77 (1876) ; Aldrich v. Press Printing Co., 
9 Minn. 133 (1864) ; Bronson v. Bruce, 59 Mich. 467 (1886) ; Wheaton v. 
Beecher, 66 Mich. 307 (1887), where, however, the plaintiflf was publiclv a 
candidate for an appointive office, (see Hunt v. Bennett, 19 N. Y. 173 (1859) ; 
though if the object be to inform the electors, "it must reduce the damages 
to a minimum," Bailey v. Kalamazoo Pub. Co., 40 Mich, 251 (1879) ; but 
see Sherwood, J. in Peoples v. Detroit Post, etc., 54 Mich. 457 (1885) ; 
Smith V. Burrus, 106 Mo. 94 (1891) ; Lewis v. Few, 5 Johns. 1 (N. Y. 1809) ; 
Upton V. Hume, 24 Ore. 420 (1893). In Coffin v. Brown, 94 Md. 190 (1901). 



I074 HEM MENS V. HALSTEAD. 

(c) Communications made for the protection of others. 



1. Where a relation exists making it the maker's duty to protect 

the recipient. 



HEMMENS V. HALSTEAD. 
Court of Appeals State of New York, 1893. 138 New York Appeal Rep. 517. 

Action of slander for statements made by the defendant, who 
was principal of the Institution for Deaf Mutes at Rome (N. Y.), 
that the plaintiff, the superintendent of the sewing department 
whose duty as such was to superintend the making of clothing 
for the children and instructing a class in sewing, was the author of 
an obscene anonymous letter received by the defendant's wife. 
These statements were made to the president of the board of trus- 
tees, in the course of a consultation with him in regard to the matter. 
The trial court directed a verdict for the defendant and entered 
a judgment thereon and denied a motion for a new trial. This ap- 
peal is taken from the judgment of the general term of the Supreme 
Court of the 4th Judicial Department affirming the action of the 
trial court. 

O'Brien, J. The court held that the defense of privilege, con- 
tained in the answer, was established and that there was no question 
for the jury. The General Term has repeatedly reversed judgments 
in the plaintiff's favor (24 Hun, 395 ; 36 Hun, 149 ; 13 State Rep. 
211), and has finally affirmed the judgment entered upon the verdict 

it was held that a letter to a democratic campaign committee criticizing 
the republican candidate for governor because of his appointment of the 
plaintiff, who was accused of election frauds, as election supervisor, was 
not privileged. 

Many courts allow a wide latitude in publishing to the public the 
official misconducts of public officers, O'Rourke v. Lewiston Daily Sun 
Pub. Co., 89 Maine 310 (1896) ; Evening Post v. Richardson, 113 Ky. 641 
(1902) ; Neeb v. Hope, 111 Pa. St. 145 (1885) ; Ferber v. Gazette & Bulletin 
Pub. Co., 212 Pa. St. 367 (1905), or the misconduct of public affairs if 
published for the purpose of inducing citizens to use their influence to 
have the abuse remedied. Palmer v. Concord, 48 N. H. 211 (1868), and see 
Crane v. Waters, 10 Fed. 619 (1882), where Lowell, C. J. held that the 
construction and operation of a railroad, though not the value of its se- 
curities, was of sufficient public interest to warrant the publication of a 
supposed scheme to wreck it: Contra, People v. Fuller, 238 111. 116 (1909) ; 
Foster v. Scripps, 39 Mich. 376 (1878); Benton \. State, 59 N. J. L. 551 
(1896) ; Banner Publishing Co. v. State, 16 Lea 176 (Tenn. 1885) ; Ham- 
ilton V. Eno, 81 N. Y. 116 (1880) ; Ullrich v. New York Press Co., 23 Misc. 
168 (1898 N. Y.) ; Eviston v. Cramer, 57 Wis. 570 (1883). But statements 
as to. an official's private character which might be privileged if made 
while he was a candidate, are not privileged if made after his election. 
Commonwealth v. Wardwell, 136 Mass. 164 (1883). 

See on the whole subject, especially the confusion between "privilege" 
and "fair comment" often noticeable in cases discussing libel on public 
officers and candidates for office. Van Vechten Veeder, Esq., Freedom of 
Public Discussion, 23 Harv. L. R. 413 (1910). 



LEWIS V. CHAPMAN. IO75 

directed against her. There can be no doubt that the occasions upon 
which the defendant is shown to have made the charge were privi- 
leged, the only question being as to its nature and extent. The defend- 
ant occupied an important and responsible office under the authority 
of the state, involving the performance of duties of the most varied 
and delicate nature, upon the proper discharge of which the efficiency 
and welfare of the institution largely depended. It was his duty to 
w^tch and carefully observe the moral conduct, not only of the chil- 
dren committed to his charge, but even in a greater degree, the 
teachers, upon whose influence and example so much, for good or 
evil, depended. It was essential that he should be at liberty to com- 
municate freely with the governing body as to any matter touching 
the conduct of either the teachers or the pupils. This he could not 
do if hampered by fear of penalties that could follow errors of 
judgment or mistakes, as to who was or was not properly chargeable 
with improper conduct. 

If the defendant believed that the plaintifif was the person who 
sent the letter it was his duty to communicate the fact to the execu- 
tive committee and the president, all of whom had a corresponding 
duty with respect to everything that concerned the welfare of the 
institution, and his statements, under such circumstances, were con- 
fidential and privileged until the plaintifif removed the privilege by 
proof, on her part, of actual, or, as it is sometimes called, express 
malice or malice in fact. (Byam v. Collins, iii N. Y. 143 ; Vander- 
see V. McGregor, 12 Wend. 545 ; Van Wyck v. Aspinwall, 17 N. Y. 
190; Washburn v. Cooke, 3 Den. 120; Hemmens v. Nelson, 36 Hun, 
155 ; Moore v. M. N. Bank, supra.y 

Judgment affirmed. 



LEWIS AND HERRICK v. CHAPMAN. 

Court of Appeals of the State of New York, 1857. 16 New York, 369. 

The judge charged the jury that this postscript was libelous, if 
false, and that unless they should find the matter contained in it 



^Accord: Hume v. Marshall, 42 J. P. 136 (Eng. 1877) ; Scarll v. Dixon, 
4 F. & F. 250 (1864) ; Sutton v. Plumridge, 16 L. T. 741 (1867). 

So a railway owes a duty to communicate the reasons for discharging 
an employee to other officials of the same line, Bacon v. Mich. Cent. R. Co., 
66 Mich. 166 (1887) ; Missouri Pacific R. Co. v. Richmond, 73 Tex. 568 
(1889), or to officials of other roads, Missouri Pacific R. Co. v. Richmond, 
semble; Denver Public Warehouse Co. v. Holloway, 34 Colo. 432 (1905), 
communication by one official of a corporation to another directing the 
discharge of an employee; Stace v. Griffith, L. R. 2 P. C. 420 (1869), com- 
manding officer of a regiment at St. Helena reported to the colonial secre- 
tary of the island the supposed drunkenness at a mess dinner of the plain- 
tiff, a master in the government school; Lally v. Emery, S4 Hun 517 (N. Y. 
1889), statements defamatory of the plaintiff made to his commanding officer 
by another officer; Bell v. Parke, 10 Ir. C. L. R. 279 (1860), per Pigot, C. B., 
consultation with brother officers as to propriety of reporting plaintiff to 
the commanding officer; Livingston v. Bradford, 115 Mich. 140 (1897), 
consultation: between cashier and bookkeeper of a bank about the theft of 



1076 LEWIS V. CHAPMAN. 

substantially true they must find for the plaintiff; that, so far as 
malice was necessary to a right of action in this case, it was properly 
inferable, from the falsity of the words charged in the complaint, 
as libelous. The defendant excepted to this portion of the charge, 
and the jury rendered a verdict for the plaintiff for $750. The 
Supreme Court, at general term in the seventh district, denied a 
motion for a new trial, and judgment having been perfected for the 
plaintiffs, the defendant appealed to this court. 

Selden, J. The inquiry, then, is whether the circumstances in 
this case were such as to bring the communication within the class 
termed privileged. 

Where both parties, i. e., the party making as well as the party 
receiving, have an interest in the communication, it has never been 
doubted that it was privileged. Where, however, the interest is con- 
fined solely to the party receiving, the authorities are not so decided. 

But whatever may be the true doctrine on this subject, there is 
no doubt that where the communication is made bona Ude, in an- 
swer to inquiries from one having an interest in the information 
sought, or where the relation between the parties by whom and to 
whom the communication is made is such as to render it reasonable 
and proper that the information should be given, it will be regarded 
as privileged. The precise question here is, whether such a relation 
existed in this case. In Todd v. Hawkins (8 Carr. & Pa., 88), it 
was held that a letter written in good faith by the defendant to his 
mother-in-law, who was about to marry again, warning her of the 
bad character of her intended husband, was privileged; and a like 
decision was made in the case of Cockayne v. Hodgkisson, (5 Carr. 
& Pa., 543), where a tenant of a nobleman had written to inform 
him of his gamekeeper's neglect of duty. So, too, in this state, in 
the case of Washburn v. Cooke (3 Denio, no), a communication 
made by an agent to his principal, in regard to the conduct of a, 
third person connected with the business of the agency, was held to 
be privileged. 

These cases show that all that is necessary to entitle such com- 
munications to be regarded as privileged is, that the relation of the 
parties should be such as to afford reasonable ground for suppos- 
ing an innocent motive for giving the information, and to deprive 
the act of an appearance of officious intermeddling with the affairs 
of others. Assuming, then, that the defendant made the communi- 
cation in perfect good faith, as we must upon this question of privi- 
lege, is it to be regarded as an act of officiousness, on the part of a 
banker in the country, intrusted by a mercantile house in New York 
with the collection of a note, to inform such house of the inability 
of the maker to meet the note at maturity? It would seem that if 
the relation of a son-in-law to his mother-in-law, of a tenant to his 
landlord, and of an ordinary agent to his principal, are sufficient, as 



bank funds, compare Branstetter v. Dorrough, 81 Ind. 527 (1882), where 
statements made in consulting friend, as_ to the propriety of letting the plain- 
tiff know what was being said about him, were held not privileged. 



LEWIS V. CHAPMAN. lOfJJ 

in the cases just cited, to cause the information to be considered as 
privileged, that existing in this case must be equally so. It is a mat- 
ter of the utmost interest to merchants in the city to be able to judge 
of the responsibility of their customers in the country ; and even if 
they have no right to expect information on the subject from those 
whom they employ to collect their paper, yet the giving of such in- 
formation by the person employed, where, as in this case, it relates 
to the very business with which he is intrusted, can scarcely be con- 
sidered as officious, or more than an act of just reciprocity. 

The communication, therefore, charged in this case as libelous, 
must be regarded as privileged. The defendant is nevertheless 
liable if there was any want of good faith in making it ; but that 
question must be passed upon by the jury, and there must be a new 
trial for that purpose.^ 

^ So, though no htigation is actually going on, a solicitor may give his 
client any information of apparent value to him, Browne v. Dunne, The Re- 
ports, Vol. 6, p. 67 (H. L. 1893) ; Davis v. Reeves, S Ir. C. L. 79 (1855). 
and may inform the next friend of his minor client of the latter's conduct 
prejudicial to his interests in the litigation, Wright v. Woodgate, 2 C. M. & 
R. 573 (1835). So a physician may discuss with a patient the professional 
character of the druggist who puts up his prescriptions, Cameron v. Cock- 
ran, 2 Marv. 166 (Del. 1895), see Humphreys v. Stilwell, 2 F. & F. 590 
(1861), and may state his professional opinion as to his patient's condition 
to her, even in the presence of her friends asked by her to be present, 
Brice v. Curtis, 38 D. C. App. 304 (1912), though of course he is not priv- 
ileged to discuss his patients' ailments with others. 

So when the plaintiff is in the employment of thei defendant or is per- 
forming a contract with him, he may give information to the plaintiff's 
surety, as to any conduct of the plaintiff prejudicial to the surety's interest 
as such, Dunman v. Bigg, 1 Camb. 269 note (1808) ; Sunley v. Metropolitan 
Life Ins. Co.. 132 Iowa 123 (1906) ; and see Ward v. Ward, 4,7 W. Va. 766 
(1900), statements by surety to creditor, and Rothholg v. Dunkle, S3 N. J. 
L. 438 (1891). In Schulze v. Jalonick, 18 Tex. Civ. App. 296 (1898), an 
insurance agent made ratings of all the property in the neighborhood for the 
information of his companies, in them he discredited the plaintiff's prem- 
ises, which were not insured, as being used for the illegal sale of liquor, 
the transmissions of these ratings to his principals was held privileged. 

Where the defendant, who has given the plaintiff a letter of recom- 
mendation, or otherwise so acted as to hold him out as trustworthy, hon- 
estly believes that he had discovered facts which make such recommenda- 
tion misleading, it is held to be his moral duty and legal right to communi- 
cate to any one who has employed or trusted the plaintiff in reliance on it, 
Dixon V. Parsons, 1 F. & F. 24 (1858); Fowles v. Bovoen, 30 N. Y. 20 
(1864) ; Butterworth v. Conrow, 1 Marv. 361 (Del. 1895), and see Fahr v. 
Hayes, SO N. J. L. 275 (1888). 

An employer is in duty bound to tell a servant the reason for his dis- 
charge, Taylor v. Hawkins, 16 Q. B. 308 (1851) ; R. v. Perry, IS Cox C. C. 
169 (1883); and if the offense was believed to have been committed by 
two jointly, he may tell each of it, though it necessarily involves the other, 
Manby v. Witt, Eastmead v. Witt, 18 C. B. 544 (1856), but see Moore v. 
Manufacturers Nafl. Bank, 123 N. Y. 420 (1890), contra, O'Brien, J., dis- 
senting. 

An employer of minor or female servants owes their parents, or those 
standing to them in loco parentis, the duty of acquainting them with such 
servant's misconduct, whether it leads to dismissal or not, James v. Jolly, 
cited in Odger's Libel and Slander, 4th ed., p. 286; Aherdein v. Macleay, 
9 Times L. R. 539 (1893) ; Gorst v. Barr, 13 Ont. 644 (1887) ; Livingston v. 
Bradford, 115 Mich. 140 (1897) ;> but not it seems to inform a wife of the 



1078 MAC INTOSH V. DUN. 



MACINTOSH V. DUN. 

Judicial Committee of the Privy Council, House of Lords, 1908. 
1908 Law Reports, Appeal Cases, 390. 

Lord Macnaghten. This is an appeal from the decision of 
the High Court of Australia pronounced on cross-appeals from two 
orders of the Full Court of New South Wales. 

The action was an action for libel. It was tried before Cohen 
J. and a jury. The plaintiffs obtained a verdict for £800. The Full 
Court set the verdict aside, but directed a new trial. The High 
Court entered Judgment for the defei^dants. 

The question, and the only question on the present appeal, is 
whether the occasion on which the libels were published was or was 
not a privileged occasion. 

The plaintiffs are wholesale and retail ironmongers in Sydney. 
The defendants (as their acting manager in Sydney stated in an 
affidavit filed in the action) carry on the business of a trade pro- 
tective society "in almost all parts of the civilized world" under the 
name of "The Mercantile Agency." That business, as the acting 
manager explained, "consists in obtaining information with refer- 
ence to the commercial standing and position of persons" in the 
State of New South Wales "and elsewhere and in communicating 
such information confidentially to subscribers to the agency in re- 
sponse to specific and confidential inquiry on their part."^ 

(He then quotes the oft-quoted passage from the opinion of 
Parke, B., in Toogood v. Spyring, i C. M. & R. 181, at p. 193.^) 

That passage, which, as Lindley L. J. observes,^ is frequently 
cited, and "always with approval," not only defines the occasion that 
protects a communication otherwise actionable, but enunciates the 

cause of her husband's dismissal from his employment. Jones v. Williams, 
1 Times L. R. 572 (1885), but compare Wells v. Lindop, IS Ont. App. 695 
(1888). 

''He stated further that all requests for information directed to the 
agency by their subscribers are in the following form : 
"Subscriber's Ticket. 
"The Mercantile Agency. 
"R. G. Dun and Co. 
"Established 1841. 
"Give us in confidence and for our exclusive use and benefit in our busi- 
ness, viz., that of aiding us to determine the propriety of giving credit, what- 
ever information you have, respecting the standing, responsibility, etc., of — 

"Name 

"Business 

"Town , 

"Street Address 

"State 

"Subscribers to sign the above themselves. 

"Sydney, "Subscriber, 

"190.. per 

"No " 

' This passage is quoted in the opinion in Gilbert v. Gassett, ante. 
'Stuart V. Bell, L. R. 1891, 2 Q. B. 341, p. 346. 



MAC INTOSH V.' DUN. IO79 

principle on which the protection is founded. The underlying prin- 
ciple is "the common convenience and welfare of society" — not the 
convenience of individuals or the convenience of a class, but, to use 
the words of Erie C. J. in Whiteley v. Adams, 15 C. B. (N. S.) 392, 
at p. 418, "the general interest of society."* 

Communications injurious to the character of another may be 
made in answer to inquiry or may be volunteered. If the communi- 
cation be made in the legitimate defence of a person's own interest, 
or plainly under a sense of duty such as would be "recognized by 
English people of ordinary intelligence and moral principle" to bor- 
row again the language of Lindley L. J.," it cannot matter whether 
it is volunteered or brought out in answer to an inquiry. But in 
cases which are near the line, and in cases which may give rise to 
a difference of opinion, the circumstance that the information is 
volunteered is an element for consideration certainly riot without 
some importance. 

If in defence, therefore, to the views of the learned judges of 
the High Court, the first question would seem to be, under which 
category does the communication now in question properly fall? 
No doubt there was a specific request. In response to that request 
the communication was made. That much is clear. But it is equally 
clear that the defendants set themselves in motion and formulated 
and invited the request in answer to which the information com- 
plained of was produced. The defendants, in fact, hold themselves 
out as collectors of information about other people which they are 
ready to sell to their customers. It cannot matter whether the cus- 
tomer deals across the counter, so to speak, just as and when the 
occasion arises, or whether he enjoys the privilege of being enrolled 
as a subscriber and pays the fee in advance. 

If, then, the proprietors of the Mercantile Agency are to be 
regarded as volunteers in supplying the information which they pro- 
fess to have at their disposal, what is their motive? Is it a sense 
of duty? Certainly not. It is a matter of business with them. 
Their motive is self-interest. They carry on their trade, just as 
other traders do, in the hope and expectation of making a profit. 

Then comes the real question ; Is it in the interest of the com- 
munity, is it for the welfare of society, that the protection which 
the law throws around communications made in legitimate self- 
defence, or from a bona fide sense of duty, should be extended to 



*In Elkington v. London Association for the Protection of Trade, 28 T. 
L. R. 117 (1911), Darling, J., understanding this to mean that the information 
mtist be "published for the benefit of society at large" and not for the benefit 
or convenience of individuals or "a limited class," held that an association of 
traders issuing a report for the information of its members and not for profit, 
were not privileged to pubhsh therein imputations on the solvency of custom- 
ers, accord, Lord Alverstone, C. J., in Greenlands v. Wilmhurst, 29 L. T. R. 
64 (1912), affirmed in the Court of Appeals, L. R. 1913, 3 K. B. 507, Bray, J., 
dissenting; contra, Barr v. Musselburgh Merchant^ Association, 1912 Session 
Cases 174 (Scotland Ct. of Sessions), and Howe v. Lees, 11 Commonwealth 
L. R. 361 (Australia 1910). 

"L. R. 1891, 2 Q, B., p. 350 



I080 MAC INTOSH V. DUN. 

communications made from motives of self-interest by persons who 
trade for profit in the characters of other people? The trade is a 
peculiar one ; still there seems to be much competition for it ; and in 
this trade, as in most others, success will attend the exertions of 
those who give the best value for money and probe most thoroughly 
the matter placed in their hands. There is no reason to suppose 
that the defendants generally have acted otherwise than cautiously 
and discreetly. But information such as that which they offer for 
sale may be obtained in many ways, not all of them deserving of 
commendation. It may be extorted from the person whose charac- 
ter is in question through fear of misrepresentation or misconstruc- 
tion if he remains silent. It may be gathered from gossip. It may 
be picked up from discharged servants. It may be betrayed by dis- 
loyal employees. It is only right that those who engage in such a 
business, touching so closely very dangerous ground, should take 
the consequences if they overstep the law. 

However convenient it may be to a trader to know all the se- 
crets of his neighbor's position, his "standing," his "responsibility," 
and whatever else may be comprehended under the expression "et 
cetera," yet, even so, accuracy of information may be bought too 
dearly — at least for the good of society in general. 

It is admitted that in this country there is no authority directly 
in point. There are direct authorities in the United States in favor 
of the conclusion of which the High Court has arrived. American 
authorities are, no doubt, entitled to the highest respect. But this is 
a question which must be decided by English law. In the dearth 
of English authority it seems to their Lordships that recourse must 
be had to the principle on which the law in England on this subject 
is founded. With the utmost deference to the learned judges of 
the High Court, their Lordships are of opinion that the decision 
tmder appeal is not in accordance with that principle.' 



'Accord: Johnson v. Bradstreet Co., 77 Ga. 172 (1886), "If one makes it 
his business to pry into the affairs of another, in order to coin money for his 
investigations and information, he must see to it that he communicate nothing 
that is false"; and see Beardsley v. Tappan, 5 Blatchf. 497 (U. S. 1867), con- 
fining the privilege of making such communication to individuals, and denying 
it to a society, association, or a corporation. 

Contra: Erber v. Dun, 4 McCrary (U. S.) 160, 12 Fed. 526 (1882) ; Pol- 
lasky v. Minchener, 81 Mich. 280 (1890) ; King v. Patterson, 49 N. J. L. 417 
(1887) ; Ormsby v. Douglas, 57 N. Y. 477 (1868) ; Commonwealth y. Stacey, 
8 Phila. 617 (Pa. 1871) ; Bradstreet Co. v. Gill, 72 Tex. 115 (1888) ; State ex 
rel. Lanning v. Lonsdale. 48 Wis. 348 (1880) ; Todd v. Dun, 15 Ont. App. 85 
(1887) ; Fitzsimons v. Duncan, Kemp & Co., L. R. 1908, 2 Ir. 483 {semble). 
The same privilege attaches to the communications by the correspondents of 
such agencies to them of information from which their reports are made up, 
State ex rel. Lanning v. Lonsdale, supra; contra, Sherwood v. Gilbert, 2 Alb. 
L. J. 323 (N. Y. 1870). See on the whole subject the learned and exhaustive 
essay of Hon. Jeremiah Smith, 14 Col. L. R. 187-296 (1913) and note in 57 
U. of Pa. L. Rev. 179. 



RUDE V. NASS. I081 

2. Where no relation exists making it peculiarly the duty of the 
maker to protect the recipient's interests. 



(a) Communication made in answer to inquiries. 



RUDE V. NASS. 

Supreme Court of Wisconsin, 1891. 79 Wisconsin Reports, 321. 

The father of a girl, who had caused the plaintiff's arrest for 
her seduction, requested a friend to write to the defendant, pastor 
of a church with which the plaintiff had previously been connected. 
The defendant in answer, wrote the letter in question, which was 
admittedly libelous. 

Cassoday, J. Counsel contend, in effect, that, assuming, as we 
must, upon the verdict, that the defendant wrote and sent the letter 
believing it to be true, in good faith, and without mahce, yet the 
circumstances were not such as to make it privileged. They contend 
that, in order to be privileged, the defendant should have had an 
interest in the subject-matter of the letter, or some duty to perform 
in reference thereto, and also that the person to whom it was ad- 
dressed should have had a corresponding interest or duty ; and they 
cite decisions of learned courts in support of such contention. Some 
of these decisions, however, are inconsistent with others made by 
the same courts. 

In Noonan v. Orton, 32 Wis 112, Dixon, C. J., approvingly 
quotes the language of Shaw, C. J., as follows : "Where words im- 
puting misconduct to another are spoken by one having a duty to 
perform, and the words are spoken in good faith, and in the belief 
that it comes within the discharge of that duty, or where they are 
spoken in good faith to those who have an interest in the commu- 
nication, and a right to know and act upon the facts stated, no pre- 
sumption of malice arises from the speaking of the words, and 
therefore no action can be maintained in such cases without proof 
of express malice." Bradley v. Heath, 12 Pick. 164. These cases 
were cited approvingly in M. P. Ry. Co. v. Richmond, 73 Tex. 575. 
This alternative statement only makes it necessary that there be 
an interest or duty on the part of the person making the com- 
munication, or on the part of the person to whom it is made, in 
order that it is to be conditionally privileged. There are certainly 
many cases holding that such communication may be conditionally 
privileged if made to one having an interest in and a right to know 
and act upon the facts therein stated. Weatherston v. Hawkins, i 
Term. Rep. no; Twogood v. Spyring, i Cromp. M. & R. 181 ; Kine 
V. Sewell, 3 Mees. & W. 297; Rohshaw v. Smith, 38 Law T. (N. S.) 
423; Waller v. Lock, 45 Law T. (N. S.) 242; Tompson V. Dash- 
wooa, L. R. 1 1 Q. B. Div. 43 ; At-will v. Mackintosh, 120 Mass. 177 ; 



I082 RUDE V. NASS. 

Sunderlin v. Bradstreet, 46 N. Y. 191 ; Bacon v. M. C. R. Co., 66 
Mich. 166. 

Thus in Robshaw V. Smith, supra, it was said by Grove, J., 
speaking for the court : "The defendant did not act as a volunteer, 
but was applied to for information. When applied to, he did give 
such information as he possessed. He might have refused to give 
that information. He had no legal duty cast upon him to give any 
opinion. But he was entitled to give his opinion when asked, and, 
a fortiori, as it seems to me, to show any letters he had received 
bearing on the subject. . . . Every one owes it as a duty to his 
fellow-men to state what he knows about a person, when inquiry is 
made; otherwise no one would be afele to discern honest men from 
dishonest men. It is highly desirable, therefore, that a privilege of 
this sort should be maintained." Lindley, J., was of the same opin- 
ion, and said: "I think it would be a lamentable state of the law, 
if, when a person asks another for information, that other could 
not give such information as he possessed without exposing himself 
to the risk of an action." Upon a review of the authorities, that 
case and these expressions were fully sanctioned by Jessel, M. R., 
in Waller v. Lock, supra, who went still further, and said : "If the 
answer is given in the discharge of a moral and social duty, or if the 
person who gives it believes it to be so,^ that is enough. It need 
not even be an answer to an inquiry, but the communication may be 
a voluntary one. The law is concisely stated by Lord Blackburn. 
. . . thus : 'Where a person is so situated that it becomes right in 
the interests of society that he should tell to a third person facts, 
then, if he bona fide and without malice does tell them, it is a privi- 
leged communication.' It appears to me, that if you ask a question 
of a person whom you believe to have the means of knowledge about 
the character of another person with whom you wish to have any 
dealings whatever, and he answers bona Ude, that is a privileged 
communication. I might illustrate this by the instances of inquiries 
being made of a friend or a neighbor about a tradesman, a doctor, 
or a solicitor. Society could not go on without such inquiries. The 
whole doctrine of privilege must rest upon the interest and the 
necessities of society. If every one was open to an action of libel 
or slander for the answers he might make to such inquiries, it would 
be very injurious to the interests of society." The eminence of that 
late learned master of the rolls, who thus expressed the opinion of 
the court, and the confusion among some of the adjudications, seem 
to justify the lengthy quotation made. 

In view of these authorities, and others which might be cited, 
it seems to us that the father of the girl who made the complaint 
upon which the plaintiff had been arrested had an interest in the 
communication sent by the defendant, and had the right to know 
and act upon the facts therein stated ; and hence, had the letter been 
written by the defendant in answer to inquiries made by the father 



* As to this see Lindley, L. J. in Stuart v. Bell, 1891, L. R. 2 Q. B. 341, 
p. 349, contra. 



BYAM V. COLLINS. IO83 

personally, it would have been conditionally privileged. The mere 
fact that the letter was written by the defendant in answer to in- 
quiries made by another for and in behalf of the father does not 
take away the privileged character of the communication. This is 
manifest from some of the authorities cited. We must hold that 
there was no error in submitting the case to the jury on the theory 
that the communication was conditionally privileged.^ 



BYAM V. COLLINS. 
Court of Appeals State of New York, 1888. Ill New York, 143. 

Earl, J. There was, also, error in the court below as to the 
verbal slanders alleged in the second cause of action; and what I 
have already said applies, in part, to these slanders. 

'Accord: Defamatory statements made in answer to inquiries, as to 
the character of a servant or employee, made by one to whom the latter 
has applied for employment, Edmondson v. Stephenson, Buller, N. P. 8 
(176S); Wabash R. Co. v. Young, \6Z Ind. 102 (1904); Posnett v. MarUe, 
62 Vt. 481 (1889) ; or made by one servant of another in answer to his 
mistress' questions. Mead v. Hughes, 7 Times L. R. 291 (1891), or by third 
parties, Cockayne v. Hodgkisson, 5 C. & P. 543 (18^), or made to landlord 
in answer to his inquiries as to the character of his tenants, Liddle v. 
Hodges, IS N. Y. Super. Ct. (2 Bosw.) 537 '(1858), or by a physician report- 
ing to a husband his belief that the latter's wife is insane, Weldon, v. 
Winslow, London Times, March 14 to 19 (1884), or statements as to char- 
acter of a girl's fiance made in answer to the inquiries by her family. 
Buisson V. Huard, 106 La. 768 (1901), or statements as to the character of 
a minor child made in answer to its parents' inquiry. Long v. Peters, 47 
Iowa 239 (1877), are privileged. 

So one is privileged to answer questions put by another in the course 
of his investigation of a crime actually or honestly believed to exist, per 
Parke B., Kine v. Sewell,_2> M. & W. 297 (1838), p. 302. 

So when a man on being asked for his reason for refusing to sign the 
plaintiff's petition to retain his position as trustee of a charity, on being 
pressed gave them, his answer was held in Cowles v. Potts, 34 L. J. Q. B. 247 
(1865) to be privileged, compare Whiteley v. Adams, 15 C. B.- (N. S.) 392 
(1863). 

So replies to inquiries as to the solvency or respectability of a person 
with whom the inquirer has or is about to have business or professional 
dealings, Lord Denman in Storey v. Challands, 8 C. Se P. 234 (1837) ; 
Bromage v. Prosser, 1 C. & P. 475 (1824) ; Robshaw v. Smith, cited in the 
principal case, in which even the showing of an anonymous letter was held 
privileged; Fahr v. Hayes, SO N. J. L. 275 (1888) ; Howland v. Blake Mfg. 
Co., 156 Mass. 543 (1892). For other cases, see Odgers, Libel and Slander, 
4th Ed., pp. 238 to 242. 

One specifically employed to obtain information is privileged to state 
the facts he believes he has discovered, Atwill v. Mackintosh, 120 Mass. 177 
(1876), agent employed by a father to obtain information as to the char- 
acter of his daughter's suitor; Zuckerman v. Sonnenschein, 62 111. 115 (1871), 
interpreter translating slanderous words; Washburn v. Cooke, 3 Denio 110 
(N. Y. 1846), law student employed by sheriff to ascertain facts' and advise 
him what course to take; Taylor v. Church, 8 N. Y. 452 (1853), agent em- 
ployed by association of merchants to ascertain the credit of their cus- 
tomers, see Mcintosh v. Dun, post. But the statement must be responsive 
to the inquiry, Southam v. Allen, T. Raym. 231 (1673), Huntlev v. Ward, 
6 C. B. (N. S.) 514 (1859) ; Odger's Libel and Slander, 4th Ed.," 239. 



1084 BYAM V. COLLINS. 

The judge charged the jury, in substance, that the words, if 
uttered under the circumstances testified to by Mrs. ColHns, were 
privileged. She testified, in substance, that she uttered the words 
to ]\Ir. Cameron in confidence, after the most urgent solicitation on 
his part that she should tell him what she knew about the plaintiff. 
But defamatory words do not become privileged merely because 
uttered in the strictest confidence by one friend to another, nor be- 
cause uttered upon the most urgent solicitation. She was under no 
duty to utter them to him, and' she had no interest to subserve by 
uttering them. He had no interest or duty to hear the defamatory 
words, and had no right to demand that he might hear them ; and 
under such circumstances there is no authority holding that any 
privilege attaches to such communicafion.^ 

There was no evidence that would authorize a jury to find that 
Cameron sought the interview with Mrs. Collins, as an emissary 
from or agent of the plaintiff, or that at the plaintiff's solicitation 
or instigation he obtained the slanderous communications from her, 
and he did not profess or assume to act for him on that occasion. 
He was the mutual friend of the parties,^ and seems to have sought 



'^Accord: Carpenter v. Willey, 65 Vt. 168 (1892), a former pastor has 
no legitimate interest in, nor right to inquire into the chastity of a female 
member of his former congregation, so statements concerning her chastity are 
not privileged though made in answer to his pressing inquiries. So. when 
the occasion for information is passed, so that the recipient's interest, or 
the common interest of both giver and recipient therein no longer exists, 
the information can neither be given upon inquiry, Martin v. Strong. 5 A. & 
E. 535 (1836), as explained in Kine v. Sewell, 3. M. & W. 297 (1838), pp. 
3t\3 and 314; Ritchie, v. Widdemer, 59 N. J. L. 290 (1896)— but compare 
Kersting v. White, 107 Mo. App. 265 (1904), where the defamatory remarks 
were volunteered in discussing what had taken place at a church meeting 
where charges against the plaintiff had been considered and dismissed — -nor 
volunteered. Brooks v. Blanshard, 1 Cr. & M. 779 (1833), one stockholder 
discussed with another the character of an applicant for a position in the 
service of th^ corporation, which had already been filled; Goslett v. Gar- 
ment, 13 Times L. R. .391 (1897), defendant informed a headmaster that 
the plaintiff, formerly a teacher in his school, had been seen drunk in the 
street on a Sunday while he was a teacher in the school. 

So while a director may in the board of directors state his belief that 
a customer of a corporation is insolvent or perhaps may do so in discussing 
the business affairs of the corporation, he may not gossip with a fellow- 
director in regard to the solvency of a mutual acquaintance, Sewall v. Cat- 
lin, 3 Wend. 291 (N. Y. 1829). 

' Mere benevolent interest in the person, who is the subject of the 
statements is not enough. The Norfolk & Washington Steamboat Co. v. 
Davis, 12 D. C. App. 306 (1898), a statement affecting the plaintiff's char- 
acter held not privileged because made to a man who had taken an interest 
in the plaintiff's career and had' recommended him for the position he then 
held; compare Farquhar v. Neish, 17 Sc. Sess. CaseS, 4th Ser. 716 (1890), 
where a similar statement made to a registry office, through which the de- 
fendant had engaged the plaintiff as a servant, was held privileged. 

Nor does mere joint membership in a religious organization, social or 
business association, give the members an interest in the characters of their 
associates which makes a discussion thereof privileged, York v. Johnson, 
116 Mass. 482 (1875) ; Love joy v. Whitcomb, 174 Mass. 586 (1899) ; as to 
the right to discuss within the family circle matters which, since they 
touch the social, moral or business interests of one are of intei;est to all. 



COXHEAD V. RICHARDS. IO85 

the interview with her either to gratify his curiosity, or to prevent 
the impending Htigation between the parties. But even if he ob- 
tained the interview with her at the solicitation of the plaintiff, and 
as his friend, she could not claim that her slanderous words uttered 
at such interview were privileged.'' 

The trial judge, therefore, erred in refusing to charge the jury 
that there was no question for them as to the second cause of action 
but one of damages. 

(b) Communication volunteered by the maker. 



COXHEAD V. RICHARDS. 
Court of Common Pleas, 1846. 2 Common Bench Reports, 568. 

TiNDAL, C. J. This was an action upon the case for the publi- 
cation of a false and malicious libel, in the form of a letter written 
by one John Cass, the first mate of a ship called The England, to 
the defendant ; the letter stating that the plaintiff, who was the cap- 
tain of the ship, and then in command of her, had been in a state 
of constant drunkenness during the part of a voyage, whereby the 
ship and crew had been exposed to continual danger: and the pub- 
lication by the defendant was the communication by him of this 
letter to the owner of the ship, by reason whereof. — which was the 
special damage alleged in the declaration — ^the plaintiff was dis- 
missed from the ship and lost his employment.^ 

The defendant pleaded not guilty. 

A verdict was found for the defendant upon the first issue. 

I told the jury at the trial, that the occasion and circumstances 
under which the communication of this letter took place, were such, 
as in my opinion, to furnish a legal excuse for making the com- 
munication ; and that the inference of malice, — which the law, prima 
facie, draws from the bare act of publishing any statements false in 
fact, containing matter to the reproach and prejudice of another, — 
was thereby rebutted; and that the plaintiff, to entitle himself to a 
verdict, must show malice in fact : concluding by telling them that 
they should find their verdict for the defendant, if they thought 
the communication was strictly honest on his part, and made solely 
in the execution of what he believed to be a duty; but, for the 
plaintiff, if they thought the communication was made from any 
indirect motive whatever, or from any malice against the plaintiff. 
And the only question now before us, is, whether, upon the evi- 
dence given at the trial, such direction was right. 

There was no evidence whatever that the defendant was actu- 
ated by any sinister motive in communicating the letter to Mr. 

see McBride v. Ledoux, and Campbell v. Bannster, cited in Note 2 to Krebs 
V. Oliver, post. 

^ See Richardson v. Gunby, ante. 

^ The other pleas were 2nd, that the charge was true, and 3rd, that the 
plaintiff was not discharged in consequence of the letter — on both issues 
the verdict was found for the defendant. 



I086 COXHEAD V. RICHARDS. 

Ward, the ship-owner : on the contrary, all the evidence went to 
prove that what he did, 'he did under the full belief that he was per- 
forming a duty, however mistaken he might be as to the existence 
of such duty, or in his mode of performing it. The writer of the 
letter was no stranger to the defendant : on the contrary, both were 
proved to have been on terms of friendship with each other for 
some years ; and, from the tenor of the letter itself, it must be in- 
ferred the defendant was a person upon whose judgment the writer 
of the letter placed great reliance, .the letter itself being written for 
the professed purpose of obtaining his advice how to act under a 
very pressing difficulty. The letter was framed in very artful terms, 
such as were calculated to induce thg most wary and prudent man 
(knowing the writer) to place reliance on the truth of its details : 
and there can be no doubt but that the defendant did in fact thor- 
oughly believe the contents to be true, amongst other things, that 
the ship, of which Mr. Ward was the owner, and the crew and cargo 
on board the same, had been exposed to very imminent risk, by the 
continued intoxication of the captain, on the voyage from the 
French coast to Llanelly, where the ship then was, and that the 
voyage to the Eastern Seas, for which the ship was chartered, would 
be continually exposed to the same hazard, if the vessel should con- 
tinue under his command. In this state of facts, after the letter had 
been a few days in his hands, the defendant considered it to be his 
duty to communicate its contents to Mr. Ward, whose interests were 
so nearly concerned in the information ; not communicating it to the 
public, but to Mr. Ward ; and not accompanying such disclosure with 
any directions or advice, but merely putting him in possession of the 
facts stated in the letter, that he might be in a condition to investi- 
gate the truth, and take such steps as prudence and justice to the 
parties concerned required : in making which disclosure he did not 
act hastily or unadvisedly, but consulted two persons well qualified 
to give good advice on such an emergency — ^the one, an Elder 
Brother of the Trinity House — the other, one of the most eminent 
ship-owners in London: in conformity with whose advice he gave 
up the letter to the owner of the ship. At the same time, if the 
defendant took a course which was not justifiable in point of law, 
although it proceeded from an error in judgment only, not of inten- 
tion, still it is undoubtedly he, and not the plaintiff, who must suffer 
for such error. 

The only question is, whether the case does or does not fall 
within the principle, well recognized and established in the law, re- 
lating to privileged or confidential communications ; and, in deter- 
mining this question, two points may, as I conceive, be considered 
as settled — first, that if the defendant had had any personal interest 
in the subject-matter to which the letter related, as, if he had been 
a part-owner of the ship, or an underwriter on the ship, or had had 
any property on board, the communication of such letter to Mr. 
Ward would have fallen clearly within the rule relating to excusable 
publications — and, secondly, that if the danger disclosed by the 
letter, either to the ship or the cargo, or the ship's company, had 



COXHEAD V. RICHARDS. .IO87 

been so immediate as that the disclosure to the shipowner was nec- 
essary to avert such danger, then, upon the ground of social duty, 
by which every man is bound to his neighbor, the defendant would 
have been not only justified in making the disclosure but would have 
been hound to make it. A man who received a letter informing him 
that his neighbor's house would be plundered or burnt on the night 
following by A. and B., and which he himself believed, and had 
reason to believe to be true, would be justified in showing that letter 
to the owner of the house, though it should turn out to be a false 
accusation of A. and B. The question before us appears, therefore, 
to be narrowed to the consideration of the facts which bear upon 
these two particular qualifications and restrictions of the general 
principle. 

As to the first, I do not find the rule of law is so narrowed and 
restricted by any authority, that a person having information ma- 
terially affecting the interests of another, and honestly communi- 
cating it, in the full belief, and with reasonable grounds for the 
belief that it is true, will not be excused, though he has no personal 
interest in the subject-matter. Such a restriction would surely oper- 
ate as a great restraint upon the performance of the various social 
duties by which men are bound to each other, and by which society 
is kept up. 

The rule appears to have oeen correctly laid down by the Court 
of Exchequer,^ that, "if fairly warranted by any reasonable occa- 
sion of exigency, and honestly made, such communications are pro- 
tected, for the common convenience and welfare of society ; and the 
law has not restricted the right to make them, within any narrow 
limits." In the present case, the defendant stood in a different 
situation from any other person; he was the only person in the 
world who had received the letter, or was acquainted with the in- 
formation contained in it. He cannot, therefore, properly be treated 
as a complete stranger to the subject-matter of inquiry,^ even if the 
rule excluded strangers from the privilege. 

Upon the second ground of qualification — was the danger suf- 
ficiently imminent to justify the communication — it is true, that the 
letter, which came to the defendant's hands about the 14th of De- 
cember, contains within it the information that the ship cannot get 
out of harbor before the end of the month. It was urged that 
the defendant, instead of communicating the letter to the owner, 
might have instituted some inquiry himself. But it is to be observed 
that every day the ship remained under the command of such a per- 
son as the plaintiff was described to be, the ship and crew continued 
exposed to hazard, though not so great hazard as when at sea; not 
to mention the immediate injury to the ship-owner which must nec- 



= In Toogood v. Spyring, 1 C M. & R. 181. 

^The reporter appends this note, "He did not cease to be a stranger in 
point of interest, by ceasing to be a stranger in point of knowledge," he 
then says, "Quaere, whether the defendant would have once more become 
a stranger to the subject matter of enquiry upon ceasing to be the sole 
depositary of the information?" 



I088 COXHEAD V. RICHARDS. 

essarily follow from want of discipline of the. crew, and the bad 
example of such a master. And, after all, it would be too much to 
say, that, even if the thing had been practicable, any duty was cast' 
upon the defendant, to lay out his time or money in the investi- 
gation of the charge. 

Upon the consideration of the case, I think it was the duty of 
the defendant not to keep the knowledge he gained by this letter 
himself, and thereby make himself responsible, in conscience, if his 
neglect of the warnings of the letter brought destruction upon the 
ship or crew — that a prudent and reasonable man would have done 
the same; that the disclosure was made, not publicly, but privately 
to the owner, that is, to the person, who of all the world wasi the 
best qualified, both from his interest in^he subject-matter, and his 
knowledge of his own officers, to form the most just conclusion 
as to its truth, and to adopt the most proper and effective measures 
to avert the danger; after which disclosure, not the defendant, but 
the owner, became liable to the plaintiff, if the owner took steps 
which were not justifiable ; as, by unjustly dismissing him from his 
employment, if the letter was untrue. And, as all this was done 
with entire honesty of purpose, and in the full belief of the truth 
of the information, — and that, a reasonable belief, — I am still of the 
same opinion which I entertained at the trial, that this case ranges 
itself within the pale of privileged communication, and that the ac- 
tion is not maintainable. 

I therefore think the rule for setting aside the verdict and for 
a new trial, should be discharged.* 

*The opinions of Tindal, C. J. and Erie, J. have been expressly ap- 
proved by Willes, J. in Amann v. Damm, 8 C. B. (N. S.) 597 (1860), where, 
however, the defendant had a personal interest to protect, and Lindley, C. J., in 
Stuart v. Sell, L. R. 1891, 2 Q. B. 341, p. 347, and in many later English cases 
statements volunteered by one having no personal interest at stake and 
standing in no family or other relation raising any exceptional duty to the 
recipient and made wholly to protect the latter's interests hjive been held 
privileged, Dixon v. Smith, 26 L. J. Ex. 125 (1860), p. 126, one Dawes 
having told the defendant that he intended to engage the plaintiff to attend 
his wife's confinement, the defendant advised him not to do so, on account 
of the plaintiff's immorality; Davies v. Snead, L. R. 5 Q. B. 608 (1870), 
the defendant told the rector of his parish of a report current therein, 
that he and the plaintiff, his solicitor, were grossly mismanaging a trust 
fund and defrauding widows and orphans; Clark v. Molyneux, L. R. 3 Q. 
B. D. 237 (1877), rector of one parish informed the rector of another of 
rumors, affecting the character of the plaintiff, the latter's curate ; Waller 
V. Loch, L. R. 7 Q. B. Div. 619 (1881). on the request of one lady, interested 
in the plaintiff, a "decayed gentlewoman," the defendant, the secretary of 
a charity society, investigated her case and made an unfavorable report 
which he gave to the lady, giving her permission to show it to a friend, who 
was also interested in the plaintiff but who had made no inquiries of the 
defendant's society; Stuart v. Bell, L. R. 1891, 2 Q. B. 341, the defendant, the 
Mayor of Newcastle and the host of the plaintiff's master, showed the latter 
a letter received from the police of Edinburgh through the police of New- 
castle, to the effect that the plaintiff was suspected of theft at that place; 
the defendant had no personal interest in the plaintiff's honesty as he was leav- 
ing that day with his master; see also James v. Boston, 2 C. & K. 4 (1845), 
with which compare Mott v. Dawson, 46 Iowa, 533 (1877), where the servant 
of a vendor after a sale, informed the vendee that he had been cheated". 



COXHEAD V. RICHARDS. I089 

CoLTMAN, J. It has been generally held, and, in my judgment, 
rightly held, that the question whether a communication is privi- 
leged or not, is a question of law for the judge; but, in considering 
the question whether a communication is privileged or not, the con- 
dition necessary to make it privileged, must be assumed. The ques- 
tion of law is, whether, assuming that the defendant really and bona 
fide believed the contents of the letter to be true, the occasion was 
such as justified the making of the communication ; in other words, 
according to the rule laid down by the Court of Exchequer in Too- 
good V. Spyring, where there was any duty, public or private, legal 
or moral, calling on the defendant to make the communication com- 
plained of. It cannot, I think, be said that there was any legal duty ; 
was there any moral duty, calling on him to make it ? 

, The necessity which exists in the transactions of society, for 
free inquiry, and for facilities in obtaining information for the 
guidance of persons engaged in important matters of business, has 
so far prevailed, that it has been established as a rule, that, for 
words spoken confidentially upon advice asked, no action lies, unless 
express malice can be proved : Bromage V. Prosser. The duty which 
may be supposed to exist, to give advice faithfully to those who are 
in want of it, has been allowed to prevail for the sake of the gen- 
eral convenience of business, though with some disregard of the 
equally important rule of morality, that a man should not speak ill, 
falsely, of his neighbor. Even though the statement be not on ad- 
vice asked, but is made voluntarily, that circumstance was said, in 
Pattison v. Jones, not necessarily to prevent the statement from be- 
ing considered as .'privileged. Assuming, then, upon the authority 
of that case, that the circumstances of the communication being vol- 



Hollenbeck v. Ristine, lOS Iowa 488 (1898), 114 Iowa 358 (1901), state- 
ments to plaintiff's employer; Hart v. Reed, 1 B. Monr. 166 (Ky. 1840), 
defendant communicated to a third person certain rumors casting suspi- 
cion on the plaintiff, with the request that he would look into them and 
give such infoimation as he thought best to the employer whom the de- 
fendant did not know personally, this was held privileged as being for 
the protection of the interests of both employer, if the plaintiff were guilty, 
and of the plaintiff, if the rumors were unfounded, since he, knowing 
them, could meet and disprnve tliem; Fresh v. Cutter, 73 Md. 87 (1890), 
statements by former employer of plaintiff to the latter's present employer; 
and see Dale v. Harris, 109 Mass. 193 (1872), where such statements were 
held privileged if made to a friend, who was "talking of employing the 
plaintiff"; Morton v. Knipf, 112 N. Y. S. 451 (1908), information to land- 
lord as to character of his tenant; Noonan v. Orton, 32 Wis. 106 (1873), 
and Hubbard v. Rutledge, 57 Miss. 7 (1879), defendants reported to in- 
surance company their belief that the plaintiff had himself set fire to their 
houses insured by the company. 

It is generally held that a stranger, neither the child's employer, teacher, 
pastor, nor a member of its family, can inform the child's parent, volun- 
tarily or on the latter's request, of the child's criminal or wrongful con- 
duct. Peacock V. Reynal, 2 Brownlow & Goldsborough 151 (1612), "this 
is only reformatory," Lightbody v. Gordon, 9 Sc. Sess. Cases, 4th Series, 
934 (1882) ; Moore v. Butler, 48 N. H. 161 (1868) ; Long v. Peters, A7 Iowa 
239 (1877), in some of the cases the communication is also privileged 
because made not only out of duty to the parent but for the protection of 
the informant, the victim of the child's wrong. 



logo COXHEAD V. RICHARDS. 

untary, is no insuperable bar to its being regarded as a privileged 
communication, we return to the consideration of the question, 
whether there was any moral duty, binding on the defendant, to 
make the communication now in question. And, on the best con- 
sideration I can give the subject, I think the duty was plainly the 
other way. The duty of not slandering your neighbour on insuf- 
ficient grounds, is so clear, that a violation of that duty ought not 
to be sanctioned in the case of voluntary communications, except 
under circumstances or great urgency and gravity. 

In the present case, the occasion was in no respect urgent. The 
vessel was not to sail till the end of the month. There was abundant 
time for the defendant to write to tl^p mate, and for the mate to act 
as he should be advised; or for the defendant to take any other 
steps to ascertain the truth of the statement, before he communi- 
cated it in a quarter where it was likely to be productive of so much 
injury to the plaintiff. It appears to me, therefore, that the commu- 
nication ought not to be considered as being privileged, and that its 
being made bona iide did not entitle the defendant to a verdict : and, 
with the greater deference to those who differ from me, and whose 
opinions are entitled to much more weight than that which I have 
formed, I think it my duty to state my own. 

Creswell, J. There is no doubt that the letter published by 
the defendant of the plaintiff, was defamatory; and the truth of 
its contents could not be proved. The plaintiff was, therefore, en- 
titled to maintain an action against the publisher of that letter, unless 
the occasion on which it was published made the publication of such 
letter a lawful act, as far as the plaintiff was concerned, if done in 
good faith, and without actual malice. To sustain an action for 
libel or slander, the plaintiff must show that it was malicious; but 
every unauthorized publication of defamatory matter is, in point of 
law, to be considered as malicious. The law, however, on a principle 
of policy and convenience, authorizes many communications, al- 
though they affect the characters of individuals ; and I take it to be 
a question of law, whether the communication is authorized or not. 
If it be authorized, the legal presumption of malice arising from 
the unauthorized publication of defamatory matter, fails, and the 
plaintiff, to sustain his action, must prove actual malice, or, as it is 
usually expressed, malice in fact. In the present case, the exist- 
ence of malice in fact was negatived by the jury ; and if my lord was 
right in telling them, that, in the absence of malice in fact, the pub- 
lication of the letter was privileged, this rule should be discharged. 
It therefore becomes necessary to inquire within what limits and 
boundaries the law authorizes the publication of defamatory mat- 
ter. Perhaps the best description of those limits and boundaries 
that can be given in a few words, is to be found in the judgment of 
Parke, B., in Toogood v. Spyring: "The law considers such publi- 
cation 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." It was not contended in this case that any legal duty 



COXHEAD V. RICHARDS. IC19I 

bound the defendant to communicate to the ship-owner the contents 
of the letter he had received, nor was the communication made in 
the conduct of his own affairs, nor was his interest concerned : the 
authority for the pubhcation, if any, must therefore be derived from 
some moral duty, public or private, which it was incumbent upon 
him to discharge. I think it is impossible to say that the defendant 
was called upon by any public duty to make the communication; 
neither his own situation nor that of any of the parties concerned, 
nor the interests at stake, were such as to affect the public weal. 
'Was there then any private duty? There was no relation of prin- 
cipal and agent between the ship-owner and the defendant, nor was 
any trust or confidence reposed by the former in the latter; there 
was no relationship or intimacy between them ; no inquiries had 
been made ; they were, until the time in question, strangers ; the duty, 
if it existed at all as between them, must, therefore, have arisen 
from the mere circumstance of their being fellow-subjects of the 
realm. '^ But the same relation existed between the defendant and 
the plaintiff. If the property of the ship-owner on the one hand 
was at stake, the character of the captain was at stake on the other ; 
and I cannot but think that the moral duty not to publish of th^ 
latter defamatory matter which he did not know to be true, was 
quite as strong as the duty to communicate to the ship-owner that 
which he believed to be true. Was, then, the defendant bound by 
any moral duty toward the writer of the letter, to make the com- 
munication? Surely not. If the captain had misconducted himself, 
the mate was capable of observing it, and was as capable of com- 
municating it to the owner as to the defendant. The crew were, in 
like manner, capable of observing and acting for themselves. The 
mate (if he really believed that which he wrote to be true) might, 
indeed, be under a moral duty to communicate it to his owner : but 
the defendant had no right to take that vicarious duty upon himself : 
he was not requested by the mate to do so, but was, on the contrary, 
enjoined not to make the communication. 

I will not attempt to comment upon the very numerous cases 
that were quoted at the bar on the one side and on the other, but 
will advert to one or two which tend to explain the term "moral 



^In Vanspike v. Cleyson, Cro. Eliz. 541 (1596), unsolicited advice given 
by the defendant to one Dudley, a fellow merchant, to call in a loan made 
by the latter to the plaintiff, adding, "you had best not trust him," was 
held not to be "any slander but good counsel to Dudley"; but see Parson 
Prick's Case, post. 

In Herver v. Dowson, Buller N. P. 8 (1764), unsolicited advice as to 
the plaintiff's solvency spoken in "confidence and warning" was held priv- 
ileged; and see Picton v. Jackman, 4 C. & P. 257 (1830). 

Except for the dictum of Lord Mansfield in Lowry v. Aikenhead, 
(1767), cited by Chambre J. in Rogers v. Clifton, 3 B. & P. 587 (1803), p. 
594, with which compare Pattison v. Jones, post, the existence of any dis- 
tinction between information volunteered and furnished upon inquiry, is 
first suggested by Park, J. in his charge to the jury in Cockayne v. Hodgkis- 
son, 5 C. & P. 543 (1833), and stated by Denman C. J. and Abinger C. B. 
charging juries in Storey v. Challands, 8 C. & P. 234 (1838), and King v. 
Watts.iC. & P. 614 (1838). 



1092 COXHEAD V. RICHARDS. 

duty," and see whether it has ever been held to authorize the pub- 
lication of defamatory matter under circumstances similar to those 
which exist in the present case. With regard to the characters of 
servants and agents, it is so manifestly for the advantage of society 
that those who are about to employ them should be enabled to learn 
what their previous conduct has been, that it may be well deemed 
the moral duty of former employers to answer inquiries to the best 
of their belief. But, according to the opinion of the same learned 
judge, intimated in Pattison v. Jones, it is necessary that inquiry 
should be made, in order to render lawful the communication of 
defamatory matter, although he was also of opinion that such in- 
quiry may be invited by the former master. And in Rogers v. Clif- 
ton, Chambre, J., quoted a similar opinion of Lord Mansfield's, ex- 
pressed in Lowry v. Aikenhead, Mich. 8 G. 3, 3 B. & P. 594. 

Two cases — Herver v. Dowson, Bull. N. P. 8, and Cleaver v. 
Sarraude, reported in McDougall v. Claridge, i Campb. 268 — were 
quoted as authorities for giving a more extended meaning to the 
term "moral duty," and making it include all cases where one rnan 
had information, which, if true, it would be important for another to 
know. But the notes of those cases are very short: in the former 
the precise circumstances under which the statement was made — 
see King v. Watts, 8 C. & P. 614, that such a statement made with- 
out inquiry is not lawful — and in the latter, the position of the de- 
fendant with reference to the Bishop of Durham, to whom it was 
made, are left unexplained. I cannot, therefore, consider them as 
satisfactory authorities for the position to establish which they were 
quoted : and, in the absence of any clear and precise authority in 
favour of it, I cannot persuade myself that it is correct, as, if estab- 
lished at all, it must be at the expense of another moral duty, viz., 
not to publish defamatory matter unless you know it to be true. 

For these reasons, I am of opinion, that the rule for a new trial 
should be made absolute. 

Erle, J. In the present case, the defendant, having reason to 
believe that he was in possession of information important to the 
ship-owner, in respect of his captain, gave it for the purpose of pre- 
venting a considerable damage to his property from misconduct; 
and, on this ground, appears to me to be justified. 

The defendant also had reason to believe, that, by giving this 
information, he should save the lives of the crew; and on this' 
ground also, he appears to me to be justified in giving it, either to 
the crew, or to the ship-owner on their behalf, supposing always that 
the jury found that he acted with good faith. 

Some objection was made to the mode of communication. But 
it appears to me to have been as cautious as could be required under 
the circumstances ; and, if the defendant acted incautiously, or went 
to some degree beyond what may be thought to have been strictly 
required for his purpose, these were matters for the jury, as evi- 
dence of malice. 

The evil likely to arise from protecting information bona Me 
given to prevent damage from misconduct, appears to me much less 



KREBS V. OLIVER. IO93 

than that which wouio result from putting a stop to such informa- 
tion, by rendering the giver of it liable in damages, unless he has 
legal proof of the truth :" and the circumstance of the information 
being officious, or without reasonable grounds, or of slight impor- 
tance, ought to be appreciated by the jury. 

It follows, that in my judgment, the rule should be discharged. 

Tne court being thus divided in opinion, the rule for a new trial 
fell to the ground, and the defendant retained his verdict.' 



KREBS V. OLIVER. 
Supreme Judicial Court of Massachusetts, 1858. 12 Gray, 239. 

Action of tort for slander, in falsely and maliciously accusing 
the plaintiff of the crime of larceny by words in substance as fol- 
lows: "Dr. Krebs was imprisoned many years in a penitentiary in 
Germany for larceny." 

At the trial before Thomas, J., the defendant testified that he 
had been on intimate terms with the members of the family to whom 
the charges against the plaintiff's character had been communicated ; 
that he had always repeated them as reports which he had heard; 
that he had not been previously acquainted with the plaintiff; that 
he had no malicious intent in speaking, and that he made the com- 
munications in good faith, and in pursuance of what he considered 
a duty. 

The defendant also prayed the court to instruct the jury, "that 
if the words alleged to have been spoken by the defendant of the 
plaintiff were confidentially communicated by the defendant to the 
members of the family of a lady whom the plaintiff was about to 
marry, with which family the defendant was familiarly acquainted 
and on terms of friendship, and if the defendant believed them to 
be true, and they were spoken in good faith and without malice, and 
in pursuance of what the defendant believed to be his moral duty, 
it was a privileged communication, and the plaintiff cannot re- 
cover." But the court refused to give this instruction ; and ruled 
"that the fact that the plaintiff was about to be married could not 
justify the defendant in reporting to the members of the lady's fam- 
ily the charges alleged, if false, no inquiry having been made of the 
defendant or information requested from him; that the defendant 

"So Erie C. J. says in Whiteley v. Adams, IS C. B. N. S. 392 (1863), p. 
418, "It is to the interest of society that correct information should be ob- 
tained as to the character of the persons in whom others" {sic') "have an 
interest. If every word which is uttered to the discredit of another is to be 
made the ground of an action, cautious persons will take care that all their 
words are words of praise only, and will cease to obey the dictates of 
truth." 

'In Bennett v. Deacon, 2 C. B. 628 (1846), decided by the same judges 
in the same court three months later, the same division of opinion appear- 
ing, a verdict for the plaintiff was allowed to stand, the defendant having, 
in answer to a friend's statement, that he was going to sell goods to the 
plaintiff on credit, made imputations upon his solvency. 



I094 KREBS V. OLIVER. 

sustained no relation to the family of the lady which would make 
the communication privileged in law, and that the defence could not 
be maintained." 

The jury returned a verdict for the plaintiff, and the defendant 
alleged exceptions. 

BiGELOw, J.^ We cannot doubt that the words alleged in the 
declaration are actionable. We think it equally clear that the'words 
' spoken cannot be regarded as a privileged communication or justi- 
fied by the occasion on which they were uttered. It does not appear 
that the defendant in speaking them acted either for the protection 
of any interest of his own, or in the discharge of any duty, social, 
moral or legal. The person whom the plaintiff was about to marry 
was neither dependent on the defendant nor connected with him by 
the ties of consanguinity or otherwise.^ No inquiry was made of 
him by her or her parents or near relatives concerning the char- 
acter of the plaintiff.* He was strictly a volunteer in making the 
communication. A mere friendly acquaintance or regard does not 
impose a duty of communicating charges of a defamatory character 
concerning a third person, although they may be told to one who has 
a strong interest in knowing them. The duty of refraining from the 
utterance of slanderous words, without knowing or ascertaining 
their truth, far outweighs any claim of mere friendship. Indeed it 
would be difficult to conceive of a case in which a party could not 
shelter himself within the protection of his privilege, if the rule 
should be established that one having no interest of his own to pro- 
tect, without inquiry or application by one who might have such in- 
terest, could be allowed to utter defamatory words, on the ground 
that he held the relation of a friend toward the person to whom 



''A part of the opinion, holding that the trial court did not err in re- 
fusing to charge that the words spoken were not actionable per se, is .omitted. 

^In the following cases communications as to the character of a fiance 
made to a girl or woman by a member of her family were held privileged, 
Baysset v. Hire, 49 La. Ann. 904 (1897), statements by a father; Harriott 
V. Plimpton, 166 Mass. 585 (1896), by the father and others at his request; 
Adams v. Coleridge, 1 Times L. R. 84 (1884), by brother to sister; Todd 
V. Hawkins, 8 C. & P. 88 (1837), son in law to mother in law. So a com- 
munication by a son giving advice to his mother in regard to her business 
interests is privileged, Kimble v. Kimble, 14 Wash. 369 (1896). 

Statements made within the family circle in regard to the fiance or 
suitor of a member thereof are held privileged in McBride v. Ledoux, 111 
La. 398 (1904), statements by a girl's sister in law to her sister in law, the 
girl's sister. A wide latitude of discussion within the family circumstances 
of matters of interest to all, because it affects the interest of one of them, 
is allowed in Campbell v. Bannister, 79 Ky. 205 (1880), a man whose house 
had been burned stated to members of his family his belief that plaintiff 
had set it on fire, but see Paris v. Starke, 9 Dana 128 (Ky. 1839), in which 
the right to talk with others over matters of interest to oneself is stated 
so broadly as to include strangers as well as members of one's family. 

^Answers to inquiries by the girl herself, or her father, or other mem- 
bers of her family are privileged, Buisson v. Huard, 106 La. 768 (1901) ; 
Harriott v. Plimpton, 166 Mass. 585 (1896). So in Atwill v. Mackintosh, 
120 Mass. 177 (1876), the report of one employed by a father to investigate 
the character of his daughter's suitor was held privileged. 



SAMPLES V. CARNAHAN. IO95 

he communicated the slander. We know of no rule which holds 
such communications to be privileged by the occasion.* 

The instructions which the defendant requested on this part of 
the case were therefore properly refused. 

Exceptions overruled. 



SAMPLES V. CARNAHAN. 
Appellate Court of Indiana, 1898. 21 Indiana Appeals, 55. 

One McNaught held a note against one Halton, which he sent 
to the plaintiff for collection. The plaintiff's methods offended 
Halton, who told the defendant, that if they were continued he 
would never pay the note. The defendant, who had business rela- 
tions with McNaught, wrote him a letter advising him to take the 
note out of the plaintiff's hands and containing the defamatory mat- 
ter complained of. The_ defendant's third answer averred in sub- 
stance that he had honestly and in good faith, with probable cause 
and interest, written the letter in view of the above facts and the 
duty he owed to McNaught, as a customer and the interest he had 
in his business success as such. 

Robinson, J. It is argued by the appellee's counsel that the 
third paragraph of answer was good in bar of the action, as repre- 
senting facts showing that the letter complained of was a privileged 
communication ; but with this view of the pleading we cannot agree. 
It does not appear that the letter was written in answer to a con- 
fidential inquiry, nor does the pleading show that the relationship 
between appellee and the one to whom the letter was addressed was 
one which the law deems confidential. It does not appear that they 
were related, or that they were intimate friends, but simply that 
they were acquaintances who had had business dealings with each 
other. See Krebs v. Oliver, 78 Mass. 239; Count Joannes v. Ben- 

* Accord: "Joannes" v. Bennett, 5 Allen 169 (Mass. 1862), defendant, 
who had been pastor of a church of which the girl and her family had been 
members and who was still an intimate friend of the family, wrote a letter 
derogatory to the character of the plaintiff who was a suitor for the girl's 
hand. Whether the communication would have been privileged had the 
relation of pastor of the family continued, was left undecided; Byam v. 
Collins, 111 N. Y. 143 (1888), Danforth J. dissenting, defendant had been 
an intimate friend of the woman, though the intimacy had terminated some 
months before, and four years earlier the woman had requested the de- 
fendant to give her any information she might have as to the character 
of the young men of their common acquaintance; Contra; Adcock v. Marsh, 
30 N. Car. 360 (1848), where, though the defendant had been requested by 
the girl's deceased mother to give her advice, it was held that "without 
any request she would have been justified in stating her belief in the bad 
character of the girl's step-mother as a reason for advising her to leave 
her father's home." 

In Nix v. Caldwell, 81 Ky. 293 (1883), the right to volunteer informa- 
tion, is denied where only the recipient has any interest to be protected, 
is said to be confined "to cases, where the parties by reason of their rela- 
tion to each other are interested in the subject-matter" of the communi- 
cation, such as statements by an agent to a principal, or a father to a son. 



1096 PATTISON V. JONES. 

nett, 87 Mass. 169. The letter does not appear to have been written 
in answer to any previous inquiry, but to have been voluntarily 
written. And it has been said that, where the matter is not of great 
or immediate importance, interference may be considered officious 
and meddlesome, although, if the party had been applied to, it would 
clearly have been his duty to give all the information he could ; and 
an answer to a confidential inquiry may be privileged, where the same 
information, if volunteered, would be actionable. See Odgers Libel & 
Slander (2d ed.) , p. 204, et seq. We are unable to say that the matter 
mentioned in the letter was of such importance as to warrant the 
language used in the letter; nor can we say that the circumstances 
were such as reasonably imposed oq appellee the duty to make such 
statements as those contained in the letter, although he may have 
believed he was writing the truth. As has been well said, "Although 
the defendant may feel sure that if he were in his neighbor's place, 
he should be most grateful for the information conveyed, still he 
must recollect that it may eventually turn out that in endeavoring 
to avert a fancied injury to that neighbor, he has really inflicted an 
undoubted and undeserved injury on the plaintiff." Odgers Libel 
& Slander (2d ed.), 216, and cases cited. Taking account of the 
circumstances under which the letter was written, the relation at 
the time existing between the appellee and the recipient of the let- 
ter, the nature of the matter about which the letter was written, 
and the language used in the letter, we cannot say that the letter 
was privileged.^ 



PATTISON V. JONES. 

Court of King's Bench, 1828. 8 Barnewall & Cresswell, 578. 

Bayley, J. Generally speaking, anything said or written by a 
master when he gives the character of a servant is a privileged 
communication. If a servant, therefore, charge a master with pub- 
lishing a libel, it is competent to the latter, under the general issue, 
to prove that the alleged libel was written under such circumstances 
as to make it a privileged communication, and thereby throw on the 
plaintiff the necessity of shewing that it does not come within that 
protection which the law gives to a privileged communication. But 
if the supposed libel be not communicated bona fide, it does not fall 
within the protection which the law extends to privileged communi- 
cations. Here the second letter of the defendant was written in 
answer to one calling upon him to give an account of the plaintiff's 
conduct, but the defendant wrote his first letter without being called 
upon so to do. I do not mean to say that in order to make libellous 
matter written by a master privileged, it is essential that the party 

"■In "Joannes" v. Bennett, S Allen 169 (Mass. 1862), Bigelow C. J. says: 
"The duty of avoiding the use of defamatory words can not be set aside, 
except where it is essential for the protection of some substantial private 
interest, or to the discharge of some other paramount and urgent duty.'' 



MORSE V. TIMES -REPUBLICAN PRINTIXG CO. lOQ/ 

who makes the communication should be put into action in conse- 
quence of a third party's putting questions to him. I am of opinion 
he may (when he thinks another is about to take into his service 
one whom he knows ought not to be taken) set himself in motion, 
and do some act to induce that other to seek information from and 
put questions to him. The answers to such questi'^ns, given bona 
fide with the intention of communicating such facv^ as the other 
party ought to know, will, although they contain slanderous matter, 
come within the scope of a privileged communication. But in such 
a case it will be a question for the jury, whether the defendant has 
acted bona fide, intending honestly to discharge a duty ; or whether 
he has acted maliciously, intending to do an injury to the servant? 
In forming their judgment, the jury in this case were bound to take 
into their consideration the fact of the defendant's having volun- 
tarily put himself into motion, and thereby in effect having, by the 
first letter, desired Mr. Mornay to put questions to him. 

Upon the question, whether a master who has written a libel 
in giving the character of a servant has acted bona fide or not, it 
may make a very material difference whether he volunteered to give 
the character, or had been called upon so to do. At all events, when 
he volunteers to give the character, stronger evidence will be re- 
quired that he acted bona fide, than in the case where he has given 
the character after being required so to do. 

Rule refused. 



MORSE V. TIMES-REPUBLICAN PRINTING CO. 

Supreme Court of Iowa, 1904. 124 Iowa, 707. 

Weaver, J. But it is very manifest that the classification of 
cases above given in which privilege may be claimed for matter 
otherwise libelous is not broad enough to include a publication such 
as we here have to deal with. Some effort is made in argument to 
bring it within the general scope of the duty which defendant owed 
to the public. This phase of the doctrine of privilege has been gen- 
erally invoked in cases where the plaintiff^ holds or is a candidate 
for some position of public trust. Such has been the character of 
the cases in which this court has applied or considered the plea of 
public duty in defense of a charge of libel. Mott v. Dawson, 46 
Iowa, 533 ; State v. Haskins, 109 Iowa, 656 ; Bays v. Hunt, 60 Iowa, 
251. The utmost extent to which these cases go is that where a per- 
son, knowing or honestly believing that a candidate for public office 
is guilty of conduct affecting his fitness for the position to which 
he aspires, communicates that knowledge or belief to the electors 
whose support the candidate seeks, acting in good faith in the dis- 
charge of his duty to the public, the communication is privileged — a 
doctrine the correctness of which we need not now consider. But\ 
there is no moral or legal duty resting upon any person to publish I 
to the world defamatory matter affecting the character or reputa- ' 



1098 MORSE V. TIMES-REPUBLICAN PRINTING CO. 

tion of one whose only relation to the public is that of a private 
citizen in the pursuit of a lawful private business; and if one as- 
sumes the responsibility of proclaiming such matter from the house- 
tops, or through the public print, the law affords him no defense 
except upon proof of the truth of the publication. An insurance 
agent as such is not a public officer, nor is his character a matter 
of general public interest, except as the public has an indirect inter- 
est in the private character and conduct of every member of society, 
but this interest is not sufficient to invoke the privilege of which we 
are speaking. To hold otherwise would be to destroy at one sweep 
the effectiveness of all law against slander and libel. Even the right 
to plead the truth of a libel is restpcted by the constitutional pro- 
vision herein cited to publications made "with good motives, and 
for justifiable ends." If we understand the force of the answer 
sought to be interposed to the plaintiff's action, it is that defendant, 
being the publisher of a newspaper, is in duty bound to publish the 
news of the day for the benefit of its readers, and if, after due in- 
vestigation, and in the exercise of reasonable care, and without ac- 
tual malice, it publishes defamatory matter concerning a citizen, 
the person so injured is without remedy, such publication being 
privileged. This proposition is without support in principle or 
precedent. The publisher has no right to publish in his paper 
matters or statements which he or any other citizen would not be 
justified in circulating by letter or by posting upon the blank walls 
of the city. Our Constitution guarantees to every person liberty 
"to speak, write, and publish his sentiments on all subjects," but 
holds him "responsible for the abuse of that right." Constitution 
of Iowa, Article i. Section 7. "Liberty of the press" has never been 
held to mean "that the publisher of a newspaper shall be any less 
responsible than another person would be for publishing otherwise 
the same libelous matter." The contrary rule has been affirmed by 
the courts of this country and England with great uniformity. 
Jones V. Townsend, 21 Fla. 431 ; Sheckell v. Jackson, 10 Cush. 25 ; 
Aldrich v. P. P. Co., 9 Minn. 138; Root v. King, 7 Cow. 628; Till- 
son V. Robbins, 68 Maine 295 ; Smart v. Blanchard, 42 N. H. 137 ; 
Foster v. Scripps, 39 Mich. 376 ; Barr v. Moore, 87 Pa. 385 ; Evis- 
ton V. Cramer, 47 Wis. .659; Edwards v. San J. Pr. Sac, 99 Cal. 
431 ; McAllister v. F. Press, 76 Mich. 338; Upton v. Hume, 2,6^ Ore. 
420; Smith V. Tribune, 4 Biss. 477; Davis v. Sladen, 17 Ore. 259; 
Barnes v. Campbell, 59 N. H. 128 ; Davis v. Duncan, 7 El. & Bl. 
231 ; Mallory v. P. P. Co., 34 Minn. 521 ; Delaware, etc., Ins. Co. v. 
Crosdale, 6 Houst. 181 ; Palmer V. Concord, 48 N. H. 216. See also, 
exhaustive note by Mr. Freeman, 15 Am. St. Rep. 343. The tend- 
ency of all the authorities is indicated in the following excerpts 
from some of the cases above cited : "The publisher of a newspaper 
possesses no immunity from liability on account of a libellous pub- 
lication, not belonging to any other citizen." Bean, J., in Upton v. 
Hume. "The press does not possess any immunities not shared by 
every individual," Flandreau, J., in Aldrich v. P. P. Co. "The lib- 
erty of the press is not more under the protection of the Constitu- 



FOWLER V. HOMER. lOgg 

tion than the liberty of speech, and the publisher of a newspaper 
can only defend an action for libel, or mitigate the damages to be 
recovered therefore, upon precisely the same grounds as any other 
individual could defend an action for slander in uttering the same 
words on the street." De Haven, J., in Edwards v. San J. Pr. Soc. 
Further citation of authorities is unnecessary. None have been 
called to our attention holding to the doctrine contended for in sup- 
port of the ruling appealed f rom.^ 



(d) Communications made to aid the administration of justice. 



FOWLER V. HOMER. 
Court of King's Bench, at Nisi Prius, 1812. 3 Campbell, 294. 

This was an action for defamation. Plea, the general issue. 

The defendant is a haberdasher. On a Saturday evening, while 
he was absent, Mrs. Fowler came into his shop, and bought some 
goods. Soon after she was gone, his shopman missed a roll of 
riband, and mistakenly supposed that she had stolen it, but did not 
then pursue her. On the following Monday, as she was again pass- 
ing the shop, the shopman pointed her out to the defendant as the 
person who had stolen the riband. The defendant brought her into 
the shop, and accused her of the robbery, which she positively de- 
nied. He then carried her into an adjoining room, and sent for her 
father, to whom he repeated the accusation. After a good deal of 
altercation, she was allowed to go home, and there the matter 
rested. 

Lord Ellenborough. I am clearly of opinion that this action 
cannot be maintained. There appears to be no malice on the part of 
the defendant. I suppose this lady to be completely innocent of the 
offence laid to her charge; but she has not been wantonly or 
maliciously calumniated. When a servant represents to a master 
that his goods have been stolen by a particular individual, it is justi- 
fiable for the master, with a view to enquiry, to tax that individual 
with the theft ; and, although the suspicion turns out to be errone- 
ous, the law gives no redress to the party accused. The accusation, 
though unfounded, was not malicious. No doubt it may prove very 
detrimental to the object of it; but this is one of many instances 
where, there being a loss without an injury, the sufferer must con- 
sider himself not wronged, but unfortunate. If the defendant had 
continued to propagate the story to strangers, that would have fur- 
nished evidence of malice ; but if he could not lawfully charge the 
person suspected on reasonable grounds, though innocently, of hav- 
ing committed the theft, it would be quite impossible for a man who 



^Accord: Anderson v. Fairfax, 4 N. S. W. R. L. 183 (1883); Atlanta 
News Pub. Co. v. Medlock, 123 Ga. 714 (190S) ; Burt v. Advertiser News- 
paper Co., 154 Mass. 238 (1891). 



IIOO FOWLER V. HOMER. 

is robbed to enquire with any safety after the stolen goods. From 
sitting in another place, I know that the shopkeepers of this town are 
subject to the most enormous pillage; and they must have an oppor- 
tunity of protecting their property/ and bringing offenders to jus- 
tice.^ 

This exposition of the law was acquiesced in by the plaintiff's 
counsel ; but an instance was pointed out in which the defendant had 
rather transgressed -the line of investigation above laid down, where- 
upon the parties agreed to withdraw a juror.' 

'^ See Brow v. Hathaway, ante, and cases cited in note thereto. 

'See Coltman, J. in Padmore v. Lawrence, 11 A. & E. 380 (1840) ; "For 
the sake of public justice charges and*communications, which would other- 
wise be slanderous, are protected if bona fi.de -made in the prosecution of 
an inquiry into a suspected crime" — quoted by Morton J. in Eames v. Whit- 
taker, 123 Mass. 342 (1877), p. 344, with the addition of the following: 
"and for the purpose of detecting and bringing to punishment the crim- 
inal"; and see Lacey, J. in Christman v. Christman, 36 III. App. 567 (1889), 
p. S7S ; and Adam, J. in Lighthody v. 'Gordon, 9 Sc. Sess. Cases, 4th Ser. 
934 (1882), p. 942, "People would be prevented from doing their duty if 
a man who honestly believed that he could give information to the police 
felt he could do so only with the threat of an action of damages hanging 
over his head." 

'Accord: Padmore v. Lawrence,llA.& E. 380 (1840) ; Collins v. Cooper, 
19 Times L. R. 118 (1902) ; Dale v. Harris, 109 Mass. 193 (1872) ; Christman 
V. Christman, 36 111. App. 567 (1889); and Chapman v. Battle, 124 Ga. 574 
(1905) ; and see Brow v. Hathaway, ante; statements made by the per- 
son against whom the wrong was committed to the suspected person in the 
presence of third persons; Billings v. Fairbanks, 136 Mass. 177 (1883), to 
a friend of the latter sent by him to inquire the grounds on which he had 
been accused, Eames v. Whittaker, 123 Mass. 342 (1877), to a friend in 
informing him of the crime and in answer to the latter's inquiries as to 
whether he suspected any one; Grimes v. Coyle, 6 B. Monr. 301 (Ky. 1845), 
similar facts; Johnson v. Evans, 3 Esp. 32 (1799), Dale v. Harris, Eames 
V. Whittaker, 123 Mass. 342 (1877) ; Christman v. Christman, 36 III. App. 
567 (1889), to a constable in procuring the plaintiff's arrest or in an effort 
to aid the investigation or to recover the property stolen, Shinglemeyer v. 
Wright, 124 Mich. 230 (1900) ; Klinck v. Colby, 46 N. Y. 427 (1871), state- 
ments in an agreement, made by persons who believed themselves to have 
been swindled, to share the expenses of prosecution, and see Jones v. Thomas. 
34 W. R. 104 (1885), where the defendant had an interest in' the statement, 
as it was contained in a paper providing for restitution of money, stolen from 
his master largely owing to his own incapacity, Lightbody v. Gordon, 9 Sc. 
Sess. Cases, 4th Sen 934 (1882), statements by third persons having peculiar 
knowledge of the crime to police officers or in the course of inquiry of 
others likely to have valuable information. In Miller v. Nuckolls, 77 
Ark. 64 (1905), statements of the defendant's suspicions of the plain- 
tiff made to the police for the purpose of the investigation of the sup- 
posed crime and bringing the offender to justice were held privileged. 
In Paris v. Starke, 9 Dana 128 (Ky. 1839), a member of the community 
in which the crime was committed was held privileged to express to his 
brother. his belief in the plaintiff's guilt; and in Harper v. Harper, 10 Bush. 
447 (Ky. 1874), similar expressions made to persons not members of his 
family while the community was endeavoring to discover the criminal, 
were held privileged; but see Harrison v. Eraser, 29 W. R. 652 (1881), 
where statements made by a draper in the course of questions put to his 
own assistant and the assistant of the plaintiff, a neighboring draper, whom 
he suspected stealing from him, were held by Lindley, J. not to be priv- 
ileged. In Hancock v. Blackwell, 139 :\Io. 440 (1897), and Bigner v. Hodges, 
82 Miss. 215 (1903), statements of belief in the plaintiff's guilt made to 



WASON V. WALTER. IIOI 



SECTION 3. 

The Right to Publish Reports of Legislative, Judicial and 
Public Proceedings. 



WASON V. WALTER. 
Cour^ of Queen's Bench, 1868. Law Reports 1868-69, 4 Q. B., 73. 

CocKBURN, C. J. This case was argued a few days since be- 
fore my Brothers Lush, Hannen and Hayes, and myself, and we 
took time, not to consider what our judgment should be, for as to 
that our minds were made up at the close of the argument, but be- 
cause, owing to the importance and novelty of the point involved, 
we thought it desirable that our judgment should be reduced to writ- 
ing before it was delivered. 

The main question for our decision is, whether a faithful re- 
port in a public newspaper of a debate in either house of parlia- 
ment, containing matter disparaging to the character of an individ- 
ual, as having been spoken in the course of the debate, is actionable 
at the suit of the party whose character has thus been called in ques- 
tion. We are of opinion that it is not. 

Important as the question is, it comes now for the first time be- 
fore a court of law for decision. Numerous as are the instances 
in which the conduct and character of individuals have been called 
in question in parliament debates have been reported in the public 
journals, this is the first instance in which an action of libel founded 
on a report of a parliamentary debate has come before a court of 
law. There is, therefore, a total absence of direct authority to 
guide us. There are, indeed, dicta of learned judges having refer- 
ence to the point in question, but they are conflicting and inconclu- 
sive, and, having been unnecessary to the decision of the cases in 
which they were pronounced, may be said to be extrajudicial.^ 

the officer to whom the crime had been reported, by one having no interest 
to protect and no personal knowledge of the fact, was held not privileged, 
and statements to a police officer charging the plaintiff with being a whore, 
made without intent to prevent or punish her offense, were held not priv- 
ileged in Stewart v. Major, 17 Wash. 238 (1897). Statements by a police 
officer while investigating a crime are privileged, Morton v. Knipe, 112 
N. Y. S. 451 (1908), as are those made in answer to inquiries by one in- 
terested in discovering the wrongdoer or recovering property stolen, Kine 
V. Sewell, 3 M. & W. 297 (1838), "is," said Parke, B., "a man's mouth to be 
closed, when he is asked, did he see another person steal the inquirer's 
property?" — accord, Grimes v. Coyle, 6 B. Monr. 301 (Ky. 1845). 

^The proceedings of a parliamentary committee may be reported, Kane 
V. Mulvany, Ir. R. 2 C. L. 402 (1868). A city council is held in Buckstaff v. 
Hicks, 94 Wis. 34 (1896), not to be a legislative body whose proceedings can 
be voluntarily reported as news; see 51 and 52 Vict., c. 64, §§ 3 and 4 (1888), 
conferring "qualified privilege" on fair and accurate reports of judicial pro- 
ceedings, and of vestries, town councils and a number of other specified bod- 
ies, and Wisconsin Statute of 1898, § 4256 a. In Trebby v. Transcript Pub- 
lishing Co., 74 Minn. 84 (1898), it was held that no privilege attached to a 
report of a resolution, which had no operative force, being a resolution con- 
demning the plaintiff as a traducer of the city of St. Paul; but compare How- 



II02 WASON V. WALTER. 

Several cases were cited in the course of the argument before 
us, but they turned for the most part on the question of parliamen- 
tary privilege, and therefore appear to us very wide of the present 
question. The case of Rex v. Wright, 8 T. R. 293, approaches near- 
est to the one before us. In that case a committee of the House of 
Commons having made a report imputing to Home Tooke seditious 
and revolutionary designs after his acquittal on a trial for high 
treason, and the House having ordered the report to be printed for 
the use of its members, the defendant, a bookseller and publisher, 
printed and published copies of the report. On an application for a 
criminal information the Court refused the rule, apparently on the 
ground that the report of a committee of the House of Commons, 
approved of by the House, being part of the proceedings of parlia- 
ment, could not possibly be libellous. Lord Kenyon, C. J., says, 
"This report was first made by a committee of the House of Com- 
mons, then approved by the House at large, and then communicated 
to the other House, and it is now subjudice ; and yet it is said that 
this is a libel on the prosecutor. It is impossible for us to admit that 
the proceeding of either of the houses of parliament is a libel ; and 
yet that is to be taken as the foundation of this application." Lord 
Kenyon and his colleagues appear to have thought that a paper, 
though containing matter reflecting on the character of an individual, 
if it formed part of the proceedings of the House of Commons, 
would be so divested of all libellous character as that a party pub- 
lishing it, even without the House, would not be responsible at law 
for the defamatory matter it contained. If this doctrine could be 
upheld, it would have a manifest bearing on the present question, for 
as no speech made by a member of either house, however strongly 
it may assail the conduct or character of others, can be held to be 
libellous, it would follow, such a speech being a parliamentary pro- 
ceeding, that the publication of it would not be actionable. But this 
is directly contrary to the decision in Rex v. Lord Abingdon, i Esp. 
226, and Rex v. Creevey, l M. & S. 273, in which the publication of 
speeches made in parliament reflecting on the character of individ- 
uals was held to be actionable. And it must be admitted that the 
authority of the case of Rex v. Wright, 8 T. R. 293, is much shaken, 
not only by the decision in Rex v. Creevey, but also by the observa- 
tions made by Lord EUenborough in his judgment in the latter case. 

Decided cases thus leaving us without authority on which to 
proceed in the present instance, we must have recourse to principle 
in order to arrive at a solution of the question, before us, and for- 
tunately we have not far to seek before we find principles in our 
opinion applicable to the case, and which will afford a safe and sure 
foundation for our judgment. It is now well established that faith- 
ful and fair reports of the proceedings of courts of justice, though 
the character of individuals may incidentally suffer, are privileged, 
and that for the publication of such reports the publishers are 
neither criminally nor civilly responsible. 

land V. Town of Maynard, 159 Mass. 434 (1893), publication by a town of 1 
report of an investigating committee appointed by it. 



WASON V. WALTER. I IO3 

The immunity thus afforded in respect of the publication of the 
proceedings of courts of justice rests upon a twofold ground. In 
the English law of libel, malice is said to be the gist of an action for 
defamation. _ And though it is true by malice, as necessary to give a 
cause of action in respect of a defamatory statement, legal, and not 
actual malice, is meant, while by legal malice, as explained by Bay- 
ley, J., in Bromage v. Prosser, 4 B. & C. 255 (E. C. L. R. Vol. 10), 
is meant no more than the wrongful intention which the law always 
presumes as accompanying a wrongful act without any proof of 
malice in fact, yet the presumption of law may be rebutted by the 
circumstances under which the defamatory matter has been uttered 
or published, and, if this should be the case, though the character of 
the party concerned may have sufifered, no right of action will 
arise. 

It is thus that in the case of reports of proceedings of courts of 
justice, though individuals may occasionally suffer, from them, yet, 
as they are published without any reference to the individuals con- 
cerned, but solely to afford information to the public and for the 
benefit of society, the presumption of malice is rebutted, and such 
publications are held to be privileged. 

The other and the broader principle on which this exception to 
the general law of libel is founded is, that the advantage to the com- 
munity from publicity being given to the proceedings of courts of 
justice is so great, that the occasional inconvenience to individuals 
arising from it must yield to the general good. It is true that with 
a view to distinguish the publication of proceedings in parliament 
from that of courts of justice, it has been said that the immunity 
accorded to the reports of the proceedings of courts of justice is 
grounded on the fact of the courts being open to the public, while 
the houses of parliament are not ; as also that by the publication of 
the proceedings of the courts the people obtain a knowledge of the 
law by which their dealings and conduct are to be regulated. But 
in our opinion the true ground is that given by Lawrence, J., in Rex 
V. Wright, 8 T. R. 298, namely, that "though the publication of such 
proceedings may be to the disadvantage of the particular individual 
concerned, yet it is of vast importance to the public that the pro- 
ceedings of courts of justice should be universally known. The 
general advantage to the country in having these proceedings made 
public, more than counterbalances the inconvenience to the private 
persons whose conduct may be the subject of such proceedings." In 
Davison v. Duncan, 7 E. & B. 231 (E. C. L. R. vol. 90), 26 L. J. 
Q. B. 106, Lord Campbell says, "A fair account of what takes place 
in a court of justice is privileged. The reason is, that the balance of 
public benefit from publicity is great. It is of great consequence that 
the public should know what takes place in court ; and the proceed- 
ings are under the control of the judges. The inconvenience, there- 
fore, arising from the chance of injury to private character is in- 
finitesimally small as compared to the inconvenience of publicity." 
And Wightman, J., says : — "The only foundation for the exception 
is the superior benefit of the publicity of judicial proceedings which 



ir04 WASOX V. WALTER. 

counterbalances the injury to individuals, though that at times may 
be great." 

Both the principles, on which the exemption from legal conse- 
quences is thus extended to the publication of the proceedings of 
courts of justice, appear to us to be applicable to the case before us. 
The presumption of malice is negatived in the one case as in the other 
by the fact that the publication has in view the instruction and ad- 
vantage of the public, and has no particular reference to the party 
concerned. There is also in the one case as in the other a preponder- 
ance of general good over partial and occasional evil. We entirely 
concur with Lawrence, J., in Rex v. Wright, 8 T. R. 298, that the 
same reasons which apply also to. proceedings in parliament. It 
seems to us impossible to doubt that it is of paramount public and 
national importance that the proceedings of the houses of parlia- 
ment shall be communicated to the public, who have the deepest in- 
terest in knowing what passes within their walls, seeing that on 
what is said and done, the welfare of the community depends. 
Where would be our confidence in the government of the country or 
in the legislature by which our laws are framed, and to whose charge 
the great interests of the country are committed, — ^where would be 
our attachment to the constitution under which we live, — if the pro- 
ceedings of the great council of the realm were shrouded in secrecy 
and concealed from the knowledge of the nation ? How could the 
communications between the representatives of the people and their 
constituents, which are so essential to the working of the representa- 
tive system, be usefully carried on, if the constituencies were kept 
in ignorance of what their representatives are doing? What would 
become of the right of petitioning on all measures pending in parlia- 
ment, the undoubted right of the subject, if the people are to be kept 
in ignorance of what is passing in either house ? Can any man bring 
himself to doubt that the publicity given in modern times to what 
passes in parliament is essential to the maintenance of the relations 
subsisting between the government, the legislature, and the country 
at large ? It may, no doubt, be said that, while it may be necessary as 
a matter of national interest that the proceedings of parliament 
should in general be made public, yet that debates in which the char- 
acter of individuals is brought into question ought to be suppressed. 
But to this, in addition to the difficulty in which parties publishing 
parliamentary reports would be placed, if this distinction were to be 
enforced and every debate had to be critically scanned to see whether 
it contained defamatory matter, it may be further answered that 
there is perhaps no subject in which the public have a deeper inter- 
est than in all that relates to the conduct of public servants of the 
state, — no subject of parliamentary discussion which more requires 
to be made known than an inquiry relating to it. Of this no better 
illustration could possibly be given than is aiforded by the case be- 
fore us. A distinguished counsel, whose qualification for the judicial 
bench had been abundantly tested by a long career of forensic 
eminence, is promoted to a high judicial office, and the profession 
and the public are satisfied that in a most important post the serv- 



WASON V. WALTER. IIO5 

ices of a most competent and valuable public servant have been 
secured. An individual comes forward and calls upon the House of 
Lords to take measures for removing the judge, in all other respects 
so well qualified for his office, by reason that on an important occa- 
sion he had exhibited so total a disregard of truth as to render him 
unfit to fill an office for which a sense of the solemn obligations of 
truth and honor is an essential qualification. Can it be said that such 
a subject is not one in which the public has a deep interest, and as 
to which it ought not to be informed of what passes in debate? 
Lastly, what greater anomaly or more flagrant injustice could 
present itself than that, while from a sense of the importance of 
giving publicity to their proceedings, the houses of parliament not 
only sanction the reporting of their debates, but also take measures 
for giving facility to those who report them, while every member of 
the educated portion of the community from the highest to the low- 
est looks with eager interest to the debates of either house, and con- 
siders it a part of the duty of the public journals to furnish an ac- 
count of what passes there, we were to hold that a party publishing 
a parliamentary debate is to be held liable to legal proceedings be- 
cause the conduct of a particular individual may happen to be called 
in question ? 

It is to be observed that the analogy between the case of reports 
of proceedings of courts of justice and those of proceedings in par- 
liament being complete, all the limitations placed on the one to pre- 
vent injustice to individuals will necessarily attach on the other; a 
garbled or partial report, or of detached parts of proceedings, pub- 
lished with intent to injure individuals, will equally be disentitled to 
protection. Our judgment will in no way interfere with the de- 
cisions that the publication of a single speech for the purpose or 
with the effect of injuring an individual will be unlawful, as was 
held in the cases of Rex v. Lord Abingdon, i Esp. 226, and Rex v. 
Creevey, i M. & S. 273. At the same time it may be as well to ob- 
serve that we are disposed to agree with what was said in Davison 
V. Duncan, 7 E. & B. 233 (E. C. L. R. vol. 90), 26 L. J. Q. B. 107, 
as to such a speech being privileged if bona fide published by a mem- 
ber for the information of his constituents. But whatever would 
deprive a report of the proceedings in a court of justice of immunity 
will equally apply to a report of proceedings in parliament. 

It only remains to advert to an argument urged against the 
legality of the publication of parliamentary proceedings, namely, 
that such publication is illegal as being in contravention of the stand- 
ing orders of both houses of parliament. The fact, no doubt, is, 
that each house of parliament does, by its standing orders, prohibit 
the publication of its debates. But, practically, each house not only 
permits, but also sanctions and encourages, the publication of its 
proceedings, and actually gives every facility to those who report 
them. Individual members correct their speeches for publication in 
Hansard or the public journals, and in every debate reports of for- 
mer speeches contained therein are constantly referred to. Collect- 
ively, as well as individually, the members of both houses would 



Ilo6 KIMBALL V. POST PUBLISHING CO. 

deplore as a national misfortune the withholding their debates from 
the country at large. Practically speaking, therefore, it is idle to 
say that the publication of parliamentary proceedings is prohibited 
by parliament. The standing orders which prohibit it are obviously 
maintained only to give to each house the control over the publica- 
tion of its proceedings, and the power of preventing or correcting 
any abuse of the facility afforded. Independently of the orders of 
the houses, there is nothing unlawful in publishing reports of parlia- 
mentary proceedings. Practically, such publication is sanctioned by 
parliament ; it is essential to the working of our parliamentary sys- 
tem, and to the welfare of the nation. Any argument founded on its 
alleged illegality appears to us, therefore, entirely to fail. Should 
either house of parliament ever be so ill-advised as to prevent its 
proceedings from being known to the country — which certainly 
never will be the case — any publication of its debates made in con- 
travention of its orders would be a matter between the house and the 
publisher. For the present purpose, we must treat such publication 
as in every respect lawful, and hold that, while honestly and faith- 
fully carried on, those who publish them will be free from legal re- 
sponsibility, though the character of individuals may incidentally be 
injuriously affected. 



KIMBALL V. POST PUBLISHING CO. 
Supreme Judicial Court of Massachusetts, 1908. 199 Mass. Rep. 248. 

HAjTMONb, J. The articles of which the plaintiffs complain 
contained reports of certain proceedings in court and also of a meet- 
ing of stockholders of a corporation called the Burrows Lighting 
and Heating Company. 

The articles in question contained among others the following 
statements : "At the office of C. Henry Kimball, 97 Haverhill Street, 
officers, stockholders and lawyers interested in the Burrows Light- 
ing and Heating Company met this morning. The affairs of the 
Burrows Lighting and Heating Company have been before the pub- 
lic for a considerable time, are apparently in a badly tangled condi- 
tion. An order of notice was recently issued by the Superior Court 
against C. Henry Kimball, William Galletly and the Burrows Light- 
ing and Heating Company, ordering them to appear in court on 
Thursday of this week to show cause why they should be restrained 
from holding any meeting. The charges were that the holders of a 
majority of the capital stock of the company had fraudulently 
secured control over 416,000 shares of stock." 

By an inspection of the bill in equity and of the order of the 
court it appears that the statement in the articles was a fair report 
of the court proceedings. And we are further of opinion that the 
ruling that the evidence did not warrant a finding of malice, was 
correct. So far, therefore, as the plaintiff attempted to hold the 



KIMBALL V. POST PUBLISHING CO. 110/ 

defendants as to so much of the articles as related to the proceed- 
ings in court they failed to make out a case. 

But there was something more in the articles than the report 
of the proceedings in court. There was a report of the meeting of 
the stockholders of a private corporation ; and unless this part of 
the report is also privileged the defense, so far as resting upon that 
ground, must fail. It is argued by the defendants that "the public 
is interested and concerned in a meeting of stockholders of a cor- 
poration such as is described in the" articles in question, and that 
reports of such meetings are privileged if fair and made without 
malice. But the difficulty with this argument is that unless modified 
by statutory provision the law in England and in this Commonwealth 
always has been otherwise. It is to be noted that we are not dealing 
with what is said at the meeting nor with the person who said it. No 
doubt a stockholder at such a meeting, speaking to stockholders, may 
with impunity say things derogatory to an officer or the manager of 
the company provided that what he says be pertinent to the matter 
in hand and he speaks in good faith and without malice. His justi- 
fication rests upon the fact that he is speaking to the stockholders 
upon a subject in which he and they have an interest. 

On the contrary we are dealing with a report in a nature of the 
repetition of the defamatory remarks, which re|)ort is made by a 
stranger, having no interest in the question, to other strangers, called 
the public, equally without interest. It is manifest that the grounds 
for the privilege vtnder which the original speaker, the stockholder, 
is protected cannot serve the publisher of the report. Davison v. 
Duncan, 7 El. & Bl. 229. De Crespigny v. Wellesley, 5 Bing. 392. 
The privilege of the publisher, if any he has, must rest upon other 
grounds. 

It is stated by some authorities that by the common law of 
England reports of judicial and parliamentary proceedings alone 
were privileged. While it is said by Shaw, C. J., in Barrows v. 
Bell, 7 Gray, 301, that this statement, unqualified, is too broad, still 
subsequent decisions seem to show clearly that in England the prin- 
ciple of privilege is confined to reports of judicial or quasi judicial 
bodies. No privilege was attached to the report of other public un- 
official meetings. Hence, if in such a case a report containing any 
defamatory statement of fact was printed in a newspaper the pro- 
prietor's only defense was that the statement was true. Purcell v. 
Sowler, I C. P. D. 781 ; 2 C. P. D. 215. See also Odgers, Libel & 
Slander, (4th ed.) Appendix B, and the authorities therein cited 
Since the question in this last case the law has been somewhat modi- 
fied so far as respects official and other public meetings. But these 
statutes have been somewhat strictly construed, and even now a fair 
report is not always safe. Ponsford v. Financial Times, 16 T. L. 
R. 248. 

The subject was quite freely discussed by Shaw, C. J., in Bar- 
rows V. Bell, ubi supra, and the following language was used (p. 
313) : "Whatever may be the rule as adopted and practised on in 
England, we think that a somewhat larger liberty may be claimed in 



II08 KIMBALL V. POST PUBLISHING CO. 

this country and in this Commonwealth, both for the proceedings , 
before all public bodies, and for the publication of those proceedings 
for the necessary information of the people. So many municipal, 
parochial and other public corporations, and so many large volun- 
tary associations formed for almost every lawful purpose of benevo- 
lence, business or interest, are constantly holding meetings, in their 
nature public, and so usual is it that their proceedings are published 
for general use and information, that the law, to adapt itself to this 
necessary condition of society, must of necessity admit of these pub- 
lic proceedings, and a just and proper publication of them, as far as 
it can be done consistently with private rights. This view of the law 
of libel in Massachusetts is recognised, and to some extent sanc- 
tioned, by the case of Commonwealth v. Clap, 4 Mass. 163, and 
many other cases." And it was held that the publication by a mem- 
ber of the Massachusetts Medical Society of a true account of the 
proceedings of that society in the expulsion of another member for 
a cause within its jurisdiction, and of the result of certain suits sub- 
sequently brought by him against the society and its members on 
account of such expulsion, is privileged. 

The above language of the court, however liberal its construc- 
tion, is not to be understood as applying to strictly private meetings. 
It applies at the most only to meetings public in their nature, or 
where the proceedings concern the public. In that case it was said 
that the charter of the Massachusetts Medical Society "invested the 
society, their members and licentiates, with large powers and privi- 
leges, in regulating the important public interest of the practice of 
medicine and surgery, enabled them to prescribe a course of studies, 
to examine candidates in regard to their qualifications for practice, 
and give letters testimonial to those who might be found duly quali- 
fied." It was also stated that it appeared by the acts incorporating 
this society that it was regarded by the Legislature "as a public in- 
stitution, by the action of which the public would be deeply affected 
in one of its important public interests, the health of the people." It 
was further said that the proceedings of which the report was made 
"might be rightly characterized, as in the case of Farnsworth v. 
Storrs, (S Cush. 412) as quasi judicial." And it was upon the lat- 
ter ground that the communication was adjudged to be privileged.^ 

The case before us is entirely different. The meeting was sim- 
ply that of a private corporation invested with no privileges and 
owing no special duties to the public. It was an ordinary business 



'^Accord: Allbutt v. General Medical Education Society, L. R. 23 Q. B. 
D. 400 (1889), in both cases duties and powers whose performance and exer- 
cise were essential to the protection of the public as well as the profession, 
had been entrusted to the association involving the exercise of a quasi judi- 
cial function. A fair report in a public newspaper of a trial by an ecclesi- 
astical tribunal is, in Lothrop v. Adams, 133 Mass. 471 (1882), semble, said 
to be privileged, though no such duties or powers had been entrusted to it, 
and in Rabb v. Trevelyan, 122 La. 174 (1908), a similar report of an ex parte 
trial of a bookmaker, by a racing association of which he was a member and 
which resulted in his being ruled off all race tracks under its control, was 
held privileged. 



METCALF V. TIMES PUBLISHING CO. IlOg 

meeting. Whether any member was in fraudulent possession of 
stock, or had mismanaged the affairs of the corporation, or whether 
the plaintiffs were unfit to continue as officers, or the corporation 
had been made bankrupt, were matters with which the public were in 
no way concerned. The meeting was for the stockholders alone. 
Only they or their duly constituted agents were entitled to be pres- 
ent. The meeting was neither public nor for a public purpose. As 
well might it be said that a private conference between the njembers 
of a partnership on partnership matters was a public meeting. For 
the purposes of the meeting it might have been necessary for charges 
to be made by one stockholder against another stockholder or an 
officer, and that the charges should be discussed and their truth or 
falsity determined ; and so far the actors were well within the privi- 
lege. They had a duty to perform in a matter in which all were in- 
terested. But for obvious reasons hereinbefore stated the mantle 
of protection cannot cover him who, having no interest, repeats the 
defamatory words to others also without interest. And in this mat- 
ter the conductor of a newspaper stands no better than any other 
person. As was said in Sheckel v. Jackson, lo Cush. 25, 26, 27, in 
a reply to a contention that conductors of the public press are en- 
titled peculiar indulgence and have especial rights and privileges, 
"the law recognizes no such peculiar rights, privileges, or claims to 
indulgence. They have no rights but such as are common to all. 
They have just the same rights that the rest of the community have, 
and no more." These words, although spoken more than half a 
century ago, state the law as it exists to-day, except so far as it has 
been modified by statute, and there has been no statute material to 
the question before us. The result is that the articles were not 
privileged so far as they reported the proceedings of the corpora- 
tion. 

It is argued by the defendants that inasmuch as the charge in 
the bill in equity was the same as that made at the meeting, namely, 
that the majority of the stock was in the fraudulent possession of the 
plaintiffs, it will be impossible for the plaintiffs to contend that any 
alleged damage was suffered from the one rather than the other, 
and therefore if one report is privileged the action cannot be main- 
tained. This is untenable. Even if the charge in substance is the 
same, it is evident that a charge made in a bill in equity filed in court 
may not be regarded as so serious a matter as a charge made by 
one's business associates in a business meeting. The difficulty of 
separating the damages gives no immunity to the defendants. 

Exceptions sustained. 



METCALF V. TIMES PUBLISHING CO. 
Appellate Division of the Supreme Court of Rhode Island, 1898. 20 R. I. 674. 

Trespass on the case for libel. Heard on demurrer to defend- 
ant's special plea in justification. 

Stiness, J. The plaintiff sues to recover damages for a libel 



mo METCALF V. TIMES PUBLISHING CO. 

alleged to have been printed in "The Evening Times," a newspaper 
in Pawtucket, published by the defendants. The declaration sets 
out that upon the filing of a bill in equity by Annie Campbell against 
the plaintiff and other associates in business, charging them with 
having conspired to defraud her deceased husband, Duncan H. 
Campbell, of certain letters patent of this and foreign countries, 
and, upon the order by a justice for citation an ex parte preliminary 
injunction, until hearing, the defendants published the charges of 
fraud, to the damage of the plaintiff. 

The defendants plead specially that the said Evening Times was 
a public newspaper; that they published said matters because they 
believed them to contain information which it was important for 
the public to know ; that said matters were a part of the public 
records of this court, upon which there had been judicial action, 
which, denying all malicious intent, it was lawful for them to do. 
The plaintiff demurs to the plea. 

The question of privileged communications is one that has been 
much considered, and certain lines may now be said to be well estab- 
lished. 

In The King v. Wright, 8 D. & E. 293, in 1799, which was an 
application for a criminal information for libel growing out of the 
Home Tooke case, it was held that a report of the House of Com- 
mons could be published, even though it reflected on the charac- 
ter of an individual. 

Hoare v. Silverlock, 9 C. B. 20, was to the effect that a full and 
impartial report of a trial in a court of justice could be published.^ 
Some stress was laid upon the distinction between a full trial and an 
ex parte proceeding, which, however, was not necessary to the 
decision of this case. 

Davison v. Duncan, 7 E. & B. 229, held that a fair report of 
defamatory matter uttered in a public meeting was not privileged. 

McGregor v. Thwaites, 3 B. & C. 24 (lO.E. C. L. 6), 1824, held 
that proceedings before a magistrate, not judicial but advisory, were 
not privileged, and Duncan v. Thwaites, 3 B. & C. 556 ( 10 E. C. L. 
179), extended the rule to proceedings which took place in the 
course of preliminary inquiry before a magistrate. 

Lewis v. Levy, E. B. & E. 535, questioned the decision in Dun- 



"■ Accord: McClure v. Review Publishing Co., 38 Wash. 160 (1905); 
American Publishing Co. v. Gamble, 115 Tenn. 663 (1905), unless the jjublica- 
tion is prohibited by the court or the subject-matter is unfit for publication, 
American Publishing Co. v. Gamble, semble; see Rex v. Clement, 4 B. & Aid. 
218 (1821) ; Rex v. Mary Carlile, 3 B. & Aid. 167 (1819), and Steele v. Bran- 
nan, L. R. 7 C. P. 261 (1872). 

See as to the right to report the proceedings of a body appointed by con- 
gress, a state legislature, or a municipal legislative body, to investigate mat- 
ters of public interest, Terry v. Fellows, 21 La. Ann. 375 (1869) ; Meteye v. 
Times-Democrat, 47 La. Ann. 824 (1895) ; and see Belo & Co. v. Wren, 63 
Tex. 686 (1884). 

The privilege is not peculiar to newspapers, any one may fairly report in 
writing or print, or repeat verbally, any judicial proceedings, Butt, L. J., in 
Milissich v. Lloyds, 46 L. J. C. P. 404 (1877), p. 407; Salmon v. Isaac, 20 
L. T. 885 (1869). 



METCALF V. TIMES PUBLISHING CO. IIIl 

can V. Thwakes, and although the case was -understood to hold that 
the privilege of a fair report extended to proceedings taking place 
publicly before a magistrate on the preliminary investigation of a 
criminal charge, terminating in the discharge of the prisoner, yet the 
court did not expressly decide that question. 

Reg. V. Gray, lo Cox Crim. Cas. 184, carried the rule to this 
extent, but the court was not unanimous in the decision. 

In Usil V. Hales, 47 L. J. (1878) 323, Lord Coleridge, C. J., 
fully adopted the apparent rule of Lewis v. Levy, and Lopes, J., 
concurring, said : "There are authorities which, until they are care- 
fully examined, would seem .to support the contention that an ex 
parte proceeding in courts is not privileged. So far as I can ascer- 
tain, these are cases where the proceeding was preliminary, and 
where there was no final determination at the time of the alleged 
libelous report." In Wason v. Walter, L. R. 4 Q. B. 73, the dictum 
of Cockburn, C. J., goes further, that fair reports of all ex parte 
procefedings are privileged. 

Ryalls V. Leader, L. R. i Exch. 296, held that the examination 
of a debtor in custody, before a registrar in bankruptcy, was a pro- 
ceeding before a public court, and hence privileged. 

In Kimber v. The Press Association, i Q. B. Div. (1893) 65, 
the court went to the full length of holding that the publication of a 
fair report of proceedings held in open court, though preliminary 
and ex parte, is privileged. This case is quite remarkable from sev- 
eral facts. It was an application to magistrates, specially called to- 
gether by the clerk, for a summons to one charged with perjury, and 
no evidence was given under oath. The application was granted, 
and one of the principal questions argued was whether it was an 
open court. It was also held that the matter was one for final de- 
termination, because if it was refused it would be final, and if it was 
granted there would be a further inquiry and the matter might go 
on to trial. 

Following the outline of leading decisions, in which there has 
been a gradual progress, the law of England seems now to be that a 
full and fair report of proceedings in an open court, upon a matter 
standing for final decision, even though the inquiry may be prelimi- 
nary and ex parte, is privileged. See opinion of Kay, L. J., in Kim- 
ber V. Press Association. 

In this country the law has been declared in very much the 
same way. In Cincinnati Gazette v. Timberlake, 10 Ohio St. 548, 
i860, it was held that privilege does not extend to the publication of 
preliminary proceedings merely, which are of a purely ex parte 
character. The opinion, however, follows the earlier English cases. 

Barber v. St. Louis Dispatch, 3 Mo. App. 377, laid down this 
rule : "Where a court or public magistrate is sitting publicly, a fair 
account of the whole proceedings, uncolored by defamatory com- 
ment or insinuation, is a privileged communication, whether the pro- 
ceedings are on a trial or on a preliminary and ex parte hearing. But 
the very terms of the rule imply that there must be a hearing of some 
kind. In order that the ex parte nature of the proceeding may not 



1 1 12 METCALF V. TIMES PUBLISHING CO. 

destroy the privilege — to prevent such a result — there must be at 
least so much of a public investigation as is implied in a submission 
to the judicial mind, with a view to judicial action." In this case a 
petition for divorce had been filed, but it had not been presented to 
a court at any sitting, with a view to judicial action. 

In Park v. Detroit Free Press, y2 Mich. 560, it was held that 
the publication of the pleadings or other contents of the files in a 
private suit before hearing, or action in open court, is not privi- 
leged.^ 

McBee v. Fulton, 47 Md. 403, held that an examination before 
a magistrate, whether the accused permits them to be ex parte or 
whether he makes defence, is privileged, upon the ground that it is 
a proceeding before a public court of justice. 

In New York, a, statute of 1854, limiting actions for the publi- 
cation of a fair and true report of judicial proceedings to, cases of 
malice, was held to be declaratory of the common law, in Ackerman 
V. Jones, 27 N. Y. Super. 42, and that under the statute an ex parte 
affidavit presented to a police magistrate to obtain a search warrant 
was privileged. 

Cowley V. Pulsifer, 137 Mass. 392, contains a full review of 
this subject by Mr. Justice Holmes. It was an action for libel in 
publishing a petition for the removal of an attorney from the bar, 
which had not been presented to the court. The question, there- 
fore, was quite different from the one before us, but the court 
assumes the rule, admitted by the plaintiff in that case, that the 
privilege attaches to fair reports of judicial proceedings, even if 
preliminary and ex parte. 

The rule, as thus stated, seems now to be settled as the law, 
both in England and this cpuntry, and it makes a clear line of dis- 
tinction between publications which are lawful and those which are 
not. 

It gives no license to publish libelous matter simply because it 
is found in the files of a court. As a publisher of news and items of 
public importance the press should have the freest scope ; but as a 
scandal-monger it should be held to the most rigid limitation. If a 



^Accord: Byers v. Meridian Printing Co., 84 Ohio St. 408 (1911), and 
cases cited therein, and in the note thereto in 38 L. R. A. (N. S.) 913; and 
Nixon V. Dispatch Printing Co., 101 Minn. 309 (1907), 12 L. R. A. (N. S.) 
188 with note, compare Thompson v. Pawning, IS Nev. 195 (1880). 

An accurate transcript of court records relating to any judicial proceed- 
ings is privileged, Andrews v. Nott Bower, L. R. 1895, 1 Q. B. 888, p. 896; 
Fleming v. Newton, 1 H. L. C 363 (1848), even though the record is itself 
inaccurate, McCabe v. Joynt, 1901, 2 Ir. R. 115, though a belated transcript 
of a record of judicial action since reversed, or the publication of a judgment 
as existing which has been satisfied, is not privileged, McNally v. Oldham, 
16 Ir. C. L. R. 298 (1863) ; Williams v. Smith, L. R. 22 Q. B. D. 134 (1888). 
But one reporting such records does so at his peril and the transcript is not 
privileged if inaccurate, Stubbs v. Russell, L. R. A. 913 A. C. 38; Ingram v. 
Reed, 5 Pa. S. C. 550 (1897). As to the right to publish transcripts from 
other records by statute open to the public, compare Reiss v. Perry, 11 Times 
L. R. 373 (1895), 64 L. J. Q. B. 566, with Connors v. Publishing Co.. 183 
Mass. 474 (1903). 



METCALF V. TIMES PUBLISHING CO. III3 

man has not the right to go around to tell of charges made by one 
against another, much less should a newspaper have the right to 
spread it broadcast and in enduring form. It is necessary to the 
ends of justice that a party should be allowed to make his charges 
against another, for adjudication, even though they may be of a- 
libelous character, and as such they are privileged, the injured party 
having a remedy for malicious prosecution when they are made 
maliciously or without probable cause. But the right of a party to 
make charges gives no right to others to spread them. When the 
charges come up for adjudication, however, although their publica- 
tion may be as harmful and distressing to the person accused as if 
they had been published before their consideration by a court, a dif- 
ferent rule applies. Individual feelings are no longer considered, for 
the reason, as stated by Judge Holmes : "It is desirable that the trial 
of causes should take place under the public eye, not because the 
controversies of one citizen with another are of public concern, but 
because it is of the highest moment that those who administer jus- 
tice should always act under the sense of public responsibility, and 
that every citizen should be able to satisfy himself with his own eyes 
as to the mode in which a public duty is performed." 

Accepting and applying the rule, as we understand it to be, two 
questions arise : First, does the plea set forth a proceeding before a 
court, and, second, does it aver to be a full and fair report. 

As to the first question, it sets out an application in chambers, 
upon a motion for' an ex parte injunction before and until a hearing. 
Ordinarily the only consideration which is, or can be, given to it is 
whether the bill states an exigfency upon its face sufficient to warrant 
an order to hold property in statu quo, until a hearing can be had. 
This is, indeed, a judicial matter, but of the most insignificant sort 
and very near to the border line. It is a matter submitted to a 
judge, and he acts upon it. It is within the rule and the cases which 
we have referred to, notably that of Kimber v. Press Association, 
supra. If this was not judicial action it would be difficult to say 
what would be, short of a full trial of the case. Although the mo- 
tion was in chambers, still, under our practice, as all such motions 
and interlocutory orders are made in chambers, technically we can- 
not say that it was not in court. The statutes provide for such mo- 
tions to be made to the court, and the provisions about the court "in 
chambers" are simply to distinguish such proceedings from those of 
the Appellate Division sitting in banc. We therefore decide that the 
plea sets out a sufficient statement of a proceeding in the court.* 

As to the second question, to bring the plea within the rule of 

'Accord: Beiser v. Scripps-McRae Publishing^ Co., 113 Ky. 383 (1902), 
application before a Justice of the Peace for permission to make an affidavit 
for the purpose of instituting a prosecution held to be a judicial proceeding, 
and this though the matter is not within the jurisdiction of the justice. Lee 
V. Union Publishing Co., 209 N. Y. 245 (1913). 

A mere complaint to the police is not a judicial proceeding, Jastrsembski 
V. Marxhausen, 120 Mich. 677 (1899), and see McCabe v. Cauldwelt, 18 Abb. 
Prac. 377 (N. Y. 1865), to the effect that a report of proceedings before a 
grand jury are not privileged. A report of what was done and said at an 



1 1 14 METCALF V. TIMES PUBLISHING CO. 

full and fair report, the plea is bad upon its face. It avers that 
what is published was only a part of the bill, and this part, so far as 
shown, was only the four paragraphs charging fraud. It does not 
aver that the defendants gave a full and fair report, even in sub' 
•stance, of the allegations and facts set out in the bill. The plea 
rests upon the fact that, as the bill had been before a judge in a 
judicial proceeding, it was a justification in publishing a part of it. 
That is not enough. If a garbled report of a trial, which may re- 
sult in a vindication of one accused, is not privileged, much less 
should unfair extracts from pleadings be privileged. This doc- 
trine is strongly set forth in caustic words by Endlich, J., in Com. v. 
Costello, I Pa. Dist. Rep. 745-752 : "1 prefer to rely upon the propo- 
sition, which seems to me incontestable, that, whether the proceeding 
be in a court of record or not, finished or unfinished, ex parte or 

execution is not privileged, Sanford v. Bennett, 24 N. Y. 20 (1861). 

Where the proceedings last more than one day, they may be reported 
from day to day as they progress, Lewis v. Levy, E. B. & E. S37 (18S8). But 
if the proceedings are finally concluded, a report which states only, the accu- 
sation and evidence against the accused and does not mention his subsequent 
triumphant acquittal, is not privileged, Grimwade v. Dicks et al., 2 Times 
L. R. 627 (1886). 

The report need not be verbatim, it' is enough if it is substantially fair 
and accurate, Campbell, C. J. in Andrews v. Chapman, 3 C. & K. 286 (1853) ; 
Connor v. Standard Publishing Co., 183 Mass. 474 (1903) ; Boogher v. Knapp, 
97 Mo. 122 (1888); D'Auxy v. Star Co., 64 N. Y. S.'283 (1900), and see 
Willman v. Press Co., 49 App. Div. 35 (1900 N. Y.). 

Only the report of the trial is privileged, Stanley v. Webb, 6 N. Y. Super. 
Ct. (4 Sandf.) 21 (1850) ; Post Publishing Co. v. Moloney, SO Ohio St. 71 
(1893); Moore v. Leader Pub. Co., 8 Pa. S. C. 152 (1898), and unsworn 
statements by bystanders are no part of the proceedings, Lynam v. Cowing, 6 
L. R. Ir. 259 (1880) ; and see McGee v. Kinsey, 1 Phila. 326 (Pa. 1852). Com- 
ment may not be interspersed, if any is made, it should be kept separate, 
Campbell, C. J., in Andrews v. Chapman, supra. And the report should ex- 
press no opinion on the conduct, guilt or motives of the parties, witnesses. 
Court or counsel. Rex v. Fisher, 2 Camp. 563 (1811) ; Lewis v. Walter, 4 B. 
& Aid. 605 (1821) ; Cass v. New Olreans Times, 27 La. Ann. 214 (1875) ; 
Scripps V. Reilly, 38 Mich. 10 (1878) ; and see Brown v. Providence Telegram, 
25 R. I. 117 (1903), and PAster v. Sentinel Co., 108 Wis. 572 (1901) ; nor may 
it draw untrue inferences, Hayes v. Press Co., 127 Pa. St. 642 (1889), a state- 
ment of a judgment entered against plaintiff, published under the headline 
"Merchant Embarrassed." Nor may it impute perjury to a party or witness, 
Stiles V. Nokes, 7 East 493 (1806) ; Rosenberg v. Nesbitt, 14 N. Y. St. 248 
(1888) ; Godshalk v. Metsgar,2i W. N.C.S41 (Pa. 1889). Conspicuous head- 
lines are permissible if a fair index to the report. Lawyers Co-operative Pub- 
lishing Co. v. West Publishing Co., 32 App._ Div. 585 (1898 N. Y.), but not if 
misleading, Hayes v. Press Co., supra, or if they assume the guilt of a per- 
son accused. Dorr v. United States, 195 U. S. 138 (1904) ; Pittock v. O'Neill, 
63 Pa. St. 253 (1869) ; and a fair and accurate report does not lose its privi- 
lege because accompanied by true information as to the parties involved, 
Johns V. Press Pub. Co., 61 N. Y. Super. Ct. 207 (1892). 

When the report stated that a certain fact "appeared in evidence" when it 
was merely asserted in a speech by counsel, it was held a matter for the jury 
to determine whether the report was a fair one, Ashmore v. Borthwick, 2 
Times L. R. 113-209 (1885), and see Hutchinson v. Robinson, 21 N. S. Wales 
L. R. 130 (1900). 

The burden of proving the report to be fair and accurate is on the de- 
fendant, the burden of showing it was published maliciously is on the 
plaintiff, Lord Esher in Kimber v. Press Assn., L. R. 1893, 1 Q. B. 65, p. 71. 



SWEET V. POST PUBLISHING CO. III5 

Otherwise, no individual and no newspaper has the right to publish 
mere arbitrary selections consisting of those portions which impute 
crime or moral turpitude to, or cast ridicule or odium upon, the 
party to whom they refer, and commending themselves only by 
what is sometimes called spiciness, but is more properly denominated 
filth, or by reason of the fact that they tickle the morbid appetite of 
perverted human nature, which delights in the spectacle of another's 
disgrace."* 

Upon this ground, therefore, the demurrer to the plea is sus- 
tained, and the case will be remitted to the Common Pleas Division 
for further proceedings. 



SWEET V. POST PUBLISHING CO. 
Supreme Judicial Court of Massachusetts, 1913. 215 Mass. 450. 

Morton, J. This is an action of tort to recover damages for 
the publication of an alleged libel upon the plaintiff, an attorney at 
law, in the "Boston Post" of August 13, 1907, a newspaper published 
by the defendant. The article complained of purported to give the 
names of six persons who had been indicted by the Suffolk County 
grand jury for conspiracy to defraud persons unknown and circum- 
stances connected with their arrest. Amongst the names given as 
those of the persons indicted and arrested was that of the plaintiff. 
There was also a paragraph in the same article giving particulars 
as to the age, residence and profession of "Mr. Sweet," which was 
descriptive of the plaintiff in the particulars mentioned. The article 
was printed in what may be fairly described as a highly sensational 
manner. The declaration was in three counts. The first count was 
in statutory form. The second and third counts averred that the 
plaintiff was an attorney at law and that the alleged libel had greatly 
injured him in his reputation and had caused him great loss and 
damage in his profession. The answer admitted publication but de- 
nied any malice, and set up in substance that the article was pub- 
lished with reasonable care, on a privileged occasion, about another 
person whose name was similar to that of the plaintiff, but that in 
spite of such a care a mistake occurred and that on discovering the | 
mistake the defendant promptly published a retraction. ' 

There was a verdict for the plaintiff and the case is here on 
exceptions by the defendant to a matter of evidence and to the re- 
fusal of the presiding judge to give certain rulings asked for and to 
certain instructions that were given. 

* Accord: Saunders v. Mills, 6 Bing. 213 (1829) ; Lewis v. Walter, 4 B. & 
Aid. 605 (1,821) ; Pinero v. Goodlake, 15 L. T. 676 (1867), the whole or part 
of the evidence not given. 

But the summing up of the judge may always be published separately — 
it is a distinct part of the proceedings not affected by others — and is pre- 
sumably a fair summary, Milissich v. Lloyds, 46 L. J. C. P. 404, 36 L. T. 423 
(1877), McDougall v. KrUght, L. R. 17 Q. B. Div. 636, L. R. 14 App. Cases 
194 (1889). 



IIl6 SWEET V. POST PUBLISHING CO. 

It was stated at the trial by the plaintiff's attorney that no 
claim of express malice was made. 

The principal contention of the defendant is that the occasion 
was one of privilege or qualified privilege, and that it is not liable 
for the consequences of a mistake honestly made in a bona Me at- 
tempt, in the exercise of reasonable care and diligence, to get at the 
facts for publication. 

The investigation and report by the grand jury constituted a 
judicial proceeding, and, in the absence of express malice, a fair 
and correct report of it by the defendant in the newspaper published 
by it was privileged. Cowley v. Pulsifer, 137 Mass. 392, 50 Am. 
Rep. 318. Kimball v. Post Publishing Co., 199 Mass. 248, 85 N. E. 
103, 19 L. R. A. (N. S.) 862. The privilege attaching to such re- 
ports rests, however, upon a somewhat different ground from that 
on which privileged communications between private persons rest. 
In them the person making the communication has an interest to 
protect or a duty to perform, or his relation to the party to whom the 
communication is made is of a confidential nature, and the law 
holds that in such cases, if what is said or written is communicated 
in good faith, in the belief that it is true, and with no malevolent 
motive and for the purpose of protecting or promoting his interest, 
or in the performance of a duty incumbent upon him, social or legal 
or moral, and is justified or required by the nature of the relations 
existing between him and the person to whom the communication 
is made, and does not go beyond what is fairly warranted by the 
occasion, the communication is privileged. But no duty rests upon 
the publishers of a newspaper to report judicial proceedings, and 
their interest \n such matters is only that which all the rest of the 
community has. It is for the interest of every one that crime should 
be detected and punished, and every one has the highest interest in 
whatever pertains to the proper administration of justice. It is upon 
these grounds that the reports of judicial proceedings fairly and 
correctly made are privileged. Cowley v. Pulsifer, 1^7 Mass. 392, 
50 Am. Rep. 318. Kimball v. Post Publishing. Co., 199 Mass. 248, 
85 N. E. 103, 19 L. R. A. (N. S.) 862; Kimber v. The Press Asso- 
ciation, Ltd., (1893) I Q. B. 65. In order to be privileged such re- 
ports must be not only fair and impartial, but they also must be 
accurate. The same principle which requires that they should be 
fair and impartial requires that they should be accurate, at least in 
regard to all material matters. Kimber v. The Press Association, 
Ltd., supra. A distorted report cannot in the nature of things form 
the basis for a correct judgment. In a sense it may make no differ- 
ence to the public so far as the course of judicial proceedings is con- 
cerned, whether it is John Smith or John Jones who is arrested. 
But the administration of justice would be a farce or worse than a 
farce if the guilty escaped and the innocent were punished, or if the 
rights of parties were determined in a manner in which according to 
plain principles of justice they should not be. It is of the highest 
consequence, therefore, in order to enable the public to judge right- 
ly, that a report of judicial proceedings should be not only fair and 



SWEET V. POST PUBLISHING CO. III7 

Jmpartial but should be accurate also. If the report had to be 
accurate, then the defendant is not protected by the alleged privilege. 
For, admittedly, the plaintiff was the person indicted. Nor can the 
defendant avail itself of the doctrine laid down in Hanson v. Glohe 
Newspaper Co., 159 Mass. 293, 34 N. E. 462, 20 L. R. A. 856, that 
in order to render a defendant liable the libel must have been pub- 
lished of and concerning the plaintiff, and it is not to be deemed to 
have been so published if through mistake another person than the 
one intended is named. It was in effect conceded at the trial that 
the plaintiff was the person meant although the naming of him was 
due to a mistake, and the presiding judge so stated in his charge 
without any objection being made thereto. 

The defendant contends, however, that it is not liable and is 
entitled to avail itself of the privilege extended to fair, impartial 
and accurate reports of judicial proceedings if it exercised reason- 
able care and diligence in endeavoring to ascertain what the facts 
were before it published the report and the mistake occurred in 
spite of such care and dili_gence and was an honest mistake. It 
would seem that the defense was disposed of, so far at least as this 
commonwealth is concerned, by the case of Burt v. Advertiser Co., 
154 Mass. 238, 28 N. E. I, 13 L. R. A. 97, where it was held that 
the privilege did not extend to statements made with reasonable 
cause to beheve them to be true. As was said in that case, "A per- 
son publishes libelous matter at his peril." A newspaper as a pur- 
veyor of news and information of interest to the public, stands no 
differently in respect to liability from any other medium of com- 
munication. No doubt when a person acts in the performance of a 
duty or in regard to a matter where his interest is involved, he may 
justify by showing that he had reasonable and probable cause to 
believe what he published and that he acted bona fide and in the 
belief that what he published was true. In such a case he will be 
protected by the privilege which attaches to what he publishes from 
the consequences of an honest mistake. In the present case, how- 
ever great the interest of the public in the doings of the grand 
jury might have been, there was, as already observed, no duty legal 
or social or moral resting upon the defendant to publish a report of 
them, and it had no such legal interest to be protected or promoted 
as to justify it in the publication of what otherwise would be a libel. 
It does not follow that because the public had an interest in knowing 
what the grand jury did that it was the defendant's duty to inform 
them.^ 

It follows from what has been said that the evidence which was 
offered of the examination of the city directory by the night city 
editor "as bearing upon the care which we took in and about the 
publication of this article" was rightly excluded. Whether it would 
have been admissible on the question of damages it is not necessary 
to consider. The purpose for which it was offered was limited to 
that expressed above, and the ruling was based on its competency 
for that purpose. 

'■Accord: Shelly v. Dampman, 1 Pa. S. C. 115 (1896). 



IIl8 CARR V. HOOD. 



SECTION 4. 



The Right to Comment upon Matters of PubUc Interest. ("Fair 

Comment.") 



SIR JOHN CARR, KNIGHT, v. HOOD. 

Court of King's Bench, at Nisi Prius, 1808. Reported in note to Tabar' ■", 
Tipper, 1 Campbell, 353. 

The plaintiff, who had written three books of travel, brought 
an action of libel against the defendant, who had published a parody 
on one of them. The parody ridiculed the book. and also contained a 
rather gross caricature of the author, depicting him leaving Ireland 
with his wardrobe in a handkerchief and a servant laden with three 
immense volumes, one marked with the name of one of the plain- 
tiff's productions. He alleged that in consequence a publisher, who 
was in treaty for his fourth production, refused to publish it, to his 
damage £600.^^ 

Plea, not guilty. 

Lord Ellenborough, as the trial was proceeding, intimated an 
opinion, that if the books published by the defendant only ridiculed 
the plaintiff as an author, the action could not be maintained. 

Garrow for the plaintiff allowed, that when his client came for- 
ward as an author, he subjected himself to the criticism of all who 
might be disposed to discuss the merits of his works ; but that criti- 
cism must be fair and liberal ; its object ought to be to enlighten the 
public, and to guard them against the supposed bad tendency of a 
particular publication presented to them, not to wound the feelings 
and to ruin the prospects of an individual. If ridicule was employed, 
it should have some bounds. While a liberty was granted of analyz- 
ing literary productions, and pointing out their defects, still he must 
be considered as a libeller, whose only object was to hold up an 
author to the laughter and contempt of mankind. The object of the 
book published by the defendants clearly was, by means of immod- 
erate ridicule, to prevent the sale of the plaintiff's works, and en- 
tirely to destroy him as an author. In the late case of Tabart v. 
Tipper, his lordship had held that a publication by no means so 
offensive or prejudicial to the object of it, was libellous and action- 
able. 

Lord Ellenborough. In that case the defendant had falsely 
accused the plaintiff of publishing what he had never published.^ 
Here the supposed libel has only attacked those works of which Sir 
John Carr is the avowed author; and one writer, in exposing the 

'■ The statement of facts alleged in the plaintiff's declaration is much 
condensed. 

'Merivale v. Carson, L. R. 20 Q. B. D. 27S (1887), caustic criticism of 
play and author based on misstatement of its plot and characters; Thomas 
V. Bradbury, Agnew & Co., L. R. 1906, 2 K. B. 627, attack on a biographer 



CARR V. HOOD. 1 1 19 

follies and errors of another, may make use of ridicule, however 
poignant. Ridicule is often the fittest weapon that can be employed 
for such a purpose. If the reputation or pecuniary interests of the 
person ridiculed suffer, it is damnum absque injuria. Where is the 
liberty of the press, if an action can be maintained on such princi- 
ples? Perhaps the plaintiif's Tour Through Scotland is now un- 
saleable ; — but is he to be indemnified by receiving a compensation 
in damages from the person who may have opened the eyes of the 
public to the bad taste and inanity of his compositions? Who would 
have bought the works of Sir Robert Filmer after he had been re- 
futed by Mr. Locke? But shall it be said that he might have sus- 
tained an action for defamation against that great philosopher, who 
was laboring to enlighten and ameliorate mankind ? We really must 
not cramp observations upon authors and their works. They should 
be liable to criticism, to exposure, and even to ridicule, if their com- 
position be ridiculous ; otherwise the first who writes a book on any 
subject will maintain a monopoly of sentiment and opinion respect- 
ing it. This would tend to the perpetuity of error. Reflection on 
personal character is another thing. Show me an attack on the 
moral character of this plaintiff, or any attack upon his character 
unconnected with his authorship,^ and I shall be as ready as any 
Judge who ever sat here to protect him ; but I cannot hear of malice 
on account of turning his works into ridicule. 

The Attorney General having addressed the jury on behalf of 
the defendants — 

Lord Ellenborough said : Every man who publishes a book 
commits himself to the judgment of the public, and any one may 
comment upon his performance.* If the commentator does not step 
aside from the work, or introduce fiction for the purpose of con- 
demnation, he exercises a fair and legitimate right. In the present 
case, had the party writing the criticism followed the plaintiff into 
domestic life for the purpose of slander, that would have been 
libellous : but no passage of this sort has been produced ; and even 
the caricature does not affect the plaintiff, except as the author of 
the book which is ridiculed. The works of this gentleman may be, 
for aught I know, very valuable ; but whatever their merits, others 
have a right to pass their judgment upon them — ^to censure them if 



for his misuse of "his abundant materials," which were in fact very scanty; 
Belknap v. Ball, 83 Mich. 583 (1890), candidate for congress erroneously 
reported as having made a speech showing ignorance alike of grammar and 
public questions; Stile v. Nokes, 7 East 493 (1806); Risk Allah Bey v. 
Whitehurst, 18 L. T. (N. S.) 615 (1868) ; Pur cell v. Sowler, L. R. 2 C. P. D. 
215 (1877), comment upon garbled and distorted reports, much of which 
was pure invention, of judicial proceedings and meetings of public boards, etc. 

=■ Compare Lord Tenterden, C. J. in MacLeod v. Wakley, 3 C. & P. 311 
(1828); and Dunne v. Anderson, 3 Bing. 88 (1825). 

* But criticism of private letters or privately circulated productions of 
public men. authors, artists or scientists is not with the protection of fair 
comment, Collins, M. R., Thomas v. Bradbury, Agnew & Co., 1906, 2 K. B. 
627, and Pollock, C. B., Gathercole v. Miall, IS M. & W. p. 334. Nor is 
(•riticism of the private acts of a private person, Snyder v. Fulton, 34 Md. 
)28 (1870). 



II20 CARR V. HOOD. 

they be censurable, and to turn them into ridicule if they be ridic- 
ulous.^ The critic does a great service to the public, who writes 
down any vapid or useless publication such as ought never to have 
appeared. He checks the dissemination of bad taste, and prevents 
people from wasting both their time and money upon trash. I 
speak of fair and candid criticism ; and this every one has a right to 
publish, although the author may suffer a loss from it. Such a loss 
the law does not consider as an injury because it is a loss which the 
party ought to sustain. It is in short the loss of fame and profits to 
which he was never entitled.® Nothing can be conceived more 

'■Accord: Strauss v. Francis, 4 F. & F. 939, 1107 (1866); Devereux v. 
Clarke, L. R. 1891, 2 Q. B. 582; Thofnas v. Bradbury, Agnew & Co., L. R. 
1906, 2 K; B. 627; Bowling v. Livingstone, 108 Mich. 321 (1896) ; McDonald 
V. Sun Publishing Co., Ill App. Div. (N. Y.) 467 (1906), semble; Triggs v. 
Sun Publishing Co., 179 N. Y. 144 (1904), semble, criticisms of literary pro- 
ductions; Merivale v. Carson, L. R. 20 Q. B. D. 275 (1887); McQuire v. 
Western Morning News, L. R. 1903, 2 K. B. 100; Cherry v. Des Moines 
Leader, 114 Iowa 298 (1901) ; Fry v. Bennett, 5 Sandf. 54 (N. Y. 1851) ; 
Dibdin v. Swan, 1 Esp. 28 (1792) ; Gott v. Pulsifer, 122 Mass. 235 (1877), 
criticisms of plays, acting, theatrical management and songs publicly sung, 
or other public exhibitions, Soane v. Knight, M. & M. 74 (1827) ; Whistler v. 
Ruskin, London Times, Nov. 27 and 28, 1878, cited in McDonald v. Sun 
Publishing Co., Ill App. Div. (N. Y.) 467 (1906) ; architecture and painting, 
Kelly V. Sherlock, L. R. 1 Q. B. 686 (1866), Klos v. Zahorik, 113 Iowa 161 
(1901), sermons publicly preached, but see Gathercole v. Miall, 15 M. & W. 
319 (1846) ; Hunter v. Shar/ie, 4 F. & F. 983 (1866) ; Henwood v. Harrison. 
L. R. 7 C. P. 606 (1872) ; Dakhyl v. Labouchere, L. R. 1908, 2 K. B. 325, n; 
scientific or medical discoveries. 

Every scheme, in which the public are asked to participate or patronize, 
every trade or profession openly soliciting public patronage, every private en- 
terprise which serves public needs or from its size affects the public, is 
regarded as open to fair criticism, Williams v. Chicago Herald, 46 111. App. 
655 (1893) ; Inland Printer Co. v. Economical, etc., Co., 99 111. App. 8 (1901) ; 
Crane v. Waters, 10 Fed. 619 (1882), construction, financial and operative 
management of a railroad; Archer v. Ritchie & Co., 18 Rettie 719 (Sc. Ct. 
Sess. 1891), management of the Order of Templars; South Hetton Coal Co. 
V. North Eastern News Assn., L. R. 1894, 1 Q. B. 133, sanitary condition of 
a village and the houses provided therein for two thousand work people. 
As showing the tendency to widen the field of permissible criticism, com- 
pare with the last case Gathercole v. Miall, 15 M. & W. 319. In Haynes v. 
Clinton Printing Co., 169 Mass. 512 (1897), it is doubted whether the guilt 
or innocence of one arrested for a crime is matter for public comment. 

' See the very acute criticism of Spencer Bower, K. C.^ in Actionable 
Defamation, pp. 380-384, especially p. 383. 

'In Eraser v. Berkeley, 7 C. & P. 621 (1836), it was held to be a libel 
and not "fair comment" to call an author "liar," "coward" and "pimp"; 
Triggs v. Sun Publishing Co., 179 N. Y. 144 (1904), statements in regard 
to the domestic life of a university professor, made in a criticism of a lec- 
ture publicly given by him. 

So the private character and morals of an artist or actor, except as 
exhibited in or affecting the character or quality of his public productions, 
is not a proper subject of "fair comment," Gathercole v. Miall, 15 M. & W. 
319 (1846), p. 338; Duplany v Davis, 3 T. L. R. 184 (1886). 

The private acts of a public officer or candidate for office is a subject 
of public interest and as such may be fairly commented upon, if, but only if, 
they tend to show the presence or absence of some trait of character in- 
compatible with or necessary to a proper discharge of his duties, Seymour v 
Butterworfh, 3 F. & F. 372 (1862) ; Bruce v. Leisk. 19 Rettie 482 (Sc. Ct. 
of Sessions 1892), semble, with which compare Alderson B. in Gathercole 



CAMPBELL V. SPOTTISWOODE. 1 121 

threatening to the liberty of the press than the species of action be- 
fore the Court. We ought to resist an attempt against free and 
liberal criticism at the threshold. The Chief Justice concluded by 
directing the jury, that if the writer of the publication complained 
of had not travelled out of the work he criticised for the purpose of 
slander, the action would not lie ; but if they could discover in it any 
thing personally slanderous against the plaintiff, unconnected with 
the works he had given to the public,' in that case he had a good 
cause of action, and they would award him damages accordingly. 

Verdict for the defendants. 



CAMPBELL V. SPOTTISWOODE. • 
Court of Queen's Bench, 1863. 3 Best & Smith, 769. 

CocKBURN, C. J.^ I am of opinion that there ought to be no 
rule. The article on which this action is brought is undoubtedly 
libellous. It imputes to the plaintifif that, in putting forth to the 
public the sacred cause of the dissemination of religious truth among 
the heathen, he was acting as an impostor, and that his purpose was 
to put money into his own pocket by obtaining contributions to his 
newspaper. The article also charges that, in furtherance of that 
base and sordid purpose, he published in his newspaper the name of 
a fictitious person as the authority for his statements, and still fur- 
ther that, with a view to induce persons to contribute towards his 
professed cause, he published a fictitious list. These are serious* 
imputations upon the plaintiff's moral as well as public character. 

It is said, on behalf of the defendant, that, as the plaintiff ad- 
dressed himself to the public in a matter, not only of public, but of 
universal interest, his conduct in that matter was open to public 
criticism, and I entirely concur in that proposition. If the pro- 
posed scheme was defective, or utterly disproportionate to the re- 
sult aimed at, it might be assailed with hostile criticism. But then 
a line must be drawn between criticism upon public conduct and 
the imputation of motives by which that conduct may be supposed 
to be actuated; one man has no right to impute to another, whose 
conduct may be fairly open to ridicule or disapprobation, base, sor- 
did, and wicked motives, unless there is so much ground for the im- 
putation that a jury shall find, not only that he had an honest belief 
in the truth of his statements, but that his belief was not without 
foundation. 

In the present case, the charges made against the plaintiff were 
unquestionably without foundation. It may be that, in addition to 
the motive of religious zeal, the plaintiff was not wholly insensible 
to the collateral object of promoting the circulation of his newspaper. 



V. Miall. 15 M. & W. 319 (1846), and Broadbent v. Small, 2 Vict. L. R. (Law) 
121 (1876), Wood V. Boyle, \77 Pa. St. 620 (1896). 

'The concurring opinion of Crompton J. and part of that of Mellor J. 
are omitted. 



1 122 CAMPBELL V. SPOTTISWOODE. 

but there was no evidence that he had resorted to false devices to 
induce persons to contribute to his scheme. That being so, Mr. 
Bovill is obliged to say that, because the writer of this article had a 
bona fide belief that the statements he made were true, he was 
privileged. I cannot assent to that doctrine. It was competent to 
the writer to have attacked the plaintiff's scheme; and perhaps he 
might have suggested, that the effect of the subscriptions which the 
plaintiff was asking the public to contribute would be only to put 
money into his pocket. ^ But to say that he was actuated only by 
the desire of putting money into his pocket, and that he resorted to 
fraudulent expedients for that purpose, is charging him with dis- 
honesty ; and that is going farther tljan the law allows. 

It is said that it is for the interests of society that the public 
conduct of men should be criticised without any other limit than 
that the writer should have an honest belief that what he writes is 
true. But it seems to me that the public have an equal interest in 
the maintenance of the public character of public men ; and public 
affairs could not be conducted by men of honor with a view to the 
welfare of the country, if we were to sanction attacks upon them, 
destructive of their honor and character, and made without any 
foundation. /I think the fair position in which the law may be set- 
tled is this : that where the public conduct of a public man is open 
to animadversion and the writer who is commenting upon it makes 
imputations on his motives which arise fairly and legitimately out 
of his conduct, so that a jury shall say that the criticism was not 
only honest, but also well founded, an action is not maintainable.* 
But it is not because a public writer fancies that the conduct of a 
public man is open to the suspicion of dishonesty, he* is therefore 
justified in assailing his character as dishonest.* 

The cases cited do not warrant us in going that length. In 
Paris V. Levy, 2 F. & F. 71, there may have been an honest and well- 
founded belief that the man who published the handbill which was 
commented upon, could only have had a bad motive in publishing it, 
and if the jury were of that opinion, the writer who attacked him in 
the public press would be protected. We cannot go farther than 
that. 



^But see Boal v. Scottish Catholic Printing Co., 1907 Scottish Ct. of 
Session Rep. 1120, where a query, as to what guarantee there was that money 
subscribed for a home would not go to the private profit of those soliciting 
the subscriptions, was held to go beyond fair comment. 

' Compare the language of the same judge in Morrison v. Belcher, 3 F 
& F. 614 (1863) ; Hedley v. Barlow, 4 F. & F. 224 (1865) ; Risk Allah Bey 
V. Whitehurst, 18 L. T. (N. S.) 615 (1868), and Reg. v. Tanfield, 42 T. P. 
423 (1878). 

*See Pallas, C. B. in Lefroy v. Burnside, 4 L. R. Ir. 556 (1879), p. 567, 
to the effect that no reasonable inference of guilt can be drawn from the 
fact that "a man having the means of committing a crime and the crime 
being in fact committed," and Haynes v. Clinton Printing Co., 169 Mass. 
512 (1897), and Commercial Publishing Co. v. Smith, 149 Fed. 704 (C. C. A. 
6th Circ. 1907), in which the plaintiff's guilt was insinuated or assumed upon 
insufficient grounds. 



CAMPBELL V. SPOTTISWOODE. 1 1 23. 

Blackburn, J. I also think that the law governing this case is 
so clearly settled that we ought not to grant a rule. It is important 
to bear in mind that the question is, not whether the publication is 
privileged, but- whether it is a libel. The word "privilege" is often 
used loosely, and in a popular sense, when applied to matters which 
are not, properly speaking, privileged. But, for the present pur- 
pose, the meaning of the word is that a person stands in such a 
relation to the facts of the case that he is justified in saying or writ- 
ing what would be slanderous or libellous in any one else. For in- 
stance, a master giving a character of a servant stands in a privileged 
relation. In these cases no action lies unless there is proof of ex- 
press malice. If it could be shown that the editor or publisher of a 
newspaper stands in a privileged position, it would be necessary to 
prove actual malice. But no authority has been cited for that 
proposition ; and I take it to be certain that he has only the general 
right which belongs to the public to comment upon public matters, 
for example, the acts of a minister of state ; or, according to modern 
authorities somewhat extending the doctrine, where a person has 
done or published anything which may fairly be said to invite com- 
ment, as in the case of a handbill or advertisement : Paris v. Levy, 
2 F. & F. 71. In such cases every one has a right to make fair and 
proper comment; and, so long as it is within that limit, it is no 
libel. 

The question of libel or no libel, at least since Fox's Act (32 G. 
3, C. 60), is for the jury ; and in the present case, as the article pub- 
lished by the defendant obviously imputed base and sordid motives 
to the plaintiff, that question depended upon another— whether the 
article exceeded the limits of a fair and proper comment on the 
plaintiff's prospectus ; and this last question was therefore rightly 
left to the jury. Then Mr. Bovill asked that a further question 
should be left to them, viz : whether the writer of the article honestly 
believed that it was true; and the jury have found that he did. We 
have to say whether that prevents an action being maintained. I 
think not. Bona fide belief in the truth of what is written is no de- 
fense to an action ; it may mitigate the amount, but it cannot disen- 
title the plaintiff to damages. Moreover that honest belief may be 
an ingredient to be taken into consideration by the jury in deter- 
mining whether the publication is a libel, that is, whether it exceeds 
the limits of a fair and proper comment ; but it cannot in itself pre- 
vent the matter being libellous. 

Mellor, J. I am of the same opinion. I should be unwilling 
to limit the right of a writer in a newspaper, or any other individual, 
to canvass any scheme, even though it be a scheme of public benevo- 
lence. tBut giving full latitude to fair comment, so soon as a writer 
imputes that the person proposing the scheme is doing it from a base 
and sordid motive, and is putting forth a list of fictitious subscribers, 
m order to delude others to subscribe, it cannot be said to be within 
the limits of fair criticism.' 

If comment is beyond the limits of fair criticism it becomes a 



1 1 24 NONPAREIL CORK MFG. CO. V. KEASBEY &C. CO. 

libel. And I agree that the question in this case is, libel or no libel. 
If the words were used upon a justifiable occasion, no action could 
be maintained; for the interest and exigencies of society require 
that there should be free communication between parties who have a 
duty, either moral or legal, to discharge toward each other, as in 
the common case of a master giving the character of a servant, in 
which defamatory words are privileged unless proved to be false 
and malicious. But in the present case there was no legal or moral 
duty on the writer to make these imputations upon the plaintiff. 



NONPAREIL CORK MANUFACTURING CO v. KEASBEY 
& MATTISON CO. 

Circuit Court, E. D. Pennsylvania, 1901. 108 Federal Reporter 721. 

Action for libel. On demurrer to plaintiff's statement. 

Dallas, Circuit Judge. ^ It is alleged that the defendants pub- 
lished a circular letter containing the following : 

"Cork has been recently exploited in various cities of the 
United States as a steam pipe and boiler covering. When it was 
first presented for our consideration, we expressed the opinion that, 
it being organic, it would carbonize and burn, as hair felt does; 
that under the most favorable conditions it carried with it an ele- 
ment of danger ; and that it never could become a permanent stand- 
ard material for the covering of heated surfaces. We refer you 
herein, without further comment, to localities and people that have 
had practical experience with cork covering, and, from the nature 
of the reports we have concerning the same, feel warranted in con- 
tinuing to believe that our opinion, as above stated, as to cork's value 
for covering steam pipes and boilers, was correct." 

As to this matter the innuendo is : 

"Meaning and intending thereby that the covering so manufac- 
tured and sold by the plaintiff was inferior in quality and character 
to other coverings, and especially to the coverings manufactured 
and sold by the defendants, and that it was unfitted for the purpose 
for which it was sold, and that the use thereof was dangerous." 

The action is not strictly an action of libel, but a special action 
on the case for disparaging the plaintiff's goods ; and, with refer- 
ence to this view of it, I deem it necessary only to repeat what was 
said by Lord Denman in Evans v. Harlow, 5 Q. B. 624 : 

"A tradesman who offers goods for sale exposes himself to ob- 
servations of this kind, and it is not by advertising them to be false, 
scandalous, and malicious and defamatory that the plaintiff can 
found a charge of libel upon them. To decide so would open a very 

^ Only so much of the opinion is given as relates to the disparaging im- 
putations upon the plaintiffs' wares. 



CLIFTON V. LANGE. 1 125 

wide door to litigation, and might expose every man who said his 
goods were better than another's to the risk of an action."^ 

From the whole declaration it plainly appears that what the 
defendants are charged with is really but the expression of an un- 
favorable opinion of the goods of its competitor. But such expres- 
sions are not uncommon among rivals in trade, and their correct- 
ness in each instance is for determination by those whose custom is 
sought, and not by the courts. Judgment for defendant. 



CLIFTON V. LANGE. 
Supreme Court of Iowa, 1899. 108 Iowa, 472. 

Appeal from district court. Pocahontas county; W. B. Quar- 
ton. Judge. 

Action at law to recover damages caused by the publication by 
the defendant, in a weekly newspaper, of the following, of and con- 
cerning the plaintiff: "Modern Justice (?). Should two men hold 
up a third man on the streets of Laurens in broad daylight, and rob 
him of $65 to $75, the robbers would be sure to serve a term in the 
penitentiary, and the authorities might find it difficult to prevent 
them from being lynched. Yet modern justice, in the disguise of 
law, committed a crime equally as great a few days ago, and the 
methods employed and tactics plied were no more dishonorable than 
highway robbery. The parties who did the holding up were J. S. 
Clifton, a justice of the peace, and J. W. Convy, a constable, and 
the party they attempted to rob was Chas. Snider; and they proba- 
bly would have succeeded, had not the matter become public, and 
outsiders came to his rescue in time to appeal to a higher court, 
where snap judgments are not engineered by the aid of the court, 
and save his home from being sold on a judgment rendered by two 
vultures sitting ready to pounce upon and divide the spoils. Did 
J. S. Clifton do as he would like to be done by if he was in Snider's 
place? Did he give both sides justice? Was there any honorable 
act done by the justice from start to finish? If so, what? Could 
the James gang have done worse, had they presided in Clifton's 
place? Take down these signs of 'Justice,' and print in large let- 



^ In Evans v. Harlow, supra, the defendant's circular stated that "those 
who have already adopted (the plaintiff's) lubricators, . . . will find that 
the tallow is wasted instead of being effectually employed." See Christiancy, 
J., in Weiss v. Whittemore, 28 Mich. 366 (1873), "both the plaintiff and the 
defendant were at entire liberty to recommend that for which they were 
respectively the agents, as superior to the other; to point out all its ad- 
vantages, as well as all the defects of the other, so long as they con- 
fined themselves to their own views, and such proofs as they were able to 
offer, and a reasonable latitude should, of course, be allowed for each to 
puff his own." 



1 126 CLIFTON V. LANGE. 

ters, and hang there instead, the more appropriate sign of 'Modern 
Crucifixion.' Honorable justices and constables are essential and 
necessary to every community, but when they become hawks and 
vultures, perched in dark corners waiting for some weakling to fall 
by the wayside, and pounce upon them and devour them because 
they are weak, poor and helpless, then, the sooner they are exposed 
and receive deserved punishment, the better it will be. Now, right 
here is where the dishonorable act of the court comes in, and where 
the gross and dishonest prejudice of J. S. Clifton, the justice of the 
peace, helped in the rotten and infernal steal. He knew that Paige 
was Snider's attorney ; he knew that, if Snider was able to conduct 
the case himself, he would not have' hired an attorney,' and as Paige 
was the first attorney to appear in the case and had only left the 
room to get authorities to cite, why did he not wait until Paige got 
back? Why did he not give the defendant one-tenth of the cour- 
tesy he had extended to the plaintiff by running around town and 
apprising him that the case would be contested on the part of the 
defendant ? Why did he not do that, we ask ? He shows by his act 
that he was a party to the theft and dishonorable act." 

Verdict and judgment were rendered in favor of the plaintiff 
for $2CX). Defendant appeals. 

Given; J. In view of the question involved, we regret that the 
case is submitted without argument for appellee. The publication 
is conceded to be libelous and actionable per se. By the first division 
of the answer, we have the single issue whether it was maliciously 
published, and it was upon this issue that the case was submitted to 
the jury. The defendant, "for a second and complete defense. . . . 
states that every fact charged" in the publication to have been done 
by plaintiff "was the truth, and in fact done as therein charged." 
Such a plea must be as broad as the charge made. This is not so. 
It merely pleads as true what are stated to have been the acts of the 
plaintiff, and does not plead the truth of the libelous charges. To 
plead that part of the charge is true is not sufficient; the entire 
libelous charge must be alleged to be true ; and, if this was the de- 
fendant's purpose, he should have pleaded it in unmistakable lan- 
guage. 

In the fifth division of the answer it is alleged, as a complete 
defense, that said publication is privileged. The law is well settled 
that a fair and true publication, without malice, of a prejudicial pro- 
ceeding, or of anything stated as part thereof, or "a criticism of an 
official act of a public officer, made without malice, and not contain- 
ing any attack upon his private character," is privileged. Townsh. 
Sland. & L., § 208, and note ; McBee v. Fulton, 47 Md. 403 ; McAllis- 
ter V. Press Co., (Mich.) 43 N. W. 431 ; 13 Am. & Eng. Enc. Law, 
419. The publication admitted to have been made is not privileged, 
for the reason that it contains an attack upon the private character 
of the plaintiff, and it is not, therefore, a privileged publication ; and 



MCDONALD V. SUN PRINTING &C. CO. II27 

there was no error in sustaining the demurrer to the fifth division of 
the answer.^ 



McDonald v. the sun printing & publishing co. 

Supreme Court of New York, 1904. 45 N. Y. Misc. Rep. 441.. 

Gaynor, J. The alleged defamatory article gives the following 
facts: The plaintiff was employed in the Bureau of Education of 
the national government at Washington for several years under the 
title of "Specialist in Education as a Preventative of Pauperism and 
Crime." He published a personal advertisement in newspapers that 
a gentleman of high social and university position desired corre- 
spondence with young educated women of high social and financial 
position, and that they must give detailed accounts of their lives. 
He gave no name, but a lock-box in the Post Office at Washington, 
D. C., as his address. The plaintiff corresponded with the women 
who answered (which his evidence shows to have been a large num- 
ber) , and got them to write all he could concerning themselves. He 
also made appointments with some of them (he testified forty to 
fifty) in streets and public places, and in some cases in their homes, 
or other private houses, and met them, and talked with them. He 
then wrote a book with the title "Girls Who Answer Personals," 
out of the materials he had thus collected, and sold it for fifty cents 
a copy through his lock-box. On the title page he put "Dr." before 
his name, but he was not a doctor of any kind. 

The defendant put the book in evidence. It contains many of 



'^ Accord: Bearce v. Bass, 88 Maine 521 (1896), semhle, in which a 
criticism of the bad construction of a building was held fair comment 
because it attacked only the work and not the personal character of the 
contractor; Bee Publishing Co. v. Shields, 68 Nebr. 750 (1903), suggestion 
that a district attorney's failure to prosecute gamblers was due to bribery ; 
W afford v. Meeks, 129 Ala. 349 (1900), in which it is intimated that to char- 
acterize a public officer's official acts, in terms usually reserved for accusa- 
tions of crime, is not fair comment; compare Speight v. Syme, 21 Vict. L. R. 
(Law) 672 (1895) ; and see Sweeney v. Baker, 13 W. Va. 158 (1878), Note 3 
to Coleman v. MacLennan, ante. 

In many of the cases where it is stated, in various forms, that, while the 
fitness of a candidate or officer for the office as shown by his official or even 
private conduct may be discussed, neither improper motives nor criminality 
may be imputed to him, there was an untrue statement of his acts or con- 
duct, or a general insinuation against or characterization of his con- 
duct, in form perhaps comment, but without any, or, if any, an incomplete 
statement of the acts and conduct so characterized. People v. Puller, 238 
111. 116 (1909) ; Russell v. Washington Post, 31 D. C. App. 277 (1908) ; 
Dauphiny v. Buhne, 153 Cal. 757 (ISOS) ; and Tanner v. Embree, 9 Cal. App., 
481 (1908), in which charges of gross official misconduct were called by 
the court attacks on the plaintiff's "personal character" ; Mattice v. Wilcox, 
147 N. Y. 624 (1895) ; Upton v. Hume, 24 Ore. 420 (1893), and see cases 
cited in Coleman v. MacLennan, ante, — , and notes thereto, and 23 Harv. 
L. R. 432, n. 2, and 433, n. 1 and 2. 



II28 MCDONALD V. SUN PRINTING &C. -CO. 

the letters of the women who wrote to the plaintiff. It also gives the 
particulars of the personal interviews he had with some of them, 
including in some cases their physical appearance, manner and tem- 
perament. The rest of the book is made up of general matter and 
comment pertaining to the sexual instinct and the relation of the 
sexes. 

There is no fact in dispute. This brings the case under the 
head 'that if the facts be undisputed, and different inferences may 
not be drawn from them, it is for the court to direct a verdict. I 
sent it to the jury on the question whether the inferences of fact 
drawn and expressed by the defendant, and upon which the charge 
of defamation depends, were reasoftably possible and therefore per- 
missible. 

Those inferences are, in substance, that the conduct of the 
plaintiff and the book were a "scandal," "shameless," and that the 
plaintiff was a "prurient." Around these words cling all that was 
claimed to be or deemed defamatory on the trial. 

The occasion of the defendant's criticism was that plaintiff 
was working to get Congress to pass a bill which he had prepared 
to establish in the Department of Justice a "laboratory for the study 
of the abnormal classes," with the object of having himself em- 
ployed by the government to run it, he having been dropped from the 
Bureau of Education ; all of which is revealed in the article sued 
upon. 

The plaintiff claimed in the witness box on cross-examination 
that he collected the material, and wrote and circulated the book, 
from pure and worthy motives, solely in the interest of the study and 
development of the science of criminology, for the benefit of the 
human race. He said that his object was to study women who are 
at the border line between chastity and looseness, with a view to the 
future help and preservation of such women. 

The plaintiff was holding his said position in the Bureau of 
Education when he did all of these things, but he did not do them 
for the government, or get permission therefor of those over him, 
or file the material he collected with the bureau in which he was 
employed, but used it for his own profit in the way already stated. 

Though the plaintiff testified on cross-examination in respect 
of his motives and object, I did not and do not deem the evidence 
relevant or competent. On the contrary, the question is not wheth- 
er he can now in the witness box convince a jury of the purity of 
his motives and object, but what inferences were and are permissible 
to the defendant or any one else in discussing his book and his con- 
duct, and his personality as revealed thereby. It may be that the 
plaintiff is even able by his persuasive powers to now convince the 
defendant that in drawing the inferences from his book which it did 
unaided by his presence and explanation, it was mistaken, but that 
would be wholly immaterial. The question is, did his book and con- 
duct justify such inferences? 



MCDONALD V. SUN PRINTING &C. CO. II29 

Any one who publishes a book, or does any public act, chal- 
lenges discussion and criticism. Every one has the right to indulge 
in such discussion and criticism freely and fully, and to draw infer- 
ences and express opinions on the facts in the same way. That his 
opinions and inferences are far fetched, high strung or severely 
chaste or moral, or contrary to other inferences or opinions that 
seem more reasonable, does not matter so long as there be a basis 
for them. The opinion of the smallest minority often becomes the 
opinion of a majority or of all. The prevailing opinion of one gen- 
eration often becomes such an absurdity to the next, that the wonder 
then is how any one ever entertained it, as John Stuart Mill says. 
It is for this reason that the law gives full latitude in the expression 
of opinions on things of general concern. So long as such discus- 
sion and criticism keep within matters of reasonable opinion on the 
facts, they cannot be defamatory. If, on the contrary, the personal 
character of the individual be touched by false statements, or by 
asperations with no facts to rest upon, the writer is on the common 
ground of defamation. 

Criticism is no exception in the general law of defamation, 
though some dicta would lead one to suppose that it is. A critic is 
no more permitted to make false aspersions or statements of fact 
which are defamatory than any one else. Criticism is an expression 
of opinion on facts from which differences of opinion may reason- 
ably arise, and if it sticks to that, it is not defamatory, no matter 
though it be severe, hostile, rough, caustic, bitter, sarcastic or satir- 
ical, for these are the weapons of criticism -^ and no matter how 
different the opinion may be to the opinion of others, or of a major- 
ity, however great, provided it derives its color from the facts. 

In the present case the plaintiff is charged with pruriency, 
scandal and shamelessness. This affects his personal character. If 
his book and his conduct lay him open to the charge, the defendant 
did not go outside the realm of criticism, and is not liable. If they 
do not, then the defendant is liable. 

It is not always easy to determine whether the question pre- 



* Compare Merivale v. Carson, L. R. 20 Q. B. D. 275 (1887), "Every 
latitude must be given to opinion and prejudice. Mere exaggeration, or 
even gross exaggeration, would not make the comment unfair. However 
wrong the opinion expressed may be in point of truth, or however preju- 
diced the writer, it may still be within the prescribed limit. The question 
which the jury must consider is this — would any fair man, however preju- 
diced he may be, however exaggerated and obstinate his views, have said 
that which this criticism has said of the work criticized" — Lord Esher, pp. 
280-281. "It must be assumed that a man is entitled to entertain any opinion 
he pleases, however wrong, exaggerated or violent it may be. In the case of 
literary criticism it is not easy to conceive what would be outside of that 
region of fair criticism, unless the writer went out of his way to make a 
personal attack on the author" — Bowen, L. J., pp. 283-284. See Triggs v. 
Sun Printing and Publishing Co., 179 N. Y. 144 (1904), where the critic 
was held to have gone out of his way to attack the author's personal char- 
acteristics. 



1 130 MCDONALD V. SUN PRINTING &C. CO. 

sented, i. e., the question whether the inference drawn and expressed 
by the defendant is a reasonably possible one, and therefore per- 
missible, is one of law or one of fact, i. e., a question to be decided 
by the court, or one to be decided by the jury. Cases could be 
imagined in which the question would be one of law. If, for in- 
stance, one should write advocating murder, it would be for the court 
to rule that the inference that he was a murderous character was 
permissible. Murder is an unmistakably defined crime, and there 
can be no doubt about what it is. 

But what of pruriency? It is an elastic term. Matter and con- 
duct which some people deem prurient other good people deem 
chaste. There is no fixed standard of pruriency. It is largely a 
matter of education and taste. And the same is true in respect of 
scandal and shamelessness. 

Nevertheless, one may do or say or write things that are beyond 
question scandalous, shameless and prurient, and that would be a 
case presenting a question of law and not of fact. But I am fully 
convinced that the present is not such a case. I have looked over 
the book carefully, and considered the plaintiff's conduct, and I 
think the question was for the jury, i. e., it was for them to say 
whether the inferences drawn by the defendants from the facts 
were reasonably possible and therefore permissible. If the infer- 
ences be false, i. e., such as the facts will not bear at all, then they 
are defamatory. It is not enough in a given case that the jury dis- 
agree with the inferences.^ The question is whether they may be 
reasonably drawn, as matter of argument, although other and oppo- 
site and, in the opinion of many or most people, better inferences 
may also be drawn. 

The case of Whistler v. Ruskin serves as an illustration. There 
the greatest English art critic of the last century wrote of one who 
bids fair to rank as the greatest English artist of the last century : 
"For Mr. Whistler's own sake, no less than for the gallery of the 
purchaser. Sir Coutts Lindsay ought not to have admitted works into 
the gallery in which the ill-educated conceit of the artist so nearly 
approached the aspect of wilful imposture. I have seen and heard 
much of cockney impudence before now, but never expected to hear 
a coxcomb ask 200 guineas for flinging a pot of paint in the public's 
face." The words "wilful imposture" were held by the jury (for it 
was left to the jury) to be a false aspersion or statement of fact 
involving the personal integrity of the plaintiff, and not an expres- 
sion of opinion concerning his art or him as an artist. An inference 
of imposture was held not permissible by the jury. It was not taken 
to itself as a question of law by the court, although it would seem 
that the inference to be drawn from the picture and the fact of its 
sale by the plaintiff for a work of his art was closer to being a 
question of law than is the question here ; for whether it was a work 
of art instead of a daub was necessarily a matter of opinion, and the 



""'Accord: McQuire v. Western Morning News, L. R. 1903, 2 K. B. 100. 



HUNT V. STAR NEWSPAPER CO. II3I 

artist was entitled to his opinion, and to rate the vaiUe of his work 
on his opinion. 

The motion to direct a verdict, and also the motion for a new 
trial, are denied.' 



HUNT V. STAR NEWSPAPER CO., LTD. 

Court of Appeal, 1908. Law Reports, 1908, 2 King's Bench Div. 309. 

Cozens-Hardy, M. R. This is an application for a new trial 
on the ground of misdirection. The action was for libel, based upon 
two articles in the Star and the Morning Leader newspapers. The 
articles complained of related to the plaintiff, who was deputy re- 
turning officer at the Caxton Hall polling station at the election for 
the London County Council in March, 1907. I do not think it neces- 
sary to read the articles in full. The article in the Star is headed 
"In Westminster. Serious Allegations made by Progressive Candi- 
dates ;" and the article in the Morning Leader is headed, "Obstruct- 
ing Progressives. Extraordinary Action by Westminster Polling 
Official." Each article stated certain alleged facts with reference to 
what took place in the Caxton Hall and, as the plaintiff asserts, 
charged the plaintiff with not having acted honestly in the discharge 
of his statutory duties as deputy returning officer, and as having 
been influenced by political bias with intent to prejudice the Pro- 
gressive candidates. The defendants pleaded, as a separate defense, 
that in so far as the said words consisted of comment the same 
were fair and bona fide comment upon a matter of public interest 
and importance. The learned judge dealt with the plea of fair com- 
ment as follows : "If a newspaper publishes exactly what took place 
with no comment whatever, they would be justified in so doing as a 
matter of public interest, but if they add to that comment of their 
own, then the question is whether that comment was bona fide and 
■fair comment, or whether it was comment which tended, as alleged 
here, to charge the plaintiff with improper conduct." And at the 
end of the summing up he says this : "If you come to the conclusion 
that they are libels and are such as would have a tendency to preju- 



^See McDonald v. Sun Publishing Co., HI App. Div. (N. Y._) 467 
(1906), two later attacks by the same paper on the same plaintiff as in the 
principal case, the latter of them insinuating that his researches were merely 
a pretext for gratifying his indecent curiosity and lubricity, and Triggs v. 
Sun Printing and Publishing Co., 179 N. Y. 144 (1904), in all of which the 
articles were held to go clearly beyond the limit of fair comment. In the 
last case it was said that "the critic . . . can not allow himself to run 
into reckless and unfair attacks merely for the purpose of exercising his 
power of denunciation;" compare the statement of Collins, M. R. in Mc- 
Quire v. Western Morning News, L. R. 1903, 2 K. B. 100, that "Criticism 
can not be used as a cloak for mere invective." 

A charge of plagiarism is undoubtedly an attack on the character of an 
author as author, and was held actionable in Dibdin v. Swan, 1 Esp. 28 
(1792), and see McLellan v. Button, London Times, May 23 (1906), and 
Bower, Actionable Defamation, Appendix XII, sec. 6. 



1 132 HUNT V. STAR NEWSPAPER CO. 

dice the plaintiff in his position of town clerk of Westminster and of 
presiding officer and deputy returning officer of the county council 
elections, then you must give him your verdict. Then the next ques- 
tion is, whether the defense is made out that the accounts given in 
these two articles of what happened at the Caxton Hall on this oc- 
casion were true in substance, and in fact, as far as they related to 
the details. of what took place at the Caxton Hall. Then, as far as 
comment is concerned, you will consider whether that comment is 
fair and bona fide comment, or whether it is for the purpose of sug- 
gesting, as is alleged by the plaintiff, that he was acting in an im- 
proper way." I regret that no separate questions were) left to the 
jury. A general verdict was fqynd in favor of the plaintiff with 
iSoo damages. Now it seems to me that the learned judge did not 
properly direct the jury as to the meaning and effect of the plea of 
fair comment. The words which I have read seem to indicate that 
that cannot be fair comment which tends to prejudice or to impute 
blame to the plaintiff. In my opinion that is not the law. I cannot 
do better than adopt the language of Kennedy, J., in Joynt v. Cycle 
Trade Publishing Co., ( 1904) 2 K. B. 292, "The comment must . . . 
not misstate facts, because a comment cannot be fair which is built 
upon facts which are not truly stated, and, further, it must not 
convey imputations of an evil sort, except so far as the facts, truly 
stated, warrant the imputation." And in Dakhyl v. Labouchere, 
Lord Atkinson said: "A .personal attack may form part of a fair 
comment upon given facts truly stated if it be warranted by those 
facts — in other words, in my view, if it be a reasonable inference 
from those facts. Whether the personal attack in any given case 
can reasonably be inferred from the truly stated facts upon which 
it purports to be a comment is a matter of law for the determina- 
tion of the judge before whom the case is tried, but if he should 
rule that this inference is capable of being reasonably drawn, it is 
for the jury to determine whether in that particular case it ought to 
be drawn." In substance it seems to me that the issue of fair com- 
ment was not left to the jury. It is highly probable that the jury 
thought that the facts were not truly stated, in which case the ver- 
dict for the plaintiff would be plainly justified ; but it is also possible 
that they thought that, although the facts were truly stated, they 
must, as the learned judge told them, find for the plaintiff, if in the 
view of the jury the articles in question imputed improper conduct 
to the plaintiff. In my opinion the defendants are entitled to have 
a new trial in which both the issues raised by them' may be pre- 
sented to a jury with a proper and adequate direction. There must 
be an order for a new trial, but under the circumstances I think the 
costs of this appeal, as well as of the first trial, should abide the re- 
sult of the second trial. 

Fletcher Moulton, L. J. With the greater part of the argu- 
ment that was addressed to us by counsel for the appellants in this 
case I thoroughly disagree. That argument was based mainly upon 
an application of the language of the judgment in Merivale v. Car- 
son, 20 Q. B. D. 275, at p. 231, to the case of the imputation or cor- 



HUNT V. STAR NEWSPAPER CO. 1 1 35 

rupt or disgraceful motives to an individual, and the contention was 
that, if in his comment upon facts a writer attributed such motives 
to an individual, such language was covered by the plea of fair 
comment unless the views it expressed could not be held by any fair 
man, however prejudiced he might be and however exaggerated 
and obstinate his views. In my opinion this is a complete misappre- 
hension of the law as laid down by that case, and is absolutely op- 
posed to what is now settled law with regard to fair comment. The 
case of Merivale v. Carson, supra, related to a criticism upon a 
play, and not to a question of libel on personal character, and the 
language of the judgments in that case shows that both the eminent 
judges who decided it intended to deal with literary criticism. The 
law laid down by the decision in that case has, therefore, nothing to 
do with personal libels such as that imputation of disgraceful mo- 
tives to an individual. In order to demonstrate this it is only neces- 
sary to quote what may be said to be the leading passage in the 
judgment of Lord Esher. He says : "What is the meaning of a 'fair 
comment' ? I think the meaning is this. Is the article in the opinion 
of the jury beyond that which any fair man, however prejudiced or 
however strong his opinion may be, would say of the work in ques- 
tion? Every latitude must be given to opinion and to prejudice, and 
then an ordinary set . of men with ordinary judgment must say 
whether any fair man would have made such a comment on the 
work. It is very easy to say what clearly would be beyond the limit. 
If, for instance, the writer attacked the private character of the 
author." With this language as applied to literary criticism, I fully 
agree, but it gives no support to the contention of the counsel for the 
appellants in the present case, seeing that we have here to deal with 
imputations of motives which unquestionably amount to attacks on 
the character of the plaintiff. 

The law as to fair comment, so far as is material to the present 
case, stands as follows : In the first place, comment in order to be 
justifiable as fair comment must appear as comment and must not 
be so mixed up with the facts that the reader cannot distinguish 
between what is report and what is comment ; see Andrews v. Chap- 
man, (1853) 3 C. & K. 286. The justice of this rule is obvious. 
If the facts are stated separately and the comment appears as an 
inference drawn from those facts, any injustice that it might do will 
be to some extent negatived by the reader seeing the grounds upon 
which the unfavorable inference is based. But if fact and comment 
be intermingled so that it is not reasonably clear what portion pur- 
ports to be inference, he will naturally suppose that the injurious 
statements are based on adequate grounds known to the writer 
though not necessarily set out by him. In the one case the insuffi- 
ciency of the facts to support the inference will lead fair-minded 
men to reject the inference. In the other case it merely points to the 
existence of extrinsic facts which the writer considers to warrant 
the language he uses. IJn this relation I must express my disagree- 
ment with the view apparently taken by the Court of Queen's 
Bench in Ireland in the case of Lefroy v. Burriside, 4 L. R. Ir. C. 



tI34 HUNT V. STAR NEWSPAPER CO. 

L. 556, where the imputation was that the plaintiffs dishonestly and 
corruptly supplied to a newspaper certain information. The court 
treated the qualifications "dishonestly" or "corruptly" as clearly 
comment. In my opinion they are not comment, but constitute alle- 
gations of fact. It would have startled a pleader of the old school 
if he had been told that, in alleging that the defendant "fraudulently 
represented," he was indulging in comment. By the use of the word 
"fraudulently" he was probably making the most important allega- 
tion of fact in the whole case. Any matter, therefore, which does 
not indicate with a reasonable clearness that it purports to be com- 
ment, and not statement of fact, cannot be protected by the plea of 
fair comment. In the next place,Jn order to give room for the plea 
of fair comment, the facts must be truly stated. If the facts upon 
which the comment purports to be made do not exist the foundation 
of the plea fails. 

Finally, comment must not convey imputations of an evil sort 
except so far as the facts truly stated warrant the imputation. This 
is the language of Kennedy J. in Joynt v. Cycle Trade Publishing 
Co. It is based on the judgments in Campbell v. Spottiswoode, 3 B. 
& S. 769, a case of the highest authority, and is, in my opinion, un- 
questionably a true statement of the law. The only portion of the 
statement which requires examination is the- phrase "except so far 
as the facts truly stated warrant the imputation." Speaking for my- 
self, the words "warrant the imputation" can bear but one meaning, 
and that meaning is stated so plainly by Lord Atkinson in the opin- 
ion delivered by him in the case of Dakhyl v. Labouchere. In other 
words a libellous imputation is not warranted by the facts unless 
the jury hold that it is a conclusion which ought to be drawn from 
those facts. Any other interpretation would amount to saying that, 
where facts were only sufficient to raise a suspicion of a criminal or 
disgraceful motive, a writer might allege sucli motive as a fact and 
protect himself under the plea of fair comment. No such latitude is 
allowed by English law. To allege a criminal intention or a dis- 
reputable motive as actuating an individual is to make an allegation 
of fact which must be supported by adequate evidence. I agree 
that an allegation of fact may be justified by its being an inference 
from other facts truly stated, but, as Lord Atkinson says in tihe 
passage just quoted, in order to warrant it the jury must be satis- 
fied that such inference ought to be drawn from those facts. 

Applying this law to the facts of the present case, I would say, 
first, that I have a great doubt whether there is anything in the pub- 
lication complained of which can fairly be called comment at all, 
unless it be the headlines of the second article. All the rest appears 
to me to purport to be statement of fact, and therefore, in my opin- 
ion, the defendants could only succeed by establishing their plea of 
justification with respect to it. I have great doubt, therefore, wheth- 
er the learned judge ought to have allowed the issue of fair comment 
to go to the jury at all (except, perhaps, as to those headlines.) 
But the judge permitted it to go to the jury, and, therefore, he was 
bound to give them a proper direction as to it. In my opinion the 



BURT V. ADVERTISER NEWSPAPER CO. 1 135 

direction he gave was so expressed as to bear a meaning which might 
have misled the jury and affected their verdict, and as it was a gen- 
eral verdict, not distinguishing the issues, but giving a sum by way 
of damages in respect of both, we have no alternative but to send the 
case back for a new trial, because it is impossible to say to what ex- 
tent the verdict may have been influenced by such misdirection. 

Buckley, L. J. Comment which tends to prejudice may still 
be fair ; it may convey imputations of bad motive so far as the facts 
truly stated justify such an imputation. It is for the jury to say 
whether the facts justify the imputation or not. The fault here is 
that that question has never properly been left to them. The ques- 
tion for the jury is whether the comment is in their opinion beyond 
that which a fair man, however extreme might be his views in the 
matter, might make honestly and without malice, and which was not 
without foundation. The defense of fair comment extends to the 
imputation of motives. Cockburn, C. J. in Wason v. Walter, (1868) 
L. R. 4 Q. B. 73, at p. 93, speaking of the development of the law of 
libel, says : "The full liberty of public writers to comment on the 
conduct and motives of public men has only in very recent times 
been recognized."^ Whether the criticism be upon a Hterary pro- 
duction or the conduct of a public man, it is for the jury, I think, to 
find whether the imputation based upon facts truly stated, does or 
does not, honestly represent the opinion of the person who gives ex- 
pression to it and was not without foundation.* 



BURT V. ADVERTISER NEWSPAPER CC^ 
Supreme Judicial Court of Massachusetts, 1891. 154 Mass. Rep. 238. 

Holmes, J. The first question which we shall consider is raised 
by the presiding judge's refusal to rule that the articles were privi- 
leged. The requests referred to each article as a whole. Each 
article contained direct and indirect allegations of fact touching the 
plaintiff, and highly detrimental to him, charging him with being a 
party to alleged frauds in the New York custom-house.. Some or 
all of these allegations we must take to be false. In our opinion the 
rulings asked were properly refused. 

We agree with the defendant, that the subject was of public in- 
terest, and that in connection with the administration of the custom- 



^In R. v. Cobbett, 29 How. St. Tr. 1 (1804), Lord Ellenborough charged 
the jury, p. 49, that, "If a publication be calculated to alienate the affections 
of the people, by bringing the government into disesteem, whether the ex- 
pedient be by ridicule or obloquy," it was a criminal libel. 

' 'Accord: Dunneback v. Tribune Co., 108 Mich. 75 (1895), inference, 
from fact that the treasurer's sureties objected to plaintiff's appointment 
as deputy, that they did not wish to be responsible for public funds if the 
plaintiff had any share in handling them, held justifiable, see Hooker J. dis- 
senting; Howarth v. Barlow, 113 App. Div. (N. Y.) 510 (1906), accusations 
against a clerk of a village board of intent to defraud; and see Neeb v. 
Hope, til Pa. St. 145 (1885), p. 153. 



1 1 36 BURT V. ADVERTISER NEWSPAPER CO. 

house the defendant would have a right to make fair comments on 
the conduct of private persons affecting that administration in the 
way alleged. But there is an important distinction to be noticed 
between the so-called privilege of fair criticism upon matters of 
public interest, and the privilege existing in the case, for instance, 
of answers to inquiries about the character of a servant. In the 
latter case a bona fide statement not in excess of the occasion is 
privileged, although it turns out to be false. In the former, what is 
privileged, if that is the proper term, is criticism, not statement, and 
however it might be if a person rrierely quoted or referred to a 
statement as made by others, and gave it no new sanction,^ if he 
takes upon himself in his own 'person to allege facts otherwise 
libelous, he will not be privileged if those facts are not true. The 
reason for the distinction lies in the different nature and degree of 
the exigency and of the damage in the two cases. In these, as in 
many other instances, the law has to draw a line between conflicting 
interests, both intrinsically meritorious. When private inquiries are 
made about a private person, a servant, for example, it is often im- 
possible to answer them properly without stating facts, and those 
who settled the law thought it more important to preserve a reason- 
able freedom in giving necessary information than to insure people 
against occasional unintended injustice, confined as it generally is to 
one or two persons. But what the interests of private citizens in 
public matters requires is freedom of discussion rather than of state- 
ment. Moreover, the statements about such matters which come 
before the courts are generally public statements, where the harm 
done by ^ falsehood is much greater than in the other case. If one 
private citizen wrote to another that a high official had taken a bribe, 
no one would think good faith a sufficient answer to an action. He 
stands no better, certainly, when he publishes his writing to the 
world through a newspaper, and the newspaper itself stands no bet- 
ter than the writer. Sheckell v. Jackson, 10 Cush. 25, 26.^ 



^In Mangena v. Wright, 100 L. T. 960 (1909), Phillimore, J., held that 
such comment is protected. Fair comment on the statements, though in 
fact untrue,, in a public document or in the accurate report of judicial or 
legislative proceedings, the publication or reporting of which is itself, by 
statute or by common law, privileged, whether published by the defendant 
himself or another, are protected, Mangena v. Wright, supra, aliter where 
they are contained in the report of proceedings of a vestry, the publication of 
which is not privileged, Popham v. Pickburn, 7 H. & N. 891 (1862). But the 
comment must be fair, see Metcalf v. Times Publishing Co., ante. 

"^ Accord: Joynt v. Cycle Trade Publishing Co., L. R. 1904, 2 K. B. 292; 
Davis V. Shepstone, L. R. 11 A. C. 187 (1886) ; Digby v. Financial News, L. R. 
1907, 1 K. B. S02; Walker v. Hodgson, L. R, 1909, 1 K. B. 239; Hunt v. StaY 
Nczvspaper, post; Hubbard v. Allyn, 200 Mass. 165 (1908) ; Hay v. Reid, 85 
Mich. 296 (1891) ; Martin v. Payne, 69 Minn. 482 (1897) ; Farley v. McBride, 
74 Nebr. 49 (1905) ; Fry v. Bennett, 5 Sandf. 54 (N. Y. 1851) ; and see Barr v. 
Moore, 87 Pa. St. 385 (1878), and Neeb v. Hope, 111 Pa. St. 145 (1885). Nor 
is comment fair which is based on non-existent facts, whether asserted by 
the defendant or assumed by him to be true, Digby v, Financial News, Hub- 
bard V. Alleyn, Lefroy v. Burnside, Fry v. Bennett, 5 Sandf. 54 (N. Y. 1851), 
and compare cases cited in Note 2 to Carr v. Hood. 

"To say that you may first libel a man and then comment upon him is 



EIKHOFF V. GILBERT. 1 137 

/ 

EIKHOFF V. GILBERT. 

Supreme Court of Michigan, 1900. 124 Michigan, 353. 

Hooker, J. The defendants are members of an organization 
called the "Good Government League," in the city of Detroit, which 
professes to have for its object the election of worthy men to office, 
and the promotion of good order and honest administration of city 
affairs. The plaintiff, having attended one session of the legislature 
in the capacity of representative, was a candidate for re-election. 
This action was for libel, alleged to have consisted of three publica- 
tions over the names of the defendants. One, for convenience 
called the "White Circular," was addressed to the voters, and con- 
tained in parallel columns the names of several candidates whom 
the electors were advised to vote for or against. The portion appli- 
cable to the plaintiff was as follows : 

VOTE 
FOR AGAINST 

Harry C. Barter for Repre- Henry Eikhoff for Repre- 
sentative, because he represents sentative, because in the last 
all that is good in his opponent, legislature he championed meas- 
and does not represent the ob- ures opposed to the moral inter- 
jectionable. He is the champion ests of the community, 
of labor and arbitration. 

The question before us is whether the case should have been 
submitted to the jury upon one or both counts. The first charge is, 
in substance, that the plaintiff, in his official capacity of representa- 
tive, championed measures opposed to the moral interests of the 
community. The undisputed testimony shows that as representa- 
tive he introduced, and, to some extent, at least, approved and sup- 
ported, measures calculated to change the liquor laws of the state 
by permitting sales on legal holidays, and election days after the, 
close of the polls, and by repealing the act prohibiting screens in 
saloons. The court charged the jury that: 

The language of the white circular, unexplained, unequivocally 
charged the plaintiff with having championed legislation opposed to 
the moral interests of the community. This charge is an attack 

obviously absurd," Cockburn, C. J., Queen v. Garden, L. R. 1879, S Q. B. D. 
1, p. 8. "If the defendant makes a misstatement of any of the facts upon 
which he comments, it at once negatives the possibility of his comment 
being fair. It is therefore a necessary part of the plea of fair comment to 
show that there has been no misstatement of facts in the statement of the 
materials on which the comment was based," Collins, M. R. in Digby v. Finan- 
cial News, L. R. 1907, 1 K. B. 502. So Duer, J. says in Fry v. Beimel t, 
5 Sandf. 54 (N. Y. 1851), "the truth of the facts upon which" (the critical 
animadversions) "were founded, must be established or admitted . . . 
the defenses of truth and privilege are inseparably connected ;" see also, 
Palles, C. B. in Lefroy v. Burnside, supra. As to the distinction between 
a plea of justification and a plea of fair comment, see Collins, M. R. in 
Digby v. Financial News, L. R. 1907, 1 K. B. 502. 



1 138 EIKHOFF V. GILBERT. 

upon his moral character, and would be likely to bring him into 
public contempt and disgrace. It is, therefore, libelous per se. The 
defense made was : First, that the statement was true ; and, second, 
that, if it cannot be said to be true, the proven acts were subject to 
criticism, and the defendants had the right to express their opinion 
as to their effect — in other words, that the language was privileged. 
The defendants had a right to discuss the fitness of the plaintiff 
for the office to which he aspired, and might lawfully communicate 
to the electors any facts within their knowledge concerning his char- 
acter or conduct, and express their opinions upon them, and their 
inferences deduced from them, so long as they stated as facts only 
the truth, and as opinions and inferences therefrom only honest be- 
lief. The fault here, if there be one, is that opinions and inferences 
were not stated as such, but as facts. The defendants sought to 
justify the statement made, viz., that the plaintiff championed meas- 
ures opposed to the moral interests of the community, by proving 
that he supported the two measures stated. To the minds of some, 
that would be sufficient to establish the truth of the charge. Others 
would think otherwise. It is manifest, therefore, that we cannot 
say, as a legal proposition, that the undisputed testimony estab- 
lishes the truth of the broad charge. Evidently the learned circuit 
judge took this view. It is evident that the acts proved were suffi- 
cient to induce in the minds of some the opinion that the plaintiff 
had supported measures opposed to the moral interests of the com- 
munity. The judge therefore instructed the jury that such persons 
were privileged to say so, and directed a verdict for defendants. 
But, admitting that they were privileged to express their opinions 
concerning certain acts, was this what was done? Did they not go 
further, and do more ? They did not state what measures were sup- 
ported, and their opinions of that particular conduct, but said gen- 
erally and unqualifiedly, as a fact, that the plaintiff had arrayed 
himself against the moral interests of the community, which, if 
true, should discredit him with any voter who should believe the 
statement. It appealed alike to all classes — those who should look 
upon the legislation proven as not opposed to the moral interests 
of the community as well as those holding contrary views ; and it 
afforded no one an opportunity to judge whether the statement was 
a proper deduction from the fact upon which it was based or not. 
If one states that a candidate is a thief, without qualification, he 
communicates a fact pertaining to his fitness ; but it is a slander if 
untrue, whether it was made in good faith or not, although, had he 
stated the exact facts, and expressed the opinion that they amounted 
to stealing, though they did not technically constitute the offense of 
larceny, the communication might be privileged.^ 



^See also, Little John v. Greeley, 13 Abb. Pr. 41 (N. Y. 1861), statement 
that the plaintiff "was prominent in the corrupt legislation of last winter," 
see also, Crows Nest Pass Coal Co. v. Bell, 4 Ont. L. R. 660 (1902), and 
Champagne v. Beauchamp, 31 Lower Can. J. 144 (1886). 

A characterization of another's conduct as dishonorable, the facts known 
to the defendant being only partially stated, was held in Christie v. Robert- 



O BRIEN V. MARQUIS OF SALISBURY. 1139 

FIELD, J., in O'BRIEN v. MARQUIS OF SALISBURY. 

54 Jusiice of the Peace, 215 (1890), /). 216. 

"Comment may sometimes consist in the statement of a fact, and 
may be held to be comment if the fact so stated appears to be a de- 
duction or conclusion come to by the speaker from other facts stated 
or referred to^by him, or in the common knowledge of the person 
speaking and those to whom the words are addressed, and from 
which his conclusion may be reasonably inferred. If a statement 
in words of a fact stands by itself naked, without reference, either 
expressed or understood, to other antecedent or surrounding cir- 
cumstances notorious to the speaker and to those to whom the words 
are addressed, there would be little, if any, room for the inference 
that it was understood otherwise than as a bare statement of fact, 
and then, if untrue, there urould be no answer to the action ; but if, 
although stated as a fact, it is proceeded or accompanied by such 
other facts, and it can be reasonably based upon them,^ the words 
may be reasonably regarded as comment, and comment only, and, 
if honest and fair, excusable; and whether it is to be regarded as 
fact or comment it is a question for the jury, to be determined by 
them upon all the circumstances of the case." 

son, 10 N. S. W. L. R. 157 (1889), to be "misdescription. Real comment is 
merely the expression of opinion. Misdescription is matter of fact. To state 
accurately what a man has done, and then to say that in your opinion such 
conduct is dishonorable or disgraceful, is comment which may do no harm, 
as every one can judge for himself whether the opinion expressed is well- 
founded or not. Misdescription of conduct, on the other hand, leaves the 
reader no opportunity for judging for himself of the character of the 
conduct of the condemned, nothing but a false picture being presented for 
judgment;" Windeyer, J., p. 161. Where the facts are stated fully and 
accurately "the writer may, by his opinion, libel himself rather than the 
subject of his remarks;" Wilde, B., Popham v. Pickburn, 7 H. & N. 891 
(1862) ; Grant, J., Belknap v. Ball, 83 Mich. 583 (1890), p. 589. 

Any general characterization- of the plaintiff's conduct or qualification 
for office, without giving any grounds therefor, is a statement of fact and 
not fair comment, Broadhent v. Small, 2 Vict. L. R. 121 (1876) ; see Archer 
V. Ritchie &■ Co., 18 Rettie 719 (Sc. Ct. of Sess. 1891), p. 727. Many of the 
cases which hold that the motives of a public officer can not be attacked 
are cases of this sort; see cases cited in Clifton v. Lange, post, Note 1. 

^ See Cooper v. Lawson, 8 A. & E. 746 (1838), in which, after stating 
that the plaintiff had become surety for an election petition and that he was 
in circumstances making* him unfit to become a surety, the defendant asked 
why this "cockney tailor" took all this trouble and risk of exposure in a 
matter with which he had nothing to do, and said the only answer was that 
he was "hired for the occasion." This was held not to be a "mere shadow 
of previous imputation" but to infer a new fact. 

In many of the cases in which it is held that the motives of a candidate 
or public man may not be attacked and that criminal misconduct may not be 
imputed to him are cases of this sort, where the plaintiff's conduct is ex- 
plained by the assertion of an act done by him or another or both, Bee Pub- 
lishing Co. V. Shields, 68 Nebr. 750 (1903), conduct of a district attorney 
ascribed to his having been bribed; Hamilton v. Eno, 81 N. Y. 116 (1880), 
allegation that an official writing a report on street paving was employed 
by one of the paving companies interested. 

See also. Commercial Publishing Co. v. Smith, 149 Fed. 704 (C. C. A. 
6th Circ. 1907), where the plaintiff's guilt was assumed from the mere fact 



II40 TOOGOOD V. SPYRING. 

SECTION 5, 
Abuse of Conditional Immunity. 



(a) Excessive publication. 



TOOGOOD V. SPYRING. 
Court of Exchequer, 1834. 1 Crompton, Meeson & Roscoes, 181. 
Parke, B. In this case, which was argued before my Brothers 
Bolland, Alderson, Gurn'ey and mys*lf , a motion was made for a non- 
suit, or a new trial, on the ground of misdirection. It was an action 
of slander, for words alleged to be spoken of the plaintiff as a jour- 
neyman carpenter, on three different occasions. It appeared that 
the defendant, who was a tenant of thd 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 manner; and, during the progress of 
the work, got drunk; and some circumstances occurred which in- 
duced the plaintiff to believe that he had broken open the cellar 
door, and so obtained access to his cyder. 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 
with a chisel, and also with having got drunk. The plaintiff denied 
the charges. The defendant said he would have it cleared up, and 
went to look for Brinsdon ; he afterwards returned and spoke to 
Taylor, 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 com- 
plained to him that the plaintiff had been negligent in his work, had 
got drunk, and he thought he had broken open the door, and re- 
quested 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 what was afterwards 
said to Taylor, both of which statements formed the subject of the 
action, the plaintiff had a verdict. We agree in his opinion, that 
the communication to Brinsdon was protected, and that the state- 
ment, 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 Taylor, falls within the 
class of the communications ordinarily called privileged ; that is, 
cases where the occasion of the publication affords a defense in the 
absence of express malice. In general, an action lies for the mali- 
cious publication of statements which are false in fact, and injurious 

of his arrest for murder; and Haynes v. Clinton Printing Co., 169 Mass. 
512 (1897), where his guilt was insinuated, the facts recited being obviously 
insufficient grounds for such insinuation. 



TOOGOOD V. SPYRING. I I4I 

to the character of another (within the well-known limits as to verbal 
slander), and the law considers such publication as malicious, un- 
less it is fairly made by a person in the discharge of some public or 
private duty, whether legal or moral, or in the conduct of his own 
afifairs, in matters where his interest is concerned. In such cases, 
the occasion prevents the inference of malice, which the law draws 
from unauthorized communications, 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 com- 
munications are protected for the common convenience and welfare 
of society; and the law has not restricted the right to make them 
within any narrovir 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 principle has 
been applied in practice is, that of a former master giving the char- 
acter 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 pur- 
pose to a party who has any interest in the inquiry (and that has 
been very liberally construed {Child v. Affleck, 4 Man. & Ryl. 590; 
9 B. & C. 403) ), the simple fact that there has been some casual 
bystander 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 
on 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 servant for any sup- 
posed misconduct in his service, and to give him admonition and 
blame; and we think that the simple circumstance of the master 
exercising 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 mak- 
ing such a charge before third persons, which might have been 
made in private, it would afford strong' evidence of a malicious in- 
tention, and thus deprive it of that immunity which the law allows 
to such a statement, when made with honesty of purpose; but the 
mere fact of a third person being present does not render the com- 
munication absolutely unauthorized, though it may be a circum- 
stance to be left with others, including the style and character of the 
language used, to the consideration of the jury, who are to deter- 
mine 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 stich a relation with respect to the plain- 
tiff, though not strictly that of master, as to authorize him to im- 
pute blame to him, provided it was done fairly and honestly, for 
any supposed misconduct in the course of his employm.ent ; and we 
think that the fact, that the imputation was made in Taylor's pres- 
ence, does not, of itself, render the communication unwarranted and 



V,j^2 KRUSE V. RABE. 

otscious, but sit most is a circumstance to be left to the considera- 
tion of the jury. We agree with the learned Judge, that the state- 
ment to Taylor, in the plaintiff's absence, was unauthorized and 
officious, and therefore 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 
generai 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 defftridant acted maliciously or not on that occasion, there must 
be a new triaL Rule absolute for a new trial. 



KRUSE V. RABE. ^ 
Court of Errors and Appeals, 1911. 80 iV. /. L. 378. 

PARRtR, J. This was a suit for slander. At the trial there was 
a verdict <jirected for the defendant, and this writ of error is based 
upon an exception to that direction. The evidence was sufficient to 
justify the jury in finding that the plaintiff was a real estate broker 
doing business in Hoboken, and was employed under a written con- 
tract by a Mrs. Vette to negotiate the sale of certain real estate be- 
longing to her, in which contract she agreed to pay him for his serv- 
ices a commission of three per cent. ; that the plaintiff succeeded in 
making a sale, and at the time the transaction was to be closed, the 
plaintiff and Mrs. Vette, accompanied by defendant, as her attorney, 
attended at the office of the attorney for the purchaser, where the 
title was closed and Mrs. Vette was paid by a check, and she and 
the plaintiff and defendant went to a neighboring bank, of which 
defendant was the president, to cash the check and pay plaintiff his 
commission ; that plaintiff had procured from Mrs. Vette a sort of 
certificate that he had negotiated the sale and had earned his com- 
mission, and stating its amount, and that he handed this when in 
the bank to Mrs. Vette, who handed it to defendant, who "went 
inside" (probably inside the partition) for the cash to pay plaintiff, 
and either on coming out or before going in, looked at the paper, 
noticed that the amount was three per cent., and addressing plain- 
tiff, said in a loud tone of voice and in the presence of the bank 
clerks close by and of several persons transacting business in the 
bank, "I never heard of any such outrageous commission. I know 
a hundred real estate people in this county and none of them charge 
over two and one-half per cent." That plaintiff said, "Mr. Rabe, 
will you allow me to explain?" and he said, "No, it is simply this, 
you have taken advantage of this woman." There was no allega- 
tion of special damage in the declaration. Besides a plea of gen- 
eral issue, there were pleas of justification and privilege. 

The court directed a verdict for defendant^ without stating what 
grounds such direction was based on. 

^ The motion for a direction of a verdict for defendant was based upon 
the grounds — first, that the words were not slanderous per se; secondly, that 
this was a case of a lawyer attempting to protect his client, and that whatever 



KEUSE V. RABE. 1143 

We think this action of the trial court was erroneous. 

It is claimed for the defendant that the occasion was privileged. 

There can be no doubt that if Mrs. Vette had asked Mr. Rabe, 
as her attorney, in his office, what he thought of the amount of 
plaintiff's charge, and he had expressed himself to her in response 
to that inquiry, to the same effect as he expressed himself to the 
plaintiff, with an honest belief in the truth of what he was saying, 
his language would then have been privileged. King v. Patterson, 
20 Vroom 417, 438; Fahr v. Hayes, 21 Id. 275, 278. But this is 
not what happened. The evidence seems to be somewhat in con- 
flict as to whether Mrs. Vette made any inquiry of Mr. Rabe about 
the rate or amount of the commission ; but assuming that she did, 
and that Rabe believed what he was saying, the que.stion still re- 
mains whether in view, of the circumstances under which,' and the 
manner in which plaintiff claims he said it, the jury would not 
have been entitled to find the presence of express malice. De- 
fendant's counsel point to Fahr v. Hayes, supra, as authority to 
the contrary ; and that decision, though in the Supreme Court and 
not binding on us, is entitled to great weight. It goes very far in 
the protection of such communications as privileged and in the ne- 
gation of express malice, but it is not dispositive of this case. In 
Fahr v. Hayes the plaintiff was asking for credit and gave Hayes 
as a reference, this, in the opinion of the Supreme Court, justify- 
ing a confrontation of plaintiff by defendant for the purpose of 
convincing the prospective creditor of the danger of trusting the 
plaintiff. In the case at bar, the plaintiff did not refer Mrs'. Vette 
to Rabe, and had no part in her consulting him. It was true that 
she was entitled to consult him and he was entitled to advise her 
with entire freedom so long as he did so honestly. But it cannot 
be said that a lawyer may shout to his client in a public place, ad- 
vice that a party with whom the client has been dealing has taken 
advantage of him, and claim immunity under the plea of priv- 
ilege. The rule is thus stated in Odgers, Lib. & S. 245 ; 335 : 

"If the words be spoken in the presence of strangers wholly un- 
interested in the matter, the communication loses all privilege. The 
defendant in these cases must be careful that his words reach only 
those who are concerned to hear them.^ Words of admonition or 
confidential advice should be given privately, not shouted across 



he said was in the course of a conversation addressed to the client in which 
the plaintiff took part ; and third, that if the word^ were slanderous, they were 
justified. 

''In Dale v. Harris, 109 Mass. 193 (1872), an instruction that the defend- 
ant accusing the plaintiff of stealing his property was protected if no other per- 
sons other than themselves and a police oificer to whom the charge was made 
were present or had taken reasonable care that no such person should be 
within hearing, was sufficiently favorable to the defendant; see Morton v. 
Knipe, 128 App. Div. 94 (N. Y. 1908), to the effect that a privileged "occasion 
does not protect one who has made the communication on the occasion know- 
ingly or carelessly in the hearing of those who are not concerned"; but see 



1 144 KRUSE V. RABE. 

the street,^ or written on postcards,* or published in the newspapers. ° 
(Citing cases.) It is true that the incidental presence of some third 
person will not alone take the case out of the privilege, if it was un- 
avoidable or happened in the usual course of business affairs." But 
if the defendant purposely contrives that a stranger should be pres- 
ent, and who, in natural course of things, would not be present, 
all privilege is lost.^ (Cases.) And whenever a defendant de- 
liberately adopts a method of communication which gives unneces- 
sary publicity to statements defamatory of plaintiff, the jury will be 
apt to infer malice." 

It is this last particular in which the case at bar is distinguish- 
able from Fahr v. Hayes. The publicity of the words in that case 
was fairly attributable to the plaintiff's own act, and was considered 
by the court to be justified in consequence, and that malice was not 
inferable therefrom.^ In the case at bar, as already noted, the de- 
fendant, if plaintiff's evidence is believed, took occasion to im- 
pugn his business integrity by addressing him and not defendant's 
client, in a semi-public place, in a loud voice, and without any in- 
vitation on his part. We think this brings the case within the last 
clause of the text just quoted, and that the question of express 
malice should have been left to the jury. The judgment is ac- 
cordingly reversed to the end that a venire de novo issue.^ 



Webber v. Vincent, 9 N. Y. S. 101 (1890), where the duty to communicate 
the statement only to those interested is stated as absolute. 

'Accord: Oddy v. Lord George Paulet, 4 F. & F. 1009 (186S), defendant, 
a customer at the plaintiff's shop, stood in the street outside the shop and 
loudly took him to task for his alleged dishonesty. So posting libellous 
placards or having a defamatory notice cried by a town crier is held to be 
excessive publication and as such evidence of malice, Cheese v. Scales, 10 M. 
& W. 488 (1842) ; Woodard v. Dowsing, 2 Man. & Ry. 74 (1828). 

* See Note 3 to Edmondson v. Birch & Co. Ltd., post, p. 1149. 

° See Coleman v. MacLennan, ante, p. 1070, and cases cited in the note 
thereto. 

° Broughton v. McGrew, 39 Fed. 672 (1889), presence of an attorney at a 
stockholders' meeting held not to destroy the shareholder's right to make 
statements reflecting on an employee's competency; Pittard v. Oliver, L. R. 
1891, 1 Q. B. 474; Gildner v. Busse, 3 Ont. L. R. 561 (1902). 

'Parsons v. Surgey, 4 F. & F. 247 (1864) ; Taylor v. Hawkins, 16 Q. B. 
308 (1851). 

'Brow V. Hathaway, 13 Allen 239 (Mass. 1866); Billings v. Fairbanks, 
136 Mass. 177 (1883), with which compare Dale v. Harris, 109 Mass. 193 
(1872), where the defendant made the statement of his own motion, but see 
V/ebber v. Vincent, 9 N. Y. S. 101 (1890), where it was held that though the 
defendant made the statement in answer to questions put by one interested, 
the privilege was lost by the presence of third persons. 

° Unless the circumstances clearly require the statement to be made at the 
particular time and place, it is a matter for the jury to say whether "the 
charge was made before more persons than was necessary" — Littledale, J. in 
Padmore v. Lawrence, 11 A. & E. 380 (1840) ; Davies v. Snead, L. R. 5 Q. B. 
608 (1870) ; but the fact that the defendant's wife was present was held in 
Jones V. Thomas, 34 W. R. 104 (1885). Excessive publication is said in Den- 
ver Warehouse Co. v. Holloway, 34 Colo. 432 (1905), not to per se destroy 
the privilege but to be evidence of malice only. 



EDMONDSON V. BIRCH & CO. 1^45 

EDMONDSON v. BIRCH & CO., Ltd. 

Court of Appeal, 1907. L. R. 1907, 1 King's Bench, 371. 

Collins, M. R. This is an application for judgment or a new 
trial in an action tried before Lawrence, J., with a jury. The ac- 
tion was for libel, and the defense set up was, in substance, priv- 
ilege. It appears to me that, when the facts are sifted and ascer- 
tained, the case is really a very clear one. The action was originally 
based upon the words of the telegram mentioned in the statement 
of claim, but subsequently the statement of claim was amended by 
adding a claim in respect of a letter written by the defendants. The 
letter, however, related to the same subject-matter as the tele- 
gram, and the same law appears to me to be applicable to both docu- 
ments. The circumstances under which they were published were 
as follows: The defendants were a company in London, having 
business relations with a company in Japan, which acted as their 
agents and correspondents in that country. The plaintiff had been 
temporarily engaged by the company in Japan as their mknager 
on trial, and the arrangement between the plaintiff and that com- 
pany is stated in the statement of claim as follows : "On March 
19, 1904, the plaintiff was by verbal agreement engaged by Messrs. 
Birch, Kirby & Co., Limited, of Kobe, Japan, on trial as their 
mineral manager and adviser at a monthly salary of 150 yen (£15 
English money) . At the same time it was further verbally arranged 
that Messrs. Birch, Kirby & Co., Limited, should immediately com- 
municate with the defendant company in London to ascertain if they 
approved the engagement, and, subject, to such approval, they agreed 
that if, after three months' trial, they were satisfied with the con- 
duct and ability of the plaintiff, they would continue him in their 
permanent employ at an increased salary to be subsequently agreed 
upon, in addition to which the plaintiff was to have a share of profits 
arising from the mineral department of their business." In conse- 
quence of this arrangement the letter of May 7, which was one of the 
libels complained of, was written by the defendant company to the 
company in Japan. The letter, a copy of which was entered in the 
defendant company's letter-book, was in these terms. (The Mas- 
ter of the Rolls then read the letter.) This letter was followed by 
a telegram, sent to Japan in the terms of a code, which, when de- 
coded, reads thus: "Have no deaHngs with Edmondson; give no- 
tice of dismissal." This telegram, with the translation of it, was 
copied into the defendant company's cable-book, and constituted the 
second libel complained of by the plaintiff. The telegram appears 
to have been couched in the terms in which it was, because they 
were nearest the code terms available for the purpose of conveying 
the required meaning. The learned judge held that the occasion on 
which the letter and telegram were published to the company in 
Japan was privileged, and that there was no evidence of any actual 
malice to take away the privilege ; but, although that was so, he was 
of opinion, upon the authority of Pullman v. Hill & Co., (1891) i 



1 146 EDMONDSON-t/. BIRCH & CO. 

Q. B. 524, that there had been a publication of the statements com- 
plained of which did not fall within the privilege, because it was 
made to persons who had no correlative interest in the matter, by 
way of intermediaries, namely, the clerks in the defendants' own 
office, who took down the communications to be sent to the com- 
pany in Japan and wrote them out, and, as regards the telegram, 
the telegraph clerks. He therefore left the case to the jury, with 
the result that they gave the plaintiff a verdict for i8o damages. 
The defendants now apply for judgment or a new trial on the 
ground that the occasion was privileged, and that privilege covered 
the publication to which I have just alluded. 

It seems to me that the leart^d judge took too high a view of 
the effect of the authority upon which he acted, namely, Pullman 
V. Hill & Co., (1891) I Q. B. 524. That decision related to a com- 
munication made by the defendants, a limited company, to the plain- 
tiffs, a partnership firm, which involved a serious charge against 
the plaintiffs. This communication was made by a letter which was 
dictated by the defendants' managing director to a clerk; and the 
court held that, under the circumstances, it was not necessary, or 
in the ordinary course of business, for the director to have availed 
himself of the clerk for the purpose of making the communication 
complained of, and therefore it was not privileged. The question 
which we have to decide is whether that case, as subsequently ex- 
plained and qualified in Boxsius v. Goblet Freres, (1894) i Q. B. 
842, is an authority which concludes the present case in favor of the 
plaintiff. On reference to the judgment of Lord Esher, M. R., 
in the latter case it will be seen how he qualified and distinguished 
the decision in the earlier case, to which he was himself a party. 
He said : "In the case of Pullman v. Hill <& Co., (1891) f Q. B. 524, 
this court held that, if a merchant dictates to a clerk a libellous state- 
ment about a customer, which that clerk takes down and gives to 
another clerk in the office to copy, that is a publication to the clerks, 
and the occasion of such publication is not privileged. We held so 
on the ground that it does not fall within the ordinary business of a 
merchant to write such defamatory statements, and that, if he does 
so, it is not reasonably necessary, as he is doing a thing not in the 
ordinary course of his business, that he should cause the statement 
to be copied by a clerk in his office.^ The question here arises in 



^It has been held, following Pullman v. Hill, that a letter written by a 
business man or by the agent of a company in charge of his business to a 
plaintiff, demanding the return of property alleged to have, been wrongfully 
withheld by him and characterizing his conduct as theft, is not a communi- 
cation in the ordinary course of business and that the dictation of such letters 
to a stenographer is not justifiable, Moran v. O'Regan, 38 New Brunswick R 
189 (1907) ; Puterbaugh v. Gold Medal Co., 7 Ont. L. R. 582 (1904), revising 
the decision of the Divisional Court, 5 Ont. L. R. 680 (1903). It is doubtful 
whether any proper distinction can be drawn between the privilege attaching 
to communicate matter necessary for the defense of one's own interest or 
the interests of one's principals and the privilege to communicate similar 
matter for the protection of others. In these cases, as in Pullman v Hill the 
letters, in addition to the statements necessary for the assertion of the' de- 



EDMONDSON V. lilRCH & CO. 1 147 

the case of a solicitor instructed by a client to obtain payment of a 
bill, and to press the person who is charged with payment of the 
bill to the extent of asserting that he has been trying to evade pay- 
ment by at least a shabby trick, and possibly by a criminal action. 
The first point taken is that that is not a matter within the ordinary 
business of a solicitor. This is an argument which a few days ago 
we overruled in another case, where it was said that the business of 
a solicitor was to conduct actions ; but the court pointed out that it 
was also part of the ordinary business of a solicitor to endeavor to 
secure the money due to his client by taking steps not necessarily 
arising in an action." Lord Esher then went on to deal with the 
very point raised in this case : "Then it is said that the solicitors 
cannot claim privilege as between themselves and the typewriting 
clerk who took down the letter and the copying clerk who copied it 
into the letter-book. Such an argument requires consideration ; but 
it seems to me to come to this. It is the duty of the solicitor to 
write and send this letter, and it is his duty to do that in the ordi- 
nary and reasonable way. The duties of a solicitor are not to one 
client only, but to all his clients, and he has to take measures to 
perform them with due diligence, and according to the necessary 
and reasonable method of conducting business in a solicitor's office. 
If a solicitor is instructed to write defamatory matter on a privi- 
leged occasion on behalf of a client, he must do this business as he 
does other business in the office, in the ordinary way, and that in- 
volves his having the communication taken down or copied by a 
clerk in his office, and copied into the letter-book. It is necessary 
to keep a record of the transaction, one reason being that there may 
be a check on the bill of costs. Such a case seems to me to be dis- 
tinguishable from that of a merchant who is writing a libel out of 
the course of his ordinary business, who, if he has the letter copied 
by a clerk, does this at his own risk." 

The result of the two cases to which I -have alluded, taken to- 
gether, appears to me to be that, where there is a duty, whether of 
perfect or imperfect obligation, as between two persons, which 
forms the ground of a privileged occasion, the person exercising the 
privilege is entitled to take all reasonable means of so doing, and 
those reasonable means may include the introduction of third per- 
sons, where that is reasonable and in the ordinary course of busi- 
ness ; and if so, it will not destroy the privilege. In the case of a 
solicitor, his duty in conducting the business of his client may be 



fendant's claim against the plaintiff, contained aspersions upon the plaintiff's 
motives or characterized his conduct as fraudulent or criminal. 

In none of the American cases, which consider the effect of dictation to 
a stenographer as a publication, was the communication privileged. In Gam- 
brill v. Schooley, 93 Md. 48 (1901), and Sun Life Assurance Co. v. Bailey, 101 
Va. 443 (1903), there was no claim or proof of privilege, while in Ferdon v. 
Dickens, 1^1 Ala. 181 (1909), the court held that the communication of the 
letter to the person addressed was not privileged. And see Owen v. Ogilvie 
Co., 32 N. Y. 46S (1898), where it was held that the manager who dictated 
the letter addressed to the plaintiff and the stenographer who took it down 
were both agents of the employer in writing it, there was no publication to 
any third party. 



1 148 EDMONDSON V. BIRCfl & CO. 

absolute, whereas in this case it may be said that the duty was only 
one of imperfect obligation, but the nature of the obligation which 
gives rise to the privilege cannot, I think, alter its effect in this re- 
spect. If the duty is such as to give rise to a privileged occasion, 
then the fact that it is only one of imperfect obligation cannot effect 
the mode in which the privilege may reasonably be exercised. In 
the case of Boxsius v. Goblet Freres, (1894) i Q. B. 842, Davey, 
L. J. said that the decision at which the court was arriving was jus- 
tified by the earlier authorities. I think the only one of those earlier 
authorities to which I need refer is the case of Lawless V. Anglo- 
Egyptian Cotton Co., L. R. 4 Q. B. 262. In that case the directors 
of a company had caused a report, which was to be made to a meet- 
ing of shareholders, and which coittained matter defamatory of the 
plaintiff, to be printed for circulation among all the shareholders, 
and the question arose whether the communication of that matter 
to the printer was privileged ; and it was held that it was, because 
the printing of the report was the ordinary and reasonable mode of 
doing what the occasion entitled the company to do, namely, com- 
municate the report to the shareholders. That seems to involve the 
decision of the very point raised in the present case, namely, that 
the use of the ordinary and reasonable means of giving effect to the 
privilege does not destroy it. In the present case there was, in addi- 
tion to the ordinary business relation between the defendants and 
the company in Japan, a special relation created by airrangement 
made by the plaintiff himself with the latter company to the effect 
that his engagement by them was to be subject to the approval of the 
defendant company. There was, therefore, an obligation imposed 
on the defendants in the matter at the instance of the plaintiff him- 
self, which involved communications on the subject from the de- 
fendant company to the company in Japan, which communications 
might necessarily have to be made by telegraph, inasmuch as, under 
the circumstances, it was obviously essential that the approval or 
disapproval of the engagement by the defendants should be com- 
municated as promptly as possible. The only witness with regard 
to the mode in which the communications with the company in 
Japan were carried out was the defendant Horner himself. He 
gave evidence to the effect that the communication by telegram was 
carried out in the only way available, and, so far as the evidence is 
concerned, it was all one way, namely, to the effect that, as a matter 
of business, the course followed in making the communications which 
had been made was the reasonable and usual course to adopt under 
the circumstances. 

With regard to the cross application, the argument for the plain- 
tiff seemed to be really founded on the fallacy that, because the mat- 
ter contained in a document complained of is defamatory, that is in it- 
self evidence of actual malice. It is of course assumed for the purpose 
of the defence of privilege that the document is to some extent de- 
famatory. I agree that the language used may in some cases be so 
defamatory, and so far in excess of the occasion, as to be evidence 
of actual malice, and to shew that the publication of the defamatory 
matter was not a use, but an abuse of the privileged occasion. But 



EDMONDSON V. BIRCH & CO. 1 149 

the mere fact that language used is somewhat strong, or not alto- 
gether intemperate, would not, in the absence of any indication that 
it was not used bona fide, be evidence of malice.^ On looking at 
.the whole of the circumstances and the correspondence in this case, 
I can see no shadow of a reason for the suggestion that the privilege 
was in the present case abused. For these reasons I think that the 
application of the defendants to enter judgment must be allowed, 
and the cross application disallowed. 

Cozens-Hardy L. J. I am of the same opinion, and I only wish 
to add this. I think that, if we were to accede to the argument for 
the plaintiff, we should in effect be destroying the defence of privi- 
lege in cases of this kind, in which limited companies and large mer- 
cantile firms are concerned ; for it would be idle in such cases to sup- 
pose that such documents as those here complained of could, as a 
matter of business, be written by, and pass through the hands of, 
one partner or person only. In the ordinary course of business such 
a document must be copied and finds its way into the copy letter- 
book or telegram-book of the company or firm. The authorities ap- 
pear to me to show that the privilege is not lost so long as the oc- 
casion is used in a reasonable manner and in the ordinary course of 
business. 

Fletcher Moulton L. J. I agree. In my opinion the law on 
the subject, as laid down in the cases, amounts to this : If a busi- 
ness communication is privileged, as being made on a privileged 
occasion, the privilege covers all incidents of the transmission and 
treatment of that communication which are in accordance with the 
reasonable and usual course of business.^ 

Judgments for defendants. 



^Accord: Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495 
(1872). "To submit the language of privileged communications to a strict 
scrutiny and to hold all excess beyond the actual exigency of the occasion to 
be evidence of malice, would in effect greatly limit, if not altogether defeat, 
that protection which the law throws over privileged communications" — per 
Sir Robert Collier, p. 508; Spill v. Maule, L. R. 4 Exch. 232 (1869) ; Sutton 
V. Plumridge, 16 L. T. 741 (1867), plaintiff stated to have been "as drunk as 
a sow"; Gattis v. Kilgo, 128 N. Car. 402 (1901) ; Strode v. Clement, 90 Va. 
553 (1894), p. 559. 

But the language of the communication may be so much in excess of the 
occasion, so disproportionate to the facts or so much too violent, or may so 
needlessly ascribe improper motives that it may be evidence of malice, Fryer 
V. Kinnersley, IS C. B. (N. S.) 422 (1863) ; Gilpin v. Fowler, 9 Exch 615 
(1854) ; Wright v. Woodgate, 2 Cromp. M. & R. 573 (1835) ; Nichols v. Eaton, 
110 Iowa 509 (1900) ; Gassett v. Gilbert, 6 Gray 94 (Mass. 1859) ; Atwill v. 
Mackintosh, 120 Mass. 177 (1876) ; Wagner v. Scott, 164 Mo. 289 (1907) ; 
Jackson V. Pittsburgh Times, 152 Pa. St. 406 (1893), exaggerated and sen- 
sational newspaper article; Mulderig v. Wilkes-Barre Times, 215 Pa. 470 
(1906) ; Farley v. Thalhimer, 103 Va. 504 (1905). So it is held in Smith v. 
Smith, 73 Mich. 499 (1888), that the inclusion of defamatory statements as 
to facts unnecessary for the protection of the maker's interests is evidence of 
malice, a letter notifying tradesmen not to give credit to a wife being part 
from her husband, unnecessarily made defamatory statements as to the 
causes which had led to their separation. 

^ Accord: _ Ashcroft v. Hammond, 197 N. Y, 488 (1910), semhle, at least 
when the plaintiff has shown his consent to a telegraphic correspondence by 
himself using that means of communication; compare Williamson v. Freer 



II5O HEBDITCH V. MC ILWAINE. 

HEBDITCH V. McILWAINE. 
Court of Appeal, 1894. 1894 Law Reports, 2 Queen's Bench Div. 54. 

Lord Esher, M. R. In this case the plaintiff has brought an 
action against the defendants for writing and publishing a libel upon 
him, the defamatory matter complained of being that he had, when 
a candidate for the office of guardian of the poor, been guilty of 
treating. It must be borne in mind that the material part of the 
cause of action in libel is not the writing, but the publication of the 
libel. It was proved that the defendants had written and published 
to the board of guardians matter which the jury found to be libel- 
lous with regard to the plaintiff, and which was untrue. The de- 
fendants set up by way of defence that the occasion was privileged. 
It is for the defendant to prove that the occasion was privileged. 
If the defendant does so, the burden of shewing actual malice is cast 
upon the plaintiff, but, unless the defendant does so, the plaintiff is 
not called upon to prove actual malice. The question whether the 
occasion is privileged, if the facts are not in dispute, is a question 
of law only, for the judge, not for the jury. If there are questions 
of fact in dispute upon which this question depends, they must be 
left to the jury, but, when the jury have found the facts, it is for the 
judge to say whether they constitute a privileged occasion. 

What are the facts upon which the question, whether the occa- 
sion was privileged, depends in the present case? There had been 
an election to the office of guardian of the poor, and the plaintiff 
had been elected. The defendants were ratepayers, who had a right 
to vote at the election. After the election they wrote and sent the 
letter containing the matter complained of to the board of guard- 
ians. It seems clear that, when that board had received the letter, 
they could do nothing in the matter. They could not set aside the 

L. R. 9 C. P. 393 (1874), where after a verdict for the plaintiflf, based on the 
jury's finding that it was not reasonable to send the statements in question by 
telegram, the court refused to enter a verdict for the defendant. In that case 
the defendant, who had accused the plaintiff of theft, telegraphed from 
Leicester to the latter's father in London "Your child will be given in charge 
of the police unless you reply and come to-day, she has taken money out of 
the till." In Tobin v. City Bank, 1 S. C. R. (N. S.) 267 (N. S. W. 1878), it 
was held excessive publication for a Sydney Bank, in order to save expense, 
to send a defamatory telegram through their Melbourne agents instead of 
directly by the Government Telegraph Office at Sydney. 

The sending of privileged defamatory matter by post card is not a rea- 
sonable manner of communication, Robinson v. Jones, Ir. 4 C. L. 391 (1879). 
"Tlje question, then, is whether a person having occasion to communicate to 
another defamatory matter is entitled, for the mere purpose of saving one 
half-penny postage, to make that communication, not by a closed letter, ca- 
pable of being used by the person through whose hands it is transmitted to 
the post, by the official post office, and by the servants of the house at which 
it is delivered;"— Pallas, C. B., p. 396; Sadgrove v. Hole, L. R. 1901, 2 K. B. 
1, semble, though, the statement on the post card being unintelligible to any 
one but the addressee, it was held that there was no excessive publication. 
Contra: Steele v. Edwards, 15 Ohio C. C. 52 (1897), holding that it cannot 
be assumed that third persons, especially post-office officials, had wrongfully 
read post cards not addressed to them. 



HEBDITCH V. MC ILWAINE. 1 15 1 

election. Such being the facts of the case, what was the judge called 
upon to consider in dealing with the question whether the occasion 
was privileged? He had first to consider whether the defendants, 
who published the defamatory matter, had any interest or duty in 
connection with the subject which they thus brought before the 
board of guardians. I am not prepared to say that they had not 
an interest or duty. On the contrary, I am inclined to think that 
they had an interest in the matter. They were electors, and had an 
interest in having the office filled by a person properly elected. Then 
the position of the board of guardians, to whom the defamatory mat- 
ter was published, had to be considered. They had no interest in 
the matter, as it seems to me, and, as I have already said, they had 
no duty or power to take any action upon the communication made 
to them. Under these circumstances I think it is clear that the 
occasion was not privileged. 

It was argued that, although the board of guardians had no 
power or duty or interest in the matter, nevertheless the occasion 
was privileged, because the defendants honestly and reasonably be- 
lieved that the board had such a duty or power or interest, and were 
asking them for redress in the matter, which they believed they 
could give. Assuming that the defendants had such a belief, though 
I confess I cannot see how there could be any reason in such a be- 
lief, the argument in substance seems to come to this: that the be- 
lief of the defendants that the occasion was privileged makes it 
privileged. I cannot accept the proposition so put forward. I can- 
not see how the belief of the defendants, who have made a mistake, 
and have published a libel to persons who have no interest or duty 
or power in the matter, can affect the question. The belief of the 
defendants might have a bearing on the question of malice ; if it be 
assumed that the occasion was privileged, the belief of the defend- 
ants might be strong to shew that the communication was privileged, 
as being made without malice, but I do not think it has anything to 
do with the question whether the occasion was privileged. Reli- 
ance was placed rather on authority than on principle in support of 
the contention for the defendants. If that contention had been de- 
cided to be correct by the Court of Appeal or any Court whose au- 
thority was binding on us, there would, of course, be no more to be 
said. But I do not think that the point has been decided in favor 
of the defendants by any such Court. 

The only case which really seems to me to be a strong authority 
in favor of the defendant's contention is the case of Tompson v. 
Dashwood, ii Q. B. D. 43. There the judges distinguish between 
the writing and the publication of the libel, and speak of the writing 
as having been on a privileged occasion. I cannot follow their rea- 
soning. The cause of action in libel is, as I said at the beginning of 
my judgment, not the writing but the publication of the libel ; and 
the question is not whether the writing, but whether the publication 
is on a privileged occasion. The only way to deal with that case 
in my opinion is to say that we do not agree with it, and that it was 
wrongly decided. Therefore, in the present case, when it was 
proved to the judge that the libel was published by the defendants 



II52 



COLEMAN V. MAC LENNAN. 



to the board of guardians, who had no interest in the matter nor 
any duty or power to deal with it, then, without more, he ought to 
have held that the occasion was not privileged, and there was no 
further question to try as to privilege. 

Davey, L. J. I am of the same opinion. I do not thmk it nec- 
essary to state the reasons for my opinion at length. I desire, how- 
ever, to say that I agree with the Master of the Rolls m thmkmg 
that 'the judgment in Tompson v. Dashwood, ii Q. B. D. 43, can- 
not be supported. It is not the writing of a libel which is actionable, 
but the publication of it. The question, whether the occasion on 
which such publication takes place is privileged, depends, in my 
opinion, on the question whether there is in fact an interest or duty 
in the person to whom the libel is published: I cannot think that 
the mistake of the defendant in addressing the communication to 
the wrong person, or his beHef, however honest, that the person to 
whom it is published has a duty or interest in the matter, can make 
any difference with regard to the question whether the occasion is 
privileged. 

COLEMAN V. MacLENNAN.^ 

Supreme Court of Kansas, 1908. 78 Kans. 711. 

BuRCH, J. The plaintiff argues that the defense of privilege 
was destroyed by the fact that the copies of the defendant's news- 
paper circulated in other states, complains of the instructions given 
upon the subject, and insists that the instruction offered by him 
siiould have been given. The instruction given was correct and 
follows the rule announced by this court in Redgate v. Roush, 61 
Kans. 480. There a matter of interest to communicants of a church 
was published in the church papers in Indiana, Ohio, Texas and 
Nebraska. It was inevitable that they should be read by people of 
other denominations. The syllabus reads: "Where the publication 
appears to have been rnade in good faith and for the members of the 
denomination alone, the fact that it incidentally may have been 
brought to the attention of others than members of the church will 
not take away its privileged character."^ This accords with the gen- 
eral rule stated in 25 Cyc. Law & Proc. p. 387. See also Hatch v. 
Lane, 105 Mass. 394; Menters v. Bee •fnblishing Co., 5 Nebr. 
(Unof.) 592. In the cases of State v. Haskins, 109 la. 656, Buck- 
staff V. Hicks, 94 Wis. 34, and Sheftall v. Central R. Co., 123 Ga. 
589, language is used from which it might be inferred that the privi- 
lege will be destroyed if the communication should reach the eyes 
of others than persons interested.^ This would be the end of privi- 

•■ Accord: Shurtleff v. Stevens, 51 Vt. SOI (1879), similar facts. 

"See accord: Jones, Varnum & Co. v. Townsend, 21 Fla. 431 (1885), 
semble, and see Duncomhe v. Daniel, 8 C. & P. 222 (1837), 1 W. W. & H. 101. 
the procurement of the publication in the public newspapers of an attack on 
a candidate for Parliament held not privileged, though it is doubtful 
whether the decision went on the ground of excessive publication to those not 
concerned as electors or on the ground that the statements attacked the can- 
didate's private rather than his public character; and Pierce v. Ellis, 6 Ir. C. 



MALICE. 1 153 

lege for all newspapers having circulation and influence. Gen- 
erally the publication must be no wider than will meet the require- 
ments of the moral or social duty to publish. If it be designedly or 
unnecessarily or negligently excessive, privilege is lost. But, if a 
state newspaper published primarily for a state constituency have a 
small circulation elsewhere, it is not deprived of its privilege in the 
discussion of matters of state-wide concern because of that fact.^ 



(b) "Malice." 



Parson Prick's Case, cited in Cro. lac. 91. 
Coke cited a case, where Parson Prick in a sermon recited a story out of 
Fox's Martyrology, that one Greenwood, being a perjured person, and a great 



L. 55 (1856), where the defendant handed to newspaper reporters a copy of 
his speecli made at a public meeting called to petition Parliament, and com- 
pare Hunt V. Bennett, 19 N. Y. 173 (1859), where the defendant published in 
a newspaper an open letter attacking the character of an applicant for ap- 
pointment by a municipal council to an office in its gift. 

'See Express Printing Co. v. Copeland, 64 Tex. 354 (1885). In Marks 
V. Baker, 28 Minn. 162 (1881), it was held that citizens had the right to pub- 
lish in a local paper an articje containing statements defamatory of a candi- 
date for a local election office. The insertion in a newspaper of an adver- 
tisement of purely private concern was held by Ellenborough, C. J. in Brown 
V. Croome, 2 Starkie 297 (1817), to be justifiable only if the defendant showed 
that "such publication was the only effectual means of accomplishing his 
object" of giving information to the persons to whom it was proper for him 
to convey it, and it was there held that it was not necessary for the defend- 
ant to do so in order to convene a meeting of the plaintiff's creditors, of whom 
he was one, and it was doubted in Lay v. Lawson, 4 A. & E. 795 (1836), 
whether newspaper advertisement was ever justified to protect or further a 
purely private interest. The later American cases, however, hold that it is 
for the jury to say whether the advertisement is a reasonable or necessary 
method of giving notice to those interested or whom the defendant must no- 
tify to protect his interests. Hatch v. Lane, 105 Mass. 394 (1870), defendant 
inserted an advertisement warning his customers against paying bills to a 
discharged employee; Holliday v. Ontario Farmers Mutual Insurance Co., 33 
U. C. Q. B. 558 (1873), semble; see also Redgate v. Roush and Shurtleff v. 
Stevens, 51 Vt. 501, and the publication of such advertisements by a news- 
paper is also privileged, Commonwealth v. Featherston, 9 Phila. 594 (Pa. 
1872), advertisement warning the public against negotiating notes alleged to 
have been fraudulently procured by the plaintiff. In Smith v. Streatfield, L. R. 
1913, 3 K. B. 764, it Is held that the malice of the author of a privileged com- 
munication destroys the privilege of a newspaper publishing it in good faith, 
see Thomas v. Bradbury, Agnew & Co., L. R. 1906, 2 K. B. 627. 

In She f tall v. Central R. Co., 123 Ga. 589 (1905), it was held that the 
defendant, though privileged to communicate to all employees, concerned with 
the validity of tickets, its suspicion that a discharged conductor had appro- 
priated tickets which he might put in circulation, could not do so by posting 
placards which it knew or should have kno^/n would be also read by other 
employees, and see P. W. & B.R. Co. v. Quigley, 21 How. 202 (U. S. 1858), 
and as to the right of commercial agencies to circulate information as to the 
financial standing of business men and firms among all their subscribers, 
many of whom are not concerned in the particular information furnished,' 
see Taylor v. Church, 8 N. Y. 452 (1853) ; Sutiderlin v. Bradstreet, 46 N y' 
188 (1871) ; Commonwealth v. Stacey, 8 Phila. 617 (Pa. 1871) ■ Kmg v Pat- 
terson, 49 N. J. L. 417 (1887) ; Bradstreet Co. V. Gill, 72 Tex. 115 (1888) • 
Pollasky v. Minchener, 81 Mich. 280 (1890) ; Mitchell v. Bradstreet Co 116 
Mo. 226 (1893). 



1 154 CASES ON TORTS. 

persecutor had great plagues inflicted upon him, and was killed by the hand 
of God; whereas in truth he never was so plagued, and was himself present 
at that sermon; and he thereupon brought his action upon the case, for call- 
ing him a perjured person : and the defendant pleaded not guilty. And this 
matter being disclosed upon evidence, Wray, Chief Justice, delivered the law 
to the jury, that it being delivered but as a story, and not with any malice or 
intention to slander any, he was not guilty of the words maliciously; and so 
was found not guilty. 14 Hen. 6 pi. 14. 20 Hen. 6 pi. 34.— And Popham 
affirmed it to be good law, when he delivers matter after his occasion as mat- 
ter of story, and not with an intent to slander any. — Wherefore, for these 
reasons, it was adjudged for the defendant.' 

Bayley, J. in Bromage V. Prosser (1825), 4 B. & C. 247: That malice, in 
some sense, is the gist of the action, and that therefore the manner and occa- 
sion 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). In Smith V. Richardson, Willes, 24; and it has been laid down in 1 
Com. Dig. action upon the case for defamation, G S, 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 
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 ex- 
pressions, 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 intentionally 
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. 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 produce an in- 
jury 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 produces? But in actions for 
such slander as is prima facie excusable on account of the cause of speaking 
or writing it, as in the case of servant's characters, confidential advice, or 
communications to persons who ask it, or have a right to expect it, malice in 
fact must be proved by the plaintiff, and in Edmondson v. Stevens, Bull. N. P. 
8, Lord Mansfield takes the distinction between these and ordinary cases of 
slander. 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 Hargrove v. Le Breton, 3 Burr. 2425, Lord Mansfield 
states that no action can be maintained against a master for the character he 
gives a servant, unless there are extraordinary circumstances of express ' 
malice. But in an ordinary action for libel or for words, though evidence 



'So in Crawford v. Middle ton, 1 Lev. 82 (1674), where the plaintiff was 
nonsuited on the ground that the defendant, who had said that the plaintiff 
had been hanged for stealing a horse, had, as it appeared on the evidence, 
spoken the words in genuine grief and sorrow at the news. 



MALICE. 1155 

of malice may be given to increase the damages, it never is considered as 
essential, nor is there any instance of a verdict for a defendant on the ground 
of want of malice. 



BuRCH, J. in Coleman v. MacLennan, 78 Kans. 711.* 

With all due deference to Upton v. Hume' the remarks quoted read as 
if they had been written in the midst of the fog of fictions, inferences and 
presumptions which enshroud the law of libel. Facts and the truth never 
have been much in favor in that branch of the law. Its early use as a weapon 
and shield of caste and arbitrary power would have been impaired. Suppose ' 
a serious charge to be made : By a fiction it is presumed to be false. By a 
fiction malice is inferred from the fiction of falsity. By a fiction damages are 
assumed as a consequence of the fictions of malice and falsity. Publication 
only is not presumed, and until recent times the offer to show the truth Of the 
charge as having some bearing upon liability was a sacrilegious insult to this 
beautiful and symmetrical fabric of fiction. Then a defendant was made to 
suffer additional smart for venturing to obtrude the truth as a defence if, 
although his proof were abundant, he barely failed, in the opinion of the 
jury, to make out a preponderance. It is, however, in the field of malice, 
where the rule stated in the quotation lies, that truth and fact are most super- 
fluous. In the first place it is said that malice is the gist of the action for 
libel. This is pure fiction. It is not true. The plaintiff makes a complete 
case when he shows the publication of the matter from which damage may 
be inferred. The actual fact may be that no malice exists or could be 
proved. Frequently libels are published with the best of motives, or perhaps 
mistakenly or inadvertently but with an utter absence of malice. The plain- 
tiff recovers just the same. Therefore "the gist of the action" must be taken 
out of the case. This is done by another fiction. It is said that of course 
malice does not mean the one thing known to fact or experience to which the 
term may apply, but it is just a legal expression to denote want of legal ex- 
cuse. In this state a statutory definition of libel making malice an essential 
ingredient as at the common law compels this court to say that the intentional 
publication of libelous matter implies malice, whatever the motive may be. 
{The State v. Clyne, Zi Kans. 8, 35 Pac. 789.) So, a fiction was invented to 
meet an unnecessary fiction which became troublesome, and the courts go on 
gravely ascending the hill for the purpose of descending, meanwhile fiUinp; 
the books with scholastic disquisitions, verbal subtleties and refined distinc- 
tions about malice in law, malice in fact, express malice, implied malice, etc., 
etc. 

Now, what is the fact? Instead of malice being the gist of the action it 
may come into a libel case and be of importance in two events only : to affect 
damages, and to overcome a defense of privilege. If the occasion be abso- 
lutely privileged, there can be no recovery. If it be conditionally privileged, 
the plaintiff must prove malice — actual evilmindednesp — or fail. When it 



* For the facts of the case and so much of the opinion as deals with the 
existence of a privilege to communicate to electors information as to candi- 
dates for elective office, see ante, p. 1070. 

' In 24 Ore. 420, the remarks quoted are "The only safe evidence of a 
-nan's intentions are his acts, and if he accuses another of a crime he must 
conclusively be presumed to have intended to injure him." 



1 156 LANCASTER V. HAMBURGER. 

comes to this proof there is no presumption, absolute or otherwise, attaching 
to a charge of crime. The proof is made from an interpretation of the 
writing, its malignity or intemperance, by showing recklessness in making 
the charge, pernicious activity in circulating or repeating it, its falsity, the 
situation and relations of the parties, the facts and circumstances surround- 
ing the publication, and by other evidence appropriate to a charge of bad 
motives, as in other cases." 



LANCASTER v. HAMBURGER. 
Supreme Court of Ohio, 1904. 70 Oh'io St. 156. 

Error to the Superior Court of Cincinnati. 

Lancaster brought suit against Hamburger, the substance of 
the allegations of his petition being, that he had, for a long time, 
been in the employ of the Cincinnati Street Railway Co. in the 
capacity of a conductor ; that the defendant, who had conceived a 
violent dislike to him, and who had repeatedly threatened to pro- 
cure his discharge from said employment, did, without excuse, cause, 
or justification, and actuated solely by a malicious desire to injure 
plaintiff, falsely and maliciously say to the superintendent of said 
company that plaintiff, while on duty as conductor, had been guilty 
of misconduct and of violation of the rules of the company, in 
consequence of which charge plaintiff was, on that day, discharged 
from said employment, to his damage in the sum of ten thousand 
dollars. The defendant, answering, denied the allegations of malice, 
and averred that while he and others were traveling as passengers 
on the car of said company which was in charge of plaintiff as con- 
ductor, the plaintiff was guilty of rude and ungentlemanly conduct 
toward them, which defendant reported to the superintendent of 
the company, and that the superintendent, after investigating the 
subject, discharged the plaintiff from the company's service. 

The plaintiff excepted to the charge of the court, the material 
portion of which is the following instruction given at the request 
of the defendant: "It was the duty of the plaintiff not to conform 
to any fanciful degree of conduct, nor to observe the degree of con- 
duct which, perhaps, we would like to observe at all times as ideal, 
but he was obliged to observe such degree of deportment, decorum, 
politeness and courtesy as is common among ordinary men in their 
dealings with one another ; and if he failed to observe such a stand- 
ard, then he would be guilty of rudeness and the defendant in the 
case would have a right to make complaint. 

The jury returned a verdict for the defendant and. the plain- 
tiff's motion for a new trial having been overruled, judgment fol- 
lowed the verdict. The judgment was affirmed by the superior court 
at general term. 

Shauck, J. (After commenting upon the cases of Allen v. 
Flood, 1898, A. C, I, and Quinn v. Leathern, 1901, A. C, 495.) 
Neither of these cases, nor any of the others cited by counsel f 01 the 
plaintiff, can have the effect to disturb the rule generally recognized 
and well established in this state, that it is immaterial what motive 



LANCASTER V. HAMBURGER. 1 157 

one is prompted in the exercise of a clear legal right or the per- 
formance of a duty. Frazier v. Brozvn, 12 Ohio St. 294; Letts v. 
'Kcssler, 54 Ohio St. y^', Kcllcy v. The Ohio Oil Co., 57 Ohio St. 
327.^ Certainly the motive which prompts one to the commission of 
a wrongful act may be very material, for it may determine Vv^hether 
the injured party may recover exemplary, or only compensatory 
damages. The record does not admit a doubt that the defendant 
exercised a legal right, if, indeed, he did not perform a duty in 
making complaint to the superintendent of the company of the 
plaintiff's misconduct. The evidence tended to show, and the in- 
struction required the jury to find, that the plaintiff had been guilty 
of the misconduct of which complaint was made. The defendant 
and his wife were patrons of the street railway company, a common 
carrier of passengers, and entitled, in common with the public gen- 
erally, to civil treatment while aboard its cars, and to the benefit of 
the rules designed for the safety and comfort of passengers. The 
plaintiff was the representative of the company who came in con- 
tact with its patrons, and through who it discharged some of the 
most important duties it owed the public. Since it would not be 
practicable for the company to institute and maintain such super- 
vision of the conduct of all its conductors as would secure the full 
performance of all their duties toward passengers, the patrons of the 
road should be encouraged to report their misconduct fairly and 
justly; nor should a patron of the company be required, by the 
consciousness of ill will toward the offender, to abstain from mak- 
ing a truthful report of such misconduct. Seeing that such miscon- 
duct naturally arouses resentment in all who observe it, it would 
result, from the contrary rule, that a conductor's immunity from 
complaint would be in proportion to the offensiveness of his mis- 
conduct. Judgment affirmed.^ 



' See Fowler v. Jenkins, 24 Pa. 308 (18SS), where the defendant removed 
a fence wrongfully erected by himself and the plaintiff on a public highway. 
So the motive which inspires a man to take such action as the law permits 
to protect his person or property from wrongful interference or intrusion, 
is immaterial, Brothers v. Morris. 49 Vt. 460 (1877) ; Kijf v. Youmans 86 N 
Y. 324 (1881), semble; Oakes v. Wood, 2 M. & W. 791 (1837), the defendants, 
occupiers of land, expelled a trespasser. "If the defendant had a justifiable 
cause for turning the party out, the motive was wholly immaterial; even 
though he did it in pursuance of an old grudge, it makes no difference, as 
long as he did no more than was necessary to turn her out." — Parke B. 
Humphrey v. Douglass, 11 Vt. 22 (1839), defendant turned off his farm a 
horse wrongfully intruding thereon; Smith v. Johnson, 76 Pa. St. 191 (1874), 
landowner removed an encroaching fence, compare Jenkins v. Fowler 24 Pa 
St. 308 (1855) ; Clinton v. Myers. 46 N. Y. 511 (1871), riparian owner opened 
gates in a dam, which obstructed the natural flow of the stream. So a land- 
owner may, without regard to his motive, do any act necessary to prevent 
another accruiring an easement over it, Mahan v. Brown, 13 Wend. 261 (N. Y 
1835), semhle; Phelps v. Nowlen, 72 N. Y. 39 (1878). 

"In an action of Slander or Libel if the truth of- the defamatory state- 
ments be specially pleaded and "the jury are satisfied that the words are true 
in substance and fact, they must find for the defendant, though they feel 
sure that he spoke the words spitefully and maliciously'' — Odgers, Libel and 
Slander, 4th ed., 1913. As to the law of Quebec, see Trudel v. P'iau, Mont- 
real L. R., 5 Q. B. 502 (1889) ; Jeannotte v. Gauthier, Montreal L.- R. 1897 
6 Q. B. 520. ■ , 



1 158 FAHR V. HAYES. 

BRADLEY v. HEATH. 
Supreme Judicial Court of Massachusetts, 1831. 12 Pick. 163. 

Shaw, C. J. Where words imputing misconduct to another, 
are spoken by one having a duty to perform, and the words are 
spoken in good faith, and in the behef that it comes within the dis- 
charge of that duty, or where they are spoken in good faith, to those 
who have an interest in the communication and a right to know and 
act upon the facts stated, no presumption of maHce arises from the 
speaking of the words, and therefore no action can be maintained 
in such cases, without proof of express malice. If the occasion is 
used merely as a means of enabling the party uttering the slander to 
indulge his malice, and not in good faith to perform a duty or make 
a communication useful and beneficial to others, the occasion will 
furnish no excuse. Bromage v. Prosser, 4 Barn. & Cressw. 247 ; 
Starkie on Slander, 200. 

We think the case must be governed by this rule. The charge 
in the first two counts was, that the plaintiff had put two votes into 
the ballot box. It appears that the defendant was one of the select- 
men of the town, and that the words were spoken in an open town- 
meeting during an election, at which the defendant was acting in 
his capacity as a public officer. It appears to us that this falls under 
both branches of the rule stated. It is therefore to be deemed a 
privileged communication. 

Such being the occasion of speaking the words, as it appeared 
on the proof of the plaintiff's case, any evidence which tended to 
prove that the defendant was acting in good faith, in the discharge 
of his duty, was competent to repel the charge of express malice, or 
colorable pretence. With this view it was competent to show that 
the manner of the plaintiff's voting at the time the words were ut- 
tered, was such as to excite suspicion and induce a belief, that the 
plaintiff put in more votes than one. It was in effect proof of prob- 
able cause, which is allowable, when the occasion of speaking the 
words affords prima facie evidence of an excuse for speaking them. 
Remington V. Congdon, 2 Pick. 310. And we think that this in no 
degree impugns the rule, that in ordinary actions of slander, where 
the occasion furnishes no prima facie excuse, the truth of the words 
spoken cannot be given in evidence under the general issue.^ 



FAHR V. HAYES. 

Supreme Court of New Jersey, 1888. SO N. J. L. 275. 

DixON, J. So much being established on behalf of the defend- 
ant, it then became incumbent on the plaintiff to show that the de- 

^ So comment otherwise fair loses its immunity if shown to be inspired 
by actual malice, Thomas v. Bradbury, Agnew & Co., L. R. 1906, 2 K. B. 627; 
Tawney v. Simonson, Whitcomb &• H^'Hey Co., 109 Minn. 341 (1909). 



OVER V. SCHIFFLING. 1 1 59 

famatory words were uttered out of what is called express malice. 
If he produced any evidence from which express malice could le- 
gally be inferred, then it was proper to submit the question to the 
jury; if he did not, a verdict for the defendant should have been 
directed. 

By express malice in this connection is meant some motive, ac- 
tuating the defendant, different from that which prima facie ren- 
dered the communication privileged, and being a motive contrary to 
good morals.^ The motive which in the present case the law 
prima facie imputes to the defendant, in regarding his conduct as 
innocent, is a desire to give Thoma (who had made inquiries of the 
defendant as to the credit of the plaintiff, a former customer of the 
defendant's) true information, in order to prevent his crediting the 
plaintiff, whom the defendant thought not worthy of credit, and 
hence the question here is whether the evidence tended to establish 
any other motive contrary to good morals. 

The language used by the defendant fairly discloses another 
motive than the imputed one, not indeed inconsistent, but rather 
conjoined with it, viz., indignation towards the plaintiff for his 
supposed crime. This motive, however, is not contrary to good 
morals, and therefore cannot be ranked as malicious per se, and 
so long as it does not impel its possessor into an illegal act it cannot 
subject him to the condemnation of the law. At the time now un- 
der review it did not betray the defendant into any expression be- 
yond what was pertinent to the subject of Thoma's inquiry, and 
was honestly believed by the defendant and therefore was legalized 
by the privileged occasion and motive.^ 



OVER V. SCHIFFLING. 
Supreme Court of Indiana, 188S. 102 Ind. 191. 

Elliot, J. The complaint of the appellee alleges that the ap- 
pellant maliciously published a libel ; that the libellous matter was 
contained in a letter written by the latter to a corporation called the 
Encaustic Tile Company, by whom the appellee was then employed. 
The letter, omitting the date, address, signature and formal part, 
is as follows : 

"Mr. Schiffling owes me on work done on your dies, etc., $33. 

' It is not necessary that the communication be inspired by personal ill- 
will or animosity toward the plaintiff, Gattis v. Kilgo, 128 N. Car. 402 (1901), 
p. 407, where it was held that the trial judge had properly refused the de- 
fendant's request for an instruction, that "malice in fact means personal ill- 
will and a desire to injure the plaintiff," saying "that if the publication was 
not in good faith for the reason claimed, but from a wrongful, indirect and 
ulterior motive and was false, the same was malicious"; Blumhardt v. Rohr, 
70 Md. 328 (1889) ; Hellstern v. Katser, 103 Wis. 391 (1899) ; but see Bacon 
V. Mich. Cent. R. Co., 66 Mich. 166 (1887). 

"In Cranfi.ll v. Hayden, 97 Tex. S44 (1904), it is held the desire to injure 
the plaintiff need not be the sole or even the dominant motive. The de- 
fendant is protected only when the desire to perform his duty is his sole 
motive for making the communication. 



Il6o CLARK V. MOLYNEUX. 

If you would consent to retain such amount out of any money due 
him from you, let me know by return mail. If you will not consent 
to do so, I shall have to file a mechanic's lien on the goods. He got 
them of me by lying; first, he said he would bring an order from 
you, then he would pay cash for them before he took them away. He 
then watched his chances and took them when the foreman was not 
in, and now refuses payment." 

It is also alleged that the appellee was dismissed from the serv- 
ice of the corporation to whom the letter was addressed, and he 
demanded special and general damages. 

The letter was not a privileged communication. The informa- 
tion it professes to contain was ^volunteered, and the purpose for 
which it was conveyed to the appellee's employer was solely for 
the benefit of the writer, and was not intended to benefit the em- 
ployer by giving him, in good faith and for a just purpose, infor- 
mation necessary for his protection against a knavish servant.^ 



CLARK V. MOLYNEUX. 

Court of Appeal, 1877. Law Reports 1877-78, 3 Q. B. Div. 237. 

The action was for slander and libel. 

The plaintiff, a clergyman of the Church of England, had been 
formerly in the army and after taking his degree at Cambridge was 
ordained and became curate at Assington to the Reverend H. L. 
Maud. 

In 1876, the defendant, the Reverend Canon Molyneux, the 
Rector of Sudbury near Assington, in calling on a Mr. Bevan with 
whom he had been intimate for many years, was informed by him 
that the plaintiff was going to preach at Newton Church in the 
neighborhood and that he was sure that if Mr. Charles Smith, the 
rector, knew what sort of a person the plaintiff was he would never 
permit him to preach. Mr. Bevan asked the defendant as an old 
friend of Mr. Smith's to let him know what the plaintiff's char- 

^ Accord: Hollenheck, v. Ristine, 114 Iowa 358 (1901), similar facts; 
Beals V. Thompson, 149 Mass. 405 (1889), similar statements made to plain- 
tiff's husband in an effort to induce him to pay a debt contracted by her be- 
fore her marriage; but see Fairman v. Ives, 5 B. & Aid. 642 (1822), where 
a letter to the plaintiff's commanding officer complaining of his refusal to pay 
a debt to the defendant and asking such officer to enforce payment, was held 
privileged. So it was held that a communication by the defendant, a rival 
trader, of statements derogatory to the plaintiff's goods "from motives of per- 
sonal gain to be secured through injury to a rival in business" was not privi- 
leged. Brown v. Vannaman, 85 Wis. 451 (1893) ; and see Hubbard v. Rutledge, 
57 Miss. 7 (1879). 

In Hooper v. Truscott, 2 Bing. N. C. 457 ( 1836) , a charge of felony made 
to the plaintiff's relatives to induce them to pay hush money was held not to 
be privileged; see also, Smith v. Hodgekins, (Tro. Car. 273 (1633), and in lack- 
son V. Hopperton, 16 C. B. (N. S.) 829 (1864), the fact that the defendant 
did not make his charge against the plaintiff till she threatened to leave his 
service, and told her that he would say nothing about it if she returned and 
would give her a reference if she confessed, was held sufficient evidence of 
malice to support a verdict for the plaintiff. 



CLARK V. MOLYNEUX. 



I161 



acter was. The defendant placing implicit reliance upon Mr. Bevan 
and thinking it was his duty to acquaint Mr. Charles Smith of the 
matter, went to his house and finding him ill in bed communicated 
his information to Mr. Smith's son, also a clergyman, who was 
there. The defendant afterwards consulted his rural dean as to 
whether he should speak to the plaintiff's rector Mr. Maud, the 
dean advised him to do so. As Mr. Maud was abroad the defendant 
spoke to his solicitor on the subject and on Mr. Maud's return he 
received a letter from him asking for information and wrote an 
answer detailing the facts as stated by Mr. Bevan. The defendant 
also consulted his curate who had been with him for many years 
and whom he invariably consulted about all church matters. The 
communications to the curate, to Mr. Smith's son and to the dean 
were the slanders complained of, and the letter to Mr. Maud was 
the libel complained of. The defendant relied solely upon the privi- 
lege of the occasion and bona fides of his statements. 

The action was tried before Baron Huddleston and a special 
jury. The learned judge ruled that all the occasions were privileged 
and the case went to the jury on the question of express malice. 
The jury found a verdict for the plaintiff for £200 damages. 

The defendant moved for a new trial in the Queen's Bench 
Division on the ground that the verdict was against the weight of 
the evidence and of the misdirection of the court complaining of 
the general tenor of the summing up and particularly the following 
passage therein: 

"You, Mr. Molyneux, may defend yourself by the fact that 
these occasions were privileged, but to do so >ou must satisfy a 
jury that what you did you did bona fide and in the honest belief' 
that you were making statements which were true. * * * What 
you have to consider is this : assuming that these occasions were 
privileged, do you think that the defendant made these statements 
and wrote this letter bona fide and in the honest belief that they 
were true, not merely that he believed them himself, but honestly 
believed them — which means that he had good ground for believing 
them — to be true? I mean to say that if he pertinaciously and ob- 
stinately, perhaps, persuaded himself of a matter for which per- 
suasion he had no reasonable ground, and with respect to which per- 
suasion you twelve gentlemen would say he was perfectly unjus- 
tified * * * then your verdict will be for the plaintiff." 

The court refused the rule and the defendant appealed. 

Bramwell, L. J. Before I proceed further in discussing the 
language of the summing-up, I wish to remark that a person may 
honestly make on a particular occasion a defamatory statement 
without believing it to be true ; because the statement may be 
of such a character that on the occasion it may be proper to com- 
municate it to a particular person who ought to be informed of it. 
Can it be said that the person making the statement is liable to an 
action for slander? In the present case the judge asked the jury 
whether the defendant did what is complained of in the honest be- 
lief that what he wrote and said with reference to the plaintiff was 
true. At a later period of the summing-up the judge explains what 



Il62 CLARK V. MOLYNEUX. 

he means by honest behef ; and the effect of his language is, that 
the jury must have been led to think that "honest belief" means, 
not the actual belief in the defendant's mind, but belief founded 
upon reasonable grounds. Apart, therefore, from the question 
upon whom the burden of proof lay, I think there was a misdirec- 
tion as to the meaning of the term "honest belief," and that the 
verdict against the defendant cannot stand. 

Brett, L. J.^ I am of opinion that there was a misdirection by 
the learned judge to the jury; that the verdict was against the 
weight of the evidence; and that there was no evidence of malice 
which ought to have been left to the jury. 

With regard to the misdirection, we do not differ from the 
Queen's Bench Division as to the rule of law which governs this 
case, but w» think that the direction of the learned judge was cal- 
culated to mislead the jury as to what was the right question for 
their decision. The direction to the jury was founded on the as- 
sumption that the occasions were privileged, and that which must 
be taken to be a libel would be excused if the defendant had used 
the privilege fairly and honestly. Before I address myself to 
the summing-up, I think it advisable to lay down what I consider 
would be a true exposition of the law in such matters. When 
there has been a writing or a speaking of defamatory matter, and the 
judge has held — and it is for him to decide the question — that al- 
though the matter is defamatory the occasion on which it is either 
written or spoken is privileged, it is necessary to consider how, al- 
though the occasion is privileged, yet the defendant is not permitted 
to take advantage of the privilege. If the occasion is privileged 
it is so for some reason, and the defendant is only entitled to the 
protection of the privilege if he uses the occasion for that reason. 
He is not entitled to the protection if he uses the occasion for some 
indirect and wrong motive. (One, but by no means the only, indi- 
rect motive which can be alleged, is the gratification of some anger 
or malice of his own.) If he uses the occasion to gratify his anger 
or malice, he uses the occasion not for the reason which makes the 
occasion privileged, but for an indirect and wrong motive." If the 
indirect and wrong motive suggested to take the defamatory matter 
out of the privilege is malice, then there are certain tests of malice, 
Malice does not mean malice in law, a term in pleading, but actual 
malice, that which is properly called malice. If a man is proved to 
have stated that which he knew to be false, no one need inquire 
further. Everybody assumes thenceforth that he was malicious, 
that he did do a wrong thing for some wrong motive. So if it be 

^ Those portions of the opinion of Brett, L. J. which are enclosed in 
brackets are taken from the report of the case in 47 L. J., C. L. 238. 

"The fact that the defendant was angry when he made the statements 
is sufficient evidence of malice to support a verdict, Robinson v. Van Auken, 
190 Mass. 161 (1906), or that he had expressed a desire to injure the plaintiff, 
Hollenbeck v. Ristine, lOS Iowa 488 (1898), or that he had made other de- 
famatory statements or repeated the Same charges on prior or subsequent oc- 
casions, Tarpley v. Blabey, 2 Bing. N. C. 437 (1836) ; Seaman v. Netherclift, 
L. R. 1 C. P. D. S40 (1876) ; Evening Journal v. McDermott, 44 N. J. L. 430 
(1882), unless such occasions were themselves privileged, Fahr v. Hayes, 50 



CLARK V. MOLYNEUX. II63 

proved that out of anger, or for some other wrong motive, the de- 
fendant has stated as true that vsrhich he does not know to be true,'' 
or he has stated it whether it is true or not, recklessly, by reason of 
his anger or other motive, the jury may infer that he used the oc- 
casion, not for the reason which justifies it, but for the gratification 
of his anger or other indirect motive. I think I have laid down 
the correct rule on which to ground the direction to the jury, and I 
think the learned judge did not follow that rule, but he so expressed 
himself that the jury would be misled into following other rules. 
I think the jury were misled into believing that the burden of proof, 
that the defendant was not actuated by malice in the statements he 
had made, lay upon the defendant rather than ou the plaintiff. I 
apprehend the moment the judge rules that the occasion is privileged, 
the burden of showing that the defendant did not act in respect of 
the reason of the privilege, but for some other and indirect reason, 
is thrown upon the plaintiff.* I also think that the learned judge 
was mistaken in the definition of malice he gave to the jury, and 
the jury might have been misled by his leaving to them to apply 
that definition to the question of what was malice in fact. I am 



N. J. L. 275 (1888), p. 281, or that the relation between the parties was 
strained, Thomas v. Bradbury, Agnew &■ Co., L. R. 1906, 2 K. B. 627, Dickson 
V. Earl of Wilton, 1 F. & F. 419 (1859), or that they had quarreled, Rogers v. 
Clifton, 3 B. & P. 587 (1803), or that the plaintifif had given the defendant 
cause to desire revenge, Comfort v. Young, 100 Iowa 627 (1897), where the 
plaintiff had caused the defendant to be prosecuted for operating a creamery 
on Sunday or any other fact from which the existence of ill-will on the de- 
fendant's part can be legitimately inferred, Kelly v. Partington, 4 B. & Ad. 
700 (1833) ; Hemmings v. Gasson, E. B. & E. 346 (1858) ; McGaw v. Hamil- 
ton, 184 Pa. St. 108 (1898). As to eflfect of the fact that the information is 
volunteered as evidence of malice, see Pattison v. Jones, ante, p. 1096. 

'Accord: Briggs v. Garrett, 111 Pa. St. 404 (1886), "a lie is never privi- 
leged," "it is mistakes, not lies, that are protected under the doctrine of privi- 
lege"— Paxson, J., p. 414; Gassett v. Gilbert, 6 Gray 94 (Mass. 1859) ; State v. 
Schmitt, 49 N. J. L. 579 (1887), and see Holmes v. Clisby, 121 Ga. 241 
(1904), p. 246. 

' If the court finds that the occasion is privileged the burden of proving 
malice rests on the plaintiff, Bearce v. Bass, 88 Maine 521 (1896) ; Hagan v. 
Hendry, 18 Md. 177 (1862) ; Simmons v. Holster, 13 Minn. 249 (1868) ; King 
V. Patterson, 49 N. J. L. 417 (1887) ; Barry v. McCollom, 81 Conn. 293 (1908) ; 
McDavitt v. Boyer, 169 111. 475 (1897) ; Jenoure v. Delmege, L. R. 1891, A. C. 
1Z ; Bacon v. Michigan Cent. R. Co., 66 Mich. 166 (1887) ; Hemmens v. Nelson, 
138 N. Y. 517 (1893) ; Gray v. Pentland, 4 Serg. & R. 420 (Pa. 1819) ; Brock- 
erman v. Keyser, 8 Legal Int. 238 (Pa. 1851) ; Missouri Pac. R. Co. v. Rich- 
mond, 73 Tex. 568 (1889) ; Strode v, Clement, 90 Va. 553 (1894) ; Chambers v. 
Leiser, 43 Wash. 285 (1906); Locke v. Bradstreet Co., 22 Fed. 771 (1885). 
Contra: Wakefield v. Smithwick, 49 N. Car. 327 (1857) ; and see Atwater v. > 
Morning News Co., 67 Conn. 504 (1896) ; and this requires the plaintiff, if 
he questions the defendant's belief in the truth of his statements, to prove 
that the defendant had no honest belief, Jenoure v. Delmege, L. R. 1891, A. 
C. 73. 

In Conroy v. Pittsburgh Times, 139 Pa. St. 334 (1891), it is held that 
where the alleged libel or slander charges an indictable offense, there is a 
presumption of innocence thereof, throwing on the defendant the burden of 
proving that the charge was made in good faith and on probable cause, see 
contra, McDavitt v. Boyer, 169 111. 475 (1897), and such accusations can only 
be justified by proof of such probable cause for believing them, Shelly v. 
j.umpman, 1 Pa. Sup. Ct. 115 (1896), and such inquiry as would justify in- 



1 164 CLARK V. MOLYNEUX. 

further of opinion that the direction to the jury — that assuming 
that the occasions were privileged if they thought that the defend- 
ant wrote the letter, and made the statements bona fide, and in the 
honest belief that they were true, not merely that he believed 
them himself, but honestly believed them, which means that he had 
good grounds for believing them to be true, — left the jury to sup- 
pose that, although the defendant did believe them in fact, yet that 
did not protect him unless his belief was reasonable: whereas the 
only question was whether the defendant did, in fact, believe what 
he said, and not whether a reasonable man would have believed it. 
The question of wilful blindness, or of an obstinate adherence to 
an opinion, may be tests by wMch a jury may be led to consider 
whether the defendant did or did not really believe the statements 
he made;° whereas the learned judge, by the way in which he di- 
rected the jury, left them to understand, as I think, that although 
the defendant did believe the statements, yet if his belief was 
founded on a wrong reasoning that he was not within the protection 
of the privilege. (Questions of pig-headedness and obstinacy may 
be tests as to whether a man really did honestly believe or not, but 
Baron Huddleston left them as if they were of the essence of the 
definition of malice.) In that respect, with great deference I think, 
the learned judge's direction to the jury was erroneous.® 



stituting a prosecution, Neeb v. Hope, 111 Pa. St. 145 (1886), semhle, Ingram 
V. Reed, 6 Pa. Sup. Ct. 550 (1897) ; Collins v. Morning News, 6 Pa. Sup. Ct. 
330 (1898), and see Coates v. Wallace, 4 Pa. Sup. Ct. 253 (1897), holding that 
one publishing statements aspersing the character of a candidate for office 
must show the circumstances which led him to believe his charges to be true. 

° The facts within the defendant's knowledge are always admissible to 
prove or disprove the absence of honest belief. Fountain v. Boodle, 3 A. & E. 
(N. S.) 5 (1842) ; Gassett v. Gilbert, 6 Gray 94 (Mass. 1858) ; Bradley v. 
Heath, 12 Pick. 163 (Mass.); A twill v. Mackintosh, 120 Mass. 177 (1876); 
Wagner v. Scott, 164 Mo. 289 (1901), especially where the charge is against 
a public officer. Fairman v. Ives, 5 B. & Aid. 642 (1822) ; Robinson v. May, 
2 Smith 3 (1804). See also Sunley v. Met. Life Ins. Co., 132 Iowa 123 
(1906), in which it is assumed that the fact that the plaintiff had properly 
accounted with the defendant's agent was equivalent to knowledge on the 
part of such agent of the true state of that account. 

"The defendant's belief may be founded on hearsay, Aberdein v. Mac- 
leay, 9 Times L. R. 539 (1893) ; Briggs v. Garrett, 111 Pa. St. 404 (1886) ; 
Maitland v. Bramwell, 2 F. & F. 623 (1861), and this though the defendant's 
only ground of her belief is her implicit confidence in her informant, Hes- 
keth V. Brindle, 4 Times L. R. 199 ( 1888) , a daughter writing under her own 
name at her father's dictation, though it is better to state the source of 
one's information, as by producing or quoting the letter which conveys the in- 
formation, Robshaw v. Smith, 28 L. T. 423 (1878) ; Briggs v. Garrett, 111 Pa. 
St. 404 (1886) ; Elliott v. Garrett, L. R. 1902, 1 K. B. 870, in which it seems to 
be suggested that it may be the defendant's duty to investigate the truth of the 
matter stated to him by third persons. But a defendant who signs a letter 
without taking care to ascertain its contents is not protected by his belief 
that it contained only statements which he was entitled to communicate 
and which he believed true, Holmes v. Clisby, 121 Ga. 241 (1904), and 
in Met. Life Ins. Co. v. Sunley, 132 Iowa 123 (1906), it was held that the 
knowledge of the defendant's agent was its knowledge and that a statement 
made by its home office in good faith in reliance on an agent's report was ma- 
licious in fact if he knew facts which made it false. The mere fact that the de- 
fendant admits .that he cannot prove the truth of his statements does not 



TOOTHAKER V. CON ANT. II65 

Assuming that the right question had been left to the jury, is 
there any evidence to support the finding of malice? Now, the 
occasion being privileged, the burden of proof to show that the 
defendant was not within the protection of the privilege being on 
the plaintiff, and it being an admitted fact that the defendant did 
not know the plaintiff, had never even seen him, and that he had no 
relations with him whatever, and no motive can be suggested why 
the defendant should have a vindictive feeling against the plain- 
tiff, 1 think that the discrepancies which were relied upon, and 
the want of care in instituting inquiries, are too slight to justify 
a judge in asking the jury whether the defendant was actuated by 
indirect motives in making the statements. He certainly did not 
make them from a want of belief in them, nor was he influenced by 
anger in making them, not caring whether they were true or false.'' 



TOOTHAKER v. CONANT. 
Supreme Judicial Court of Maine, 1898. 91 Maine 438. 

Peters, C. J. The exceptions, in this action of slander, ever 
so brief, are as follows: "The defendant claimed the words used 
were privileged, and requested the presiding justice to instruct the 
jury that the question for them to decide was not whether the 
language used was true, nor whether the defendant had reasonable 
ground to believe it to be true, but whether he honestly believed it 
to be true. This the justice refused to do and instructed the jury 
that he must have reasonable and probable grounds for his belief or 
his belief would be no defense. The verdict was for the plaintiff. 
To which refusal the defendant excepts." 

There is nothing to inform us what the alleged slanderous words 
were, nor what the circumstances were under which the words 
were spoken. While the phrase "honest belief" may be found in 
legal opinions which undertake to define privileged communications, 
the phrase without addition or qualification is not adequate and 
sufficient as a definition of the law of justification for what would 
otherwise be regarded as slanderous words. A man may inflict 
an injury upon another without intending any injury, and still be 
liable for his unjustifiable act. Malice in the popular sense need 
not appear in order to sustain an action for slander. Even acci- 



destroy his privilege, Billings v. Fairbanks, 139 Mass. 66 (1885). As to whether 
mere honest suspicion is enough compare the above case, where the defend- 
ant accused the plaintiff of theft in the presence of a third person, with 
Smedley v. Soule, 125 Mich. 192 (1900), where the accusation was against a 
public official. 

'Accord: Barry v. McCollum, 81 Conn. 293 (1908); Bays v. Hunt, 60 
Iowa 251 (1882) ; Hemmens v. Nelson, 138 N. Y. 517 (1893) ; Haft v. Bank, 
19 App. Div. 423 (N. Y. 1897); Chambers v. Leiser, 43 Wash. .285 (1906). 
In some jurisdictions, while the precise question has not arisen, it is said 
without qualification that the statement must be made "in good faith". Bacon 
V. Michigan Cent. R. Co., 66 Mich. 166 (1887) ; Gattis v. Kilgo, 128 N. Car. 
402 (1901). 



Il66 TOOTHAKER V. CONANT. 

dental injuries are actionable unless the person causing the in- 
jury be free from all fault. Carelessness which causes an injury- 
is generally a sufficient foundation for an action. But a person 
may through carelessness or negligence commit a wrongful act, 
and honestly think or believe he is doing no wrong. And the de- 
fendant here, in order to clear himself from the imputation of care- 
lessness, should show not only that he was acting in an honest be- 
lief that the story communicated by him was true, but that there 
were reasonable grounds to induce such belief. Otherwise, an in- 
jury might be wrongfully inflicted upon an innocent person and 
he have no remedy or redress for it. Bearce v. Bass, 88 Maine, 543, 
is cited by the defense where the learned justice adopted in his 
opinion the phrase "honest belief," but he added thereto the words, 
"such belief being founded on reasonable and probable grounds." 

Exceptions overruled} 

^Accord: Hehner v. Gt. Northern R. Co., 78 Minn. 289 (1899) ; Carpen- 
ter V. Bailey, 53 N. H. 590 (1873) ; Briggs v. Garrett, 111 Pa. St. 404 (1886) ; 
Mulderig v. Wilkesharre Times, 215 Pa. St. 470 (1906); Ranson v. West, 
125 Ky. 457, semhle. In Carpenter v. Bailey, Briggs v. Garrett and Mulderig 
V. Times, the defamation published was of a public official or candidate for 
office, see note 3 io Coleman v. MacLennan, ante, p. 1073, and see Odgers, 
Slander and Libel, 4th ed., p. 342, citing Fairman v. Ives, 5 B. & Aid. 642 
(1822), and Robinson v. May, 2 Smith 3 (Eng. K. B. 1804), and see Smedley 
V. Soule, 125 Mich. 192 (1900). So it was held in Locke v. Bradstreet Co., 
22 Fed. 771 (C. C. East. Dist. of Minn. 1885), and Douglas v. Daisley, 114 
Fed. 628 (C. C. A. 1st Circ. 1902), that reports by commercial agencies to 
their subscribers are only privileged if care is taken to secure and publish 
reliable information. 

In McNally v. Burleigh, 91 Maine 22 (1897), it is said that there must 
be belief "based upon reasonable and probable grounds after a reasonably 
careful inquiry"; and compare Neeh v. Hope, 111 Pa. St. 145 (1886), with 
Briggs v. Garrett, 111 Pa. St. 404 (1886) and Evening Post Co. v. Richard- 
son, 113 Ky. 641 (1902). 



CHAPTER IV. 

Acts Necessary to Secure One's Economic Advancement by Acts 
Necessarily or Intentionally Harmful to Others. 



SECTION 1. 

Nature of the Harm Done — Interference With Business or 
Employment. 



(a) By inducing third persons to break their contracts with the 

plaintiff. 



Form of action given in La Court De Baron, (Circa 1300). The Court 
Baron (Seldon Soc. Vol. IV) 40. Sir steward, William (Vintner) of 
Woodstock, who is here, complaineth of (Robert) Baker, who is there, 
that wrongfully he supplanted him of a ton of wine of a merchant of 
Southampton, Bernard Taneys by name, which (the plaintiff) bought of 
him (Bernard) for 36 s. and gave (earnest) and found pledges tb duly 
pay the said sum on a certain day without any delay; this done, came the 
said Robert and in despite of (William), who is here, spake so much ill 
and villany of him to the merchant and drove his own bargain so that the 
merchant increased the price of the ton to 40 s. ; and the said William hired 
a cart with four horses for a half-mark to carry the ton from Southampton 
to his house at Woodstock; and when he came to Southampton he found 
that owing to what Robert had said the merchant was now of another mind, 
that he would not let him (have the wine) and told him right out that he 
heard tell so much evil of him that he would give him no credit; and so 
(William) returned from the port with the cart he had hired as empty as 
when he took it thither, and none the less had to pay for its hire on the day 
fixed for payment; so that wrongfully and without reason did he (Robert) 
speak evil of and procure evil for him (William) to his damage of 40 s. 
and shame of 100 s. If confess etc. 

Tort and force and all that to tort belongeth, defendeth (Robert), who 
is here, against William of Woodstock, who is there, and his damages of 
40 s. and shame of 100 s. and every penny of it, both against him and 
against his suit and all that he surmiseth against him; and well he showeth 
thee that never did he supplant him of the said ton or raise the price against 
him by 4 s. or any penny as he surmiseth ; and of this he is ready to acquit 
himself in all such wise as this court shall award that acquit himself he 
ought. 

Fair friend Robert (saith the steward), this court awardeth that thou 
be at a law six-handed at the next (court) etc. 

1 167 



Il68 LUMLEY V. GYE. 

/ 

LUMLEY V. GYE. 

Court of Queen's Bench, 18S3. 2 Ellis & Blackburn's Reports, 216. 

Ihe first count of the declaration stated that the 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 Jo- 
hanna 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 writ- 
ing. Yet defendant, knowing the premises, and maliciously intend- 
ing to injure plaintiff as lessee "cind 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 procurement of defendant, Wagner 
wrongly 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. Leonard (see Lumley v. 
Wagner, i DeG. McN. & G. 604), restraining 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 become and 
was such dramatic artiste of plaintiff at his theatre. Yet defendant, 
well knowing, &c., maliciously enticed and procured her, then being 
such dramatic artiste, to depart from the said employment. 
In each count special damage was alleged. 
Demurrer. Joinder.^ 

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 au- 
thorities are numerous and uniform, that an action will lie by a 
master against a person who procures that a servant should unlaw- 
fully leave his service. The principle involved in these cases com- 
prises 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 be- 
yond 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, therefore 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 

^ The opinion of Crompton, J., is much abridged and that of Wightman, 
J., is omitted. 



LUMLEY V. GYE. 1 169 

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 contract of hiring, the nature of the service con- 
tracted for is immaterial. It is clear that the procurement of the 
violation pf a right is a cause of action in all instances where the 
violation is an actionable wrong, as in violations of a right to prop- 
erty, whether real or personal, or to personal security : he who pro- 
curesthe wrong is a joint wrongdoer, and may be sued, either alone 
or jointly with the agent, in the appropriate action for the wrong 
complained of. Where the right to a 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 further recourse is allowed; and, 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 action 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 recognized. In Wins- 
more V. Greenhank, Willes, 577, 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 contract 
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. Shepherd v. Wakeman, 1 Sid. 79, is to the 
same effect, where the defendant procured a breach of a contract 
of marriage by asserting that a woman was already married. In 
Ashley v. Harrison, i Peake's N. P. C. 194, S. C. i Esp. N. P. C. 48, 
and in Taylor v. Neri, i Esp. N. P. C. 386, it was 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 plaintiff. To these decisions, 
founded on the principle now relied upon, the cases for procuring 
breaches of contracts of hiring should be added; at <east Lord 
Mansfield's judgment in Bird V. Randall, 3 Burr. 1345, is to that 
effect. This principle is supported by good reason. | He who ma- 
liciously procures a damage to another by violation of his right 
ought to be made to indemnify ; and that whether he procures an 
actionable wrong or a breach of contract. ' He who procures the 
non-delivery of goods according to contract may inflict an injury, 
the same as he who procures the abstraction of goods after deliv- 
ery; and both ought on the same ground to be made responsible. 
The remedy on the contract may be inadequate, as where the meas- 



1 1 70 LUMLEY v. GYE. 

ure 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 damages 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 damage maliciously might justly be made responsible beyond the 
liability of the contractor. 

With respect to the objectiqp 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 actionable, 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.* 

Coleridge, J. In order to maintain this action, one of two 
propositions must be maintained; either that an action will lie 
against any one by whose persuasions one party to a contract is in- 
duced to break it to the damage of the other party, or that the ac- 
tion, for seducing a servant from the master or persuading one who 
has contracted for service from entering into the employ, is of so 
wide application as to embrace the case of one in the position and 
profession of Johanna Wagner. After much consideration and in- 
quiry I am of opinion that neither of these propositions is true and 
they are both of them so important, and, if established by judicial 
decision, will lead to consequences so general, that, though I regret 
the necessity, I must not abstain from entering into remarks of 
some length in support of my view of the law. 

It may simplify what I have to say, if I first state what are the 
conclusions which I seek to establish. They are these : that in re- 
spect of breach of contract the general rule of our law is to confine 
its remedies by action to the contracting parties, and to damages 
directly and proximately consequential on the act of him who is 
sued; that, as between master and servant, there is an admitted 
exception; that this exception dates from the Statute of Laborers, 
23 Edw. 3, and both on principle and according to authority is lim- 
ited by it. If I am right in these positions, the conclusion will be 
for the defendant, because enough appears on this record to show. 



' The learned judge there holds that it is clear law that one who "wrong- 
fully and maliciously, or, which is the same thing, with notice" interrupts the 
relation of master and servant by procuring the servant to leave the master's 
service or by employing him after he has left commits a legal wrong against 
the master, and that the relation of master and servant exists as soon as 
there is a binding contract of hiring and service and it is unnecessary that 
the servant has actually entered upon the service. 

C 



LUMLEY V. GYE. II7I 

as to the first, that he, and, as to the second, that Johanna Wagner, 
is not within the limits so drawn. 

First, then, that the remedy for breach of contract is by the 
general rule of our law confined to the contracting parties. I need 
not argue that, if there be any remedy by action against a stranger, 
it must be by action on the case. Now, to found this, there must be 
both injury in the strict sense of the word (that is a wrong done), 
and loss resulting from that injury : the injury or wrong done must 
be the act of the defendant ; and the loss must be a direct and natu- 
ral, not a remote and indirect, consequence of the defendant's act. 
Unless there be a loss thus directly and proximately connected with 
the act, the mere intention, or even the endeavor, to produce it will 
not found the action. The existence of the intention, that is the 
malice, will in some cases be an essential ingredient in order to con- 
stitute the wrongfulness or injurious nature of the act ; but it will 
neither supply the want of the act itself, or its hurtful consequence : 
however complete the injuria, and whether with malice or without, 
if the act be after all sine damno no action on the case will lie. If 
a contract has been made between A and B that the latter should 
go supercargo for the former on a voyage to China, and C, however 
maliciously, persuades B to break his contract, but in vain, no one, 
I suppose, would contend that any action lay against C. On the 
other hand, suppose a contract of the same kind made between the 
same parties to go to Sierra Leone, and C urgently and bona fide 
advises B to abandon his contract, which on consideration B does, 
whereby loss results to A ; I think no one will be found bold enough 
to maintain that no action would lie against C.^ In the first case 
no loss has resulted ; the malice has been ineffectual ; in the second, 
though a loss has resulted from the act, the act was not C's, but en- 
tirely and exclusively B's own.* If so, let malice be added, and let 
C have persuaded, not bona Ude but mala iide and maliciously, still, 
all other circumstances remaining the same, the same reason ap- 
plies ; for it is malitia sine damno, if the hurtful act is entirely and 
exclusively B's, which last circumstance cannot be affected by the 
presence or absence of malice in C. Thus far I do not apprehend 
much difference of opinion ; there would be such a manifest absurd- 
ity in attempting to trace up the act of a free agent breaking a con- 
tract to all the advisers who may have influenced his mind, more or 
less honestly, more or less powerfully, and to make them responsible 
civilly for the consequences of what after alHs his own act, and for 
the whole of the hurtful consequences of which the law makes him 
directly and fully responsible, that I believe it will never be con- 
tended for seriously. But it will be said that this declaration charges 

"In Bowen v. Hall, L. R. 6 Q. B. D. 333 (1881), Brett, L. J. says, p. 338, 
"Merely to persuade a person to break his contract, may not be unlawful in 
fact or law as in the second case put by Coleridge, J. But if the persuasion 
be used for the indirect purpose of injuring the plaintiff or benefitting the de- 
fendant at the expense of the plaintiff, it is a malicious act which is in law 
and fact a wrong act, and therefore a wrongful act, and therefore an action- 
able act if injury ensues from it." 

*See Brett, L. J,, in Bowen v. Hall, supra. Note 3, at pp. 338-339. 



1 172 LUMLEY V. GYE. 

more than is stated in the case last supposed, because it alleges, not 
merely a persuasion or enticement, but a procuring. In Winsmore 
V. Greenbank, Willes, 577, the same word was used in the first count 
of the declaration, which alone is material to the present case ; and 
the Chief Justice who relied on it, and distinguished it from entic- 
ing, defined it to mean "persuaded with effect ;" and he held that the 
husband might sue a stranger for persuading with effect his wife to 
do a wrongful act directly hurtful to himself. Persuading with 
effect, or effectually or successfully persuading, may no doubt 
sometimes be actionable — as in trespass — even where it is used to- 
wards a free agent ; the maxims, qui facit per alium facit per se and 
respondeat superior, are unquesti(*iable ; but, where they apply, the 
wrongful act done is properly charged to be the act of him who has 
procured it to be done. He is sued as a principal trespasser, and 
the damage, if proved, flows directly and immediately from his act, 
though it was the hand of another, and he a free agent, that was 
employed. But when you apply the term of effectual persuasion to 
the breach of a contract it has obviously a different meaning; the 
persuader has not broken and could not break the contract, for he 
had never entered into any; he cannot be sued upon the contract; 
and yet it is the breach of contract only that is the cause of dam- 
age. Neither can it be said in breaking the contract the contractor 
is the agent of him who procures him to do so ; it is still his own act ; 
he is the principal in so doing, and is the only principal. This an- 
swer may seem technical ; but it really goes to the root of the mat- 
ter. It shows that the procurer has not done the hurtful act ; what 
he has done is too remote from the damage to make him answerable 
for it.° Now we find a plentiful supply both of text and de- 
cision in the case of seduction of servants : and what inference does 
this lead to, contrasted with the silence of the books and the ab- 
sence of decisions on the case of breach of ordinary contracts ? Let 
this, too, be considered: that, if by the common law it was action- 
able effectually to persuade another to break his contract to the 
damage of the contractor, it would seem on principle to be equally 

° "The case itself of Winsmore v. Greenbank, Willes, 577, seems to me to 
have little or no bearing on the present: a wife is not, as regards her hus- 
band, a free agent or separate person ; if to be considered so for the present 
purpose, she is rather in the character of a servant, with this important pecu- 
liarity, that, if she be induced to withdraw from his society and cohabit with 
another or do him any wrong, no action is maintainable by him against her. 
In the case of criminal conversation, trespass lies against the adulterer as for 
an assault upon her, however she may in fact have been a willing party to all 
the defendant had done. No doubt, therefore, effectual persuasion to the 
wife to withdraw and conceal herself from her husband is in the eye of the 
law an actual withdrawing and concealing her ; and so, in other counts of the 
declaration, was it charged in this very case of Winsmore v. Greenbank. A 
case explainable and explained on the same principle is that of ravishment 
of a ward. The writ for this lay against one who procured a man's ward to 
depart from him; and, where this was urged in a case hereafter to be cited 
(Mich. 11 H. 4, fol. 23 A. pi. 46,) Judge Hankford (William Hankford, Jus- 
tice of the Common Pleas in 1368, afterward in 1414 (1 H. 5), Chief Justice 
of England) gives the answer : the reason is, he says, because the ward is a 
chattel, and vests in him who has the right." 



LUMLEY V. GYE. 1 173 

SO to uphold him, after the breach, in continuing it.* The truq 
ground on which this action was maintainable, if at all, was the 
Statute of Laborers,' to which no reference was made. But I men- 
tion this case now as showing how far courts of justice may be led 
if they allow themselves, in the pursuit of perfectly complete reme- 
dies for all wrongful acts, to transgress the bounds which our law, 
in a wise consciousness as I conceive of its limited powers, has im- 
posed on itself, of redressing only the proximate and direct conse- 
quences of wrongful acts. To draw a line between advice, persua- 
sion, enticement and procurement is practically impossible in a court 
of justice; who shall say how much of a free agent's resolution 
flows f roni the interference of other minds, or the independent reso- 
lution of his own ? This is a matter for the casuist rather than the 
jurist; still less is it for the juryman. Again, why draw the linei 
between bad and good faith? If advice given mcda Me, and loss 
sustained, entitles me to damages, why, though the advice be given 
honestly, but under wrong information, with a loss sustained, am I 
not .entitled to them? According to all legal analogies, the bona 
fides of him who, by a conscious wilful act, directly injures me, will 
not relieve him from the obligation to compensate me in damages 
for my loss. Again, where several persons happen to persuade to 
the same effect, and in the result the party persuaded acts upon the 
advice, how is it to be determined against whom the action may be 
brought, whether they are to be sued jointly or severally, in what 
proportion damages are to be recovered ? Again, if, instead of lim- 
iting our recourse to the agent, actual or constructive, we will go 
back to the person who immediately persuades or procures him one 
step, why are we to stop there ? The first mover, and the malicious 
mover too, may be removed several steps backward from the party 
actually induced to break the contract : why are we not to trace him 
out? Morally he may be the most guilty. I adopt the arguments 
of Lord Abinger and my brother Alderson in the case of' Winter- 

' "Now upon this the two conflicting cases of Adams v. Bafeald, 1 Leon, 
(part 1) 240, and Blake v. Lanyon, 6 T. R. 221, are worth considering. In 
the first, two Judges against one decided that an action does not lie for re- 
taining the servant of another, unless the defendant has first procured the 
servant to leave his master; in the second, this was overruled; and, although 
it was taken as a fact that the defendant had hired the servant in ignorance 
and, as soon as he knew that he had left his former master with work unfin- 
ished, requested him to return, which we must understand to have been a 
real, earnest request, and only continued him after his refusal, which we 
must take to have been his independent refusal, it was held that the action 
lay : and this reason is given : "The very act of giving him employment is 
affording him the means of keeping out of his former service." Would the 
Judges who laid this down have held it actionable to give a stray servant 
food or clothing or lodging out of charity? Yet these would have been 
equally means of keeping him out of his former service. 

"^"Item, if any reaper, mower, or other workman or servant, of what 
estate or condition that he be, retained in any man's service, do depart from 
the said service without reasonable cause or license, before the term agreed, 
he shall have pain of imprisonment. And that none under the same pain pre- 
sume to receive or to retain any such in his service." — Statute of Laborers, 23 
Edw. Ill, c. 11 (1349). 



1 174 SWAIN V. JOHNSON. 

bottom V. Wright, ID M. & W. 109; if we go the first step, we can 
show no good reason for not going fifty.* 

Judgment for plaintiflf." 



SWAIN V. JOHNSON. 

Supreme Court of North Carolina, 1909. 151 N. Car. 93. 

Brown, J. The plaintiff contends that he contracted with the 
defendant Noble to purchase all the pine and juniper timber on cer- 
tain lands belonging to the Cox hei^s, said Noble being their attor- 
ney in fact, with power to sell the land ; that the defendants West 



'The rest of the opinion of Coleridge, J., holding after an exhaustive 
and able review of the early cases, that the law in relation to the seduction 
of servants is an exception, the origin of which was known, and that the ex- 
ception did hot reach the case of a theatrical performer, is omitted. In it 
he reviews the early cases both at common law and under the Statute of La- 
borers, pointing out that the first allowed recovery in trespass only for the 
forcible taking of a servant, while the Statute of Laborers only applied to 
menial household servants, agricultural laborers and artificers, to which the 
action on the case thereon was confined. See, also, Macomber, J., in John- 
ston H-arvester Company v. Meinhardt,- 60 How. Pr. 168 (N. Y. 1880). 

'Accord: Bowen v. Hall, L. R. 1881, 6 Q. B. D. 333, the defendants in- 
duced one Pearson, a brickmaker who possessed a secret process of making 
glazed brick and who had contracted to supply his whole product to the plain- 
tiff, to break his contract and supply such bricks to them ; National Phono- 
graph Co. V. Edison Co., L. R. 1908, 1 Ch. 335, holding that this rule applies 
to contracts of whatsoever nature; but see Joyce, J., contra, treating as ab- 
surd the idea that an action would lie against a successful rival who induced 
the plaintiff's promised bride to marry him instead; Walker v. Cronin, 107 
Mass. 555 (1871); Moran v. Dunphy, 177 Mass. 485 (1901); Beekman v. 
Marsters, 195 Mass. 205 (1907) ; Bitterman v. L. & N. O. R. Co., 207 U. S. 
205 (1907), defendant bought for resale non-transferable return railway 
tickets, Tubular Rivet Co. v. Exeter Boot Co., 159 Fed. 824 (1908) ; Motley, 
Green Co. v. Detroit Steel & Spring Co., 161 Fed. 389 (1908) ; Tennessee 
Coal, Iron & Ry. Co. v. Kelly, 163 Ala. 348 (1909), semble; Raycroft v. Tayn- 
tor, 68 Vt. 219 (1896), semble; Employing Prints' Club v. Blosser Co., 122 
Ga. 509 (1905), semble; Transportation Co. v. Standard Oil Co., 50 W. Va. 
611 (1902), semble; Thatker Coal Co. v. Burke, 59 W. Va. 253 (1906); 
Knickerbocker Ice Co. v. Gardiner Dairy Co., 107 Md. 556 (1908) ; Joyce 
V. Great Northern R. Co., 100 Minn. 225 (1907), semble; Chipley v. At- 
kinson, 23 Fla. 206 (1887) ; Martens v. Reilly, 109 Wis. 464 (1901) ; Flaccus 
v. Smith, 199 Pa. St. 128 (1901) ; Doremus v. Hennessy, 176 111. 608 (1898) ; 
Huskie V. Griffin, 75 N. H. 345 (1909). 

In many cases, while the law is stated broadly -as in the principal case, 
the breach of the contract was procured by means m themselevs unlawful, as, 
fraud, false statements, Van Horn v. Van Horn, 52 N. J. L. 284 (1890), 
bribery, Angle V. Chicago R. Co., 151 U. S. 1 (1894), boycotting or other 
intimidation, Club v. Blosser, supra, Doremus v. Hennessy, 176 111. 608 
(1898), or by a combination illegal by statute, Joyce v. Great Northern R. Co., 
supra. 

In Tennessee Coal & Iron Co. v. Kelly, Chipley v. Atkinson, Raycroft v. 
Tayntor, Moran v. Dunphy, supra, it is held that the vinjustifiable procure- 
ment of the termination of a contract terminable at will, is as wrongful as 
procuring the breach of a contract irrevocably binding the party breaking it. 
But no action lies for procuring the breach of a contract void as against pub- 
lic policy. Dr. Miles Medical Co. v. Park & Sons Co.. 22a U. S. 272 (1911). 



SWAIN V. JOHNSON. II75 

and Johnson conspired together and induced Noble to violate his 
contract with plaintiff by purchasing the lands from Noble for a 
corporation, the West Lumber Company, in which West and John- 
son are interested. Wherefore, for such alleged tort, the plaintiff 
claims substantial damage. 

The principle of law upon which plaintiff found his right of 
action is thus stated in Comyn's Digest, Action on 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 dam- 
ages. The intentional causing such loss to another, without justi- 
fiable cause, and with the malicious purpose to inflict it, is of itself 
a wrong." 

This principle has been applied in some jurisdictions to the vio- 
lation of contracts for personal service, and was so applied in this 
State in Haskins v. Royster, 70 N. C, 601, although by a divided 
court. It has been applied to the malicious enticing away of a work- 
man ; to the loss of a contract of marriage by means of a false and 
malicious letter; to maliciously enticing and inducing a wife to re- 
main away from her husband, and to maliciously inducing an opera 
singer to abandon her contract; but we find no case in any courti 
where it has ever been applied to breaches of contracts to convey 
title to property. It is true that in Jones v. Stanley, 76 N. C, 356, 
it was applied where the president of a railroad company maliciously 
prevented his company from performing a contract of carriage of 
freight, and in that case Judge Rodman says "the same reasons 
cover every case where one person maliciously persuades another 
to break any contract with a third person." This is but a dictum, 
and in commenting on it the Supreme Court of Kentucky, in a well- 
considered opinion in Chambers V. Baldwin, II L. R. A., 547, says : 
"We have seen no other case where the doctrine is stated so 
broadly." This Kentucky authority, with the voluminous notes of 
the annotator and the numerous cases cited, support fully the text 
of Judge Cooley, that "an action cannot, in general, be maintained 
for inducing a third person to break his contract with the plaintiff ; 
the consequences, after all, being only a broken contract, for which 
the party to the contract may have his remedy by suing upon it." 
Cooley on Torts, 497. To this rule there are but two generally rec- 
ognized exceptions — one where servants and apprentices are in- 
duced from malicious motives to leave their master before the term 
of service expires, and the other arises where a person has been 
procured, against his will or contrary to his purpose, by coercion or 
deception of another, to break his contract. Green v. Button, 2 
Cromp. M. & R., 707 ; Ashley v. Dixon, 48 N. Y., 430. This is based 
upon the idea that a person has no right to be protected against 
competition, but he has a right to be free from malicious and wanton 
interference in his private affairs. 

If disturbance or loss comes as the result of competition or the 
exercise of like rights by others, it is damnum absque injuria. 
Walker v. Cronin, 107 Mass., 564. 

It is only where the contract would have been fufilled but for 



1 176 KEEBLE V. HICKERINGILL. 

the false and fraudulent representations of a third person that an 
action will lie against such third person. Benton v. Pratt, 2 Wend., 
385, citing Pasley v. Freeman, 3 T. R. 51. 

The case of Ashley v. Dixon, supra, is in every respect similar 
to the one under consideration. In that case the New York court 
holds: "If A has agreed to sell property to B, C may at any time 
before the title has passed induce A to sell it to him instead; and if 
not guilty of fraud or misrepresentation, he does not incur liability, 
and this is so, although C may have contracted to purchase the prop- 
erty of B. B cannot maintain an action upon the latter contract, as 
he cannot perform and can only look to A for a breach of the 
former." This doctrine is support^! by abundant authority. Cooley 
on Torts, supra; Otis v. Raymond, 3 Conn., 413 ; Young v. Covell, 8 
Johns. (N. Y.) 25; Johnson v. Hitchcock, 15 J. R. 185; Gallager v. 
Brunell, 6 Cow., 347 ; Hutchins v. Hutchins, 7 Hill, 104. 

Tested by these generally accepted principles, the plaintiff has 
entirely failed, for he does not allege, and there is not a shred of 
evidence to prove, that Noble was ready and willing to perform his 
alleged contract with plaintiff, but that he was prevented, against 
his will, from so doing by the false and fraudulent representations 
of West and Johnson, or either of them. 

The judgment is affirmed. "^ 



(b) By force, threats or other means tortious in themselves. 

KEEBLE V. HICKERINGILL. 

Court of King's Bench, 1809. 11 Easfs Reports, S74. 

Action Upon the case. Plaintiff declares that he was, 8th No- 
vember in the second year of the queen, lawfully possessed of a 
close of land called Minott's Meadow, et de quodom vivario, vocat. 

'■Accord: Boyson v. Thorn, 98 Cal. 578 (1893), defendant induced a hotel 
keeper to require the plaintiff and his wife to vacate rooms engaged by them; 
Jackson v. Morgan, 49 Ind. App. 376 (1911), defendant induced the plaintiff's 
partner to exclude him and admit the defendant; Chambers & Marshall v. 
Baldwin, 91 Ky. 121 (1891), a man, who had contracted to sell his tobacco to 
the plaintiff, induced to sell and deliver it to the defendant; Bourlier Bros. v. 
Macauley, 91 Ky. 135 (1891), facts very similar to Lumley v. Gye, the de- 
fendant inducing a popular actress to break her contract with the plaintiff 
and appear at his own theatre; McCann v. Wolff, 28 Mo. App. 447 (1888) ; 
Glencoe Land Co. v. Hudson Bros. Co., 138 Mo. 439 (1897) ; Ashley v. 
Dixon, 48 N. Y. 430 (1872), defendant by offering a higher price induced 
one, who had contracted to sell land to the plaintiff, to convey it to himself ; 
Rosenau v. Empire Circuit Co., 131 App. Div. 429 (1909 N. Y.) ; Sweeney 
V. Smith, 167 Fed. 385 (Circ. Ct. East Dist. of Pa. 1909), defendants pur- 
chased bonds from a committee of bondholders, which had already to their 
knowledge contracted to sell them to the plaintiff; aliter, where the con- 
tract broken is unenforcible as not being in writing as required by the 
statute of frauds, and where the breach is procured by fraud, Rice v. Man- 
ley, 66 N. Y. 82 (1876) ; Heywood v. Tillson, 75 Maine 225 (1883), semble; 
but see Perkins v. Pendleton, 90 Maine 166 (1897), and see Kline v. Eu- 
banks, 109 La. 241 (1902), and Wolf & Sons v. New Orleans Tailor Made 



KEEBLE V. HICKERINGILL. II77 

o decoy pond, to which divers wildfowl used to resort and come; 
and the plaintiff had at his own costs and charges prepared and pro- 
cured divers decoy-ducks, nets, machines, and other engines for the 
decoying and taking of the wildfowl, and enjoyed the benefit in 
taking them ; the defendant, knowing which, and intending to dam- 
nify the plaintiff in his vivary, and to fright and drive away the 
wildfowl used to resort thither, and deprive him of his profit, did, 
on the 8th of November, resort to the head of the said pond and 
vivary, and did discharge six guns laden with gunpowder, and with 
the noise and stink of the gunpowder did drive away the wildfowl 
then being in the pond: and on the nth and I2th days of November 
the defendant, with design to damnify the plaintiff, and fright away 
the zuildfowl, did place himself with a gun near the vivary, and 
there did discharge the said gun several times that was then charged 
with the gunpowder against the said decoy pond, whereby the wild- 
fowl were frighted away, and did forsake the said pond. Upon not 
guilty pleaded, a verdict was found for the olaintiff and i20 dam- 
ages. 

Holt, C. J. I am of opinion that this action doth lie. It seems 
to be new in its instance, but is not new in the reason or principle 
of it. For, 1st, this using or making a decoy is lawful. 2dly, This 
employment of his ground to that use is profitable to the plaintiff, 
as is the skill and management of that employment. As to the first, 
every man that hath a property may employ it for his pleasure and 
profit, as for alluring and procuring decoy-ducks to come to his 
pond. To learn the trade of seducing other ducks to come there in 
order to be taken is not prohibited either by the law of the land or 
the moral law ; but it is as lawful to use art to seduce them, to catch 
them, and destroy them for the use of mankind, as to kill and de- 
stroy wildfowl or tame cattle. Then when a man useth his art or 
his skill to take them, to sell and dispose of for his profit, this is his 
trade ; and he that hinders another in his trade or livehhood is liable 
to an action for so hindering him. Why otherwise are scandalous 
words spoken of a man in his profession actionable, when without 
his profession they are not so ? Though they do not effect any dam- 
age, yet are they mischievous in themselves ; and therefore in there 
own nature productive of damage; and therefore an action lies 
against him. Such are all words that are spoken of a man to dis- 
parage him in his trade, that may bring damage to him; though 
they do not charge him with any crime that may make him ob- 
noxious to punishment; to say a merchant is broken, or that he is 
failing, or is not able to pay his debts, i Roll. 6o. i ; all the cases 
there put. How much more, when the defendant doth an actual 
and real damage to another when he is in the very act of receiving 



Pants Co., 113 La. 388 (1904), where the defendant engaged a salesman who 
had left the plaintiff's employment in breach of a contract with him. The 
defendant, when notified of this fact, offered to release the salesman from 
their contract, who refused to accept such release and said he would never 
return to the plaintiff's service. It was held that no action lay against the 
defendant for refusing to discharge the salesman. 



1 178 KEEBLE V. HICKERINGILL. 

profit by his employment. Now, there are two sorts of acts for do- 
ing damage to a man's employment, for which an action lies ; the 
one is in respect of a man's privilege ; the other is in respect of his 
property. In that of a man's franchise or privilege whereby he 
hath a fair, market, or ferry, if another shall use the like liberty, 
though out of his limits, he shall be liable to an action ; though by 
grant from the king. But therein is the difference to be taken be- 
tween a liberty in which the public hath a benefit, and that wherein 
the public is not concerned. 22 H. 6. 14. 15. The other is where a 
violent or malicious act is done to a man's occupation, profession, or 
way of getting a livelihood ; there an action lies in all cases. But if a 
man doth him damage by using the same employment; as if Mr. 
Hickeringill had set up another decoy on his own ground near the 
plaintiff's, and that had spoiled the custom of the plaintiff, no action 
would lie because he had as much liberty to make and use a decoy 
as the plaintiff.* This is like the case of 11 H. 4. 47. One school- 
master sets up a new school to the damage of an ancient school, 
and thereby the scholars are allured from the old school to come to 
his new. (The action there was held not to lie.)^ But suppose 
Mr. Hickeringill should lie in the way with his guns, and fright the 
boys from going to school, and their parents could not let them go 
thither; sure that schoolmaster might have an action for the loss 
of his scholars. 29 E. 3. 18.^ A man hath a market, to which he 
hath toll for horses sold : a man is bringing his horse to market to 
sell : a stranger hinders and obstructs him from going thither to the 
market : an action lies because it imports damage. Action upon the 
case lies against one that shall by threats fright away his tenants at 
will. 9 H. 7. 8. 21 H. 6. 31. 9 H. 7, 7. 14 Ed. 4. 7. Vide Rastal. 662. 

2 Cro. 423. Trespass was brought for beating his servant, whereby 
he was hindered from taking his toll ; the obstruction is a damage, 
though not the loss of his service.* 

^ So a man may attract game, even from his neighbor's lands, by plac- 
ing corn and other food on his land, Ibottson v. Peat, 3 H. & C. 644 (1865). 

"See Holmes, J., in Vegelahn v. Guntner, 167 Mass. 92 (1896). "It 
has been the law for centuries that a man may set up a business, in a coun- 
try town too small to support more than one, although he expects and in- 
tends to ruin some one already there and succeeds in his intent." "The 
reason is that the doctrine of free competition is worth more to society 
than it costs, and that on this ground the infliction of the damage is priv- 
ileged." 

'^Accord: Tarleton v. McGawley, 1 Peake 270 (1793), a declaration 
sustained which alleged that the defendant, a merchant trading with the 
natives of Cameroon, had fired a cannon at a canoe in which the natives 
were coming to the vessel of the plaintiff, a rival trader, for the purpose 
of trading, killing one of them and deterring them from trading with the 
plaintiff; so in Standard Oil Co. v. Doyle, 118 Ky. 662 (1904), threats, to put 
the plaintiff's customers out of business if they continued to deal with him, 
held actionable. 

* Accord: Carrington v. Taylor, 11 East 571 (1809); Ibottson v. Peat, 

3 H. & C. 644 (1865), compare Lanprey v. Danz, 86 Minn. 317 (1902), 
and Whittaker v. Stangvick, 100 Minn. 386 (1907), and see Prince de Wag- 
ram V. Marais, Cour de Paris, (1871), Dalloz 73, 2, 185, defendant jealous 
of the success of the plaintiff's efforts to attract game by planting cer- 
tain crops, instructed his servants to make so much noise as to frighten 



JERSEY CITY PRINTING CO. V. CASSIDY. 11/9 

GARRET V. TAYLOR. 
Court of King's Bench, 1620. Crake Jatnet Reports, 567. 

Action on the Case. 

Whereas, he was a free mason, and used to sell stones, and to 
make stone-buildings, and was possessed of a lease for divers years 
to come of a stone-pit in Hedington, in the county of Oxford, and 
digged divers stones there, as well to sell as to build withal ; that the 
defendant, to discredit and to deprive him of the commodity of the 
said mine, imposed so many and so great threats upon his workmen, 
and all comers disturbed, threatening to mayhem and vex them with 
suits if they bought any stones ; whereupon they all desisted from 
buying, and the other from working, etc. 

After judgment by nihil dicit for the plaintiff, and damages 
found by inquisition to fifteen pounds, it was moved in arrest of 
judgment, that this action lay not ; for nothing is alleged but only 
words, and no act nor insult; and causeless suits on fear are no 
cause of action. 

Sed non allocatur: for the threatening to mayhem, and suits, 
whereby they durst not work or buy, is a great damage to the plain- 
tiff, and his losing the benefit of his quarries a good cause of action ; 
and although it be not shown how he was possessed for years, by 
what title, &c., yet that being but a conveyance to this action, was 
held to be well enough. And adjudged for the plaintiff.^ 



(c) By interference with the freedom of opportunity to contract 
or to obtain labor or employment. 



(The right to "the freedom of the market.") 



THE JERSEY CITY PRINTING CO. v. CASSIDY. 

Court of Chancery, New Jersey, 1902. 63 N. J. Equity, 759.' 

On motion, on order to show cause, for an injunction to re- 
strain defendants, former employees of the complainant, and now on 
strike, from unlawful interference with the complainant's business, 



away the game and spoil the sport of the plaintiff and his shooting party, 
Ames, 18 Harvard L. R. p. 416. 

"■ Accord: Standard Oil Co. v. Doyle, 118 Ky. 662 (1904), defendants 
conspired to harass and annoy the plaintiff's employes while selling and de- 
livering his wares; Pratt Food Co. v. Bird, 148 Mich. 631 (1907), injunction 
issued against a food commissioner of the state restraining him from 
threatening customers of the plaintiff with prosecutions, which it was not 
within his powers to institute, if they used its product as prepared by it; 
see also Emack v. Kane, 34 Fed. 46 (1888), injunction issued restraining 



iiSo JERSEY CITY PRINTING CO. V. CASSIDY. 

the employment of workmen, &c. Heard on bill, answer and affida- 
vits. 

Upon filing the bill an order was made restraining the defend- 
ants 

"from in any manner knowingly and intentionally causing or attempting 
to cause by threats, offers of money, payment of money, offering to pay or 
the payment of transportation expenses, inducements or persuasions to any 
employee of the complainant under contract to render service to it to break 
such contract by quitting such service; from any and all personal molesta- 
tion of persons willing to be employed by complainant with intent to coerce 
such persons to refrain from entering such employment; from addressing 
persons willing to be employed by complainant against their will and thereby 
causing them personal annoyance with a view to persuade them to refrain 
from such employment; from loitering or picketing in the streets near the 
premises of complainant, Nos. 68 and 70 York street, and No. il Mont- 
gomery street, Jersey City, with intent to procure the personal molestation 
and annoyance of persons employed or willing to be employed by com- 
plainant and with a view to cause persons so employed to quit their em- 
ployment, or persons willing to be employed by complainant to refrain from 
such employment; from entering the premises of complainant, Nos. 68 and 70 
York street, Jersey City, against its will with intent to interfere with its 
business ; from violence, threats of violence, insults, indecent talk, abusive 
epithets, practiced upon any persons without their consent with intent to 
coerce them to refrain from entering the employment of complainant, or to 
leave its employment." 

Stevenson, V. C. The order does not interfere with the right 
of the workmen to cease his employment for any reasons that he 
deems sufficient. It does not undertake to say that workmen may 
not refuse to be employed if certain other classes of workmen are 
retained in employment. It leaves the workman absolutely free to 
abstain from work — for good reasons, for bad reasons, for no rea- 
sons. His absolute freedom to work, or not to work, is not in any 
way impaired. The restraining order is based upon the theory that 
the right of the workman to cease his employment, to refuse to be 
employed, and to do that in conjunction with his fellow-workmen, 
is just as absolute as is the right of the employer to refuse further 
to employ one man, or ten men, or twenty men, who have thereto- 
fore been in his employment. From an examination of the cases 
and a very careful consideration of the subject I am unable to dis- 
cover any right in the courts, as the law now stands, to interfere 
with this absolute freedom on the part of the employer to employ 
whom he will, and to cease to employ whom he will ; and the corres- 
ponding freedom on the part of the workman, for any reason or 

defendants from issuing circulars threatening to bring suits for infringe- 
ment against persons dealing in the plaintiff's patented article the charges 
of infringement not being made in good faith but with intent to injure the 
plaintiff's business, and St. Johnsbury, etc., R. Co. v. Hunt, 55 Vt. 570 
(1882). See also. Van Horn v. Van Horn, 52 N. J. L. 284 (1890), and 
Sparks V. McCreary, 156 Ala. 382 (1908). 



JERSEY CITY PRINTING CO. V. CASSIDY. I181 

no reason, to say that he will not longer be employed ; and the fur- 
ther right of the workmen, of their own free. will, to combine and 
meet as one party, as a unit, the employer, who, on the other side of 
the transaction, appears as a unit before them. Any discussion of 
the motives, purposes or intentions of the employer in exercising his 
absolute right to employ or not to employ as he sees fit, or of the 
free conibination of employees in exercising the corresponding ab- 
solute right_ to be employed or not as they see fit, seems to me to 
be in the air. 

Thus, there is a wide field in which employees may combine and 
exercise the arbitrary right of "dictating" to their common em- 
ployer "how he shall conduct his business." The exact correlative 
of this right of the employee exists, in an equal degree, in the em- 
ployer. He may arbitrarily "dictate" to five thousand men in his 
employ in regard to matters in respect of which their conduct ought, 
according to correct social and ethical principles, to be left entirely 
free. But if the "dictation" is backed up solely by the announce- 
ment that, if it is not submitted to, the dictating party will refrain 
from employing, or refrain from being employed, as the case maybe, 
no legal or equitable right belonging to the party dictated to, which I 
am able to discern, is thereby invaded. 

Some of the expressions which I have used, and which are com- 
monly used, in relation to this subject seem to me to be misleading. 
Union workmen who inform their employer that they will strike if 
he refuses to discharge all non-union workmen in his employ are 
acting within their absolute right, and, in fact, are merely dictating 
the terms upon which they will be employed. All such terms neces- 
sarily relate both to "how the employer shall conduct his business" 
and how the employees shall conduct their business. 

The principles which I have endeavored to state are all recog- 
nized in the restraining order in this case, and are so plainly recog- 
nized that the intelligent and industrious counsel for the defendants 
is unable* to point out any respect wherein the terms of the order 
should be modified. The things which the restraining order inter- 
dicts are things which, for the purposes of this argument, it is prac- 
tically conceded the defendants have no right to do. 

In this situation of the case it would seem to be unnecessary to 
further consider the legal propriety of the restraining order, much 
less to take it up clause by clause. I have, however, pointed out 
what conduct on the part of the defendants is excluded from the 
operation of this order, and I think that it is fair to all the parties 
to this suit who are concerned in the maintenance of the restraining 
order to explain, at least in a general way, what conduct is included 
within its prohibition. This can be most conveniently done by mak- 
ing plain the most important principles embodied in the order — 
principles which practically have been developed by the courts of 
this country and England during the last five or ten years. 

That the interest of an employer, or an employee, in a contract 
for services is property is conceded. Where defendants, in combina- 
tion or individually, undertake to interfere with and disrupt existing 



Il82 JERSEY CITY PRINTING CO. V. CASSIDY. 

contract relations between the employer and the employee, it is plain 
that a property right is directly invaded. The effect is the same 
whether the means employed to cause the workman to break his con- 
tract, and thus injure the employer, are violence or threats of vio- 
lence against the employee or mere molestation, annoyance or per- 
suasions. In all these cases, whatever the means may be, they con- 
stitute the cause of the breaking of a contract, and consequently 
they constitute the natural and proximate cause of damage. The 
intentional doing of anything by a third party which is the natural 
and proximate cause of the disruption of a contract relation, to the 
injury of one of the contracting parties, is now very generally recog- 
nized as actionable, in the absence of a sufficient justification, and 
the question, in every case, seems to turn upon justification alone. 

Where the tangible property of an employer is seized or di- 
rectly injured by violence, with intent to interfere with the carrying 
on of his business, the case, also, is free from embarrassment. 

In the case of Frank v. Herold, i8 Dick. Ch. Rep. 443, Vice 
Chancellor Pitney amply discussed the whole subject of the Unlaw- 
fulness of molestation and annoyance of employees, with intent and 
with the effect to induce them to abandon their employment, to the 
injury of their employer's business. 

But the difficult case presents itself when the workmen in com- 
bination undertake to interfere with the freedom of action on the 
part of other workmen, who naturally would seek employment where 
they (the workmen in combination) desire and intend that no man 
shall be employed excepting upon their terms. 

The difficulty is in perceiving how molestation and annoyance, 
not of the employees of a complainant, but of persons who are 
merely looking for work and may become employees of the com- 
plainant, can be erected into a legal or equitable grievance on the 
part of the complainant. But the difficulty is still further increased 
where the possible employees make no complaint to any court for 
protection, and the conduct of the molesting party does not afford 
a basis which the ancient common law recognized as sufficient to 
support an action of tort on their behalf, such as for an assault and 
battery or a slander. Abusive language is not necessarily actionable 
at the common law. If to call a man a "scab" in the street, or to 
follow him back and forth from his home to his place of employ- 
ment, was formerly not actionable on behalf of the victim of this 
petty annoyance, the problem is to understand how one who is 
merely the victim's possible employer can complain, either at law or 
in' equity, there being no actual contract for service, but only a 
potential one, interfered with. 

It is easier, I think, to obtain a correct idea of the legal and 
equitable right which underlies many of the injunctions which have 
been granted in these strike cases restraining combinations of work- 
men from interfering with the natural supply of labor to an em- 
ployer, by means of molestation and personal annoyance, if we ex- 
clude from consideration the conduct of the defendants as a cause cf 
action on behalf of the immediate victims of their molestation — i. e , 



JERSEY CITY PRINTING CO. V. CASSIDY. I183 

of the workman or workmen whom the combination are seeking to 
deter from entering into the employment which is offered to them, 
and which they, if let alone, would wish to accept. I say this, al- 
though I firmly believe that the molested workman, seeking employ- 
ment and unreasonably interfered with in this effort by a combina- 
tion, has an action for damages at common law, and, where the 
molestation is repeated and persistent, has the same right to an in- 
junction, in equity, which, under the same circumstances, is ac- 
corded to his contemplated employer. 

The underlying right in this particular case undo* considera- 
tion, which seems to be coming into general recognition as the sub- 
ject of protection by courts of equity, through the instrumentality 
of an injunction, appears to be the right to enjoy a certain free and 
natural condition of the labor market, which, in a recent case in the 
house of lords, was referred to, in the language of Lord EUenbor- 
ough, as a "probable expectancy." This underlying right has other- 
wise been broadly defined or described as the right which every man 
has to earn his living, or to pursue his trade or business, without un- 
due interference, and might otherwise be described as the right which 
every man has, whether employer or employee, of absolute freedom 
to employ or to be employed. The peculiar element of this, perhaps 
newly recognized right, is that it is an interest which one man has 
in the freedom of another. In the case before this court the Jersey 
City Printing Company claims the right, not only to be free in em- 
ploying labor, but also the right that labor shall be free to be em- 
ployed by it, the Jersey City Printing Company. 

A large part of what is most valuable in modern life seems to 
depend more or less directly upon "probable expectancies." When 
they fail, civilization, as at present organized, may go down. As 
social and industrial life develops and grows more complex these 
"probable expectancies" are bound to increase. It would seem to be 
inevitable that courts of law, as our system of jurisprudence is 
evolved to meet the growing wants of an increasingly complex social 
order, will discover, define and protect from undue interference 
more of these "probable expectancies." 

In undertaking to ascertain and define the rights and remedies 
of employers and employees, in respect of their "probable expec- 
tancies" in relation to the labor market, it is well not to lose sight 
altogether of any other analogous rights and remedies which are 
based upon similiar "probable expectancies." It will probably be 
found in the end, I think, that the natural expectancy of employers 
in relation to the labor market and the natural expectancy of mer- 
chants in respect to the merchandise market, must be recognized f to 
the same extent by courts of law and courts of equity and protected 
by substantially the same rules. 

It is freedom in the market, freedom in the purchase and sale 
of all things, including both goods and labor, that our moderti law 
is endeavoring to insure to every dealer on either side of the market. 
The valuable thing to merchant and to customer, to employer and 
to employee, manifestly is freedom on both sides of the market. 



1 184 JERSEY CITY PRINTING CO. V. CASSIDY. 

The merchant, with his fortune invested in goods and with perfect 
freedom to sell, might be ruined if his customers were deprived of 
their freedom to buy ; the purchaser, a householder, seeking supplies 
for his family, with money in his pocket and free to buy, might find 
his liberty of no value and might suffer from lack of food and cloth- 
ing if the shopmen who deal in these articles were so terrorized by 
a powerful combination as to be coerced into refusing to sell either 
food or clothing to him. 

It is, however, the right of the employer and employee to a free 
labor market that is the particular thing under consideration in this 
case. ^ 

A man establishes a large factory where working people reside, 
taking the risk of his being able to conduct his industry and oflfer 
these working people employment which they will be willing to ac- 
cept. He takes the risk of destructive competition and a large num- 
ber of other risks, out of which, at any time, may come his financial 
ruin and the suspension of his manufacturing works. But our law, 
in its recent development, undertakes to insure him, not only that 
he may employ whom he pleases, but that all who wish to be em- 
ployed by him may enter into and remain in such employment freely, 
without threats of harm, without unreasonable molestation and 
annoyance from the words, actions or other conduct of any other 
persons acting in combination. What is the measure or test by 
which the conduct of a combination or persons must be judged in 
order to determine whether or not it is an unlawful interference 
with freedom of employment in the labor market, and as such, in- 
jurious to an employer of labor in respect of his "probable expec- 
tancies," has not as yet been clearly defined. Perhaps no better 
definition could be suggested than that which may be framed by con- 
veniently using that important legal fictitious person who has taken 
such a large part in the development of our law during the last fifty 
years — ^the reasonably prudent, reasonably courageous and not un- 
reasonably sensitive man. Precisely this same standard is employed 
throughout the law of nuisance, in determining what degree of an- 
noyance on the part of one's neighbor one must submit to, and what 
degree of such annoyance is excessive and the subject of an action 
for damages or a suit for an injunction. 

• A man may not be liable to an action for slander for calling a 
workman a "scab" in the street, but if half a hundred men combine 
to have this workmen denounced as a "scab" in the street, or fol- 
lowed in the streets to and from his home, so as to attract public 
attention to him and place him in an annoyingly conspicuous posi- 
tion, such conduct, the result of such combination, is held to be an 
invasion of the "probable expectancy" of his employer or con- 
templated employer, an invasion of this employer's right to have 
labor flow freely, to him. Without any regard to the rights and 
remedies which the . molested workman may have, the injunction 
goes, at the suit of the employer to protect his "probable expectancy"' 
— to secure freedom in the labor market to employ and to be em- 



JERSEY CITY PRINTING CO. V. CASSIDY. 1 185 

ployed, upon which the continuance of his entire industry may de- 
pend. 

I think it is safe to say that all through this development of 
strike law, during the last decade, no principle becomes established 
which does not operate equally upon both employer and employee. 
The rights of both classes are absolutely equal in respect of all these 
"probable expectancies." An operator upon printing machines has 
the right to offer his labor freely to any of the printing shops in Jer- 
sey City. These shops may all combine to refuse to employ him on 
account of his race, or membership in a labor union, or for any other 
reason, or for no reason, precisely as twenty employees in one print- 
ing shop may combine and arbitrarily refuse to be further employed 
unless the business is conducted in accordance with their views. But 
in the case of the operative seeking employment, he has a right to 
have the action of the masters of the printing shops, in reference to 
employing him, left absolutely free. If, after obtaining, or seeking 
to obtain, employment in a shop, the master of that shop should be 
subjected to annoyances and molestation, instigated by the proprie- 
tors of other printing shops, who combine to compel, by such moles- 
tation and annoyance, this one master printer, against his will and 
wish, to exclude the operative from employment, this operative, in 
my judgment, would have a right to an action at law for damages, 
and would have a right to an injunction if his case presented the 
other ordinary conditions upon which injunctions issue. But the 
common-law courts have not had time to speak distinctly on this 
subject as yet, and it is necessary to be cautious in dealing with a 
subject in which both courts of law and courts of equity as yet are 
feeling their way. 

I think that the leading principle enforced in the restraining 
order in this case is not inconsistent with any authorities which con- 
trol this court. The principle is that a combination of employers, 
or a combination of employees, the object of which is to interfere 
with the freedom of the employer to employ, or of the employee 
to be employed (in either of which cases there is an interference 
with the enjoyment of "probable expectancy," which the law recog- 
nizes as something in the nature of property), by means of such 
molestation or personal annoyance as would be liable to coerce the 
person upon whom it was inflicted, assuming that he is reasonably 
courageous and not unreasonably sensitive, to refrain from employ- 
ing or being employed, is illegal and founds an action for damages 
on the part of any person knowingly injured in respect of his "prob- 
able expectancy" by such interference, and also, when the other 
necessary conditions exist, affords the basis of an injunction from a 
court of equity. 

The doctrine which supports that portion of the restraining 
order in this case which undertakes to interdict the defendants from 
molesting applicants for employment as an invasion of a right of the 
complainant, is applicable to a situation presenting either an em- 
ployer or an employee as complainant, and containing the following 
elements : 



Il86 JERSEY CITY PRINTING CO. V. CASSIDY. 

First. Some person or persons desiring to exercise the right 
of employing labor, or the right of being employed to labor. 

Second. A combination of persons to interfere with that right, 
by molestation or annoyance, of the employers who would employ, 
or of the employees who would be employed, in the absence of such 
molestation. 

How far the element of combination of a number of persons 
will finally be found necessary, in order to make out the invasion of 
a legal or equitable right in this class of cases, need not be discussed. 
We are dealing; with cases where powerful combinations of large 
numbers, in fact, exist. 

Third. Such a degree of molestation as might constrain a per- 
son having reasonable fortitude, and not being unreasonably sensi- 
tive, to abandon his intention to employ or to be employed, in order 
to escape such molestation. 

Fourth. As the result of the foregoing conditions, an actual 
pecuniary loss to the complaining party, by the interference with his 
enjoyment of his "probable expectancies" in respect of the labor 
market. 

I do not think that the constraining force brought to bear upon 
the employer or employee which the law can interdict can ever in- 
clude the power of public opinion or even of class opinion. Every 
man, whether an employer or an employee, constitutes a part of a 
great industrial system, and his conduct is open to the criticism of 
the members of his own class. While, therefore, a combination of 
union men have no right to cry "scab" in the streets to non-union 
employees, or to follow them in the street in a body to and from 
their homes, or do many other things in combination, which, if done 
once by a single individual, would not found an action of tort, such 
combinations, I think, have left a fairly wide field of eflfort towards 
the creation and application of public opinion as a constraining force 
upon conduct of any kind which they wish to discourage.^ 



^ While later cases tend to recognize a right to the probability of bene- 
fit from the purely voluntarily, though probable, favorable actions of others, 
in no way legally bound to so act, and regard as legally wrongful any 
tortious interference by fraud, misrepresentation, force or threats with 
such person's activities, many of the older cases held that no such right 
existed and required that the plaintiff show a legal right to the present 
enjoyment of tha* of which the defendant's action had deprived him. Com- 
pare Hut chins v. HutcKms, 7 Hill 104 (N. Y. 1845) with Lewis v. Corbin, 
195 Mass. 520 (1907), both cases where the defendant by false statements 
about the plaintiff induced a third person to alter his will to the plain- 
tiff's disadvantage, and Rice v. Manley, 66 N. Y. 82 (1876), where the 
defendant induced a third person to break a contract with the plaintiff, the 
contract being legally unenforceable, not being in writing as required by 
the statute of fraud. The same tendency may be noted in such cases as 
Urtz V. New York Central and Hudson River R. R. Co. and Austin v. 
Barrows, ante, holding it to be insufficient for the plaintiff to show as proof 
of loss resulting from the defendant's wrong, that it prevented him obtain- 
ing a benefit, which to a high degree of probability would have accrued 
to him. 



GOLDFIELD CONSOL. MINES CO. V. GOLDFIELD MINERS* UNION. I187 

SECTION 2 



The Actor's Economic Advancement as a Justification. 



1. For the use of force, threats or other tortious means. 



GOLDFIELD CONSOLIDATED MINES CO. v. GOLDFIELD 
MINERS UNION NO. 220. 

Circuit Court, D. Nevada, 1908. 159 Fed. Ref. 500. 

Farrington, D. J. There is no law, nor is it within the power 
of this or any other court, to make an order by which Goldfield 
Consolidated Mines Company can be compelled against its will to 
re-employ any miner who quit, or any member of the Western Fed- 
eration of Miners ; neither can any member of that organization be 
compelled against his will to work for the company. The nonunion 
men have the same right to work or not work, to agree upon the 
terms of employment, or to quit work, as union men, no more, no 
less. They have a perfect right to take the vacated jobs if they can 
agree with the company upon terms, and the respondents have no 
legal right to dictate what those terms shall be. They have the 
right to seek employment, to come and go from their work,^ or to 
go where they please on the public thoroughfare,^ without fear or 
molestation, threats, violence, or insult of any kind. They have a 
right to come and go without being picketed, or compelled to listen 
to argument or persuasion, whether it be peaceful or irritating. The 
pickets have no legal right to insist that any nonunion man shall 
listen to their solicitations if he is unwilling to do so, it matters not 
how peaceful and friendly such solicitations may be.° Union Pac. 
R. Co. V. Ruef (C. C.) 120 Fed. 114. And it necessarily follows 
that any attempt to intimidate a man in order to compel him to re- 

^In Murdoch v. Walker, et al., 152 Pa. St. 595 (1893), strikers were 
enjoined from following workmen employed in their stead, and from gath- 
ering around their boarding places. 

°"It makes no difference that the picketing is done 10 or 1,000 feet 
awa/' from the employer's premises, Beck v. Teamsters' Protective Union, 
118 Mich. 497 (1898) ; American Steel & Wire Co. v. Wire Drawer^ Union 
90 Fed. 608 (1898) ; Ideal Mfg. Co. v. Ludwig, 149 Mich. 133 (1907). 

"In Jonas Glass Co. v. Glass Bottle Blowers Assn., 77 N. J. Eq. 219 
(1910), following the decree in Jersey City Printing Co. v. Cassidy, ante, 
the members of the association were restrained from "addressing persons 
willing to be employed by complainant, against their will, and so causing 
them annoyance with a view to persuade them to refrain from such em- 
ployment." "It is urged," says Pitney, V. C. in Frank & Dugan v. Herold, 
63 N. J, Eq. 443 (1902), p. 449, "that one person has a right to persuade 
another to work or not to work that may be if the other person is willing 
to listen and be persuaded; but no person has the right to impose on an- 
other his arguments or persuasions against the will of that other person 
to listen. ... No person has a right, strictly speaking, to accost an- 



Il88 GOLDFIELD CONSOL. MINES CO. V. GOLDFIELD MINERs' UNION. 

frain from exercising a legal right is unlawful, and this is true no 
matter whether the attempt is made by one man or many, or by a 
corporation or a labor union. Hence, if the pickets, or members of 
the respondent union, who gather at or near complainant's premises 
at the time of the morning and afternoon change of shifts, assail 
nonunion men with threats, ridicule, and insult, or follow them to or 
from their work with vile language and abusive epithets in order to 
compel them to quit work, or refrain from offering their labor to 
the complainant, they are guilty of unlawful conduct. 

The affidavits on the part of the complainant, as well as other 
evidence in the case, convince the court that the company's premises 
are almost constantly picketed, day and night, by members of the 
Miners' Union ; that there are altogether too many pickets, especially 
at the railroad crossing used by the workmen in going to and from 
the mines and mill to the company's boarding house. The unneces- 
sary massing of so many men at this point is, in itself, an act of 
intimidation, which is further aggravated by insults, threats, and 
ridicule. It is not necessary that a man should be knocked down