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UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 



A SUMMARY 

OF THE 



LAW OF TORTS 

OR, 

WRONGS INDEPENDENT OF CONTRACT. 



BY 

ARTHUR UNDERHILL, M.A., LLD., 

OF Lincoln's imn, barrister-at-law; 

One of the Conmyincin;) Counsel of the Court, and .simetiine Reader in the 

Law of Property to the Council of Leqal Education ; 

Author of ' A Concise Treatise on the Law relating to Private Trusts and Trustees, 

" The Lato of Partnership," etc. 



TENTH EDITION 

BY 

A. C. HAGON, B.A.. LL.B , 

OF THE INNER TEMPLE, BARRISTER-AT-LAW 

A Tutor to the Laiv Societij. 

FOURTH CANADIAN EDITION 

BY 

HERBERT A. SMITH, MA., 

MARRISTER-AT-I.AW 

Professor of J nri^iirudcnce and Common Laiv in McJIill llniv-e- sifi/: 



LONDON: 

BUTTERWORTH & CO., 11 & 12 Bell Yard, Temple Bar. 

CANADA: 

THE CARSWELL CO.MPANY, L I MI TED,. TORONTO. .Ont 



1922. 



U n ^'-t 



Tenth Edition. 

Pn'nied at The Ballantyne Press 

Spottiswoode, Ballantyne & Co. Ltd. 

Colchester, London J- Eton, Eiiiltind 



Fourth Canadian Edition. 
Copyright : Canada, 1922, by The Carswell Co Ltd. 






^, 



^ 



r 



Cf)id ^5^1orfe, 



WHICH WAS FORJIERLY DEDICATED TO 



JOSEPH UNDERHILL, ESQ., Q.C., 



Recorder of Newcastle-under-Lyme 



Master of the Bench of the Honourable Society of 
the Middle Temple, 



MOST BEGEETFULLY INSCRIBED 



XLo bis /Ibcmorg. 



EDITOR'S PREFACE. 

IN this Edition the arrangement of topics 
hitherto adopted has been retained. Where 
judicial decisions have made a re-statement of 
the law necessary, this has been attempted and 
the authorities referred to. In consequence it 
has been found requisite to re-arrange and partly 
rewrite the articles dealing with liability for 
Dangerous Premises, for the Escape from Pre- 
mises of Dangerous Things (including Animals), 
for Wilful Torts of Servants, for Putting into 
Circulation Dangerous Chattels, and for Damage 
where the Immediate Cause is the Act of a 
Third Party. An endeavour has been made to 
bring the text up to date by incorporating the 
effect of all recent cases of adequate import- 
ance, and references to these will be found duly 
noted. The Editor wishes to acknowledge the 
valuable assistance he has received from Mr. 
W. H. Crawley of the Inner Temple both in 
the preparation and revision of this Edition. 

A. C. HAGON. 

4 King's Bench Walk, 
Tjemplk, 

November 1921. 



EXTRACT FROM PREFACE 

TO THE EIGHTH EDITION. 

The facts that seven Editions of this Work have been sold, 
that an American firm have thought it worth their while to 
issue an unauthorised edition in the United States, and 
that a Canadian edition has been pubHshed, render it no 
longer necessary to apologise for its existence. 

Many of my friends and cHents have expressed surprise 
that an Equity and Conveyancing Counsel should have 
written a Treatise on the Law of Torts. The answer is, 
that every la^vJ'er, whatever his speciaHty may be, ought to 
know the principles of every branch of the law ; and, in my 
student days, my endeavours to fathom the principles of 
the Law of Torts were surrounded with so much unneces- 
sary difficulty, owing to the absence of any text-book 
separating principle from illustration, that I became con- 
vinced that a new crop of students would welcome even 
such a guide as I was capable of furnishing. The result 
has proved that I was not mistaken. 

Indeed, however useful the great treatises then existing 
were for the practitioner, they were almost useless to the 
student. In the first place, to his unaccustomed mind 
they presented a mere chaos of examples, for the most part 
unexplained, and, in the absence of explanation, seeming 
very often in direct contradiction. What student without 
careful explanation would grasp the difference between 
Fletcher v. Rylands and Nichols v. Marsland for instance ? 

In the second place, the men arc few indeed who can 
trust their memories to retain the contents of a large 



X Extract from Preface to Eighth Edition. 

treatise with accuracy ; and although that is not necessary, 
yet it is essential that they should accurately remember the 
principles of the law. 

For these and other reasons, I ventured to write this 
work ; and I still think that if a student will thoroughly 
master it, he will know as much of the principles of the 
Law of Torts as will suffice to make him a competent 
general practitioner, and to pass him through his examina- 
tions so far as that subject is concerned. .^ 

I do not assert for one instant that it will enable him to 
answer every case that comes before him, but I am not 
acquainted wdth any man whose mental stock enables him 
to do this. In the vast majority of cases the practitioner 
who has any regard for the interests of his clients, or the 
reputation of himself, will turn to his digests and his 
reports ; for however well he may understand the prin- 
ciples of the law, it is only very long practice indeed, or 
the intuition of genius, which enables him to apply these 
principles to complicated facts with ease and certainty. 



ARTHUR UNDERHILL. 



5, New Squaee, Lincoln's Inn, W.C. 
\st June 1905. 



TABLE OF CONTENTS. 

PAGE 

Preface ... ... ... ... ... vii 

Table of Statutes Cited ... xix 

Table of Cases Cited xxiii 

Introduction Ixv 



PART I. 
OF TORTS IN GENERAL. 

Chapter I. 
OF THE NATURE OF A TORT. 

Art. 1. Definition of a Tort ... ... ... 3 

2. Ubi jus ibi re7nedium ... ... ... ... ... 7 

3. Of Volition and Intention in relation to the unautho- 
rised Act or Omission ... ... ... ... 8 

4. Malice and Moral Guilt 10 

5. Of the Connection of the Damage with the unautho- 
rised Act or Omission ... ... ... ... 12 

6. The Act or Omission must be unauthorised ... ... 15 

7. Act of State 16 

8. General Immunity of Judicial Officers ... ... 17 

9. General Immunity of Executive Officers ... ... 19 

10. Authorisation by Statute ... ... ... ... 20 

11. Volenti no7i fit injuria ... ... ... ... ... 23 

12. To what extent Civil Remedy interfered with where 

the unauthorised Act or Omission constitutes a 
Felony 24 

Chapter II. 

BREACH OF STATUTORY DUTIES. 

Art. 13. Breach of Duty created for Benefit of Individuals 27 

„ 14. Breach of Duty created for Benefit of Public ... 28 
„ 15. Highway Authorities not liable for Nonfeasance ... 29 



xii Table of Contents 

Chapter III. 
RELATION OF CONTRACT AND TORT. 

PAGE 

Akt. 16. Distinction between Actions for Tort and for Breach 

of Contract 33 

,, 17. Privity not necessary where the Remedy is in Tort 34 

,, 18. Duties gratuitously undertaken 36 

Chapter IV. 

VARIATION IN THE GENERAL PRINCIPLE WHERE 
THE UNAUTHORISED ACT OR OMISSION TAKES 
PLACE OUTSIDE THE JURISDICTION OF OUR 
COURTS. 

Art. 19. Torts committed Abroad 39 



Chapter V. 

OF PERSONAL DISABILITY TO SUE AND TO 
BE SUED FOR TORT. 

Art. 20. Who may sue 41 

„ 21. Who may be sued for a Tort ... ... ... 42 

,, 22. Joint Tort-feasors ... ... ... ... ... 45 



Chapter VI. 

LIABILITY FOR TORTS COMMITTED BY OTHERS. 

Section I. — Liability of Husbastd for Torts of Wife. 

Art. 23. Wife's Ante-nuptial and Post-nuptial Torts ... 49 

Section II. — Liability of Partners for Each 
Other's Torts. 

Art. 24. Statutory Rule 51 

Section III. — Liability for Torts of Agents autho- 
rised Expressly or by Ratification. 

Art. 25. Qui facii per alium facit per se ... ... ... 52 

„ 26. Ratification of Tort committed by an Agent ... 53 



Table of Contents. xiii 

.Section I V. — Liability for Torts of )Serva]sits. 

PAGE 

Art. 27. Respondeat Superior ... ... ... ... ... 54 

„ 28. Unauthorised Delegation by Servants ... ... 60 

,, 29. Servants of the Crown ... ... ... ... 61 

Section V. — Liability for Negligence of Independekt 
Contractors. 

Art. 30. The General Rule 62 

Chapter VII. 

THE EFFECT OF THE DEATH OR BANKRUPTCY 
OF EITHER PARTY. 

Section I. — Cobimon Law. 

Art. 31. Death generally destroj's the Right of Action ... 67 
„ 32. Effect of Bankruptcy 68 

Section II. — Statutory Liability for Causing Death. 
Art. 33. Actions by Personal Representatives of Persons 

killed by Tort 69 

Chapter VIII. 

OF DAMAGES IN ACTIONS FOR TORT. 

Art. 34. Damages for Personal Injury... ... ... ... 75 

,, 35. Damages for Injury to Property ... ... ... 76 

„ 36. Presumption of Damage against a Wrongdoer ... 78 

,, 37. Consequential Damages ... ... ... ... 79 

„ 38. Pro.spective Damages ... ... ... ... ... 81 

,, 39. Aggravation and Mitigation ... ... ... ... 82 

,, 40. Insurance not to be taken into Account ... ... 84 



CilAPTKK IX. 

OF IX.JUXCTIO.XS '10 PP.KVKXT TMK COX- 
TIXUAXCK OK TOIiTS. 

Art. 41. Injutics remediable liy injuiHtioti ... ... ... 85 

„ 42. Public Convenience docs not justify tlic ('onlimi- 

ancc of a Tort ... ... ... ... ... 89 



xiv Table of Co2v^tents. 



Chapter X. 

OF THE LIMITATION OF ACTIONS FOR 
TORT. 

Section I. — The Statutes of Lijotations. 

PAGE 

Art. 43. The Principal Periods of Limitation 91 

,, 44. Commencement of Period ... ... ... ... 92 

,, 45. Continuing Torts ... ... ... ... ... 95 

„ 46. Disability 96 



Section II. — Public Authorities Protection 
Act, 1893. 

Art. 47. Special limitation in favour of Public Officers and 

Authorities ... ... ... ... ... ... 96 



PAET II. 

OF RULES RELATING TO PARTICULAR 
TORTS. 

Chapter I. 

OF DEFA^LITION. 

Art. 48. Definitions ... ... ... ... ... ... 101 

„ 49. What is Defamatory 102 

„ 50. When Special Damage essential to Action for 

Slander 106 

,, 51. The Libel or Slander must refer to the Plaintiff ... Ill 

„ 52. Publication 113 

,, 53. Repeating Libel or Slander ... ... ... ... 114 

„ 54. Justification ... ... ... ... ... ... 116 

„ 55. Fair Comment ... ... ... ... ... ... 117 

„ 56. Absolute Privilege ... 119 

„ 57. Qualified Privilege 121 

„ 58. Apology 128 

„ 59. Slander of Title and Slander of Goods 129 



Table of Contents. xv 

Chatter II. 
OF MALICIOUS PROSECUTION. 

PAGE 

Art. 60. General Rule 131 

„ 61. Prosecution by the Defendant ... ... ... 132 

, 62. Want of Reasonable and. Probable Cause ... ... 133 

„ 63. Malice 135 

„ 64. Failure of the Prosecution ... ... ... ... 137 

„ 65. Damage ... ... ... ... ... ... 138 



Chapter III. 

OF MAINTENANCE. 

Art. 66. Definition 139 

Chapter IV. 

OF HARBOURING AND SEDUCTION. 

Art. 67. Enticing and Harbouring 143 

„ 68. The Ordinary Action for Seduction .. . ... ... 144 

„ 69. Misconduct of Parent 147 

„ 70. Damages in Ordinary Action for Seduction ... 147 

Chapter V. 

TRADE MOLESTATION. 

Art. 71. Inducing Breach of Contract 149 

„ 72. Molestation by Inducements not to Work, not to 

Employ, and not to Trade with 151 

„ 73. Unfair Competition. Passing Off ... 153 

Chapter VI. 

OF DECEIT OR FRAUD. 

Art. 74. Definition of Fraud 157 

,, 75. Statements as to Credit ... ... ... ... 100 

„ 76. The Liability of Directors and Promoters c)f Com- 
panies ,.. ... ... ... ... ... 160 



xvi Table of Contents. 

Chapter VII. 
OF NEGLIGENCE. 

PAGE 

Art. 77. Definition ... ... ... ... ... ... 16.3 

„ 78. Duty of Persons using Highway to take Care ... 165 

,, 79. Duty of Carriers of Passengers 166 

„ 80. Duty of Occupiers of Land and Houses to Persons 

coming by Invitation, etc. ... ... ... 167 

„ 81. Duty of Bailees of Goods 172 

„ 82. Duty to take Precautions with regard to Things 

Dangerous in themselves ... ... ... ... 1 7.3 

„ 83. Contributory NegUgence 177 

„ 84. EfEective Cause 181 

„ 85. Onus of Proof 182 

., 86. Duties of Judge and Jury 184 

„ 87. Volenti 7ion fit injur in 184 

Chapter VIIL 

LIABILITY FOPv BPvEACH OF DUTY TO PREVENT 
DAMAGE FROM DANGEROUS THINGS AND 
ANIMALS. 

Art. 88. The Rule in i'toc/^er V. i?;/Zanf7s 189 

„ 89. Damage by Animals 194 

„ 90. Duty to keep Fire from doing Mischief 199 



Chapter IX. 

LIABILITY OF EMPLOYERS FOR INJURIES TO 
THEIR SERVANTS AND WORKJVIEN. 

Section I. — Common Law TjTability. 

Art. 91. The Doctrine of Common EmplojTnent 204 

„ 92. Volunteer Servants — Volenti non fit injvria ... 208 

Section //.—The Employers' Liability Act, 1880. 
Art. 93. Epitome of Act 209 

Section III. — The Workmen's Cosipensation Act, 1906. 
Art. 94. Liability to Pay Compensation 212 



Table of Contents. xvii 

Chapter X. 
OF PRIVATE INJURY FROM PUBLIC NUISANCES. 

PAGE 

Art. 95. Description of Public Nuisances ... ... ... 217 

„ 96. Public Nuisance only actionable in respect of Par- 
ticular Damage ... ... ... ... ... 220 

,, 97. Liability of Owner or Occupier for Public Nuisances 221 

Chapter XL 
PRIVATE NUISANCES. 

Section I. — Nuisance to Corporeal Hereditaments. 



Art. 98. General Liability 

„ 99. Reasonableness of Place 

,, 100. Plaintiff coming to the Nuisance 

,, 101. Liability of Occupier and Owner for Nuisances 

„ 102. Prescription to commit a Nuisance ... 

,, 103. Remedy of Reversioners for Nuisances 

,, 104. Remedy by Abatement 



227 
230 
232 
233 
235 
236 
237 



Section II. — Nuisances to Incorporeal Hereditaments. 

Art. 105. Disturbance of Right of Support for Land without 

Buildings 240 

,, 106. Disturbance of Support of Buildings 243 

„ 107. Disturbance of Right to Light and Air 244 

„ 108. Disturbance of Water Rights 247 

„ 109. Disturbance of Private Rights of Way ... ... 250 

Chapter XII. 
TRESPASS TO THE PERSON. 

Art. 110. General Liability for Trespass to the Person ... 253 

111. Definition of Assault ... ... ... ... 254 

112. Definition of Battery 255 

113. Definition of False Imprisonment ... ... ... 256 

114. Justification of Trespass to the Person ... ... 258 

115. Self- Defence as Justification of Assault and Battery 258 

116. Justification by Parental or Other Authority ... 260 

117. Justification by Judicial Authority ... ... 261 

118. Power of Magistrates to Arrest or order Arrest ... 262 

119. Power of Constables and Others to Arrest in 
Obedience to Warrant ... ... 203 



xviii Table of Contents 



Art. 120. Power of Constables and Private Persons to Arrest 

for Felony without Warrant 263 

„. 121. Power of Arrest for Preservation of the Peace ... 265 

„ 122. Arrest for Misdemeanor 266 

,, 123. Institution of Criminal Proceedings endangers 

Right of Action for Assault 267 

,, 124. Amount of Damages .. . ... ... ... ... 268 

Chapter XIII. 
OF TRESPASS TO LAND AND DISPOSSESSION. 

Section I. — Of Trespass "Quare Clatjstjm Fregit." 

Art. 125. Definition 

„ 126. Trespassers ab initio ... 



269 
271 

272 
274 
274 
275 



„ 127. Possession necessary to enable the Plaintiff to 

maintain an Action of Trespass ... 
,, 128. Trespasses by Joint Owners 
,, 129. Limitation 
„ 130. Remedies other than by Action 

Section II. — Of Dispossession. 

Art. 131. Definition 275 

„ 132. Onus of Proof of Title 276 

„ 133. Limitation 277 

„ 134. Commencement of Period of Limitation ... ... 278 

Chapter XIV. 

TRESPASS TO GOODS, DETENTION AND 
CONVERSION OF GOODS. 

Art. 135. Definitions 281 

„ 136. Possession necessary to maintain an Action for 

Trespass ... ... ... ... ... ... 286 

137. Trespassers a& im'fio .. . ... ... ... ... 288 

138. Conversion and Detention ... ... 288 

139. Waiver of Tort 291 

140. Trespass and Conversion by Joint Owners ... 292 

141. Remedy by Recaption 292 

142. Remedy by Action of Replevin ... ... ... 293 

143. Orders for Restitution of Stolen Goods 293 

INDEX. 



TABLE OF STATUTES. 



PAGE 

4 Edw. 3, c. 7. (Administration of Estates, 1330) 68 

25 Edw. 3, c. 5. (Administration of Estates, 1351) 68 

21 Hen. 8, o. 11. (Restitution of Goods Stolen, 1529) ... 285 

21 Jac. 1, 0. 10. (Limitation Act, 1623) ... 71, 82, 94, 95 

s. 3 91,147,274 

s. 7 96 

31 Car. 2, c. 2. (Habeas Corpus Act, 1679) 258 

11 Geo. 2, c. 19. (Distress for Rent Act, 1737), ss. 19, 20 ... 272 

17 Geo. 2, c. 38. (Poor Relief Act, 1743), s. 8 272 

24 Geo. 2, 0. 44. (Constable, 1751), s. 6 263 

14 Geo. 3, c. 78. (Fires Prevention (Metropolis) Act, 1774) — 

s. 86 199,200 

56 Geo. 3, c. 100. (Habeas Corpus Act, 1816) 258 

5 Geo. 4, c. 83. (Vagrancy Act, 1824) 267 

s. 4 267 

9 Geo. 4, c. 14. (Statute of Frauds Amendment Act, 1828)— 

s. 6 52,160 

2 & 3 Will. 4, c. 71. (Prescription Act, 1832) ... 235, 236, 246, 247 







s. 3 




244, 245 






s. 4 




244, 246 


3 & 4 Will. 


4, c. 27. 


(Real Property Limitation Act, 1833)— 








s. 2 




... 277 






s. 3 




... 278 






s. 10 




... 277 






s. 11 




... 279 






s. 16 




96, 278 






s. 17 




... 278 






s. 29 




... 278 






s. 34 




... 95 




c. 42. 


(CivilProcedure Act, 1833) ... 
s. 2 




... 92 

... 67 


2 & 3 Vict. 


c. 47. 


(Metropolitan Police Act, 1839), s, 


. 54 (1 


) ... 12 




c. 93. 


(County Police Act, 1839), s. 8 




... 265 


3 & 4 Vict. 


0. 9. 


(Parliamentary Papers Act, 1840)- 

ss. 1,2 

8.3 




• 120,127 
... 127 


6 & 7 Vict. 


c. 80. 


(London Hackney Carriages Act, ] 


1843) 


... 56 




c. 96. 


(Libel Act, 1843), 8. 1 

8.2 




128, 129 
... 129 



XX Table of Statutes. 



11 & 12 Vict. 


c. 


44. 


14 & 15 Vict. 


c. 


19. 


15 & 16 Vict. 


c. 


76. 


20 & 21 Vict. 


c. 


85. 


23 & 24 Vict. 


0. 


32. 



PAGE 

8 & 9 Vict. c. 20. (Railways Clauses Consolidation Act, 1845) — 

s. 77 242 

s. 78 242 

s. 79 242 

s. 80 242 

s. 81 242 

s. 82 242 

s. 83 242 

s. 84 242 

s. 85 242 

s. 154 267 

0.75. (Libel Act, 1845), s. 2 129 

9 & 10 Vict. c. 93. (Fatal Accidents Act, 1846) 25, 42, 69, 71, 

73, 91, 98 

s. 1 70 

ss. 2, 4 70 

(Justices Protection Act (Jervis' Act), 1848) — 

s. 1 19 

(Prevention of Offences Act, 1851), s. 11 266, 267 
(Common Law Procedure Act, 1852) ... 3 

(Matrimonial Causes Act, 1857), s. 26 ... 49,50 

(Ecclesiastical Courts Jurisdiction Act, 1860) — 

s. 3 267 

24 & 25 Vict. c. 96. (Larceny Act, 1861)— 

s. 23 275 

s. 100 293 

0. 97. (Malicious Damage Act, 1861) — • 

s. 61 267 

c. 100. (Offences against the Person Act, 1861) — 

ss. 42 — 45 ... ... ... ... 267 

(Fatal Accidents Act, 1864), s. 1 70 

(Dogs Act, 1865) 197 

(Forfeiture Act, 1870), ss. 8, 30 41 

(Trade Union Act, 1871) 45 

(Licensing Act, 1872) — 

s. 12 266 

(Judicature Act, 1873) 276 

s. 25(8) 88 

(Real Property Limitation Act, 1874) — 

s. 1 277 

s. 2 279 

ss. 3, 4 278 

s. 5 278 

s. 9 95 

39 & 40 Vict. c. 22. (Trade Union Act Amendment Act, 1876) ... 45 
41 & 42 Vict. c. 16. (Factory and Workshop Act, 1878) ... 208 



27 & 28 Vict. 


c. 


95 


28 & 29 Vict. 


c. 


60. 


33 & 34 Vict. 


c. 


23. 


34 & 35 Vict. 


c. 


31. 


35 & 36 Vict. 


c. 


94. 


36 & 37 Vict. 


c. 


66. 


37 & 38 Vict. 


c. 


57. 



Table of Statutes. xxi 



PAGE 

43 & 44 Vict. c. 42. (Employers' Liability Act, 1880) ... 203, 209, 

211,212,216 
s. 4 ... 91 

45 & 46 Vict. c. 50. (Municipal Corporations Act, 1882), s. 191 265 

c. 75. (Married Women's Property Act, 1882) ...50, 96 

s. 1 41,49 

s. 12 41,42 

ss. 13—15 49 

s. 17 42 

46 & 47 Vict. 0. 52. (Bankruptcy Act, 1883), ss. 30 (2), 37 ... 69 
48 & 49 Vict. c. 69. (Criminal Law Amendment Act, 1885), 

s. 10 133 

51 & 52 Vict. c. 43. (County Courts Act, 1888)— 

s. 116 33 

ss. 133—137 293 

0. 64. (Law of Libel Amendment Act, 1888) 128, 129 

s. 3 123 

s. 4 128 

s. 6 129 

(Partnership Act, 1890)— 

s. 10 47,51 

s, 12 47, 51 

(Directors' Liability Act, 1890) 161 

(Slander of Women Act, 1891) ... 107, 109 

(Public Health (London) Act, 1891), s. 29 ... 29 
(Public Authorities Protection Act, 1893) ... 91, 

96, 97, 98 
c. 71. (Sale of Goods Act, 1893)— 

ss. 21—23 284 

s. 24 284,285 

s. 25 (2) 284 

58 & 59 Vict. c. 39. (Summary Jurisdiction (Married Women) Act, 

1895), s. 6 49 

60 & 61 Vict. c. 37. (Workmen's Compensation Act, 1897) ... 212 
63 & 64 Vict. c. 22. (Workmen's Compensation Act, 1900) ... 212 

3 Edw. 7, c. 36. (Motor Car Act, 1903) 267 

c. 42. (County Courts Act, 1903), s. 3 33 

oEdw. 7, c. 11. (Railway Fires Act, 1905) 23,201 

6Edw. 7, c. 32. (Dogs Act, 1906) 197 

s. 1 197 

(1) 195 

s. 7 197 

c. 47. (Trade Disputes Act, 1900) 45,149 

8.3 10,149 

8.4 149 

8.5(3) 150 



53 & 51 Vict. 


c. 


39. 




c. 


64. 


54 & 55 Vict. 


c. 


51. 




c. 


76. 


56 & 57 Vict. 


c. 


61. 



xxii Table of Statutes. 

PAGE 

6 Edw, 7, c. 58, (Workmen's Compcnsatioa Act, 1906) ... 203, 

212, 216 

s. 1 213 

(2) 215,216 

s. 4 63 

s. 8 213 

s. 9 216 

s. 13 213,216 

Sched. 1 213,216 

8 Edw. 7, c. 7. (Fatal Accidents (Damages) Act, 1908) ...73,84 

c. 69. (Companies (Consolidation) Act, 1908), s. 84 : 161 

9 Edw. 7, c. 44. (Housing, Town Planning, etc., Act, 1909)— 

ss. 14, 15 168,224 

1 & 2 Geo. 5, c. 46. (Copyright Act, 1911)— 

s. 10 92 

c. 57. (Maritime Conventions Act, 1911) — 

8.3 46 

s. 8 9-\97 

4 & 5 Geo. 5, c. 59. (Bankruptcy Act, 1914) 68 

s. 18(1) ■ 69 

9 & 10 Geo. 5, c. 73. (County Courts Act, 1919)— 

s. 1 33 

s. 2 33 

33 

33 

33 

33 

33 

33 

33 

33 

33 

33 

1.55 





s. 3 




s. 4 




s. 5 




s. 6 




s. 7 




s. 8 




s. 9 




s. 10 




s. 11 




s. 12 


c. 79. 


(Trade Marks Act, 1919)— 




s. 6 



T.\BLE OF CASES CITED. 



, ^ PAGE 

Abrath r. North Eastern Rail. Co. ( 1 886), 1 1 App. Cas. 217- 50 J P 

659 ; 55 L. J. Q. B. 457 ; 55 L. T. 63 ... 44, 133, 134, 135, 137 
Adam v. Ward, [1917] A. C. 309 ; 86 L. J. K. B. 849 ; 117 L.T. 34 ; 

33 T. L. R. 277 ... ... ... ... ... i22 123 124 

Adams u. Lancashire and Yorkshire Rail. Co. (1869) L R 4C P ' 

739 ; 38 L. J. C. P. 277 ; 20 L. T. 850 ; 17 W. R. 884 ' . ." 185 
Adams v. Ursell, [1913] 1 Ch. 269 ; 82 L. J. Ch. 157 ; 108 L T 

292 ; 57 Sol. Jo. 227 \[ g-j 

Adamson v. Jarvis (1827), 4 Bing. 66 ; 5 L. J. (o s ) C P 68 • 

12 Moore C. P. 241 ; 29 R. R. 503 ' ..." 46 

Agency Co. v. Short (1888), 13 App. Cas. 793 ; 53 J. P 13'' • 

58 L. J. P. C. 4 ; 59 L. T. 677 ; 37 W. R. 433 .' 95 

Alabaster v. Harness, [1895] 1 Q. B. 339 ; 64 L. J Q B 76 • 

14 R. 54 ; 71 L. T. 740 ; 43 W. R. 196 [C. A.] .' 140 

Alcott V. Millar's Karri and Jarrah Forests, Limited (1905) 

91 L. T. 722; 21T. L. R. 30[C. A.) ... 130 

Aldin V. Latimer Clark, Muirhead & Co., [1894] 2 Ch. 437 • 63 L J 

Ch. 601; 71 L.T. 119; 42 W.R. 453; 8 R. 352 '... '. ' 245 

Aldred u. Constable (1844), 6 Q. B. 370 ; 8 Jur. 956 283 

Alexander v. Jenkins, [1892] 1 Q. B. 797 ; 56 J. P. 452 • 61 L J 

Q. B. 634 ; 66 L. T. 391 ; 40 W. R. 546 [C. A.] ... 'l07. Ill 

Allbutt V. General Medical Council of Education and Registration ' 

(1889), 23 Q. B. D. 400 ; 54 J. P. 36 ; 58 L. J. Q B 606 • 

61 L. T. 585 ; 37 W. R. 771 [C. A.] ... ' ' 127 

Allen V. Flood, [1898] A. C. 1 ; 62 J. P. 595 ; 67 L. J. o" B lig- 

77 L. T. 717 ; 46 W. R. 258 ' 10 11 15'> 

V. New Gas Co. (1876), 1 Ex. D. 251 ; 45 L. J. Ex 668 • ' 

34 L. T. 541 ' 204 

■ V. Woods (1893), 68 L. T. 143 ; 4 R. 249 [C. A.] 277 

Allsop V. Allsop (1860), 29 L. J. Ex. 315 ; 2 L. T. 290 • 8 W R 

449 ; 5 H. & N. 534 ; 6 Jur. (N.s.) 4.33 '... ' " 108 

Ambler v. Gordon, [1905] 1 K. B. 417; 74 L. J K B 185- 

92 L. T. 96 ; 53 W. R. 300 '...' ./ 247 

Anderson v. Gorrio, [1895] 1 Q. B. 668; 71 L. T 382- 14 R 

^ 79 [C. A.] ; 17,18,121 

V. Oppenheimer (1880), 5 Q. B. D. 602 ; 49 L. J. O B 

708 [C. A.] ..: 194 

V. Pacific Fire and Marino Insurance Co. (1872) L R 

7 C. P. 65 ; 26 L. T. 130 ; 20 W. R. 280 ; 1 Asp' 

M. L. C. 220 ^ 15g 

V. RadclifTo (18.58), EI. Bl. & El. 806 ; 29 L j" O iV 

128 ; 1 L. T. 487 ; 8 W. R. 283 ; 6 Jur. (n.s.) 578 ..." ..'. 273 
Andrew v. Failsworth Industrial Society, [1904] 2 K. B. 32 • 68 



359; 


55 


L.J. 


25 


.. J. i 


Ch. 


372; 


158 


356 




78, 


,290 


J. Q. 


B. 


185; 





xxiv Table of Cases Cited. 

PACK 

J. P. 409 ; 73 L. J. K. B. 511 ; 90 L. T. 611 ; 52 W. R. 451 ; 

20 T. L. R. 429 [C. A.] 214 

Andrews v. Mookford, [1896] 1 Q. B. 372 ; 65 L. J. Q. B. 302 ; 

73 L. T. 726 [C. A.] 158 

V. Waite, [1907] 2 Ch. 500 ; 70 L. J. Ch. 676 ; 97 L. T. 

428 85,88 

Appleby v. Franklin (1885), 17 Q. B, D. 93 ; 50 J. P. 

Q. B. 129 ; 54 L. T. 135 ; 34 W. R. 231 
Arkwright v. Newbold (1881), 17 Ch. 1). 301 ; 50 L. 

44 L. T. 393 ; 29 W. R. 655 

Armory v. Delamirie (1722), 1 Str. 505 ; 1 Sm. L. C. 
Arnold v. Blaker (1871), L. R. 6 Q. B. 433 ; 40 L. J. Q. 

19 W. R. 1090 219 

Arnold and Butler v. Bottomley, [1908] 2 K. B. 151 ; 77 L. J. 

K. B. 584 ; 98 L. T. 777 ; 24 T. L. R. 365 ; 52 Sol. J. 300 [C. A.] 117 
Ashby V. White (1703), 2 Lord Raj^mond, 938 ; 3 Lord Raymond, 

320 ; 1 Sm. L. C. 240 ; 14 How. St. Tr. 695 240 

Asher v. Whitlock (1865), L. R. 1 Q. B. 1 ; 35 L. J. Q. B. 17 ; 

13 L. T. 254 ; 14 W. R. 26 ; 11 Jur. (n.s.) 925 ... 272, 276 

Ashton y. Stock(1877), 6Ch. D. 719; 25W. R. 862 279 

Aspden v. Seddon (1875), L. R. 10 Ch. 394 ; 44 L. J. Ch. 359 ; 

32 L. T. 415 ; 23 W. R. 580 241 

Att.-Gen. v. Birmingham Borough Council (1858), 6 W. R. 811 ; 

4K. &J. 528 89,218 

V. Brighton and Hove Co-operative Supply Association, 

[1900] 1 Ch. 276 ; 69 L. J. Ch. 204 ; 81 L. T. 762 ; 

48 W. R. 314 [C. A.] 218 

V. Cole & Son, [1901] 1 Ch. 205 ; 65 J. P. 88 ; 70 L. J. 

Ch. 148 ; 83 L. T. 725 231 

V. Conduit ColUery Co., [1895] 1 Q. B. 301 ; 59 J. P. 70 ; 

64 L. J. Q. B. 207 ; 71 L. T. 777 ; 43 W. R. 366 ; 

15 R. 267 [C. A.] 241 

V. De Keyser's Roval Hotel, [1920] A. C. 508 ; 89 L. J. 

Ch. 417 ; 122 L. T. 691 ; 36 T. L. R. 600 ; 64 Sol. J. 

513 ; 57 Sc. L. R. 757 230 

V. Dorking Union Guardians (1882), 20 Ch. D. 595; 

51 L. J. Ch. 585 ; 46 L. T. 573 ; 30 W. R. 579 [C.A.] 88 

V. Great Northern Rail. Co. (1908), 72 J. P. 442 ; 99 L. T. 

695 ; reversed, [1909] 1 Ch. 775 ; 73 J. P. 41 ; 78 

L. J. Ch. 577 [C. A.] 249 

V. Homer (1886), 11 App. Cas. 66; 50 J. P. 564; 

55 L. J. Q. B. 193 ; 54 L. T. 281 ; 34 W. R. 641 ... 220 

V. London and North Western Railway, [1900] 1 Q. B. 

78; 63 J. P. 772 ; 69 L. J. Q. B. 26; 81 L. T. 649 [C. A.] 89 

• V. Luton Local Board (1859)', 2 Jur. (n.s.) 180 218 

■ V. Manchester Corporation, [1893] 2 Ch. 87 ; 57 J. P. 

343; 62 L. J. Ch. 459 ; 68 L. T. 608 ; 41 W. R. 459 ; 

3R. 427 22 

Tod Heatley, [1897] 1 Ch. 560 ; 66 L. J. Ch. 275 



76 L. T. 174 ; 45 W. R. 394 [C. A.] ... 218,223 

Attwood V. Chapman, [1914] 3 K. B. 275 ; 79 J. P. 65 ; 83 L. J. 

K. B. 1666; 111 L. T. 726; 30T. L. R. 596 123 

Austm V. Dowling (1870), L. R. 5 C. P. 534 ; 39 L. J. C. P. 260 ; 

22 L. T. 721 ; 18 W. R. 1003 261,262 

V. Great Western Rail. Co. (1867), L. R. 2 Q. B. 442 ; 

36 L. J. Q. B. 201 ; 16 L. T. 320 ; 15 W. R. 863 167 



Table of Cases Cited. xxv 



Austin Friars Steamship Co., Ltd. v. S]3illers and Bakers, Ltd., 

[1915] 3 K. B. 586 ; 84 L. J. K. B. 1958 ; 113 L. T. 805 ; 

31 T. L. R. 535 ; 20 Com. Cas. 342 [C. A.] 46 

Australian Newspaper Co. v. Bennett, [1894] A. C. 284 ; 58 J. P. 

604 ; 63 L. J. P. C. 105 ; 70 L. T. 597 ; 6 R. 484 105 

Ayre v. Craven (1834), 4 L. J. K. B. 35 ; 2 Ad. & Ell. 2 ; 4 N. & M. 

220 ; 41 R. R. 359 Ill 



B. 

Backhouse v. Bonomi (1861), 34 L. J. Q. B. 181 ; 4 L. T. 754 ; 

9W. R.769; 9 H. L. Cas. 503 ; 7 Jur. (x.s.) 809 ... 92,93,240 
Baddelev v. Granville (Earl) (1887), 19 Q. B. D. 423 ; 51 J. P. 822 ; 

56 L. J. Q. B. 501 ; 57 L. T. 268 ; 36 W. R. 63 185 

Baily & Co. v. Clark, Son, and Morland, [1902] 1 Ch. 649 ; 71 L. J. 

Ch. 396; 86L. T. 309; 50W. R. 511 [C. A.] 248 

Bainbridge v. Postmaster-General, [1906] 1 K. B. 178 ; 75 L. J. 

K. B. 366 ; 94 L. T. 120 ; 54 W. R. 221 ; 22 T. L. R. 70 

[C. A.] 61 

Baker v. Snell, [1908] 2 K. B. 825 ; 77 L. J. K. B. 1090 ; 24 T. L. R. 

811 ; 52 Sol. J. 681 [C. A.] 55,194,195,196 

Baldwin v. Casella (1872), L. R. 7 Ex. 325 ; 41 L. J. Ex. 167 ; 

26 L. T. 707 ; 21 W. R. 16 197 

Ball V. Ray (1873), L. R. 8 Ch. 467 ; 28 L. T. 346; 21 W. R. 

282 229,231 

Ballard v. Tomlinson (1885), 29 Ch. D. 115 ; 49 J. P. 692 ; 54 L. J. 

Ch. 454 ; 52 L. T. 942 ; 33 W. R. 533 [C. A.]... 190, 248, 250 

Bamfield v. Goole and Sheffield Transport Co., Limited, [1910] 

2 K. B. 94 ; 79 L. J. K. B. 1070 ; 103 L. T. 201 [C. A.] ... 177 
Bamford v. Tumley (1862), 3 B. & S. 62 ; 31 L. J. Q. B. 286 ; 

10 W. R. 803 ; 9 Jur. (N-.s.) 377 230 

Bank of England v. Cutler, [1908] 2 K. B. 208 ; 77 L. J. K. B. 889 ; 

98 L. T. 336 ; 24 T. L. R. 518 , 52 Sol. J. 442 [C. A.] ... 46 
Barber v. Penley, [1893] 2 Ch. 447 ; 62 L. J. Ch. 623 ; 68 L. T. 662; 

3R. 489 ■ 229 

Barker v. Furlons, [1891] 2 Ch. 172 , 60 L. J. Ch. 368 ; 64 L. T. 

411 ;''39 W. R. 621 290 

V. Herbert, [1911] 2 K. B. 633 223, 225 

Bamardiston v. Chapman (1715). cited 4 East, 121 ; Bui. N. P. 34 : 292 
Barnes v. Ward (1850), 9 C. B. 392 ; 19 L. J. C. P. 195 ; 2 Car. & 

K. 661 ; 14 Jur. 334 218,220 

Barns v. St. Mary IsUngton Guardians (1912), 76 J. P. 11 ; 10 

L. G. R. 113 53 

Barratt v. Keams, [1905] 1 K. B. 504 ; 74 L. J. K. B. 318 ; 92 L. T. 

255 ; 53 W. R. 356 ; 21 T. L. R. 212 [C. A.] 121 

Bartlctt V. Wells (1862), 1 B. & S. 836 ; 31 L. J. Q. B. 57 ; 5 L. T. 

607 ; 10 W. R. 229; 8Jur. (N.s.)762 43 

Bartonshill Coal Co. »'. Reid (18.58), 6 W. R. 664; 4 Jur. (n.s.) 

767 ; 3 .Macq. H. L. Ca. 266 206 

Barwick v. English .Joint Stock Bank (1867), L. R. 2 Ex. 259; 

36 L. J. Ex. 147 ; 16 L. T. 461 ; 15 W. R. 877 ... 55, 57 

Basobe v. Matthcw.s (1867), L. R. 2 ('. 1'. 684 ; 36 L. .1. M. C. 93 ; 

16L. T. 417; 15 W. R. 839 137 



xxvi Table of Cases Cited. 

PAGE 

Bassu. Gregory (1890), 25 Q. B. D. 481 ; 55 J. P. 119 ; 59 L. J. 

Q. B. 574 245,246 

Bates V. Batey & Co., Limited, [1913] 3 K. B. 351 ; 82 L. J. K. B. 

963 ; 108 L. T. 1036 ; 29 T. L. K. 616 ... 174, 175, 176 

Bathurst (Borough) v. Macphcrson (1879), 4 App. Cas. 256 ; 48 

L. J. P. C. 61 ; 41 L. T. 778 30 

Battersea (Lord) v. City of London Sewers Commissioners, [1895] 

2 Ch. 708 ; 59 J. P. 728 ; 65 L. J. Ch. 81 ; 73 L. T. 116 ; 

44 W. R. 124 ; 13 R. 795 246 

BattishUl v. Reed (1856), 18 C. B. 696 ; 25 L. J. C. P. 290 ... 229 

Baxter v. Taylor (1833), 2 L. J. K. B. 65 ; 4 B. & Ad. 72 ; 1 N. & 

M. 13 ; 38 R. R. 227 237 

Bay ley v. Manchester, Sheffield and Lincolnshire Rail. Co. (1872), 

L. R. 7 C. P. 415 ; 41 L. J. C. P. 278 59 

Beard v. London General Omnibus Co., [1900] 2 Q. B. 530 ; 69 

L. J. Q. B. 895 ; 83 L. T. 362 ; 48 \V. R. 658 [C. A.] 55, 57 

Beasley v. Roney, [1891] 1 Q. B. 509 ; 55 J. P. 566 ; 60 L. J. Q. B. 

408 ; 65 L. T. 153 ; 39 W. R. 415 41 

Beaumont v. Kaye, [1904] 1 K. B. 292 ; 73 L. J. K. B. 213; 

90 L. T. 51 ; 52 W. R. 241 ; 20 T. L. R. 183 [C. A.l ... 50 

Beaver v. Manchester Corporation (1857), 8 El. & Bl. 44 ; 26 L. J. 

Q. B. 311 ; 4 Jur. (N.s.)23 270 

Beck V. Pierce (1889), 23 Q. B. D. 316 ; 54 J. P. 198 ; 58 L. J. Q. B. 

516 ; 61 L. T. 448 ; 38 W. R. 29 [C. A.] 49 

Becker V. Riebold (1913), SOT. L. R. 142 53 

Beckham v. Drake (1849), 2 H. L. Cas. 579 ; 13 Jur. 921 ... 69 

Beckwith v. Philby (1827), 5 L. J. (o.s.) M. C. 132 ; 6 B. & C. 635 ; 

9 D. & R. 487 ; 30 R. R. 484 264 

Bedfordu. M'Kowl(1800), 3 Esp. 119 147,148 

Bedingfield ?;. Onslow (1685), 3 Lev. 209 236 

Belfast Ropeworks Co. v. Boyd (1888), 21 L. R. Ir. 560 [C. A.] ... 249 

Bell V. Stone (1798), 1 B. & P. 331 ; 4 R. R. 820 104 

Bellamy v. Wells (1890), 60 L. J. Ch. 156 ; 63 L. T. 635 ; 39 W. R. 158 229 
Belsize Motor Supply Co. v. Cox, [1914] 1 K. B. 244 ; 83 L. J. 

K. B. 261 ; 110 L. T. 151 34 

Belvedere Fish Guano Co., v. Rainham Chemical Works, Feldman 

and Partridge. Ind, Coope & Co. v. Same, [1920] 2 K. B. 487 ; 

84 J. P. 185 ; 89 L. J. K. B. 631 ; 123 L. T. 211 ; 36 T. L. R. 

362 ; IS L. G. R. 517 [C. A.] ; on appeal Rainham Chemical 

Works V. Belvedere Fish Guano Co. Limited, [1921] W. N. 281: 87,189 
Benjamin v. Storr (1874), L. R. 9 C. P. 400 ; 43 L. J. C. P. 162 ; 

30 L. T. 362 ; 22 W. R. 631 221 

Bennett t'. Allcott (1787), 2 T. R. 166 146 

Beresford v. White (1914), 30 T. L. R. 591 ; 58 Sol. J. 670 [C. A.] 121 
Bernina, The, Mills v. Armstrong (1888), 13 App. Cas. 1 ; 52 J. P. 

212 ; 57 L. J. P. 65 ; 58 L. T. 423 ; 36 W. R. 870 ; 6 Asp. 

M. C. 257 180,181 

Berringer v. Great Eastern Rail. Co. (1879), 4 C. P. D. 163 ; 48 

L. J. C. P. 400 ; 27 W. R. 681 71, 143 

Berry v. Humm, [1915] 1 K. B. 627 ; 84 L. J. K. B. 918 ; 61 

T. L. R. 198 72 

Besozzi V. Harris (1858), 1 F. & F. 92 195 

Betts V. Gibbins (1834), 2 A. & E. 57 ; 4 L. J. K. B. 1 ; 41 R. R. 

381;4N. &M. 64 46 

Bird V. Holbrook (1828), 6 L. J. (o.s.) C. P. 146 ; 4 Bmg. 628 ; 

1 Moo. & P. 607 ; 29 R. R. 657 170,172 



Table of Cases Cited. xxvii 

PAGE 

Bird V. Jones (1845), 7 Q. B. 742 ; 15 L. J. Q. B. 82 ; 9 Jur. 870 ; 

68R. R. 564 256,257 

Birmingham Corporation v. Allen (1877), 6 Ch. D. 284 ; 46 L. J. 

Ch. 673 ; 37 L. T. 207 ; 25 W. R. 810 [C. A.] 240,241 

Birmingham Vinegar Brewery Co. v. Powell, [1897] A. C. 710 ; 

66 L. J. Ch. 763 ; 76 L. t. 792 154 

Bishop V. Balkis Consolidated Co. (1890), 25 Q. B. D. 512 ; 59 L. J. 

Q. B. 565 ; 63 L. T. 601 ; 39 W. R. 99 ; 2 Meg. 292 

[C. A.] 160 

Black V. Christchurch Finance Co., [1894] A. C. 48 ; 58 J. P. 332 ; 

63L. J. P. C. 32; 70L. T. 77; 6R. 394 66 

Blacker v. Lake & Elliot, Limited (1912), 106 L. T. 533 ... 35, 174, 175 
Blades v. Higgs (1861), 10 C. B. (n.s.) 713 ; 30 L. J. C. P. 347 ; 

4 L. T. 551 ; 7 Jur. (N.s.) 1289 ; affirmed 11 H. L. Cas. 62J ; 

20 C. B. (N.s.) 214 ; 34 L. J. C. P. 286 ; 12 L. T. 615 ; 13 

W. R. 927 ; 11 Jur. (N.s.) 701 292 

Blair and Sumner v. Deakin, Eden and Thwaites v. Deakin (1887), 

52 J. P. 327 ; 57 L. T. 522 45 

Blake V. Lanyon (1795), 6 T. R. 221 ; 3 R. R. 162 143 

V. Midland Rail. Co. (1852), 18 Q. B. 93 ; 21 L. J. Q. B. 

233 ; 16 Jur. 562 72 

Bland v. Yates (1914), 58 Sol. J. 612 228, 230, 232 

Blofield V. Payne (1833), 2 L. J. K. B. 68 , 4 B. & Ad. 410 ; 

IN. &M.'353 153,154 

Bloodworth v. Gray (1844), 7 Man. & G. 334 ; 8 Sco. N. R. 9 ; 

66R. R. 720 107,110 

Blyth V. Birmingham Waterworks Co. (1856), 25 L. J. Ex. 212 ; 11 

Ex. 781 ; 4 W. R. 294 ; 2 Jur. (N.s.) 333 163 

V. Fladgate, Morgan v. Blyth, Smith v. Blyth, [1891] 1 Ch. 

337 ; 60 L. J. Ch. 66 ; 63 L. T. 546 ; 39 W. R. 422 51 

Boden v. Roscoe, [1894] 1 Q. B. 608 ; 58 J. P. 368 ; 63 L. J. Q. B. 

767 ; 70 L. T. 4.50 ; 42 W. R. 445 ; 10 R. 173 275 

Bodlewell, The, [1907] P. 286 ; 76 L. J. P. 61 ; 96 L. T. 854 ; 23 

T. L. R. 356 78 

Bonnard v. Perryman, [1891] 2 Ch. 269 ; 60 L. J. Ch. 617 ; 65 L. T. 

506 ; 39 W. R. 435 [C. A.] 87,88 

Booth V. Arnold, [1895] 1 Q. B. 571 ; 59 J. P. 215 ; 64 L. J. Q. B. 

443 ; 72 L. T. 310 ; 43 W. R. 360 ; 14 R. 326 [C. A.] 107, 111 
Bottomley v. Brougham, [1908] 1 K. B. 584 ; 77 L. J. K. B. 311 ; 

99 L. T. Ill ; 24 T. L. R. 262 ; 52 Sol. J. 225 18, 119, 121 
Bound V. Lawrence, [1892] 1 Q. B. 226 ; 56 J. P. 118 ; 61 L. J. M. C. 

21 ; 65 L. T. 844 ; 40 W. R. 1 [C. A.] 211 

Bowen v. Anderson, [1894] 1 Q. B. 161 ; 42 W. R. 236 ; 10 R. 

47 222 

V. Hall (1881), 6 Q. B. D. 333 ; 45 J. P. 373 ; 50 L. J. 

Q. B. 305 ; 44 L. T. 75 ; 29 W. R. 367 [C. A.] 150 

Bower v. Peate (1876), 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 ; 35 

L. T. 321 66 

Bowyoru. Cook (1847), 4C. B. 236 274 

Box V. Jubb (1879), 4 Ex. D. 76 ; 48 L. J. Ex. 417 ; 41 L. T. 97 ; 

27W. R. 415 192 

Boxsius V. Goblet Frires, [1894] 1 Q. B. 842 ; 58 J. P. 670 ; 

63 L. J. Q. B. 401 ; 70 L. T. 368 ; 42 W. R. 392 ; 9 R. 224 

[C. A.] 114,127 

Boyle V. Tamlyn (1827), 5 L. J. (o.s.) K. B. 134 ; 6 B. & C. 329 ; 

9 Dow. & R. 430 ; 30 R. R. 345 199 



xxviii Table of Cases Cited. 

PAGE 

Bradburn v. Groat Western Rail. Co. (1874), L. R. 10 Ex. 1 ; 44 

L. J. Ex. 9 ; 31 L. T. 464 ; 23 W. R. 468 84 

Bradford Corporation v. Ferrand, [1902] 2 Ch. 655 ; 67 J. P. 21 ; 
71 L. J. Ch. 859 ; 87 L. T. 388 ; 51 W. R. 

122 248,249 

V. Myers, [1916] 1 A. C. 242 ; 80 J. P. 121 ; 

85 L. J. K. B. 146 ; 114 L. T. 83 ; 32 

T. L. R. 113; 60 Sol. J. 74; 14 L. G. R. 1.30 98 

V. Pickles, [1895] A. C. 587 ; 60 J. P. 3 ; 

64 L. J. Ch. 759 ; 73 L. T. 353; 44 W. R. 190 ; 11 R. 286 : 10, 11, 

1.52, 227, 228, 249 
Bradlaugh v. Newdegate (1883), 11 Q. B. D. 1 ; 52 L. J. Q. B. 

454 ; 31 W. R. 792 139,140 

Bradshaw v. Waterlow & Sons, Limited, [1915] 3 K. B. 527 ; 

31 T. L. R. 556 [C. A.] 136 

Brassingtonu. Llewellyn (18.58), 27 L. J. Ex. 297 277 

Brewer v. Dew (1843),' 12 L. J. Ex. 448 ; 11 M. & W. 625 ; 1 D. & 

L. 383 ; 7 Jur. 9.53 ; 63 R. R. 690 69 

~^— V. Sparrow (1827), 6 L. J. (o.s.) K. B. 1 ; 7 B. & C. 310 ; 

IMan. &R. 2 291 

Brinsmead v. Harrison (1871), L. R. 6 C. P. 584 ; 40 L. .L C. P. 

281 ; 24 L. T. 798 ; 19 W. R. 956 ... 289 

V. (1872), L. R. 7 C. P. 547 ; 41 L. J. C. P. 

190 ; 27 L. T. 99 ; 20 W. R. 784 46,47 

British Cash and Parcel Conveyers, Limited v. Lamson Store Service 
Co., Limited, [1908] 1 K. B. 1006 ; 77 L. J. K. B. 649 : 98 

L. T. 875 [C. A.] 140 

British Columbia Electric Rail. Co., Limited v. Loach, [1916] 

1 A. C. 719; 85 L.J. P. C. 23; 113 L.T. 946 179 

British South Africa Co. v. Companhia de Mozambique, [1893] A. C. 

602 , 63 L. J. Q. B. 70 ; 69L. T. 604; 6 R. 1 40 

British Westinghouse Electric and Manufacturing Co. v. Under- 
ground Electric Railwavs Co. of London. [1912] A. C. 673 ; 

81 L. J. K. B. 1132 ; 107 L. T. 325 ; .56 Sol. J. 734 78 

Britton v. South Wales Rail. Co. (1858), 27 L. J. Ex. 355 ... 75 

Brocklebank v. Thompson, [1903] 2 Ch. 344 ; 72 L. J. Ch. 626 ; 

89L. T. 209 250 

Broggi V. Robins (1898), 14 T. L. R. 4.39 222 

Bromage v. Prosser (1825), 4 B. & C. 247 ; 6 Dow. & R. 296 ; 

1 Car. & P. 475 ; 3 L. J. (o.s.) K. B. 203 ; 24 R. R. 241 ... 10 

Broom v. Ritchie (1904), 6 F. 842 .: 5 

Brown v. Boorman (1844), 3 Q. B. 511 ; 11 CI. & F. 1 ; 65 

R R 1 .... ... 33 

1-. Hawkes, [1891] 2 Q. B. 718; 55 J. P. 823; 61 L. J. 

Q. B. 151 ; 65 L. T. 108 [C. A.] 136 

— V. Robins (1859), 4 H. & X. 186 ; 28 L. L Ex. 2.50 ... 243 

Browne v. Flower, [1911] 1 Ch. 219 ; 80 L. J. Ch. 181 ; 103 L. T. 

557' 55 Sol J 108 . ■•• ••• 228 

BrunsdeA v. Humphrev (1884), 14 Q. B. D. 141 ; 49 J. P. 4 ; 53 

L. J. Q B. 476 ; 51 L. T. 529 ; 32 W. R. 944 [C. A.] ... 81 

Brunswick (Duke) w. Hanover (King) (1844), 13 L. J. Ch. 107; 

6 Beav. 1 ; 8 Jur. 253 ; 63 R. R. 1 ... 42 

V Harmer (1849), 14 Q. B. 185 ; 19 L. J. Q. B. 

20; 14 Jur. 110 113 

Bryant v. Lefever (1879^ 4 C. P. D. 172 ; 48 L. J. C. P. 380 ; 

40 L. T. 579 ; 27 W. R. 592 [C. A.] 245, 246 



Table of Cases Cited. xxix 



Bulli Coal Mining Co. v. Osborne, [1899] A. C. 351 ; 68 L. J. P. C. 

49 ; 80 L. T. 430 ; 47 W. R. 545 92 

Burgess v. Burgess (1853), 22 L. J. Ch. 675 ; 3 De G. M. & G. 

896; 17 Jur. 292 154 

V. Gray (1845), 1 C. B. 578 ; 14 L. J. C. P. 184 63 

Bumard v. Haggis (1863), 14 C. B. (n.s.) 45 ; 32 L. J. C. P. 189 ; 

8 L. T. 320 'i 11 W. R. 644 ; 9 Jur. (n.s.) 1325 43 

Buron r. Denman (1859), 2 Exch. 167 17 

Burr V. Smith, [1909] 2 K. B. 306 ; 78 L. J. K. B. 889 ; 101 L. T. 
194 ; 25 T. L. R. 542 ; 53 Sol. J. 502 ; 16 Manson, 

210 [C. A.] 121 

— — V. Theatre Royal, Drury Lane, Limited, [1907] 1 K. B. 544 ; 

76 L. J. K. B. 459 ; 96 L. T. 447 ; 23 T. L. R. 299 [C. A.] ... 206 
Burrows v. March Gas and Coke Co. (1872), L. R. 7 Ex. 96 ; 41 L. J. 

Ex. 46 ; 26 L. T. 318 ; 20 W. R. 493 15 

Burton v. Hughes (1824), 3 L. J. C. P. 243 ; 2 Bmg. 173 ; 9 Moore, 

334 291 

Butcher i'. Butcher (1827), 6 L. J. (o.s.) K. B. 51 ; 7 B. & C. 399 ; 

1 Man. & R. 220 ; 31 R. R. 237 273 

Butler V. Fife Coal Co., Limited, [1912] A. C. 149 ; 81 L. J. P. C. 

97 ; 106 L. T. 161 ; 28 T. L. R. 150 ; [1912] S. C. (h.l.) 33 ; 

49Sc. L. R. 228 164,205 

Butterfield v. Forrester (1809), 11 East, 60 ; 10 R. R. 433, 179, 181 
Bj-me V. Boadle (1863), 33 L. J. Ex. 13 ; 9 L. T. 450 ; 12 W. R. 

279 ; 2 H. & C. 722 182,183 



C. 

Cable V. Bryant, [1908] 1 Ch. 259 ; 77 L. J. Ch. 78 ; 98 L. T. 98 : 

245, 246 

Cahill u. Fitzgibbon (1885), 16 L. R. Ir. 371 264 

Calder v. Halket (1840), 3 Moo. P. C. C. 28 ; 50 R. R. 1 17 

Caledonian Rail. Co. v. Mulholland, [1898] A. C. 216 ; 67 L. J. 

P. C. 1 ; 77 L. T. 570 ; 46 W. R. 236 163,164 

Calye's Case (1584), 1 Sm. L. C. 119 173 

Campbell w. Spottiswoode (1863), 3 B. & S. 769 ; 32 L. J. Q. B. 185 ; 

8 L. T. 201 ; 11 W. R. 569 ; 9 Jur. (n.s.) 1069 119 

Cannon u. Rimington (1852), 12 C. B. 1 ; 21 L. J. C. P. 137 ... 279 
Capel V. Powell (1864), 17 C. B. (n.s.) 743 ; 34 L. J. C. P. 168 ; 

11 L.T. 421; 13 W. R. 159; 10 Jur. (N.s.) 1255 50 

Capital and Counties Bank v. Henty (1882), 7 App. Cas. 741 ; 

47 J. P. 214 ; 52 L. J. Q. B. 232 ; 47 L. T. 662 ; 31 W. R. 157 : 

101, 103, 104, 106, 124 

Carlisle u. Orr, [1918] 2 I. R. 442 25 

Carlyon v. Lovering (1857), 26 L. J. Ex. 251 ; 5 W. R. 347 ; 1 H. & 

N. 784 250 

Carpenter v. Finsbury Borough Council, [1920] 2 K. B. 195 ; 84 

J. P. 107 ; 89 L. J. K. B. 554 ; 123 L. T. 299 ; 64 Sol. J. 426 ; 

18L. G. R. 370 21,31 

Carpue v. London and Brighton Co. (1844), 5 Q. B. 747 ; 13 L. J. 

Q. B. 138 ; Dav. & M. 608 ; 3 Rail. Cas. 692 ; 8 Jur. 464 ... 184 

Cam;. Clarke (1818), 2 Chit. 260; 23 R. R. 748 146 

V. Fracis Times & Co., [1902] A. C. 176 ; 71 L. J. K. B. 361 ; 

50W. R. 257 39,40 

Carslakev. Mapplcdorani (1788), 2T. R. 473 110 



XXX Table of Cases Cited. 



Carstairs v. Taylor (1871), L. R. 6 Ex. 217 ; 40 L. J. Ex. 129 ; 

19W. R. 723 194 

Carter v. St. Mary Abbots, Kensington, Vestry (1900), 64 J. P. 548 

[C. A.] 53 

Castrique v. Behrens (1861), 3 El. & El. 709 ; 30 L. J. Q. B. 163 ; 

4 L. T. 52 ; 7 Jux-. (N.s.) 1028 137 

Cavalier v. Pope, [1906] A. C. 428 ; 75 L. J. K. B. 609 ; 95 L. T. 

65 ; 22 T. L. R. 648 169 

Chamberlain v. Boyd (1883), 11 Q. B. D. 407; 47 J. P. 372; 

52 L. J. Q. B. 277 ; 48 L. T. 328 ; 31 W. R. 572 [C. A.] : 107, 108 
Chaplin ( W. H.) & Co., Limited v. Westminster Corporation, [1901] 

2 Ch. 329 ; 65 J. P. 661 ; 70 L. J. Ch. 679 ; 85 L. T. 88 ; 

49W. R. 586 6 

Charing Cross, West End and City Electricity Supply Co. v. 

London Hydraulic Power Co., [1914] 3 K. B. 772 ; 78 J. P. 

305 ; 83 L. J. K. B. 1352 ; 111 L. T. 198 ; 30 T, L. R. 441 ; 

58 Sol. J. 577 ; 12 L. G. R. 807 [C. A.] 21 

Chasemore v. Richards (1859), 29 L. J. Ex. 81 ; 7 W. R. 685 ; 

7 H. L. Cas. 349 ; 5 Jur. (N.s.) 873 228,248,249 

Chastey v. Ackland, [1895] 2 Ch. 389 ; 64 L. J. Q. B. 523 ; 72 L. T. 

845 ; 43 W. R. 627 ; 12 R. 420 [C. A.] 245, 246 
V. — , [1897] A. C. 155 ; 66 L. J. Q. B. 518 ; 76 L. T. 

430 245,246 

Chatterton v. Secretary of State for India in Council, [1895] 

2 Q. B. 189 ; 59 J. P. 596 ; 64 L. J. Q. B. 676 ; 72 L. T. 858 ; 

14 R. 504 120 

Chauntler v. Robinson (1849), 4 Ex. 163 ; 19 L. J. Ex. 170 ... 243 

Cheater v. Cater, [1918] 1 K. B. 247 ; 87 L. J. K. B. 449 ; 118 L. T. 

203 ; 34 T. L. R. 123 ; 62 Sol. J. 141 [C. A.] 194 

Cheshire v. Bailey, [1905] 1 K. B. 237 ; 74 L. J. K. B. 176 ; 92 

L. T. 142 ; 53 W. R. 322 ; 21 T. L. R. 130 [C. A.] 55 

Chinery v. Viall (1860), 5 H. & N. 295 ; 29 L. J. Ex. 180 ; 2 L. T. 

466;8W. R. 629 34 

Christie t;. Cowell (1790), Peake, 4 ; 3 R. R. 642 109 

Christopherson v. Blare (1848), 11 Q. B. 473 ; 17 L. J. Q. B. 109 ; 

12Jur. 374 255 

Churchill v. Siggers (1854), 3 El. & Bl. 929 ; 23 L. J. Q. B. 308 ; 

2 W. R. 551 ; 2 C. L. R. 1509 ; 18 Jur. 773 131,132 

Citizens' Life Assurance Co. v. Brown, [1904] A. C. 423 ; 73 L. J. 

P. C. 102 ; 90 L. T. 739 ; 53 W. R. 176 ; 20 T. L. R. 497 ... 45, 

60, 137 
City of Lincoln, The (1889), 15 P. D. 15 ; 59 L. J. P. & D. 1 ; 

62 L. T. 49 ; 38 W. R. 345 ; 6 Asp. M. C. 475 [C. A.] ... 80 

Clark V. Freeman (1848), 17 L. J. Ch. 142 ; 11 Beav. 112 ; 12 Jur. 

149 88 

V. London General Omnibus Co., Limited, [1906] 2 K. B. 

648 ; 75 L. J. K. B. 907 ; 95 L. T. 435 ; 22 T. L. R. 691 

[C. A.] 5.71,72,143 

V. Molyncux (1877), 3 Q. B. D. 237 ; 47 L. J. Q. B. 230 ; 

37 L. T. 694 ; 26 W. R. 104 ; 14 Cox C. C. 10 [C. A.] 122, 

123, 124, 125 

V. Woods (1848), 2 Ex. 395; 3 New Sess. Cas. 253; 17 

L. J. M. C. 189 20 

Clarke v. Army and Na\n' Co-operative Society, [1903] 1 K. B. 155 ; 

78 L. J. k. B. 153 ;" 88'L. T. 1 [C. A.] 176 

Clayards f. Dethick (1848), 12 Q. B. 439 24 



Table of Cases Cited. xxxi 

PAGE 

Clayton v. Le Roy, [1911] 2 K. B. 1031 ; 75 J. P. 521 ; 81 L. J. 

K. B. 49 ; 105 L. T. 430 ; 27 T. L. R. 479 [C. A.] 285, 289 
V. Pontypridd Urban District Council, [1918] 1 K. B. 219 ; 

82 J. P. 246 ; 87 L. J. K. B. 645 ; 118 L. T. 219 ; 16 L. G. R. 

141 98 

Cleary v. Booth, [1893] 1 Q. B. 465 ; 57 J. P. 375 ; 62 L. J. M. C. 87 ; 

68 L. T. 349 ; 41 W. R. 391 ; 5 R. 263 ; 17 Cox C. C. 611 ... 260 
Clement v. Chivis (1829), 7 L. J. (o.s.) K. B. 189 ; 9 B. & C. 172 ; 

4 M. & R. 127 ; 32 R. R. 624 105 

Clinton v. Lyons (J.) and Co. Limited, [1912] 3 K. B. 198 ; 81 L. J. 

K. B. 923; 106L. T. 988; 28T. L. R. 462 195 

Clissold V. Cratchley, [1910] 2 K. B. 244 ; 79 L. J. K. B. 635 ; 102 

L. T. 520 ; 26 T. L. R. 409 ; 54 Sol. J. 442 [C. A.] 132 

Coaker v. Willcocks, [1911] 2 K. B. 124 ; 80 L. J, K. B. 1026 ; 104 

L. T. 769 ; 27 T. L. R. 357 [C. A.] 270 

Cobbettt;. Gray (1850), 4 Ex. 729; 19L. J. Ex. 137 254 

Cocke i;. Jennor( 1604), Hob. 66 46 

Cockroft v. Smith (1703), 11 Mod. Rep. 43 259 

Coggsw. Bernard (1703), 1 Sm. L. C. 173; 2 Ld. Raym. 909 ... 37, 

172, 173 
Coldrick v. Partridge, Jones & Co., Limited, [1910] A. C. 77 ; 79 . 

L. J. K. B. 173 ; 101 L. T. 835 ; 26 T. L. R. 164 ; 54 Sol. J. ' 

132 ; 47 Sc. L. R. 610 207 

Collard v. Marshall, [1892] 1 Ch. 571 ; 61 L. J. Ch. 268 ; 66 L. T. 

248 ; 40 W. R. 473 88 

Collis V. Laugher, [1894] 3 Ch. 659 ; 63 L. J. Ch. 851 ; 71 L. T., 

226 ; 43 W. R. 202 ; 8 R. 760 246 

Colls V. Home and Colonial Stores, Limited, [1904] A. C. 179 ; 

73 L. J. Ch. 484 ; 90 L. T. 687 ; 53 W. R. 30 ; 20 T. L. R. 475 : 

88, 245, 247 
Consett Industrial and Provident Society, Limited v. Consett i 

Iron Co., Limited, [1921] W. N. 161 ; 37 T. L. R. 676 ; 65 

Sol. J. 533 244 

Consolidated Co. v. Curtis & Son, [1892] 1 Q. B. 495 ; 56 J. P. 565 ; 

61 L. J. Q. B. 325 ; 40 W. R. 426 10,284 

Conway v. Wade, [1909] A. C. 506 ; 78 L. J. K. B. 1025 ; 101 L. T. 

248 ; 25 T. L. R. 779 ; 53 Sol. J. 754 10,150 

Cook V. Beal( 1697), Ld. Raym. 177 259 

V. North Metropolitan Tramways Co. (1887), 18 Q. B. D. 683 ; 

51 J. P. 630 ; 56 L. J. Q. B. 309 ; 56 L. T. 448 ; 57 L. T. 476 ; 

35W. R. 577 211 

Cooke V. Midland Great Western Rail. Co. of Ireland, [1909] A. C. 

229 ; [1909] 2 I. R. 499 ; 78 L. J. C. P. 76 ; 100 L. T. 626 ; 

25T. L. R. 375 176,181 

Cooke V. Wildes (1885), 5 E. & B. 328 ; 24 L. J. Q. B. 267 ; 3 W. R. 

'458; 3C. L. R. 1090; 1 Jur. (N..s.)610 122 

Cooper V. Booth (1785), 3 Esp. 135 ; 4 Dougl. 339 ; 1 T. R. 535 n. 133 

— V. Shepherd (1846), 3 C. B. 266 ; 15 L. J. C. P. 237 ; 4 1). & 

L. 214; 10 Jur. 758; 71 R. R. 349 289 

V. Willomatt (1845), 14 L. J. C. P. 219; 1 C. B. 672; 

9 Jur. 598 289,291 

Cope V. Sharpo, [1912] 1 K. B. 496 ; 81 L. J. K. B. .346 ; 106 L. T. 

56 ; 28 T. L. R. 1.57 ; .56 Sol. J. 187 [C. A.] 270 

Coroa V. Pciris, [1909] A. C. 549 ; 100 L. T. 790 ; 25 T. L. R. 631 136 
Comfoot V. Fowko (1840), 9 L. J. Ex. 297 ; 6 M. & W. 358 ; 4 Jur. 

919; 55 R. R. 655[(;. A.] 159 



xxxii Table of Cases Cited. 

PAGE 

Cornford v. Carlton Bank, [1899] 1 Q. B. 392 ; 68 L. J. Q. B. 196 ; 

80 L. T. 121 ; [1900] 1 Q. B. 22 ; 69 L. J. Q. B. 1020 ; 81 L. T. 

415 [C. A.] 45,137 

Costar V. Hotherington (1859), 28 L. J. M. C. 198 268 

Coughlin V. Gillison, [1899] 1 Q. B. 145 ; 68 L. J. Q. B. 147 ; 79 L. T. 

627 ; 47 W. R. 113 [C. A.] 37, 176 

Coulson i;. Coulson (1887), 3 T. L. R. 846 [C. A.] 88 

Coward v. Baddeley (1859), 28 L. J. Ex. 260 ; 4 H. & N. 478 ; 5 Jur. 

(N.s.) 414 ; 7 W. R. 466 255 

Cowles V. Potts (1865), 34 L. J. Q. B. 247 ; 11 Jur. (n.s.) 946; 

13W. R. 858 125 

Cowley V. Newmarket Local Board, [1892] A. C. 345 ; 56 J. P. 805 ; 

62L. J. Q. B. 65; 67 L. T. 486; 1 R. 45 29 

Coxu Burbidge (1863), 13 C. B. (n.s.) 430; 32 L. J. C. P. 89; 

11 W. R. 435; 9 Jur. (N.s.) 970 195,198 

V. Coulson, [1916] 2 K. B. 177 ; 85 L. J. K. B. 1081 ; 114 L. T. 

599 ; 32 T. L. R. 406 ; 60 Sol. J. 402 [C. A.] 9 

V. English, Scottish, and Australian Bank, [1905] A. C. 168 ; 

74 L. J. P. C. 62 ; 92 L. T. 483 134 

— V. Glue (1848), 5 C. B. 533 ; 17 L. J. C. P. 162 ; 12 Jur. 185... 273 

V. Lee (1869), L. R. 4 Ex. 284 ; 38 L. J. Ex. 219 ; 21 L. T. 

178 104, 105 

u. Mousley (1848), 5C. B. 533 273 

Coxhead v. Richards (1846), 2 C. B. 569 ; 15 L. J. C. P. 278 ; 10 Jur. 

987 ; 69 R. R. 530 125 

Creagh i;. Gamble (1888), 24 L. R. Ir. 458 265 

Cresswell v. Hedges (1862), 31 L. J. Ex. 497 ; 10 W. R. 777 ; 1 H. & 

C. 421 ; 8 Jur. (N.s.) 767 274 

Crosslcy & Sons, Limited v. Lightowler (1867), L. R. 2 Ch. 478 ; 

36 L. J. Ch. 584 ; 16 L. T. 438 ; 15 W. R. 801 233, 236, 249 

Crowhurst v. Amersham Burial Board (1878), 4 Ex. D. 5 ; 48 L. J. 

Ex. 109 ; 39 L. T. 355 ; 27 W. R. 95 190,194 

Crump V. Lambert (1867), L. R. 3 Eq. 409 ; 15 L. T. 600 ; 15 W. R. 

417 228 

Cubitt V. Porter (1828), 6 L. J. (o.s.) K. B. 306 ; 8 B. & C. 257 ; 

2 Man. & R. 267 ; 32 R. R. 374 274 

Cuenod v. Leslie, [1909] 1 K. B. 880 ; 78 L. J. K. B. 695 ; 100 L. T. 

675 ; 25 T. L. R. 374 ; 53 Sol. J. 340 [C. A.] 50 

D. 

Dakhyl v. Labouchere, (1907) [1908] 2 K. B. 325 n ; 77 L. J. K. B. 

728 ; 96 L. T. 399 ; 23 T. L. R. 364 119 

Dalton V. Angus (1881), 6 App. Cas. 740 ; 46 J. P. 132 ; 50 L. J. 

Q. B. 689 ; 44 L. T. 844 ; 30 W. R. 191 ... 66, 243, 244 
V. South-Eastern Rail Co. (1858), 4 C. B. (n.s.) 296; 

27 L. J. C. P. 227; 6 W.R. 574; 4 Jur. (N.s.) 711 72 

Daly V. Dublin, Wicklow, and Wexford Rail. Co. (1892), 30 L. R. Ir. 

514 [C. A.] 73 

Dand V. Sexton (1789), 3 T. R. 37 283 

Daniel v. Ferguson, [1891] 2 Ch. 27 ; 39 W. R. 599 [C. A.] ... 85 

Danube II, The, [1920] P. 104 ; 89 L. J. P. 126 ; 36 T. L. R. 321 97 
Darley Main Colliery Co. v. Mitchell (1886), 11 App. Cas. 127 ; 

51 J. P. 148 ; 55 L. J. Q. B. 529 ; 54 L. T. 882 ... 82, 92, 94 

Dauncey v. Holloway, [1901] 2 K. B. 441 ; 70 L. J. K. B. 695 ; 

84 L. T. 649 ; 49 W. R. 546 [C. A.] 110 



9 Table of Cases Cited. xxxiii 

PAGE 

Davey v. London and South Western Rail. Co. (1883), 12 Q. B. D. 
70 ; 48 J. P. 279 ; 53 L. J. Q. B. 58 ; 49 L. T. 739 

[C. A.] 183 

Davies v. Mann (1842), 12 L. J. Ex. 10 ; 10 M. & W. 546 ; 6 Jur. 

954 ; 62 R. R. 698 179,221 

V. Owen (Thomas) & Co., [1919] 2 K. B. 39 ; 83 J. P. 193 ; 

88 L. J. K. B. 887 ; 121 L. T. 156 ; 17 L. G. R. 

407 185 

V. Powell DufEryn Steam Coal Co., [1921] W. N. 161 ; 37 

T. L. R. 607 ; 65 Sol. J. 567 [C. A.] 241 

V. Snead (1870), L. R. 5 Q. B. 608 ; 39 L. J. Q. B. 202 ; 

23 L. T. 126 125 

V. Solomon (1871), L. R. 7 Q. B. 112 ; 41 L. J. Q. B. 10 ; 

25 L. T. 799 ; 20 W. R. 167 108 

V. Thomas, [1920] 2 Ch. 189 ; 84 J. P. 201 ; 89 L. J. Ch. 

338 ; 123 L. T. 456 ; 36 T. L. R. 571 ; 64 Sol. J. 

529 [C. A.] 11,152 

— V. Williams (1847), 10 Q. B. 725 ; 16 L. J. Q. B. 369 ; 11 Jur. 

750; 74 R. R. 491 144 

V. ■ (1851), 16 Q. B. 546 ; 20 L. J. Q. B. 330 ; 15 Jur. 

752 238 

Davis V. Bromley Corporation, [1908] 1 K. B. 170 ; 71 J. P. 513 ; 

77 L. J. K. B. 51 ; 97 L. T. 705 ; 24 T. L. R. 11 ; 

5 L. G. R. 1229 [C. A.] 30 

V. London and North Western Rail. Co. (1858), 7 W. R. 105 ; 

4 Jur. (N.s.) 1303 82 

V. Marrable, [1913] 2 Ch. 421 ; 82 L. J. Ch. 510 ; 109 L. T. 

33 ; 29 T. L. R. 617 ; 57 Sol. J. 702 247 

V. Russell (1829), 7 L. J. (o.s.) M. C. 52 ; 5 Bing. 354 ; 

2 M. & P. 590 ; 30 R. R. 637 265 

V. Shepstone (1886), 11 App. Cas. 187 ; 50 J. P. 709 ; 65 L. J. 



P. C. 51 ; 55 L. T. 1 ; 34 W. R. 722 128 

Dawkins v. Rokeby (Lord) (1875), L. R. 7 H. L. 744 ; 45 L. J. Q. B. 

8 ; 33 L. T. 196 ; 23 W. R. 931 121 

Dawson v. Bingley Urban District Council, [1911] 2 K. B. 149 ; 

75 J. P. 289 ; 80 L. J. K. B. 842 ; 104 L. T. 659 ; 27 T. L. R, 

308 ; 55 Sol. J. 346 ; 9 L. G. R. 502 [C. A.] 28 

Dean v. Peel (1804), 5 East, 45 ; 7 R. R. 653 ; 1 Smith, 333 ... 146 
De Crespigny v. Wellesley (1829), 7 L. J. (o.s.) C. P. 100 ; 5 Bing. 

392 ; 30 R. R. 665 ; 12 M. & P. 695 116 

Degg V. Midland Rail Co. (1857), 26 L. J. Ex. 171 ; 1 H. & N. 773 ; 

3 Jur. (N.s.) 395; 5 W. R. 364 209 

De Keyser's Royal Hotel, Limited v. Spicer Brothers, Limited, 

and Minter (1914), 30 T. L. R. 257 230, 232 

Dclaney v. Fox (18.57), 2 C. B. (n.s.) 768 ; 26 L. J. C. P. 248 ... 277 

Derry v. Handley (1867), 16 L. T. (n.s.) 263 108, 115 

V. Peek (1889), 14 App. Cas. 337 ; 54 J. P. 148 ; 58 L. J. 

Ch. 864 ; 61 L. T. 265 ; 38 W. R. 33 ; 1 Mag. 292 ... 158, 161 
Do Wahl V. Braunc (1856), 25 L. J. Ex. 343 ; 1 H. &. N. 178 ... 41 

/)mr!a, T/ie (1862), Lush. 541 39 

Dickinson v. North Eastern Rail. Co. (1863), 33 L. J. Ex. 91 

2 H. & C. 735 ; 9 L. T. 299 ; 12 W. R. 52 

Digby V. Pinancial New.s, Limited, [1907] 1 K. B. 502 ; 76 L. J 

K. B. .'521 ; 90 L. T. 172; 23T. L. R. 117 [C. A.] 118 

V. Thompson (1833), 2 L. J. K. B. 140 ; 4 B. & Ad. 821 

1 N. & M. 485 ; 38 R, R. 378 '. 102 



xxxiv Table of Cases Cited. 

PAOE 

Dillon V. Balfour (1887), 20 L. R. Ir. 600 120 

Dimes v. Petloy (1850), 15 Q. B. 276 ; 19 L. J. Q. B. 449 ; 14 Jiir. 

1132 221 

Dixon V. Bell (1816), 5 M. & S. 198 ; 1 Stark. 287 ; 17 11. R. 308... 80, 

172, 175 

t;. Smith (1860), 5 H. & N. 450 ; 29 L. J. Ex. 125 108 

Dobell V. Stevens (1825), 3 L. J. (o.s.) K. B. 89 ; 3 B. & C. 623 ; 

5 D. & R. 490 ; 27 R. R. 441 159 

Dobson V. Horsley, [1915] 1 K. B. 634 ; 84 L. J. K. B. 399 ; 112 

L. T. 101 ; 31 T. L. R. 12 [C. A.] 169 

Doe (i. Carter t;. Barnard (1849), 13 Q. B. 945' 276 

d. Johnson v. Baytup (1835), 4 L. J. (n.s.) K. B. 263 ; 3 A. & 

E. 188 ; 4 M. & N. 837 ; 1 H. & W. 270 ; 42 R. R. 

359 ... ... ... ... ... ... ... ... 277 

- cZ. Knight v."Smythe(18i5), 4 M.'& 8.347 ..'. '.'.. ... 277 

d. Marriott v. Edwards (1834), 5 B. & Ad. 1065 ; 6 Car. & R. 

208 ; 3 N. & M. 193 277 

d. Oliver v. Powell (1834), 1 A. & E. 531 ; 3 H. &. M. 

616 277 

d. Smith V. Webber (1834), 3 L. .T. (n.s.) K. B. 148 ; 1 A. & E. 

119 ; 3 H. & N. 746 ; 40 R. R. 268 276 

Dominion Natural Gas Co. v. Collins and Perkins, [1909] A. ('. 

640 ; 101 L. T. 359 ; 25 T. L. R. 831 36, 174 

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

14 L. T. 772 ; 15 W. R. 13 ; 12 Jur. (n.s.) 795 ; 7 B. & S. 

783 290 

Donovan v. Laing, Wharton and Down Construction Syndicate, 

[1893] 1 Q. B. 629 ; 57 J. P. 583 ; 63 L. J. Q. B. 25 ; 68 L. T. 

512 ; 41 W. R. 4.55 ; 4 R. 317 [C. A.] 54, 57 

Doorman v. Jenkins (1834), 2 A. & E. 256 ; 4 N. & M. 170 : 4 L. J. 

K. B. 29 ; 41 R. R. 429 37,164 

Doswellt^. Impey (1823), 1 B. &C. 169 17 

Dovaston v. Payne (1795), 2 H. Bl. 527; 2 Sm. L. C. 160; 

3R. R. 497 270 

Dovey v. Corey, [1901] A. C. 477 ; 70 L. J. Ch. 753 ; 85 L. T. 257 ; 

50 W. R.65 ; 17 T. L. R. 732 ; 8 Manson, 346 162 

Doyley v. Roberts (1837), 3 Bing. N. C. 835 ; 5 Scott, 40 ; 3 Hodg. 

154 ; 6 L. J. C. P. 279 Ill 

Dublin, Wicklow and Wexford Rail. Co. v. Slattery (1878), 3 App. 

Cas. 1155 ; 39 L. T. 365 ; 27 W. R. 191 ... 165,166,182 

Duck V. Mayeu, [1892] 2 Q. B. 511 ; 57 J. P. 23 ; 62 L. J. 

Q. B. 69; 67 L. T. 547; 41 W. R. 56 ; 4 R. 38 

[C. A.] 46 

Dulieu V. White & Sons, [1901] 2 K. B. 669 ; 70 L. J. K. B. 837 ; 

85 L. T. 126 ; 50 W. R. 76 79 

Dunster v. Hollis, [1918] 2 K. B. 795 168, 224 

Dyer v. Mundav, [189.5] 1 Q. B. 742 ; 59 J. P. 276 : 64 L. J. Q. B. 

448 ; 72 LI T. 448 : 43 W. R. 440 ; 14 R. 306 [C. A.] ... 60 



E. 

Eager v. Grimwood (1847), 16 L. J. Ex. 236 ; 1 Ex. 61 ; 74 R. R. 

584 148 

Earl V. Lubbook, [1905] 1 K. B. 253 ; 74 L. J. K. B. 121 ; 53 W. R. 

145 [C. A] 36 



Table of Cases Cited. xxxv 

PAGE 

Earle i;. Kingscote, [1900] 1 Ch. 203 ... 49 

East London HarUour Board v. Caledonia Landing, Shipping and 

Salvage Co., Limited, [1908] A. C. 271 ; 77 L. J. C. P. Ill ; 

98 L. T. 682 ; 24 T. L. R. 516 55 

Eastern and South African Telegraph Co. v. Cape Town Tram- 
ways Co., [1902] A. C. 381 ; 71 L. J. P. C. 122 ; 86 L. T. 457 ; 

50W. R. 657 190 

Eastern Construction Co., Limited v. National Trust Co., Limited, 

[1914] A. C. 197 ; 83 L. J. P. C. 122 ; 110 L. T. 321 ... 53, 289, 291 

Eastwood V. Holmes (1858), 1 F. & E. 347 112 

Eaton V. Johns (1842), 1 Dowl. (n.s.) 602 104 

Edge (William) & Sons, Limited v. NiccoUs (William) & Sons, 

Limited, [1911] A. C. 693 ; 80 L. J. Ch. 745 ; 105 L. T. 459 ; 

27 T. L. R. 555 ; 65 Sol. J. 737 ; 28 R. P. C. 582 154 

Edgington v. Fitzmaurice (1885), 29 Ch. D. 459 ; 50 J. P. 52 ; 

55 L. J. Ch. 650 ; 53 L. T. 369 ; 33 W. R. 911 [C. A.] ... 158 

Edmondson v. Birch & Co., Limited, and Homer, [1907] 1 K. B. 

371 ; 76 L. J. K. B. 346 ; 96 L. T. 413 ; 23 T. L. R. 234 ; 

[C. A.] 114,127 

Edwards v. Midland Rail. Co. (1880), 6 Q. B. D. 287 ; 45 J. P. 374 ; 

50 L. J. Q. B. 281 ; 43 L. T. 694 ; 29 W. R. 609 45 

Elliott V. Roberts (C. P.) & Co., Limited, [1916] 2 K. B. 518 ; 

85 L. J. K. B. 1689 ; 115 L. T. 265 ; 32 T. L. R. 478 ; 14 

L. G. R. 942 [C. A.] 167 

Ellis V. Loftus Iron Co. (1874), L. R. 10 C. P. 10 ; 44 L. J. C. P. 24 ; 

31 L. T. 483 ; 23 W. R. 246 199, 269 

V. Sheffield Gas Consumers Co. (1853), 2 El. & Bl. 767 ; 23 L. J. 

Q. B. 42 ; 24 W. R. 19 ; 2 C. L. R. 249 ; 18 Jur. 146 62, 65 

Elwood V. Bullock (1844), 6 Q. B. 383 ; 13 L. J. Q. B. 330 ; 8 Jur. 

1044 220 

Embrey v. Owen (1851), 20 L. J. Ex. 212 ; 6 Ex. 353 ; 15 Jur. 633 : 

248, 249 
Emmens v. Pottle (1885), 16 Q. B. D. 354 ; 50 J. P. 228 ; 55 L. J. 

Q. B. 51 ; 53 L. T. 808 ; 34 W. R. 116 [C. A.] ... 44, 114, 116 

Encelhart v. Farrant & Co., [1897] 1 Q. B. 240 ; 66 L. J. Q. B. 122 ; 

75 L. T. 617 ; 45 W. R. 179 [C. A.] 14, 60, 61, 181 

Entickv. Carrington (1765), 19St. Tr. 1066 4,7 

Evans v. Harries (1856), 26 L. J. Ex. 31 ; 1 H. & N. 251 ... 108 
V. Walton (1867), L. R. 2 C. P. 615 ; 36 L. J. C. P. 307 ; 

17 L. T. 92 ; 15 W. R. 1062 144 

Everyz;. Smith (1857), 26 L.J. Ex. 344 • 273 

Ewing V. Buttercup Margarine Co., [1917] 2 Ch. 1 ; 86 L. J. Ch. 

441 ; 117 L. T. 67 ; 33 T. L. R. 321 ; 61 Sol. J. 443 ; 34 R. P. C. 

232 [C. A.] 154 



F. 

Faldo V. Ridge (1604), Yelv. 74 270 

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

31 L. T. 677 ; 23 VV. R. 162 75 

Fcnna v. Clare & Co., [1895] 1 Q. B. 199 ; 64 L. J. Q. B. 238 ; 

15 R. 220 219 

Fcnton v. Thorlev & Co., Limited, [1903] A. C. 443 ; 72 L. J. K. B. 

787 ; 89 L. t. 314 ; r,-2 W. U. HI ; I!) T. L. \i. 684 214 



xxxvi Table of Cases Cited. 

PAGE 

Fenwick v. East London Rail. Co. (1875), L R. 20 Eq. 544 ; 44 L. J. 

Ch. 602 ; 2.3 W. R. 901 87 

Filburn v. People's Palace and Aquarium Co. (1890), 25 Q. B. D. 

258 ; 55 J. P. 181 ; 59 L. J. Q. B. 471 ; 38 W. R. 706 [C. A.]... 194, 

195, 197 
Filliter v. Phippard (1847), 11 Q. B. 347 ; 17 L. J. Q. B. 89 ; 12 Jur. 

202 199 

Findon v. Parker (1843), 11 M. & W. 675 140 

Firth V. Bowling Iron Co. (1878), 3 C. P. D. 254 ; 47 L. J. C. P. 

358 ; 38 L. T. 568 ; 26 W. R. 558 190 

Fisher v. Prowse (1862), 2 B. & S. 770 ; 31 L. J. Q. B. 212 ; 6 L. T. 

711 ; 8 Jur. (N.s.) 1208 220 

Fitzgerald v. Clarke (W. G.) & Son, [1908] 2 K. B. 796 ; 77 L. J. 

K. B. 1018 ; 99 L. T. 101 [C. A.] 214 

Fitzjohn v. Mackinder (1861), 9 C. B. (n. s.) 505 ; 30 L. J. C. P. 257 ; 

4 L. T. 149 ; 9 W. R. 477 ; 7 Jur. (N. s.) 1283 132 

Fletcher v. Rylands (1866), L. R. 1 Ex. 265 ; affirmed sub nom. 
Rylands v. Fletcher (1868), L. R. 3 H. L. 330; 
37 L. J. Ex. 161 ; 19 L. T. 220 ... 189, 190, 191, 196 
~ V. Smith (1877), 2 App. Cas. 781 ; 47 L. J. Ex. 4 ; 37 L. T. 

367; 26 W. R. 83 193 

Flight V. Thomas (1840), 10 L. J. Ex. 529 ; 11 A. & E. 688 ; 3 P. & 

D. 442; 8 CI. &F. 231 ; 52 R. R. 468; 5 Jur. 811 ... 246 

Foreman v. Canterbury Corporation (1871), L. R. 6 Q. B. 214 ; 

40 L. J. Q. B. 138 ; 24 L. T. 385 ; 19 W. R. 719 31 

Fores i;. Wilson (1791), 1 Peake, 55; 3 R. R. 652 145 

Foster v. Warblington Urban Council, [1906] 1 K. B. 648 ; 70 J. P. 

233 ; 75 L. J. K. B. 514 ; 94 L. T. 876 ; 54 W. R. 575 ; 

22 T. L. R. 421 ; 4 L. G. R. 735 [C. A.] 190 

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

16L. T. 595; 15W. R. 1181 107 

Fowler v. Hollins (1872), L. R. 7 Q. B. 616 ; 41 L. J. Q. B. 277 ; 

27 L. T. 168 ; 20 W. R. 868 284 

France v. Gaudct (1871), L. R. 6 Q. B. 199 ; 40 L. J. Q. B. 121 ; 

19W. R. 622 77 

Francis v. Cockrell (1870), L. R. 5 C. P. 184 171 

Franklin v. South Eastern Rail. Co. (1858), 6 W. R. 573 ; 3 H. & N. 

211; 4 Jur. (n.s.) 565 72 

Eraser v. Fear, [1912] W. N. 227 ; 107 L. T. 423 ; 57 Sol. J. 29 

[C. A.] 27 

Fritz V. Hobson (1880), 14 Ch. D. 542 ; 49 L. J. Ch. 735 ; 42 L. T. 

677 ; 28 W. R. 722 6,221 

Fryer v. Kinnersley (1863), 15 C. B. (n.s.) 422 ; 33 L. J. C. P. 96 ; 

9 L. T. 415; 12 W. R. 155; 10 Jur. (N.s.) 441 125 

Fulton V. Norton, [1908] A. C. 451 ; 99 L. T. 455 ; 24 T. L. R. 

794 28 



G. 

Gallwey v. Marshall (1853), 23 L. J. Ex. 78 ; 9 Ex. 295 ; 2 C. L. R. 

399;2W. R. 106 110 

Gandy v. Jubber (1864), 5 B. & S. 78 ; 33 L. J. Q. B. 151 ; 9 L. T. 

800 ; 12 W. R. 526 ; 10 Jur. (N.s.) 652 222,223 



Table of Cases Cited. xxxvii 

PAGE 

Gane v. Norton Hill Colliery Co., [1909] 2 K. B. 539 ; 78 L. J. K. B. 

921 ; 100 L. T. 979 ; 25 T. L. R. 640 [C. A.] 215 

Ganley v. Ledwidge (1884), 14 L. R. Ir. 31 [C. A.] 285 

Gardener v. Slade (1849), 13 Q. B. 796 ; 18 L. J. Q. B. 334 ; 13 Jur. 

826 125 

Gardner v. Hodgson's Kingston Brewery Co., [1903] A. C. 229 ; 72 

L. J. Ch. 558 ; 88 L. T. 698 ; 52 W. R. 17 ; 19 T. L. R. 458 235, 236 

Garret ?;. Tavlor( 1620), Cro. Jac. 567 151 

Gautret v. Egerton (1867), L. R. 2 C. P. 371 ; 36 L. J. C. P. 191 ; 

16 L. T. 17 : 15 W. R. 638 168,170,171 

Geddis v. Bann Reservoir (Proprietors) (1878), 3 App. Cas. 430 21, 31 

Gee u. Pritchard (1818), 2 Swan. 402 ; 19 R. R. 87 88 

Geipel v. Peach, [1917] 2 Ch. 108 ; 86 L. J. Ch. 745 ; 117 L. T. 84 ; 

61Sol. J. 460 162 

George and Richard, The (1871), L. R. 3 Ad. & Ec. 466 ; 24 L. T. 

717 42, 71, 185 

George v. Skivington (1869), L. R. 5 Ex. 1 ; 39 L. J. Ex. 8 ; 21 L. T. 

495; 18 W. R. 118 35,175 

Gibbs V. Guild (1882), 9 Q. B. D. 59 ; 51 L. J. Q. B. 313 ; 46 L. T. 

248 ; 30 W. R. 591 92 

Gibraltar Sanitary Commissioners v. Orfila (1890), 15 App. Cas. 

400 ; 59 L. J. P. C. 95 ; 63 L. T. 58 30 

Giles V. Walker (1890), 24 Q. B. D. 656 ; 54 J. P. 599 ; 59 L. J. 

Q. B. 416 ; 62 L. T. 933 ; 38 W. R. 782 194 

Gilpin V. Fowler (1854), 9 Ex. 615 ; 23 L. J. Ex. 152 ; 2 W. R. 272 ; 

18 Jur. 292 126 

Gladwell v. Steggall (1839), 5 Ring. N. C. 733 35, 164, 165 

Glasgow Corporation v. Lorimer, [1911] A. C. 209 ; 104 L. T. 354 ; 

55 Sol. J. 363 ; 48 Sc. L. R. 399 60 

Glasier V. Rolls (1889), 62 L. T. 133 [C. A.] 158 

Glyn V. Howell. [1909] 1 Ch. 666 ; 78 L. J. Ch. 391 ; 100 L. T. 324 ; 

53Sol. J. 269 272 

Glyn, Mills & Co. v. East and West India Docks Co. (1882), 7 App. 

Cas. 591 ; 52 L. J. Q. B. 146 ; 47 L. T. 309 ; 31 W. R. 201... 284 
Godefroy v. Dalton (1830), 8 L. J. (o.s.) C. P. 79 ; 6 Ring. 460 ; 

4 M. & P. 149 ; 31 R. R. 467 165 

GofE V. Great Northern Rail. Co. (1861), 3 El. & El. 672 ; 30 L. J. 

Q. B. 148 : 3 L. T. 850 ; 7 Jur. (N.s.) 286 "... 58 

Goffin V. Donnelly (1881), 6 Q. B. D. 307 ; 45 J. P. 439 ; 50 L. J. 

Q. B. 303 ; 44 L. T. 141 ; 29 W. R. 440 120 

Goodtitlev. Alker (1757), 1 Burr. 133; 1 Ld. Ken. 427 273 

Goodw^Ti V. Cheyeley (1859), 28 L. J. Ex. 298 ; 4 H. & N. 631 ; 

7W. R. 631 198 

Gorris v. Scott (1874), L. R. 9 Ex. 125 ; 43 L. J. Ex. 92 ; 30 L. T. 

431 ; 22 W. R. 575 29 

Grainger v. Hill (1838), 7 L. J. C. P. 85 ; 4 Ring. N. C. 212 ; 

5 Scott, .561 ... • 257 

Grand Trunk Railway of Canada v. Bamett, [1911] A. C. 361 ; 

104 L. T. 362 ; 27 T. L. R. 359 166,167 

Grand Trunk Rail. Co. of Canada v. Jennings (1888), 13 Ajip. Cas. 

800 ; 58 L. J. P. C. 1 ; 59 L. T. 679 : 37 W. R. 403 72 

Green v. Duckctt (1883), 11 Q. B. D. 275 ; 47 J. P. 487 ; 52 L. J. 

Q. B. 435 ; 48 L. T. 677 ; 31 W. R. 607 275 

Greenock Corporation v. Caledonian Rail. Co., Greenock Cor- 
poration V. Glasgow and South Western Rail. Co., [1917] 
A. C. 556 ; 81 J. P. 269 ; 86 L. J. P. C. 185 ; 117 L. T. 483 ; 





269 




81 


L. t! 






78 


172; 






105 


264, 


265 


291 ; 






76 




130 


l B.' 




71, 


211 


35; 





xxxviii Table of Cases Cited. 



33 T. L. R. 531 ; 62 Sol. J. 8 ; 54 Sc. L. R. 600 ; 15 L. G. R. 

749 191 

Greenslado v. Halliday (1830), 8 L. J. (o.s.) C. P. 124 ; 6 Bing. 379 ; 

4 Moo. & P. 71 ; 53 R. R. 241 236 

Gregory v. Piper (1829), 9 B. &. C. 591 ; 4 Man. & R. 500 ; 33 R. R. 

268 

V. Williams (1844), 1 C. & K. 568 

Greta Holme, The, [1897] A. C. 596 ; 66 L. J. Adm. 166 ; 77 

23; 8 Asp. M. C. 317 

Greville v. Chapman (1844), 5 Q. B. 731 ; 13 L. J. Q. B. 

D. & M. 553 ; 8 Jur. 189 

Griffin v. Coleman (1859), 28 L. J. Ex. 134 ; 4 H. & N. 265 
Griffith V. Clay (Richard) & Sons, Limited, [1912] 2 Ch. 

81 L. J. Ch. 809 ; 106 L. T. 963 [C. A.] 

Griffiths V. Benn (1911), 27 T. L. R. 346 [C. A.] 

V. Dudley (Earl) (1882), 9 Q. B. D. 357 ; 51 L. J. Q 

543 ; 47 L. T. 10 ; 30 W. R. 797 

V. Teetgen (1854), 15 C. B. 344 ; 24 L. J. C. P. 

3 W. R. 11 ; IJur. (N.s.)426 146 

Grinham v. Willey (1859), 28 L. J. Ex. 242; 4 H. & N. 49^; 

7 W. R. 463; 5 Jur. (N.s.)444 ... 262 

Groves v. Wimbome (Lord), [1898] 2 Q. B. 402 ; 67 L. J. Q. B. 

862 ; 79 L. T. 284 ; 47 W. R. 87 ; 14 T. L. R. 493 [C. A.] ... 28, 

205, 208 
Gwilliam v. Twist, [1895] 2 Q. B. 84 ; 59 J. P. 484 ; 64 L. J. Q. B. 

474 ; 72 L. T. 579 ; 43 W. R. 566 ; 14 R. 461 [C. A.] ... 61 

Gwinnell v. Earner (1875), L. R. 10 C. P. 658 ; 32 L. T. 835 222, 224 



H. 

Haddrick v. Heslop (1848), 12 Q. B. 267 ; 17 L. J. Q. B. 313 ; 

12 Jur. 600 136 

Hadwell v. Righton, [1907] 2 K. B. 345 ; 71 J. P. 499 ; 76 L. J. 

K. B. 891 ; 97 L. T. 133 ; 23 T. L. R. 548 ; 5 L. G. R. 881 13, 198 
Haggard v. Pelicier Freres, [1892] A. C. 61 ; 61 L. J. P. C. 19 ; 

65L. T. 769 19 

Halestrap i\ Gregory, [1895] 1 Q. B. 561 ; 64 L. J. Q. B. 415 ; 

72 L. T. 292 ; 43 W. R. 507 ; 15 R. 306 182 

Halliday v. Holgate (1868), L. R. 3 Ex. 299 ; 37 L. J. Ex. 174 ; 

18 L. T. 656 ; 17 W. R. 13 290 

Halsey v. Brotherhood (1881), 19 Ch. D. 386 ; 51 L. J. Ch. 233 ; 

45 L. T. 640 ; 30 W. R. 279 [C. A.] 130 

Hamilton v. Long, [1903] 2 I. R. 407 ; affirmed [1905] 2 I. R. 552 

[C. A.] 145 

Hamlyn v. Houston, [1903] 1 K. B. 81 ; 72 L. J. K. B. 72 ; 87 L. T. 

500 ; 19 T. L. R. 66 [C. A.] 51 

Hammack v. White (1862), 11 C. B. (n. s.) 588 ; 31 L. J. C. P. 129 ; 

5 L. T. 676 ; 8 Jur. (n.s.) 796 ; 10 W. R. 230 165 

Hammersmith, etc. Rail. Co. v. Brand (1869), L. R. 4. H. L. 171 ; 

38 L. J. Q. B. 265 ; 21 L. T. 238 ; 18 W. R. 12 21,22 

Hanbury i;. Hanbury (1892), 8T. L. R. 559 [C. A.] 44 

Hancock v. Somes (1859), 1 E. & E. 795; 28 L. J. M. C. 196 ; 

7 W. R. 422 ; 5 Jur. (N.s.) 983 ; 8 Cox C. C. 172 268 

Hannam v. Mockett (1824), 2 L. J. (o.s.) K. B. 183 ; 2B. &C.934; 

4 D. & R. 518 ; 26 R. R. 591 275 



Table of Cases Cited. xxxix 

PAGE 

Hardaker v. Idle District Council, [1896] 1 Q. B. 335 ; 60 J. P. 196 ; 

65 L. J. Q. B. 363 ; 74 L. T. 69 ; 44 W. R. 323 [C. A.] ... 65 
Hardy v. Central London Rail. Co., [1920] 3 K. B. 459 ; 89 L. J. 

K. B. 1187 ; 124 L. T. 136 ; 36 T. L. R. 843 ; 64 Sol. J. 683 

[C. A.] 172,177 

Hardy v. Ryle (1829), 7 L. J. (o.s.) M. C. 118 ; 9 B. & C. 603 ; 

4M. &R. 295 , ... 95 

Hargreave v. Spink, [1892] 1 Q. B. 25 ; 61 L. J. Q. B. 318 ; 65 L. T. 

650 ; 40 W. R. 254 285 

Hargroves, Aronson & Co. v. Hartopp, [1905] 1 K. B. 472 ; 74 L.J. 

K. B. 233 ; 53 W. R. 262 ; 21 T. L. R. 226 169 

Harrington (Earl) v. Derby Corporation, [1905] 1 Ch. 205 ; 69 J. P. 

62 ; 74 L. J. Ch. 219 ; 92 L. T. 153 88, 97 

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

55 L. T. 14 ; 34 W. R. 729 [C. A.] 140 

I,. Butler (1837), 6 L. J. Ex. 133 ; 2 M. & W. 542 ; M. & H. 

117 ; 1 Jur. 608 ; 46 R. R. 695 144 

V. James (1876), 45 L. J. Q. B. 545 ; 35 L. T. 240 ... 222 

V. Mobbs (1878), 3 Ex. D. 268 ; 39 L. T. 164 ; 27 W. R. 

154 13 

V. Perry & Co., [1903] 2 K. B. 219 ; 72 L. J. K. B. 725 ; 

89 L. T. 174 [C. A.] 37,166,167 

Harrison v. Rutland (Duke), [1893] 1 Q. B. 142 ; 57 J. P. 278 ; 

62 L. J. Q. B. 117 ; 68 L. T. 35 ; 41 W. R. 322 ; 

4R. 155[C. A.] 270 

V. Southwark and Vauxhall Water Co., [1891] 2 Ch. 409 ; 

60 L. J. Ch. 630 : 64 L. T. 864 
Thomborough (1712), 10 Mod. Rep. 196 





87 




112 


B. 771 ; 




181, 


219 


114 L. T. 





Harrold v. Watney, [1898] 2 Q. B. 320 ; 67 L. J. Q. 

78 L. T. 788 , 46 W. R. 642 [C. A.] 

Hart V. Rogers, [1916] 1 K. B. 646 ; 85 L. J. K. B. 273 ; 

329 ; 32 T. L. R. 150 224 

V. Wall (1877), 2 C. P. D. 146 ; 46 L. J. C. P. 227 ; 25 W. R. 

373 113 

Hartley v. Hindmarsh (1866), L. R. 1 C. P. 553 ; 35 L. J. M. C. 

255 ; 14 L. T. 795 ; 14 W. R. 862 ; 1 H. & R. 637 ; 12 Jur. 

(N.s.)502 268 

Harvey t;. Mayne (1872), 6 Ir. C. L. 417 257,260 

Hastmgs Corporation v. Ivall (1874), L.R. 19 Eq. 558 ; 22 W.R. 724 : 272 
Hatchard v. Mege (1887), 18 Q. B. D. 771 ; 51 J. P. 277 ; 56 L. J. 

Q. B. 397 ; 56 L. T. 662 ; 35 W. R. 576 68 

Haycroft V. Creasy (1801), 2 East, 92 ; 6 R. R. 380 44 

Hayward v. Drury Lane Theatre, Limited, and Moss Empires, 

Limited, [1917] 2 K. B. 899 ; 87 L. J. K. B. 18 ; 117 L. T. 523 ; 

33 T. L. R. 557 ; 61 Sol. J. 665 [C. A.] 209 

Head V. Briscoe (1833), 5 C. & P. 484; 38 R. R. 841 50 

Heasmer V. Pickfords, Limited (1920), 36 T. L. R. 818 204 

Heath's Garage, Limited v. Hodges, [1916] 2 K. B. 370 ; 80 J. P. 321 ; 

85 L. J. K. B. 1289 ; 115 L. T. 129 ; 32 T. L. R. 570 ; 60 

Sol. J. 554 ; 14 L. G. R. 911 [C. A.] 29 

Heaven v. Pender (1883), 11 Q. B. D. 503 ; 47 J. P. 709 ; 52 L. J. 

Q. B. 702 ; 49 L. T. 357 [C. A.] 164, 165, 174, 176 

Hebditch v. Macllwainc, [1894] 2 Q. B. 54 ; 58 J. P. 620 ; 63 L. J. 

Q. B. 587 ; 70 L. T. 826 ; 42 W. R. 422 ; 9 R. 452 126 

Hedges V. Tagg (1872), L. R. 7 Ex. 283 ; 41 L. J. Ex. 169 ; 20 W. R. 

976 144, 145 



xl Table of Cases Cited. 

PAGE 

Hedley v. Pinkney & Sons Steamship Co., [1892] 1 Q. B. 58 ; 

56 J. P. 308 ; 61 L. J. Q. B. 179 ; 66 L. T. 71 ; 40 W. R. 113 ; 

7 Asp. M. C. 135 [C. A.] 206 

Hellwig V. Mitchell, [1910] 1 K. B. 609 ; 79 L. J. K. B. 270 ; 

102 L. T. 110; 26T. L. R. 244 107,109 

Heming v. Power (1842), 10 M. & W. 564 ; 6 Jur. 858 ; 62 R. R. 705 109 
Hemmings v. Stoke Poges Golf Club, [1920] 1 K. B. 720 ; 89 

L. J. K. B. 744 ; 122 L. T. 479 ; 36 T. L. R. 77 ; 64 Sol. J. 

131 fC A.] ... ... ... ... ... ... .., 259 271 

Henderson v. Preston (1888), 21 Q. B. D. 362 ; 52 J. P. 820 ; ' 

57 L. J. Q. B. 607 ; 36 W. R. 834 [C. A.] 20 

Henderson & Co. v. Williams, [1895] 1 Q. B. 521 ; 64 L. J. Q. B. 

308 ; 72 L. T. 98 ; 43 W. R. 274 [C. A.] 77 

Hermann Loog v. Bean (1884), 26 Ch. D. 306 ; 48 J. P. 708 ; 

53 L. J. Ch. 1128 ; 51 L. T. 442 ; 32 W. R. 994 [C. A.] ... 88 
Heslop V. Chapman (1853), 23 L. J. Q. B. 49 ; 18 Jur. 348 ; 2 W. R. 

74 134 

Hetherington v. North Eastern Rail Co. (1882), 9 Q. B. D. 160 ; 

51 L. J. Q. B. 495 ; 30 W. R. 797 72 

Hewlett t;. Cruchley (1813), 5 Taunt. 283 135 

Hickman v. Maisey, [1900] 1 Q. B. 752 ; 69 L. J. Q. B. 511 ; 

82 L. T. 321 ;'48 W. R. 385 [C. A.] 270 

Hicks V. Faulkner (1882), 8 Q. B. D. 167 ; 51 L. J. Q. B. 268 ; 

30W. R. 545 134,137 

Higgins V. Searle (1909), 73 J. P. 185 ; 100 L. T. 280 ; 25 T. L. R. 

301 ; 7 L. G. R. 640 [C. A.] 198 

Hillyer v. St. Bartholomew's Hospital (Governors), [1909] 2 K. B. 
"820 ; 78 L. J. K. B. 958 ; 101 L. T. 368 ; 25 T. L. R. 762 ; 

53 Sol. J. 714 ; sub nom. Hillyer v. London Corporation, 

73 J. P. 501 [C. A.] 55 

Hinton v. Heather (1845), 15 L. J. Ex. 39 ; 14 M. & W. 131 ... 136 
Hirst V. West Riding Union Banking Co., [1901] 2 K. B. 560 ; 

70 L. J. K. B. 828 ; 85 L. T. 3 ; 49 W. B. 715 ; 17 T. L. R. 

629 [C. A.] 160 

Hodges V. Webb, [1920] 2 Ch. 70 ; 89 L. J. Ch. 273 ; 123 L. T. 80 ; 

36T. L. R. 311 10,150 

Hodgson V. Sidney (1866), L. R. 1 Ex. 313 ; 35 L. J. Ex. 182 ; 

14L.T. 624ri4W. R. 923; 4H. &C.492; 12 Jur. (n.s.) 694... 69 
Hodson V. Pare, [1899] 1 Q. B. 455 ; 68 L. J. Q. B. 309 ; 80 L. T. 

13 ; 47 W. R. 241 [C. A.] 121 

Hogg V. Ward (1858), 27 L. J. Ex. 443 ; 6 W. R. 595 ; 3 H. & N. 

417 ; 4 Jur. (N.s.) 885 265 

Holden v. Thompson, [1907] 2 K. B. 489 ; 78 L. J. K. B. 889 ; 

97 L. T. 138 ; 23 T. L. R. 529 140 

Hole V. Barlow (1858), 4 C. B. (n.s.) 334 ; 27 L. J. C. P. 207 ; 

6 W. R. 619 ; 4 Jur. (N.s.) 1019 232 

V. Sittingboume and Sheerness Rail. Co. (1861), 6 H. & N. 

488 ; 30 L. J. Ex. 81 ; 3 L. T. 750 ; 9 W. R. 274 62, 65 

Holleran v. Bagnell (1879), 4 L. R. Ir. 740 70 

Hollidav V. National Telephone Co., [1899] 2 Q. B. 392 ; 68 L. J. 

Q. B. 1016 ; 81 L. T. 252 ; 47 W. R. 658 ; 15 T. L. R. 483 

[C. A.] 63, 64, 65, 66 

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

33 L. T. 73 7,283,284 

Holmes v. Mather (1875), L. R. 10 Ex. 261 ; 44 L. J. Ex. 176 ; 

33 L. T. 361 ; 23 W. R. 364 256 



Table of Cases Cited. xli 

PAGE 

Holt V. Scholefield (1796), 6 T. R. G91 ; 3 R. R. 318 109 

Rope V. Evered (1886), 17 Q. B. D. 338 ; 55 L. J. M. C. 146 ; 

55L. T. 320; 34 W. R. 742 ; 16Cox C. C. 112 ... 133 

— V. Osborne, [1913] 2 Ch. 349 ; 77 J. P. 317 ; 82 L. J. Ch. 

457 ; 109 L. T. 41 ; 29 T. L. R. 606 ; 57 Sol. J. 702 ; 11 L. G. R. 

825 221 

Horsfall v. Thomas (1862), 1 H. & C. 90 ; 31 L. J. Ex. 322 ; 6 L. T. 

462 ; 8 Jur. (n.s.) 721 ; 10 W. R. 650 157, 159 

Horwood V. Smith (1788), 2 T. R. 750 ; 2 Leach C. C. 586 n. ; 

1 R. R. 613 285 

Houghton V. Pilkington, [1912] 3 K. B. 308 ; 82 L. J. K. B. 75 ; 

107 L. T. 235 ; 28 T. L. R. 492 ; 56 Sol. J. 633 55 

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

598 17,19 

Hounsell v. Smyth (1860), 7 C. B. (n.s.) 731 ; 29 L. J. C. P. 203 ; 

1 L. T. 440 ; 8 W. R. 277 ; 6 Jur. (n.s.) 897 219 

Howe V. Oliver (1908), 24 T. L. R. 781 ; 52 Sol. J. 684 46 

Howley Park Coal and Cannel Co. ii London and North Western 

Rail. Co., [1913] A. C. 11 ; 82 L. J. Ch. 76 ; 107 L. T. 625 ; 

29 T. L. R. 35 ; 57 Sol. J. 42 ; 50 Sc. L. R. 638 ... 240,242 

Hubbuck & Sons v. Wilkinson. Heywood and Clark, [1899] 1 Q. B. 

86; 68 L. J. Q. B. 34; 79L.T. 429[C. A.] 130 

Hudson V. Roberts (1851), 6 Ex. 697 ; 20 L. J. Ex. 299 ... 195, 197 
Huffer V. Allen (1866), L. R. 2 Ex. 15 ; 36 L. J. Ex. 17 ; 15 L. T. 

225 ; 15 W. R. 281 ; 4 H. & C. 634 ; 12 Jur. (N.s.) 930 ... 138 
Huggett V. Miers, [1908] 2 K. B. 278 ; 77 L. J. K. B. 710 ; 99 L. T. 

326 ; 24 T. L. R. 582 ; 52 Sol. J. 481 [C. A.] 169,224 

Hughes V. Percival (1883), 8 App. Cas. 443 ; 47 J. P. 772 ; 52 L. J. 

Q. B. 719 ; 49 L. T. 189 ; 31 W. R. 725 63,66 

Hulton V. Hulton, [1917] 1 K. B. 813 ; 86 L. J. K. B. 633 ; 116 

L. T. 551 ; 33 T. L. R. 197 ; 61 Sol. J. 268 [C. A.] 41 

Hulton (E.) & Co. V. Jones, [1910] A. C. 20 ; 79 L. J. K. B. 198 ; 

101 L. T. 831 ; 26 T. L. R. 128 ; 54 Sol. J. 116 ; 47 Sc. L. R. 

591 : 9, 103, 112, 113 

Hume V. Oldacre (1816), 1 Stark. 351 ; 18 R. R. 779 45 

Humphries v. Brogden (1850), 12 Q. B. 739 ; 20 L. J. Q. B. 10 ; 

15 Jur. 124 241 

Hunt V. Great Northern Rail. Co., [1891] 2 Q. B. 189 ; 55 J. P. 

648 ; 60 L. J. Q. B. 498 [C. A.] 126 

V. Star Newspaper Co., Limited, [1908] 2 K. B. 309 ; 77 L. J. 

K. B. 732 ; 98 L. T. 629 ; 24 T. L. R. 452 ; 52 Sol. J. 376 

[C. A] 118, 119 

Hurlstonc v. London Electric Rail. Co. (1914), 30 T. L. R. 398 [C. A.] 62 
Hunst V. Picture Theatres, Limited, [1915] 1 K. B. 1 ; 83 L. J K. B. 

1837 ; 111 L. T. 972 ; 30 T. L. R. 642 ; 58 Sol. J. 739 [C. A.] 260 
Hutchinson v. York, Newcastle, and Berwick Rail. Co. (18.50), 

19 L. J. Ex. 296 ; 5 Ex. 343 ; 6 Rail. Cas. 580 205 

Huth V. Huth, [1915] 3 K. B. 32 ; 84 L. J. K. B. 1307 ; 113 L. T. 

145 ; 31 T. L. R. .350 [C. A.] 114 



Ilott V. Wilkes (1820), 3 B. & A. 304 ; 22 R. R. 400 23 

Imperial Gas fiight and Cloke (Ut. (Din^ctors) v. Broadbc^nt (1859), 

29 L. J. f;h. 377 ; 7 II. L. Cas. 600 ; 5 Jur. (n.s.) 1319 ... 86 



xlii Table of Cases Cited 



Inchbald v. Robinson, Inchbald v. Barrington (1869), L. R. 4 Ch. 

388 ; 20 L. T. 259 ; 17 W. R. 459 229 

Indermaur v. Dames (1866), L. R. 1 C. P. 274; affirmed (1867), 

L. R. 2 C. P. 311 ; 36 L. J. C. P. 181 : 16 L. T. 293 ; 15 ^V. R. 

434 9, 167, 168, 170, 171 

Invincible, The (ISU), 2 GaW. 29 39 

In\-in V. Brandwood (1864), 33 L. J. Ex. 257 ; 9 L. T. 772 ; 

12 W. R. 438 ; 2 H. & C. 960 ; 10 Jur. (n.s.) 370 ... 110 
— V. Waterloo Taxi Cab Co., Limited, [1912] 3 K. B. 588 ; 

81 L. J. K. B. 967 ; 107 L. T. 288 ; 28 T. L. R. 567 ; 56 Sol. J. 

720 [C. A.] 55 

Ismay, Imrie & Co. v. Williamson, [1908] A. C. 437 ; 77 L. J. P. C. 

107 ; 99 L. T. 595 ; 24 T. L. R. 881 ; 52 Sol. J. 713 214 

Ivay V. Hedges (1882), 9 Q. B. D. 80 169 



Jackson v. Smithson (1846), 15 M. & W. 563 195 

V. Watson & Sons, [1909] 2 K. B. 193 ; 78 L. J. K. B. 587 ; 

100 L. T. 799 ; 25 T. L. R. 454 ; 53 Sol. J. 447 [C. A.] ...71, 76 

Jacobs V. Seward (1872), L. R. 5 H. L. 464 ; 41 L. J. C. P. 221 ; 

27L. T. 185 274,292 

Jamal v. MooUa Dawood, Sons & Co., [1916] 1 A. C. 175 ; 

85 L. J. P. C. 29 ; 114 L. T. 1 ; 32 T. L. R. 79 ; 60 Sol. J. 139... 78 
Janvier v. Sweeney, [1919] 2 K. B. 316 ; 88 L. J. K. B. 1231 ; 

121 L. T. 179 ; 35 T. L. R. 360 ; 63 Sol. J. 430 [C. A.] ... 79 
Jenkins v. Great Western RaU. Co., [1912] 1 K. B. 525 ; 81 L. J. 

K. B. 378 ; 105 L. T. 882 [C. A.] 170 

V. Jackson (1888), 40 Ch. D. 71 ; 58 L. J. Ch. 124 ; 60 L. T. 

105 • 37 W. R. 253 ... ... ... ... ... ... 229 

Jennmgs'f. Rundall (1799), 8 T. R. 335 ; 4 R. R. 680 43 

Jenoure v. Delmeae, [1891] A. C. 73 ; 55 J. P. 500 ; 60 L. J. P. C. 

11 ; 63 L. T.^814 ; 39 W. R. 388 122 

Jewson V. Gatti (1886), 2 T. L. R. 441 [C. A.] 181 

Job V. Potton (1875), L. R. 20 Eq. 84 ; 44 L. J. Ch. 262 ; 32 L. T. 

110 274 

Johnson v. Emerson (1871), L. R. 6 Ex. 329 ; 40 L. J. Ex. 201 ; 

'^5 L T 337 131 132 137 

V. Lindsay & Co., [1891] A. C. 371 ; 55 J. P. 644 ; 61 L. J. ' 

Q. B. 90 ; 65 L. T. 97 ; 40 W. R. 405 207 

V. Marshall, Sons & Co., Limited, [1906] A. C. 409 ; 

75 L. J. K. B. 868 ; 94 L. T. 828 ; 22 T. L. R. 565 

[C.A.] 215 

V. Pie (1665), 1 Keb. 905, 913 43 

Johnston v. Great Western Rail. Co., [1904] 2 K. B. 250 ; 73 L. J. 
K. B. 568 ; 91 L. T. 157 ; 50 W. R. 612 ; 20 T. L. R. 455 

[C. A.] 75, 76, 79, 81 

Johnstone «;. Pedlar, [1921] W. N. 229 17 

Jones ?;. Boyce (1816), 1 Stark. 493 ; 18 R. R. 812 ' 186 

r. Chapman (1849), 2 Ex. 803, 821 272 

V. Festmiog Rail. Co. (1868), L. R. 3 Q. B. 733 ; 9 B. & S. 

835 ; 37 L. J. Q. B. 214 ; 18 L. T. 902 ; 17 W. R. 28 : 23, 200 

V. Gooday (1841), 10 L. J. Ex. 275 ; 8 M. & W. 146 ; 1 D. 

(N.s!) 50 : 58 R. R. 649 77 

- r. Heme (1759), 2 Wils. 87 109 



Table of Cases Cited. xliii 

PAGE 

Jones V. Jones, [1916] 2 A. C. 481 ; 85 L. J. K. B. 1519 ; 115 L. T. 

432 ; 32 T. L. R. 705 ; 61 Sol. J. 8 102,107 

— V. Lee (1912), 76 J. P. 137 ; 106 L. T. 123 ; 28 T. L. R. 92 ; 

56 Sol. J. 125 13,198 

V. Liverpool Corporation (1885), 14 Q. B. D. 890 ; 49 J. P. 

311 ; 54 L.J. Q. B. 345; 33 W. R. 551 54 

V. Scullard, [1898] 2 Q. B. 565 ; 67 L. J. Q. B. 895 ; 79 L. T. 

386 56 

r. Williams (1843), 11 M. & W. 176; 12 L. J. Ex. 249; 

63R. R. 564 238 

Jordeson v. Sutton, Southcoates and Drypool Gas Co., [1899] 2 Ch. 

217 ; 63 J. P. 692' ; 68 L. J. Ch. 457 ; 80 L. T. 815 [C. A.] 241, 242 
Joynt V. Cycle Trade Publishing Co., [1904] 2 K. B. 292 ; 73 L. J. 

K. B. 752 ; 91 L. T. 155 [C. A.] 119 

Judge v. Cox (1816), 1 Stark. 285 197 



K. 

Kansas Pacific Rail. Co. v. Mihlman (1876), 17 Kansas Reports 224 : 96 
Karavias v. Callinicos, [1917] W. N. 323 ; 144 L. T. J. 25 [C. A.] : 37, 75 
Keates v. Cadogan (Earl) (1851), 10 C. B. 591 ; 20 L. J. C. P. 76 ; 

15 Jur. 428 224 

Keck r. Faber (1916), 60 Sol. J. 253 78 

Keen v. Henry, [1894] 1 Q. B. 2^ ; 58 J. P. 262 ; 63 L. J. Q. B. 

211 ; 69 L. T. 671 ; 42 W. R. 214; 9 R. 102 56 

Keighlev, IMaxsted & Co. v. Durant, [1901] A. C. 240 ; 70 L. J. 

K. B. 662 ; 84 L. T. 777 53 

Kelly V. Metropolitan Rail Co., [1895] 1 Q. B. 944 ; 59 J. P. 437 ; 

"64 L. J. Q. B. 568 ; 72 L. T. 551 ; 43 W. R. 497 ; 14 R. 417 

[C. A.] 33, 34, 166 

Kendillon v. Maltby (1842), Car. & M. 402 ; 2 M. & Rob. 438 ... 115 
Kensit v. Great Eastern Rail. Co. (1884), 27 Ch. D. 122 ; 54 L. J. 

Ch. 19 ; 51 L. T. 862 ; 32 W. R. 885 [C. A.] 249 

Keyse v. Powell (1853), 2 El. & Bl. 132 ; 22 L. J. Q. B. 305 ; 

17 Jur. 1052 273 

Kidgill V. Moor (18.50), 9 C. B. 36t ; 19 L. J. C. P. 177 ; 1 L. M. & 

P. 131 236, 237, 250 

Kiraber v. Gas Light and Coke Co., [1918] 1 K. B. 439 ; 82 J. P. 
125 ; 87 L. J. K. B. 651 ; 118 L. T. 562 ; 34 T. L. R. 
260 ; 62 Sol. J. 329 ; 16 L. G. R. 280 [C. A.] ... 168 

V. Press Association, [1893] 1 Q. B. 65 ; 57 J. P. 247 ; 

62 L. J. Q. B. 152 ; 67 L. T. 515 ; 41 W. R. 17 ; 4 R. 95 

[C. A.] 123, 127 

Kine v. Jolly, [1905] 1 Ch. 480 ; 74 L. J. Ch. 174 ; 53 W. R. 462 

[C. A.] 247 

King V. London Improved Cab Co. (1889), 23 Q. B. D. 281 ; 53 J. P. 
788 ; 58 L. J. Q. B. 456 ; 61 L, T. 34 ; 37 W. R. 737 
[C. A.] 56 

V. Rose (1673), 1 Frccm. 347 286 

Kirk V. Gregory (1876), 1 Ex. D. 55 ; 45 L. J. Ex. 186 ; 34 L. T. 

488 ; 24 W. R. 614 283,287 

V. Todd (1882), 21 Ch. D. 484 ; .52 L. J. Ch. 224 ; 47 L. T. 

676 ; 31 W. R. 69 [C. A.] 67 



xliv Table of Cases Cited. 



PAGE 

Lafond v. Ruddock (1853), 13 C. B. 813 ; 22 L. J. C. P. 217 ; 

1 W. R. 371 ; 1 C. L. R. 339 ; 17 Jur. 624 96 

Lambert v. Lowestoft Corporation, [1901] 1 K. B. 590 ; 65 J. P. 

326 ; 70 L. J. K. B. 333 ; 84 L. T. 237 ; 49 W. R. 316 ; 

17 T. L. R. 273 30 

Lamine v. Dorrell (1705), ^ Ld. Rayra. 1216 291 

Lancashire and Yorkshire Rail. Co., London and North Western 

Rail Co., and Graeser, Limited v. MacNicoU (1918), 88 L. J. 

K. B. 601 ; 118 L. T. 596 ; 34 T. L. R. 280 ; 62 Sol. J. 365 . 283 
Lancashire Waggon Co. v. Fitzhugh (1861), 30 L. J. Ex. 231 ; 

3L. T. 703; 6 H. &N. 502 284,286 

Lane v. Capsey, [1891] 3 Ch. 411 ; 61 L. J. Ch. 55 ; 65 L. T. 375 ; 

40W. R. 87 238 

V. Cox, [1897] 1 Q. B. 415 ; 66 L. J. Q. B. 193 ; 76 L. T. 135 ; 

45 W. R. 261 [C. A.] 168,224 

Langridge v. Levy (1837), 6 L. J. Ex. 137 ; 2 M. & W. 519 ; 46 R. R. 

689 158, 159 

Larkin v. Long, [1915] A. C. 814 ; 84 L. J. P. C. 201 ; 113 L. T. 

337 ; 31 T. L. R. 405 ; 59 Sol. J. 455 ; 49 I. L. T. 121 10, 150 

Latham v. Johnson (R.) and Nephew, Limited, [1913] 1 K. B. 

398 ; 77 J. P. 137 ; 82 L. J. K. B. 258 ; 108 L. T. 4 ; 29 T. L. R. 

124 ; 57 Sol. J. 127 [C. A.] 171,178 

Latter v. Braddell and Sutcliffe (1881), 22 W. R. 239 255 

Law V. Llewelljm, [1906] 1 K. B. 487 ; 70 J. P. 220 ; 75 L. J. K. B. 

320 ; 94 L. T. 359 ; 54 W. R. 368 121 

Lawrence v. Obee (1815), 1 Stark. 22 269 

Lax V. Darlington Corporation (1879), 5 Ex. D. 28 ; 49 L. J. Ex. 

105 ; 41 L. T. 489 ; 28 W. R. 221 [C. A.] 24 

Lay V. Midland Rail Co. (1875), 34 L.T. 30 181 

Lee V. Riley (1865), 18 C. B. (n.s.) 722 ; 34 L. J. C. P. 212 ; 12 L. T. 

388 ; 13 W. R. 751 ; 11 Jur. (n.s.) 527 198 

Leith V. Pope (1799), 2 W. Bla. 1327 136 

Le Lievre v. Gould, [1893] 1 Q. B. 491 ; 57 J. P. 484 ; 62 L. J. Q. B. 

353 ; 68 L. T. 626 ; 41 W. R. 468 ; 4 R. 274 [C. A.] : 35, 158, 164, 165 
Lemaitre v. Davis (1881), 19 Ch. D. 281 ; 46 J. P. 324 ; 51 L. J. Ch. 

173 ; 46 L. T. 407 ; 30 W. R. 360 244 

Lemmon v. Webb, [1895] A. C. 1 i 59 J. P. 564 ; 64 L. J. Ch. 205 ; 

71 L. T. 647 ; 11 R. 116 229.237,238 

Lethbridge v. Kirkman (1855), 25 L. J. Q. B. 89 ; 4 W. R. 90 ; 

2 Jur. (N.s.) 378 95 

Levet V. Gas Light and Coke Co., [1919] 1 Ch. 24 : 88 L. J. Ch. 12 ; 

119 L. T. 761 ; 35 T. L. R. 47 ; 63 Sol. J. 69 246 

Ley V. Peter (1858), 27 L. J. Ex. 239 ; 6 W. R. 437 ; 3 H. & N. 

101 278 

Lister v. Perrvman (1870), L. R. 4 H. L. 521 ; 39 L. J. Ex. 177 ; 

23 L. T. 269 ; 19 W. R. 9 133, 134, 135 

Littledale v. Liverpool College, [1900] 1 Ch. 19 ; 69 L. J. Ch. 87 ; 

81 L. T. 564 ; 48 W. R. 177 [C. A.] 279 

Lloyd V. Grace, Smith & Co., [1912] A. C. 716 ; 81 L. J. K. B. 

1140 ; 107 L. T. 531 ; 28 T. L. R. 547 : 56 Sol. J. 723 54, 55, 58 
Lodge Holes Colliery Co., Limited v. Wedncsbury Corporation, 

[1908] A. C. 323; 72 J. P. 417 ; 77 L. J. K. B. 847 ; 99 L. T. 

210 ; 24 T. L. R. 771 ; 52 Sol. J, 620 ; 6 L. G. R. 924 ... 77 



Table or Cases Cited. xlv 



London and Brighton Rail. Co. v. Truman (1885), 11 App. Cas. 45 ; 

60 J. P. 388 ; 55 L. J. Ch. 354 ; 54 L. T. 250 ; 34 A\. R. 657... 22 
London Association for Protection of Trade v. Greenlands, Limited, 

[1916] 2 A. C. 15 ; 85 L. J. K. B. 698 ; 114 L. T. 434 ; 32 T. L. R. 

281 ; 60 Sol. J. 272 ... 125 

Long V. Smithson (1918), 118 L. T. 678 ; 62 Sol. J. 472 ; 53 L. Jo. 30 : 10 
Longmeid v. Holliday (1851), 20 L. J. Ex. 430 ; 6 Ex. 761 ... 176 

Lotan v. Cross (1810), 2 Camp. 464 282,287 

Low {or Jackson) v. General Steam Fishing Co., Limited, [1909] 

A. C. 523 ; 78 L. J. P. C. 148 ; 101 L. T. 401 ; 25 T. L. R. 787 ; 

53Sol. J. 763 215 

Low Moor Co. v. Stanley Coal Co. (1876), 34 L. T. 186 [C. A.]... 279 
Lowery v. Walker, [1910] 1 K. B. 173 [C. A.]; reversed, [1911] 

A. C. 10 ; 80 L. J. K. B. 138 ; 103 L. T, 674 ; 27 T. L. R. 83 ; 

55 Sol. J. 62 ; 48 Sc. L. R. 726 172,199 

Lucy V. Bawden, [1914] 2 K. B. 318 ; 38 L. J. K. B. 523 ; 110 

L. T. 580 ; 30 T. L. R. 321 169,224 

Ludgater v. Love (1881), 45 J. P. 600 ; 44 L. T. 694 [C. A.] ... 160 
Lumley v. Gye (1853), 2 E. & B. 216 ; 22 L. J. Q. B. 463 ; 1 W. R. 

432 ; 17 Jur. 827 149,150 

Lygo V. Newbold (1854), 9 Ex. 302 ; 23 L. J. Ex. 108 ; 2 W. R. 

158 ; 2 C. L. R. 449 23,166 

Lyles V. Southend-on-Sea Corporation, [1905] 2 K. B. 1 ; 69 J. P. 

193 ; 74 L. J. K. B. 484 ; 92 L. T. 586 ; 21 T. L. R. 389 ; 

3 L. G. R. 691 [C. A.] 98 

LjTich V. Knight (1861), 9 H. L. Cas. 577 ; 5 L. T. 291 ; 8 Jur. (n.s.) 

724 107, 108 

V. Nurdin (1841), 1 Q. B. 29 ; 10 L. J. Q. B. 73 ; 4 P. & D. 

672 ; 5 Jur. 797 ; 55 R. R. 191 14,177,180 

Lyne ?;. Nicholls (1906), 23 T. L. R. 86 130 

Lyon V. Fishmongers' Co. (1876), 1 App. Cas. 662 ; 46 L. J. Ch. 68 ; 

35 L. T. 569 ; 25 W. R. 165 6,221 

Lyons, Sons, & Co. v. Gulliver, [1914] 1 Ch. 631 ; 78 J. P. 98 ; 

83 L. J. Ch. 281 ; 110 L. T. 284 ; 30 T. L. R. 75 ; 58 Sol. J. 97 ; 

12 L. G. R. 194 [C. A.] 221, 229 



M. 

Machado v. Pontes, [1897] 2 Q. B. 231 ; 66 L. J. Q. B. 542 ; 76 L. T. 

588 ; 45 W. R. 565 [C. A.] 39,40 

Macintosh v. Dun, [1908] A. C. 390 ; 77 L. J. P. C. 113 ; 99 L. T. 

64 ; 24 T. L. R. 705 ; 52 Sol. J. 580 122,125 

Mackay v. Ford (1860), 29 L. J. Ex. 404 ; 2 L. T. 514 ; 8 W. R. 

506 ; 5 H. & N. 792 ; 6 Jur. (n.s.) 587 121 

Macleay t;. Tait, [1900] A. C. 24 159 

McCartnev v. Londonderry and Lough Swilly Railway, [1904] A. C. 

301 ;"73 L. J. P. C. 73; 91 L. T. 105 248 

McDowall V. Great Western Railway, [1903] 2 K. B 331 ; 72 L. J. 

K. B. 752 ; 88 L. T. 825 [V.. A.] 14, 182 

M'Gregor v. Thwaitcs (1824), 2 L. J. K. B. 217 ; 3 B. & C. 24 ; 

4 Low. & Ry. 695 ; 27 R. R. 274 115 

McKenzior. Hardingc (1906), 23T. L. R. 15 143 

M'Kinnon V. Penson, 8 Ex. 319 30 



xlvi Table of Cases Cited. 

PAGE 

M'Phorson v. Daniels (1829), 8 L. J. (o.s.) K. B. 14 ; 10 B. &, C. 

203 ; 5 M. & Ry. 251 ; 34 R. R. 397 102,117 

McQuire ?'. Western Morning News Co., [1903] 2 K. B. 100 ; 72 L. J. 

K. B. 012 ; 88 L. T. 757 ; 51 W. R. 689 [C. A.] ... 118, 122 
Magdalcna Steam Navigation Co. v. Martin (1859), 2 El. & El. 94 ; 

28 L. J. Q. B. 310 ; 7 W. R. 598 ; 5 Jur. (n.s.) 1260 ... 42 

Maisel v. Financial Times, Limited, [1915] 3K. B. 336 ; 84 L. J. 

K. B. 2148 ; 113 L. T. 772 ; 31 T. L.R. 510 ; 59 Sol. J. 596 [C.A.] 117 
Mallam v. Rose, [1915] 2 Ch. 222; 84 L. J. Ch. 934 ; 113 L. T. 1106 245 

Manby v. Scott (1663), 1 Sid. 109 43 

Manchester Corporation v. Williams, [1891] 1 Q. B. 94 ; 54 J. P. 

712 ; 60 L. J. Q. B. 23 ; 63 L. T. 805 ; 39 W. R. 302 41, 103, 106 
Mangena v. Wright, [1909] 2 K. B. 958 ; 78 L. J. K. B. 879 ; 

100 L. T. 960 ; 25 T. L. R. 534 ; 53 Sol. J. 485 127 

Manley v. Field (1859), 7 C. B. (n.s.) 96 ; 29 L. J. C. P. 79 ; 6 Jur. 

(N.s.) 300 146 

Mann v. Ward (1892), 8 T. L. R. 699 [C. A.] 15 

Mansel v. Webb (1918), 88 L. J. K. B. 323 ; 120 L. T. 360 [C. A.] 200 
Manzoni v. Douglas (1880), 6 Q. B. D. 145 ; 45 J. P. 291 ; 50 L. J. 

Q. B. 289 ; 29 W. R. 425 9,165,183 

Markey v. Tolworth Joint Isolation Hospital District Board, [1900] 

2 Q. B. 454 ; 64 J. P. 648 ; 69 L. J. Q. B. 738 ; 83 L. T. 28 ; 

16T. L. R. 411 98 

Marks v. Frogley, [1898] 1 Q. B. 888 ; 67 L. J. Q. B. 605 ; 78 L. T. 

607 ; 46 W. R. 548 [C. A.] 260 

V. Sanuiel, [1904] 2 K. B. 287 ; 73 L. J. K. B. 587 ; 90 L. T. 

590 ; 53 W. R. 88 ; 20 T. L. R. 430 [C. A.] 110 

Marpessa, The, [1907] A. C. 241 ; 78 L. J. P. 128 ; 97 L. T. 1 ; 

23 T. L. R. 572 78 

Marsh v. Joseph, [1897] 1 Ch. 213 ; 66 L. J. Ch. 128 ; 75 L. T. 558 ; 

45 W. R. 209 [C. A.] 53 

V. Loader (1863), 14 C. B. (n.s.) 535 ; U W. R. 784 ... 264 

Marshall v. York, Newcastle and Berwick Rail. Co. (1851), 11 C. B. 

655 ; 21 L. J. C. P. 34 ; 16 Jur. 124 [C. A.] 35 

Martin, Ex parte (1879), 4 Q. B. D. 212 ; affirmed sub nom. Martin 
V. Bannister (1879), 4 Q. B. D. 491 ; 48 L. J. Q. B. 
677 ; 28 W. R. 143 [C. A.] 85 

d. Tregonwell v. Strachan (1743), 5 T. R. 107 n. ; 6 Bro. 

P. C. 319 ; 1 Wils. 266 ; 2 Stra. 1179 ; 2 R. R. 552 n. ... 276 
Martindale v. Smith (1841), 1 Q. B. 389 ; 10 L. J. Q. B. 155 ; 1 G. & 

D. 1 ; 5 Jur. 932; 55 R. R. 285 290 

Mason u. Caesar (1676), 2 Mod. 66 238 

V. Hill (1832), 1 L. J. K. B. 107 ; 3 B. & Ad. 304 ; 39 R. R. 

354 250 

Masper and Wife v. Brown (1875), 1 C. P. D. 97 ; 45 L. J. C. P. 203 ; 

34 L. T. 254 ; 24 W. R. 469 268 

Mathews v. London Street Tramways Co. (1886), 52 J. P. 774 ; 

58 L. J. Q. B. 12 ; 60 L. T. 47 180 

Maxey Drainage Board v. Great Northern Rail. Co. (1912), 76 J. P. 

236 ; 106 L. T. 429 ; 56 Sol. J. 275 ; 10 L. G. R. 248 ... 10 
May V. Burdett (1846), 9 Q. B. 101 ; 16 L. J. Q. B. 64 ; 10 Jur. 

692; 72 R. R. 189 195 

Mayhew v. Herrick (1849), 7 C. B. 229 ; 18 L. J. C. P. 179 ; 13 Jun 

1078 . .•• 292 

Mayo V. Stazicker, [192ii 2 K. B. 196"; 85 J. P. 141 ; 37 T. L. R. 

383 ; 65 Sol. J. 380 ; 19 L. G. R. 240 233 



Table of Cases Cited. xlvii 



Mears v. London and South Western Rail. Co (1862), 11 C. B. (n.s.) 

854; 31 L. J. C. P. 220 ; 6 L. T. 190 286 

Mediana, The, [1900] A. C. 113 ; 69 L. J. P. 35 ; 82 L. T. 95 ; 

48W. R. 398; 9 Asp. M. C. 41 78 

Mee V. Cruikshank (1902), 66 J. P. 89 ; 86 L. T. 708 257 

Merest^. Harvey (1814), 5 Taunt. 442 ; 1 Marsh, 139 ; 15R. R. 548 83 
Merivale v. Carson (1887), 20 Q. B. D. 275 ; 52 J. P. 261 ; 58 L. T. 

331; 36 W. R. 231 [C. A.] 118,119 

Merryweather v. Nixan, 8 T. R. 186 ; 16 R. R. 810 46 

Metropolitan Association, etc. v. Petch (1858), 5 C. B. (n.s.) 504 ; 

27 L. J. C. P. 330; 4 Jur. (n.s.) 1000 236 

Metropolitan Asylum District v. Hill (1881), 6 App. Cas. 193 ; 

45 J. P. 664 ; 50 L. J. Q. B. 353 ; 44 L. T. 653 ; 29 W. R. 

617 21, 22, 229 

Metropolitan Bank v. Pooley (1885), 10 App. Cas. 210 ; 49 J. P. 

756 ; 54 L. J. Q. B. 449 ; 53 L. T. 163 ; 33 W. R. 709 ... 138 
Metropolitan Rail. Co. v. Jackson (1877), 3 App. Cas. 193 ; 47 L. J. 

C. P. 303; 37 L. T. 679; 26 W. R. 175 184 

Metropolitan Saloon Omnibus Co. v. Hawkins (1859), 28 L. J. Ex. 

201 ; 4 H. & N. 87 ; 7 W. R. 265 ; 5 Jur. (n.s.) 226 ... 104 

Meux V. Great Eastern Rail. Co., [1895] 2 Q. B. 387 ; 59 J. P. 662 ; 

64 L. J. Q. B. 657 ; 73 L. T. 247 ; 43 W. R. 680 ; 14 R. 620 

[C. A.] 35, 164,173 

Middleton v. Hall (1913), 77 J. P. 172 ; 108 L. T. 804 ... 168, 224 
Miller v. David (1874), L. R. 9 C. P. 118 ; 43 L. J. C. P. 84 ; 30 L. T. 

58;22W. R. 332 102,107 

V. Dell, [1891] 1 Q. B. 468 ; 60 L. J. Q. B. 404 ; 63 L. T. 693 ; 

39 W. R. 342 [C. A.] 94, 289 

— V. Hancock, [1893] 2 Q. B. 177 ; 57 J. P. 758 ; 69 L. T. 214 ; 

41 W. R. 578 ; 4 R. 478 [C. A.] 169 

Mills V. Brooker, [1919] 1 K. B. 555 ; 88 L. J. K. B. 950 ; 121 L. T. 

254 ; 35 T. L. R. 261 ; 63 Sol. J. 431 ; 17 L. G. R. 238 ... 221 
Miner v. Gilmour (1858), 12 Moo. P. C. C. 131 ; 7 W. R. 328 ... 248 

Mintz V. Silverton (1920), 36 T. L. R. 399 55 

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

IW. R. 153; 17 Jur. 716 57 

Mogul Steamship Co. v. McGregor, Gow & Co. (1885), 15 Q. B. D. 

476 ; 49 J. P. 646 ; 54 L. J. Q. B. 540 ; 53 L. T. 268 ; 15 Cox, 

. C. C. 740 ; 5 Asp. M. L. C. 467 86 

Mogul Steamship Co. v. McGregor, Gow & Co., [1892] A. C. 25 ; 

56 J. P. 101 ; 61 L. J. Q. B. 295 ; 66 L. T. 1 ; 40 W. R. 

337; 7 Asp. M. L. C. 120 152 

Monson v. Tussaud's, Limited, Monson v. Tussaud (Louis), [1894] 

1 Q. B. 671 ; 58 J. P. 524 ; 63 L. J. Q. B. 454 ; 70 L. T. 335 ; 

9 R. 177 [C. A.] 87, 106 

Montgomery v. Thompson, [1891] A. C. 217 ; 55 J. P. 756 ; 60 L. J. 

Ch. 757 ; 64 L. T. 748 154, 155 

Moore v. MeagluT (1807), 1 Taunt. 39 ; 3 Smith, 135 ; 9 R. R. 702 108 

• V. Robinson (1831), 1 L. J. K. B. 4 ; 2 B. & Ad. 817 ... 287 

Mordaunt v. Mordaunt (1870), L. R. 2 P. & D. 102 44 

Morgans. Lingen (1803), 8 L. T. 800 104 

V. London General Omnibus Co. (1884), 13 Q. B. D. 832 ; 

48 J. P. 503 ; 53 L. J. Q. B. 352 ; 51 L. T. 213 ; 

32 W. R. 759 [(J. A.) 211 

i;. Vale of Neath Rail. Co. (1865), L R. 1 Q. B. 149;5B. &S. 

736 ; 35 L. J. Q. B. 23 ; 13 L. T. 564 ; 14 W. R. 144 ... 204, 206 

d 



xlviii Table of Cases Cited. 

PAGE 

Morrison v. Sheffield Corporation, [19171 2 K. B. 866; 81 J. P. 

277 ; 86 L. J. K. B. 1456 ; 117 L. T. 540 ; 33 T. L. R. 492 ; 

61 Sol. J. 611 [C. A.] 201 

Mortimer v. Cradock (1843), 12 L. J. C. P. 166 ; 7 Jur. 45 ; 61 R. R. 

784 79 

Mostyn v. Fabrigas (1774), 1 Sm. L. C. 591 ; 1 Cowp. 161 39, 44 

Moulton V. Edmonds (1859). 29 L. J. Ch. 181 ; 8 W. R. 153 ; 6 Jur. 

(N.s.)305; 1 De G. F. & J. 246 95 

MuUett V. Mason (1866), L. R. 1 C. P. 559 ; 35 L. J. C. P. 299 ; 

14 L. T. 558 ; 14 W. R. 898 ; 12 Jur. (n.s.) 547 ; I H. & R. 

779 80 

Mumford v. Oxford, Worcester and Wolverhampton Rail. Co. 

(1856), 25 L. J. Ex. 265 237 

Munster v. Lamb (1883), 11 Q. B. D. 588 ; 47 J. P. 805 ; 52 L. J. 

Q. B. 726 ; 49 L. T. 252 ; 32 W. R. 248 [C. A.] 121 

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

23 L. T. 557 ; 19 W. R. 104 54, 57 

Murray v. Fitzgerald, [1906] 2 L R. 254 [C. A.] 145, 146 

V. Hall (1849), 7 C. B. 441 ; 18 L. J. C. P. 161 ; 13 Jur. 

262 274 

Musgrave v. Pulido (1879), 5 App. Cas. 102 ; 49 L. J. P. C. 20 ; 

41L. T. 629; 28 W. R. 373 44 

Musgrove v. Pandelis, [1919] 2 K. B. 43 ; 88 L. J. K. B. 915 ; 

120 L. T. 601 ; 35 T. L. R. 299 ; 63 Sol. J. 353 [C. A.] ... 199, 200 



N. 

National Bank v. Graham (1879), 100 U. S. 699 43 

National Phonograph Co., Limited v. Edison Bell Consolidated 

Phonograph Co., Limited, [1908] 1 Ch. 335 ; 77 L. J. Ch. 218 ; 

98 L. T. 291 ; 24 T. L. R. 201 [C. A.] 151 

National Telephone Co. v. Baker, [1893] 2 Ch. 185 ; 57 J. P. 373 ; 

62 L. J. Ch. 699 ; 68 L. T. 283 ; 3 R. 318 190 

Neale v. Electric and Ordnance Accessories Co., Limited, [1906] 

2 K. B. 558 ; 75 L. J. K. B. 974 ; 95 L. T. 592 ; 22 T. L. R. 

732 [C. A.] 216 

Nelson v. Liverpool Brewery Co. (1877), 2 C. P. D. 311 ; 46 L. J. 

C. P. 675; 25 W. R. 877 221, 223 

Netherlands South African Rail. Co. v. Fisher (1901), 18 T. L. R. 

116 41 

Nevill V. Fine Arts and General Insurance Co., [1895] 2 Q. B. 156 ; 

59 J. P. 371 ; 64 L. J. Q. B. 681 ; 72 L. T. 525 ; 14 R. 

587 [C. A.] 122 

Nevill V. Fine Arts and General Insurance Co., [1897] A. C. 68 ; 

61 J. P. 500 ; 66 L. J. Q. B. 195 ; 75 L. T. 606 106 

Neville v. London " Express " Newspaper, Limited, [1919] A. C. 

368 ; 88 L. J. K. B. 282 ; 120 L. T. 299 ; 35 T. L. R. 167 ; 

63Sol. J. 213 139 

Newberry v. Bristol Tramways and Carriage Co., Limited (1912), 

107 L. T. 801 ; 29 T. L. R. 177 ; 57 Sol. J. 172 ; 11 L. G. R. 69 

[C. A.] 166 

Nichols V. Marsland (1876), L. R. 10 Ex. 255 ; on appeal, 2 Ex. D. 

1 ; 46 L. J. Ex. 174 ; 35 L. T. 725 ; 25 W. R. 173 [C. A.] ... 191, 

192, 196 



Table of Cases Cited. xlix 



NicoUs V. Bastard (1835), 5 L. J. Ex. 7 ; 2 C. M. & R. 659 ; 1 Tyr. 

& G. 156 ; 1 Gale, 295 291 

Nisbet V. Rayne and Burn, [1910] 2 K. B. 689 ; 83 L. J. K. B. 84 ; 

103 L. T. 178 ; 26 T. L. R. 632 ; 54 Sol. J. 719 ; 3 B. W. C. C. 

507 [C. A.] 214 

Nitro-glycerine Case (1872), 15 Wall. 524 8,9 

Norman v. Great Western Rail. Co., [1915] 1 K. B. 584 ; 84 L. J. 

K. B. 598 ; 112 L. T. 266 ; 31 T. L. R. 53 [C. A.] ... 9, 169 

Norris t;. Baker (1616), 1 Roll. Rep. 393, fol. 15 238 

North V. Wood, [1914] 1 K. B. 629 ; 83 L. J. K. B. 587 ; 110 L. T. 

703 ; 30 T. L. R. 258 195 

Northampton Corporation v. Ward (1745), 1 Wils. 107 ; 2 Str. 1238 273 
North-Eastem Rail. Co. V. Elliott (1860), 29 L. J. Ch. 808 ... 243 

Notlev V. Buck (1828), 6 L. J. (o.s). K. B. 271 ; 8 B. & C. 160 ; 

2M. & R. 68 291 



0. 

Oakey & Son v. Dalton (1887), 35 Ch. D. 700 ; 56 L. J. Ch. 823 ; 

57 L. T. 18 ; 35 W. R. 709 68 

Ocean Accident and Guarantee Corporation v. Ilford Gas Co., 

[1905] 2 K. B. 493 ; 74 L. J. K. B. 799 ; 93 L. T. 381 ; 

21 T. L. R. 610 [C. A.] 273 

Oelkers v. Ellis, [1914] 2 K. B. 139; 83 L. J. K. B. 658 ; 110 L. T. 

332 92,278 

Oldham w. Peake (1774), 2 W. Bl. 959 109 

OUiet V. Bessey (1680), 2 T. Jo. 214 20 

Onslow w. Home (1771), 2 W. Bl. 750 ; 3 Wils. 177 107 

Oram v. Hutt, [1914] 1 Ch. 98 ; 78 J. P. 51 ; 83 L. J. Ch. 161 ; 

110 L. T. 187 ; SOT. L. R. 55; 58Sol. J. 80 [C. A.] ... 139 

Ormiston v. Great Western Rail. Co., [1917] 1 K. B. 598 , 86 L. J. 

K. B. 759; 116L. T. 479; 33T. L. R. 171 58,59 

Osbom V. Gillett (1873), L. R. 8 Ex. 88 ; 42 L. J. Ex. 53 ; 28 L. T. 

197 ; 21 W. R. 409 25 

Osborne v. Chocqueel, [1896] 2 Q. B. 109 ; 65 L. J. Q. B. 534 ; 

74 L. T. 786 ; 44 W. R. 575 195,197 

Oughton V. Seppings (1830), 8 L. J. (o.s.) K. B. 394 ; 1 B. & Ad. 

241 ; 35 R. R. 284 291 

O.Kley 1^. Watts (1785), 1 Term Rep. 12 ; 1 R. R. 133 288 



P. 

Padbury v. Holliday & Greenwood, Limited (1912), 28 T. L. II. 

494 [C. A.] 62 

Page V. Cowasjee Eduljee (1806), L. R. 1 P. C. 127; 14 L. T. 

176 ; 12 Jur. (N.s.) 301 290 

Pankhurst ?;. Hamilton (1887), 3 T. L. R. 500 117 

Panton v. Williams (1841), 2 Q. B. 169 ; 10 L. J. Ex. 545 ; 1 G. & 

1). 504; 57 R. R. 631 134 

Papworth v. Batter.sea Corporation, [1914] 2 K. B. 89 ; 78 J. P. 

172 ; 83 L. J. K. B. 358 ; 110 L. T. 385 ; 30 T. L. R. 240 ; 

12 L. G. R. 308; on appeal, 31 T. L. R. 52 ; 59 Sol. J. 74 

fC. A.] 20 

>i 2 



Table of Cases Cited. 



Taris v. Levy (1860), 9 C. B. (n.s.) 342 ; 30 L. J. C. P. 11 ; 3 L. T. 

323 ; 9W. R. 71 ; 7 Jur. (n.s.) 289 118 

Parkins v. Soott (1862), 1 H. & C. 153 ; 31 L. J. Ex. 331 ; 6 L. T. 

394 ; 10 W. R. 562 ; 8 Jur. (n.s.) 593 115 

Partridge v. Scott (1838), 7 L. J. Ex. 101 ; 3 M. & W. 220 ; 

49 R. R. 578 243 

Pasmore v. Oswaldtwistle Urban Council, [1898] A. C. 387 ; 

62 J. P. 628 ; 67 L. J. Q. B. 635 ; 78 L. T. 659 29 

Patrick v. Colerick (1838), 7 L. J. Ex. 135 ; 3 M. & W. 483 ; 

49R. R. 696 270 

Paul V. Summerhayes (1879), 4 Q. B. D. 9 ; 48 L. J. M. C. 33 ; 

39 L. T. 574 ; 27 W. R. 215 ; 14 Cox C. C. 202 269 

Payne t;. Rogers (1794), 2 H. Bl. 350 ; 3 R. R. 415 222 

Pease v. Chaytor (1863), 3 B. & S. 620 ; 32 L. J. M. C. 121 ; 8 L. T. 

613 ; 11 W. R. 563 ; 9 Jur. (n.s.) 664 19 

Peek V. Gumey (1873), L. R. 6 H. L. 377 ; 43 L. J. Ch. 19 : 22 W. R. 

29 157, 158 

Peer v. Humphrey (1835), 4 L. J. K. B. 100 ; 2 A. & E. 495 ; 4 N. 

&M. 430; 1 H. & W. 28; 41 R. R. 471 285 

Penn V. Ward (1835), ,2 C. M. & R. 338 260 

Penny v. Wimbledon Urban Council, [1899] 2 Q. B. 72 ; 63 J. P. 

406 ; 68 L. J. Q. B. 704 ; 80 L. T. 615 ; 47 W. R. 565 [C. A.] 66 

Penruddock's Case (1598), 5 Co. Rep. 100 b 234 

Peters v. Jones, [1914] 2 K. B. 781 ; 83 L. J. K. B. 1115 ; 110 L. T. 

937 ; 30 T. L. R. 421 144 

Petrel, The, [1893] P. 320 ; 62 L. J. P. 92 ; 70 L. T. 417 ; 1 R. 651 ; 

7Asp. M. C. 434 207 

Petrie v. Rontrevor (Owners), [1898] 2 I. R. 556 [C. A.] 170 

Phillips V. Barnet (1876), 1 Q. B. D. 436 ; 45 L. J. Q. B. 277 ; 

34 L. T. 177 ; 24 W. R. 345 41 

V. Eyre (1870), L. R. 4 Q. B. 225 ; 38 L. J. Q. B. 113 ; 

19 L. T. 770 ; 17 W. R. 375 ; 9 B. & S. 343 ; affirmed, 
L. R. 6 Q. B. 1 ; 40 L. J. Q. B. 28 ; 22 L. T. 869 ; 
lOB. &S. 1004 44 

V. Homfray (1883), 24 Ch. D. 439 ; 52 L. J. Ch. 833 ; 

49 L. T. 5 ; 32 W. R. 6 [C. A.] 67 

V. Jansen (1798), 2 Esp. 624 110 

V. South Western Rail. Co. (1879), 4 Q. B. D. 406 [C. A.] : 75, 79 

Pickard v. Smith (1861), 10 C. B. (n.s.) 470 ; 4 L. T. 470 ... 63 

Pictou (Municipality of) v. Geldert, [1893] A. C. 524 ; 63 L. J. P. C. 

37 ; 69 L. T. 510 ; 42 W. R. 114 ; 1 R. 447 30 

Pinet (F.) et Cie v. Maison Louis Pinet, Limited, [1898] 1 Ch. 179 ; 

67 L. J. Ch. 41 ; 77 L. T. 613 ; 46 W. R. 506 ; 14 T. L. R. 87 ; 

15 R. P. C. 65 .. .. ... ... ... ... 154 155 

Pippin V. Sheppard (1822), 11 Price, ioO ; 25 R. R. 746 ' 35 

Pittard v. Oliver, [1891] 1 Q. B. 474 ; 55 J. P. 100; 60 L. J. Q. B. 

219 ; 64 L. T. 758 ; 39 W. R. 311 [C. A.] 127 

Poireti;. Poiret (Jules), Limited, and Nash (1920), 37 R. P. C. 

177 155 

Polhill V. Walter (1832), 3 B. & Ad. 114 ; 1 L. J. K. B. 92 ... 10 

PoUey V. Fordham, [1904] 2 K. B. 345 ; 68 J. P. 321 ; 73 L. J. K. B. 

687 ; 90 L. T. 755 ; 53 W. R. 188 ; 20 T. L. R. 435 : 19, 97 

V. Fordham (No. 2) (1904), 68 J. P. 504 ; 91 L. T. 525; 

20T. L. R. 639 19 

Polsue & Alfieri, Limited v. Rushmer, see Rushmer v. Polsue & 
Alfieri, Limited. 



Table of Cases Cited. ]i 

PAGE 

Pomfret V. Rycroft (1671), 1 Saund. 321 270 

Ponting V. Noakes, [1894] 2 Q. B. 281 ; 58 J. P. 559 ; 63 L. J. 

Q. B. 549 ; 70 L. T. 842 ; 42 W. R. 506 ; 10 R. 265 ... 194 

Popplewell V. Hodkinson (1869), L. R. 4. Ex. 248 ; 38 L. J. Ex. 126 ; 

20 L. T. 578 ; 17 W. R. 806 241,242 

Porter v. Freudenberg, [1915] 1 K. B. 857 ; 84 L. J. K. B. 1001 ; 

112 L. T. 313 ; 31 T. L. R. 162; 59 Sol. J. 216; 20 Com. Cas. 

189 ; 32 R. P. C. 109 [G. A.] 42 

Potter V. Faulkner (1861), 1 B. & S. 800 ; 31 L. J. Q. B. 30 ; 

5 L. T. 455 ; 10 W. R. 93 ; 8 Jur. (N.s.) 259 209 

Poulton V. London and South Western Rail. Co. (1867), L. R. 2 

Q. B. 534 ; 36 L. J. Q. B. 294 ; 17 L. T. 11 ; 16 W. R. 309 ; 

8B. &S. 616 43,58 

Powell V. Fall (1880), 5 Q. B. D. 597 ; 49 L. J. Q. B. 428 ; 43 L. T. 

562[C. A.[ 200 

V. Gelston, [1916] 2 K. B. 615 ; 85 L. J. K. B. 1783 ; 

115 L. T. 379 ; 32 T. L. R. 703 ; 60 Sol. J. 696 115 

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

38 W. R. 103 [C. A.] 75 

Pratt V. British Medical Association, [1919] 1 K. B. 244 ; 88 L. J. 

K. B. 628 ; 120 L. T. 41 ; 35 T. L. E. 14 ; 63 Sol. J. 84 151, 153 
Prefontaine v. Grenier, [1907] A. C. 101 ; 76 L. J. P. C. 4 ; 95 L. T. 

623 ; 23 T. L. R. 27 ; 13 Manson, 401 

Preston v. Luck (1884), 27 Ch. D. 497 [C. A.] 

Pretty v. Bickmore (1873), L. R. 8 C. P. 401 ; 28 L. 

21W. R. 733 

Pridgeon v. Mellor (1912), 28 T. L. R. 261 

Priestley v. Fowler (1837), 7 L. J. Ex. 42 ; 3M. & W. 1 ; 

305 ; 1 Jur. 987 ; 49 R. R. 495 205 

Pritchard v. Peto, [1917] 2 K. B. 173; 86 L. J. K. B. 1292; 

117 L. T. 145; loL. G. R. 860 9,219,221 

Prudential Assurance Co. v. Knott (1875), L. R. 10 Ch. 142 ; 

44 L. J. Ch. 192 ; 31 L. T. 866 ; 23 W. R. 249 88 

Pullman v. Hill & Co., [1891] 1 Q. B. 524 ; 60 L. J. Q. B. 299 ; 

64 L. T. 691 ; 39 W. R. 263 [C. A.] 114, 122 

V. Pullman (1919), 36 R. P. C. 240 '. 154 

Pursellv. Horn (1838), 8 A. & E. 602 255 

Pym V. Great Northern Rail. Co. (1862), 2 B. & S. 759 ; affirmed 

(1863), 4 B. & S. 396 ; 32 L. J. Q. B. 377 ; 8 L. T. 734 ; 11 W. R. 

922 ; 10 Jur. (N.s.) 199 71,72 



Q. ■ 

Quarman v. Burnett (1840), 9 L. J. Ex. 308 ; 6 M, & W. 499 ; 4 Jur. 

969 ; .55 R. R. 717 56 

Quartz Hill Consolidated Gold Mining Co. v. Beall (1882), 20 Ch. D. 

501 ; 51 L. J. Ch. 874 ; 46 L. T. 746 ; 30 W. R. 583 [C. A.] 126 
Quartz Hill Gold Mining Co. v. Eyre (1883), 11 Q. B. D. 674; 

62 L. J. Q. B. 488 ; 49 L. T. 249 ; 31 W. R. 668 [C. A.] ... 131, 

136, 138 
Quinn v. Leathern, [1901] A. C. 495 ; 65 J. P. 708 ; 70 L. J. P. C. 

76 ; 85 L. T. 289 ; 50 W. R. 139 ... 10, 149-151, 153 
z;. Pratt, [1908] 2 I. R. 69 19 





162 




86 


T. 704 ; 




222, 


223 




289 


M. & ii'. 





lii Table of Cases Cited. 

R. 

PAGE 

R. V. Burdett (1820), 4 B. & Aid. 95 ; 22 R. R. 539 113 

— V. CreAve (Earl), [1910] 2 K. B. 576 ; 79 L. J. K. B. 874 ; 

102 L. T. 760 ; 26 T. L. R. 439 [C. A.] 60 

— u. Ivens (1835), 7 C. & R 213 270 

— V. Jackson, [1891] 1 Q. B. 671 ; 55 J. P. 246 ; 60 L. J. Q. B. 340 ; 

64 L. T. 679 ; 39 W. R. 407 [C. A.] 260 

— V. Labouchere (1880), 14 Cox, C. C. 419 117 

— V. Pease (1832), 2 L. J. M. C. 26 ; 4 B. & Ad. 30 ; 1 Nev. & M. 

690 ; 38 R. R. 207 219 

— V. Port of London Authority, Ex parte Kynoch, Limited, [1919] 

1 K. B. 176 ; 83 J. P. 41 ; 88 L. J. K. B. 553 ; 120 L. T. 

177 ; 35 T. L. R. 103 [C. A.] 98 

— V. Rosewell (1699), 2 Salk. 459 238 

— V. Train (1862), 2 B. & S. 640 ; 31 L. J. M. C. 169 ; 10 W. R. 

539 ; 3 F. & F. 22 ; 8 Jur. (n.s.) 1151 ; 9 Cox, C. C. 180 219 

— *;. Ward (1836), 4 A. & E 384 219 

Radley v. London and North Western Rail. Co. (1876), 1 App. Cas. 

754 ; 46 L. J. Ex. 573 ; 35 L. T. 637 ; 25 W. R. 147 ... 178 

Rainham Chemical Works v. Belvedere Fish Guano Co., Limited, 

see Belvedere Fish Guano Co. v. Rainham Chemical Works, etc. 
Raleigh v. Goschen, [1898] 1 Ch. 73 ; 67 L. J. Ch. 59 ; 77 L. T. 

429 ; 14 T. L. R. 36 ; 46 W. R. 90 44 

Ranson v. Piatt, [1911] 1 K. B. 499 ; 80 L. J. K. B. 250 ; 103 L. T. 

839; reversed, [1911] 2 K. B. 291 ; 80 L. J. K. B. 1138; 

104 Ls T. 881 [C. A.] 294 

Ratcliffe v. Evans, [1892] 2 Q. B. 524 ; 56 J. P. 837 ; 61 L. J. 

Q. B. 535 ; 66 L. T. 794 ; 40 W. R. 578 [C. A.] 107, 108, 130 

Rawlings v. Till (1837), 3 M. & W. 28 255 

Rawstron v. Taylor (1855), 25 L. J. Ex. 33 ; 11 Ex. 369 249 

Read v. Coker (1853), 13 C. B. 850 ; 22 L. J. C. P. 201 : 1 W. R. 

413 ; 1 C. L. R. 746 ; 17 Jur. 990 254 

V. Edwards (1864), 34 L. J. C. P. 31 ; 11 L. T. 311 ; 5 N. R. 

48 ; 17 C. B. (N.s.) 245 286 

V. Great Eastern Rail. Co. (1888), L. R. 3 Q. B. 555 ; 37 L. J. 

Q. B. 278 ; 18 L. T. 82 ; 16 W. R. 1040 ; 9 B. & S. 714 ...71, 73 
Readhead v. Midland Rail. Co. (1869), L. R. 4 Q. B. 379 ; 38 L. J. 

Q. B. 169 166,167 

Reddaway v. Banham, [1896] A. C. 199 ; 65 L. J. Q. B. 381 ; 

74 L. T. 289 ; 44 W. R. 638 153,155 

V. Bentham Hemp-Spinning Co., [1892] 2 Q. B. 639 ; 

67 L. T. 301 [C. A.] 154 

Reddle v. Scoolt (1794), 1 Peake, 240 147 

Redgrave v. Hurd (1881), 20 Ch. D. 1 ; 51 L. J. Ch. 118 ; 45 L. T. 

489 ; 30 W. R. 251 [C. A.] 159 

Reed v. Nutt (1890), 24 Q. B. D. 669 ; 54 J. P. 599 ; 59 L. J. Q. B. 

311 ; 62 L. T. 635 ; 38 W. R. 621 268 

Reedie v. London and North Western Rail. Co., Hobbit v. Same 

(1849), 20 L. J. Ex. 65 ; 4 Ex. 244 ; 6 Rail. Cas. 184 ... 65 

Reid t'. British and Irish Steam Packet Co., Limited, [1921] 2 K. B. 

319 ; 90 L. J. K. B. 480 ; 37 T. L. R. 362 ; 65 Sol. J. 326 ; 

14 B. W. C. C. 20 [C. A.] 215 

Bernhardt v. Mentasti (1889), 42 Ch. D. 685 ; 58 L. J. Ch. 787 ; 

61 L T 3"^8 ■ 38 W R 10 .. 231 

Rhodes v. Smethu'rst (1838), 7 L. J. Ex. 273 ; 4 M. & W. 42 ; 1 H. & 



Table of Cases Cited. liii 

PAGE 

H. 237 ; 2 Jiir. 893 ; affirmed in error (1840), 6 M. & W. 351 ; 

9 L. J. Ex. 330 ; 4 Jur. 702 93,96,278 

Bice V. Reed, [1900] 1 Q. B. 54 ; 69 L. J. Q. B. 33 ; 81 L. T. 410 

[C. A.] 292 

Rich V. Basterfield (1847), 4 C. B. 783 ; 6 L. J. C. P. 273 ; 2 Car. & 

K. 257 ; 11 Jur. 696 ; 72 R. R. 716 234 

Richards v. Jenkins (1886), 17 Q. B. D. 544 276 

Richardson v. Atkinson (1723), 1 Stra. 576 283 

V. Silvester (1873), L. R. 9 Q. B. 34 ; 43 L. J. Q. B. 1 ; 

29 L. T. 395 ; 22 W. R. 74 158 

Rickards v. Lothian, [1913] A. C. 263 ; 82 L. J. P. C. 42 ; 108 L. T. 

225 ; 29 T. L. R. 281 ; 57 Sol. J. 281 ; 50 Sc. L. R. 666 ... 14, 80, 

182, 193, 196 
Ridge V. " English Illustrated Magazine," Limited (1913), 29 

T. L. R. 592 105 

Robbins i;. Jones (1863), 15 C. B. (n.s.) 221 220 

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

10 L. T. 602 ; 12 W. R. 909 ; 10 Jur. (n.s.) 1027 ... 108 
— V. Rose (1865), L. R. 1 Ex. 82 ; 35 L. J. Ex. 62 ; 13 L. T. 

471 ; 14 W. R. 225 ; 4 H. & C. 103 ; 12 Jur. (n.s.) 78 ... 237 
Rodgers v. Nowill (1847), 5 C. B. 109 ; 17 L. J. C. P. 52 ; 11 Jur. 

1039 153 

Rofi V. British and French Chemical Manufacturing Co., [1918] 

2 K. B. 677 ; 87 L. J. K. B. 996 ; 119 L. T. 436 ; 34 T. L. R. 

485 ; 62 Sol. J. 620 [C. A.] 114,127 



R. 5 Ex. 204 13 

287 



Romney Marsh (BaiUffs) v. Trinity House (1870), L 

Booth 17. Wilson (1817), 1 B. & A. 59 

Roper V. Public Works Commissioners, [1915] 1 K. B. 45 ; 84 L. J. 

K. B. 219; 111 L. T. 630 

Rose V. Buckett, [1901] 2 K. B. 449 ; 70 L. J. K. B 

670; 50 W. R. 8 [C. A.] 

Rosewell v. Prior (1702), 2 Salk. 460 

Rourke v. White Moss Co. (1877), 2 C. P. D. 205 ; 

283 ; 36 L. T. 49 ; 25 W. R. 263 [C. A.] 
Rowbotham v. Wilson (1860), 30 L. J. Q. B. 49 ; 

8 H. L. Cas. 348 ; 6 Jur. (n.s.) 965 



Rowland v. Wright (1908), 77 L. J. K. B. 1071 ; 24 T. L. R. 851 



60 



736 ; 84 L. T. 

68,69 

234 

46 L. J. C. P. 

57 

L. T. 642 ; 

241 



214 



[C. A.] 
Royal Aquarium and Summer and Winter Garden Society v. 

Parkinson, [1892] 1 Q. B. 431 ; 58 J. P. 404 ; 61 L. J. Q. B. 

409 ; 66 L. T. 513 ; 40 W. R. 450 [C. A.] 123, 127 

Royal Baking Powder Co. v Wright, Crossley & Co (1898), 

15R. P. C. 677 110 

RuofE V. Long & Co., [1916] 1 K. B. 148 ; 80 J. P. 158 ; 85 L. J. 

K. B. 364 ; 114 L. T. 186 ; 32 T. L. R. 82 ; 60 Sol. J. 323 ... 14, 

80, 177, 182, 193 
Rushmer v. Polsue & Alficri, Limited (1905), 21 T. L. R. 183 ; 

affirmed, [1906] 1 Ch. 234 : 75 L. J. Ch. 79 ; 93 L. T. 823 ; 

54 W. R. 161 ; 22 T. L. R. 139 [C. A.]; affirmed Polsue & 

Alficri, Limited v. Rushmer, [1907] A. C. 121 ; 76 L. J. Ch. 

365 ; 96 L. T. 510 ; 23 T. L. R. 362 230, 232 

Russell V. Corser, [1921] 1 A. C. 351 ; 90 L. J. P. C. 77 ; 124 L. T. 

548 ; 37 T. L. R. 244 ; 65 Sol. J. 239 ; 13 B. W. C. C. 476 213 

V. Men of J)evon, 2 T. R. 667 29, 30 

V. Shcnton (1842), 3 Q. B. 449 ; 1 1 1.. J. Q. B. 289 ; 2 G. & 

D. 573 ; 6 Jur. 1059 ; 61 R. R. 249 233, 234 



liv Table of Cases Cited. 



Rust V. Victoria Gravins; Dock Co. and London and St. Katlierine's 
Dock Co. (1887), 36 Ch. D. 113 ; 56 L. T. 210 ; 35 W. R. 673 
[C. A.] 76 

Ryall V. Kidwcll & Son, [1914] 3 K. B. 135 ; 78 J. P. 377 ; 83 
L. J. K. B. 1140 : 111 L. T. 240 ; 30 T. L. R. 503 ; 12 L. 0. R. 
997 [C. A.] 108,224 

Ryan v. Clark (1849), 14 Q. B. 65 271, 273 

• V. Oceanic Steam Navigation Co., Limited, [1914] 3 K. B. 

731 ; 83 L. J. K. B. 1553 ; 110 L. T. 041 ; 30 T. L. R. 302 ; 

58 Sol. J. 303 ; 12 Asp. M. L. C. 406 [C. A.] 72 

Rylands v. Fletcher, see Fletcher v. Ry lands. 



s. 

Sadgrove v. Hole, [1901] 2 K. B. 1 ; 70 L. J. K. B. 455 ; 84 L. T. 

^647 ; 49 W. R. 473 [C. A.] 113 

Sadler v. Great Western Rail. Co., [1896] A. C. 450 ; 65 L. J. Q. B. 

462 ; 74 L. T. 561 ; 45 W. R. 51 46 

V. South Staffordshire and Birmingham District Steam 

Tramways Co. (1889), 23 Q. B. D. 17 ; 53 J. P. 694 ; 58 L. J. 

Q. B. 421 ; 37 W. R. 582 [C. A.] ;.. 256 

St. Helen's Smelting Co. v. Tipping (1865), 35 L. J. Q. B. 66 ; 12 

L. T. 776 ; 13 W. R. 1083 ; 11 H. L. Cas. 642 ; 11 Jur. (n.s.) 

785 ... ... ... ... ... ... ... ...230 231 232 

Salomons V. Knight, [1891] 2 Ch. 294 ; 60 L. J. Ch. 743 ; " 64 L.' T. ' " 

589; 39 W. R. 506 [C. A.] 87 

Salt Lake City v. Hollister (1885), 118 U. S. 256 43 

Salt Union u.Brunner, Mond & Co., [1906] 2 K. B. 822 ; 76 L. J. 

K. B. 55 ; 95 L. T. 647 ; 22 T. L. R. 835 242 

Sarson v. Roberts, [1895] 2 Q. B. 395 ; 59 J. P. -643 ; 65 L. J. Q. B. 

37 ; 73 L. T. 174 ; 43 W. R. 690 ; 14 R. 010 [C. A.] ... 108 

Saunders v. Holborn District Board of Works, [1895] 1 Q. B. 64 ; 
59 J. P. 453 ; 64 L. J. Q. B. 101 ; 71 L. T. 519 ; 

43 W. R. 26 ; 15 R. 25 29 

V. Merryweather (1865), 35 L. J. Ex. 115 ; 13 W. R. 814 ; 

3H. &C. 902; 11 Jur. (n.s.) 655 277 

Saxby v. Manchester and Sheffield Rail. Co. (1869), L. R. 4 C. P. 

198; 38 L. J. C. P. 153; 19L.T. 040; 17 W. R. 293 234 

Sayers v. CoUyer (1884), 28 Ch. D. 103 ; 49 J. P. 244 ; 54 L. J. 

Ch. 1 ; 51 L. T. 723 ; 33 W. R. 91 [C. A.] 86 

Schaffenius v. Goldberg, [1910] 1 K. B. 284 ; 85 L. J. K. B. 374 ; 

113 L. T. 949 ; 32 T. L. R. 133 ; 00 Sol. J. 105 [C. A.] ... 42 
Scotland v. South African Territories (1917), 142 L. T. Jo. 300 ; 

33 T. L. R. 255 42 

Scott V. London Dock Co. (1865), 3 H. & C. 596 ; 34 L. J. Ex. 220 ; 

13 L. T. 148 ; 13 W. R. 410 ; 11 Jur. (n..s.) 204 182, 183 

V. Nixon (1843), 3 Dru. & War. 388; 2 Con. & L. 185; 

Ir. Eq. R. 8 95 

V. Sampson (1882), 8 Q. B. D. 491 ; 40 J. P. 408 ; 51 L. J. 

Q. B. 380 ; 46 L. T. 412 ; 30 W. R. 541 83 

■ V. Shepherd (1763), 2 Wm. Bl. 892 ; 3 Wils. K. B. 403 ... 15 

V. Stansfield (1868), L. R. 3 Ex. 220 ; 37 L. J. Ex. 155 ; 

18 L. T. 572 ; 16 W. R. 911 [C. A.] 17, 121 

Scully V. Scully (1921), Times, June 24th ... ' 260 



Table of Cases Cited. Iv 



Seaman v. Netherclift (1876), 2 C. P. D. 53 ; 46 L. J. C. P. 128 ; 

35 L. T. 784 ; 25 W. R. 159 (C. A.] 121 

Semayne's Case (1605), 5 Co. Rep. 91 c ; 1 Sm. L. C. 104 ... 270 

Senior v. Ward (1859), 1 El. & El. 385 ; 28 L. J. Q. B. 139 ; 7 W. R. 

261 ; 5 Jur. (n.s.) 172 205 

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

54 L. T. 649; 34 W. R. 543 49, 50 

Serrao v. Noel (1885), 15 Q. B. D. 549 [C. A.] 86 

Sewell V. National Telephone Co., Limited, [1907] 1 K. B. 557 ; 

76 L. J. K. B. 196 ; 96 L. T. 483 ; 23 T. L. R. 226 [C. A.] : 132, 262 
Sharp V. Powell (1872), L. R. 7 C. P. 253 ; 41 L. J. C. P. 95 ; 

26 L. T. 436 ; 20 W. R. 584 12 

Sharpington v. Fulham Guardians, [1904] 2 Ch. 449 ; 68 J. P. 510 ; 

73 L. J. Ch. 777 ; 91 L. T. 739 ; 52 W. R. 617 ; 20 T. L. R. 

643 98 

Shelfer v. City of London Electric Lighting Co., Meux's Brewery 

Co. V. City of London Electric Lighting Co., [1895] 1 Ch. 287 ; 

64 L. J. Ch. 216 ; 72 L. T. 34 ; 43 W. R. 238 ; 12 R. 112 [C. A.] 86 
Shepheard v. Whitaker (1875), L. R. 10 C. P. 502 ; 32 L. T. 402 ... 105 
Simmons v. Mitchell (1880), 6 App. Cas. 156 ; 45 J. P. 237 ; 50 L. J. 

P. C. 11 ; 43 L. T. 710 ; 29 W. R. 401 110 

Simpson v. Savage (1856), 1 C. B. (n.s.) 347 ; 26 L. J. C. P. 50 ; 

5 W. R. 147 ; 3 Jur. (n.s.) 161 237 

" Singer " Machme Manufacturers v. Wilson (1877), 3 App. Cas. 

376 ; 47 L. J. Ch. 481 ; 38 L. T. 303 ; 26 W. R. 664 ... 154 
Six Carpenters' Case (1611), 1 Sm. L. C. 132 ; 8 Co. Rep. 

146a: 270,271 

Slater u. Swann (1730), 2 Stra. 872 285 

Smith V. Baker (1873), L. R. 8 C. P. 350; 42 L. J. C. P. 155; 

28 L. T. 637 291 

V. Baker & Sons, [1891] A. C. 325 ; 55 J. P. 660 ; 60 L. J. 

Q. B. 683 ; 65 L. T. 467 ; 40 W. R. 392 ... 184, 187 

V. Chadwick (1884), 9 App. Cas. 187 ; 48 J. P. 644 ; 53 L. J. 

Ch. 873 ; 50 L. T. 697 ; 32 W. R. 687 157 

V. Giddy, [1904] 2 K. B. 448 ; 73 L. J. K. B. 894 ; 91 L. T. 

296; 20 T. L. R. 596 229 

V. Kaye (1904), 20 T. L. R. 261 143 

V. Lloyd (1854), 23 L. J. Ex. 194 ; 9 Ex. 562 ; 2 C. L. R. 

208; 2 W. R. 271 279 

V. London and South Western Rail. Co. (1870), L. R. 6 

C. P. 14 ; 40 L. J. C. P. 21 ; 23 L. T. 678 ; 19 W. R. 

230 23, 200, 201 

V. Marrable (1843), 11 M. & W. 5 ; Car. & M. 479 ; 12 L. J. 

Ex. 223 168 

V. SelwjTi, [1914] 3 K. B. 98 ; 83 L. J. K. B. 1339 ; 111 L. T. 

195 rC. A.]... ... ... ... ... ... 24 25 

V. Streatiicid, [1913] 3"k. B. 764 ; 82 L. J. K. B. 1237 ; 

109 L. T. 173 ; 29 T. L. R. 707 114, 122 

V. Thackcrah (1866), L. R. 1 C. P. 564 ; 35 L. J. C. P. 276 ; 

14 L. T. 761 ; 14 W. R. 832 ; 12 Jur. (n.s.) 545 ; 1 H. & R. 

615 241 

Snag V. Gee (1597), 4 Co. Rep. 16a 109 

Snark, The, [1899] P. 74 ; 68 L. J. P. 22 ; 80 L. T. 25 ; 47 W. R. 

398 ; 15 T. L. R. 170 ; 8 Asp. M. L. C. 483 ; aflirmcd [1900] 

P. 105 ; 69 L. J. P. 41 ; 82 L. T. 42 ; 16 T. L. R. 160 ; 9 Asp. 

M. L. C. 50 [C. A.] 65 



Ivi Table of Cases Cited. 

PAGE 

Soltau V. De Held (1851), 2 Sim. (n.s.) 133 ; 21 L. J. Ch. 153 ; 

16 Jur. 326 87,217,229 

Southeo V. Denny (1847), 1 Ex. 196 ; 17 L. J. Ex. 151 110 

South Hetton Coal Co. v. North Eastern News Association, [1894] 

1 Q. B. 133 ; 58 J. P. 196 ; 63 L. J. Q. B. 293 ; 68 L. T. 844 ; 

42 W. R. 322 ; 9 R. 240 [C. A.] 42, 103, 106 

South Staffordshire Water Co. v. Sharman [1896] 2 Q. B. 44 ; 

65 L. J. Q. B. 460 ; 74 L. T. 761 ; 44 W. R. 653 290 

Spackman v. Foster (1883), 11 Q. B. D. 99 ; 47 J. P. 455 ; 52 L. J. 

Q. B. 418 ; 48 L. T. 670 ; 31 W. R. 548 94 

Spark V. Heslop (1859), 1 El. & El. 563 ; 28 L. J. Q. B. 197 ; 7 W. R. 

312; 5 Jur. (N.s.) 730 80 

Speake v. Hughes, [1904] 1 K. B. 138 ; 73 L. J. K. B. 172 ; 89 L. T. 

576 [C. A.] 107 

Speight V. Gosnay (1891 ), 55 J. P. .501 ; L. J. Q. B. 231 [C.A.] ... 108 
Spoor V. Green (1874), L. R. 9 Ex. 99 ; 43 L. J. Ex. 57 ; 30 L. T. 

393; 22 W. R. 547 94 

Stanley v. Powell, [1891] 1 Q. B. 86 ; 55 J. P. 327 ; 60 L. J. Q. B. 

52 ; 63 L. T. 809 ; 39 W. R. 76 9, 256 

Steam v. Prentice Brothers, Limited, [1919] 1 K. B. 394 ; 88 L. J. 

K. B. 422 ; 120 L. T. 445 ; 35 T. L. R. 207 ; 63 Sol. J. 229 ; 

17 L. G. R. 142 87, 227 

Stedman v. Smith (1857), 8 El. & B. 1 ; 26 L. J. Q. B. 314 ; 3 Jur. 

(N.s.) 1248 274 

Stevens v. Chown, Stevens v. Clark, [1901] 1 Ch. 894 ; 65 J. P. 

470 ; 70 L. J. Ch. 571 ; 84 L. T. 796 ; 49 W. R. 460 ; 

17 T. L. R. 313 27 

V. Midland Rail. Co. (1854), 10 Ex. 352 ; 23 L. J. Ex. 328 ; 

18 Jur. 932; 2 C. L. R. 1300 136 

Stockdale v. Hansard (1839), 9 A. & E. 1 ; 2 P. & D. 1 ; 8 L. J. 

Q. B. 294 ; 3 Jur. 905 ; 48 R. R. 326 120 

Stollmeyer v. Trinidad Lake Petroleum Co., [1918] A. C. 485, 

498 ; 87 L. J. P. C. 77, 83 ; 118 L. T. 514, 518 ... 89, 248 

Stone, Ex parte, Re Giles (1889), 61 L. T. 82 ; 37 W. R. 767 ; 

6 Morrell, 158 69 

— - V. Cartwight (1795), 6 T. R. 411 ; 3 R. R. 220 61 

Storey v. Ashton (1869), L. R. 4 Q. B. 476 ; 38 L. J. Q. B. 223 ; 

10 B. &. S. 337 ; 17 W. R. 727 55, 57 

Stott V. Gamble, [1916] 2 K. B. 504 ; 80 J. P. 443 ; 85 L. J. 

K. B. 1750 ; 115 L, T. 309 ; 32 T. L. R. 579 ; 14 L. G. R. 

769 11 

Street v. Licensed Victuallers' Society (1874), 22 W. R. 553 ... 113 

V. Tugwell (1800), Selwyn's N. P., 13th ed., 1070 ... 229 

Stroyan v. Knowles, Hamer v. Same (1861), 6 H. & N. 454 ... 243, 244 
Stuart V. Bell, [1891] 2 Q. B. 341 ; 60 L. J. Q. B. 577 ; 64 L. T. 

633 ; 39 W. R. 612 [C. A.] 122,124 

— • V. Evans (1883), 49 L. T. 138 ; 31 W. R. 706 211 

Stubbs, Limited v. Mazure, [1920] A. C. 66 ; 88 L. J. P. C. 135 ; 
122 L. T. 5 ; 35 T. L. R. 697 ; 25 Com. Cas. 36 ; 
sub nom. Mazure v. Stubbs, Limited, 56 

Sc. L. R. 535 104, 105 

V. Russell, [1913] A. C. 386 ; 82 L. J. P. C. 98 ; 

108 L. T. 529 ; 29 T. L. R. 409 ; [1913] S. C. (H. L.) 14 ; 50 

Sc. L. R. 676 104, 105 

Sturges V. Bridgman (1879), 11 Ch. D. 852 ; 48 L. J. Ch. 785; 

41 L. T. 219 ; 28 W. R. 200 [C. A.] 233, 236 



Table of Cases Cited. Ivii 



Swainson v. North Eastern Rail. Co. (1878), 3 Ex. D. 341 ; 47 L. J. 

Ex. 372 ; 38 L. T. 201 ; 26 W. R. 413 [C. A.] 207 

Swansea Vale, The (Owners) v. Rice (1911), 27 T. L. R. 440; 

55 Sol. J. 497 214 

Swift V. Jewsbury (1874), L. R. 9 Q. B. 301 ; 43 L. J. Q. B. 66 ; 

30 L. T. 31 ; 22 W. R. 319 52, 160 

Swire v. Leach (1865), 18 C. B. (N.s.) 479 291 

Sydney Municipal Council v. Bourke, [1895] A. C. 433 ; 59 J. P. 

659; 64 L.J. P. C. 140; 72 L.T. 605; 11 R. 48-2 30 

Sykes v. North Eastern Rail. Co. (1875), 44 L. J. C. P. 191 ; 32 L. T. 

199; 23 W. R. 473 72 



T. 

Tackey v. McBain, [1912] A. C. 186 ; 81 L. J. P. C. 130 ; 106 L. T. 

226 ; 49 Sc. L. R. 1015 157 

Taff Vale Railway v. Anialganiated Society of Railway Servants, 

[1901] A. C. 426 ; 65 J. P. 596 ; 70 L. J. K. B. 905 ; 85 L. T. 

147;50W. R. 44 45 

Tafi Vale Rail. Co. v. Jenkins, [1913] A. C. 1 ; 82 L. J. K. B. 49 ; 

107 L. T. 564 ; 29 T. L. R. 19 ; 57 Sol. J. 27 72 

Tancred v. Allgood (1859), 28 L. J. Ex. 362 ; 4 H. & N. 438 ... 286 
Tarleton v. M'Gawley (1793), 1 Peake, 205 ; 3 R. R. 689 ... 151 

Tarrant v. Webb (1856), 18 C. B. 797 ; 25 L. J. C. P. 261 ; 4 W. R. 

640 205 

Tarry v. Ashton (1876), 1 Q. B. D. 314 ; 45 L. J. Q. B. 260 ; 34 L. T. 

97;24W. R. 581 66,219 

Taunton v. Costar (1797), 7 T. R. 431 ; 4 R. R, 481 271 

Taylor v. Dumbarton Burgh and County Tramways Co., Limited, 

[1918], S. C. (H. L.)96; 55Sc. L. R. 443 181 

V. Hawkins (1851), 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 

746 125 

V. Manchester, etc. Rail. Co., [1895] 1 Q. B. 134 ; 59 J. P. 

100 ; 64 L. J. Q. B. 6 ; 71 L. T. 596 , 43 W. R. 120 ; 

14 R. 34 [C. A.] 34, 166 

V. Pritchard, [1910] 2 K. B. 320 ; 74 J. P. 372 ; 79 L. J. 

K. B. 749 ; 103 L. T. 224 ; 26 T. L. R. 496 258 

Temiierton v. Russell, [1893] 1 Q. B. 715 ; 57 J. P. 676 ; 62 L. J. 

Q. B. 412 ; 69 L. T. 78 ; 41 W. R. 565 ; 4 R. 376 [C. A.] 149, 150 
Tenant v. Goldwin (1704), 1 Salk. 360 ; 2 Ld. Raym. 1089 ... 190 

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

18 L. T. 521 ; 16 W. R. 932 ; 9 B. & S. 487 ... 144, 145, 146, 147 
Tharpo v. Slallwood (1843), 12 L. J. C. P. 241 ; 5 Man. & G. 760 ; 

6 Sco. N. R. 715 ; 7 Jur. 492 ; 1 D. & L. 24 ; 73 R. R. 974... 287 
Theyer v. Purnell, [1918] 2 K. B. 333 ; 119 L. T. 285 ; 16 L. G. R. 

840 80, 197 

Thomas v. Bradbury, Agnew & Co., Limited, [1906] 2 K. B. 
627 ; 75 L. J. K. B. 726 ; 95 L. T. 23 ; 54 W. R. 

608 ; 22 T. L. R. 656 [C. A.] 118 

V. Quartcrmaino (1887), 18 Q. B. D. 685 ; 51 J. P. 516 ; 

56 L. J. Q. B. 340 ; 57 L. T. 537 ; 35 W. R. 555 

[C. A.] 24,211 

V. Winchester (1852), 6 New York State Reports, 397 ... 36 

Thompson V. Bernard (1807), 1 Camp. 48 109 

■ ■ — V. Brighton Corporation, Oliver v. Horsham Local 



Iviii Table of Cases Cited. 

PAGE 

Board, [1894] 1 Q. B. 332 ; 58 J. P. 297 ; 63 L. J. Q. B. 181 ; 

70L.T. 200; 42W. R. 161; 9R. Ill 30,31 

Thompson v. Ross (1858), 5 H. & N. 10 ; 29 L. J. Ex. 1 ; 1 L. T. 43 ; 

8 W. R. 44; 5 Jur. (N.s.) 1133 146 

Thomson v. Clanmorris (Lord), [1900] 1 Ch. 718 ; 69 L. J. Ch. 337 ; 

82 L. T. 277 ; 48 W. R 488 ; 10 T. L. R. 290 [0. A.] ... 93 

Thorley's Cattle Food Co. v. Massam (1880), 14 Ch. D. 763 ; 42 L. T. 

851 ; 28 W. R. 900 [C. A.] 88 

Thorne v. Heard, [1894] 1 Ch. 599 [C. A.] ; affirmed, [1895] A. C. 

495 ; 64 L. J. Ch. 652 ; 73 L. T. 291 ; 44 W. R. 155 ; 11 R. 254 93 
Thorogood v. Bryan (1849), 8 C. B. 115 ; 18 L. J. C. P. 336 ... 180 

Thorpe v. Brumfitt (1873), L. R. 8 Ch. 650 251 

Tillett V. Ward (1882), 10 Q. B. D. 17 ; 47 J. P. 438 ; 52 L. J. Q. B. 

61 ; 47 L. T. 546; 31 W. R. 197 198 

TillintT (T.), Limited v. Lick, Kerr & Co., Limited, [1905] 1 K. B. 

562 ; 74 L. J. K. B. 359 ; 53 W. R. 380 ; 21 T. L. R. 281 ... 98 
Timothy v. Simpson (1835), 4 L. J. M. C. 73 ; 1 Cr. M. & R. 757 ; 

5 Tyr. 244 ; 6 Car. & P. 499 ; 40 R. R. 722 266 

Tipping V. St. Helen's Smelting Co. (1865), L. R. 1 Ch. 60 87, 228 

Todd V. Flight (1800), 9 C. B. (n.s.) 377 ; 30 L. J. C. P. 21 ; 3 L. T. 

325 ; 9 W. R. 145 ; 7 Jur. (n.s.) 291 229, 234 

Toogoodu. Spyring (1834), 1 Cr. M. & R. 181 ; 4 Tyr. 582 ; 3 L. J. 

Ex. 347 ; 40 R. R. 523 122 

Toronto Rail. Co. v. King, [1908] A. C. 200 ; 77 L. J. P. C. 77 ; 

98L. T. 650 184 

Tou^h V. North British Rail. Co., [1914] S. C. 291 ; 51 So. L. R. 225 167 
Trebeck v. Croudace, [1918] 1 K. B. 158 ; 82 J. P. 69 ; 87 L. J. 

K. B. 273 ; 118 L. T. 141 ; 34 T. L. R. 57 ; 62 Sol. J. 85 ; 

10 L. G. R. 82 [C. A.] 266 

Trim Joint District School Board v. Kelly, [1914] A. C. 007 ; 83 

L. J. P. C. 220 ; 111 L. T. 305 ; 30 T. L. R. 452 ; 58 Sol. J. 

493 ; 7 B. W. C. C. 274 ; 48 L L. T. 141 214 

Trinidad Asphalt Co. v. Ambard, [1899] 2 Ch. 200 n. ; A. C. 594 ; 

68L. J. P. C. 114; 81 L. T. 132; 48W. R. 116 242 

Tubervil V. Stamp (1697), 1 Salk. 13 199 

Tuberville t;. Savage (1609), 1 Mod. Rep. 3 255 

Tuff V. Warman (1857), 2 C. B. (n.s.) 740, affirmed (1858), 5 C. B. 

(N.s.) 573 ; 27 L. J. C. P. 322 ; W. R. 693 ; 5 Jur. (n.s.) 222 : 179 

Tullidge V. Wade (1709), 3 Wils. 18 76, 83, 148, 208 

Turner v. Coates (1910), 33 T. L. R. 79 177 

V. Doe d. Bennett (1842), 11 L. J. Ex. 453 ; 9 M. & W. 643 ; 

60R. R. 850 277 

V. Kingsbury Collieries, Limited, [1921] W. N. 184 ; 37 

T. L. R. 713 216 

■ V. StaUibrass, [1898] 1 Q. B. 56 ; 67 L. J. Q. B. 52 ; 77 L.T. 

482 ; 46 W. R. 81 [C. A.] 33, 34, 173 

Turton v. Turton (1889), 42 Ch. D. 128 ; 01 L. T. 571 ; 38 W. R. 

22 [C. A.] 154, 155 

Twycross v. Grant (1878), 4 C. P. D. 40 ; 48 L. J. C. P. 1 ; 39 L. T. 

616 ; 27 W. R. 87 [C. A.] 68 

U. 

United Merthyr ColUeries Co., Re (1872), L. R. 15 Eq. 46 ; 21 W. R. 

117 78 

Utiey u. Mitre PubUshing Co. (1901), 17 T. L. R. 720 50 



Table of Cases Cited. lix 



V. 

PAGE 

Vacher & Sons, Limited v. London Society of Compositors, [1913] 

A. C. 107 ; 82 L. J. K. B. 232 ; 107 L.^T. 722 ; 29 T. L. R. 73 ; 

57 Sol. J. 75 ; 50 Sc. L. R. 649 10 

Valentine v. Hyde, [1919] 2 Ch. 129 ; 88 L. J. Ch. 326 ; 120 L. T. 

653 ; 35 T. L. R. 301 ; 63 Sol. J. 390 150 

Vaughan v. Menlove (1837), 6 L. J. C. P. 92 ; 3 Bing. N. C. 468 ; 
4 Scott, 244 ; 3 Hodges, 51 ; 1 Jur. 215 ; 43 R. R. 

711 199 

V. TafE Vale Rail. Co. (1860), 29 L. J. Ex. 247 ; 2 L, T. 

394 ; 8 W. R. 549 ; 5 H. & N. 679 ; 6 Jur. (n.s.) 899 22, 201 

Venables v. Smith (1877), 2 Q. B. D. 279 ; 46 L. J. Q. B. 470 ; 

36 L. T. 509 ; 25 W. R. 584 56 

Vere v. Cawdor (Lord) (1809), 11 East, 568 ; 11 R. R. 268 ... 286 

Verry v. Watkins (1836), 7 C. & P. 308 83, 148 

Victorian Rail. Commissioners v. Coultas (1888), 13 App. Cas. 

222 ; 52 J. P. 500 ; 57 L. J. P. C. 69 ; 58 L. T. 390 ; 37 W. R. 

129 79 

Vine, Ex parte. Re Wilson (1878), 8 Ch. D. 364 ; 47 L. J. Bk. 116 ; 

38 L. T. 730 ; 26 W. R. 582 [C. A.] 69 

Vizetellv v. Mudie's Select Library, Limited, [1900] 2 Q. B. 170 ; 

69 L. J. Q. B. 645 [C. A.] 114 



w. 

Waite V. North Eastern Rail. Co. (1858), El. B. & E. 719 ; 28 L. J. 

Q. B. 258; 7 W. R. 311 181 

WakeKn v. London and South Western Rail. Co. (1886), 12 App. 

Cas. 41 ; 51 J. P. 404 ; 56 L. J. Q. B. 229 ; 55 L. T. 709 ; 

35W. R. 141 183 

Wakley v. Cooke (1849), 4 Ex. 511 ; 19 L. J. Ex. 91 ... 102, 105 

Walker v. Baird, [1892] A. C. 491 ; 61 L. J. P. C. 92 ; 67 L. T. 513 17 

. V. Brewster (1867), L. R. 5 Eq. 25; 37 L. J. Ch, 33; 

17 L. T. 135 ; 16 W. R. 59 229 

■ — V. Great Northern Rail. Co. (1891), 28 L. R. Ir. 69 ... 42 

(Peter) & Son, Limited v. Hodgson, [1909] 1 K. B. 239 ; 

78 L. J. K. B. 193 ; 99 L. T. 902 ; 53 Sol. J. 81 [C. A.] ... 118 

Walley V. Holt (1876), 35 L. T. 631 43 

WalUs V. Hands, [1893] 2 Ch. 75 ; 62 L. J. Ch. 586 ; 68 L. T. 428 ; 

41 W. R. 471 ; 3 R. 351 272 

Walters v. Smith (W. H.) & Son, Limited, [1914] 1 K. B. 505 ; 

78 J. P. 118 ; 83 L. J. K. B. 335 ; 110 L. T. 345 ; 30 T. L. R. 

158 ; 58 Sol. J. 186 264 

Walton V. Waterhouse (1672), 2 Wms. Saund. 420 277 

Warburton v. Great Western Rail. Co. (1866), L. R. 2 Ex. 30; 

36 L. J. Ex. 9 ; 15 L. T. 361 ; 15 W. R. 108 ; 4 H. & C. 695 207 
Ward V. Weeks (1830), 4 Moo. & P. 808 ; 7 Bing. 211 ; 9 L. J. 

(o.s.)C. P. 6 108,115 

Warner V. Riddiford (18.58), 4 C. B. (x.s.) 180 257 

Warwick v. Foulkes (1844), 12 M. & W. 507 ; 1 D. & L. 638 ; 

13 L. J. Ex. 109 ; 8 Jur. 85 ... 83 

Warwick Tyre Co., Limited v. New Motor and General Rubber 

Co., Limited, [1910] 1 Ch. 248 ; 79 L. J. Ch. 177 ; 101 L. T 

889 ; 27 R. P. C. 161 154 



Ix Table of Cases Cited. 



Wason V. Walter (1868), L. R. 4 Q. B. 73 ; 38 L. J. Q. B. 34 ; 

19 L. T. 409 ; 17 W. R. 169 ; 8 B. & S. 671 120 

Watkins v. Lee (1839), 5 M. & W. 270 ; 7 Dowl. 498 ; 8 L. J. Ex. 

266; 3 Jur. 484 137 

V. Naval Colliery Co. (1897), Limited, [1911] 2 K. B. 162 

80 L. J. K. B. 746 ; 104 L. T. 439 ; 55 Sol. J. 347 [C. A.l ; 
reversed, [1912] A. C. 693 ; 81 L. J. K. B. 1056 ; 107 L. T. 

321 ; 28 T. L. R. 569 ; 56 Sol. J. 719 205 

Watson V. Holliday (1882), 20 Ch. D. 780 ; 51 L. J. Ch. 906 ; 46 L. T. 
878 ; 30 W. R. 747 ; affirmed, 52 L. J. Ch. 543 ; 48 L. T. 

545 ; 31 W. R. 536 69 

'v. M'Ewan, [1905] A. C. 480 ; 74 L. J. P. C. 151 ; 93 L. T. 

489 121 

Watt V. Watt, [1905] A. C. 115 ; 69 J. P. 249 ; 74 L. J. K. B. 438 ; 

92 L. T. 480 ; 53 W. R. 547 ; 21 T. L. R. 386 76 

Wear Commissioners v. Adamson (1876), 1 Q. B. D. 546 ; 2 App. 

Cas. 743 ; 47 L. J. Q. B. 193 ; 37 L. T. 543 ; 26 W. R. 217 

[C. A.] ; affirmed (1877), 2 App. Cas. 743 8 

Webb V. Beavan (1883), 11 Q. B. D. 609 ; 47 J. P. 488 ; 52 L. J. 

Q. B. 544 ; 49 L. T. 201 107,109 

■ V. Bird (1863), 13 C. B. (n.s.) 841 ; 31 L. J. C. P. 335 ; 8 Jur. 

(N.s.) 621 245,246 

Weblin v. Ballard. (1886), 17 Q. B. D. 122 ; 50 J. P. 597 ; 55 L. J. 

Q. B. 395 ; 54 L. T. 532 ; 34 W. R. 455 211 

Weir V. Bell (1878), 3 Ex. D. 238 ; 47 L. J. Ex. 704 ; 38 L. T. 929 ; 

26 W. R. 746 [C. A.] 158 

Weld-Blundell v. Stephens, [1920] A. C. 956 ; 89 L. J. K. B. 705 ; 

123 L. T. 593 ; 36 T. L. R. 640 ; 64 Sol. J. 529 80 

Weldon v. Times Book Co., Limited (1912), 28 T. L. R. 143 

[C. A.] ... 114 

Wells u. Head (1831), 4 C. & P. 568 ; 34 R. R. 819 286 

V. Smith, [1914] 3 K. B. 722 ; 83 L. J. K. B. 1614 ; 30 T. L. R. 

623 159 

Wenman v. Ash (1853), 13 C. B. 836 ; 22 L. J. C. P. 190 ; 1 W. R. 

452 ; 1 C. L. R. 592 ; 17 Jur. 579 114 

Wennhak v. Morgan (1888), 20 Q. B. D. 635 ; 52 J. P. 470 ; 57 L. J. 

Q. B. 241 ; 59 L. T. 28 ; 36 W. R. 697 114 

Western Counties Manure Co. v. Lawes Chemical Manure Co. (1874), 

L. R. 9 Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R. 5 130 

Whalley v. Lancashire and Yorkshire Rail. Co. (1884), 13 Q. B. 1). 

131 ; 48 J. P. 500 ; 53 L. J. Q. B. 285 ; 50 L. T. 272 ; 32 W. R. 

711 [C. A.] 193 

Wheeler v. Morris (1915), 84 L. J. K. B. 1435 ; 113 L. T. 644 [C. A.] 14 

i;. Whiting (1840), 9 C. & P. 262 ; 62 R. R. 749 259 

Whitbourne v. Williams, [1901] 2 K. B. 722 ; 70 L. J. K. B. 933 ; 

85 L. T. 271 [C. A.] 146 

White V. France (1877), 2 C. P. D. 308; 46 L. J. C. P. 823; 

25W. R. 878 9,171 

V. Mellin, [1895] A. C. 154 ; 59 J. P. 628 ; 64 L. J. Ch. 308 ; 

72 L. T. 334 ; 43 W. R. 353 ; 11 R. 141 ... 110, 130 

V. Riley, [1921] 1 Ch. 1 ; 89 L. J. Ch. 628 ; 124 L. T. 168 ; 

36 T. L. R. 849 : 64 Sol. J. 725 [C. A.] 11 

V. Spettigue (1845), 14 L. J. Ex. 99 ; 13 M. & W. 603 ; 

1 Car. & K. 673 ; 9 Jur. 70 ; 67 R. R. 753 25 

V. Steadman, [1913] 3 K. B. 340 ; 82 L. J. K. B. 846 ; 

109 L. T. 249 ; 29 T. L. R. 563 175 



Table of Cases Cited. Ixi 

PAGE 

White (John) & Sons v. White (J. & M.), [1906] A. C. 72 ; 75 L. J. 

P. C. 14 ; 9J L. T. 64 248 

Whitehead v. Parks (1858), 2 H. & N, 870 ; 27 L. J. Ex. 169 ... 250 
Whitehouse v. Fellowes (1861), 10 C. B. (n.s.) 765 ; 30 L. J. C. P. 

Nt 305 ; 4 L. T. 177 ; 9 W. R. 557 95,96 

Whitmores (Edenbridge), Limited v. Stanford, [1909] 1 Ch. 427 ; 

78 L. J. Ch. 144 ; 99 L. T. 924 ; 25 T. L. R. 169 ; 53 Sol. J. 

134 194, 248 

Whittaker v. London County Council, [1915] 2 K. B. 676 ; 79 J. P. 

437 ; 84 L. J. K. B. 1446 ; 113 L. T. 544 ; 31 T. L. R. 412 ; 

13 L. G. R. 950 27 

Whit-wham v. Westminster Brymbo Coal & Coke Co., [1896] 2 Ch. 

538 ; 65 L. J. Ch. 741 ; 74 L. T. 804 ; 44 W. R. 698 [C. A.]... 77 
Whyler v. Bingham Rural Council, [1901] 1 K. B. 45 ; 64 J. P. 

77 ; 70 L. J. K. B. 207 ; 83 L. T. 652 ; 17 T. L. R. 23 

[C. A.] 30 

WifFen v. Bailey and Romford Urban Council, [1915] 1 K. B. 600 ; 

79 J. P. 145 ; 84 L. J. K. B. 688 ; 112 L. T. 274 ; 31 T. L. R. 

64 ; 59 Sol. J. 176 ; 13 L. G. R. 121 [C. A.] 132,138 

Wilkins (Frederick) & Brothers, Limited v. Weaver, [1915] 2 Ch. 

322 ; 84 L. J. Ch. 929 143 

Wilkinson v. Downton, [1897] 2 Q. B. 57 ; 66 L. J. Q. B. 493 ; 

76 L. T. 493 ; 45 W. R. 525 79,159 

— V. Haygarth (1847), 12 Q. B. 837 ; 16 L. J. Q. B. 103 ; 

11 Jur. 104 274 

Williams v. Birmingham Battery and Metal Co., [1899] 2 Q. B. 
338 ; 68 L. J. Q. B. 918 ; 81 L. T. 62 ; 47 W. R. 
680 [C. A.] 185, 186, 205, 208 

?'. Mason (1874), 28 L. T. 232 160 

V. Mersey Docks and Harbour Board, [1905] 1 K. B. 

804 ; 60 J. P. 196 ; 74 L. J. K. B. 481 ; 92 L. T. 44 ; 53 W. R. 

488 ; 21 T. L. R. 397 ; 3 L. G. R. 529 [C. A.] 71, 98 

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

30 L. T. 332 ; 22 W. R. 878 113, 126 

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

35L. T. 218 19 

Wilson V. Finch Hatton (1877), 2 Ex. D. 336 ; 46 L. J. Ex. 489 ; 

36 L. T. 473 ; 25 W. R. 537 168 

V. Hodgson's Kingston Brewery Co., Limited, [1915] 

W. N. 352 ; 80 J. P. 39 ; 85 L. J. K. B. 270 ; 113 

L. T. 1112; 32T. L. R. 60; 60Sol. J. 142 ... 66 

V. Newberry (1871), L. R. 7 Q. B. 31 ; 41 L. J. Q. B. 31 ; 

25L. T. 695; 20 W. R. Ill 194 

V. Tumman (1843), 12 L. J. C. P. 306 ; 

6 Sco. N. R. 894 ; 1 D. & L. 573 

• — V. United Counties Bank, Limited, 

88 L. J. K. B. 1033 ; 122 L. T. 76 

V. Waddell (1876), 2 App. Cas. 95 ; 3i 

Wing V. London General Omnibus Co., [1909] 2 K. B. 652 ; 73 J. P. 
429 ; 78 L. J. K. B. 1063 ; 101 L. T. 411 ; 25 T. L. R. 729 ; 

53 Sol. J. 713 ; 7 L. G. R. 1093 [C. A.] 183,200 

Wingate v. Waite (1840), 6 M. & W. 739 ; 9 L. J. Ex. 319 ; 4 Jur. 

860 20 

WinkfiM, The, [1902] P. 42 ; 71 L. J. P. 21 ; 85 L. T. 668 ; 

50 W. R. 246 [C. A.] 287,291 

Winsmoro v. Grcenbank (1745), Willos, 577 143 



6 Man. & Gr. 236 ; 




; 64R. R. 770 ... 


53 


[1920] A. C. 102; 




5 


68 


L. T. 639 


193 



]xii Table of Cases Cited. 



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

Ex. 194 ; 16 L. T. 771 ; 16 W. R. 15 ... 6, 220 

V. Wright (1842), 10 M. & W. 109 ; 11 L. J. Ex. 415 ; 

62 R. R. 534 36, 164 

Wisdom V. Brown (1885), 1 T, L. R. 412 117 

Wolverhampton New Waterworks Co. v. Hawkesford (1859), 6 C. B. 
(N.s.) 336 ; 28 L. J. C. P. 242 ; 5 Jur (n.s.) 1104 ; 7 W. R. 

464 27 

Wood V. Conway Corporation, [1914] 2 Ch. 47 ; 78 J. P. 249 ; 
83 L. J. Ch. 498 ; 110 L. T. 917 ; 12 L. G. R. 571 
rC A 1 228 230 

V. Durham (Earl) (1888), 21 Q. B. D. 501 ; 57 L. J. Q. B. ' 

547 ; 59 L. T. 142 ; 37 W. R. 222 83 

- V. Leadbitter (1845), 14 L. J. Ex. 161 ; 13 M. & W. 838 ; 

9 Jur. 187 259 

V. Waud (1849), 3 Ex. 748 ; 18 L. J. Ex. 305 ; 13 Jur. 742 : 249 

Woodley v. Metropolitan District Rail. Co. (1877), 2 Ex. D. 384 ; 

46 L. J. Ex. 521 ; 36 L. T. 419 [C. A.] 186 

Wootton V. Sievier, [1913] 3 K. B. 499 ; 82 L. J. K. B. 1242 ; 

109 L. T. 28 ; 29 T. L. R. 596 ; 57 Sol. J. 609 [C. A.] ... 118 

Worth V. Gilling (1866), L. R. 2 C. P. 1 197 

Wren v. Wild (1869), L. R. 4 Q. B. 730 ; 38 L. J. Q. B. 327 ; 

20 L. T. 1007 ; 10 B. & S. 51 130 

Wright V. London and North Western Rail. Co. (1876), 1 Q. B. D. 

252 ; 45 L. J. Q. B. 570 ; 33 L. T. 830 [C. A.] ... 209 

V. Williams (1836), 5 L. J. Ex. 107 ; 1 M. & W. 77 ; 1 Tyr. 

& G. 375 ; 1 Gale, 410 ; 46 R. R. 265 236 

Wyatt V. White (1860), 29 L. J. Ex. 193 ; 1 L. T. 517 ; 8 W. R. 

307 ; 5 H. & N. 371 133 

Wyld V. Pickford (1841), 10 L. J. Ex. 382 ; 8 M. & W. 443 ; 58 R. R. 

775 289 



Y. 

Yarmouth v. France (1887), 19 Q. B. D. 647 ; 57 L. J. Q. B. 7 ; 

36 W. R. 281 186,187,211 

Yates V. Whyte (1838), 4 Bing. N. C. 272 ; 5 Scott, 640 84 



z. 

Zierenberg v. Labouchere, [1893] 2 Q. B. 183; 57 J. P. 711 ; 
63 L. J. Q. B. 89 ; 69 L. T. 172 ; 41 W. R. 675 ; 4 R. 464 
[C. A.] 117 



TABLE OF CANADIAN CASES CITED 



(Most of the cases cited in the Canadian Notes have been 
decided in the Canadian courts or in the Privy Council on 
Canadian appeals. Cases arising in other jurisdictions are specially 
indicated.) 



Albertan Publishing Co. r. Munns 

Alien V. Flood ( Eng.) 155b, 

Anderson r. Johnston 

Appleby r. Eric Tobacco Co 

Archibald ;-. Maclaren 

Arsenault r. The King 

Audette v. O'Cain 

Aumont v. Cousineau 



PAGE 

i::{Ob 
15oc 
208b 
251a 
138a 
22oa 
251a 
130e 



B. 

Bannister r. Thompson 

Barbeau r. McKeown 

Barr r. Toronto Ry. Co 

Baxter r. Jones 

Beamish /'. Glenn Sl)a. S9b. 251a, 

Bergeron r. Dagenais 

"' Berniiia.'' The ( Eny.) 

Bertram r. Builders' Association of North Winnipeg 

Bettger r. Turner 

RiriiiUifihani Ledger Co. V. Buchanan (Ala.) 

Blacker d- Lake V. Elliott. (Eng.) 

Bois /•. 1 )cscliene 

Bolton /•. MacDonald 

Bonneau r. The King 

I)()rd<'au.x r. Jobs 

I'.ostou Uubher Shoe Co. /■. P.oston Rubber Co. of Montreal. 

l'.(».\(l r. ( 'it.v of Toronto 

fircnnnn \ . honiighji ( A'.Z. ) 

/irirxf V. Maechth'. ( Wis. ) 

Brinsnudd V. Harrison (Eng.) 

British Coluuibia Electric Ry. Co. r. r>oach 

/-. Tui-ii('i- 

I'rookman r. Conway 

P>rown r. Nolan 

r. I'ritisli Columbia Elrdric 

Brunelle / . (Jiraril 

I'uckley c. .Mott 



Kv. Co. 



..".7a. ."'.Tb. 



148a 
251 e 
187b 

37c 
251b 

66b 
lS7d 

8na 
201b 
268a 

37b 
130(1 
279c 

47b 
130a 
155c 
251c 

47b 

47c 

47c 
187d 

IKSb 
27!)a 
1 48a 

73b 
13()b 
lS7d 



C. 

'■jihill & Co. r. Strand Theatre <'o 225a 

( "ainbridge c. Sutherlaiui 1 18a 

Caiiiiit' /■. |?cig(iori (Ktn 



Ixii b Table of Canadian Cases Cited. 

PAGE 

Canadian Pacific Ry. Co. r.- Blain 187b 

r. Carruthers 2~h] 

r. Frechette 84e 

: c. Jackson 84a. 84c 

V. Waller Ldc. l.'iSa 

Cardwell v. Breckinridge '2'>\h 

Carlisle r. Grand Trunk Ry. Co 371) 

("arr r. Canadian Pacific Ry. Co 27fHi 

( 'arrington r. Mosher 1.30d 

V. Russell 130e 

Central Vermont Ry. Co. /•. Franchere 7fib 

Chadwick r. City of Toronto ■ 225a 

Chandler Electric Co. r. 11. H. Fuller & Co 2r»la 

Chaudiere Machine & Foundry Co. r. Canada Atlantic Rv. 

Co 98a 

Chinese Empire Reform Association r. Chinese Daily News- 
paper Publishing Co 47a. l?>Ob 

Ohiniquy i\ Begin 180c 

(^lub de Garnison de Quebec r. Lavergnc 130d 

Cockshutt Plow Co. r. Macdonald <>6b. 6<V- 

Collard r. Armstrong 84d. 148a 

Connor r. Princess Theatre 201a 

Consolidated Plate Glass Co. r. Caston Wb 

Cook r. City of Vancouver 2."')ld 

Cooke V. Midland d- Great Western Hi/. Co. (Ireland) .... 187d 

Corby r. Foster l^tJc 

< 'otter r. Osborne l.")b 

Couture v. Couture 270h 

Crowther r. Town of Cobourg 89a. 251 d 

Cullen r. Town of Glace Bay 31b 

Curley r. Latreille 25b. fjfia 

Cusson r. Galibert , 251 a 

D. 

Delahanty v. Michigan Centi-al Ry 187b 

Denis r. Kennedy 201 a 

Derry v. Peek (Eng.) I(i2a 

Dickson v. Reuters Telegram Co. (Eng.) 37a 

Dominion Natural Gas Co. r. Collins 37a 

Dominion Telegraph Co. r. Sih'er 130c 

Drysdale r. Dugas 251a 

Dunn V. Dominion Atlantic Ry. Co lS7a 

r. Gibson 2.5d. .S4a 

Dupont r. Quebec Steamship Co 40a, 216a 

Du Tremble r. Poulin 201 a 

Dutton V. Canadian Northern Ry. Co 2.S4a 

E, 

E. r. F 25d 

Eastern Construction Co. r. National Trust Co 294a 

England i'. Lamb 73a 

Evans v. Bradburn 2mh, 2fi8c 

F. 

Farquhai'son i\ Canadian Pacific Ry. Co 25d 

r. Imperial Oil Co 251d 



Table of Canadian Cases Cited. Ixii c 

PAGE 

Feigenbaum r. Jackson 251(1 

Field V. Richards 294a 

Fletcher v. Ri/land.'^ (Eiig.) 201a 

Fralick r. Grand Trunk Ry. Co 216a 

G. 

Garrioch r. Mackay 279a 

Gaudet r. Hayes 279c 

Germain r. Ryan l?>Oh 

Giblin v. McMullen :',7t) 

Gillls Supply Co. r. Chicago. Milwaukee and I'uget Sound 

Ry. Co 16*2a 

Govenlock r. London Free Press Co 1.30d 

Graham r. Knott l.">.jb 

Grand Trunk Ry. Co. v. Jennings 7;!b. 84d 

Great Northvve.stern Telegraph Co. r. Dominion Fish & Fruit 

Co 87a 

Greer r. Faulkner 84b. 294a. 2r>4b 

H. 

Halifax Street Ky. Co. r. Joyce .'Jla. 22.")a 

Ham r. Canadian Northern Ry. Co 84c 

Hampton v. MacAdam 187a 

Harasymcuk r. Montreal Light. Heat & Power Co 47a 

Hebert v. Hebert 25d, 268c 

Heinrichs v. Wiens 15ob 

Henderson r. Canada Atlantic Ry. Co 84c 

Hertlein r. Ilertlein 130c 

Herve r. Dominique 148a 

Hill r. Winnipeg P^lectric Ry. Co 66c 

Honan i . Parsons l.SOe 

Hoovii' r. Nunn 98b 

Hunter r. Richards 2olb 

I. 

Her r. Gass 25c. 84a. 84c. 268a. 268b. 268c 

Imperial Oil Co. r. Bashford 201b 

Inteinoscia r. Rxmelli <;6b 

Iredale r. Loudon 251c 

Irvine v. (Hhsoii ( Kii.) 47b 

J. 

Jarvis r. Hall S4b 

Jo.sd r. Metallic Rooting Co 1.55b 

K. 

Kay V. Chapnuiii 291b 

Keay r. City r)f Regjna 89a 

King ;•. P.ailey 9,Sb, 148b 

r. Xorthern Xavigatinn ( "o .•',71). i,s.7i, 

Koski r. Canadian Xftrthciri Ry. ( "o 21>>a 

Krng Furniture Co. r. I'.erlin Cnion of Amalgamated Wood- 
workers 1 .V»b 



Ixii d Table of Canadian Cases Cited. 



L. 

PAGE 

Lajoie v. Robert lS7d 

Lake Simcoe Ice & Cold Storage Co. v. McDonald . . . .251e. 279b 

Lamarche p. Les Kev. Peres Oblats 187c 

Lamb r. Kincaid 84b. 279b 

Leahy r. Town of North Sydney HDa 

Lechiw r. Sewrey l.S7a 

Lellis V. Lambert 148b 

Little r. Smith ?,la 

Lloyd r. Smith Brothers & Wilson 84d 

Longmore v. J. D. McArthur Co 47c 

Lorraine r. Norrie 225a 

Lortie v. Wright <>6h 

Love V. Machray 225b. 251b 

V. New Fairview Corporation 81a 

Lowther r. Baxter l.lOe 

Lyons v. Gullirer (Eug.) 225a 



M. 

McArthur r. Tyas (J6a 

McCatherin r. .Tamer 25c 

Mc(iinitie r. Condreau 187d 

Macgregor r. Macgregor 47a 

^Liclntosh /■. City of Westmount 251a 

Mcintosh r. Simcoe 'County 66c 

Mackenzie /". Cunningham 66a 

r, Kayler SOa. 251b 

r. S<-otia Lumber & Shipping Co 84b. 84d. 2!)4a 

McKerral r. City of Edmonton 73b 

McLeod r. Holland 84a, S4d. 26'ic 

Maille r. La Cie. du Publication du Canada 130e 

Makowecki r. Yachimyc 251 d 

Manitoba Free Press Co. r. Nagy 84b. 130f 

Mann r. Fitzgerald 279c 

Markey r. Sloat 84a 

Marson r. (irand Trunk Pacific Ry. Co .S4b 

Millard r. Toronto Rv. Co 84d 

Miller v. (irand Trunk Ry. Co 7;!b. 84d 

Miner v. Canadian Pacific Ry. Co 84c 

Mitchell r. Clement 130b 

INIontreal. Citv of. r. Boudreau 84c. J>8a 

r. McGee 84d. 98b 

4& Ryan r. (hiaranteed Pure Milk Co... 31b 

Street Ky. Co. r. Ritchie 13^a 

Moran r. Burroughs lS7d 

r. O'Regan 130c 

Moselev r. Ketchum 201b 

Mullin r. Bogie 1 48a 

" My Valet,"' Ltd. r. Winters 155c 

N. 

,A'«rf«H V. Dehhiu.r ( France) 47b 

National Trust Co. r. McLeod -*16b 

Newswander /'. (iiegerich 141a 

Nightingale r. Union Colliery Co 37b 

Nipisicpiit Co. r. Canadian Iron Corporation 251d 



Table of Canadian Cases Cited. Ixii e 

PAGE 

Noble r. Xoble !i79c 

Nokes r. Kent Co .37c 

Noyes v. La Cie. du rublication du Canada 130b 

O. 

Oakley v. Webb 89a, 251b 

O'Connor r. City of Victoria S4d 

Ortenberg r. Planiondon 130b 

Osborne v. Clark 118b 

P. 

Pabst Brewing Co. v. Ekers 15.5c 

Patterson r. Edmonton Bulletin Co 1.30d 

Pelletier r. Koy 27nb 

Perraiilt r. Cautliier 155c 

Petrie r. (Judiih Lumber Co 162a 

Pope /•. Peate 251a 

Preston v. Hilton 251a, 251c 

PuUDinfi V. IIIU ( /•;«,</.) 1.30c 

I'uterbaugh v. (iold Medal Manufacturing Co 1.30c 

Q. 

Quebec Light, Ileat &. Power Co. r. Vandry 201a 

Ky. Liglit tS: Power Co. v. Poitras 73b 

Quillinan r. Stuart 130c 

Quirk r. I )udley 89a 

R. 

Robert r. Herald Co i:!Od 

Robinson r. Osborne 279c 

Rogers /■. C J rand Trunk Pacific Ry. Co 25d 

Rowe r. (Quebec Central Ry. Co 25d 

Rudd r. Cameron 1.30c 

Rutledge r. Astell , 1.30b 

S. 

St. Laurent v. Ilainel 148b 

Schwartz r. Witiniiieg Electric Ry. (^o 187d 

Scott I-. Citv of Quebec ^Cyc 

r. Harris i:'.8a 

^hari) V. I'oircll ( I'jiifi. ) 25c 

Slier ren r. Peinson 279a 

Xlih'lds V. IHiuhhuriir ( l<Ui<i. ) .37c 

Shipton, 'I'own of, r. Smith S4e 

Small r. ( 'ity of ( "algary 9Sb 

Soullieres r. I )c Repent igny l.">Oc 

South A it.straHaii Cn. V. ly'icliardxoH (S. Aiist.) lS7b 

Stanford r. Imperial f)il Co, 8i)b 

Stanley r. Hayes 47b 

Stewart r. Cobalt Cnrling & .Skating .\ssociation 187c 

r. Steele .".la. 187a 

r. Sterling l.'JOb 

Stoner r. Skeeiie 148a 



Ixii/ 



Table of Canadian Cases Cited. 



PAGE 

Story r. Stratford Mill Biiil.ling Co 40a 

Suttlees V. Cantin '2~}lc 

Sydney, City of, v. Slaney 187c 

T. 

Taylor r. Roberton 187a 

Thipn r. Hank of British North America OfJa 

Thompson r. Strange 7.'?a 

Thoro(/ood v. Bn/an { Eiuj.) 187(1 

Tidd V. Skinner {N.Y.) 148b 

Topay V. Crow's Nest Pass Coal Co 47a 

Toronto Ry. Co. r. Toms 84c 

Truro. Town of. r. Archibald 9Sa 

Tuohey v. City of Medicine Hat 31b, 187c 

V. 

Van Dorn r. Felger 14Sb 

}'ictorian RaUtray Commissioners V. Coiilfas (Vict.) 84c 

Valiquette v. Fraser 187c 

W. 

Waddell r. Richardson -25b 

Wade r. The News-Advertiser 130d 

Waite V. yorfh-JJastern Ry. Co. (Eng.) 187d 

Walker r. Martin <|i,>o 

Wallace r. Canadian Pacific Ry. Co lS7b 

Walters r. Moore l^Sb 

Ward V. Township of Grenville 2old 

Ware d de Freville v. British Motor Trade Association 

( Eng.) 155a. 155b 

Washburn r. Robertson 2n8b 

Williams v. Hays (N.Y.) -17b 

V. Local T'nion No. 1502 of the United Mine 

W'orkers of America "i7c, 155b 

Wood r. Le Blanc 279a 

Woods r. I'lummer .* w>c 

Woolman r. Cummer 268a 

Y. 

Young v. Attwood (A/W.) -^^o 

Z. 

Zdrahal c. Shatney l^^a 



THE LAW OF TORTS. 



INTRODUCTION. 



" The maxims of law," says Justinian, " are these : To live 
honestly, to hurt no man, and to give every one his due." 
The practical object of law must necessarily be to enforce 
the observance of these maxims, which is done by punishing 
the dishonest, causing wrongdoers to make reparation, and 
insuring to every member of the community the full enjoy- 
ment of his rights and possessions. 

Infractions of law are, for the purposes of justice, divided 
into two great classes : viz., pubhc and private injuries. 
The former consist of offences against the community 
at large, or offences — commonly called crimes — which, 
although primarily affecting individuals, are subversive 
of law and order ; and as no redress can be given to the 
community, except by the prevention of such acts for 
the future, they are either stopped by injunction at the 
suit of the Attorney-General, or (in the case of crimes) 
visited Avith some deterrent and exemplary punishment. 

Private or civil injuries, on the other hand, are merely 
violations or deprivations of the legal rights of individuals. 
These admit of redress. The law, therefore, affords a 
remedy by forcing the wrongdoer to make reparation ; 
and in some cases also restrains him by injunction from 
repeating the wrong. 

But as injuries are divided into criminal and civil, so 
the latter are sub-divided into two classes, of injuries ex 
contractu and injuries ex delicto — the former being such 
as arise out of the violation of duties undertaken by con- 
tract, and the latter (commonly called torts) such as spring 
from the violation of duties imposed by law, to the per- 
formance or observance of which every member of the 
community is entitled as against the world at large. 

Although, however, these divisions are broadly correct, 
the border-line between them is by no means well defined. 



Ixvi Introduction. 

Indeed, from the very nature of things, each division must 
to some extent overlap the others. Thus the same set of 
circumstances may constitute a crime, a tort, and a breach 
of contract. At the same time, as those circumstances 
may be regarded from each of the three points of view, no 
confusion ensues from the fact that they cannot be exclu- 
sively placed in any one of the three classes. 

In this Work an attempt has been made to state the 
principles which the law apphes to those facts which 
constitute torts. 



PART I. 
RULES RELATING TO TORTS IN GENERAL. 



( .'^ ) 



CHAPTER I. 
OF THE NATURE OF A TORT. 

Art. 1. — Definition of a Tort. 

A Tort is an act or omission which, independent 
of contract, is imauthorised by law, and results 
either — 

(a) in the infringement of some absolute right 

to which another is entitled ; or 

(b) in the infringement of some qualified right 

of another causing damage ; or 

(c) in the infringement of some public right 

resulting in some substantial and par- 
ticular damage to some person beyond 
that which is suffered by the public 
generally. 

Xo one has yet succeeded in formulating a perfectly 
satisfactory definition of a tort ; indeed, it may be doubted 
whether a scientific definition, which would at the same 
time convey any notion to the mind of the student, is 
possible. 

A tort is described in the Common Law Procedure Act, Comment 
1852, as " a wrong independent of contract." If we use on various 
the word " Avrong " as equivalent to violation of a right ofXort 
recognised and enforced by law by means of an action for 
damages, the definition is sufficiently accurate, but scarcely 
very lucid ; for it gives no clue as to what constitutes a 
wrong or violation of a right recognised and enforced by 
law, 

A tort may be described as a breach of a legal duty 
arising independently of contract and for which an action 



Of the Nature of a Tort. 



Art. 1 



Examina- 
tion of 
author's 
definition. 



Meaning of 

"damnum " 

and 

"' injuria y 



for damages can be maintained in a court of Common 
Law (a). 

It will be perceived from the above definition that three 
distinct factors are necessary to constitute a tort according 
to our law. First, there must be some act or omission on 
the part of the person committing the tort (the defendant) , 
not being a breach of some duty undertaken by contract. 
Secondly, the act or omission must not be authorised by 
law. Thirdly, this wrongful act or omission must, in some 
way, inflict an injmy, special, private, and peculiar to the 
plaintiff, as distinguished from an injury to the public at 
large ; and this may be either by the violation of some 
right in rem, that is to say, some right to which the plaintiff 
is entitled as against the world at large, or by the infliction 
on him of some loss of property, health, or material comfort. 

It is desirable at this stage to examine the third of these 
three factors a little more closely. 

One often sees it stated in legal works that a damnum 
absque injurid is not actionable, but that an injuria sine 
damno is. 

By damrium is meant damage in the sense of substantial 
loss of money, comfort, health, or the like. By injuria is 
meant an miauthorised interference, however trivial, with 
some right conferred by law on the plaintiff {ex. gr. the 
right of excluding others from his house or garden). All 
that the maxims come to, therefore, is this : that no action 
lies for mere damage [damnum), however substantial, caused 
mthout breach of a legal right ; but that an action does 
lie for interference with another's absolute legal private 
right, even Avhere unaccompanied by actual damage, e.g. a 
trespass {h). 

Read by the light of these observations, both the maxims 
in question are correct. For the interruption of an absolute 
right, however temporary and however slight, is considered 
by the law to be damaging, and a proper subject for 
reparation ; and substantial damages have more than once 

(a) And see Salmond, Law of Torts, 5th ed., p. 7. 
(6) Entick v. Carrington (1765), 19 St, Tr, 10G6. 



Definition of a Tort. 5 

(in cases of false imprisonment) been awarded, where the Art. 1. 

plaintiff's surroundings were very considerably improved 

during his unla^\^ul detention. But when no absolute 
private right has been invaded by a wrongful act, then no 
action mil lie unless the plaintiff has sustained actual loss 
or damage. 

Damnum absque injuria means damage without infringe- Damnum 
ment of any legal right, and it is clear that this is not ""f^^f^ 

7./? lUTZd 

actionable, even though the damage is caused by an 
unauthorised act, such as a crime or breach of trust. 

For instance, murder is an act unauthorised by law, and it 
may mflict most cruel and particular damage on the family 
of the murdered man ; but, nevertheless, at common law, 
that gives them no civU remedy against the murderer (c). 
So, if one libels a dead man, his children have no right to 
redress, although it may cause them to be cut off from all 
decent society, for, though a man has in a sense a right 
to his OMU rejjutation, he has none in the reputation of his 
father {d). So a breach of trust, although not permitted in 
equity, and usually followed by private and particular loss 
to the beneficiaries, is not an infringement of any legal 
right, and therefore cannot properly be said to constitute 
a tort. 

In the case of the invasion of an absolute private right, injuria sine 
there is a A^Tong done to the plaintiff by the mere infringe- damno. 
ment of that right, and for every wrong there is a remedy 
by action " uhi jus ihi remediiim.'^ 

A man has an absolute right to his property, to the 
immunity of his person, and to his liberty. Thus, in actions 
of trespass whether to goods, lands, or the person (including 
assault and false imprisonment), actual damage is not an 
essential part of the cause of action, and a j)laintiff is 
entitled to damages for the mere infringement of these 
rights. 

But there are some private rights which are only qualified infnnge- 

rights, that is, rights to be saved from loss, and no action mont of 

qualified 

(c) See Clark v. London General Omnibus Co., [1900] 2 K. B. 648 private 
[C. A.], post, p. 71. rights. 

(d) Broom v. Ritchie (1904), 6 F. 842, Ct. of Sess. 



Of the Nature of a Tort. 



Art. 1. 



Infringe- 
ment of 
public 
rights. 



The act or 
omission 
must be 
unauthor- 
ised. 



mil lie for an infringement of these rights without proof of 
actual damage. Thus, a person has not an absolute right 
not to be deceived, and in an action for fraud it is necessary 
for the plaintiff to show that the deceit complained of 
resulted in damage. So, too, in actions for nuisance (with 
some exceptions), malicious prosecution and negUgence, 
damage is an essential part of the cause of action ; as in 
all these cases the right infringed is onh' a qualified right 
— a right to be preserved from damage by certain acts or 
omissions of other persons. 

Lastly, a tort may consist in the infringement of a pubhc 
right, i.e., a right which all men enjoy in common, coupled 
with particular damage. Take, for example, rights of high- 
way. If a highway is obstructed, an injury is done to the 
public, and for that wTong the remedy is by indictment or 
by proceedings by the Attornej^-General on behalf of the 
public. If every member of the public could brmg an 
action, the number of possible actions for one breach of 
duty would be without limit (e). But if, in addition to 
the injury to the public, a special, peculiar and substantial 
damage is occasioned to an indi\idual bej'ond the injury 
suffered by the public generally, then it is onh^ just that 
he should have some private redress {/). 

It will, therefore, be seen that there must be an act or 
omission either causmg (a) an infringement of some absolute 
private right, or (b) an infringement of a qualified private 
right resulting in damage, or (c) an infringement of a public 
right resulting in siibstantial and particular damage to some 
person beyond that suffered hy the public in general. 

Again, the act or omission must be unauthorised, i.e., not 
justifiable by law. If a sheriff enters on a man's land under 
due process of law to execute a wTit oifi.fa., his act, though 
an infringement of the right of property, is not tortious, 
because it is authorised by the judgment and wTit of 
execution. So, too, an entrj^ on land may be justified by 

(e) See Winterbottom v. Lord Derby, L. R. 2 Ex. 316 ; W. H. 
Chaplin <t Co. Limited v. Westminster Corporation, [1901] 2 Ch. 
329. 

(/) See Lyon v. Fishmongers' Co., 1 App. Cas. 602 ; and Fritz v. 
Hobson, 14 Ch. D. 542. 



Definition of a Tort. 

necessity, or by its being done lawfully in the exercise of a Art. 1. 

right of way or by licence of the owner of the land. And 

trespasses to the person by beating or imj)risonment may 
be justified by a sentence of a court of competent jurisdic- 
tion, and an assault may be justified by its being done in 
self-defence, or as reasonable chastisement by a parent or 
schoolmaster. In all these cases the acts done are prima 
facie tortious, but are not actionable because they are 
authorised by law. 



Art. 2. — Ubi jus ihi remedium. 

A violation of every legal right (not being a 
breach of contract) committed Avithout lawful 
justification is a tort. 

" Any jDerson who obtains possession, however inno- Explanation. 
cently, of the goods of another who has been fraudulently 
deprived of them, and disposes of them whether for his 
own benefit or for that of any other person, is guilty of a 
conversion " {g). " Every invasion of private property, 
be it ever so minute, is a trespass " {h). 

An action for tort is the appropriate remedy for every 
infringement of right which is not a breach of contract : 
and as rights are infinitely various, so are torts. 

The rights, infringements of which constitute torts, ciassifica- 
include— tion of 



(1) Personal rights, such as the right everyone has to 
have his person immune from damage. Infringements of 
this right give rise to actions for trespass to the person 
(assault and false imprisonment), and when the character 
or reputation is attacked to actions for libel and slander. 
An action for negligence also lies for personal injuries 
caused by the negligence of another. 

(2) Pdglits of jyroperty. — These include rights in respect 
of corporeal and of incorporeal property. Infringements of 
these rights give rise to actions for trespass to land and 

(g) Hollins v. Fowler (1875), L. R. 7 H. L. 7.57. 
(h) Entickv. Carrimjton, !!• Sir. 'J'r. KiOij. 



rights. 



B Of the Nature of a Tort. 

Art. 2. goods, nuisance, conversion and detention of goods, infringe- 

ments of trade mark and patent rights, interference with 

easements and franchises, trade obstruction, fraud, etc. 

Art. 3. — Of Volition and Intention in relation 
to the unauthorised Act or Otnissiorfi. 

(1) The unauthorised act or omission must 
be attributable to active or passive volition on 
the part of the party to be charged, othermse 
it will not constitute an element of a tort (i). 

(2) Nevertheless a want of appreciation of 
its probable consequences affords no excuse ; 
for every person is presumed to intend the 
probable consequence of his acts. 

(3) Want of knowledge that the unauthorised 
act or omission is an infringement of right, as a 
rule affords no excuse. 

The student must carefully distinguish between the 
voluntary nature of the act or omission and the want of 
appreciation of its consequences. It would be obviously 
unjust to charge a man with damage caused by some 
inevitable accident, over Avhich, or over the cause of which, 
he had no control. On the other hand, it would be highly 
dangerous to admit the doctrine, that a man who does an 
act, or makes an omission voluntarily, should be excused 
the consequences by reason of lack of judgment or of 
ignorance. So if a man consumes the goods of another, 
thinking they are his own, or trespasses on another's land, 
erroneously believing that there is a right of way, he is 
liable for the wrongful act he has done, and it is no excuse 
that he believed he had a right to do the act complained of. 

Illustrations. The following illustrations will, however, help to accen- 
tuate the difference better than pages of explanation : 

(1) A newspaper pubHshed a defamatory article of a 
person described as " Artemus Jones." Neither the author 

(i) See Wear Commissioners v. Adamson, 1 Q. B. D. 546 [C. A.], 
and S. C, in H. L., 2 App. Cas. 743; The Nitro- glycerine Case, 
15 Wall. 524 (1872). 



Volition and Intention. 9 

of the article nor the editor knew that there was in existence Art. 3. 

a person of the name of Artemus Jones, and therefore they 

could not have intended to defame any particular person. 
In fact there was a barrister of that name to whom readers 
of the article might reasonably think the article referred. 
As the article was in fact defamatory of him, the pubUshers 
were liable, the injury to the plaintiff being the natural 
consequences of their publishing the article (j). 

So, too, if a person makes a false defamatory statement 
of another, it is no defence that he believed it to be true (j) . 

(2) A person has an unguarded shaft or pit on his pre- 
mises. If another, lawfully coming on to the premises on 
business, falls down the shaft, and is injured, he may bring 
his action, although there was no intention to cause him or 
anyone else any hurt. For the neglect to fence the shaft 
was an unauthorised omission, and the fall of the plaintiff 
was the probable consequence of it {k). 

(3) On the other hand, where a horse drawing a 
brougham under the care of the defendant's coachman in 
a public street, suddenly and without any explamable 
cause bolted, and notwithstanding the utmost efforts of 
the driver to control him. swerved on to the footway and 
knocked down the plaintiff, it was held that the defendant 
was not liable, as the accident was not attributable to any 
wrongful act or omission of the defendant or his servant (/). 

(4) So, too, where a man accidentally shot another 
without intending to do so, and without being guilty of any 
negligence or want of care in the use of his gun, it was held 
that no action would' lie. He had not been guilty of any 
imprudent act or omitted any precaution which a reasonable 
and prudent man would have taken (m). 

(j) E. Hulton d; Co. v. Jories, [1910J A. C. 20. 

{k} lyidernutur v. Dames, L. li. 2 C. P. 311 ; White v. France, 
2 C. P. D. .308 ; Norman v. G. W. lly. Co., [1915] 1 K. B. 584 ; 
Cox V. Coul.son, [1916] 2 K. B. 177 [C. A.J ; Pritchard v. Pcto, [1917 
2 K. B. 17.3. 

(Z) Manzoni v. Douglas, C Q. B. D. 145 ; Tlie NUro-;/lycerin 
Case, ante. 

(m) Stanley v. Powell, [1891] 1 Q. B. 86. 



10 Of the Nature of a Tort. 

Art. 4. 
__L ' Art. 4. — Malice and Moral Guilt. 

Except ill the case of an action for malicious 
prosecution, evil motive is not an essential in- 
gredient in tort, but its presence may defeat 
a claim of privilege. 

An evil motive cannot make wrongful an act 
that would otherwise not be so {n). 

A good motive cannot justify an act that 
would otherwise be wrongful (o). 

Malice. " Malice in common acceptation of the term means ill- 

will against a person, but in its legal sense it means a 
wrongful act done intentionally without just cause or 
excuse " (p). 

It is true to say of some acts that they are not tor- 
tious unless done maliciously, provided that the term 
" maliciously " is used in its strict legal sense. But malice 
in its popular sense has very little to do with the law of 
torts, and no action can ever be brought for a lawful act 
although done out of malice. 

Thus, if A. intentionally and without just cause or 
excuse induce B. to break his contract of service with C, 
and damage results to C, A. commits a tort and may 
be sued by C. ; and it is immaterial whether A. is in- 
fluenced by good or bad motives {q). He may honestly 
think he is acting in the best interests of B. and C. His 
motive is then good ; there is no " malice " in the sense of 
ill-will ; but the act is malicious in the legal sense (r). 

(n) Bradford Corporatioti v. Pickles, [1895] A. C. 587 ; Alien v. 
Flood, [1898] A. C. 1 ; Maxey Drainage Board v. G. N. By. Co., 
106 L. T. 429 (1912). 

(o) Polhill V. Walter (1832), 3 B. & Ad. 114 ; Consolidated Co. v. 
Curtis, [1892] 1 Q. B. 495. 

(p) Per Bayley, J., in Bromage v. Prosser, 4 B. & C. 247, at 
p. 255. 

(q) Quinn v. Leathetn, [1901] A. C. 495; Long v. Smithson (1918), 
118 L. T. 678 ; Hodges v. Webh, [1920] 2 Ch. 70. 

(r) Note the limitation jjut on this habihty by the Trades Disputes 
Act, 1906, s. 3, and see Conway v. Wade, [1909] A. C. 506 ; Vacher c& 
Sons, Limited v. London Society of Compositors, [1913] A. C. 107 ; 
Larkin v. Long, [1915] A. C. 814. 



Malice and Moral Guilt. 11 

But if A. by lawful means induces B. not to enter into a Art. 4. 
contract of service with C, A. commits no wrong, and C. 
has no cause of action however much damage he may suffer, 
and although A. may be acting from the most wicked and 
selfish motives ; for A.'s evil motive does not make wrongful 
his act which, apart from motive, is not a tort (s). 

So, too, a man has a right to pump underground water 
from the subsoil under his own land. And this act being 
itself lawful is not actionable when done spitefully for the 
purpose of injuring his neighbour (t). 

The one kind of action in which evil motive is a necessary Malicious 
ingredient is maHcious prosecution, and there is an apparent prosecution 
exception in the case of libel and slander. As to these, see 
post, x\rts. 57 and 63. 

Even negligence involves no moral guilt. The state of Negligence. 
mind of the defendant is immaterial. The only question 
is, What has he done or left undone ? Has he acted as a 
reasonable and prudent man would do in the circumstances ? 
Not, Has he done what he thought was the best thing to 
do ? The law pays no regard to the moral culpability of 
the defendant, but considers only whether his conduct has 
been reasonable and prudent as judged from the standpoint 
of the average man. 

It is said, indeed, that in order to constitute fraud there Fraud, 
must be some moral turpitude ; and in a sense this is true. 
Actionable fraud consists in the making of an untrue 
representation with the intention of deceiving and with 
knowledge that it is untrue, or absolutely recklessly without 
caring whether it is true or untrue. The man who does this 
is no doubt in most cases morally guilty ; but it is con- 
ceivable that a man may, from the highest motives and 
honestly believing that he is doing right, make a statement 
which he knows to be untrue, intending that that statement 
should deceive. Nevertheless his conduct, though possibly 
morally justifiable, is inexcusable in law. 

(8) Allen V. Flood, [1898] A. C. 1 ; Stott v. Gamble, [191G] 2 K. B. 
504; Davies v. Thomas, [1920] 2 Ch. 189; White v. Riley, [1921] 
I Ch. \. 

(t) Bradford Corporation v. Pickles, [1895] A. C. 587. 



12 Of the Nature of a Tort. 

Art. 4. When, therefore, m the law of torts the phrase " malice " 

is used, it must be understood in its legal sense, i.e.. as 

meaning a wTongful act done intentionally without just 
cause or excuse. Only in connection with malicious pro- 
secution or to defeat a claim of privilege has it a different 
meaning, and there, as wUl be seen hereafter, it does not 
necessarily mean ill-will against a person. 



Art. 5. — Of the connection of the Damage with the 
unauthorised Act or Omission. 

Wlien the cause of action is for actual dam- 
age, the unauthorised act or omission must be 
sho\\Ti to have been the effective cause of the 
damage, but not necessarily the immediate 
cause, that is to say, the damage must be such 
as would in the ordinary course of events flow 
from the unauthorised act or omission, as a 
natural and probable consequence. 

Illustrations. (1) The defendant, in breach of the MetropoHtan Police 
Act, 1839, washed a van m a public street and allowed the 
waste water to run down the gutter towards a grating 
leading to the sewer, about twenty-five yards off. In 
consequence of the extreme severity of the weather, the 
grating was obstructed by ice, and the water flowed over a 
portion of the causeway, which was iU-paved and uneven, 
and there froze. There was no evidence that the defendant 
knew of the grating being obstructed. If it had not been 
stopped, and the road had been in a proper state of repair, 
the water would have passed away without doing anj' 
mischief to anyone. The plaintiff's horse, while being led 
past the spot, slipped upon the ice and broke its leg. It 
was held that the defendant was not liable, as it was not 
the ordinary and probable consequence of the defendant's 
act that the water should have frozen over so large a portion 
of the street so as to occasion a dangerous nuisance {u). 

(u) Sharp v. Powell, L. R. 7 C. P. 258. 



Connection of Damage with Wrongful Act. 13 

(2) In another case the defendant wrongfully left a house- Art. 5. 

van and steam plough for the night on the grassy side of 

a highway. During the evening a mare which was being 

driven on the highway in a cart was frightened by the 
house-van and plough. The mare was a kicker, but the 
driver did not know she was. She shied, kicked, gaUoped 
away kicking, got her leg over the shaft and fell, and kicked 
the driver as he fell out of the cart. The driver was killed, 
and it was held that his death flowed directly from the 
unauthorised act of the defendant. The mare being a 
kicker, her running away and the accident to the driver 
was not an unnatural or improbable consequence of her 
being frightened {v) . 

(3) The plaintiff was riding a bicycle on a highway on the 
footpath of which was a fowl belonging to the defendant. 
The fowl was frightened by a dog and flew between the 
spokes of the bic3^cle wheel. Assuming it was a wrongful 
act to let the fowl be on the footpath, it was not a natural 
or probable result of its being there that it should fly 
between the spokes of the cyclist's wheel and upset him (w). 

(4) Defendants' vessel, owing to the negligence of their 
servants, struck on a sandbank, and becoming from that 
cause unmanageable was driven by wind and tide upon a 
sea-wall belonging to the plaintiffs, which it damaged : — 
Held, that the neghgence of the defendants' servants was 
the effective cause of the damage to the sea-wall ; for it 
put the vessel into such a condition that it must necessarily 
and inevitably be impelled in whatever direction the com- 
bined effect of wind and tide would at the moment take it, 
and this was towards the sea-wall {x) . 

The above illustrations will show the appHcation of the Explanation 
rule where there is a cham of causation between the Avrong- 
ful act or omission and the damage consisting of natural 
causes, whether of inanimate nature or of the lower animals. 
But sometimes there intervenes between the wTongful act 

{v) Harris v. Mobb-s, 3 Ex. D. 268. 

{lo) Hadwcll V. Righton, [1907] 2 K. B. 345 ; Jones v. Lee (1912), 
106 L. T. 123. * 

(x) Bailiffs of Romney Marsh v. Trinity House, L. R. 5 Ex. 204. 



14 



Of the Nature of a Tort. 



Art. 5. 

Novus actus 
interveniens. 



Intervening 
act of third 
person. 



or omission and the damage some act or omission of a 
third person. In these cases the rule is the same, though 
its aiDpHcation may be more difficult. It may be thus 
expressed : 

Where an act of a third perso7i intervenes between the 
wro7igful act or omission and the damage, the wrongful act or 
omission is the effective cause if what the third person does is 
what such a person would naturally he expected to do in the 
circumstances {allowing for the frailty of human nature), hut 
not otherwise (y). 

Illustrations. This rule is well illustrated by cases in which carts have 
been left on a highway unattended. 

(1) In one case a cart was so left and a child seven years 
old got upon the cart in play, another child led on the 
horse and the first child was thereby thrown out and hurt. 
The owner of the cart was held liable, as it was a natural 
thing for children in such circumstances to play with an 
unattended cart (z). And where a driver of a van left it in 
charge of a tail-boy who drove on and came into collision 
with the plaintiff's carriage, it was held that the driver's 
leaving the cart in charge of a boy was the effective cause 
of the damage ; what else could be expected of a boy than 
that he should try to drive the van ? (a). 

(2) But when a railway van was left by a railway com- 
pany safely on a siding, locked, braked and coupled to a 
train, and mischievous boys trespassed on the siding and 
uncoupled the van and set it rurming down a slope so that 
it crossed a level crossing and injured the plaintiff, it was 
held that the company were not liable, as they could not 
reasonably have anticipated what actually happened {&). 
And in another case a drunken cabdriver, who fell asleep 
inside his cab, was held not liable for damage caused by 

(y) Engelhartv. Farranl di- Co., [1897] 1 Q. B. 240 [C. A.] ; Richards 
V. Lothian, [1913] A. C. 203 ; Ruojf v. Lonq cfc Co., [1916] 1 K, B. 
155. 

(z) Lynch v. Nurdin, 1 Q. B. 29. 

(a) Engelhart v. Farrant dk Co., sujira. 

(b) McDowall v. Great Western Rail. Co., [1903] 2 K. B. 331 [C. A.], 
followed in Wheeler v. Morris (1915), 113 L. T. 644 [C. A.]. 



Connection of Damage with Wrongful Act. 15 

another drunken cabdriver getting on to the box of his cab Art. 5. 

and driving away for his own pleasure. If the first drunken 

driver had thought about it at all he would not have 
thought of another drunken driver getting on his box and 
driving off (c). 

(3) Where a gas company supplied a defective service 
pipe which leaked, and a gasfitter employed to test it went 
to look for the leak with a lighted candle, and an explosion 
resulted, it was held that the explosion was the direct 
consequence of the defendant's negligence in supplying a 
defective pipe {d). 

(4) In the famous squib case the facts were that a person 
wrongfully threw a squib on to a stall at a fair, the keeper 
of which, m self-defence, threw it off again ; it then alighted 
on another stall, was again thrown away, and finally ex- 
ploding, blinded the plaintiff. The Uability of the person 
who originally threw the squib was in question, and De 
Grey, C.J., said : " It has been urged that the mtervention 
of a free agent will make a difference : but I do not consider 
Willis and Ryal (the persons who merely threw away the 
squib from their respective stalls) as free agents in the 
present case, but acting under a compulsive necessity for 
their own safety and self-preservation " (e). 

Art. 6. — The Act or Omission must be 
unauthorised. 

(1) An act or omission which is prima facie 
tortious is not actionable if it is done under 
some lawful excuse. 

(2) Among lawful excuses are that the act 
or omission is : 

(i) An Act of State ; 
(ii) A judicial act ; 
(iii) An executive act ; 

(c) Mann v. Ward, 8 T. L. K. 699 [C. A.]. 

(d) Burrows v. March Gas and Coke Co., L. R. 7 Ex. 96. 

(e) Scott V. Shepherd, 2 W. Bl. 892 [C. A.]. 



16 Of the Nature of a Tort. 

Art. 6. (iv) An act or omission authorised by statute ; 
(v) An act or omission done by leave and 
licence. 

Explanation. Besides these excuses there are others of a more special 
character, which are dealt with in connection with those 
torts in relation to which they generally arise. 

The general excuses above enumerated are shortly 
exjDlained in the following Articles. Some of them are 
more fully explained in later portions of this work. 



Art. 7. — Act of State. 

No action can be brought for damage resultmg 
from an Act of State, whether the transaction 
constituting an Act of State be between two 
independent states or between a state and an 
individual foreigner (/). 

Note. — It is not easy to define an Act of State ; but it 
may be laid do^n generally that Acts of State are of two 
kinds : (1) Those which are transactions between two 
independent states, such as wars, treaties, annexation of 
territory, and so forth. An individual who suffers from 
such transactions has no cause of action, whatever other 
remedy he may have. (2) Those which are transactions 
between a state {i.e., the government of this or any other 
country) and an individual foreigner. Sir James Stephen 
says (gr) : " I understand by an Act of State an act injurious 
to the person or to the property of some person who is not 
at the time of that act a subject of Her Majesty ; which act 
is done by any representative of Her Majesty's authority, 
civil or military, and is either previously sanctioned, or 
subsequently ratified by Her Majesty. Such acts are by 
no means very rare, and they may, and often do, involve 
destruction of property and loss of life to a consider- 
able extent." Though Acts of State of this kind are not 

(/) Halsbury's Laws of England, Vol. I., pp. 14, 15, 
(g) History of the Criminal Law, Vol. II., p. 61. 



Act of State. 17 

confined to warlike operations, nevertheless warlike opera- Art. 7, 

tions come within the rule. So a foreigner who has been 

wounded or whose property has been destroyed in war, has 
no cause of action in respect thereof {h) . 

It must be remembered, however, that the doctrine as to 
Acts of State can apply only to acts which affect foreigners, 
and which are done by the orders or with the ratification of 
the sovereign. " As between the sovereign and his subjects 
there can be no such thing as an Act of State." So if one 
British subject destroys the property of another by the 
express command of the King, that command is no defence 
in an action of tort, for " courts of law are established for 
the express purpose of limiting j)ublic authority in its 
conduct towards individuals " (i). And an Act of State 
cannot be pleaded where the plaintiff is an alien but resi- 
dent in the King's Dominions (j). 

Art. 8. — General Immunity of Judicial 
Officers. 

(1) No action lies against a judge of a superior 
court in respect of any act done by him in his 
judicial capacity, even though he act oppres- 
sively, maliciously, and corruptly (Jc). 

(2) No action lies against a judge of an inferior 
court in respect of any act done by him within 
his jurisdiction (Z). 

(3) A judge of an inferior court is liable for 
anything he does in his judicial capacity 
but without his jurisdiction if he knew or had the 
means of knowing facts which would show that 
he had not jurisdiction (m). 

(/«) The leading case is Buron v. Denman (1859), 2 Ex. 1(57. 

(i) See (g), p. 05 ; Walker v. Baird, [1892] App. Cas. 491. 

0') Johnstone v. Pedlar, [1921] W. N. 229 (H. L.). 

{k) Scott V. Stansfield, L. R. 3 Ex. 220 ; Anderson v. Gorrie, 
[1895] 1 Q. B. 668 [C. A.]. 

(Z) Doswell V. Impey, 1 B. & C. 163, 169 . Houlden v. Smith, 
14 Q. B. 841. 

(m) Calder v. Halket, 3 Moo. I'. C. 28. 

c 



18 Of the Nature of a Tort. 

Art. 8. (4) No action lies against certain judicial 

officers in respect of acts done within the scope 
of their official capacity, e.g., an Official 
Receiver {n). 

Note. — The Supreme Court of Judicature (including the 
Court of Appeal and all the divisions of the High Court of 
Justice) is a superior court, as also are Assize Courts. 

Inferior courts include county courts, the mayor's court, 
quarter sessions, and petty sessions. 

It will be observed that the protection given to judges 
covers not merely what they do lawfully, as when they 
sentence convicted criminals to imprisonment, but also 
in many cases what they do unlawfully, as if a judge 
sentences an innocent person to imprisonment. 

If it were not for the rule now under consideration a 
judge would be liable to an action for assault or false 
imprisonment if he ordered the arrest of or sentenced to 
imprisonment an innocent person. So, too, judges cannot 
be sued for slander in respect of defamatory words uttered by 
them in their judicial capacity. The follo%ving illustrations 
are cases of assault or false imprisonment. Illustrations of 
the immunity of judges from actions for libel and slander 
will be found in Art. 56. 

Illustrations. (1) Where the judge of the Supreme Court of Trinidad 
and Tobago caused the plaintiff to be imprisoned in default 
of findmg bail, and the jury found that he had overstrained 
his judicial powers, and had acted in the administration of 
justice oppressively and maliciously, and to the prejudice 
of the plaintiff and the perversion of justice, the Court of 
Appeal held that, nevertheless, no action lay (o). 

(2) Similarly, if a judge of a superior court acting in his 
judicial capacity sentences or orders a person to be im- 
prisoned, no action for assault or false imprisonment hes, 

(n) Bottomley v. Brougham, [1908] 1 K. B. 584. 
(o) Anderson v. Gorrie, [1895] 1 Q. B. 668 [C. A.]. 



General Immunity of Judicial Officers. 19 

however erroneous and corrupt the sentence or order may Art. 8. 
have been. 

(3) It A^dll be noticed that though a judge of a superior 
court is protected, provided the judge is acting in his 
judicial capacity, in the case of a judge of an inferior 
court {p) the protection only extends to acts done by him 
within his jurisdiction. But if he exceeds his jurisdiction, 
as by sentencing a prisoner for an offence over which he 
has no jurisdiction, or in a place where he has no jurisdic- 
tion, although he acts in his judicial capacity, he is not 
protected, and may be sued for trespass. 

The protection of the rule, however, extends to all cases 
in which upon the facts before him he would have jurisdic- 
tion. If on the facts as they are brought before him a 
judicial officer has jurisdiction, he is excused, even though 
when all the facts are known it is seen that he has none. 
But if he has before him facts from which he knew or ought 
to have known that he had no jurisdiction, he is not pro- 
tected. If he assumes jurisdiction when in fact he has 
none by shuttmg his eyes to the facts, or by reason of his 
ignorance of the laAv, he is Hable for any tort he commits 
in excess of his jurisdiction (g). 

(4) So where a police magistrate fined a person for not 
causing his child to be vaccinated, and issued a distress 
warrant in default of jDayment, he was held liable as the 
summons itself showed he had no jurisdiction, the prose- 
cution being more than six months after the offence (r). 

Art. 9. — General Immunity of Executive Officers. 

(1) An executive officer, such as a sheriff or 
gaoler or constable, actmg on a warrant valid on 

(p) It is not quite clear that the full measure of protection 
extends to inferior courts not of record (such as justices of the peace), 
but see the Justices Protection Act, 1848 (11 & 12 Vict, c, 44), s. 1, 
and Pease v. Chaytor, 3 B. & S. 620. 

(q) Houlden v. Smith, 14 Q. B. 841 ; Willis v. Maclachlan, 1 Ex. D. 
376. See Haggard v. Pelicier Frires, [1892] A. C. 61 [P. C.]. ; 
Quinn v. Pratt, [1908] 2 Ir. R. 69. 

(r) Policy V. Fordham, 91 L. T. 52.'5. The case is reported on 
another point, [1904] 2 K. B. 345. Sec post, p. 97. 



20 Of the Nature of a Tort. 

Art. 9. the face of it and issued by a person who has 
jurisdiction, is absolutely protected for anything 
he does in pursuance of the warrant (<s). 

(2) But a warrant or order of a court which 
has no jurisdiction in the matter, is no protec- 
tion (t) except in the case of constables, who 
are protected by statute for arresting under a 
warrant of a justice, notwithstanding any defect 
of jurisdiction {u). 

Note. — Thus, when a governor of a prison, in obedience 
to a warrant of (Commitment which directed that the plaintiff 
should be imprisoned in a certain gaol for seven days, 
detained the prisoner from August 25th (the day following 
that of his arrest) until August 31st, it was held that, as 
he had acted in obedience to a warrant issued by a court 
which had jurisdiction, no action for false imprisonment lay 
against him, whether the sentence properly ran from the 
day of the arrest (August 24th) or from the day when he 
was lodged in prison (August 25th) {v). 

So, too, a sheriff is absolutely protected if under a writ 
of fi. fa. he seizes the goods of the judgment debtor. 
But the writ is no protection to him if he seizes the goods 
of some other person, for the writ does not authorise him 
to do that. 



Art. 10. — Authorisation by Statute. 

(1) If the legislature directs or authorises the 
doing of a particular thing, the doing of it 
cannot be wrongful and no action will lie for 
any damage resulting from doing it, if it be 
done ivithout negligence. 

(2) An action does he for doing that which 

{s) Henderson v. Preston, 21 Q. B. D. 362 [C. A.] ; OUiet v. Bessey, 
T. Jones Rep. 214. 

(t) Clark V. Woods, 2 Ex. 395 ; Wingate v. Waiie, 6 M. & W. 739. 

(u) See Art. 119. 

{v) Henderson v. Preston, 21 Q. B. D. 3C2. 



Authorisation by Statute. 21 

the legislature has authorised, if it be done Art. 10. 

negligently (w). 

(3) If the legislature merely permits a thing 
to be done if it can be done without causing 
injury, an action lies if it is done in such a 
manner as to cause injury (x). 

When the legislature expressly empowers a railway com- Explanation, 
pany to make a railway on a particular site and to run 
trains upon it, no action lies against the company for any 
nuisance caused by reason of the making of the railway on 
that site and the running of trains without negligence. 
Acts of Parliament giving such powers usually contain 
provisions for compensating persons who suffer by reason 
of their lands being taken or injuriously affected by the 
exercise of the statutory powers, but no action lies, for 
what the legislature has expressly authorised cannot be 
wrongful. 

There is, however, an implied obligation not to be negli- 
gent in carrying out statutory powers and duties, and for 
breach of this obligation an action lies. 

By many Acts of Parliament local authorities and other 
bodies are given general powers to execute works, such as 
making sewerage works for their district, erecting hospitals 
for infectious diseases, and the like. These things may 
obviously be nuisances if done or made in unsuitable places, 
but are not necessarily nuisances. Whether an Act is 
merely permissive, or is one which expressly authorises the 
doing of a thing, whether it be a nuisance or not, is a 
question of construction : but generally when the thing to 
be done must necessarily cause injury to someone, the Act 
will be construed as authorising the doing of it in any case : 
if the thing to be done will not necessarily cause injury, but 
will only do so if done in certain places or a certain way, 

(w) Per Lord Blackburn : Geddis v. Proprietors of Bann Reser- 
voir, 3 App. Cas. 4.30, 455 ; Hammersmith Rail. Co. v. Brand, L. R. 4 
H. L. 171 ; for a recent example of misfeasance see Carpenter v. 
Finsbury Borough Council, [1920] 2 K. B. 195. 

{x) Metropolitan Asylum District v. Hill, 6 App. Cas. 193 ; Charing 
Cross, etc. Electricity S^ipply Co. v. London Hydraulic Power Co., 
[1914] 3 K. B. 772. 



22 Of the Nature of a Tort. 

Art. 10. the Act will be construed as permissive only. " It cannot 

now be doubted," says Lord Halsbury (y), "that a 

railway company constituted for the purpose of carrying 
passengers, or goods, or cattle, are protected in the use of 
the functions with which Parliament has entrusted them, 
if the use they make of those functions necessarily involve 
the creation of what would otherwise be a nuisance at 
common law." 

Illustrations. (1) The running of the trains upon a railway constructed 
under statutory powers caused noise, vibration, and smoke, 
which depreciated the value of the plaintiff's property. It 
was held that as the Act had authorised the running of the 
trains, and as the damage complained of was a necessary 
result, no action would lie at common law {z). 

(2) The Metropolitan Asylum District Board were autho- 
rised to purchase lands and erect buildings to be used as 
hospitals. But the Act did not imperatively order these 
things to be done. The Board erected a small-pox hosj^ital, 
which was, in point of fact, a nuisance to owners of neigh- 
bouring lands. On these facts it was held that the Board 
could not set up the statute as a defence (a). The Act 
was construed as meaning that a smaU-pox hospital might 
be built and maintained if it could be done without creating 
a nuisance, whereas the Railway Acts are construed to 
authorise the construction of the railway, whether a 
nuisance is created or not. 

(3) A railway company authorised by statute to use 
locomotives on their line, set fire to the plaintiff's planta- 
tion by sparks emitted from a locomotive. They had used 
every precaution at that time known to prevent sparks, and 
had been guilty of no negligence, so they were protected by 
their statutory authority from liability (6). If they had not 

(y) London and Brighton Rail. Co. v. Truman, 11 App. Cas. 45, 
at p. 50. 

(z) Hammersmith, etc. Rail. Co. v. Brand, L. R. 4 H. L. 171. 

(a) Metropolitan Asylum District v. Hill, 6 App. Cas. 193. As 
to the evidence necessary to sustain a quia timet action for an 
injunction to prohibit a proposed small-pox hospital, see Att.-Gen. 
V. Manchester Corporation, [1893] 2 Ch. 87. 

(b Vaughan v. Tajf Vale Rail. Co., 5 H. & N. 679. 



Volenti non fit Injuria. 23 

had express powers to run locomotives they would have Art. 10. 

been liable at common law, even though there was no 

negligence in the use of the locomotive (c). But in a later 
case where sparks set fire to dry clippings negligently left 
by the railway company on an embankment, and the fire 
spread thence on to the plaintiff's land and set fire to his 
crops, it was held that the company was liable, by reason 
of negligence (d). 



Art. 11. — Volenti non fit injuria. 

A person who consents to damage being done 
cannot bring an action in respect thereof. 

(1) The application of this rule to cases where there is 
express consent is simple. A man who gives another per- 
mission to trespass on his land, or to touch his person, 
cannot afterwards bring an action for such tresj)ass. Thus 
" leave and licence " is always a good defence to any 
action for tort. But of course anything done in excess 
of the leave and licence may be the subject of an action ; 
as, for instance, if I give a man permission to walk on my 
land, doing no damage, and he does damage. 

(2) The rule, however, is more difficult to apply in cases Incurring 
where the person damaged has not definitely consented to "sk. 
the particular act or omission causing the damage, but has 
voluntarily accepted the risk of damage being done by some 

act or omission of another. It has been held that if a 
person trespasses on land in defiance of a warning that 
there is danger in so doing (in the particular case the 
danger was from spring guns), he cannot bring an action 
for damage resulting from that danger (e). And the rule 
has even been extended to apply to cases where a person 
has accepted the risk of dangers accompanjdng his employ- 
ment — such as those arising from the dangerous condition 

(c) Jones V. Festiniog Rail. Co., L. R. 3 Q. B. 733. 

(d) Smith V. London and South Western Rail. Co., L. R. 6 C. P. 
14, and see the Railway Fires Act, 1905, post. 

(e) Ilott V. Wilkes. 3 B. & A. 304. See also Lygo v. Newbold, 9 Ex. 
302. 



24 Of the Nature of a Tort. 

Art. 11. of the place where he works (/). This appHcation of the 
rule will be better ajjpreciated later, and is fully dealt 
with in connection with the law of negligence (g) . 

(3) And a person is not disentitled to recover merely 
because he knows of the existence of danger and takes the 
risk of incurring it. The amount of the danger and the 
risks, and all the circumstances, must be taken into account. 
So where the defendants made a trench in the only outlet 
from a mews and left only a narrow passage on which they 
heaped rubbish, and the plaintiff led his horse out of the 
mews over the rubbish, and it fell into the trench and was 
killed, it was held to be jaroperly left to the jury whether or 
not the cabman had persisted contrary to express warning 
in running upon a great and obvious danger. And the 
jury having found for the plaintiff, he was entitled to 
judgment (h). 



Art. 12. — To tvhat Extent Civil Remedy inter- 
fered with where the unauthorised Act or 
Omission constitutes a Felony. 

(1) Where any unauthorised act or omission 
is, or gives rise to consequences which make 
it, a felony, and it also violates a private right, 
or causes private and peculiar damage to an 
individual, the latter has a good cause of action. 

(2) But the policy of the law will not allow 
the person injured to pursue civil redress, if 
he has failed in his duty of bringing, or endea- 
vouring to bring, the felon to justice, and his 
action will be stayed until the necessary steps 
have been taken {i). 

(3) Where the offender has been brought to 

(/) Thomas v. Quartermaine, 18 Q. B. D. 685. 

(g) See post. Art. 87. 

{h) Glayards v. Dethick, 12 Q. B. 439. See the observations of 
Bramwell, L.J., on this case in Lax v. Darlington Corporation, 
5 Ex. D. 28, 35. 

(i) Smith V. Selwyn, [1914] 3 K. B. 98. 



Civil Remedy for Felonious Act. 25 

justice at the instance of some third person Art. 12. 

injured by a similar offence, or where prosecu- 

tion is impossible by reason of the death of the 
offender, or a reasonable excuse is shown for 
his not having been prosecuted, the action will 
not be stayed (j). 

N.B. — Remember the rule does not apply — 

1. To misdemeanors. 

2. Where there is no duty on the part of the plaintijf to 
prosecute, as where he is not the person injured by the 
felony (k). 

3. Where the felony was not committed by the defendant, 
but by some third person (l). 

It is expressly provided by Lord Camj)beirs Act (see Death 
post, Article 33), that actions for damages brought in caused by- 
respect of the death of any person under that Act shall ^ °""^' 
be mauitainable " although the death shall have been 
caused under such circumstances as amount in law to 
felony." 

(1) Where, in an action for seduction of the plaintiff's Illustrations, 
daughter, a paragraph of the claim alleged that the defen- 
dant administered noxious drugs to the daughter for the 

purpose of procuring abortion ; it was held that the para- 
graph could not be struck out as disclosing a felony for 
which the defendant ought to have been prosecuted, 
inasmuch as the plamtiff was not the person upon whom 
the felonious act was committed, and had no duty to 
prosecute (m). 

(2) So, where A. has stolen goods, and B. has innocently 
bought them from A., the owner may bring an action of 
trover against B., although no steps have been taken to 
bring A. to justice, for B. is not guilty of felony (m). 

{j) Smith V. Selwyn, supra ; Carlisle v. Orr, [1918] 2 I. R. 442. 
{k) Appleby v. Franklin, 17 Q. B. D. 93. 
(/) White V. Spettigue, 13 M. & W. 603. 

(m) Appleby v. Franklin, 17 Q. B. D. 93 ; and see also Osborn 
V. aHlett, L. R. 8 Ex. 88. 

(w) White V. Spettigue, 13 M. & W. 003. 



/ 



CANADIAN NOTES. 25a 



CANADIAN NOTES TO CHAPTER I. OF PART I. 

The general priiu-iples laid down in tlie first chapter 
of the book are for the most part applicable to the eight 
Enoflish law provinces of Canada. In applying them to 
Canadian cases the student must bear in mind that in 
many matters the actual rules of the English law have been 
altered by statute, and, further, that the special circum- 
stances of Canadian life furnish a large number of prob- 
lems for which there cannot be any exact precedent in the 
old country. Among the matters which have received 
special attention from our legislatures may be mentioned 
defamation, seduction, railways, fire, weeds, automobiles, 
and suits against the Crown. The special conditions of 
Canadian life react upon the law of torts chiefly in those 
parts where it is most closely connected with the law of 
property. The relation of trespass to possession, for 
example, becomes a matter of peculiar importance in 
determining questions relating to the ownership of land in 
a new country. So again, the English courts have never 
been com])elled to solve })r()l)lems upon tlie law relating 
to ice or to logging rights ujjon floatable streams. 

The read(M- will understand tliat the space available 
for these notes oidy jici'mits tlie scantiest reference to 
these various topics, and that it is not possible for the 
writer to do more than suggest certain authorities, wdiich 
will serve to indicate a starting point for the student's 
(iwii researches. If the reader is lu'wly entering upon the 
study of law, it is well to take this opportunity of remind- 
ijig him that the only function of an elementary text- 
book is to serve as an aid and guide to the study of the 
original authorities. Tlie student whd wishes to l);'come 
a real lawyer will take no statement either in the text or 
in the iH)tes upon trust, but will test everv dogmatic state- 
ment by a careful reference to the ant lioi'it ies upon wliicli 
it professes to be Iniscd. 

In the ProviiK-e of Quebec torts are known l»y the Fi'eneli 
technical term of " delits '" (Latin drlichi), T\liicli is rather 
awkwardly tian.-lated " olfeiices " in the iMiglish version 
of the ('i\il ('ode. 'i'lie L^cner.d ini iiciiijes of the law are 



25b CANADIAN NOTES. 

summed up in a m\g\e sentence (Art. 105;3) of the Code, 
which reads as follows : — 

" Every person capable of discerning right from wrong- 
is responsible for the damage caused by his fault to 
another, whether by positive act, imprudence, neglect, 
or want of skill." 

The detailed application of this principle, which closely 
follows Article 1382 of the Code Xapoleon, has been left 
to the discretion of the courts, with the result that in Que- 
bec, as in the other provinces, the Isiw of torts mainly rests 
upon judicial decisions. In the digests of Quebec cases 
references to Article 1053 will be found under the general 
heading of " responsabilite." The decisions of the French 
Courts and the views of the standard commentators upon 
the French Code are cited as of persuasive, but not of abso- 
lutely binding, authority in the Province. In the great 
majority of cases the common law and the civil law arrive at 
the same results, but in certain instances, which we shall 
note as they occur, there is a divergence between Quebec 
and the other provinces. The Supreme Court of Canada has 
more than once pointed out that English decisions should 
only be cited as authority in Quebec cases where it is clear 
that the legal principle involved is the same in both 
systems. («■) 

Article 1. 

The statement in the text about murder as a legal 
injury needs qualilication in Canada. See the notes to 
Article 12. The statement that a libel upon a dead man 
gives no right of action to his children is true of the com- 
mon law provinces, but not in Quebec, where the heirs have 
a right of action. 

Article 3. 

"With regard to the illustrations cited from the law of 
defamation it should be remembered that the rules upon 
this subject have been to a certain extent modified by 
provincial legislation. See notes to Article 57. 

Article 4. 

For the question of how far actual evil motive is a neces- 
sary element in malicious prosecution see the notes on that 

(o) See Curley r. LatreUle (1920), 60 S. C. R. 131 at 1.33. 



CANADIAN NOTES. 25c 

subject, Article GO. The whole topic is reviewed and 
tile French and English law compared in the judgment of 
Archambeault, C.J., in Canadian Pacific Ry. Co. v. Waller 
(1913), 19 Can. Cr. Gas. 190; 1 D. L. K. 47. 

AlJTICLE 5. 

For notes u])on the questions raised by this article see 
the notes to ch. VIII. of Part I. The reader will observe 
that the case of Sharp v. Powell, cited in the text, is one of 
those where the conditions of Canada would compel a 
different inference to l)e drawn from the facts. In our 
winter the water miglit reasonably have been expected to 
freeze. 

Article 8. 

The rule of judicial immunity is really a principle of 
constitutional law, and is therefore equally applicable to the 
whole of Canada. 

In McCatherin v. Jamer (1912), U X. B. E. 36;; 9 
D. L. E. 874, the plaintiff, a peddler, was arrested upon a 
warrant which the magistrate had issued without requir- 
ing an information to be laid. The magistrate was held 
liable in damages. 

Various provincial statutes give to constables and other 
public officers the measure of protection necessary for the 
due discharge of their duties in good faith. It should, 
however, be observed that good faith is not by itself a 
sufficient defence. For example, in Nova Scotia con- 
stables are authorised by statute to arrest without war- 
rant persons who are drunk or feign to be drunk. In 
Her V. Gass (1909), 7 E. L. E. 98, the defendant arrested 
a lady whom he honestly believed to be drunk, but who was 
in fact perfectly sober and behaving ]iroperly. The court 
awarded her five dollars damages without costs. 

Sections Ki-OH of the Dominion Criminal Code (E. S. C. 
c. 146), define the conditions niidcr wliich judicial and 
executive officers arc exempt I'l-om ci'imiii;il liability for 
acts done in performance of thcii- duties. Tbe Code docs 
not deal witli civil liability, but it may generally be 
assumed that the provisions of thc.-c sections ai'i' in c()n- 
furmity with the recognised luli's of the common law. 



•25d CANADIAN NOTES. 

AliTICLE 10. 

The *ienoral i)rinci})le of this article is true of the 
Ciinadiaii law, l)iit its ai)])lieatioii is modified in import- 
ant respects by tlic J\ail\vay Act (R. S. C, c. 37), and by 
jiioviiicial statutes to the same effect. The railway is 
(■(.mpelled to kee]) its land dear from weeds (s. 296), and 
from unnecessary eomhustil)le matter (s. 297). Further- 
more, it is made responsible for fires, irrespective of negli- 
gence (s. 2i)<S), l)ut its liability for damage caused by fire 
ii! any one case is limited to $5,000, provided that it can 
])rove the use of all ])ossible precautions. In the case 
of injuries to cattle, the burden of ])roof is cast u])on the 
railway to shew tliat tlic accident was due to the negli- 
gence or fault of the owner. These rules are, of course, a 
considerable enlargement of the common law liability. 

Tlie following cases may lii' referred to by wav of illus- 
tration : — 

Rogers v. (Irniul Truiih- Pdclfic llij. Co. (I!)12), 22 
^lan.'L. \{. ;Ui); 21 W. L. K*. 222; 2 ]). L. H. (hSIJ. 

F(ir(/iili(irsoN V. ('(iiukHhii Pdcipc Hi/. Co. (1!)12). 20 
A\'. L. K. 9U; 3 D. L. R. 258. 

Canadmn Pacific Bij. Co. v. Cuvrullirrs. (1907), 39 
S. C. E. 251. 

Eoire V. CJuehcc Cciifra] Jhi. (1912), 41 Que. S. C. 517; 
3 I). L. R. 175. 

AirncLE 12. 

The law laid down in this article is no longer applicable 
to Canada. By section 13 of the Criminal Code (R. S. C, 
c. 14(i), it is now emicted that the civil remedy is in no 
\\ny affected by the fact that the act complained of 
amounts to a criminal offence. Furthermore, the distinc- 
tion between felonies and misdemeanours, M'hich is esseii- 
tial to the English rule, no longer exists in Canada (s. 14). 

Reference may be made to the following ca-^es: — 

E. V. F. (1906), 11 0. L. R. 582. 

Dunn V. (lib.son (1912), 20 Caii. Cr. (as. 1!)5. 

The only exception to tlie general rule is to be found 
in sections 732-734, where it is ])rovided tliat in cases of 
common assault the civil remedy is l)arred l)y summary 
(onviction of the ofi'ender and payment of the tine. For 
an instance of the ap})lication of this rule see :— 

Jfi'hpii V. Jfi'hrrt (19()<»), 37 Que. S. C. 339: 16 Can. 
Cr. Cas. 199. 



27 



CHAPTER II. 

BREACH OF STATUTORY DUTIES. 

Art. 13. — Breach of Duty created for Benefit 
of Individuals. 

(1) When a statute creates a new duty for 
the benefit of an individual or a class, and does 
not provide any special remedy, an action for 
damages lies for breach of the duty {a). 

(2) If the statute provides a special remedy, 
the party injured cannot bring an action for 
damages (6), but he may have an injunction 
unless the statute expressly excludes that 
remedy (c). 

Under many Acts of Parliament, local authorities and Explanation, 
other public bodies have imposed on them duties for the 
benefit of the public generally, and a breach of the duty, 
though it may affect an individual specially, is liable to 
affect the public at large, or all the persons in a district. 
Such duties are those which are imposed on sanitary autho- 
rities to provide proper systems of sewers, and on gas and 
water companies to provide gas and water sufficient in 
quantity and quality. If an individual suffers by breach 
of these duties, he cannot generally resort to an action, but 
must proceed by mandamus, indictment, or such other 
remedy as may be available. 

It is different, however, where the duty is imposed for 
the benefit of an individual or a limited class of persons ; in 

(a) Per Wii,les, J., in Wolverhampton New Waterworks Co. v. 
Hawkesjord, 28 L. J. C. F. 242; applied in Whittaker v. L. C.C., 
[1915] 2 K. B. 070. 

(b) Ibid. 

(c) Stevens v. Chown, Stevens v. Clark, [1901] 1 Ch. 894, approved 
in Fraser v. Fear, [1912] W. N. 227. 



28 Breach of Statutory Duties. 

Art. 13. such cases a breach of the duty is a wrong to the individual 

or to each member of the class for whose benefit the duty is 

created, and a breach of that duty is a tort for which an 
action for damages wUl lie, unless the legislature has pro- 
vided some other remedy, such as a penalty. If a special 
remedy is provided, that impHedly excludes the remedy by 
action for damages. But it does not even impliedly exclude 
the remedy by injunction. Instead of taking the special 
remedy provided by the statute, the person injured may 
claim an injunction to restrain threatened breaches of the 
duty, unless that remedy is expressly excluded by the 
statute. 

In every case, however, it is a question of construction of 
the statute by which the duty is created. A statute may 
give a remedy by action for breach of a public duty, or 
may create a private duty and yet say that there shall be 
no remedy for its breach. 

Illustrations. (1) Under the British Columbia Crown Procedure Act, 
it is the duty of the provincial secretary to submit to 
the lieutenant-governor a Petition of Right left with him 
for that purpose. His definite refusal to do so gave the 
petitioner a cause of action for damages [d). 

(2) If an employer is guilty of a breach of a provision in 
the Factory Acts, by which he is required to fence dangerous 
machinery, a Avorkman who is injured in consequence 
thereof, has a cause of action against the employer for 
such breach (e). 

Art. 14. — Breach of Duty created for Benefit of 

Public. 

(1) When a statute creates a duty for the 
benefit of the public, the possibihty or other- 
wise of a private right of action for the breach 
of such duty must depend on the scope and 
language of the statute taken as a whole (/), 

(d) Fulton V. Norton, [1908] A. C. 451 [P. C.]. 

(e) Groves v. Lord Wimborne, [1898] 2 Q. B. 402 [C. A.]. 
{/) Dawson v. Buujky U. D. C, [1911] 2 K. B. 149. 



Breach of Duty for Benefit of Public. 29 

and the provision of a specific remedy for the Art. 14. 
breach of duties created by the Act is generally 
held to exclude other remedies (g), and the 
injury in respect of which action is brought 
must be of the same kind as that which the 
statute was intended to prevent {h). 

A sanitary authority in London failed to perform the Illustration, 
duty imposed upon them by s. 29 of the Pubhc Health 
(London) Act, 1891, of removing street refuse (including 
snow) from the streets. The plaintiff suffered injuries by 
a fall caused by snow which the sanitary authority had 
neglected to remove. It was held that he had no cause of 
action {i}. 



Art. 15. — Highway Authorities not Liable for 
Nonfeasance. 

A highway authority is not liable for 
damages resulting from mere nonfeasance, i.e., 
for mere neglect to perform its statutory duty 
of repairing the highway : but is liable for 
damage resulting from misfeasance, i.e., for 
doing something which creates a nuisance in 
the highway {k). 

Before the present highway authorities Avere created Explanation, 
by Act of Parliament, the rule was established that a 
surveyor of highways was not liable for not repaning a 
highway, the proper remedy being indictment of the in- 
habitants (l). And many recent cases have shown that 
the same rule is applied to the statutory bodies to whom 
the duty of repairing highways has been transferred by 

(g) Pasmore v. Oswaldtwistle Urban Council, [1898] A. C. 387 ; 
cf. Heath's Oarage, Limited v. Hodges, [1916] 2 K. B. 370. 

{h) Gorris v. Scott (1874), L. R. 9 Ex. 125. 

(i) Saunders v. Holborn District Board of Works, [1895] Q. B. 64. 

{k) Cowley v. Newmarket Local Board, [1892] A. C. 345 ; Papworth 
V. Battersea Council, [1914] 2 K. B. 89. 

(I) Russell V. Men of Devon, 2 T. R. (itiT. 



30 



Breach of Statutory Duties. 



Art. 15. statute, unless there is anything in the statute to show an 

intention to make them Hable for nonfeasance (m). The 

rule aj)plies also to bridges which are highways {n). 

Misfeasance. When a highway authority creates an artificial work in a 
highway, they will be liable if that work is a nuisance and 
causes damage to an individual, for the creation of a 
nuisance is misfeasance. And they may also be liable if 
by their negligence they allow it to get out of repair so 
as to become a nuisance, for that is not mere non-repair 
of the highway. They caused a nuisance actively by 
putting the thing there, if the thing gets out of repair so 
as to be a nuisance (o). 



Highway 
and 

sanitary 
authority. 



Illustrations. 



Sometimes the same local body is both highway 
authority and sanitary authority, and in their capacity of 
sanitary authority they may put in the highway a manhole 
or grating for sewers. If this thing gets out of repair by 
reason of their negligence (but not otherwise), they are 
liable (p). But if it becomes a nuisance by reason of the 
surface of the roadway getting worn down round it, whilst 
the thing itself is not out of repair, they are not liable. 
Not as highway authority, for their only breach of duty is 
not repairing ; and not as sanitary authority, for the thing 
they have put there is not out of repair, and they have 
been guilty of no negligence ((/). 

(1) A highway authority removed a fence which their 
predecessors had erected to protect the public from a 
dangerous ditch. A man driving along the road drove into 
the ditch, and was drowned. Removing the fence was 
misfeasance, and the highway authority was liable (r). 

(m) Municipality of Pictou v. Geldert, [1893J A. C. 524 [P. C] ; 
Gibraltar Sanitary Commissioners v. Orfila, 15 Aj^p. Cas. 400 [P. C] ; 
Sydney Municipal Council v. Bourke, [1895] A. C. 433. 

(n) Russell v. Meri of Devon, ante ; M'Kinnon v. Penson, 8 Ex. 
319 ; Davis v. Bromley Corporation, [1908] 1 K. B. 170. 

(o) Borough of Bathurst v. Macpherson, 4 App. Cas. 256 [P. C] ; 
Lambert v. Lowestoft Corporation, [1901] 1 K. B. 590. 

(p) See ante, Art. 11. 

(q) Thompson v. Brighton Corporation, Oliver v. Horsham Local 
Board, [1894] 1 Q. B. 332. 

(r) Whyler v. Bingham Rural District Council, [1901] 1 Q. B. 45. 



Authorities not Liable for Nonfeasance. 31 

(2) An urban authority lawfully made a manhole in the Art. 15. 

street. The cover was properly made and in good order, 

but the surface of the road was allowed to wear down so 

that the cover projected above the surface. The plaintiff's 
horse stumbled over this, and was injured. The only 
breach of duty was not repairing the surface of the road, 
and this was nonfeasance, for which the council was not 
liable (.s). 

(3) By the negligence of a person employed by the 
defendants, the highway authority of Canterbury, a heap 
of stones was left by the side of a road without a light. 
The plaintiff, driving by in the dark, was upset by it and 
injured. The negligence consisted in putting the heap of 
stones by the roadside, and this was misfeasance for which 
the defendants were liable (t). 

(4) A local authority was under a statutory obligation 
to light the streets in its area. The nearest light to a 
dangerous arch was 70 feet away. A driver of a cart was 
killed in attempting to pass under the arch. The Court 
held the place was inadequately lighted and the authority 
liable in damages to the widow on the ground that it 
had done negligently an act it was authorised by statute 
to do (u). 

(.s) Thompson v. Brighton Corporation, supra. 

(t) Foreman v. Canterbury Corporation, L. R. 6 Q. B. 214. 

(u) Carpenter v. Finsbury Borough Council, [1920] 2 K. B. at 
p. 199, following Geddisv. Bann Reservoir Proprietors (1878), App. 
Cas. 430. 



CANADIAN NOTES. 31a 



CANADIAN XOTES TO CHAPTER II. OF PART I. 

Article 13. 

Ill Stewart v. Steele (1912), 5 Sask. L. R. 358; 22 
W. L. R. 6; 2 W. W. R. 902; 6 D. L. R. 1, a case of an 
automobile accident, the defendant had failed to observe 
the safety requirements prescribed by the provincial stat- 
ute. The court held the non-observance to l)e in itself 
evidence of negligence. 

In Love v. New Fairview Corporation (1904), 10 
B. C. R. 330, a fire broke out in a hotel which was not 
equipped with the fire escape appliances prescribed by 
statute. The statute ])rovided a penalty for non-compli- 
ance with its provisions. The plaintiff delayed his own 
exit in order to rescue a fellow-guest and suffered injury 
through lack of a ])roper means of escape. It was held that 
he was entitled to damages. An attempt was made to 
plead the defence of volenti non fit injuria, since the plain- 
tiff had resided in the hotel with full knowledge of the 
facts, but the court held that this defence did not apply 
in a case of non-compliance with a statutoiT duty. 

Article 14. 

Canadian authority on the whole leans to the view that 
any breach of statutory duties gives a right of action to 
persons injured thereby, unless the statute indicates some 
particular form of remedy. 

In Halifax Street By. Co. \. Joyce (1893), 22 S. C. R. 
258, the company violated a statutory obligation to keep 
tlieir rails level with the street, and the plaintiff's horse 
tripped in the raised rail. It was held, aflfinning the judg- 
ment of the Supreme Court of Xova Scotia, that the plain- 
tiff was entitled to damages. 

In Little v. Smith (1914), 32 0. L. R. 518; 20 D. L. R. 
399, the defendant had been cutting ice on a lake, and left 
tbe hole unguarded in disregard of section 287 of the 
('riminal Code, which penalises such an offence. The 



31b CANADIAN NOTES. 

plaintiff's liorse bolted and fell into tlie hole, whicli was 
at some distance from tbe trodden road across tbo ice. It 
was held that the defendant was liable in damages. 

ARTICLE 35. 

It is diflficult to see any logical reason for the distinction 
which the English courts have drawn between "misfeas- 
ance" and "nonfeasance,'" and in Canada the difference 
has now been largely obliterated by provincial statutes. It 
is now generally true to say that municipalities are liable 
for accidents arising from the non-repair of the streets 
under their control. In several eases this liability has 
been held to extend to accidents caused by ice being allowed 
to remain in a slipjjery state upon the streets and side- 
Avalks. 

The following cases may be referred to : — ■ 

Tuohei/ V. City of Medicine Hat (1912), 10 D. L. Jl. 
6D1; 5 Alta. L. R. IIG; 23 W. L. E. 880 (ice on the side- 
walk ) . 

La Cite de Montreal cO Euan v. (ruurardeed Pure Milk 
Co (IHOT), IT Que. K. B. 143 (defective street lighting). 

In the absence of statutory provision the common law 
rule, as stated in the text, still holds good : Cullen v. 
Town sf Glace Bay (1913), 46 N. S. E. 215. 



( 33 ) 



CHAPTER III. 
RELATION OF CONTRACT AND TORT. 

Art. 16. — Distinction between Actions for Tort 
and for Breach of Contract. 

(1) If the cause of complaint is for breach of 
a contractual duty (that is to say, is for an act 
or omission which would not give rise to any 
cause of action without proof of a contract), 
the action is one of contract. 

(2) But if the relation of the plaintiff and 
the defendant be such that a duty arises from 
the relationship, irrespective of contract, for a 
breach of that duty the remedy is an action of 
tort {a). 

Formerly a plaintiff had to be careful to frame his action Comment, 
either in tort or in contract, and the rule then was that if 
the act or omission complained of was both a breach of 
duty arising apart from contract, and a breach of contract, 
the plaintiff might sue in contract or tort (6). Each party 
states the facts on which he relies, and if on those facts the 
plaintiff could have recovered in any form of action prior 
to 1875, he can now recover in the action which he has 
brought. The distinction between tort and contract is 
chiefly of importance upon the question of the amount 
of costs recoverable (c). The rule is that where the UTong 
is in substance a tort, the plaintiff cannot merely by suing 

(a) See Kelly v. Metropolitan Rail. Co., [1895] 1 Q. B. 944 [C. A.], 
per A. L. Smith, L.J., at p. 947 ; Turner v. Stallibrass, [1898] 
1 Q. B., at p. 58. 

(b) Brown v. Boorman, 11 CI. & F. 1. 

(c) See County Courts Act, 1888, s. 116, and County Courts 
Act, 1903, s. 3. And as to the power of transfer from one Court to 
another, see ss. 1-12 of the County Courts Act, 1919. 

D 



34 Relation of Contract and Tort. 

Art. 16. in contract entitle himself to a larger measure of 
damages {d). 

Illustrations. (1) A railway company owes to a passenger, irrespective 
of any contract, a duty to take care. The taking of a 
ticket also constitutes a contract to carry. If the servants 
of the railway company are negligent, whether by acts of 
omission or by acts of commission, the cause of action is in 
substance a tort, being a breach of a duty arising irrespec- 
tive of contract, although in form the action might be 
framed as a breach of contract {e). 

(2) A person who takes in a horse under a contract of 
agistment, impliedly undertakes not to be negligent in 
respect of the horse. But as he is a bailee for reward, the 
same duty to take care arises irrespective of the contract, 
and an action for not takmg care is in substance an action 
of tort for negligence (/). So in all cases of actions between 
bailor and bailee, if the duty arises out of the bailment at 
common law, a breach of that duty gives rise to an action 
for tort ; but if the duty only arises out of a contract 
between the parties, and would not aj)art from such con- 
tract arise from the mere relationship of bailor and bailee, 
a breach of the duty is properly the subject of an action 
for breach of contract (g). 

Art. 17. — Privity not necessary where the 
Remedy is in Tort. 

When something done in pursuance of a 
contract between two persons gives rise to a 
relationship between one of them and a third 
person, such that the one owes a duty to the 
third person, irrespective of the contract, the 

{d) Chmery v. Viall, 5 H. & N. 295 ; Belsize Motor Supply Co. 
V. Cox, [1914] 1 K. B. 244. 

(e) Taylor v. Manchester, Sheffield and Lincolnshire Rail. Co., 
[1895] 1 Q. B. 134 [C. A.]; Kelly v. Metropolitan Rail. Co., [1895] 
1 Q. B. 944 [C. A.]. 

(/) Turner yr. Stallibrass, [1898] 1 Q. B. 5(5 [C. A.]. 

{g) Ibid., at p. 59, jjer Collins, L.J. 



Privity not Necessary. 35 

third person cannot sue on the contract because Art. 17. 

he is not privy to it, but he can sue in tort 

for breach of the duty arising, irrespective of 
the contract. But the grounds and extent of 
HabiHty under a duty apart from contract are 
not clearly deducible from the recent cases. 
(See Salmond on Torts, 5th ed., pp. 425-435.) 

(1) A man employs a surgeon to attend his wife or his Illustrations, 
infant son. By reason of the surgeon's neghgence, the 

patient is injured. There is a contract between the man 
who calls in the surgeon and the surgeon, but none between 
the surgeon and the patient. But irrespective of the con- 
tract, the surgeon owes a duty to take care by reason of 
the relationship of surgeon and patient. And for breach 
of this duty the patient can sue in tort (A) . 

(2) A passenger by train lost his luggage by reason of 
the negligence of the company's servants. The passenger's 
fare had been paid by his master. There was accordingly 
no contract between the passenger and the railway com- 
pany — nevertheless the company were as bailees bound to 
take care of the passenger's luggage, and for breach of that 
duty the passenger could sue in tort (i). 

(3) Again, where the defendant sold to A. a hair- wash, to 
be used by A.'s wife, and professed that it was harmless, but 
in reality it was very deleterious, and injured A.'s wife, it 
was held that she had a good cause of action against the 
defendant, for the hairdresser owed A.'s wife a duty, 
irrespective of contract, not to send out for her use a 
dangerous hair- wash {k). 

(4) But when no duty, irrespective of contract, can be 
shown, a person who is injured by another's negligence in 
carrying out a contract has no cause of action. Thus, in 
Le Lievre v. Gould (1), mortgagees lent money by instal- 

(h) Gladweli v. Steggall, 5 Biiig. N. C. 733 ; Pippin v. Sheppard, 
] 1 Price, 400. 

(i) Marshall v. York, Nevxastle and Berwick Rail. Co., 11 C. B. 
055, and see Meux v. Great Ea.stern Rail. Co., [1895] 2 Q. B. 387 
[C. A.]. 

(k) George v. Skivington, L. R. 5 Ex. 1. Dissented from in Blacker 
V. Lake d: Elliot (1912), 106 L. T. 533. 

(1) [1893] 1 Q. B. 491 [C. A.]. 



36 Relation of Contract and Tort. 

Art. 17. ments to a builder, on the faith of certificates negligently 

granted by the defendant, who Avas a surveyor appointed, 

not by the mortgagees, but by the builder's vendor. The 
certificates were inaccurate, and the mortgagees thereby 
suffered loss, for which they claimed compensation from 
the defendant : — Held, that as there was no contractual 
relation between them, the defendant owed no duty to the 
plaintiffs, and the action could not be maintained. It was 
urged that a certificate carelessly issued was as dangerous 
as an Ul-made gun or a poisonous hair-wash, and that on 
that ground the defendant was liable ; but the court would 
not admit the analogy. Of course, however, if the certifi- 
cate had heen fraudulent, i.e., issued with intent to deceive 
theplaintiffs, then, independently of any contractual relation, 
the defendant would have been liable in an action of deceit. 

(5) So, too, when A. built a coach for the Postmaster- 
General, B. horsed it and hired C. to drive it, the coach 
broke down from a defect in its construction, and C. was 
consequently injured, it was held that A. owed no duty to 
C. apart from contract, therefore C. could not sue A. in tort. 
Nor, of course, could C. have sued A. in contract, as C. 
was no party to the contract between A. and B., and A. 
was no party to the contract between B. and C. (m). 

(6) A wholesale druggist sold to a retailer a dangerous 
drug bearing a false label. The retailer sold it to a doctor 
who sold it to a patient, and the latter took it on the faith 
of the label and was thereby injured. Despite the absence 
of privity the court held the wholesale druggist liable to 
the injured party {n). 

Art. 18. — Duties gratuitously undertaken. 

When a person gratuitously undertakes to 
perform any service for another, then, although 
no action will he for not performing the service 

(m) Winterbottom v. Wright, 10 M. & W. 109, followed in Earl v. 
Lubbock, [1905] 1 K. B. 253 [C. A.]- 

(n) Thomas v. Winchester (1852), 6 New York 397, approved in 
Dorniyiion Natural Gas Co. v. Collins, [1909] A. C. C40. See Ait. 
82, post. 



Duties Gratuitously Undertaken. 37 

(there being no consideration for the promise), Art. 18. 
yet an action will lie for negligence in the 
performance of it (o). 

A duty to take care may arise apart from any contract 
whatever, and for breach of that duty the remedy is an 
action of tort. 

(1) Thus, in Coggs v. Bernard, the defendant gratuitously Illustrations, 
promised the plaintiff to remove several hogsheads of 

brandy from one cellar to another, and, in doing so, one of 
the casks got staved through his gross negligence. Upon 
these facts it was decided that the defendant was liable ; 
for although his contract could not have been enforced 
against him, yet, having once entered upon the performance 
of it, he thence became liable for aU misfeasance. The 
ground of this liability appears to be the duty to take 
care which arises from the owner having entrusted his 
property to the defendant. 

(2) In Doorman v. Jenkins [p) a keeper of a coffee-house 
gratuitously undertook the custody of money for a cus- 
tomer. It was lost whilst in his care by his neghgence. 
He was held hable in an action for breach of the duty to 
take care arising from his becoming bailee of the money. 

(3) Where the plaintiff was invited by the defendants' 
servant to ride on an engine, and he did so for his own 
convenience, and was injured by the neghgence of the 
defendants' servants, the defendants were held liable ; as 
by gratuitously undertakmg to carry the plamtiff, the 
defendants came under a duty to exercise care, and they 
were liable in an action of tort for breach of that duty (q). 

(4) As to chattels loaned gratuitously, the duty of the 
lender is to disclose any dangerous quality of which he 
actually knows (r). 

(o) Coggs v. Bernard, 1 Sm. L. C. 177. 
(p) 2 A. & E. 256. 

(q) Harris v. Perry <k Co., [1903] 2 K. B. 219 [C. A.], followed in 
Karavias v. Callinicos, [1917] W. N. 323 [C. A.]. 
(r) Coughlinv. Gillison, [1899] 1 Q. B. 145. 



CANADIAN NOTES. 37a 



CANADIAN NOTES TO CHAPTER III. OF PART I. 

AeTICLES 16 AND 17. 

The principle of Dominion Natural Gas Co. v. Collins 
(1909), A. C. 640, has been repeatedly applied in the 
Canadian courts. In general it may be said that those 
who manufacture dangerous articles or install dangerous 
machinery are under a liability in tort for injuries caused 
by negligent manufacture or installation to those who may 
reasonably be expected to come in contact with the danger. 

In Nokes v. Kent Co., Ltd. (1913), 1 0. W. N. 665; 9 
D. L. R. 772, the defendants were not the manufacturers 
of the defective machinery, but had purchased it from the 
manufacturers and installed it on the premises of the 
plaintiff's employers. It was held that they were liable 
for an injury caused to the plaintiff in operating the 
machine, since the defect was one within the knowledge of 
the defendants. 

In Great Xorth-}yesiern Telegraph Co. v. Dominion 
Fish and Fruit Co. (1915), 25 Que. K. B. 230, the. tele- 
graph com])any ])y mistake delivered an important cable- 
gram to a trade competitor of the plaintiff company instead 
of to the plaintiffs, who thereby were prevented from con- 
cluding a valualjle contract. The court unanimously helrl 
that the telegraph company was delictually liable. This 
decision would appear to be in direct conflict with the 
English case of Dickson v. Beuter's Telegram Co. (1877), 
3 C. P. 1). 1, where it was held that the company owes no 
duty to tlie addressee of a telegram. The weight of 
authority on this continent, though not entirely unanimous, 
favours the view taken l)y tiie Quebec Court of King's 
Bench. It may be observed that the duty of rendering an 
efficient service to the public is imposed upon the tele- 
graph comjiany by its charter, so that tlie case could 
equally well have been dccidcil in favour of the plaintifTs 
u|)on the |)iinci[)lf's laid down in Articles 13 and 11 oi' the 
text. 

In Buckley v. Molt (1919), 50 D. L. R. 408, the plain- 
tiff was injured by eating powdered glass, which had got 



3?b CANADIAN NOTES. 

into chocolate in the course of manufacture. The chocolate 
was purchased from a retailer, but the action was brought 
against the manufacturer for negligence. Drysdale, J., 
held that the plaintiff was entitled to succeed. The case 
would a])j)ear to be in conflict with the decision 
(if an Knglish Divisional Court in Blacl'er v. Lake and 
hlliull (1!)12), ]()(i L. T. r);5;5. The various authorities are 
by no means easy to reconcile, but it is submitted that 
HiickU'jj V. .¥0/7 is in harmony with the true principle of 
liability Tor negligence; the manufacturer contemplates 
the use of his product by the public, and it is reasonable to 
demand that he should exercise diligence to protect the 
consumers from injury. 

Article 18. 

The proposition stated in the text seems to go farther 
than the existing cases warrant. The decisions cited by 
the learned author do not. 1 would submit, justify us in 
saying more than that: — 

( 1 ) A gratuitous bailee is liable for uros-; neijligence in 
the care of the goods entrusted to him, i.e., only for the neg- 
lect of the most obvious ])recautions, and not merely for the 
failure to exercise the maximum degree of care required of 
a careful warehouseman. This was laid down by the Privv 
Council in Omin v. McM alien (1868), L. E. 2 P. C. 317, 
and followed bv Kiddell, J., in Carlisle v. Grand Tnink 
h'l/. Co. { I ill 2)', •<;:) (). L. K. ;K2: 1 l). L. R. 130. 

(2) The owner of j)roperty is l)(iund to exercise care 
towards those whom he invites to enter upon or to use his 
property, even though the invitation be gratuitous. But 
he is only liable for what may be called " active neirligence," 
such as leaving open dangerous " traps " or pitfalls, and the 
licensee must otherwise take the premises or property as 
he finds them, however defective they may be. See King 
V. North eni Xarlgafioa Co. (1912)^ 27 0. L. R. 79; 6 
1). L. R. ()(): \i(/li'lin(/a]r v. rin'oii Collieri/ Co. (1904), 35 
S. C. R. 65. 

(3) A person voluntarily assuming duties which demand 
s])ecial or technical skill is bound to act up to the degree of 
skill which he professes. 



CANADIAN NOTES. 37c 

(4) An agent who gratuitously enters u])on the per- 
formance of services for another is only liable if he fails 
to exercise the same care as he exercises in his own affairs. 
Thus in Shields v. BlacHurne (USD), 1 Hy. Bl. 159, a 
merchant voluntarily undertook to pass a cvistoms entry 
for another's parcel along with his own. By mistake he 
entered both parcels under a wrong denomination, with 
the result that both were seized. The court held that 
he was not liable for the loss. 

In Baxter v. Jones (1903), 6 0. L. R. 360, an insurance 
agent gratuitously undertook to effect an additional insur- 
ance on the plaintiff's property, and to notify the other 
companies concerned. He was held liable for loss occa- 
sioned by his failure to give the notice, but the decision 
can be placed on a contractual ground, since the under- 
taking of the business was in his interest as an insurance 
agent, and consideration was therefore present. 

The old Newfoundland case of Young v. Altwood 
(1821), 1 Nfld. 233, is another instance in which the 
defendant neglected a gratuitous promise to insure. The 
court held that he was not liable, but some uncertainty 
as to the exact terms of the promise makes tiie case of little 
value as an authority. 

Article ITH) of the Quebec Code, foUowing Article 1992 
of the Code Xapoleon, defines the law somewhat vaguely: — 

■•' The mandatory is bound to exercise, in the execu- 
tion of the mandate, reasonable skill and all the care of 
a prudent administrator. Nevertheless, if the mandate 
be gratuitous, the court may moderate the rigour of the 
liability arising from his negligence or fault, according 
to the circumstances."' 

^landatc, wliethcr gratuitous or not, gives rise to a con- 
tractual obligation in Quebec, since the civil law does not 
regard "consideration." in the technical English sense, as 
essential tc> the ronnatidii nf a contract. 



( 39 



CHAPTER IV. 

VARIATION IN THE GENERAL PRINCIPLE 
WHERE THE UNAUTHORISED ACT OR 
OMISSION TAKES PLAGE OUTSIDE THE 
JURISDICTION OF OUR COURTS. 

Art. 19. — Torts committed Abroad. 

An action will lie in the English Courts for a 
tort committed outside England, provided : 

(a) It is actionable according to English 

law and not justifiable according to 
the law of the country where it was 
committed {a) ; and 

(b) It is a tort which is not of a purely local 

nature, such as a trespass to, or ouster 
from, land, or a nuisance affecting 
hereditaments, for to such torts the 
lex situs or law of the country in 
which the property lies appUes and 
English courts will not administer 
this law. 

Note, that in order to comply with paragraph (a) it is not 
necessary that the tort should be actionable according to the 
law of the country where the act was committed, j^rovided 
that it is not justiflable by that law ; that is to say, that it 
is an act in respect of which civil or criminal proceedings 
may be taken in that country. 

(1) Thus, in the leading case of Mostyn v. Fahrigas (h) it Illustrations, 
was held that an action lay in England against the governor 

(a) Mar.hado v. Fontes, [1897] 2 Q. B. 2.31 [C. A.] ; fV/rr v. Fracis 
Times <Sc Co., [1902] A. (". 17(). As to the Adniiialty jurisdiction for 
damages from collision on the high soas or in foreign walors and 
whoro both ships woro foreign, soo The Invinciblp, 2 CJall. 29, and 
Thp Dlmia (18(32), Lush. .541. 

(h) 1 Sin. L. (;. 591. 



40 Variation in General Principle. 

Art. 19. of Minorca for a false imprisonment committed by him in 
Minorca, the plaintiff being a native Minorquin. 

(2) Some ammunition, which was British property, was 
seized on board a British ship by an officer of the British 
Navy in territorial waters of Muscat. The seizure was 
justifiable in Muscat under a proclamation of the Sultan of 
]\Iuscat. It was held that no action lay for the seizure (c). 

(3) So an action will lie m this country for a libel con- 
tained in a pamphlet in the Portuguese language and 
published in Brazil, even though libel be not actionable 
in Brazil, provided it be not justifiable in Brazil, i.e., it 
is enough if it be punishable in Brazil {d). 

(4) The English courts have no jurisdiction to entertain 
an action to recover damages for trespass to land situate 
abroad ; injuries to proprietary rights in foreign real 
estate being outside their jurisdiction. So the courts 
have recently refused to try a case of trespass to lands 
in South Africa (e). 

(c) Carr v. Fracis Times <fc Co., [1902] A. C. 176. 
\d) Machado v. Pontes, [1897] 2 Q. B. 231 [C. A.], 
(e) See British South Africa Co. v. Companhia de MoQanihique, 
[1893] A. C. 602, where the earHer cases are exammed. 



CANADIAN NOTES. 40a 



CANADIAN NOTES TO CHAPTER IV. OF PART I. 

Article 19, 

In Dupont v. Quehec S. S. Co. (1896), 11 Que. S. C. 188, 
the defendant company was incorporated under a Domi- 
nion charter with its head office in Quebec, and the plain- 
tiff's husband was its employee. He was killed by an 
accident on board one of the company's ships at Trinidad, 
the ship being registered in England. The trial judge 
dismissed the action on the ground that the case was 
governed by the law of Trinidad, where actio personalis 
moritur cum persona. The Court of Review reversed this 
judgment, holding (i) that the ship must be regarded as 
English territory (ii) that the English defence of "com- 
mon employment " was not available to the defendants. 
The doctrine of common employment, as Andrews, J., 
pointed out, rested on an implied contract, and the contract 
between the deceased and the company was obviously 
intended to be governed by Quebec law. That being so, 
the defendant company was liable under the law of Quebec. 

The differences in the various provincial Workmen's 
Compensation Acts have given rise to several cases. Ref- 
erence luav be made to Siory v. Strafford Mill Building 
Co. (1913), 30 0. L. R. 371 : 18 D. L. R. 309. 



41 



CHAPTER V. 

OF PERSONAL DISABILITY TO SUE AND TO 
BE SUED FOR TORT. 

Art. 20. — Who tnay sue. 

(1) Every person may maintain an action 
for tort, except an alien enemy, or British sub- 
ject adhering to the King's enemies {a), and 
a convict (sentenced to death or penal servi- 
tude) during his incarceration (6). 

(2) A married woman may sue alone, and 
any damages recovered are her separate pro- 
perty (c). 

(3) A husband cannot sue his wife in tort {d). 

(4) A wife can sue her husband in tort " for 
the protection and security of her own separate 
property " ; but cannot sue him otherwise in 
tort {d). 

(5) A corporation cannot sue for a tort 
merely affecting its reputation, such as a hbel 
charging the corporation with corrupt prac- 
tices (e) ; unless (a) th statement would have 
been defamatory of an individual, and (b) it 

(a) See De Wahl v. Braune, 1 H. & N. 178 ; Netherlands South 
African Rail. Go. v. Fisher, 18 T. L. R. 116. 

(b) Forfeiture Act, 1870 (33 & 34 Vict. c. 23), ss. 8, 30. 

(c) Married Women's Property Act, 1882 (45 & 46 Vict. c. 7.'5), 
s. 1 ; Beaslc.y v. Rnney, [1891] 1 Q. B. 509. 

(d) Phillips V. Barnet, 1 Q. B. D. 436 ; and 45 & 46 Vict. c. 75, 
fi. 12; HuUon v. Hulton, [1917] 1 K. B. 813. 

(e) Manchester Corporation v. Williams, [1891] 1 Q. B. 94. 



2 Personal Disability to Sue and to be Sued. 

Art. 20. tends to cause actual damage to the corporation 
with regard to its business or property (/). 

Note. — At common law husband and wife could not sue 
each other at all, nor could a married woman sue anyone 
without joining her husband as jilamtiff. Now a married 
woman can sue alone anyone but her husband. She can 
also sue her husband for the protection and security of her 
separate property ; but no corresponding right is given to 
him. If a husband claims possession of property from his 
wife he must proceed by originating summons to have the 
question determined in a summary manner by a judge {g). 

nborn It is doubtful whether an action can be brought for 

^'^^* injuries suffered by the plaintiff whilst he was still e^i ventre 

sa mere. It has been held in Ireland that an action for 
negligence would not lie in such circumstances {h), but it 
has been held in England that where a man was killed by 
negligence his child, unborn at the time of the accident, 
might claim damages under Lord Campbell's Act (^). 

lien As to who is an ahen enemy see the cases cited below (j). 



Art. 21. — Who 7nay be sued for a Tort. 

(1) Every individual who commits a tort 
is liable to be sued, notwithstanding infancy, 
coverture, or unsoundness of mind ; except 
(i) the sovereign, (ii) foreign sovereigns, and 
(iii) ambassadors of foreign powers {k). But 
foreign sovereigns and ambassadors can waive 
their privilege (l). 

(/) South Hetton Coal Co. v. N. E. News Association, [1894] 1 Q. B. 
133. 

(gr) Married Women's Property Act, 1882, ss. 12, 17. 

ih) Walker v. Great Northern Rail. Co., 28 L. R. Ir. 69. 

(i) The George and Richard, L. R. 3 Ad. & E. 460. 

{j) Porter v. Freudenberg, [1915] 1 K. B. 857 ; Scotland v. South 
African Territories (1917), 33 T. L. R. 255 ; Schaffenius v. Goldberg, 
[1916] 1 K. B. 284. 

(k) See Magdalena Co. v. Martin, 28 L. J. Q. B. 310. 

(/) Duke of Brunswick v. King of Hanover, 6 Bca. 1. 



Who May be Sued for a Tort. 43 

(2) A corporation which commits a tort is Art. 21. 
as liable to be sued as a private individual 
would be. The test of liabihty for the torts of 

its servants or agents is the fact of authority 
or ratification by the directing body of the com- 
pany (m). The doctrine of ultra vires, usually 
based as to a company's torts on the decision 
in Poulton v. L. ds S. W. Ry. Go. (n), is, it is 
submitted, only applicable to negative implied 
authority to do acts ultra vires, and cannot 
affect liability for acts expressly authorised. 

(3) No action for tort can be brought 
against a trade union. 

(1) Thus, if an infant hires a horse he is liable in an illustrations, 
action of negligence for immoderately riding the horse, for, infants. 

as bailee, he is boiuid to take care of the horse, and the 
breach of that duty is a tort (o). But he would not be 
liable in an action of contract founded on the hiring (p). 

(2) An infant, however, cannot be sued in tort if such an 
action v/ould be only an indirect way of enforcing a contract 
on which he is not liable. So if goods (not being neces- 
saries) are delivered to him under a contract of sale and he 
does not pay for them, he cannot be sued for converting 
them to his own use, for that would be only another way of 
recovering the price [q) . Nor, if an infant induces another 
to contract with him by representing that he is of age, can 
he be sued in an action for deceit, for that would be only 
another way of recovering damages for breach of the 
contract (r). 

(m) The National Bank v. Graham (1879), 100 U. S. 702 ; Salt Lake 
City V. Hollister (1885), 118 U. S. 260 ; and see Salmond on Torts, 
5th ed., pp. 66-68. 

(n) (1867), L. R. 2 Q. B. 534. 

(o) Burnard v. Haggis, 14 C. B. (n.s.) 45, followed in Walley v. 
Holt, 35 L. T. 631. 

(p) Jennings v. Rundall, 8 Term Rep. 335. 

{q) Per cur. in Manby v. Scott, 1 Sid. 109 [Ex. Ch.]. 

(r) See Johnson v. Pie, 1 Keble, 905, 913; Bartlctt v. Wells, 
1 B. & S. 836. 



Personal Disability to Sue and to be Sued. 



Art. 21. (3) There is not much authority upon the liability of 

~ lunatics for their torts. Kelly, C.B., says lunacy is no 

defence in an action for a wrong, as libel or assault {s). 
But EsHER, M.R., suggests that his liability in libel de- 
pends on " whether he is sane enough to know what he 
is doing " {t). Lord Ken yon points out in Hay croft v. 
Creasy [u) the distinction between answering civiliter et 
criminaliter for acts injurious to others. " In the latter 
case the maxim applied actus non facit reum nisi mens sit 
rea, but it was otherwise in civil actions where the 
intent was immaterial if the act done were injurious to 
another." And no doubt a lunatic is generally liable in 
tort {v). 

(4) A governor of a colony is not a sovereign. He may 
be sued for tort in the courts of his own colony or in this 
country {iv). 

(5) With regard to corporations, of course actions of tort 
can of necessity only arise for acts or omissions of their 
directors or servants, and the difficulty in such cases is the 
same as arises in other cases of the responsibility of a 
principal for the acts of his agent, viz., the difficulty of 
determining whether or not the act or omission complained 
of was within the scope of the general authority or duty of 
such servant or director {x). 

It was long doubtful whether a corporation aggregate 
could be sued in an action of mahcious prosecution. It 
was thought that a corporation, having no mind, could not 
act maliciously {y). But it is now settled that a corpora- 
tion may be made liable for malicious prosecution if in 

(s) MordaiDti v. Mordaunt, L. R. 2 P. & D. 102, 142. 

(0 Emmens v. Pottle, IG Q. B. D. 354, 356 [C. A.]. 

(m) 2 East, 92, at p. 104. 

(v) See also per Esher, M.R., in Hanbury v. Hanbury, 8 T. L. R. 
559 [C. A.], at p. 560. 

(w) Mostyn v. Fabrigas, 1 Cowp. 161 ; Phillips v. Eyre, L. R. 
6 Q. B. 1 ; Musgrave v. Pulido, 5 App. Cas. 102 ; Raleigh v. Goschen, 
[1898] 1 Ch. 73. 

(x) See Chapter VI. 

(y) See Lord Bramwell's opinion in Abrath v. North Eastern 
Rail. Co., 11 App. Cas. 247. 



Who May be Sued for a Tort. 45 

instituting the proceedings it is actuated by motives which Art. 21. 
LQ an individual would be malice (z). 

And. on the same j)rinciple, a corporation may be liable 
for j)ublishing a libel on a privileged occasion. Though a 
corporation cannot itself be guilty of actual malice, it is 
liable if its agent in publishing the libel is actuated by 
malice (a). 

(6) Trade unions registered under the Trade Union Acts, Trade 
1871 and 1876, are associations of masters or of workmen "'^^o^s- 
empoAvered to hold property, and with limited powers of 
suing and being sued in contract. 

It was held in the famous Taff Vale Case (6) that there 
was nothing in these Acts to prevent an action for tort 
being brought against a trade union, and after that decision 
many such actions were brought until the Trades Disputes 
Act, 1906 (c), was passed. That Act provides {inter alia) 
that an action shall not be entertained by any court 
(a) against a trade union, or (b) against any members or 
officials of a trade union (on behalf of themselves and all 
other members of the union) in resj^ect of any tortious act 
alleged to have been committed by or on behalf of the 
union. This gives^trade unions complete immunity from 
actions of tort. 



Art. 22. — Joint Tort-feasors. 

(1) Persons who jointly commit a tort may 
be sued jointly or severally ; and if jointly, the 
damages may be levied from both or either {d). 

(2) A judgment against one of several joint 
tort-feasors is a bar to an action against the 

(2) Gornford v. Carlton Bank, [1899] 1 Q. B. 392, foDowing 
Edwards v. Midland Rail. Co., 6 Q. B. D. 287. 

(a) Citizens' Life Assurance Co. v. Brown, [1904] A. C. 423. 

(6) Taff Vale Rail. Co. v. Amalgamated Society of Railway Servants, 
[1901] A. C. 42G. 

(c) 6 Edw. 7, c. 47. 

(d) Hume v. Oldacre, 1 Stark. 351 ; Blair and Sumner v. Deakin, 
Eden and Thwaites v. Deakin, 57 L. T. 522. 



6 Personal Disability to Sue and to be Sued. 

Art. 22. others, even although the judgment remains 
unsatisfied (e). 

(3) A release of one of several joint tort- 
feasors is a bar to an action against the 
others (/) ; but a mere covenant not to sue 
one of them is not (g). 

(4) If damages are levied upon one only, then 
(a) where the tort consists of an act or omis- 
sion, the illegality of which he must be pre- 
sumed to have known, he will have no right to 
call upon the others to contribute (h). But (b) 
where the tort consists of an act not obviously 
unlawful in itself {e.g., trover by a person from 
whom the same goods are claimed by adverse 
claimants), he may claim contribution or indem- 
nity against the party really responsible for 
the tort ; and this right is not confined to cases 
where he is the agent or servant of the other 
tort-feasor (^). 

Note. — When two or more persons join in committing a 
tort, each is responsible for the whole of the injury sustained 
by their common act. To constitute two persons joint tort- 
feasors, they must act together in furtherance of a common 
design, or one must aid, counsel, or direct the other. If two 
persons acting quite independently contribute by their 
separate acts to the same damage, they are not joint tort- 
feasors. So, too, persons independently repeating the same 
slander, or independently making a noise or obstruction 
which is a nuisance, are not joint tort-feasors {k). 

(c) Brinsmead v. Harrison, L. R. 7 C. P. 547 [Ex. Ch.]. 

(/) Cocke V. Jennor, Hob. 66 ; Howe v. Oliver (1908), 24 T. L. R. 
78L 

(g) Duck V. Mayeu, [1892] 2 Q. B. 511 [C. A.]. 

{h) Merryweather v. Nixan, 8 Term Rep. 180. But this does not 
apply to general average contribution ; see Maritime Conventions 
Act, 191 1, s. 3, and Austin Friars SS. Co., Ltd. v. Spillers <t Bakers, 
Lid., [1915] 3 K. B. 586. 

(i) Adamson v. Jarvis, 4 Bing. 66, 72 ; Betts v. Gihhins, 2 A. & E. 
57 ; Bank of England v. Cutler, [1908] 2 K. B. 208. 

(k) See Sadler v. Great Western Rail. Co., [1896] A. C. 450. 



Joint Tort-feasors. 



47 



Against two or more joint tort-feasors there is only one Art. 22. 

cause of action, and if that cause of action is released or 

merged in a judgment, no second action can be brought. Q^actfon^ 
So where A. and B. jointly converted C.'s piano to their 
own use, and judgment was recovered in an action against 
A. only, no further action could be brought against B., 
although the judgment against A. was unsatisfied. A. or B. 
might have been sued jointly in the first action, and then 
C. might have enforced the judgment against either of 
them (/). 

When a partner in a firm acting in the ordinary course of Partners, 
the business of the firm, or with the authority of his co- 
partners, commits a tort in regard to any third person, all 
the partners are jointly liable. Each member of the firm 
is also severally liable (m). 

(l) Brinsmead v. Harrison, L. R. 7 C. P. 647 [Ex. Ch.]. 
(m) Partnership Act, 1890 (53 & 54 Vict. c. 39), ss. 10, 12. 



CANADIAN NOTES. 47a 



CANADIAX XOTES TO CHAPTER V. OF PART I. 

Article 20. 

Statutes similar to the English Married Women's Pro- 
perty Act have now heen passed by all the common law 
])rovinces, with the results indicated in the text. On this 
subject see the next chapter, and notes thereto. 

In Macgregor v. Macgregor (1899), 6 B. C. R. 432, the 
plaintiflt' was bringing an action of re|devin in order to 
recover some furniture detained by his wife. The court 
hcid that the action was one of tort and therefore not main- 
tainable. 

With regard to alien enemies a proclamation issued by 
tlie Dominion Government at the outbreak of the European 
war extended protection to all citizens of enemy covintries 
residing in Canada, so long as they continued to behave 
themselves properly. Numerous decided cases have held 
that the civil rights of such aliens remain unimpaired, even 
where the partv is interned. Reference may be made to 
Topay V. Croic's Nest Pass Coal Co. (WU), 20 B. C. R. 
235; 18 D. L. R. 784, and Ilarasymczid' v. Montreal Light, 
Heat d- Power Co. (1916), 25 Que. K. B. 252. 

For a case illustrating the right of a corporation to sue 
for libel see Chinese Empire Reform Association v. Chinese 
Daily Neivspaper Publishing Co. (1907), 13 B. C. R. 141. 

Article 21. 

This article needs considerable qualification in view of 
the present Canadian law. 

The Pjxchequer Court of Canada has now jurisdiction 
to hear and determine: — 

"Every claim against tlic Crown ai'ising out of any 
death or injury to the jicrson or to ])r())jerty resulting 
from the negligence of any officer or servant of the 
Crown while acting within the scope of his duties or 
employment upon any public work." 



47b CANADIAN NOTES. 

This is the result of section 20 of the Exchequer Act 
(E. S. C. c. 140) as amended by 7-8 Geo. V. c. 23, s. 2. 
In its original form the rule limited the public liability to 
cases of accidents caused by negligence " on any publii.' 
work." The new rule seems to place the liability of 
the Crown upon the same footing as that of any other 
employer, so far as the law of negligence is concerned. The 
law applicable is that of the province where the accident 
occurs. 

The court has also jurisdiction over: — 

" Every claim against the Crown for damage to pro- 
perty injuriously affected by the construction of any 
public work." (E. S. C. c. 140, s. 20-h). 

In cases not covered by the statutes the common law 
rule still holds good: Bonneau y. The King (1917). 18 
Can. Ex. E. 135. 

The question of the civil liability of lunatics is one of 
some difficulty in common law jurisdictions. In Stanley v. 
Hayes (1904), 8 0. L. E. 81, a lunatic was held liable 
for setting fire to a barn. The evidence shewed that he 
had some kind of notions of right and wrong. 

In Bren-nan v. Donaghy, 19 N. Z. L. E. 289, the Xew 
Zealand Court of Appeal held a lunatic civilly liable for 
an assault after he had been acquitted on the ground of 
lunacy in a criminal court. A similar decision was reached 
in New York in Williams v. Hays (1894), 143 N. Y. 442 ; 
42 Am. St. Eep. 743. On the other hand, an insane 
defendant has been held not liable for slander, where the 
slander was itself prompted bv her insane delusions: 
Irvine v. Gibson (1904), 117 Ky. 306; 4 Ann. Cas. 569. 

In France the Cour de Cassation held in 1866 that 
insanity was a complete defence : Nadau v. Delclaux, Sirey 
1866-i-237, Dalloz 1867-1-296. This decision has been 
generally, though not quite unanimously, followed by the 
French courts. See Fuzier-Hermann, iii. 770. 

Article 1053 of the Quebec Code amplifies the Code 
Napoleon (Art. 1382), and now reads: "Every person 
capable of discerning right from ivrong is responsible," etc. 
The addition of the Avords in italics would seem to make 
it clear that a lunatic cannot be liable in Quebec, at any 
rate if his lunacy is relevant to the act which causes dam- 
age. 



CANADIAN NOTES. 47c 

Infants are liable in tort, but their liability will be 
measured by the standards appropriate to their age and 
intellio-enee"^: Brie.se v. Maechtle (1911), 146 Wis. 189; 
130 X. W. 893; Ann. Cas. 1912-C. 176. The same rule 
holds good in Quebec (C. C, Art. 1007). 

The statutory exemption of trade unions from liability 
in tort has not been imitated in Canada. On the other 
hand, in ]yilliarns v. Local Union, etc. (1920), 59 S. C. E. 
240, a majority of the Supreme Court held that an action 
for conspiracy was only maintainable against the individual 
member of an unincorporated union. See notes to Articles 
71-72. 

ARTICLE 22. 

For a Canadian case illustrating the law of joint tort- 
feasors, see Longmore v. The J. D. McArtliiir Co. (1919), 
43 S. C. E. 640. 

The doctrine of Brinsinead v. Harrison has not been gen- 
erally adopted in the United States. 

The liability of joint wrong-doers is joint and several 
under the Quebec law (C. C. Art. 1106), but legal pro- 
ceedings taken against one are no bar to similar proceed- 
ings against the others (Art. 1108). 



( 49 ) 



CHAPTER VI. 

LIABILITY FOR TORTS COMMITTED BY 
OTHERS. 

SECTION I.— LIABILITY OF HUSBAND FOR 
TORTS OF WIFE. 

Art. 23. — Wife's ante-nuptial and post-nuptial 

Torts. 

(1) A married woman may be sued alone 
in respect of her ante-nuptial torts. Her 
husband is also liable to the extent of the 
property which he received with her ; and 
he may be sued either jointly with her or 
alone (a). 

(2) A married woman may also be sued 
alone in respect of her post-nuptial torts (b), 
but her husband is also liable, and may be 
joined with her as defendant (c). 

(3) The hability of a husband for his wife's 
torts comes to an end by the death of the wife, 
or by divorce or judicial separation (d), or 
durmg the operation of a separation order 
under the Married Women's (Summary Juris- 
diction) Act, 1895, s. 6. But a voluntary 

(a) Married Women's Pro|)erty Act, 1882 (45 & 4() Vict. c. 75), 
ss. 13-15. As to antenuptial debts of the wife, see Beck v. Pierce, 
23 Q. B. D. 316. 
(6) Ibid., s. 1. 

(c) Seroka v. Kattenhurrj , 17 Q. B. D. 177; Earle v. Kingscotc, 
[1900] 1 Ch. 203. 
{(1) Matrimonial Causes Act, 1857, s. 20. 

E 



50 



Liability for Torts Committed by Others. 



Art. 23. 



Death or 
divorce. 



Separation. 



separation by deed does not affect the hus- 
band's habihty (e). 

Before the Married Women's Property Act, 1882, a wife 
could not be sued alone for a tort. Her husband was 
necessarily joined as defendant in an action of tort brought 
against her, as all her property vested in him during 
coverture, and there was therefore no means of satisfying 
a judgment obtained against her alone. Since the passing 
of the Married Women's Property Act, a married woman is 
capable of holding separate property, and judgment may be 
had against her to the extent of her separate property, and 
to that extent the Act provides that she is liable for, and 
may be sued alone for, her torts as if she were & feme sole. 
This enactment, however, does not affect the common-law 
liability of a husband for his \\dfe's torts (/) ; and, con- 
sequently, a i^laintiff can elect whether he will sue the 
wife alone, or join her husband as co-defendant with her. 
Where husband and wife are joined as defendants incon- 
sistent defences cannot be put in {g). 

If the wife dies or the marriage is dissolved (It), from that 
moment the husband's liability ceases, even for torts com- 
mitted during coverture, and even though an action is 
pending. Unless judgment has been actually given, his 
liability is at an end from the moment of her death or the 
decree absolute. 

The same rule applies where the parties are judicially 
separated (^). The decree puts an end to the husband's 
liability from the moment when it is pronounced. But 
where the parties are living apart under a voluntary 
separation, a husband's liability for his \Aife's torts 
continues {j). 

(e) Utley v. Mitre PuhUshing Co. (1901), 17 T. L. R. 720. 

(/) Seroka v. Kattenburg, 17 Q. B. D. 177. 

(g) Beaumont v. Kaye, [1904] 1 K. B. 292. 

(A) Capel V. Poivell, 17 C. B. (n.s.) 743. 

(i) Matrimonial Causes Act, 1857 (20 & 21 Vict. c. 85), s. 26; 
Cuenod v. Leslie, [1909] 1 K. B. 880 [C. A.]. 

ij) Head v. Briscoe, 5 C. & P. 484: UtJey v. Mitre Publishivg 
Co. (1901), 17 T. L. R. 720, 



Statutory Rule. 51 



SECTION II.— LIABILITY OF PARTNERS FOR Art. 23. 
EACH OTHER'S TORTS. 

The foundation of the liability of partners for each other's 
torts is that each partner is the agent of his copartners in 
relation to the conduct of the partnership business. The 
law has now been codified by ss. 10 and 12 of the Partner- 
ship Act, 1890. 



Art. 24. — Statutory Rule. 

(1) Where, by any wrongful act or omission Partnership 
of any partner acting in the ordmary course of f^i'o/^^*^' 
the business of the firm, or with the authoritj^ 

of his copartners, loss or injury is caused to 
any person not being a partner in the firm, the 
firm is liable therefor to the same extent as the 
partner so acting or omitting to act. 

(2) When the firm is liable, the individual Section 12. 
partners are jointly and severally liable. 

In order to render a firm hable, the tort must be a 
^\Tongful act or omission of a partner committed or made 
either (1) with the authority of his copartners, or (2) in the 
ordinary course of the firm's business {k). If, therefore, 
it be committed or made without the actual authority of 
the copartners, and outside the scope of the partner's 
ostensible authority, the firm will not be liable any more 
than it Avould be for a contract entered into under similar 
circumstances. 

(1) Thus a firm of solicitors would be liable for the Illustrations, 
professional negligence and unskilfulness of one of the Negligence. 
partners {I). Similarly, a firm of newspaper proprietors Libel. 
would be liable for a libel inserted by an editor partner. 
So. a firm of company promoters would be liable for a 

{k) Hamlyn v. Houston, [1903] 1 K. B. 81. 

{I) Blyth V. Fladgaie, Morgan v. Blylh, Smith v. Blyth, [1891 | 
1 Ch. 337. 



52 Liability for Torts Committed by Others. 

Art. 24. fraudulent prospectus issued in the course of business by an 

individual partner. In all these cases the inquiry is simply 

whether the wrongful act or omission was done or made in 
the course of the partner's duty as such, or outside it. 

Fraudulent (2) There is one tort from which the firm is specially 

guarantees, exempted from liability by the Statute of Frauds Amend- 
ment Act, 1828 (m), by which it is enacted that the firm is 
not to be liable for false and fraudulent representation as 
to the character or solvency of any person, unless the 
representation is in writmg signed by all the partners. 
The signature of the firm's name is insufficient even 
although all the partners are privy to the misrepresen- 
tation (?i). 



SECTION III.— LIABILITY FOE, TOETS OF AGENTS 
AUTHORISED EXPRESSLY OR BY RATIFICA- 
TION. 

Art. 25. — Qui facit per aliumfacit per se. 

A person ^^-ho expressly authorises another 
to commit a tort is liable as fully as if he had 
himself committed the tort. And the agent 
is also Uable. In tort a person cannot excuse 
himself by saying that he was acting as the 
agent of another. Agent and principal are 
equally liable. 

Note. — A principal is not, however, necessarily answer- 
able for every tort of his agent. If the agent is employed 
to commit a tort the principal is clearly liable. If the 
agent is emj^loyed to do a thing not in itself Avrongful, and 
in the course of doing the thing for which he is employed 
he commits a tort, the extent of the princij^al's liability 
depends, as we shaU see hereafter, partly on whether the 
agent is a servant or an independent contractor. 

(m) 9 Geo. 4, c. 14, s. 6. 

(n) Swift V. Jewshury, L. R. 9 Q. B. 301 [Ex. Ch.]. 



Ratification of Tort Committed by Agent. 53 



Art. 26. — Ratification of Tort committed by Art. 26. 
an Agent. 

A tortious act done for another, by a person 
not assuming to act for himself, but for such 
other person (o), though without any precedent 
authority whatever, becomes the act of the 
principal if subsequently ratified by him, and, 
whether it be for his detriment or his advantage, 
to the same extent as if the same act had been 
done by his previous authority {f). 

This rule is generally expressed by the maxim, " Omnis 
ratihabitio retrotrahitur, et mandato priori cequiparatur," 
and is equally applicable to torts and to contracts. 

To constitute a binding ratification of acts done Avithout 
previous authority (1) the acts must have been done for 
and in the name of the supposed principal, and (2) full 
knowledge of them, and unequivocal adoption, must be 
proved ; or else the circumstances must warrant the clear 
inference that the principal was adopting the acts of his 
supposed agent, whatever their nature or culpability {q). 

The plaintiff's goods were illegally seized under a warrant Illustration, 
of distress handed to a bailiff by the defendants. The 
plaintiff wrote to the defendants seeking reparation. The 
defendants replied that their solicitors would accept process 
of service. The defendants had given no special instruc- 
tions to the brokers. It was held in the Court of Appeal 
that there was ample evidence of ratification by the defen- 
dants, and that they were liable for the wrongful seizure 
made by the baOifif on their behalf (r). 

(ci) See Eastern (Jonstruction Co., Ltd. v. National Trust Co., Ltd., 
[1914], A. C. at p. 213. 

{p) Wilson V. Tumman, G Man. & Gr. 236, 242. 

{q) Marsh v. Joaejoh, [1897] 1 Ch. 213 [C. A.] ; Wilson v. Tumtnan, 
supra ; and Keighley, Maxstcd c& Co. v. Durant, [1901] A. C. 240 ; 
Barns v. St. Mary Islington (1912), 7 G J. P. 11 ; Becker v. liiebold, 
(1913), 30 T. L. R. 142. 

(r) Carter v. St. Mary Abbot's, Kenslngloii, Vestry, 04 ,J. P. 548 
[n. A.]. 



54 Liability for Torts Committed by Others. 



Art. 27. SECTION IV.— LIABILITY FOR TORTS OF 
SERVANTS. 

Art. 27. — Respondeat Superior. 

(1) A servant is a person employed by 
another, and subject to the commands of that 
other as to the way he shall do his work. 

(2) A person who is in the general employ- 
ment of one man may be the servant of another 
for a particular purpose, that other having 
control of him as to the manner in which he 
carries out his duties m connection with that 
particular purpose {s). 

(3) A master is liable for the negligence of 
his servant committed in the course of his 
employment [t). 

(4) A master is liable for the wilful tort of his 
servant committed within the scope of and in 
the course of his employment {u) and though 
the tort amounts also to a crime. 

It is submitted that despite the apparent conflict of 
the decisions as to a master's liability for the wilful tort 
of his servant, the true test is as stated above in para- 
graph (4). The cases appear to fall into three groups : 
(1) Where the servant was not about his master's business 
at the time of committing the tort. (2) Where he was about 
his master's business but the tortious act could arise only 
from doing an act the master had not held him out as 
competent to do. (3) Where he was about his master's 

(s) Murray v. Currie (1870), L. R. 6 C. P. 24; Jones v. Liverpool 
Corporation (1885), 14 Q. B. D. 890; Donovan v. Laing, [1893] 
1 Q. B. D. 629. 

(t) As to the exceptional case of injury done by one servant to 
another servant working in a common emplo3nnent under a common 
master, see Art. 91, post. 

(m) Lloyd V. Grace Smith ci- Co., [1912] A. C. 716. 



Liability for Torts of Servants. 55 

business and the act constituting the tort arose from doing Art. 27. 

an act the master had held the servant out as competent 

to do. Into grouj) (1) fall cases like Storey v. Ashton, 86 
L. R. 4 Q. B. 476, and Beard v. L. G. 0. Co,, [1900] 2 Q. B. 
530. Into group (2) fall cases like Cheshire v. Bailey, 
[1905] 1 K. B. 237 ; Houghton v. Pilkington, [1912] 3 K. B. 
308 ; and Mintz v. Silverton (1920), 36 T. L. R. 399. Into 
group (3) — the group of liabilitj' — comes Barivick v.'English 
Joint Stock Bank (1867), L. R. 2 Ex. 259 ; Lloyd v. Grace 
Smith & Co., [1912] A. C. 716; Irwin v. Waterloo Taxi 
Cab Co., Ltd., [1912] 3 K. B. 588. 

The test to be applied to ascertain whether a person What con- 
doing work for another is or is not his servant, is to con- stitutes a 
sider whether the master has complete control of him as 
to the way he does his work. If he has, the person em- 
ployed is a servant, and the master is liable for the conse- 
quences, because he has made himself responsible not only 
for the act itself, but for the manner of doing it. Thus, 
the relation of master and servant is in each case a question 
of fact, depending not on the mode of payment for services, 
or the time for which the services are engaged, or the 
nature of those services, or on the power of dismissal 
(though each of those matters may be taken into con- 
sideration), but on the extent of control as to the way in 
which the work is done [v). 



inent. 



Whether a servant is acting within the scope of his Scope of 
employment is a question partly of law and partly of fact. ^^|^°^* 
Generall}^, as long as a servant is doing the kind of thing 
for which he is employed, he is acting within the scope 
of his employment, though he may have had no exjiress 
command to do the particular thing complained of. But 
even whilst doing things of the kind for which he is em- 
ployed, he gets outside the scope of his employment when 
he does them not for his master's benefit but for his own 
private purposes {w), as when a coachman, without the 

(u) Cf. Hillyer v. St. Bartholomev)' s HospilaL [.l^MQ] 2 K. B. 
820, and E. London Harbour Board v. Caledonia, etc. Co., |190H| A. ('. 
271, and Baker v. Snell, [1908] 2 Q. B. 825. 

(w) Storey v. Ashton (1809), L. R. 4 Q. B. 476. 



56 



Liability for Torts Committed by Others. 



Art. 27. 



Illiistrations. 

As to who 
are servants. 



Cabdrivers 



permission of his master, takes out his master's carriage 
and drives it for his own purposes. 

(1) Thus where an owner of a carriage was supplied by 
a Hvery-stable keeper with a driver (who was in his em- 
ployment as a coachman), and the owner of the carriage 
was also owner of the horse and harness, it was held by 
Russell, C.J., that in all the circumstances of the case 
the owner of the carriage had control of the driver as to the 
manner of driving, and the driver was his servant. The 
owner of the horse and harness would be the person to 
give directions as to the way in which the horse should be 
harnessed and driven, and so had control of the driver 
as to the way in which he should do his work, and accord- 
ingly the o\A'ner of the carriage was liable for damage done 
by the negligence of the driver in driving (x). 

(2) But where two ladies, o\^Tiers of a carriage, hired 
horses from a Uvery stable, and with the horses a driver, 
whom they put into their livery, but to whom they did 
not pay wages, it was held that the driver was not their 
servant, and they were not liable for his neghgence. The 
ladies would no doubt give directions as to the places to 
which they should be driven, but not as to the manner in 
which the horses should be driven [y). 

(3) It is held that upon the construction of the Metro- 
pohtan Hackney Carriages Act, 1843 (6 & 7 Vict. c. 86), so 
far as the public is concerned, the proprietor of a hackney 
carriage is responsible for the acts of the driver whilst 
plying for hire, as if the relationship of master and servant 
existed between them, although, in fact, no such relation- 
ship exists, the relationship apart from statute being that 
of bailor and bailee, and not that of master and servant (2). 
But if the driver is m fact the servant of some person other 
than the proprietor, that person may also be Hable as the 
driver's master (a). 



(x) Jones V. ScuUard, [1898] 2 Q. B. 5G5. 
(y) Quarman v. Burnett, 6 M. & W. 499. 
(2) Venahles v. Smith, 2 Q. B. D. 279 ; and King v. 
Improved Cab Co., 23 Q. B. D. 281 [C. A.]. 
(a) Keen v. Henry, [1894] 1 Q. B. 292. 



London 



Liability for Torts of Servants. 



57 



The tort 
must be 
committed 
in the course 
of the erai- 
ployment. 



(4) In Rourke v. White Moss Colliery Co. (b) the defen- Art. 27. 
dants were sinking a shaft in their colUery and agreed with 7~ 
one Whittle to do the sinking at so much per yard. The particular 
defendants agreed to supply an engine and engineer at the purpose, 
mouth of the shaft. The engineer was employed and paid 

by the defendants, and was their general servant, but was 
at the time under the orders and control of Whittle, and it 
was held that he was, for the particular purpose, the servant 
not of the defendants but of Whittle, and consequently the 
defendants were not hable for his negUgence. 

(5) Where a master entrusted his servant with his 
carriage for a given purpose, and the servant drove it for 
another purpose of his own in a different direction, and in 
doing so drove over the plaintiff, the master was held not 
to be responsible, on the ground that the wrong was not 
committed in the course of his employment (c). But if 
the servant when going on his master's business had merely 
taken a somewhat longer road, such a deviation would not 
have been considered as taking him out of his master's 
employment {d}. 

(6) And where a servant does a kind of work for which 
he is not engaged, he is not acting within the course of 
his employment so as to make the master liable for his 
negHgence. Thus, when an omnibus conductor drove the 
omnibus, and whilst so doing negUgently ran into the 
plaintiff, it was held that, in the absence of evidence that 
the conductor was authorised to drive the omnibus, the 
defendants were entitled to judgment (e). 

(7) In Barwich v. English Joint Stock Bank (/), the 
defendants were held liable for the fraudulent statements 
of their manager made for the benefit of the defendants, 
and in the course of his business, the statements being 
made in answer to inquiries by the plaintiff and being to the 

(b) 2 C. P. D. 205 [C. A.], and see Donovan v. Laing, Wharton, 
and Down Construction Syndicate, [1893] 1 Q. B. G29 [C. A.] ; Murray 
V. Currie (1870), L. R. C. P. 24. 

(c) Storey v. Ashton, L. R. 4 Q. B. 476. 

(d) Mitchell v. Crassweller, 22 L. J. C. P. 100. 

(e) Beard v. London General Omnibus Co., [1900] 2. Q. B. 530 
[C. A.]. 

(/) L. K. 2 Ex. 259 [Ex. Ch.]. 



Course of 
employment. 



WUful 
torts. 



Liability for Torts Committed by Others 



Art. 27. effect that a customer of the bank was a person of financial 

stabiUt3\ These statements were untrue to the knowledge 

of the manager, and were made with intent to deceive — 
but not for the benefit of the manager but to benefit the 
bank. But the decision in Lloyd v. Grace Smith & Co. (g) 
has rendered the intention of the servant to benefit his 
employer no longer a basis of the latter's Uability. 

(8) In Poulton v. London and South Western Rail. Co. (gg), 
a station-master having demanded payment for the carriage 
of a horse conveyed by the defendants, arrested the 
plaintiff and detained him m custody until it was ascer- 
tained by telegraph that all was right. The railway 
company had no power whatever to arrest a person for 
non-payment for carriage of a horse, and therefore the 
station-master, in arresting the plamtifl, did an act that 
was wholly illegal, not in the mode of doing it, but in the 
doing of it at all. Under these circumstances, the court 
held that the railway company were not responsible for 
the act of their station-master ; and Mellor, J., said : 
" If the station-master had made a mistake in committing 
an act which he was authorised to do, I think in that case 
the company would be liable, because it would be supposed 
to be done by their authority. Where the station-master 
acts in a manner in which the company themselves would 
not be authorised to act, and under a mistake or mis- 
apprehension of what the law is, then I think the rule is 
very different, and I think that is the distinction on which 
the whole matter turns." 

(9) In an earlier case in which a station-master and 
a poHceman employed by a railway company wrongfully 
arrested a man for not paying his fare, the company was 
held hable, as the company had power to arrest a passenger 
for travelling without paying his fare, and must be taken to 
have authorised the officials to take into custody persons 
whom they believed to be committing that offence. The 
officials made a mistake in the particular case, but it was 
" a mistake made within the scope of their authority " {h). 

(g) [1912] A. C. 71G, followed in Ormiston v. G. W. Rail. Co., 
[1917] 1 K. B. 598. 

{gg) L. R. 2 Q. B. 534. 

(h) Goffw. Great Northern Bail. Co., 3 E. & E. 672. 



Liability for Torts of Servants. 



59 



It is submitted that the two decisions last quoted, Art. 27. 

together with that in Ormiston v. G. W. Ry. Co. (1917), 

estabHsh no more than this, that where an act is done by 
the servant of a company, and such act is ultra vires the 
company, authority to do such act cannot be implied. 
Nothing in these decisions tends to reHeve a company 
from the consequences of the tortious acts of its servants 
if expressly authorised by the proper authority in the 
company. 

(10) So, again, in Bayley v. Manchester, Sheffield and Assaults by 
Lincolnshire Bail. Co. (i) the plaintiff, a passenger on the ^®^^'^" • 
defendants' line, sustained injuries in consequence of being 
pulled violently out of a railway carriage by one of the 
defendants' porters, who acted under the erroneous im- 
pression that the plaintiff was in the wrong carriage. The 
defendants' byelaws did not expressly authorise the com- 
pany's servants to remove any person being in a wrong 
carriage, or travelling therein without having first paid his 
fare and taken a ticket, and they even contained certain 
provisions which imphed that the passengers should be 
treated with consideration ; but nevertheless the court 
considered that the act of the porter in pulling the plaintiff 
out of the carriage was an act done in the course of his 
employment as the defendants' servant. 

In that case Willes, J., says: "A person who puts 
another in his place to do a class of acts in his absence 
necessarily leaves him to determine according to the 
circumstances that arise when an act of that class is to be 
done and trusts him for the manner in which it is done ; 
and consequently he is held answerable for the wrong of 
the person so entrusted either in the manner of doing such 
an act or in doing such an act under circumstances in 
which it ought not to have been done ; provided that what 
was done was done, not from any caprice of the servant, 
but in the course of the employment." 

(11) The defendants employed a manager to manage a Criminal 
branch of their business, Avhich was the sale of furniture ^^^^' 
on the hire-purchase system. The manager sold a piece 

(i) L. H. 7 C. p. 41"). 



60 Liability for Torts Committed by Others. 

Art. 27. of furniture to a person living in the plaintiff's house, and 

on one of the instalments being in arrear he went to the 

plaintiff's house and removed the furniture. Whilst so 
doing he assaulted the plaintiff. The jury found that the 
manager committed the assault in the course of his employ- 
ment, and it was held that the defendants were liable. 
The manager was employed to get back the furniture and 
committed the assault for the purpose of furthering that 
object and not for private purposes of his own, and the 
defendants were held liable for the wrongful act of their 
servant although the assault was a criminal offence {j). 

(12) So, too, a corporation is liable for the libels or 
slanders published by its servants and uttered within the 
scope of their employment (k), but not for those outside the 
scope of their employment (l). 



Art. 28. — Unauthorised Delegation by Servant. 

A master is not liable for the tortious acts 
of persons to whom his servant has, without 
authority, delegated his duties. A servant 
may have express authority, and m some cases 
may have implied authority, to delegate his 
duties to another, but if mthout such authority 
he delegates liis duties to another, that other 
does not become the agent of the master. 
Quaere, might not the master be hable if the 
act of the servant in so delegating amounts to 
negligence ? (m). 

Illustrations. (1) Thus, where the driver and conductor of an omnibus 
authorised a bj^'stander to drive the omnibus (the driver 
having been ordered to discontinue driving by a policeman 

(j) Dyer v. Munday, [1895] 1 Q. B. 742 [C. A.]- 

(it) Citizens' Life Assurance Co. v. Brown, [1904] A. C. 423 [P.C.]. 

(l) Glasgow Corporation v. Larimer, [1911] A. C. 209. 

(m) Engelhart v. Farrant <k Co., [1897] 1 Q. B. 240 [C. A.]; 
R. V. Earl oj Crewe, [1910] 2 K. B. 576 ; Roper v. Public Works 
Coramissioners, [1915] 1 K. B. 45. 



Unauthorised Delegation by Servant. 61 

who thought he was drunk), and the bystander, whilst Art. 28 

driving, negligently injured the plaiatitf, it was held that 

the defendants were not Hable as the bystander was not 
their agent (n). 

(2) But where the driver of a cart negligently left the 
cart in custody of a lad whose duty it was to go with the 
cart to deliver parcels, but had been forbidden to drive, 
and the lad drove the cart so that it collided with the 
plaintiff's carriage, the employer of the driver was held 
liable for the negligence of the driver in leaving the cart 
in custody of the lad. But the employer would not have 
been liable for the negligence of the lad, as he was not 
acting mthin the scope of his employment, and the driver 
had no authority to delegate the driving to him (o). 



Art. 29. — Servants of the Crown. 

The heads of Government departments and 
superior officers are not Hable for the torts of 
their subordinates committed in carrying out 
the business of the Crown unless they have 
themselves ordered or directed the commission 
of the tort (p). 

The head of a Government department is not the master Explanation, 
of the Government servants belonging to the department ; 
nor are soldiers or naval seamen the servants of the officers 
who command them. All are servants of the CroA\-n, 
serving under a common master. Though the soldier is 
absolutely subject to the orders of his officer he is no more 
his servant in law than is a stable boy the servant of the 
coachman, or a railway porter the servant of the station- 
master or the general manager of a railway company ((/). 

(n) Gwilliam v. Twist, [1895] 2 Q. B. 84 [C. A.]. 
(o) Engelhart v. Farrant dh Co., [1897] 1 Q. B. 240 [C. A.]. 
{p) Bainbridgev. Postmaster-Gcyicral, [190(j] 1 K. B. 178 [C. A.J. 
{q) Stone v. Cartwright, 6 Term Rep. 411. 



62 Liability for Torts Committed by Others. 



Art. 30. SECTION V.— LIABILITY FOR NEGLIGENCE OF 
- — INDEPENDENT CONTRACTORS. 

Art. 30. — The General Rule. 

(1) A principal is not liable for the colla- 
teral negligence of an independent contractor, 
that is, for a negligent act or omission which 
arises incidentally in the course of the per- 
formance of the work. 

(2) But to this rule there are five excep- 
tions : 

(a) Where an independent contractor is em- 

ployed to do an act unlawful in itself 
the principal is liable for the direct 
consequences of such act, and is also 
liable for the consequences of the 
agent's negligence in the course of 
doing the act (r). 

(b) If the principal is under an obligation by 

contract or statute to do a particular 
thing, and he employs an independent 
contractor to do it, he is liable if the 
contractor neglects to do the thing, 
or does it improperly. He cannot 
get rid of his duty by employing an 
agent {s). 

(c) Where the thing which the independent 

contractor is employed to do will be a 
nuisance, or is likely in the ordinary 
course of events to cause damage, 
unless proper precautions are taken, 
the principal is liable for the neglect of 

(r) Ellis V. Sheffield Gas Consumers Co., 2 E. & B. 767, p. 6', post. 

(s) Hole V. Sittingbourne and Sheerness Fail. Co., 6 H. & N. 488 ; 
Padbury v. Holliday c& Greenwood (1912), 28 T. L. R. 494 ; Hurlstone 
V. London Electric Railways (1914), 30 T. L. R. 398. 



Liability for Negligence. 63 

the contractor to take those precau- Art. 30. 

tioiis (t). 

(d) Where the employer actually interferes 

in the contractor's work {u). 

(e) In cases within s. 4. of the Workmen's 

Compensation Act, 1906, which gives 
servants of contractor a right to com- 
pensation from contractor's employer. 

It will be noticed that the liability of one who employs Comment 
another to do work is not so extensive where the person °^|g 
employed is an independent contractor as it is where that 
other is a servant. A master has control of the servant as 
to the way he does his work, and it is his duty to see that 
the work is so done as not to cause damage to others — so 
he is liable for the collateral negligence of the servant. 
When an independent contractor is employed, the princij)al 
is only liable for acts which he has expressly or impliedly 
authorised. But a person who is under a duty to do 
something cannot evade that duty by deputing its per- 
formance to another. So if a person is under an obligation 
to do something and he employs an agent to do it, he is 
responsible for any neglect of the agent to perform that 
duty p^operl3^ 

So, too, if a person chooses to do something which he 
does at his peril, or something which will be dangerous if 
not properly done, he must see that the person he employs 
to do the work does it properly. Having authorised the 
work, he cannot escape responsibility for its being carried 
out in such a manner as not to be dangerous. 

In the leading case (v) a railway company had let the Fickard v. 
refreshment rooms and a coal cellar to the defendant, '^"*'"'- 
Smith. The opening for shooting the coals into the cellar 
was f)n the arrival platform. Whilst the servants of a 
coal mciehant (an independent contractor) were shooting 
coals into the cellar for Smith, the jilaintifP, a passenger on 

(0 Hughes v. Percivul, 8 App. Cas. 44.3. 
(u) Burfjesfi v. Gray (1845), 1 C. B. 578. 

(v) Pickard V. f^mith, 10 C. B. (n.s.) 470 ; IJulliday v. Isiat. Til. 
Co., [18991 2 Q. B. .392. 



64 Liability for Torts Committed by Others. 

Art. 30. the railway, in passing out of the station, without any fault 
on his part, fell into the cellar opening, which was in- 
sufficiently guarded owing to the negligence of the servants 
of the coal merchant. The court held that Smith was 
liable, although the coal merchant was an independent 
contractor and his servants were not Smith's servants. 
Williams, J., in delivering the judgment of the court, said : 
" Unquestionably no one can be made liable for an act or 
breach of duty, unless it be traceable to himself or his 
servant or servants in the course of his or their employ- 
ment. Consequently if an independent contractor is 
employed to do a lawful act and in the course of the work 
he or his servants commit some casual act of wrong or 
negligence, the employer is not answerable. . . . That 
rule is, however, inapplicable to cases in which the act 
which occasions the injury is one which the contractor was 
employed to do ; and by a parity of reasoning to cases in 
which the contractor is entrusted with the performance of 
a duty incumbent upon his employer and neglects its 
fulfilment whereby an injury is occasioned. Now, in the 
present case, the defendant employed the coal merchant to 
open the trap in order to put in the coals, and he trusted 
him to guard it whilst open and to close it when the coals 
were all put in. The act of opening it was the act of the 
employer though done through the agency of tlie coal 
merchant ; and the defendant having thereby caused 
danger was bound to take reasonable means to prevent 
mischief. The performance of this duty he omitted, and 
the fact of his having entrusted it to a person who also 
neglected it furnishes no excuse, either in good sense or 
law" {w). 

Illustrations. (1) A railway company was empowered by Act of Parha- 
Independent mcnt to construct a railway bridge over a highway. The 
contractors, company employed a contractor to" do the work. A servant 
of the contractor neghgently caused the death of a person 
passing underneath on the highway by allowing a stone to 
fall on him. The contractor would no doubt have been 
liable for the negligence of his servant, but in an action 
brought by the administratrix of the deceased against the 

(w) And see Holliday v. Nat. Tel. Co., [1899] 2 Q. B. 392. 



Liability for Negligence. 65 

railway company the defendants were held not liable for the Art. 30. 

negligence of the workman, being that of an agent who was 

not their servant, and merely collateral to the work which 
he was employed to do (x). It would seem that liabihty 
for the acts of the independent contractor and his servants 
exists where the damage is caused by an act done in the 
performance of a dangerous undertaking under circum- 
stances where there is a legal obHgation to carry out the 
undertaking properly, e.g., when the undertaking is to be 
conducted on or about a highway. 

(2) A coiupany, not authorised to interfere with the Illustrations 
streets of Sheffield, directed their contractor to open °^ excep- 
trenches therein ; the contractor's servants in doing so 

left a heap of stones, over which the plaintiff fell and was 
injured. Here the defendant company was held liable, as 
the interference with the streets was in itself an unlawful 
act iy). 

(3) So where the defendants were authorised, by an 
Act of Parliament, to constiuct an opening bridge over a 
navigable river, a duty was cast upon them to construct it 
properly and efficiently ; and the plaintiff having suffered 
loss through a defect in the construction and working of 
the bridge, it was held that the defendants were liable 
under exception (b), and could not excuse themselves by 
throwing the blame on their contractors [z) . 

(4) Plaintiff and defendant were owners of two adjoining 
houses, plaintiff being entitled to have his house supported 
by defendant's soil. Defendant employed a contractor to 
pull down his house, excavate the foundations, and rebuild 
the house. The contractor undertook the risk of sup- 
porting the plaintiff's house as far as might be necessary 
during the work, and to make good any damage and satisfy 
any claims arising therefrom. Plaintiff's house was injured 
in the progress of the work, owing to the means taken by 

(x) Reedie v. London and North Westerti Rail. Co., Hobbit v. Same, 
4 Ex. 244. This decision can hardly be reconciled with that in 
Holliday v. Nat. Tel. Co., [1899] 2 Q. B. 392. 

(y) Ellis V. Sheffield Gas Consumers Co., 23 L. J. Q. B. 42. 

(2) See Hole v. Sittingbourne and Shcerne.s.<i Rail Co., (i H. & N. 
488 ; Hard'iker v. Idle District Council, [IHdd] 1 Q. B. 33.5 ; The Snark, 
[1899] P. 74. 



66 Liability for Torts Committed by Others. 

Art. 30. the contractor to support it being insufficient : — Held, on 

the principle above laid dowoi (exception (c)), that the 

defendant was liable (a). 

(5) A district council employed a contractor to make 
up a highway, which was used by the public but was not 
repairable by the inhabitants at large. In carrying out the 
work the contractor negligently left on the road a heap 
of soil unlighted and unprotected. The plaintiff, walking 
along the road after dark, fell over the heap and was 
injured. In an action against the district council and the 
contractor to recover damages, it was held that, as from 
the nature of the work danger was likely to arise to the 
public using the road, unless precautions were taken, the 
negligence of the contractor was not collateral to his em- 
ployment, and the district council (as well as the contractor) 
were liable (&). 

(6) Where the defendant maintained a lamp hanging over 
a highway for his own purposes, it was his duty to maintain 
it so as not to be dangerous to the public, and when he 
employed a contractor to repair it, but the contractor did 
his work badly, the defendant was liable for injury caused 
thereby to a person passing on the highway (c). 

(7) Where a contractor was employed to clear and burn 
the bush on land belonging to the defendants, and he neg- 
ligently lit a fire on the land and permitted it to spread on 
to the plaintiff's land, the defendants were held liable, even 
though, the contractor in lighting the fire had disregarded 
the express stipulations as to the time at which the fire 
should be lit, on the ground that, having authorised the 
lighting of the fires, they were bound not only to stipulate 
that precautions should be taken, but to see that they were 
taken [d). 

(a) Bower v. Peate, 1 Q. B. D. 321, approved in Dalton v. Angus, 
6 App. Cas. 740, and Hughes v. Percival, 8 App. Cas. 443. Aliter 
if the work is not dangerous ; Wilson v. Hodgson (1915), 85 L. J 
K. B. 270. 

(6) Fenny v. Wimbledon Urban Council, [1899] 2 Q. B. 72 [C. A.] ; 
and sf>e Holliday v. National Telephone Co., [1899] 2 Q. B. 392 
[C. A.]. 

(c) Tarry v. Ashton, 1 Q. B. D. 314. 

(d) Black V. Christchurch Finance Co., [1894] A. C. 48 [P. C.]. 



CANADIAN NOTES. 66a 



CANADIAN NOTES TO CHAPTER VI. OF PAET I. 

Article 33. 

The provincial statutes relating to married women have 
not relieved husbands of responsibility for their wives' 
torts. For recent cases in which the husband has been 
held liable see: McArthur v. Tyas (1920), 2 W. W. R. 425 
(Alta.), and Mackenzie v. Cunningham (1901), 8 B. C. R. 
206. 

In Quebec the husband is not liable unless he has partici- 
pated in or authorised the delict of his wife: Camire v. 
Bergeron (1889), 3 Que. Pr. R. 281. 

Article 24. 

Under Article 1865 of the Quebec Code commercial 
])artners are jointly and severally liable for all the obliga- 
tions of the partnership, including those arising out of 
delict. In the case of non-commercial partnerships they 
are liable to the creditor in equal shares, irrespective of 
their shares in the partnership (Art. 1854). 

Partnerships in the common law provinces are governed 
l)y the rule laid down in the text. 

Articles 25 and 26. 

For a case illustrating the ratification of a tortious act 
see Thien v. Bank of British North Anterica (1912), 21 
AV. L. R. 192 ; 4 D. L. R. 388. 

Article 27. 

Th(! most difficult prohh'ni arising uiuler this Article is 
that of determining the extent of a master's responsibility 
for the acts of a disobedient servant. Upon this question 
till student is strongly recommended to read the elaborate 
jiid<imciits delivered in tlie Supreme Court in the case of 
Curlei/ V. Latraille (1920), CO S. C. K. 131 ; 55 I). L. !{. 
4(il. The case, which was one of a joy-riding chauffeur, 
arose under Article; 1054 of the Quebec Co(h' (see below), 
arid the opini<m of the majority indicates that the Cotle 
arrives at the same result as the common law. 



66b CANADIAN NOTES. 

Whetlicr the tortfeasor is a servant or an iiidepeiideiil. 
contractor is a question of fact in each case. See Cockshutt 
Plow Co. V. Macdonald (1912), 5 Alta. L. R. 184; 33 
W. L. R. T98; 2 W. W. R. 488; 8 D. L. R. 113: Lorlie v. 
Wright (1917), 36 Que. K. B. 18. 

In determining whether or not A. is the servant of B., 
the essential test is the nature of the control which B. exer- 
cises over A. In Consolidated Plate Glass Co. v. Castoii 
(1899), 29 S. C. R. 624, the defendant eonioany hired 
the servant, horse, and wagon of another company for the 
purpose of delivering their goods, and the servant drove 
the wagon to such places as the defendants might indicate. 
It was held that he was not the servant of the defendants, 
so as to make them liable for an accident due to liis negli- 
gent driving. 

In Article 1054 of the Quebec Code the rules of vicari- 
ous liabilit}' are laid down in the following terms : — 

" He is responsible not only for the damage caused 
by his own fault, but also for that caused by the fault 
of persons under his control and by things which he has 
under his care ; 
i " The father, or, after his decease, the mother, is 
responsible for the damage caused by their minor child- 
ren; 

" Tutors are responsible in like manner for their 
pupils ; 

" Curators or others having the legal custody of insane 
persons, for the damage done by the latter; 

" Schoolmasters and artisans, for the damage caused 
by their pupils or apprentices while under their care. , 

" The responsibility attaches in the above cases only 
when the person subject to it fails to establish that he 
was unable to prevent the act which has caused the 
damage. 

" Masters and employers are responsible for the dam- 
age caused by their servants and workmen in the per- 
formance of the work for which they are employed." 

In Infernoscia v. Bonelli (1905), 38 Que. S. C. 59, the 
defendant's daughter broke off her engagement with the 
plaintiff. Breach of promise of marriage raises a delictual 
liability under the Quebec law, and the father was ordered 
to pay damages. See also Bergeron v. Dageimis (1913), 
47 Que. S. C. 492. 



CANADIAN NOTES. 66c 

111 Corbij V. Foster (1913), 21) 0. L. K. 83; J;J I). L. II. 
664, an attempt was made under the common law to hold 
a father responsible for his sou's tort on the ground that 
he knew the boy to be of a vicious disposition, the theory 
apparently being that a boy was a species of dangerous 
animal. Judgment was given for the defendant. So again 
in Walker v. Martin- (1919), 46 0. L. E. 144; 49 D. L. E. 
593, it was held that a father is not liable for the negli- 
gence of a daughter who drives his car without his consent. 

Article 28. 

There appears to be no Canadian authority upon the 
question raised by this Article. In most cases the unauth- 
orized delegation by the servant would itself amount to 
negligence. 

For example, in //('// v. Winnipeg Electric By. (1911), 
21 Man. L. E. 442; 46 S. C. E. 654; 8 D. L. E. 106, the 
motorman and the conductor of a street car exchanged 
places. It was held that the negligence of the motorman 
in so doing was the effective cause of the accident, and that 
the company was therefore responsible. 

Article 29. 

See the notes on Article 21. In cases of negligence a 
remedy against the Crown itself is now provided in Canada 
by the Exchequer Court Act. 

Article 30. 

In Cocksliuft Plow Co. v. Macdonald (1912), 5 Alta. 
L. E. 184; 22 W. L. E. T98; 2 W. W. E. 488; 8 D. L. E. 
112, the parties were owners of adjoining lands. The 
company employed a reliable firm of contractors to erect a 
building upon their land. Owing to the negligence of the 
contractors' workmen the building collapsed upon Macdon- 
ald's land, causing damage. It was held that the company 
were not liable in an action based upon negligence. 

In Mcintosh v. Simcoe Count ij (1914), 15 Ont. L. E. 
73, the defendants were held liable for the frightening of 
horses on a highway by a cement mixer that was under the 
control of an indej)oi)(1ent contractor, since in authorising 
the use of such a machine on the highway they had created 
a public danger. Eeference mav also be made to «S'ro// v. 
City of Quebec (1913), 44 Qiir.'s. C. KSl. 



CHAPTER VIT. 

THE EFFECT OF THE DEATH OR BANKRUPTCY 
OF EITHER PARTY. 

SECTION I.— COMMON LAW. 

Art. 31.— Death generally destroys the Right 
of Action. 

(1) As a general rule, the right to sue and 
the liability to be sued for torts ceases with 
the life of either party. 

(2) This rule does not apph^ where the tort 
was committed by the deceased and consists 
of: 

(a) The appropriation by the deceased of 

property (or the proceeds or value 
of property) belonging to the plain- 
tiff {a) ; or 

(b) An injury to real or personal property 

committed by the deceased within six 
calendar months of his death {h). 

The rule does not apply when the death is 
that of the person who would have been plaintiff 
if he had lived, and the tort consists of : 

(a) An injury to real property of the deceased, 
committed within six calendar months 
of his death (c) ; or 

(a) Phillips V. Homfray, 24 Ch. D. 439 [C. A.] (1883). 

(6) 3 & 4 Will. 4, c. 42, s. 2 ; see Kirk v. Todd, 21 Ch. D. 484 
[C. A.]. The action must be brought within six months of con- 
stitution of a [)crsonal representative. 

(c) Ihid. The action must be brought within twelve Jnonths of 
death. 



68 Effect of Death, etc. of Either Party. 

Art. 31. (b) All injury to the personal property of 
the deceased {d). 

Note.— Where the death is that of the person injured 
the rule "actio personalis moritur cum persona" only 
applies to torts of a purely personal nature, such as libel 
and assault ; it does not apply to any torts whereby the 
personal property of the deceased has suffered (e). 

Illustrations. (1) An action to restrain the infringement of a registered 
trade mark may be brought by the executors of the owner 
of the trade mark in the event of his dying before action 
brought, or, if brought, may be continued by his executors 
after his death (/). 

(2) The case of Hatchard v. Mege (g) is an excellent 
example of the rule under consideration. There it was 
held that a claim for falsely and maliciously pubUshing a 
statement calculated to injure the plaintiff's right of pro- 
perty in a trade mark, was put an end to by the death of 
the plaintiff after the commencement of the action only so 
far as it was a claim for libel ; but so far as the alleged 
tort was in the nature of slander of title, the action sur- 
vived, and could be continued by his personal represen- 
tative, who would be entitled to recover on proof of special 
damage. 



Art. 32. — Effect of Bankruptcy. 

(1) The right of action in tort belonging to 
one who becomes bankrupt, is not affected by 
his bankruptcy {h) unless the tort is one which 
causes actual loss to his estate, in which case 
the right passes to his trustee (^). 

(d) 4 Edw. 3, c. 7 ; 25 Edw. 3, c. 5. 

(e) Twycross v. Grant, 4 C. P. D. 40. 

(/) Oalcey & Son v. Dalton, 35 Ch. D. 700. 
{g) 18 Q. B. D. 771. 

(/(,) Rose V. Buckett, [1901] 2 K. B. 449. 

(i) Bankruptcy Act, 1914 ; Wilson v. United Counties Bank, Ltd., 
[1920] A. C. 120. 



Common Law. 69 

(2) A right of action for tort against one Art. 32. 
who becomes bankrupt, is not destroyed by the 
bankruptcy, nor can the plaintiff prove in the 
bankruptcy for compensation {j). 

(1) Thus a bankrupt may, even during the continuance Illustrations. 
of the bankruptcy, sue another for libel or assault, or for 
seduction of his servant (k) ; and may, it is conceived, keep 

any damages which he may recover for his own use and 
benefit (Z). 

(2) So in an action for trespass and seizure of goods in 
which the plaintiff alleged damage to the goods, damage to 
the premises, and personal annoyance to himself and his 
family, and it was admitted that no substantial damage 
was done to the premises or the goods, it was held that 
the right of action did not pass to the trustee in bank- 
ruptcy (m). 

(3) But where a tort in respect of property causes actual 
damage, so as to inflict loss on the bankrupt's creditors, the 
right of action passes to the trustees, and the bankrupt loses 
the right of suing for the abstract tort to his right (n), 
unless there were two distinct causes of action {n) . 

SECTION II.— STATUTORY LIABILITY FOR 
CAUSING DEATH. 

Art. 33. — Actions by Personal Representatives 
of Persons killed by Tort. 

(1) Whenever the death of a person is caused Lord 
by a wrongful act, neglect or default of another ^^mpbeii's 
which would (if death had not ensued) have 
entitled the party injured to maintain an action 

(j) Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 30 (2), and 
s. 37 ; Watson v. HoUiday, 20 Ch. D. 780; 52 L. J. Ch. 543 ; Ex parte 
Stone, Re Giles, 37 W. iV. 767. 

{k) Beckham v. Drake, 2 H. L. Cas. 579. 

(I) Ex parte Vine, 8 Ch. D. 364 [C. A.]. 

(m) Rose v. Buckelt, [1901] 2 K. B. 449. 

(n) Brewer v. Dew, 11 M. & W. 625; and Hodgson v. Sidney, 
L. R. 1 Ex. 313 ; Bankruptcy Act, 1914, s. 18 (1). 



70 Effect of Death, etc. of Either Party. 

Art. 33. in respect thereof, then the wTongdoer is hable 
to an action, even although the circumstances 
amount in law to a felony (o). 

(2) Every such action must be for the benefit 
of the wife, husband, parent and child of the 
deceased, and must be brought by and in 
the name of the executor or administrator of 
the deceased person (p). 

(3) Where there is no personal represen- 
tative, or no action is brought by him within 
six months, the action may be brought in the 
name or names of all or any of the persons for 
whose benefit the personal representative could 
have sued (q). 

(4) In every such action the jury may give 
such damages as they may think proportioned 
to the injury resulting from such death to the 
parties respectively for whom and for whose 
benefit such action is brought. The amount 
so recovered, after deducting the costs not re- 
covered from the defendant, is divided amongst 
the before-mentioned parties (or such of them 
as may be in existence) in such shares as the 
jury by their verdict may direct (r). 

(5) Not more than one action Ues for the 
same cause of complaint, and every such action 
must be commenced within one year after the 
death of the deceased (s). 

Explanation. At common law no action lay against any person who by 
his wrongful act, neglect, or default caused the immediate 
death of another person, even though damage was thereby 

(o) Fatal Accidents Act, 1846 (usually called Lord Campbell's 
Act) (9 & 10 Vict. c. 93), s. 1. 

(p) Ibid., s. 2. 

(q) 27 & 28 Vict. c. 95, s. 1 , and see Holhrun v. Bagnell, 4 L. R. 
Ir. 740. 

(r) 9 & 10 Vict. c. 93, s. 2. (s) 9 & 10 Viet. c. 93, s. 4. 



be noted. 



Liability for Causing Death. 71 

directly caused to others by being deprived of his services Art. 33. 

or support. Still less could his personal representatives 

bring an action in respect of the A\Tong committed to the 
deceased himself. And this is still the law, except in so 
far as an action lies under Lord Campbell's Act. So a 
master cannot bring an action for injuries which cause the 
immediate death of his servant, though he suffers loss by 
being deprived of those services, nor can a father recover 
in respect of the funeral expenses incurred by reason of 
the death of his daughter caused by the negligence of the 
defendant (t). 

The following points must be remembered — Points to 

(1) No action lies unless, had the deceased lived, he 
himself could have maintained an action at the time of 
his death. So it is a good defence that the deceased 
would have had no cause of action as his injuries were 
caused by his contributory negligence («). So, too, if the 
deceased's cause of action would at the time of his death 
have been barred b}" a Statute of Limitations {x), or by his 
having accepted satisfaction for his injuries (y), or agreed 
not to sue (2), no action can be brought under the Act. 

(2) Every such action must be brought for the benefit of 
the wife, husband, parent and child of the deceased. Parent 
includes a grand-parent and a stejD-parent. Child includes 
a grand-child and a step-child, and a child en ventre sa 
mere (a), but not an illegitimate child (6). The jury appor- 
tion the damage amongst these persons in such shares as 
they may think proper. 

(t) Clark V. London General Omnibus Co., [1906] 2 K. B. 648 
[C. A.]. But the rule doos not apply whero the cause of action ia 
breach of contract and the death was part of tlie damages (Jaclsmi v. 
Watson <k Sons, [1909] 2 K. B. 193). It has been held that wliere 
by the negligence of the defendant a servant is injured but not killed, 
the master may bring an action for loss of services, sed quarre 
{Berringer v. Great Eastern Rail. Co., 4 C. P. D. 163). 

(u) Pym V. Great Northern Rail. Co., 4. B. & S. 396 [Ex. Ch.]. 

(x) Williams V. Mersey Dock Board, [1905] 1 K. B. 804 [C. A.]. 

(y) Read v. Great Eastern Rail. Co., L. R. 3 Q. B. 55.5. 

(z) Griffiths V. Earl of Dudley, 9 Q. B. D. 357. 

(a) The George and Richard, L. R. 3 A. P. & E. 466 ; 24 L. T. 
717. 

(h) Dickinson v. North Easlern Rail. Co.. 2 H. & C. 735. 



72 Effect of Death, etc. of Either Party. 



What 
damage 



Art. 33. (3) The persons for whose benefit the action is brought 

must have suffered some pecuniar}' loss by the death of the 
deceased (c). " Pecuniary loss " means " some substan- 
must Tae tial detriment from a worldlj'^ point of view." Thus, loss of 

proved. reasonably anticipated pecuniary benefits, loss of education 

or support is sufficient {d) : as where the plaintiff was old 
and infirm and had been partly supported by his son, the 
deceased (e). Even loss of mere gratuitous liberality is 
sufficient (/). But where a father employed his son, who 
was a skilled workman, at the current rate of wages, and 
the son did not contribute to the father's support, it was 
held that the father had no claim, as he had suffered no 
pecuniary loss by the death of his son {g) . 

(4) But ■■ where a man has no means of his own and 
earns nothing, his ^ife or cliildren cannot be pecuniary 
losers by his decease. In the like manner Avhen by his 
death the whole estate from which he derived his income 
passes to his widow or to his child (as was the case in 
Pym V. Great Northern Rail. Co. {h)),no statutory claim will 
lie at their instance " (^). So, too, the jury cannot, in such 
cases, take into consideration the grief, mourning, and 
funeral expenses to which the survivors were put. And 
this seems reasonable ; for, in the ordinary course of nature, 
the deceased would have died sooner or later, and the grief, 
mourning, and funeral expenses would have had to be 
borne then, if not at the time they were borne (k). 

(c) Franklin v. South Eastern Bail. Co., 3 H. & N. 211. 

(d) Pym V. Great Northern Rail. Co., 4 B. & S. 396 [Ex. Ch.] : 
Franklin v. South Eastern Bail. Co, supra ; Byan v. Oceanic Steam 
Navigation Co. (1914), 110 L. T. 641. 

(e) H ether ingtonv. North Eastern Bail. Co., 9 Q. B. T>. 160. 
(/) Dalton V. South Eastern Bail. Co., 27 L. J. C. P. 227. 
(g) Sykes v. North Eastern Bail. Co., 44 L. J. C. P. 191 ; and 

damages have been awarded for the loss of domestic services of a 
wife {Berry v. Humm, [1915] 1 K. B. 627), and for loss of anticipated 
earnings of a daughter [Tajf Vale Bail. Co. v. Jenkins, [1913] 
A. C. 1). 

(h) 2 B. & S. 759 [Ex. Ch.]. 

(i) Per Lord Watson in Grand Trunk Bail. Co. of Canada v. 
Jennings, 13 App. Cas. 800, 804. 

(k) Blake v. Midland Bail. Co., 18 Q. B. 93 ; Dalton v. South 
Eastern Bail. Co., 4 C. B. (n.s.) 296; Clark v. London General 
Omnibus Co.. [1906] 2 K. B. 648 [C. A.]. 



Liability for Causing Death. 



73 



(5) If the deceased obtained compensation during his 
lifetime, no further right of action accrues to his repre- 
sentatives on his decease (1). 



Art. 33. 



(6) It was formerly held that where the deceased had Insurance 
insured his Hfe the jury in assessing damages ought to ^^^ *° . 
take into account the value of the poHcy payable on his account, 
death in diminution of damages. This is now, however, 
altered by the Fatal Accidents Act, 1908 (m), by which the 
rule under Lord Campbell's Act is made the same as in 
common-law actions for damages (n), and "any sum paid 
or payable on the death of the deceased tinder ayiy contract of 
assurance or insurance " is not to he taken into account. 



[l] Read v. Great Eastern Rail. Co., L. R. 3 Q. 
Daly V. Dublin, Wicklow and Wexford Bail. Co.. 
[C. A.], where the Irish courts decided contra. 

(m) 8Edw. 7, c. 7. 

(n) See Art. 40, post. 



B. 555. But see 
30 L. R. Ir. 514 



CANADIAN NOTES. ?3a 



CANADIAX XOTES TO CHAPTER VII. OF PART I. 

Article 31. 

All the Canadian provinces except Quebec have statutes 
to the same effect as the rules laid down in the text. In 
cases of personal injuries causing death no right of action 
accrues to the administrator, except to the extent and for 
the purposes defined in Lord Campbell's Act. See England 
V. Lamb (1918), 42 Ont. L. R. 60, explaining R. 8. Ont. 
(1914), c. 121. 

The only Quebec authority appears to be the case of 
Tl;ompson v. Strange (18T9), 5 Q. L. R. 205, where the 
plaintiff in an action for false imprisonment died after 
action brought, and the proceedings were continued by his 
widow as tutrix to the children. Casault, J., held that in 
cases where the delict affects the person, and not the 
property, the right to bring action perishes with the injured 
party; but after action brought: " Du moment oii la 
demande est formee, Les dommages sont une creance 
acquise: il ne reste plus qu'a en etablir le montant en les 
liquidant. Les heritiers succedent a cette creance comme 
aux autres qu'ils trouvent dans la succession, et les frais de 
Faction, si elle est renvoyee, sont aussi une dette de la 
succession." 

. Article 32. 

By section 20(i-c) of the Dominion Bankruptcy Act of 
1920, the trustee is entitled to maintain and defend all 
actions "relating to the property of the debtor." 

By section 44 (i) " demands in the nature of unliqui- 
dated damages arising otherwise than by reason of a con- 
tract, promise, or breach of trust shall not be provable in 
bankruptcy or in proceedings under an aiitlioi'ised assign- 
ment." 

Articj.e 33. 

Statutes similar in effect to Lord Cam|)l)ell's Act have 
been enacted by all the provinces. In Quebec the prin- 
ciple is adopted by Article 10.")n of the Civil Code. 



73b CANADIAN NOTES. 

The right of action under these statutes belongs to the 
personal representative of the deceased, and not to the 
relatives. In McKerral v. Citij of Edmonton (1912), 7 
D. L. R. 661, the plaintiff sued in the character of parent. 
The court held that he had no right of action as parent, 
and refused an application to amend the statement of 
claim, since the effect of this would have been to extend 
the statutory period within which the action had to be 
brought. 

Damages cannot be awarded for the benefit of parents 
unless they can shew that they had some reasonable expec- 
tation of pecuniary benefit from the deceased child: see 
Broivn v. B. C. Electric By. Co. (1909), 15 B. C. E. 350. 
No sum can be awarded by way of solatium doloris: Que- 
bec Railway Light and Poiver Co. v. Poitras (1904), 15 
Que. K. B. 429; Central Vfrmont By. v. Franchere (1904), 
35 S. C. E. 68. 

The right of action arising under Article 1056 of the 
Quebec Code is an independent right, and is not derived 
from the deceased. The defendant cannot plead that the 
deceased has received " satisfaction " by his membership 
of a railway insurance society by virtue of which his repre- 
sentatives would have received insurance money even in 
the event of natural death : Miller v. Grand Trunk By. Co. 
(1906), A. C. 187; 15 Que. K. B. 118. 

For cases arising in the other provinces see Grand Trunk 
By. Co. V. Jennings (1888), 13 App. Cas. 800. 

The student should be careful to distinguish the liabil- 
ity created by these statutes from that arising under the 
more modern Workmen's Compensation Acts. In the latter 
case the liability of the master is not really delictual at all, 
but is an incident which the law now attaches to the con- 
tract of em])loyment. 



( 75 ) 



CHAPTER VIII. 
OF DAMAGES IN ACTIONS FOR TORT. 

Art. 34. — Damages for Personal Injury. 

There is no fixed rule for estimating damages 
in cases of injury to the person, reputation, or 
feelings, and the finding of the jury will only be 
disturbed — 

(a) Where the amount of the damages awarded 

is so excessive that no twelve men 
could reasonably have given it (a) ; 

(b) Where the court comes to the conclusion 

from the amount or other circum- 
stances that the jury must have taken 
into consideration matters which they 
ought not to have considered, or applied 
a AVTong measure of damages {h) ; 

(c) Where the smallness of the aAvard shows 

that they have either failed to take 
into consideration some essential ele- 
ment (c), or have compromised the 
question {d). 

The court will not interfere with the verdict of a jury Comment, 
merely on the ground that the damages awarded (e) are 
more than the court itself would have awarded. The 
court must be satisfied that the jury has not really acted 

(a) Praed v. Graham, 24 Q. B. D. 53. 

(6) Johnston v. Great Western Rail. Co., [1904] 2 K. B. 250 [C. A.]. 

(c) Phillips V. London and South Western Rail. Co., 4 Q. B. D. 
406. 

(d) Falvey v. Stanjord, L. R. 10 Q. B. 54 ; Karavias v. Callinicos, 
[1917] W. N. 323. 

(e) Britton v. South Wales Rail. Co., 27 L. J. Ex. 355. 



6 Of Damages in Actions for Tort. 

Art. 34. reasonably on the evidence, but has been misled by pre- 

judice or passion, or has acted on a wrong principle (/). 

The only power of the court, if they think the damages 
excessive, is to send the case down for a new trial. They 
cannot (except by consent) usurp the functions of a jury, 
and themselves assess the damages {g). 

So, in an action for false imprisonment, Hbel, or mahcious 
prosecution, the jury may take into account the injured 
feehngs and reputation of the plaintiff, and not merely his 
pecuniary loss. 

ussault. Thus, to beat a man pubhcly is a greater insult and 

injury than to do so in private, and is accordingly ground 
for aggravation of damages (h). 

And where damage which is not actionable is combined 
with damage which results from an actionable wrong, the 
former damage may be taken into consideration to swell 
the damages awarded on the actionable wrong (^). 

Art. 35. — Damages for Injury to Property. 

(1) The damages in respect of injuries to 
property are to be estimated upon the basis 
of being compensatory for the deterioration in 
value caused by the wrongful act of the defen- 
dant, and for all natural and necessary expenses 
incurred by reason of such act (j). 

(2) In actions for trespass to real property 
the measure of damages is the loss the plaintiff 
has sustained in consequence of the wrongful 
acts of the defendant, and not the benefit which 
accrues to the latter. 

(/) Per Lord Halsbury, L.C, in Watt v. Watt, [1905] A. C. 
115 ; Johnston v. Great Western Rail. Co., [1904] 2 K. B. 250 [C. A.]. 

(g) Watt V. Watt, [1905] A. C. 115. 

(h) TuUidge v. Wade, 3 Wils. 18. 

(i) Jackson v. Watson tfc Sons, [1909] 2 K. B. 193; Griffith v. 
Richard Clay dk Sons, [1912] 2 Ch. 291. 

(i) See Rust v. Victoria Dock Co., 3G Ch. D. 113 [C. A.]. 



Damages for Injury to Property. 



77 



(3) When the wrong consists in depriving Art. 35. 
the plaintiff of his personal property the mea- 

sure of damages is the market value of the 
property at the time of the commission of the 
wrong. 

(4) Where the wrong results in the plaintiff's 
being temporarily deprived of the use of per- 
sonal property the measure of damages is the 
value of the use of which he is deprived. 

(1) Thus, for the conversion of chattels, the full market Conversion, 
value of the chattel at the date of the conversion is, in the 
absence of special damage, the true measure. Where the 
conversion consists in a refusal to dehver them up to the 

person entitled to them, the value at the time of the refusal 
is the measure of damages {k). 

If there is no market value, the actual value must be 
ascertained otherwise (/). 

(2) Where the defendant cut a ditch across the plaintiff's Trespass 
land, the measure of damages was the diminution in value ° ^^ ' 
of the land, and not the cost of restoring it {m). 

(3) In Whitwliam v. Westminster Brymho Coal and Coke 
Go. {n), another principle was apphed in j^ecuhar circum- 
stances. The defendants had wrongfully tipped on the 
plaintiff's land spoil from a colliery, and it was held that 
in the special circumstances the value of the land to the 
defendants for tipping purposes Avas the proper measure, 
as the defendants had had the use of the plaintiff's land for 
years, and they ought not to do this without paying for it. 

(4) So, where coal has been taken, by working into the Taking coal. 
mine of an adjoining owner, the trespasser will be treated 

as the purchaser at the pit's mouth, and must pay the 
market value of the coal at the pit's mouth, less the actual 
disbursements (not including any profit or trade allowances) 

{k) Henderson cfc Co. v. Williams, [1895] 1 Q. B. 521 [C. A.]. 
(I) France v. Gaudet, L. R. 6 Q. B. 199. 
(m) Jones v. Gooday, 8 M. & W. 140. 

(n) [189(i] 2 Ch. 538 ; and see Lodge Holes Colliery Co. v. Wed- 
nesbury Corporation, [1908] A. C. 323. 



78 Of Damages in Actions for Tort. 

Art. 35. for severing and bringing it to bank, so as to place the 

owner in the same position as if he had himself severed 

and raised the coal (o). 

Loss of use (5) Where, owing to a collision, the plaintiffs lost the use 

o a c a e . ^^ ^ dredger for some weeks, they were entitled to recover 
as damages for the loss of the use of the dredger a sum 
equivalent to the cost of hiring such a dredger, although 
they were not out of pocket in any definite sum {p). And 
where a harbour board lost the use of a lightship by 
reason of its being damaged by colHsion, they recovered 
not only the cost of the repairs, but a sum for the loss of 
the use of the Ughtship, although its place was taken by 
a spare hghtship they kept in reserve {q). But where 
the defendant detained a ship belonging to the j^laintiff 
which was in use on a non-paying route purely for main- 
tenance of business connection and future profit, loss of 
such future profit by such detention was held too remote (r). 
It is the duty of the plaintiffs to use all reasonable means 
to mitigate his loss and the measure of damage is the loss 
actually incurred (s). 

Art. 36. — Presumption of Damage against a 
Wrong-doer. 

If a person who has wrongfully converted 
property refuses to produce it, it will be 
presumed as against him to be of the best 
description (t). 

Illustrations. (1) Thus, in the leading case (t), where a jeweller who 
had WTongfully converted a Jewel which had been shown to 
him, and had returned the socket only, refused to produce 

(o) In re United Merthyr Collieries Co., L. R. 15 Eq. 46 [C. A.]. 

[p) The Greta Hohne, [1897] C. A. 596 : The Marpessa, [1907] 
A. C. 241. 

(q) The Mediana, [1900] A. C. 113. 

{r) The Bodlewell, [1907] P. 286. 

(s) British Westinghouse Co. v. Underground Electric Bails., 
[1912] A. C. 673 ; cf. this with the judgment of Lord Wrenbury in 
Jamal v. Moolla Dawood <k Co., [1916] 1 A. C, at page 179 ; applied 
in Keck v. Faher (1916), 60 Sol. Jo. 253. 

{t) Armory v. Dehnnirie, 1 Str. 504 ; 1 Sm. L. C. 356. 



Presumption of Damage. 79 

it in order that its value might be ascertained, the jury were Art. 36. 

directed to assess the damages on the presumption that 

the jewel was of the finest water, and of a size to fit the 
socket ; for Omnia prcesumunfur contra spoliatorem. 

(2) So, where a diamond necklace was taken away, and 
part of it traced to the defendant, it was held that the 
jury might infer that the whole thing had come into his 
hands (w). 

Art. 37. — Consequential Damages. 

Where special damage has resulted naturally 
and directly from the tortious act it may be 
recovered : such damage must be either the 
intended result of the defendant's act or the 
natural and probable result of such act. 

The difficulty in cases under this rule is to determine 
what damages are the intended or natural and probable 
result of the tortious act and what are too remote. 

(1) If, through a person's Avilful or neghgent conduct, Illustrations, 
corporal injury is infhcted on another, whereby he is Loss of 
partially or totally prevented from attending to his business, earnings, 
the pecuniary loss suffered in consequence may be recovered, 

for it is the natural result of the injuria {v). 

(2) Where the tort occasions as a natural result mental Mental 
shock, damages may be recovered in respect thereof. It ^^ock. 
was long doubted whether mental shock caused by fright 
without any bodily injury was a subject for damages, but 

it has now been decided that damages are recoverable in 
respect thereof (w). But such shock must be evidenced 
by outward signs. 

(u) Mortimer v. Cradock, 12 L. J. C. P. 166. 

(v) Phillips V. London and South Western Rail. Co., 4 Q. B. D. 
406; Johnston v. Great Western Rail. Co., [1904] 2 K. B. 250 
[C. A.]. 

{w) Dulieu V. White <t Sons, [1901] 2 K. B. 669 — an action for 
negligence. Disapproving the decision in Victorian Rail. Commis- 
sioners V. Coultas (1.3 App. Cas. 222) and Wilkinson v. Downton, 
[1897] 2 Q. B. 57 — an action for damages for shock caused by the 
defendant, as a practical joke, falsely telling the plaintiff that her 
husband had had his legs broken in an accident ; Janvier v. Sweeney, 
[1919] 2 K. B. 316. 



80 



Of Damages in Actions for Tort. 



Art. 3': 

Medical 
expenses. 

Infection. 



Loss of ship. 



Novus actus 
interveniens. 



(3) So, the medical expenses incurred may be recovered 
if they form a legal debt owing from the plaintiff to the 
phj^sician, but not otherwise (x). 

(4) A cattle-dealer sold to the plaintiff a cow, fraudulently 
representing that it was free from infectious disease, when 
he knew that it was not ; and the plaintiff having placed 
the cow with five others, they caught the disease and 
died. It was held that the plaintiff was entitled to re- 
cover as damages the value of all the cows, as their death 
was the natural consequence of his acting on the faith of 
the defendant's representation {y). But where the facts 
support an action of trespass in such action scieiiter need 
not be proved (2). 

(5) So, where a steamer (wholly to blame) coUided with 
a saihng vessel, and destroj^ed its instruments of naviga- 
tion, and in consequence of that loss the saihng ship ran 
ashore, and was lost wliile making for port, it was held 
that the loss of the ship was the natural result of the col- 
Hsion, and that the owners of the steamer were hable (a). 

(6) But where defendant had an ordinary water supply 
and taf> in liis house, and the tap was turned on and the 
waste pipes plugged by the mahcious act of a third person 
over w^hom defendant had no control, as no neghgence was 
shown defendant was held not liable for damage done to 
premises below from escape of the water {h). 

(7) Again, where a steam lorry was left on a highway 
unattended and a third person succeeded in setting it in 
motion by operating a complex mechanism, as it was not 
reasonable that defendant should have anticipated the 
successful interference of a third party he was held not 
guilty of negligence, and not hable for the damages resulting 
from the act of the third party (c). 

(a;) Dixon v. Bell, 1 Stark. 287 ; and see Spark v. Heslop, 28 
L. J. Q. B. 197. 

(y) Mullett V. Mason, L. R. 1 C. P. 559. 

(2) Theyer v. Purnell, [1918] 2 K. B. 333. 

(a) The City of Lincoln, 15 P. D. 15 [C. A.l ; Weld-Blundell v. 
Stephens, [1920] A. C. 956. 

(6) Richards v. Lothian, [1913] A. C. 263. 

(c) Ruoffv. Long cfc Co., [1916] 1 K. B. 148. 



Prospective Damages. 81 

The above two illustrations (6) and (7) serve to show Art. 37. 

that defendant must be liable for the tort complained of 

before the question of remoteness arises. 

Art. 38. — Prospective Damages. 

The damages awarded must include the 
probable future injury which will result to the 
plaintiff from the defendant's tore, because 
more than one action will not lie on the same 
cause of action. 

(1) So, when a young man of twenty-eight, who had Illustrations, 
been trained as a marine engineer, and intended to follow Bodily 

this profession but had not obtained a post, and was mjunes. 
working for his father at a salary of £3 a week, was injured 
in a railway accident, it was held that £3,000 damages 
were not excessive. The salary which he would have been 
probablj^ able to earn was £500 a year, and his physical 
condition prevented him from earning it. £3,000 repre- 
sented his prospective loss from this cause {d). 

(2) So, in estimating the damages in an action for Injury to 
libelhng a tradesman, the jury should take into considera- *rade. 
tion the prospective injury which wiU probably happen 

to his trade in consequence of the defamation {e). 

(3) But where the same wrongful act causes damage to Damage to 
goods, and also damage to the person, it has been held property 
that there were two distinct causes of action, for which distinct 
separate proceedings might be prosecuted (/). torts. 

(4) And if the tort be a continuing tort, the principle Continuing 
does not apply ; for in that case a fresh cause of action *°^^^' 
arises de die in diem. Thus, in a continuing trespass or 
nuisance, if the defendant does not cease to commit the 
trespass or nuisance after the first action, he may be sued 

until he does. Whether, however, there is a continuing 

id) Johnston v. Great Western Rail. Co., [1904] 2 K. B. 2.50 
IC.A.]. 

(e) Gregory v. Williams, 1 C. & K. 568. 

(/) Brunsden v. Hwinphrey, 14 Q. B. D. 141 [C. A. |. 



82 



Of Damages in Actions for Tort. 



Art. 38. 



Successive 
subsidences 
caused by 
one act of 
defendant. 



tort, or merely a continuing damage, is often a matter of 
difficulty to determine. 

(5) In the recent case of Darley Main Colliery Co. v. 
Mitchell (g) the appellants worked their mines too close 
to the respondent's property, and in consequence some 
cottages of the respondent were injured in 1868, and were 
repaired by the appellants. In 1882, in consequence 
of the same workings which caused the damage of 1868, 
a further subsidence took place, and the respondent's 
cottages were again injured. The case turned on the 
question of whether the respondent was barred by the 
Statute of Limitations, but incidentally it was decided 
that the tort was not the excavation, but the causing the 
respondent's land to subside. The excavation was no 
doubt the cause of the subsidence, but the tort itself was 
damage resulting from the infringement of the respondent's 
right of support, and consequently each separate sub- 
sidence was a distinct and separate cause of action for 
which a new action would lie. 



Illustrations. 

Seduction 
under guise 
of courtship. 



Art. 39. — Aggravation and Mitigation. 

The jury may look into all the circumstances, 
and at the conduct of both parties, and see where 
the blame is, and what ought to be the compen- 
sation according to the way the parties have 
conducted themselves (h). 

(1) In seduction, if the defendant had committed the 
offence under the guise of honourable courtship, that is 
ground for aggravating the damages ; not, however, on 
account of the breach of contract, for that is a sei^arate 
offence, and against a different person. " The jury did 
right, in a case where it was proved that the seducer had 
made his advances under the guise of matrimony, in giving 
Hberal damages ; and if the party seduced brings an 
action for breach of promise of marriage, so much the 



(!7) 11 App. Cas. 127. 

(h) Davis v. London and North Western Rail. Co., 7 W. R. 105. 



Aggravation and Mitigation. 



83 



better. If much greater damages had been given, we should Art. 39. 

not have been dissatisfied therewith, the plaintiff having 

received this insult in his own house, where he had civilly 
treated the defendant, and permitted him to pay his 
addresses to his daughter " («'). 

(2) On the other hand, the previous loose or immoral Character 
character of the party seduced is ground for mitigation. ° ^^^ . 
The using of immodest language, for instance, or sub- 
mitting herself to the defendant under circumstances of 
extreme indelicacy {j}. 



(3) In actions for defamation, a plea of truth is matter Plea of 

truth in 
defamation. 



of aggravation unless proved, and may be taken into con- t™**^ ^^ 



bad char- 
acter in 
defamation. 



si deration by the jury in estimating the damages {k). 

(4) Evidence of the plaintiff's general bad character is Plaintiff's 
allowed in mitigation of damages in cases of defamation. 
But although evidence of general reputation of bad charac- 
ter is admissible, evidence of rumours and suspicions before 

the publication of the hbel that the plaintiff had done what 
was charged in it, or of facts shomng the misconduct of the 
plaintiff, is not admissible (l). 

(5) Where a person trespassed upon the plaintiff's land, Insolent 
and defied him, and was otherwise very insolent, and the trespass. 
jury returned a verdict for £500 damages, the court refused 

to interfere, GiBBS, C.J., saying : " Suppose a gentleman 
had a paved walk before his window, and a man intrudes, 
and walks up and down before the window, and remains 
there after he has been told to go away, and looks in while 
the owner is at dinner, is the trespasser to be permitted to 
say, ' Here is a halfpenny for you, which is the full extent 
of all the mischief I have done ' ? Would that be a 
compensation ? " (m). 

(i) Per WiLMOT, C.J., in Tullidye v. Wade, 3 Wiis. 18. 

0) See Verry v. Watkins, 7 C. & P. 308. 

(k) Warwick v. Foulkes, 12 M. & W. 507. 

[l) See Scott v. Sampson, 8 Q. B. D. 491, and Wood v. Durham 
{Earl), 21 Q. B. D. 501 ; and as to giving particulars, see R. S. C, 
Order XXXVI., r. 37. 

(m) Merest v. Harvey, 5 Taunt. 442. 



84 Of Damages in Actions for Tort. 

Art. 40. Art. 40. — Insurance not to he taken into 

Account. 

In assessing damages whether for personal 
injuries or for injuries to property the jury 
ought not to take mto account any sum which 
may be paid or payable to the plaintiff under 
any policy of insurance {n). 

Note. — So where a plaintiff sued for damages for per- 
sonal injuries received in a railway accident, and the jury 
found as damages £217, and it appeared that the plaintiff 
was entitled to receive £31 on an accident pohcy, it was 
held that the sum awarded by the jury ought not to be 
reduced by the sum of £31. If it were otherwise, the 
defendant would get the benefit of the plaintiff having 
insured, and in some cases might have to pay nothing. 
Insurance is a matter between the insurer and the assured, 
and ought not to affect the habihty of the wrongdoer to pay 
in full the damages caused by his tort («). 

(n.) Bradburn v. Great Western Rail. Co., L. R. 10 Ex. 1, and see 
Yates V. Whyte, 4 Bing. N. C. 272, and in cases of death the same rule 
is applied by the Fatal Accidents Act, 1908. 



CANADIAN NOTES. SU 



CANADIAN NUTE8 TO CHAPTER \'III. OF PART 1. 

Article 34. 

Under the modern Canadian practice it is increasingly 
common to dispense with juries, and it is not usual for 
Appellate Courts to interfere with the discretion of the 
trial judge, unless he has been mistaken in his view of the 
law. 

In Canadian Pacific Bij. Co. v. Jackson (1915), 52 S. C. 
R. 281, a jury had awarded the plaintiff, an engine-driver, 
$27,000 damages for permanent disablement caused by the 
defendants' negligence; his earnings were $2,100 a year. 
The majority of the Supreme Court considered the sum to 
be larger than they personally would have awarded, but 
declined to interfere with the judgment. 

In Marl-eii v. Sloat (11)12), 11 E. L. R. 295; 6 D. L. R. 
827, the plaintiff, an illiterate labourer, was awarded by a 
jury $300 for a false imprisonment of two days' duration, 
and the verdict was sustained by the Supreme Court. The 
judgment of Barry, J., contains a careful examination of 
the principles to be observed in awarding damages in 
such cases. 

In Her v. Gass (1909), 7 E. L. R. 98, the plaintiff 
claimed damages for an assault, which consisted in the 
defendant, a constable, placing his hand upon her shoulder 
under the honest, but unwarranted, belief that she was 
drunk. The incident was immediately followed by an 
apology. Townshend, C.J., awarded her five dollars dam- 
ages without costs. 

In Dunn v. Gibson (1912), 8 D. L. R. 297, the iduintilf 
had been ravislied and made pregnant by the defendant, a 
man of imperfect mental development. The Court of 
Appeal refused to disturb a vcnlict of the jury awarding 
her $5,000 damages. 

For a ca.se in which ii m-w trial was ordered on the 
ground of inadequacv of damages, see McLcod v. JToUand 
(1913), 13 E. L. R.509; 14 D. L. R. 034. 



84b CANADIAN NOTES. 

Article 35. 

Ill Marson v. Grand Tnink Pacific Bi/. Co. (1912), 20 
W. L. K. 161 ; 1 I). L. R. 850, the company trespassed u])oii 
the phiintiff's land, with the result that he was prevented 
from extending his pig corral as he had intended, and he 
lost a number of pigs through keeping them in a confined 
space. The court refused to limit the damages to the 
lental value of the land occupied, and held that the plain- 
tiff was entitled to be conii)ensated for the use which he 
had intended to make of the ground. At the same time it 
was held that he was under a duty to minimise the damage 
by curtailing the number of his pigs. 

In the case of illegal distress the court will take into con- 
sideration, not only the value of the goods, but the injury 
to the plaintiff's business due to his being deprived of their 
use: Jarvi^ v. Hall (1912), 8 D. L. R. 412. 

In Mackenzie v. Scotia Lumber and Shipping Co. 
(1913), 47 N. S. R. 115; 12 E. L. R. 464; 11 D. L. R. 729, 
the defendants' men had inadvertently made temporary 
use of the plaintiff's raft, which was immediately returned 
upon the error being discovered. The court held that there 
had been a technical conversion, hut that the plaintiffs 
could only recover nominal damages. 

In Maniloba Free Press Co. v. Nagij (190;), 39 S. C. R. 
340, the newspaper had published an article to the effect 
that the plaintiff's house was haunted. A majority of the 
Supreme Court held that the plaintiff was entitled to 
recover damages to the extent to which the selling value 
of the house had been depreciated. 

Where the defendant had purchased and re-sold timber 
which had been wrongfully cut on the plaintiff's land the 
plaintiff' was held entitled to recover the whole sum which 
the defendant received upon the second sale, that being 
the date of the conversion, and not merely the value of the 
timber as it stood on the ground : Greer v. Faulkner 
(1908), 40 S. C. R. 339. 

Akticle 36. 

In Lamb v. Khicaid (1907), 38 S. C. R. 516, the defend 
ants had wilfully invaded the plaintiffs' mining locations 
and taken away gold which they mixed with their own. 
keeping no account of the amounts obtained from the two 



CANADIAN NOTES. 84c 

locations. It was held tliat they were liable to pay for all 
the gold which they could not positively prove to have been 
obtained from their own land, and that they were not 
entitled to deduct the expenses of working and winning the 
gold. 

Akticle 37. 

The decision in Victorian Railway Commissioners v. 
Coultas has been followed in certain Canadian cases, but it 
is now generally recognised that the decision was either 
unsound in pri]u:-i])le, or at any rate requires very care- 
ful explanation. The true rule may j)robal)ly be expressed 
by saying that no damages are recoverable for mental 
anguish or for any consequences that cannot be expressed 
in physical terms: Henderson v. Canada Ailantic Ri/, 
(1898") 25 0. A. It 437: Miner v. Canadian Pacific Ri/. 
Co. (1911), 3 Alta. L. R. 408, a case of negligent delay in 
the carriage of a corpse. But damages may be recovered for 
iiiSomnia, neurasthenia, and similar maladies, althougli 
tliere may be no physical cunsequences of a visible or 
tangible kind: Ham v. Canadimi Northern Ry. (1912), 
20 W. L. R. 359 ; 1 D. L. R. 377 (affirmed, 7 D. L. R. 812 ) ; 
Toronto Ri/. Co. v. Toms (1911), 44 S. C. R. 268. 

It rests with the plaintiff to satisfy the court that the 
injury, whatever its nature, is the actual result of the 
defendant's act, and is such as might reasonably have been 
expected to follow. Thus in Her y. Ga,ss (1909)', 7 E. L. R. 
98, where the defendant had been guilty of a merely nomi- 
nal assault, the plaintiff failed in an attempt to charge 
him with responsibility for her subsequent miscarriage. 

Article 38. 

In Montreal Street Ry. Co. v. Boudreau (1905), 36 
S. C. R. 329, a majority of the Supreme Court held that 
the o])eration of a power-house adjoining the plaintiff's 
premises constituted a continuing series of torts. The 
jtlaintifF was therefore debarred from recovering for dam- 
age arising earlier than the period of ))rescription, nor 
could he recover for future damages, since it was in the 
power of the defendants to terminate their liability l)y 
ceasing to conduct the establishment as a nuisance. 

For an exani|)I<' of the assessment of damages in case of 
j>ermanent disablement see the case of Canadian Pacific 



84d CANADIAN NOTES. 

By. Co. V. Jacl-son (1915), 52 S. C. li. 281, cited in the 
notes to Article 34. Eeference mav also be made to Lloi/d v. 
Smith Brothers and Wlkon (19i2), 21 W. L. R. 298; 4 
D. L. R. 143. 

In an action for personal injuries tlie damages must be 
assessed once for all, and the plaintiff cannot bring addi- 
tional actions for subsequently accruing damage, even 
where he has professed to reserve the right to do so: City 
of Moihireal v. Mcdee (1900) 30 S. C. R. 582. 

Article 39. 

The award of jjunitive damages was approved in O'Con- 
nor V. City of Victoria (1913), 11 D. L. R. 577, where the 
body of a child was wrongfully disinterred from a burial 
lot, and re-buried without proper reverence and without 
giving information to the parents. The payment of $40 
into court was regarded as an aggravation of the offence. 

Exemplary damages may be awarded in an assault case 
if the defendant has behaved in a brutal and insulting man- 
ner, although there mav be no phvsical injurv : McLeod 
V. Holland' (1913 ), 13 E. L. R. 509; 14 D. L. R. 634. 

Recent statutory changes in several provinces have ren- 
dered paragraph (1) of the text no longer applicable, and, 
in a case where the plaintiff seeks damages for breach of 
promise of marriage and for seduction under promise of 
marriage the jury are not bound to ap])ortion the dam- 
ages between the two causes of action: Collard v. Arm- 
strong (1913), 24 W. L. R. 742; 12 D. L. R. 368. 

In cases of trespass or conversion, if the defendant has 
acted in good faith and no actual damage has been caused, 
nominal damages only will be awarded : Mackenzie v. 
Scotia Lumber and Shipping Co. (1913), 47 X. S. R. 115; 
12 E. L. R. 464: 11 D. L. R. 729, where the plaintiff was 
given the costs of the trial and the defendant the costs of 
the appeal. 

Article 40. 

The rule as stated in the text was ai^plied in Millard 
V. Toronto By. Co. (1914), 31 Ont. L. R. 526, where it i^ 
pointed out that the rule does not apply to cases under 
Lord CampbeH's Act: Grand TrunJc By. Co. v. Jennings 
(1888), 13 App. Cas. 800. Cases arising under Article 
1056 of the Quebec Code should be distinguished: Miller 



CANADIAN NOTES. 84e 

V. Grand Trunk Uij. Co., [1906] A. C. 187; 15 Que. K. B. 
118. 

Quebec Law. 

It should be observed that under tlie Quebec Code, in 
cases where an accident is due to the common fault (faute 
commune) of both parties, the court will a])portion the 
damages between them in accordance with what it con- 
siders to be the measure of blame. But where the plain- 
tiff's negligence is the immediate and effective cause of 
the accident, he cannot claim any damages from the 
defendant. See Camidian Pacific Ry. Co. v. Frechette, 
[1915] A. C. 871 : 24 Que. K. B. 459: Torvn of Shipton 
V. Smiih (1920), 29 Que. K. B. 385. 

A somewhat similar rule governs cases of collisions at 
sea, which are now regulated by the Maritime Conventions 
Act (Imperial) of 1911. 



( 85 ) 



CHAPTER IX. 

OF INJUNCTIONS TO PREVENT THE 
CONTINUANCE OF TORTS 

An injunction is an order of a court (a) restraining the Definition, 
commission or continuance of some act {b). 

Injunctions are either interlocutory or perpetual. An interlocu- 
interlocutory injunction is a temporary injunction, granted to^y or 
summarily on motion (c) founded on an affidavit, and before ^ ^^ 
the facts in issue have been formally tried and determined. 
Such an injunction is granted to restrain the commission or 
continuance of some act until the court has decided whether 
a perpetual injunction ought to be granted. A perpetual 
injunction is one which is granted after the facts in issue 
have been tried and determined, and is given by way of 
final reUef. 



Art. 41. — Injuries Remediable by Injunction. 

(1) Wherever a legal right, whether in regard 
to property or person, exists, a violation of that 
right will be prohibited in all cases where the 
injury is such as is not susceptible of being 
adequately compensated by damages, or at 



(a) A county court has now, in actions within its jurisdiction, 
power to grant an injunction against a nuisance, and to commit to 
prison for disobedience thereof {Ex 2J(i'>'te Martin, 4 Q. B. D. 212 ; 
affirmed sub nam. Martin v. Bannister, ibid. 491 [C. A.]). 

(6) As to mandatory injunctions, and as to the general principles 
guiding the courts in granting or refusing injunctions, see Strahan 
and Kenrick's Digest of Equity, Book 111., s. 3, and Andrews v. 
Waite, [1907] 2 Ch. 510. 

(c) In the King's Bench Division applications for interlocutory 
injunctions are made by summons in chambers; Daniel v. Ferguson, 
[1891] 2 Ch. 27 [C. A.]. 



86 



Of Injunctions to Prevent Continuance. 



Art. 41. 



Damages 
instead of 
injunction. 



Interlocu- 
tory injunc- 
tions. 



To restrain 
publication 
of libel. 



least not without the necessity of a multi- 
pHcity of actions for that purpose {d). 

(2) The court has jurisdiction to give damages 
instead of granting an injunction, and will 
generally do so in cases where there are found 
in combination the four following requirements, 
viz., where the injury to the plaintiff's legal 
rights (1) is small, (2) is capable of being esti- 
mated in money, (3) can be adequately compen- 
sated by a small money payment, and (4) where 
the case is one in which it would be oppressive 
to the defendant to grant an injunction (e). 

(3) To entitle a plaintiff to an interlocutory 
injunction, the court must be satisfied that there 
is a serious question to be tried at the hearing, 
and that, on the facts before it, there is a proba- 
bility that the plaintiff is entitled to rehef (/). 
And that, unless an interlocutory injunction is 
granted, it \^dll become very difficult or impossible 
to do complete justice at a later stage {g). 

(4) An interlocutory injunction Avill be 
granted to restram the publication of a libel, 
even though such libel affects the plaintiff in 
his character only, and not in his business. 
But an injunction to restrain the pubhcation 
of a libel will only be granted in the clearest 

(d) Imperial Gas Light ds Coke Co. Directors v. Broadbent, 7 H. L. 
Cas. 600. 

(e) Per Bagg allay, L.J., in Sayers v. Collyer, 28 Ch. D. 103 
[C. A.], at p. 108 ; Serrao v. Noel, 15 Q. B. D. 549 [C. A.] ; and 
per A. L. Smith, L.J., in Shelfer v. City oj London Electric Lighting 
Co., Meux's Brewery Co. v. City of London Electric Co., [1895] 1 Ch. 
287 [C. A.], at p. 322. 

(/) Per Cotton, L.J., Preston v. Luck, 27 Ch. D. 497 [C. A.], 
at p. 506. 

{g) Mogul SS. Co. v. McGregor, Gow c& Co. (1885), 15 Q. B. D. 
470. 



Injuries Remediable by Injunction. 



87 



cases [h). And not where the Ubel, however 
unjustifiable, does not threaten immediate 
injury to the plaintiff {i). 



Art. 41. 



(1) Thus, where substantial damages would be, or have Illustrations, 
been, recovered for injury done to land, or the herbage Nuisances, 
thereon, by smoke or noxious fumes, an injunction will be 

granted to prevent the continuance of the nuisance ; for 
otherwise the plaintiff would have to bring continual 
actions (j). 

(2) And so where a railway company, for the purpose of 
constructing their works, erected a mortar mill on part of 
their land close to the plaintiff's place of business, so as to 
cause great injury and annoyance to him by the noise and 
vibration, it was held that he was entitled to an injunction 
to restrain the company from continuing the annoyance {k). 

(3) As the atmosphere cannot rightfully be infected with 
noxious smells or exhalations, so it should not be caused 
to vibrate in a way that will wound the sense of hearing. 
Xoise caused by the ringing of bells, if sufficient to annoy 
and disturb residents in the neighbourhood in their homes 
or occupations, is a nuisance, and will be restrained {I). 

(4) So, where one has gained a right to the free access Interference 
of light to his house, and buildings are erected which cause ^ "g^t. 

a substantial privation of light sufficient to render the 
occupation of the house uncomfortable, according to the 
ordinary notions of mankind, and to prevent the plaintiff' 
from carrying on his business on the premises as beneficially 

(h) Bonnard v. Ferryman, [1891] 2 Ch. 269 [C. A.] ; Monson v. 
Tussaud's, Limited, Monson v. Louis Tussaud, [1894] 1 Q. B. 671 
[C. A.]. 

[i) Salomons v. Knight, [1891] 2 Ch. 294 [C. A.]. 

(j) Tipping v. St. Heleii's Smelting Co., L. R. 1 Ch. 66 ; similarly 
in the case of a fried fish shop, Adams v. Ursell, [1915] 1 Ch. 269 ; 
Steam v. Prentice Bros., Ltd., [1919] I K. B. 394 ; Belvedere Co. v. 
Raitiham, [1920] 2 K. B. 487. 

(k) Fenwick v. East London Rail. Co., 20 Eq. 544 ; but see 
Harrison v. Southwark and Vauxhall Water Co., [1891] 2 Ch. 409, 
in which the former case was distinguislied. 

(l) Soltau V. DeHcld, 2 Sim. (n.s.) 133. Note these were not bells 
of an Established church. 



88 



Of Injunctions to Prevent Continuance. 



Art. 41. 



Impossi- 
bility of 
compliance. 



Libel. 



Slander. 



as before, an injunction will be granted in cases in which 
damages do not afford an adequate remedy (m). 

(5) An injunction will not be granted against a local 
authority who are committing a nuisance by sewage pollu- 
tion when it is legally impossible for the authority to obey 
the terms of the injunction because they have no power to 
stop up their sewers or prevent persons from using them, or 
when it is physically impossible. In such cases damages 
will be given instead {n). 

(6) It was formerl}^ held that an injunction could not be 
granted to restrain the publication of a personal hbel, even 
where it injuriously affected property (o). However, since 
the Judicature Act, 1873, the court has power to grant an 
injunction whenever it may appear to be just or convenient 
(s. 25 (8) ). For some time the court was inchned to 
restrict this power to cases where a hbel prejudicially 
affected property {p) ; but it may now be considered 
settled that the court has jurisdiction to grant injunctions 
to restrain the pubhcation of aU libels (g) ; or even oral 
slanders {r). However, the court is extremely chary of 
granting interlocutory injunctions in cases of libel. As 
Lord EsHER, M.R., said in Coulson & Sons v. Coulson & 
Co. (s): "To justify the court in granting an interim 
injunction, it must come to a decision upon the question 
of Hbel or no libel, before the jury have decided whether 
it was a libel or not. Therefore the jurisdiction was of a 
dehcate nature. It ought only to he exercised in the clearest 
cases, where any jury would say that the matter complained 
of was libellous, and where, if the jury did not so find, the 
court would set aside the verdict as unreasonable.'' 

(m) See Colls v. Home and Colonial Stores, [1904] A. C. 179 ; 
Andrews v. Waite, [1907] 2 Ch. 500. 

(n) Att.-Gen. v. Dorking Union, 20 Ch. D. 595 [C. A.] ; Earl of 
Harrington v. Derby Corporation, [1905] 1 Ch. 205. 

(o) Gee V. Pritchard, 2 Swan. 402; Clark v. Freeman, 11 Beav. 
112 ; Prudential Assurance Co. v. Knott, 10 Ch. App. 142. 

{p) Thorley's Cattle Food Co. v. Massam, 14 Ch. D. 763 [C. A.]. 

(q) See per Coleridge, L.C.J. , in Bonnard v. Perrynum, [1891] 
2 Ch. 269 [C. A.], at p. 283. 

(r) Hermann Loog v. Bean, 26 Ch. D. 306 [C. A.]. 

(s) 3 T. L. R. 846 [C. A.], followed in Collard v. Marshall, 
[1892] 1 Ch. 578. 



Continuance of a Tort. . 89 

Art. 42. — Public Convenience does not justify Art. 42. 
the continuance of a Tort. 

It is no ground for refusing an injunction 
that it will, if granted, do an injury to the 
public. But although an injunction is granted 
its operation may be suspended, where it would 
work an injury to the defendant far out- 
weighing the benefit to the plaintiff, to enable 
the defendant to provide for the new circum- 
stances (t). 

(1) Thus, in the case of Att.-Gen. v. Birmingham Borough Illustrations. 
Council {u), where the defendants had poured their sewage 

into a river, and so rendered its water unfit for drinldng and 
incapable of supporting fish, it was held that the legislature 
not having given them express powers to send their sewage 
into the river, their claim to do so, on the ground that 
the population of Birmingham would be injured if they 
were restrained from carrjdng on their operations, was 
untenable. 

(2) And where a railway company was forbidden by 
statute to run trains across a level crossing at a greater 
speed than four miles an hour, it was held that they must 
be restrained by injunction, at the suit of the Attorney- 
General, from running trains at a greater speed than four 
miles an hour, and that the court could not entertain the 
question whether the infringement of the statute caused 
any inconvenience to the pubUc (v). 

{t) StoUmeyer v. Trinidad Lake Petroleum Co., [1918] A. C. 485. 
(m) 4 K. & J. 528. But cf. Illust. (5), p. 88, supra, 
(v) Att.-Oen. v. London and North WesternRail. Co., [1900] 1 Q. B. 
78 [C. A.]. 



CANADIAN NOTES. 89a 



CANADIAN NOTES TO CHAPTER IX. OF PART I. 

Article 41. 

Ill Leahtj v. Town of North Sydney (1906), 37 S. C. R. 
464, the municipality attemjited to divert the plaintiff's 
stream for tlie purpose of a water supply without comply- 
ing with the statutory procedure for expropriation and 
compensation. It was held that the plaintiff was entitled 
to an injunction. See also Crowther v. Town of Cohourg 
(1912), 1 D. L. R. 40, where the plaintiff obtained an 
injunction to stop the defendant from fouling his stream, 
although he was suffering no immediate damage. 

For cases of injunctions to restrain the continuance of 
nuisances see Beamish v. Glenn (1916), 36 Ont. L. R. 10; 
28 D. L. R. T02; OaMey v. 1TV&& (1916), 38 Ont. L. R. 
151; 33 D. L. R. 35 (where an injunction was refused). 

Injunctions will not be granted to restrain the com- 
mission of trivial trespasses : Bertram v. Builders' Associa- 
tion of North Winnipeg (1915), 31 W. L. R. 430; 8 
\V. W. R. 814. 

Where a tenant commits a nuisance, his landlord can- 
not obtain an injunction unless he can prove injury to the 
reversion, but adjoining tenants of the same landlord can 
maintain the action: MacKenzie v. Kayler (1905), 15 
Man. L. R. 660 : 1 W. L. R. 390. 

In Quirh v. Dudley (1902), 4 Ont. L. R. 532, the defend- 
ant was conducting a mind-reading exhibition, one item in 
which clearly suggested that the plaintiff had been guilty 
of the murder of her husband, the reference being to a 
recent notorious case. The ])laintiff obtained an injunc- 
tion to stop the continuance of this performance. 

An injunction will not be granted to restrain a muni- 
cipality from passing a by-law, if another procedure for 
attacking it is provided by statute : Kcay v. City of Begina 
(1912), 5 Sask. L. R. 372; 22 W. L. R. IS5: C I). L. R. 
327. 



89b CANADIAN NOTES. 

Article 43. 

For examples of the discretionary power of the court 
to postpone the operation of an injunction see Stanford 
V. Imperial Oil Co. (1930), 56 D. L. R. 403; Beamish v. 
Glenn (1916), 36 Ont. L. R. 10; 38 D. L. R. 703. 



( 91 ) 



CHAPTER X. 

OF THE LIMITATION OF ACTIONS 
FOR TORT. 

SECTION I.— THE STATUTES OF LIMITATIONS 

Art. 43. — The Principal Periods of Limitation. 

Every action for tort must be brought within 
six years from the time when the cause of action 
is complete (a), except — • 

(a) Trespass to the person by assault or false 

imprisonment — within four years (6). 

(b) Slander by words actiorable per se — 

within two years ; otherwise, on proof of 
special damage, within six years (c). 

(c) Actions under Lord Campbell's Act — 

within one year from the death of 
the deceased {d). 

(d) Actions under the Employers' Liability 

Act — within six months, or (if injured 
person be killed) within one year of 
the death (e). 

(e) Actions for recovery of land — within 

twelve years (/). 

(f) Against persons protected by the Public 

Authorities Protection Act, 1893, within 

(«) Limitation Act, 1623 (21 Jac. 1, c. 16), s. 3. 

(b) Ibid. 

(c) Ibid. 

(d) Fatal Accidents Act, 1846 (9 & 10 Vict. c. 93). See Art. 33. 

(e) Employers' Liability Act, 1880 (43 & 44 Vict. c. 42), s. 4. See 
Art. 94. 

(/) See Arts. 134 and 135, where the rule is more fully stated. 



2 Of the Limitation of Actions for Tort. 

Art. 43. six months of the act or default 
complained of. 

(g) Actions for statutory penalties — within 
two years {g). 

(h) Actions for damage by collision at sea 
— withm two years {h). 

(i) Infringement of copyright — within three 
years (^). 

Art. 44. — Commencement of Period. 

(1) If the cause of action is the doing of a 
thing, the action must be brought within the 
prescribed period after the actual doing of the 
thing complained of. 

(2) But if the cause of action is not the doing 
of something but the damage resulting there- 
from, the period of limitation is to be computed 
from the lime ^vhen the party sustained the 
damage {j). 

(3) And where a tort has been fraudulently 
concealed by the defendant, and the plaintiff 
has had no reasonable means of discovering 
it, the statute only runs from the date of the 
discovery {Jc). 

(4) Where the cause of action is complete 
but there is no one in existence able to bring 
the action, or no defendant capable of being 
sued, time does not run until this bar is removed, 

(g) Civil Procedure Act, 1833. 

(h) Maritime Conventions Act, 1911, s. 8. 

(i) Copyright Act, 1911, s. 10. 

(j) Backhouse v. Bonomi, 9 H. L. Cas. 503 ; Darley Main Colliery 
Co. V. Mitchell, 11 App. Cas. 127. 

{k) Gibbs V. Guild, 9 Q. B. D. 59 ; Bulli Coal Mining Co. v. 
Osborne, [1899] A. C. 351 [P. C] ; Oelkers v. Ellis, [1914] 2 K. B. 
139. 



The Statutes of Limitations. 



93 



but no bar arising after the cause of action Art. 44. 
becomes available has any effect in suspending 
the operation of the statute {I). 

(5) Where at the time the cause of action 
arises the plaintiff is a Imiatic, or a minor, or 
the defendant is outside the United Kingdom, 
the period does not begin to run until this 
disability ceases [1). 

The meaning of this rule is, that where the tort is the Explanation, 
wrongful infringement of a right, the period of Umitation 
runs immediately from the date of the infringement. But, 
on the other hand, where the tort consists in the violation 
of a duty coupled with actual resulting damage, then, as 
the breach of duty is not of itself a tort, so the period of 
limitation does not commence to run until it becomes a tort 
by reason of the actual damage resulting from it. 



Concealed 
fraud. 



The doctrine of " concealed fraud " is an equitable doc- 
trine. It only applies where the tort has been fraudulently 
concealed by the person setting up the statute, or by some- 
one through whom he claims. It w^ould be inequitable to 
allow a person to take advantage of his own fraud by 
pleading the statute when that fraud had taken from the 
plaintiff the chance of bringing his action earlier (m). 

(1) Where A. owned houses built upon land contiguous illustrations. 
to land of B., C, and D. ; and E., being the owner of the Taking away 
mines under the land of all these persons, so worked them lateral 
that the lands of B. sank, and after more than six years' 
interval (the period of limitation in actions for causing 
subsidence), their sinking caused an injury to A.'s houses : 
— Held, that A.'s right of action was not barred, as the tort 
to him was the subsidence caused by the working of the 
mines, and not the working itself {n). And so, too, each 
fresh subsidence is a new cause of action for which 

(/) Rhodes v. Smethurst (1840), G M. & VV. 351. 
(to) See Thorne v. Heard, [1894] 1 Ch. 599 [C. A.]; affirmed, 
[1895] A. C. 495 ; Thomson v. Lord Glanmorris, [1900] 1 Ch. 718. 
(n) Backhouse v. Bonomi, 9 H. L. Cas. 50.3. 



support. 



94 



Of ttie Limitation of Actions for Tort. 



Art. 44. a fresh action can be brought within six j^ears of such 
subsidence (o). 



Abstracting 
coal. 



Actions for 
recovery of 
chattels. 



(2) But where a trespasser ^^Tongfully worked the 'plain- 
tiffs coal, in consequence of wliich the surface of the 
plaintiff's land subsided, it was held that the statute 
commenced to run from the working and taking away of 
the plaintiff's coal, and not from the subsidence ; on the 
ground that the working of the coal was a complete tort, 
and that the subsidence was only a consei[uence of it (/)). 

(3) A lease, belonging to the plaintitf. was fraudulently 
taken from him by his son, and deposited with B. to secure 
a loan made by B. to the plamtitif's son. The plaintiff 
was ignorant of this transaction. Subsequently B. became 
bankrupt, and his trustee in bankruptcy assigned the 
leasehold premises to the defendant. B. and the defendant 
were both ignorant of the fraud. The plaintiif then de- 
manded the lease of the defendant, and upon his refusal 
began an action for A\Tongful detention and conversion of 
the lease ; to which the defendant pleaded that the fraudu- 
lent deposit Avith B. Avas made more than six years before 
action brought, and that, consequently, the action was 
barred by the Statute of Limitations. The Court of Appeal, 
however, held that the statute onl}^ began to run when the 
plaintiif had a complete cause of action against the defen- 
dant, i.e., token he demanded the deed and was refused it, 
and not from the receipt of the deed by B. In giving 
judgment. Lord Esher, ^I.R., said : " I am of opinion 
that, in the present case, the Statute of Limitations does 
not apply ; it applies only to an action brought against 
the defendant in respect of a AATongful act done by the 
defendant himself. The property in chattels, which are the 
subject-matter of this action, is not changed by the Statute 
of Limitations, though more than six years may elapse, and 
if the rightful OAvner recoA'ers them, the other man cannot 
maintain an action against him in respect of them " (q). 

(o) Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127. 
(p) Spoor v. Green, L. R. 9 Ex. 99. 

(q) Miller v. Dell, [1891] 1 Q. B. 468 [C. A.] ; and see also Spack- 
man v. Foster. 1 1 Q. B. D. 99. 



The Statutes of Limitations. 



95 



(4) There is a great distinction between actions for the Art. 44. 

recovery of chattels and actions for the recovery of land. 

For the Statutes of Limitations do not bar the right to ^cover/of 

chattels after the prescribed period, but only bar the land. 

plaintiff's remedy against the wrongdoer ; whereas the 

Real Property Limitation Acts bar and extinguish not 

merely the remedy but also the right {r). Consequently, 

if a plaintiff has allowed another to remain in possession 

of land, without acknowledgment, for twelve years, he 

will J)e barred, although he may never have demanded 

delivery up of possession (5). A^Tiere, however, an intruder 

goes out of possession of land before acquiring a statutory 

title, the statute ceases to run, and the title of the true 

owner remains unaffected, even although he does not 

himself retake possession until after the expiration of 

the statutor}^ period {t). 



Art. 45. — Continuing Torts, 

Where the tort is continuing, or recurs, a 
fresh right of action arises on each occasion (?/). 

(1) Thus, where an action is brought against a person Illustrations. 
for false imprisonment, every continuance of the imprison- False 
ment de die in diem is a new imprisonment ; and therefore impnson- 
the period of limitation commences to run from the last, 

and not the first day of the im^^risonment {v). 

(2) But where A. enters upon the land of B. and digs Trespass. 
a ditch thereon, there is a direct invasion of B.'s rights, a 
completed trespass, and the cause of action for all injuries 
resulting therefrom commences to run at the time of the 
trespass, subject to existing disabihties. The fact that A. 

does not r«-enter B.'s land and fill up the ditch does not 
make him a continuous wrongdoer and liable to repeated 
actions as long as the ditch remains unfilled, even though 

(r) See 3 & 4 Will. 4, c. 27, s. 34, and 37 & 38 Vict. c. 57, s. 9. 
(«) See Scott v. Nixon, 3 Dru. & War. 388 ; Lethbridge v. Kirkman, 
2.5 L. J. Q. B. 89 ; and Moulton v. Edmonds, 1 De G. F. & J. 240. 
(t) Agency Co. v. Short, 13 App. Cas. 793 ; .59 L. T. 077 fP. C.]. 
(u) Whitehouse v. Fellowes, 10 C. B. (n.s.) 7(i.'). 
(v) Hardy v. Ryle, 9 B. & C. 608. 



96 Of the Limitation of Actions for Tort. 

Art. 45. there afterwards arises new and unforeseen damage from 
the existence of the ditch (iv). 

Nuisance. (3) But where the defendants (a highway authority) 

maintained and kept a ditch so as to be a nuisance, it was 
held that there was a continuing wrongful act in so keeping 
it, and that the period of Umitation did not run from the 
first making of it {x). 



Art. 46. — Disability. 

Wherever a person is under disability, the 
statute only runs from the cesser of the dis- 
ability {y). But whenever the statute once 
begins to run, it continues to do so notwith- 
standing subsequent disability (z). 

By disabihty is meant infancy, lunacy, or idiocy, 
and formerly coverture ; but since the Married Women's 
Property Act, 1882, was passed, the latter is no longer 
disability. 



SECTION II.— PUBLIC AUTHORITIES 
PROTECTION ACT, 1893. 

Art. 47. — Special limitation in favour of Public 
Officers and Authorities. 

No action lies against any person : 

(a) For any act done in pursuance or execu- 
tion, or intended execution, of any 
Act of Parliament or of any public 
duty or authority, or 

(w) Kansas Pacific Railway v. Mihlman, 17 Kansas Reports, 224. 
(x) Whitehouse v. Fellowes, 10 C. B. (n.s.) 765. 
(y) 21 Jac. 1, c. 16, s. 7 ; 3 & 4 Will. 4, c. 27, s. 16. 
(z) Rhodes v. Smethurst, 4 M. & W. 42 ; Lafond v. Ruddock, 
13 C. B. 819. 



Public Authorities Protection Act, 1893. 97 

(b) In respect of any neglect or default in the Art. 47. 
execution of any Act of Parliament, 
duty or authority, 

unless it be commenced within six months next 
after the act, neglect or default complained of, 
or in case of a continuance of injury or damage 
within six months next after the ceasing 
thereof (a). 

The period of six months runs from the act, neglect Continuance 
or default complained of : or " in case of a continuance of °^ damage. 
injury or damage," from the ceasing thereof. These words 
have been held to apply not to cases where damage infhcted 
once and for all continues unrepaired, but to cases where 
there is a new damage recurring day by day in respect of 
an act done, it may be once and for all at some prior time, 
or repeated, it may be from day to day. For instance, 
where a local authority discharges sewage day by day into 
a private lake, that is a " continuance of injury or damage " 
in respect of which an action lies, although it may have 
begun more than six months before action brought (b). 
The Act appHes to servants of the Crown, and is not 
imphedly repealed by s. 8 of the Maritime Conventions 
Act, 1911 (c). 

(I) A magistrate having convicted and fined the plaintiff Illustrations. 
for an offence under the Vaccination Acts, issued a distress 
warrant in default of payment of the fine, and a distress 
was put in on the plaintiff's premises. Subsequently the 
conviction was quashed for want of jurisdiction. The 
plaintiff has six months from the date of the wrongful entry 
on his premises within which to bring his action for the 
illegal distress. The wrongful entry, not the order of the 
magistrate by authority of which it was made, was " the 
act complained of " (d). 

(a) 50 & 57 Vict. c. 61. 

(b) Harrinqton (Earl of) v. Derby Corporation, [1905] 1 Ch. 205, 
225. 

(f) The Danube II., 1 1920J 1*. 104. 

{(i) Policy V. Fordham, [1904] 2 K. B. 345. 

H 



98 



Of the Limitation of Actions for Tort. 



Art. 47. 



Contractor 
under 
public 
authority. 



(2) A municipal corporation acquired and worked tram- 
ways under their statutory powers. An action for damages 
for injuries sustained by a passenger on one of their tram- 
cars in consequence of the neghgence of their servants 
must be begun within six months of the neghgence com- 
jDlained of (e), 

(3) But though the protection of the Act extends to 
the officers of a public body and to persons acting under 
their direct mandate, it does not extend to an indepen- 
dent contractor doing work under contract with a public 
authority for his own profit. So a contractor lajdng 
douTi tram-hnes under contract with the London County 
Council (though the county council would be protected) 
cannot claim the protection of the Act (/). And the Act 
has been held not to apply to ordinary contracts with a 
pubhc authority (g). 

(4) An action was brought against a district board 
having the control and management of a hospital, for 
neghgence of a nurse, whereby a patient lost his hfe through 
being given an overdose of opium. The action was brought 
by the widow of the patient under Lord CampbeU's Act. 
Under that Act the action must be brought within one 
year of the death. But it w^as held that the Pubhc 
Authorities Protection Act apphed, and as the action was 
not brought within six months of the neghgence complained 
of it was too late (h). 

(e) Lyles v. Southend Corporation, [1905] 2 K. B. 1 [C. A.]. 

(/) Tilli7ig V. Dick, Kerr <& Co., [1905] 1 K. B. 562; Bradford 
Corporation v. Myers, [1916] A. C. 242. 

(g) Sharpington v. Fulham Guardians, [1904] 2 Ch. 449 ; and see 
Clayton v. Pontypridd U. D. C, [1918] 1 K. B. 219 ; as to mandamus 
proceedings, see R. v. Port of Loyidon Authority, [1919] 1 K. B. 
176. 

(h) Markey v. Tolworth Joint Isolation Hospital Board, [1900] 
2 Q. B. 454 ; and see Williams v. Mersey Docks and Harbour Board, 
[1905] 1 K. B. 804 [C. A.]. 



CANADIAN NOTES. 98a 



CANADIAN NOTES TO CHAPTER X. OF PART I. 

Article 43. 

Limitation is a matter entirely dependent upon statute. 
Ill the common lav; provinces of Canada the rules are to 
a large extent the same as those stated in the text, but 
the matter is mucli com])lieated bv federal and provincial 
statutes dealing with the different branches of the law. 
These provisions cannot conveniently be summarised within 
the space available for these notes, and the student must 
ascertain the period appropriate to each cause of action by 
consulting the particular statute which governs it. 

For Quebec reference should be made to Articles 2183- 
2270 of the Civil Code and the jurisprudence arising there- 
under. 

Articles 44 and 45. 

In Chaudiere Machine and Foundry Co. v. Canada 
Atlantic By. Co. (1902), 33 S. C. R. 11, the tort consisted 
in wrongfully making an embankment and raising the level 
of the street adjoining tlie plaintiffs' land. This was done 
in 1888. The ])laintiffs acquired the land in 1895, .md 
brought action in 1900, the ])eriod of limitation being six 
years. They argued that there was a recurrent cause of 
i]ijury through melting snow and rain. The court held 
that the whole cause of action arose in 1888, and was 
therefore barred. 

The above case mav be contrasted with Town of Truro 
V. Archibald (1901), 31 S. C. R. 380, affirming 33 N. S. R. 
401, where the town had constructed an uidawful drain 
through the plaintiff's land. The plaintiff, though aware 
of the trespass, took no action for ten years, when his land 
caved in. It was held that the trespass was continuous, 
and that the action Avas not barred, except with regard to 
damage suffered more than one year — the statutory period 
— before the commencement of the action. 

In this connection see also Montreal Street Ry. Co. V. 
Boudreau (1905), 36 S. C. R. 329 (nnisance by the opera- 
tion of a power-house). 



98b CANADIAN NOTES. 

In criminal conversation cases the period of limitation 
does not begin to run so long as the adulterous intercourse 
continues: King v. Bailey (1901), 31 S. C*. R. 338. 

It should be noted that the short prescription of personal 
injuries and other causes of action under Article 2262 
of the Quebec Code absolutely extinguishes the right of 
action, and the court must therefore take judicial notice 
of the defence, even though it has not been pleaded : City 
of Montreal v. McGee (1900), 30 S. C. R. 582. 

Article 46. 

In Iloorer v. Ximn (1912), 3 D. L. R. 503, a lunatic in 
1875 made a conveyance to her mother, who entered into 
possession and died in 1887, liaving devised the lands by 
will. Upon the death of the mother the Inspector of 
Asylums entered into possession on behalf of the lunatic, 
who died in 1908. The present action was brought by hor 
axlministrator to set aside the conveyance. Faloonbridge, 
C.J., held that the Statute of Limitations did not run 
against the lunatic during her mother's lifetime, and that 
she resumed possession through the action of the Inspector 
in 1887. The deed was set aside. 

Article 47. 

Statutes for the protection of public authorities by the 
introduction of short periods of limitation have been passed 
by all the provinces, and similar provisions have been 
enacted in the Exchequer Court Act, the Railway Act, 
and other Dominion statutes. 

Questions of difficulty sometimes arise in determining 
which of two periods of limitation is applicable to a 
particular case. In Small v. Cily of- Calgary (1914), 6 W. 
W. R. 1192, the municipal charter t)rovided for actions 
based on any " negligence or default of the city " should be 
brought within six months : it was held that this restriction 
did not apply to an action under Lord Campbell's Act, 
which allows twelve months. See also B. C. Electric Ry. 
Co. V. Turner (1914), 49 S. C. R. 470; 18 D. L. R. 430. 



PART II. 
RULES RELATING TO PARTICULAR TORTS. 



( 101 ) 



CHAPTER I. 
OF DEFAMATION. 

Art. 48. — Definitions. 

(1) Defamation is the publication concerning 
a person of a statement in words, writing, by 
pictures or significant gestures, which exposes 
such person to feehngs of hatred, ridicule, or 
contempt, whereby he suffers injury to his 
reputation (not to his self-esteem). 

(2) A libel for which an action will lie is a 
statement in writing (or in print, or in the form 
of a picture or caricature), published without 
lawful justification or excuse, calculated to 
convey to those to whom it is published an 
imputation on the plaintiff injurious to him in 
his trade or holding him up to hatred, contempt, 
or ridicule {a). 

(3) Slander is an oral statement, published 
without lawful justification or excuse, calcu- 
lated to convey to those to whom it is pub- 
lished an imputation on the plaintiff injurious 
to him in his trade or holding him up to hatred, 
contempt, or ridicule. 

No action will lie for slander unless either 
(a) the plaintiff prove special damage, or (b) the 
slander is calculated to convey an imputation 
of one of the kinds enumerated in Art. 50. 

(a) Per Lord Blackburn, Capital and Counties Bunk v. Henty, 
in 7 App. Gas. 741, at p. 771. 



102 



Of Defamation. 



Art. 48. 

Analysis 
of libel. 



Analysis of 
slander. 



Defence. 



Justifica- 
tion. 

Truth. 



Privilege. 



The three elements necessary to constitute actionable 
libel are — 

(1) that the words, etc., complained of are defamatory ; 

(2) that they refer to the plaintiff ; 

(3) that they were pubUshed by the defendant. 

If the plaintiff estabHshes these three points, he makes 
out a prima facie case. 

If the action is for slander, he must also prove special 
damage, unless the slander falls within Art. 50, para. 2, 
i7ifra (b). 

By proving these points, however, the plaintiff only 
estabHshes a prima facie case, and in answer to it the 
defendant is entitled to prove that the publication was 
justified. He may always justify by showing that the 
statement complained of was substantially true. For the 
law will not allow a man to recover damages in respect of 
an injury to a character which he either does not or ought 
not to possess (c). The defendant may also prove that 
the pubhcation was privileged, that is, that the occasion 
of pubhcation was such that he was justified in pubhshing 
the words whether true or not. For other defences see 
Arts. 56 and 57. 



Art. 49. — What is Defamatory. 

(!) Defamatory words or pictures or effigies 
are such as impute conduct or qualities tending 
to disparage or degrade the plaintiff {d), or to 
expose him to contempt, ridicule, or public 
hatred; or to prejudice him in the way of his 
office, profession, or trade (e). 

Provided that words published of a corpora- 
tion are not actionable without proof of special 

(b) Jones V. Jones, [1916] 2 A. C. See judgment of Loid Sumner 
at p. 500. 

(c) M'Pherson v. Daniels (1829), 10 B. & C. 272 ; Wakley v. 
Cooke (1849), 4 Ex. 511. 

(d) Digby v. Thompson, 4 B. & Ad.* 821. 

ie) Miller v. David (1874), L. R. 9 C. P. 118. 



What is Defamatory. 103 

damage if they refer only to personal character Art 49. 
or reputation ; but words calculated to affect a 
corporation in its property or business may be 
actionable without proof of special damage (/). 

(2) It is for the court to say whether the 
words complained of are capable of bearing a 
defamatory meaning, and for the jury to say 
whether they in fact bear that meaning {g). 

(3) The words used must (if nothing is alleged 
to give them an extended sense) be construed in 
the sense in which they would be understood by 
ordinary persons. If they are not capable of a 
defamatory meaning in that sense they may 
nevertheless be actionable if it is proved that 
they would be understood by the persons to 
whom they were published (g). 

(4) It is immaterial whether or not the defen- 
dant meant the words to be defamatory. The 
question is whether the words he used were 
calculated to convey a disparaging imputa- 
tion {h). 

Note. — Words which are not defamatory in their Innuendo, 
ordinary sense may, nevertheless, convey a defamatory 
meaning owing to the circumstances in which they are 
spoken. If I say of a man "he is no better than his 
father," these words are not in their ordinary sense capable 
of a defamatory meaning. But if the father is known 
by the persons to whom the words are used to have been 
a scoundrel, the words used would convey to them the 
meaning that the son also is a scoundrel. The words then 
would be defamatory in the sense in which they were under- 
stood by the persons to whom they were addressed. 

(/) South Hetton Goal Co. v. North Eastern N&ws Association, 
[1894] 1 Q. B. 133; Manchester Corporation v. Williams, [1891] 
1 Q. B. 94. 

(g) Capital and Counties Bank v. Henty, 7 App. Cas. 741. 

{h) Per Lord Blackburn in Capital and Counties Bank v. Henty. 
7 App. Cas. 741, at p. 772 ; per Lord Loreburn in E. Hulton (k Co. v. 
./ones, [1910] A. C. 20, at p. 23. 



104 



Of Defamation. 



Art. 49. 



Innuendo. 



Illustrations 
of words 
defamatory 
in their 
ordinary 
sense. 



As Lord Blackburn says: "There are no words so 
plain that they may not be j^u Wished with reference to 
such circumstances, and to such persons knowing these 
circumstances, as to convey a meaning very different 
from that which would be understood from the same 
words used under different circumstances " {{). 

Accordingly, to make out a case when words not defama- 
tory in their ordinary sense have been used, the plaintiff 
must allege and prove an innuendo, i.e., he must allege 
and prove what the words meant to the persons to whom 
they were used. So in the illustration we have taken, he 
would allege that the words used meant " that the plaintiff 
was a scoundrel." He will prove this meaning by showing 
by evidence that the father was a scoundrel, and that the 
person using the words and the person to whom they were 
addressed knew that the father was a scoundrel. 

Hence the rule that whenever the words are not defama- 
tory in their ordinary sense, the plaintiff must allege in his 
statement of claim an innuendo, and must prove the facts 
necessary to satisfy the jury that the meaning alleged in the 
innuendo was the meaning of the words. But when words 
are defamatory in their ordinary sense, no innuendo is 
necessary. It is for the court to say whether, taking into 
account the manner and occasion of the pubUcation and 
all the circumstances, the words are capable of bearing 
the meaning alleged in the innuendo {j), and for the jury 
to say whether in fact they bore that meaning. 

(1) Thus, describing another as an infernal villain is a 
disparaging statement sufficient to sustain an action {k) ; 
and so is an imputation of insanity {I) ; or insolvency, or 
impecuniousness (m) ; or even of past impccuniousness (n) ; 

(i) Capital and Counties Bank v. Henty, 7 App. Cas. 741, 771. 

(j) Stubbs Limited v. Russell, [1913] A. C. 380 ; Stubbs Limited v. 
Mazure, [1920] A. C. 66. 

(k) Bell V. Stone, 1 Bos. & P. 331. 

(l) Morgan v. Lingen, 8 L. T. 800. 

(m) Metropolitan Saloon Omnibus Co. v. Hawkins, 28 L. J. Ex. 
201 ; Eaton v. Johns, 1 Dowl. (n.s.) G02. 

in) Cox V. Lee, L. R. 4 Ex. 284. 



What is Defamatory. 105 

or of gross misconduct (o) ; or of turf-trickery {p) ; or of Art. 49. 
ingratitude {q). Also the publication in a newspaper of a — 
story of no literary merit as being that of a well-knowTi 
author has been held hbellous (r). 

(2) So, reflections on the professional and commercial 
conduct of another are defamatory ; as, for instance, to 
say of a physician that he is a quack. So, also, caUing a 
newspaper proprietor " a hbellous journahst " is defama- 
tory (5) , although it would appear that applying the word 
" Ananias " to a newspaper does not necessarily impute 
wilful and dehberate falsehood to its manager and pro- 
prietor (t). 

(3) Inserting the plaintiffs' names under the head of Words 

" first meetings under the Bankruptcy Act " is hbellous, defamatory 

the innuendo being that the plamtiiis had become bankrupt, 

or taken proceedings in liquidation {u). And the insertion 

of the plaintiff's name in a list of persons against whom 

decrees in absence had been obtained in the Small Debts 

Court is hbellous, the innuendo being the plaintiff's refusal 

or delay to' pay his debts (v) . 

(4) When a firm of brewers sent out to their customers Words not 
a circular in the following terms : " jMessrs. Henty & Sons defamatory 
hereby give notice that they will not receive in payment ordinary 
cheques drawn on any of the branches of the Capital and sense. 
Counties Bank," it was held that (1) the words were not 
hbellous in their natural meaning, and (2) there were no 

facts proved which made them capable of bearing the 
meaning alleged in the innuendo to the effect that the 
plaintiffs were insolvent. Accordingly, the circular was 

(o) Clement v. Chivis, 9 B. & C. 172. 

{p) Greville v. Chapmmi, 5 Q. B. 731, at p. 744. 

{q) Cox V. Lee, L. R. 4 Ex. 284. 

(r) Ridge v. The English Illustrated Magazine, Limited (191 E), 
29 T. L. R. 592. 

(s) Wakley v. Coolce, 4 Ex. 511. 

(t) Australian Newspaper Co. v. Bennett, [1894] A. C. 284. 

{u) Shepheard v. Whitaker, L. R. 10 C. P. 502. 

(v) Stubhs Limited V . Mazwre, [1920] A. C. 66, and compare Ihis 
Yfith. Stubba Lirnited v. Russell, ^1913] A, C. 386, 



06 Of Defamation. 

Art. 49. not actionable although its effect had been to cause a run 
on the bank and loss to the plaintiffs (w). 

(5) And in a later case it was held that a circular sent 
out by an insurance company for which the plaintiff had 
acted as agent, to the effect that the agency of the plaintiff 
had " been closed by the directors," was incapable of 
meaning that the plaintiff had been dismissed for some 
reason discreditable to him (as alleged in the innuendo), 
although some persons might choose to draw this inference, 
not from the language used, but from the fact referred 
to [x). 

arpora- (6) It is actionable without special damage to say of a 

°"^" colliery company that the cottages let by the proprietors 

to their workmen are in an insanitary condition, for such 
an imputation is likely to injure its reputation in the way 
of its business {y). But inasmuch as a corporation, as 
distinguished from the individuals composing it, cannot be 
guilty of corrupt practices, it is not libellous without proof 
of special damage to charge a municipal corjjoration with 
corrupt practices (z). 

f^igy- (7) The exhibition of the waxen effigy of a person who 

has been tried for murder and acquitted, in company with 
the effigies of notorious criminals, may be defamatory (a). 



Art. 50.- — When Special Daynage essential to 
Action for Slander. 

(1) Except in the following cases spoken 
words are not actionable without proof of 
special damage, and the damage complained 
of must be such as might fairly and reasonably 

(w) Capital and Counties Bank v. Henty, 7 App. Cas. 741. 

(x) Nevill V. Fine Art and General Insurance Co., [1897] A. C. 
68. 

{y) South Hetton Coal Co., Limited v. North Eastern News Associa- 
tion, [1894] 1 Q. B. 133 [C. A.]. 

(z) Manchester Corporation V. Williams, [1891] 1 Q. B. 94. 

(a) Monson v. Tussaud's, Limited, Monson v. Louis Tussaud, 
[1894] 1 Q. B. 672 [C. A.]. 



Damage Essential to Action for Slander. 107 

have been anticipated from the slander (6), i.e., Art. 50. 
not be too remote (c). 

(2) No proof of special damage need be given 
in the case of words imputing : 

(a) A criminal offence punishable by im- 

prisonment {d) ; 

(b) Some disease tending to exclude the party 

defamed from society (e). 

(c) Unchastity in a female (/) ; 

(d) Unfitness of the plaintiff for his profes- 

sion or trade, or office of profit {g) ; 

(e) Dishonesty or malversation in a public 

office of trust (h) ; or 

(f ) Misconduct in an office of credit or honour 

such as would be ground for his 
removal from office (^). 

(1) The special damage to support an action for slander Damage 
must be the natural and probable consequence of the defen- ™"^* ^^ 
dant's words {j), but need not be their legal consequence, but not 
i.e., the consequence must be such as, taking human nature necessarily 
as it is, with its infirmities, and having regard to the ^^^al, con- 
relationship of the parties concerned, might fairly and of slander. 
reasonably have been anticipated and feared would follow 

(6) Lynch V. Knight, 9 H. L. Cas. 577; Jones v. Jones, [1916] 
2 A. C. 481. 

(c) Speake v. Hughes, [1904] 1 K. B. 138 ; Batdiffe v. Evans, 
[1892] 2 Q. B. 524. 

(d) Webb V. Beavan. 11 Q. B. D. «09 ; Hellwig v. Mitchell, [1910] 
1 K. B. (509. 

(e) Bloodworth v. Gray, 7 Man. & Gr. 334. 
(/) Slander of Women Act, 1891. 

(g) Foulger v. Newccmb, L. R. 2 Ex. 327 ; Miller v. David (1874), 
L. R. 9C. P. 118. 

(h) Booth V. Arnold, [1895] 1 Q. B. 571 [C. A.] ; cf. Alexander v. 
Jenkins, [1892] 1 Q. B. 797. 

(i) Onslow V. Home, 2 W. Bl. 750. 

(;■) Lynch v. Knight, 9 H. L. Cas. 577 ; Chamberlain v. Boyd, 
11 Q. B. D. 407 [C. A.]. 



108 



Of Defamation. 



Art. 50. 



The special 

damage 

must be 

some 

temporal 

loss. 



Damage 
caused by 
plaintiff 
himself. 



Imputation 

of 

unchastity. 



from the speaking of the words, not what ought to follow {k). 
Special damage resulting from the repetition of an original 
slander is too remote [1) unless the original slander is uttered 
to many persons and the subsequent loss may reasonably 
be attributed to this {m). But special damage caused by- 
repetition of a slander is not too remote (1) when the 
original slander is made to a person who has a legal or 
moral duty to repeat it ; (2) when the person repeating 
the slander is authorised or intended to do so (w). 

(2) The special damage must be actual temporal loss (o), 
i.e., loss of something pecuniary or capable of being esti- 
mated in money {p) , mere risk of loss is not enough (q) . 
Thus actual loss of trade or employment is enough (r), as 
also is actual loss of gratuitous hosjjitality (.s) , for a dinner 
has some pecuniary value ; but loss of friends or society, 
pain, illness, and suffering, are not enough {t). But 
apparently, if special damage of pecuniary value be shown 
and the action is therefore maintamable, the damages 
awarded need not be limited to such special damage but 
may compensate also for loss to reputation generally {u). 

(3) If the damage be immediately caused by the plaintiff 
himself, he cannot sue. For instance, where the plaintiff (a 
young woman) told the slander to her betrothed, who con- 
sequently refused to marry her, it was held that no action 
would lie against the slanderer (v). 

(4) Formerly, words imputing unchastity to a woman 
were not actionable without proof of special damage except 

(A;) Lynch v. Knight, 9 H. L. Cas. 577. 

(I) Ward V. Weeks (1830), 7 Bing. 211. 

(m) Ratcliffe v. Evans, [1892] 2 Q. B. 524. 

(n) Derry v. Hundley ■{1861), 16 L. T. (n.s.) 263. 

(o) Per BowEN, L.J., in Ratcliffe v. Evans, [1892] 2 Q. B. 524 
[C. A.], at p. 532. 

{p) Chamberlain v. Boyd, 11 Q. B. D. 407. 

(q) Ibid., per Bowen, L.J., at p. 416. 

(r) Evans v. Harries, 1 H. & N. 251. 

(s) Davies v. Solomon, L. R. 7 Q. B. 112. 

(<) Moore v. Meagher, 1 Taunt. 39 [Ex. Ch.] ; Roberts v. Roberts, 
5 B. & S. 384 ; Allsop v. Allsop, 5 H. & N. 534. 

{u) Dixon V. Smith (1860), 5. H. & N. 453.- 

[v) Speight v. Gosnay, 60 L. J. Q. B. 231 [C. A.]. 



Damage Essential to Action for Slander. 109 

in the City of London. But by the Slander of Women Act, Art. 50. 

1891 {w), this scandalous state of the law has been altered, 

and it is enacted that words spoken and published which 
impute unchastity or adultery to any woman or girl shall 
not require special damage to render them actionable : pro- 
vided that the plaintiff shall not recover more costs than 
damages, unless the judge certifies that there was reasonable 
cause for bringing the action. 

(5) The words, " You are a rogue, and I will prove you Examples ol 
a rogue, for you forged my name," are actionable per se {x). damage 
And it is immaterial that the charge was made at a time f™^ 
when it could not cause any criminal proceedings to be imputation 
instituted. Thus the words "" You are guUty " [innuendo °^ crime. 

" of the murder of D."] are a sufficient charge of murder to 
support an action without proof of special damage (y). 
But if words charging a crime are accompanied by an 
express allusion to a transaction which merely amounts to 
a civil injury, as breach of trust or contract, they are not 
actionable (2). Nor are words imputing an impossible 
crime, as " Thou hast killed my wife," who, to the know- 
ledge of all parties, was alive at the time (a). 

(6) The allegation, too, must be a direct charge of a 
crime piuiishable by imprisonment. The crime need not be 
indictable (6), but a charge of having committed a crime 
punishable by fine only, although it involves a liability to 
summary arrest, is insufficient, without proof of special 
damage (c). Thus, saying of another that he had forsworn 
himself is not actionable per se, without showing that the 
words had reference to some judicial inquiry {d). But an 
imputation that the plaintiif had brought a blackmailing 
action is actionable without proof of special damage, for by 

(w) 54 & 55 Vict. c. 51. 

(x) Jones V. Herne, 2 Wils. 87. 

(2/) Oldham v. Peake, W. Bl. 959. 

(2) Per Lord Ellknborough in Thompson v. Bernard, 1 Camp. 
48 ; and per Lord Kenyon, Christie v. Cowell, Peake, 4. 

(a) Snag v. Gee, 4 Co. Rep. 10 ; Heming v. Power, 10 M. & W 
564, 569. 

(6) Webb V. Beavan, 11 Q. B. D. 609. 

(c) Hellwig v. Mitchell, [1910J 1 K. B. 609. 

(d) Holt V. Sckolefield, 6 Term Rep, 691. 



110 



Of Defamation. 



Art. 50. 



Imputation 
of unfitness 
for society. 



Imputatioia 
of vmfitness 
for business 
or office of 
profit. 



inference it imputed to the plaintiff that he was guilty of 
an indictable offence (e). 

(7) So words imputing mere suspicion of a crime are not 
actionable without proof of special damage (/) . 

(8) Again, to allege the present possession of an infectious, 
or even a venereal, disease is actionable, but a charge of 
past infection is not ; for it shows no present unfitness for 
society ((/). 

(9) It is quite clear that, as regards a man's business, 
or profession, or office, if it he an office of profit, the mere 
imputation of want of ability to discharge the duties of that 
office is sufficient to support an action. It is not necessary 
that there should be imputation of immoral or disgraceful 
conduct ; the probabiHty of pecuniary loss from such im- 
putation obviates the necessity of proving special damage. 
But the mere disparagement of a tradesman's goods is not 
sufficient. The disparagement must be of his unfitness for 
business (h), or some allegation which must necessarily 
injure his business (i). Thus, words imputing drunkenness 
to a master mariner whilst in command of a ship at sea 
are actionable per se [j). And similarly where a clergyman 
IS beneficed or holds some ecclesiastical office, a charge of 
incontinence is actionable ; but it is not so if he holds no 
ecclesiastical office {k). 

(10) So to say of a surgeon "he is a bad character ; 
none of the men here will meet him," is actionable [l). 
Or of an attorney that " he deserves to be struck off the 
roll " (m). But without special damage it is not actionable 
to impute to a solicitor insolvency (?i), or to say " he has 

(e) Marks v. Samuel, [1904] 2 K. B. 287 [C. A.]. 

(/) Simmons v. Mitchell, 6 App. Cas. 156 [P. C.]. 

(gr) See Carslake v. Mappledoram, 2 Term Rep. 473 ; Blooduorth v. 
Gray, 7 Man. & Gr. 334. 

{h) See White v. Mellin, [1895] A. C. 154. 

(i) See Royal Baking Powder Co. v. Wright, Crossley d? Co., 15 
R. P. C. 677. 

(j) Irwin V. Brandwood, 2 H. & C. 960. 

(k) Gallwey v. Marshall, 23 L. J. Ex. 78. 

(I) Southee v. Denny, 1 Ex. 196. 

(m) Phillips V. Jansen, 2 Esp. 624. 

(n) Dauncey v. Holloway, [1901] 2 K. B. 441 [C. A.]. 



Damage Essential to Action for Slander. Ill 

defrauded his creditors, and been horsewhipped off the Art. 50. 
course at Doncaster," because this has no reference to his ^— 
profession (o). But this seems a curious refinement. A 
similarly absurd distinction has been taken between saying 
of a barrister " He hath as much law as a jackanapes " 
{w^hich is actionable per se) and " He hath no more wit than 
a jackanapes " (which is not actionable) . The point being 
that law is, but wit is not, essential in the profession of a 
barrister (p). 

(11) With regard to slander upon persons holding mere Unfitness 
offices of honour, the loss of which would not necessarily for offices 
involve a pecuniary loss, the mere imputation of want of ^nd credit 
ability or capacity is not enough. The imputation to be 
actionable per se must be one which, if true, would show 
that the plaintiff ought to be and could be deprived of his 
oflace by reason of the incapacity imputed to him. The 
implied damage is the risk of loss of the office which he 
holds. Thus, an imputation of drunkenness against a to^vn 
councillor is not actionable Avithout proof of special damage. 
For such conduct, however objectionable, is not such as 
would enable him to be removed from or deprived of that 
office, nor is it a charge of malversation in his office (g). 
But a charge of dishonesty in his office, against one who 
holds a public office of trust, such as that of an alderman 
of a borough, is actionable without special damage, even 
although there be no power to remove him (r). 



Art. 51. — The Libel or Slander must refer to 
the Plaintijf. 

The plaintiff must prove that the words 
complained of might reasonably be understood 
by the persons to whom they are published to 
refer to him, and that they were understood 
to refer to him. 

(o) Doyley v. Roberts (1837), 3 Bing. N. C. 835. 

(p) fieeper Pollock arguendo, Ayre v. Craven, 2 A. & E. 2, at p. 4. 

(q) Alexander \. Jenkins, [1892] 1 Q. B. 797 [C. A.]. 

(r) Booth V. Arnold, [1895] 1 Q. B. 571 [C. A.]. 



112 



Of Defamation. 



Art. 51. It is no defence that the defendant did not 
intend to refer to the plaintiff (s). 

Comment. i It is not necessary that the plaintiff should be referred to 
by name. A person may be libelled under a fictitious name 
or by mere description. But there must be enough to show 
ordinary readers that the plaintiff is the person about whom 
the defamatory words are used. So " if a man wrote that 
all lawyers were thieves, no particular lawyer could sue 
him unless there is something to point to the particular 
individual " (t). 

On the other hand, when the words used are such as to 
indicate a particular person, he can sue even though the 
defendant did not know of his existence and did not intend 
to defame him {s). 

lUiistrations. (1) So where an article in a newspaper described certain 
sales of forged antiques as an attempt at deception and 
extortion, but did not refer to any particular dealer by name 
or description, it was held that no dealer could sue for libel, 
as the libel attacked not an individual but a class {u). 
But if the class be limited in number, then each member 
may be libelled {v). 

(2) A newspaper published an article describing a motor 
festival at Dieppe. The article contained the words : 
" Whist ! there is Artemus Jones with a woman who is 
not his wife, who must be, you know, the other thing," etc. , 
and went on to say that Artemus Jones was a church- 
warden when at home, but that when on the French side 
of the Channel " he is the life and soul of a gay little band 
that haunts the Casino and turns night into day, besides 
betraying a most unholy delight in the society of female 
butterflies." Neither the writer nor the editor of the paper 
intended to refer to the plaintiff, a well-loiown barrister 
named Artemus Jones. The sketch was a mere fancy 
sketch of life abroad, and the name " Artemus Jones " was 
used as a fancy name, describing an imaginary character. 

(s) E. Hulton cfc Co. v. Jones, [1910] A. C. 20. 

{t) Per WiLLES, J., in Eastwood v. Holmes, 1 F. & F. 349. 

(u) Eastwood v. Holmes, supra. 

(v) Harrison v. Thornborough, 10 Mod. 196. 



Libel or Slander must Refer to Plaintiff. 113 

It was proved, however, that readers of the paper thought ^^^* ^■^• 

the article referred to Mr. Jones. The judge directed the 

jury that if persons reading the article might reasonably 

think it related to the plaintiff, they might find a verdict 

for him. The jury found for the plaintiff, and the House 

of Lords held that he was entitled to judgment (w). 



Art. 52. — Publication. 

The malving known of a libel or slander to 
any person other than the object of it, is publica- 
tion in its legal sense, and repetition of defama- 
tory matter is a new publication and ^ distinct 
cause of action (x). 

(1) " Though, in common parlance, that word [pubhca- Publication 
tion] may be confined to making the contents kno^\'n to the explained, 
public, yet its meaning is not so limited in law. The making 

of it knoTVTi to an individual is indisputably, in law, a 
publishing " (y). Publication, therefore, being a question 
of law, it is for the jury to find whether the facts by which 
it is endeavoured to prove publication are true ; but for 
the court to decide whether those facts constitute a 
publication in point of law (z). 

(2) If the libel be contained in a telegram, or be written Telegrams 
on a post-card, that is publication, even though they be and post- 
addressed to the party libelled ; because the telegram must 

be read by the transmitting and receiving officials, and the 
post-card will in all probability be read by some person in 
the course of transmission {a), unless the -statement on the 
post-card is of such a nature that it would not be understood 
as defamatory by persons reading it casually (h). But 

(w) E. Hulton <b Co. v. Jones, [1910] A. C. 20. 
(x) Duke oj Brunswick v. Harmer (1849), 14 Q. B. 185. 
(y) R. V. Burdett, 4 B. & Aid. 143. 

(z) Street v. Licensed Victuallers'' Society, 22 W. R. 553 ; Hart v. 
Wall, 2 C. P. D. 146. 
(o) Williamson v. Freer, L. R. 9 C. P. 393. 
(b) Sadfjrove v. Hole, [1901] 2 K. 15. 1. 



114 



Art. 52. 



Dictating 
libel. 



Husband 
and wife. 



Of Defamation. 

where a letter is sent through the post in an unenclosed 
envelope there is no such presumption of publication (c). 

(3) So, dictating a libellous letter to a typist, and 
giving it to an office boy to make a press copy, is publica- 
tion. But if the occasion is privileged the whole course of 
office routine is privileged {d), and the privilege, so long as 
reasonably used, covers communication to the servants 
of the recipient (e). But malice will always defeat this 
privilege (/). 

(4) The commmiication of a libel by the writer to his own 
wife is not " publication," because, in the eye of the law, 
husband and wife are one person (g) . 

But communication to the wife of the person defamed is 
" publication." Obviously, a man may suffer grievously if 
imputations on his character are made to his wife {h). 



Art. 53.— Repeating Libel or Slander. 

(1) An action will lie for slander or libel against 
a defendant who is merely a repeater, printer, 
or publisher of it, unless the defendant can 
show : (i) That he did not know that he 
was publishing a libel or slander, (ii) That 
his ignorance was not due to any negligence on 
his part, (iii) That in the case of libels he did 
not know, and had no grounds for thinking, 
the document was likely to contain libellous 
matter (i). 

(c) Huth V. Huth, [1915] 3 K. B. 32. 

(d) Pullman v. Hill db Co., [1891] 1 Q. B. 524 ; Boxsius v. Qohlet 
Freres, [1894] 1 Q. B. 842. 

(e) Roff V. British c& French, etc. Co., [1918] 2 K. B. 677 ; Edmond- 
son V. Birch, [1907] 1 K. B. 371, joost, p. 127. 

(/) Smith V. Streatfield, [1913] 3 K. B. 7G4. 

{g) Wennhak v. Morgan, 20 Q. B. D. 635. 

(h) Wenman v. Ash, 13 C. B. 836. 

(i) Emmens v. Pottle, 16 Q. B. D. 354 ; Vizetelly v. Mudie's 
Select Library, [1900] 2 Q. B. 170 ; Weldon v. Times Book Co. (1912), 
28 T, L. R. 143. 



Repeating Libel or Slander. 115 

(2) But in slander, if the special damage Art. 53. 
arise simply from the repetition, the originator "~~ 
will not be liable (j) ; except (a) where the 
originator has authorised the repetition [k) ; 
or (b) where the words are originally spoken to 
a person who is under a moral obligation to 
communicate them to a third person (l). 

(1) But where A. slandered B. in C.'s hearing, and C, Example, 
without authority, repeated the slander to D., per quod D. 
refused to trust B., it was held that no action lay against 

A., the original utterer, as the damage was the result 
of C.'s unauthorised repetition and not of the original 
statement (m). But if a defamatory letter meant for X. 
is opened and read by Y., the writer of such letter is not 
liable if in the circumstances he had no reason to expect 
Y. would so act, as he has made no jDubHcation of his 
letter to Y. {n). 

(2) So the imnting and pubhshing by a third party of Printing 
oral slander (not per se actionable) renders the person who slander. 
prints, or writes and pubhshes the slander, and all aiding 

or assisting liim, liable to an action for Ubel, although the 
originator, who merely spoke the slander, will not be 
liable (o). 

(3) In Derry v. Handley {I), Cockburn, C.J., observed: Duty to 
" Where an actual duty is cast upon the person to whom ''®P®^ • 
the slander is uttered to communicate what he had heard 

to some third person (as when a communication is made 
to a husband, such as, if true, would render the person the 
subject of it unfit to associate with his wife and daughters), 
the slanderer cannot excuse himself by sajdng, ' True, I 
told the husband, but I never intended that he should 
carry the matter to his wdfe.' In such case the com- 
munication is privileged, and an exception to the rule to 

(j) Parkins v. Scott, 1 H. & C. 153. 
(k) Kcndillon v. Maltby, Car. & M. 402. 
(/) Derry v. Handley, IG L. T. (n.s.) 263. 
(m) Ward v. Weeks, 4 Moo. & P. 808. 
(n) Powell V. Gelston, [191G] 2 K. B. 615. 
(o) McGregor v. Thwaites, 3 B. & C. 24. 



116 



Of Defamation. 



Art. 53. 



Publisher 
of libel. 



Libels in 
newspapers. 



Innocent 
dissemi- 
nators. 



which I have referred ; and the originator of the slander, 
and not the bearer of it, is responsible for the consequences." 

(4) Upon this principle the pubHsher, as well as the 
author of a libel, is liable ; and the former cannot exonerate 
himself by naming the latter. For " of what use is it to 
send the name of the author M'ith a libel that is to pass into 
a part of the country where he is entirely unlaio\Mi ? The 
name of the author of a statement will not inform those who 
do not know his character whether he is a person entitled 
to credit for veracity or not " (p). 

(5) When a libel is published in a newspaper the original 
comjDoser is Hable, for not only does he pubHsh it to the 
editor and compositors, but he is a participator in the 
publication to the pubHc. The proprietor who pubhshes 
the newspaper by his servants is Hable for the acts of his 
servants. The printer of the paper prints it by his servants, 
and therefore he is Hable for a libel contained in it. The 
editor also is usuaUy responsible for the pubHcation {q). 
And of course the same principle appHes to libels in 
magazines and books. 

(6) A more difficult question arises with regard to the 
dissemination of newspapers and books by newsvendors, 
bookseUers, and lending Hbraries. Prima facie aU these 
persons take part in publishing Hbels contained in the 
papers or books they seU. But a person who merely 
disseminates a newspaper or book which contains a Hbel 
is excused if he can show the facts set out in Art. 53 (1). 



Art. 54. — Justification. 

That the statements complained of as de- 
famatory are true in fact is an absolute defence 
in an action of defamation. 

(1) The defence must set out particulars of the facts 
rehed on, and at the trial must prove the whole of the 

(p) Per Best, J., De Crespigny v. Wellesley, 5 Bing. 403. 

(q) Per Lord Eshee in Emmens v. Pottle, IG Q. B. D. 354, 357. 



Justification. 117 

libel is substantially true (r). Facts occurring after publi- Art. 54. 
cation may be admissible in support of justification [s). — ~- 

(2) LiTTLEDALE, J., thus explains the principle of the Explanation 
defence of iustification : " If the defendant rehes upon the of Justifi- 
truth as an answer to the action, he must plead that matter 
specially ; not because it negatives the charge of mahce (for 
a person may wrongfully or mahciously utter slanderous 
matter though true, and thereby subject liimself to an 
indictment), but because it shows that the plaintiff is not 
entitled to recover damages. For the law will not permit 
a man to recover damages in respect of an injury to a 
character which he either does not, or ought not to, 
possess " {t). 



Art. 55. — Fair Comment. 

(1) No action will lie if the defendant can 
prove that the words complained of are a fair 
and bond fide comment on a matter of pubHc 
interest. 

(2) The court decides (i) whether the matter 
commented on is one of pubhc interest ; 
(ii) whether there is evidence that any part of 
the words complained of go beyond the hmits 
of fair comment. 

(3) The jury, if the court is of opinion that 
there is some evidence that the comment is 
not fair, finds whether it is so or not. 

(4) Matters of pubhc interest inchide {inter 
alia) hterary and dramatic works, pohtical 
matters, and the pubhc conduct of public men, 
but not their private conduct {u). 

(r) Arnold v. Bottomley, [1908] 2 K. B. 151 ; Reg. v. Labouchere 
(1880), 14 Cox. C. C. 419 ; Zierenbcrg v. Labouchere, [1893] 2 Q. B. 
183. 

(«) Maisel v. Financial Times, [1916] 3 K. B. 336. 

(t) See M'Pherson v. Daniels, 10 B. & C. 263, at p. 272. 

{u) Wisdom v. Brown (188.5), 1 T. L. R. 412; Pankhurst v. 
Hamilton (1887), 3 T. L. R. 500. 



118 



Of Defamation. 



Art. 55. 

Fair com- 
ment not 
justification. 



(1) The defence of fair comment must not be confounded 
with justification on the one hand, or privilege on the 
other. If a defendant justifies, he must prove that the 
facts stated in the hbel are substantially true. If he 
succeeds, he makes out his defence ; if he fails, he may, 
nevertheless, successfully contend that the statements are 
in the nature of comment on a matter of pubhc interest {v). 

(2) If the alleged hbel is a criticism of some such matter 
of pubhc interest as a Uterary or dramatic work, and the 
statements are in the nature of comment, the defendant 
need not make out that they are just ; it is enough if he 
can satisfy the jury that they are fair and honest. Thus, 
if a critic states of a play that it is " dull, vulgar and 
degraded," and relies on the defence of fair comment, 
he wiU succeed if this is an expression of honest opinion, 
even though the comment be not such as a jury might 
think a just or reasonable appreciation of the play {w). 

But the expressions used must not pass the hmits of 
criticism. Facts are not comment ; and if facts are 
misstated, the defence of fair comment is of no avail, as 
when in criticising a play the critic stated it was founded 
on adultery, when in fact there was no incident of adultery 
in it. This cannot be " comment," fair or other^^dse {x). 

So, too, criticism of a hterary work must not be used 
as a cloak for mere invective or personal imputations not 
arising out of the subject-matter or based on fact. State- 
ments of this kind are not comment on a hterary work, and 
are hbellous if they are defamatory and not true (y). 

Under these principles, not only books and works of 
art, but even tradesmen's advertisements, may be fairly 
criticised (s). 

(u) Dighyv. Financial News, [1907] 1 K. B. 507 ; Peter Walker d; 
Son, Ltd. V. Hodgson, [1909] 1 K. B. 256 ; Wootton v. Sievier, [1913] 
3 K. B. 499. 

(iv) McQuire v. Western Morning News, [1903] 2 K. B. 100. 

(x) Merivale v. Carson, 20 Q. B. D. 275 ; Hunt v. Star Newspaper 
Co., [1908] 2K. B. 320. 

(y) Thomas v. Bradbury, Agnew c& Co., [1906] 2 K. B. 627. 

(z) Paris v. Levy, 30 L. J. C. P. 11. 



Fair Comment. 119 

(3) When, however, the defence of fair comment is set Art. 55, 

up to an attack on the conduct of public men, the line is 

drawn more closely. A public man may be attacked in p^btic men 
his public conduct, but not in his private conduct (except 

in so far as it touches on his pubUc conduct). And even 
in regard to his public conduct, if imputations are made 
which charge a pubhc man with base and sordid motives 
or dishonesty in the discharge of his duties, the defence of 
fair comment will not avail unless it is based upon facts 
which are truly stated, and the facts warrant the imputa- 
tion made, i.e., the inference drawn from the facts is a 
reasonable inference from those facts (a). 

(4) On the other hand, fair comment must be distin- Fair com- 
guished from privilege. If the defence is privilege, and ™entand 
the privilege is estabhshed, the plaintiff fails however 
grossly untrue the hbel may be, unless the defendant was 
actuated by express mahce in making it. If (in the case of 
quahfied privilege) there was exjiress malice, the defence 

of privilege fails. In fair comment no question of mahce 
arises. The only question is, " Is the comment fair, or 
does it exceed the bounds of fair criticism ? " (6). 

Fair comment is outside the region of hbel altogether, 
whereas a privileged communication is one which is 
libellous, but for which no action will he, because it is 
made in circumstances which make it privileged (6). 

Art. 56. — Absolute Privilege. 

No action lies for a statement made upon 
an occasion which is absolutely privileged, 
although made maliciously. Judicial, Parlia- 
mentary and State proceedings are occasions 
of absolute privilege. 

Note. — Channell, J. (c), thus explains the nature of the 
absolute privilege in judicial proceedings : " There is no 

(a) Campbell v. Spottiswoode, 3 B. & S. 769 ; Hunt v. Star News- 
paper Co., [1908] 2 K. B. 309 ; Dakhyl v. Labouchere, [1908] 2 K. B. 
325 ; Joynt v. Cycle Trade Publishing Co., [1904] 2 K. B. 292. 

(6) Seeder Blackbukn, J., in Ca?nj}bell v. Spottiswoode, 3 B. & S. 
769 ; Merivale v. Carson, 20 Q. B. D. 275. 

(c) Bottomhy v. Brougham, [1908] 1 K. B. 584. 



120 



Of Defamation. 



Art. 56. 



Absolute 
pi'ivilege. 
Parliamen- 
tary pro- 
ceedings. 



Judicial 
proceedings 
and matters 
of State. 



private right of a judge or a witness or an advocate to be 
malicious. It would be wrong of him, and if it could he 
proved, I am by no means sure that it would not be 
actionable. The real doctrine of what is called ' absolute 
privilege ' is that in the pubUc interest it is not desirable 
to inquire whether the words or acts of certain persons 
are maUcious or not. It is not that there is any privilege 
to be maUcious, but that, so far as it is a privilege of the 
individual — I should call it rather a right of the pubhc— 
the privilege is to be exempt from all inquiry as to malice ; 
that he should not be liable to have his conduct inquired 
into to see whether it is malicious or not — the reason being 
that it is desirable that persons who occupy certain positions 
as judges, as advocates, or as litigants, should be perfectly 
free and independent, and to secure their independence that 
their acts and words should not be brought before tribunals 
for inquiry into them merely on the allegation that they 
are malicious." 

(1) Speeches in ParHament are absolutely and irrebut- 
tably privileged {d) ; and a faithful report in a public news- 
paper of a debate of either House of Parliament, contain- 
ing matter disparaging to the character of an individual 
which had been spoken in the course of the debate, is not 
actionable at the suit of the person whose character has 
been called in question (e). Statements of witnesses before 
Parliamentary Committees are also privileged (/). Com- 
munications relating to affairs of State made by one officer 
of State to another in the course of duty are also absolutely 
privileged {g). 

(2) Reports, papers, votes and proceedings published 
by order of either House of Parliament are absolutely 
privileged (h). 

(3) All judges, inferior as well as sujDerior, are privileged 
in respect of words spoken in the course of a judicial pro- 

(d) Stochhde V. Hansard, 9 A. & E. 1 ; Dillon v. Balfour, 20 L. R. 
Ir. 601. 

(e) Wason v. Walter, L. R. 4 Q. B. 73. 
(/) Goffin V. Donnelly, 6 Q. B. D. 307. 

(g) Chatterton v. Secretary of State for India, [1895] 2 Q. B. 189 
[h) Parliamentary Papers Act, 1840 (3 & 4 Vict. c. 9), ss. 1, 2. 



Absolute Privilege. 121 

ceeding. although they are spoken falsely and maUeiously, Art. 56. 
and without reasonable or probable cause {i). But the 
privilege of inferior judges is confined to cases where they 
have jurisdiction or ought not to have known they lacked 
jurisdiction (j) ; and this privilege extends to counsel, for 
words spoken with reference to and in the course of a 
judicial inquiry, although the words are irrelevant to any 
issue before the tribunal {k). SoUcitors acting as advocates 
have a like privilege (I). The report of an Official Receiver 
made to the court in the winding up of a company is privi- 
leged on the same ground, as also is the annual report of the 
Inspector- General in Bankruptcy to the Board of Trade (m). 

(4) Statements of witnesses made in the course of pro- 
ceedings in a court of justice, or in any authorised tribunal 
acting judicially, or for the purpose of preparing proofs for 
use in such proceedings (??), can never be the subject of an 
action (o) ; and a military man giving evidence before a 
military court of inquiry which has not power to administer 
an oath, is entitled to the same protection as that enjoyed 
by a witness under examination in a court of justice {p). 
So also is a j^erson who fills in a form required for obtaining 
a lunacy order (q). 



Art. 57. — Qualified Privilege. 

(1) No action lies for a communication made 
upon an occasion of qualified privilege and 
fairly warranted by it, unless it be proved 

(t) Scott V. Stansfield, L. R. 3 Ex. 220 ; Law v. Llewellyn [1906], 
1 K. B. 487. 

(j) Anderson v. Gorrie, [1895] 1 Q. B., at p. 071. 

(k) Munster v. Lamh, 11 Q. B. D. 588. 

(I) Ibid., and Mackuy v. Ford, 29 L. J. Ex. 404. 

(m) Bottomley v. Brougham, [1908] 1 K. B. 584 ; Burr v. Smith, 
[1909] 2 K. B. 306. 

(n) Watson v. M'Ewan, |1905] A. V. 480; Beresford v. White 
(1914), 30 T. L. R. 591 [C. A.]. 

(o) Seaman v. Netherclift, 2 C. P. D. 53 ; Bnrratt v. Kearns, 
[1905] 1 K. B. 504. 

{p) Dawkins v. Rokeby, L. H. 7 H. L. 744. 

(7) Hodson v. Pare, [1899] 1 Q. B. 455. 



122 Of Defamation. 

Art. 57. to have been made maliciously — i.e., with an 
improper motive (r). 

(2) Communications are made upon occa- 
sions of qualified privilege if made by a person 
in discharge of some public or private duty, 
whether legal or moral, or in the conduct of 
his own affairs in matters where (s) a common 
interest exists between the person communi- 
cating and the person to whom the communi- 
cation is made. Such communications, if 
fairly warranted by any reasonable occasion 
or exigency and honestly made, are protected 
for the common convenience and welfare of 
society {t). 

(3) It is the duty of the judge to determine 
whether an occasion is privileged or not, and if 
it is, and there is no evidence of actual malice 
to go to the jury, he must enter judgment for 
the defendant (s). 

(4) It is for the jury to find whether a com- 
munication made upon a privileged occasion is 
privileged or not, i.e., whether the communica- 
tion is fairly warranted by the occasion and 
made without actual malice (u). 

(5) If the occasion is privileged the onus is 
on the plaintiff to prove malice, i.e., " actual 
malice" or "malice in fact" (v), which means 
in the given circumstances a wrong motive (iv). 

(r) Stuart v. Bell, [1891] 2 Q. B. 341. 

(s) Clark v. Molyneux, 3 Q. B. D., at p. 246 ; McQuire v. Western 
Morning News, [1903] 2 K. B. 100; Ada7n v. Ward,[l9n'] A. C. 309. 

(t) See Toogood v. Spyring, 1 C. M. & R., p. 193 ; Macintosh v. 
Dun, [1908] A. C. 390, 398. 

(m) Cooke V. Wildes, 5 E. & B. 328 ; and per Lopes, L.J., in Pull- 
man V. Hill tfc Co., [1891] 1 Q. B. 529. 

(v) Clark v. Molyneux, 3 Q. B. D. 237 ; Jenoure v. Dtlw^eqe^ 
[1891] A. C. 73 ; Smith v. Streatfield, [1913] 3 K. B. 764. 

{w) Nevillv. Fine Arts Insurance Co., [1895] 2 Q. B. 171. 



Qualified Privilege. 123 

(6) A communication is made maliciously in Art. 57. 

fact if made from any indirect and wrong 

motive, such as any unjustifiable intention to 

inflict injury on the person defamed; but if a 
person make a statement believing it to be 
true he will not lose the protection of the 
privileged occasion, although he have no 
reasonable grounds for his belief ; but excess of 
privilege may be evidence of malice {x). 

(7) A fair and accurate report in any news- 
paper of proceedings publicly heard before any 
court exercising judicial authority is privileged 
if (1) published contemporaneously with such 
proceedings, and (2) not blasphemous or in- 
decent (y). 

This privilege is not excluded because the court lacks 
jurisdiction (z). But if the court itself prohibits publication 
of its proceedings no privilege is given to a violation of the 
prohibition (a). The sittings of licensing justices are not a 
court for this purpose (6). 

( 1 ) Lord Blackburn thus explains the nature of qualified Comment, 
privilege and malice : "A publication calculated to convey 
an actionable imputation is primdfacie a libel, the law, as it 
is technically said, implying malice, or, as I should prefer 
to ssij, the law being that the person who so publishes 
is responsible for the natural consequences of his act. 
But if the occasion is such that there was either a duty, 
though perhaps only of imperfect obligation, or a right to 
make the publication, it is said that the occasion rebuts 
the presumption of malice, but that malice may be proved ; 
or 1 should prefer to say that he is not answerable for it 
so long as he is acting in compliance with that duty or 

(x) Clark v. Molyneux, 3 Q. B. D. 237 ; Royal Aquarium Society v. 
Parkinson, [1892] 1 Q. B. 434 ; Adam v. Ward, [1917] A. C. 309. 
(y) Law of Libel Amendment Act, 1888, s. 3. 
(z) Kimber v. Press Association, [1893] 1 Q. B. 65. 
(a) Odgera on Libel, 5th ed., 314. 
{h) Attwood V. Chapman, [1914] 3 K. B. 275. 



124 



Of Defamation. 



xMeaning of 
malice. 



Art. 57. exercising that riglit, and the burden of proof is on those 
who allege he was not so acting " (c), 

(2) ■' If," says Brett, L.J., in Clark v. Molyneux {d). 
" 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. If he uses the occasion 
to gratify his anger or his malice, he uses the occasion not 
for the reason which makes the occasion privileged, but 
for an indirect and wTong motive. . . . Malice does not 
mean malice in law, a term of pleading, but actual malice, 
that which is popularly 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 from some 
wTong motive. So, if it be proved that out of anger or for 
some other wrong motive the defendant has stated as 
true that which he does not know to be true, and 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 occasion not for the reason which justifies it, but 
for the gratification of his anger or other indirect motive." 

Public Also where the plaintiff had given the widest currency 

^*^' to a statement reflecting on X., a servant of the Crown. 

The defendant, who was Secretary of the Department to 
which X. belonged, sent to the Press for publication a letter 
containing defamatory statements about the plaintiff, 
refuting the latter's statements and vindicating X. It 
was held that the defendant's statement was made on a 
privileged occasion, and that in the circumstances the 
publication was not unreasonably wide and so the privilege 
was not lost (e). 

Social and (3) In Stuart V. Bell (/), the plaintiff was a valet, and 

moral duty. ^yYAq he and his master were staying at Newcastle as the 

(c) Capital and Counties Bank v. Henty, 7 App. Cas. 741. 787. 

(d) 3 Q. B. D. 237, 246. 

(e) Adam v. Ward, [1917] A. C. 309. 
(/) [1891] 2 Q. B. 341. 



Qualified Privilege. 125 

guests of the defendant, who was a magistrate and mayor Art. 57. 

of Newcastle, the chief constable showed the defendant a 

letter which he had received from the Edinburgh police 
stating that the plaintiff was suspected of having committed 
a theft at a hotel in Edinburgh which he had recently left, 
and suggesting a cautious inquiry. The defendant, with- 
out making any inquiry, told the plaintiff's master privately 
that there had been a theft at the hotel and that suspicion 
had fallen on the plaintiff. It was held that the defendant 
made the statement to the plamtiff's master in discharge 
of a moral or social, though not a legal, duty, and that 
the occasion was privileged. There being no evidence of 
malice, judgment was given for the defendant. 

(4) So advice given in confidence, at the request of 
another and for his protection, is privileged ; and it seems 
that the presence of a third party makes no difference (g) . 
But it seems doubtful whether a volunteered statement is 
equally privileged {h). Thus the character of a servant 
given to a person requesting it, is privileged (i) ; but a 
social or moral duty does not cover information furnished 
for reward by persons or bodies making a business of it (/) , 
but inquiries and reports made for the members of a limited 
trade association are privileged {k). 

(5) The character of a candidate for an office, given to 
one of his canvassers, was held to be privileged (I). 

(6) A privileged occasion arises, if the communication is Statements 

of such a nature that it can be fairly said that he who , made by one 

makes it has an interest in making it, and that those to intIrest*^to 

whom it is made have a corresponding interest in having one having a 

the communication made to them. Thus, where a railway correspond- 

in*^ intcrGst 
company dismissed one of their guards on the ground that *' 

he had been guilty of gross neglect of duty, and published 

(y) Taylor v. Hawkins, 10 Q. B. D. 308; Clark v. Molyneux, 
3 Q. B. D. 237. 

{h) Coxhead v. Richards, 15 L. J. C. P. 278; Fryer v. Kinnersly, 
33 L. J. C. P. 90 ; but see Davits v. Snead, L. K. o Q. B. 008. 

(i) Gardener v. Slade, 18 L. J. Q. B. 334. 

(j) Macintosh v. Du7i, [1908] A. C. 390. 

(k) London Association for Protection of Tr<nl€ v. (Ireenlands 
Limited, [1910] 2 A. C. 15. 

(l) Cowles V. Potts, 34 L. J. Q. B. 247. 



126 
Art. 57. 



Excess of 
privilege. 



Incidental 
publication 
to persons 
not having 
interest. 



Of Defamation. 

his name in a monthly circular addressed to their servants, 
stating the fact of, and the reason for, his dismissal, it was 
held that the statement was made on a privileged occasion, 
and that the defendants were not liable. For, as Lord 
EsHER, M.R., said : " Can anyone doubt that a railway 
company, if they are of opinion that some of their servants 
have been doing things which, if they were done by their 
other servants, would seriously damage their business, 
have an interest in stating this to their servants ? And 
how can it be said that the servants to whom that state- 
ment is made have no interest in hearing that certain things 
are being treated by the company as misconduct, and that 
if any of them should be guilty of such misconduct, the 
consequence would be dismissal from the company's 
service " (m). So joint-owners of property, shareholders 
of a company and partners have this privilege in further- 
ance of their common interests (n). 

(7) However, imputations which, if made to persons 
having a corresponding interest, would be privileged in the 
absence of actual malice, cease to be so if spread broad- 
cast. Thus, imputations circulated freely against another 
in order to injure him in his calling, however bond fide 
made, are not privileged. For instance, a clergyman is 
not privileged in slandering a schoolmaster about to start 
a school in his parish (o). So, the unnecessary trans- 
mission by a post office telegram of libellous matter, which 
would have been privileged if sent by letter, avoids the 
privilege (p). And where by the defendant's negligence 
that which would be a privileged communication if made 
to A., is in fact placed in an envelope directed to B., whereby 
the defamatory matter is published to B., the defendant 
will be liable (q). 

(8) But the privilege is not lost when the defamatory 
statement is in the reasonable and ordinary course of 
being copied. So if a solicitor dictates to his clerk a letter, 

(m) Hunt V. Great Northern Rail. Co., [1891] 2 Q. B. 189. 

(w) Quartz Hill Gold Mining Co. v. Beall (1882), 20 Ch. D. 501. 

(o) Gilpin V. Fowler, 9 Ex. G15. 

(p) Williamson v. Freer, L. R. 9 C. P. 393. 

(q) Hebditch v. Macllwaine, [1894] 2 Q. B. 54. 



Qualified Privilege. 127 

which would be privileged if wTitten by him personally, Art. 57. 

the soHcitor's privilege covers the pubUcation for this 

purpose to his clerk ; and if a company writes to another 
company a defamatory statement of a third person (which 
would be privileged), the pubhcation to the clerks who in 
the ordinary course copy the letter, is privileged (r). 

(9) Extracts from, and abstracts of, Parliamentary Extracts 
papers and reports are privileged if published bond fide and from Parha- 
without malice (s). The reports and papers themselves, !^pers. 

if published by authority of Parliament, are absolutely 
privileged, and actions brought in respect thereof may be 
stayed {t). 

(10) The publication without mahce of a fair and accurate Reports of 
report of judicial proceedings before a properly constituted judicial 
judicial tribunal, exercising its jurisdiction in open court, P"^°^ 

is privileged {u). This is a common-law defence, open to 
all persons. It is not the same as the absolute privilege 
given by statute to reports in newspapers when published 
contemporaneously {v). 

(11) Reports of their proceedings published by quasi- Reports of 
judicial bodies bond fide and without any malice, are privi- quasi- 
leged. For instance, where the General Council of Medical p^-oceedings. 
Education and Registration (who are empowered by statute 

to strike the names of persons off the register of qualified 
medical practitioners) struck off the plaintiff's name, and, 
in their annual pubhshed report, stated the circumstances 
which induced them to do so, it was held that in the 
absence of actual malice the publication was privileged {w) . 

(12) So, too, there is qualified privilege for speeches Speeches at 
made at meetings of district and county councils [x) . councUs etc 

(r) Boxsius v. Goblet Freres, [1894] 1 Q. B. 842 ; Edmondson v. 
Birch, [1907] 1 K. B. 371 ; Roffv. British db French, etc. Co., [1918] 
2 K. B. 677. 

(«) Parliamentary Papers Act, 1840 (3 & 4 Vict. c. 9,), s. 3 ; Man- 
genu v. Wri(jht, [1909] 2 K. B. 958. 

{t) Parliamentary Papers Act, 1840, ss. 1, 2. 

(u) Kimber v. Press Association, Limited, [1893] 1 Q. B. G5. 

(u) See ante, p. 123, para. 7. 

{w) Allbutt V. General Council, etc., 37 W. R. 771. 

(x) Royal Aquarium Society v. Parkinson, [1892] 1 Q. B. 431; 
Pittard v. Oliver, [1891] 1 Q. B. 474. 



128 Of Defamation. 

Art. 57. (13) By s. 4 of the Law of Libel Amendment Act, 1888 

(y), it is enacted that a fair and accurate report published 

reportT^T ^^ ^"^ newspaper of the proceedings of a public meeting, 

meetings, or (except where neither the public nor any news^oaper 
and pubhca- j-eporter is admitted) of any meeting of a town council, 
notices, etc. board of guardians, or local authority, constituted under 
the provisions of any Act of Parliament, or of any meeting 
of any commissioners, Select Committees of either House 
of Parliament, and the publication at the request of any 
Government office or department, officer of state, com- 
missioner of police or chief constable, of any notice or 
report i.ssued by them for the information of the public, 
shall be privileged, unless it shall be proved that such 
report or publication was published or made mahciously. 
But the protection intended to be aJSForded by that section 
is not available if the defendant has refused to insert, in the 
newsj)aper in which the matter complained of appeared, a 
reasonable explanation or contradiction by, or on behalf 
of, the plaintiff. Nor is it available to protect fair and 
accurate reports of statements made to the editors of news- 
papers by private persons as to the conduct of a public 
officer {z). 



Art. 58. — Apology. 

(1) At common law the fact that the de- 
fendant has apologised for having defamed 
the plaintiff is no defence. 

(2) By statute the defendant in any action 
for libel or slander may prove in mitigation of 
damages that he made or offered an apology 
before the commencement of the action, or as 
soon afterwards as he had an opportunity, if 
the action was begun before he had an oppor- 
tunity of doing so {a). 

iy) 51 & 52 Vict. c. 64. 

(2) Davis V. Shepstone, 11 App. Cas. 187. 

(a) Libel Act, 1843 (6 & 7 Vict. c. 96), s. 1. 



Apology. 129 

(3) In any action for libel contained in any Art. 58. 
newspaper or other periodical publication, it is "~~ 
a good defence that such libel was inserted 
without actual malice and without gross negli- 
gence, and that before the commencement of 
the action, or at the earliest opportunity 
afterwards, the defendant inserted in such 
newspaper a full apology, or, if the paper or 
periodical is published at intervals exceeding 
one week, that he offered to publish the apology 
in an}^ newspaper or periodical selected by 
the plaintiff (6). With this defence there must 
be payment of money into court by way of 
amends, and no other defence can he pleaded (c). 

Note. — If the defendant intends to give evidence of an 
apology in mitigation of damages, he must give notice with 
his defence {d). The Act of 1888 also enables a defendant, 
in the case of a libel in a iieivspaper, to give evidence in 
mitigation of damage that the plaintiff has recovered, or 
brought actions for, damages in respect of other libels to 
the same effect (e). 



Art. 59. — Slander of Title and Slander of 
Goods. 

(1) Slander of title is a false statement dis- 
paraging a person's title to property. 

(2) Slander of goods is a false statement 
disparaging goods manufactured or sold by 
another. 

(3) The slander may be oral or in writing 
or print. 

(h) Libel Act. 1843 {G & 7 Vict. c. 90), s. 2. 

(c) Libel Act, 1845 (8 & 9 Vict. c. 75), s. 2 ; U. S. C, Order XXII 
r. 1. 

(d) Libel Act, 184.3, s. 1. 

(e) Law of Libel Amendment Act, 1888 (51 & 52 Vict. c. (54), s. (>. 

K 



130 



Of Defamation. 



Art. 59. 



Special 
damage. 



Ptiffing 
one's own 
goods. 



(4) An action for slander of title or slander 
of goods will lie if — 

(i) The statement is false ; 

(ii) The publication is malicious ; 
(iii) The publication causes special damage (/). 

Note. — (1) Actions of this kind are not properly actions 
for libel or slander. The cause of action is for damage 
wilfully and intentionally done without just occasion or 
excuse {g). The statement to be actionable need not be 
defamatory of the person (h), and it will be observed that 
even though the statement is in writing, it is not actionable 
without proof of special damage (»'). There must also 
always be evidence of actual malice, or at least absence of 
reasonable cause for making the statement {j) . 

(2) In every case of this kind there must be proof of 
actual damage, i.e., of actual and temporal loss, resulting 
from the slander. In the case of slander of goods, loss of 
custom and falling off in the sales is the usual kind of 
special damage Where the slander is of title to property, 
real or personal, the special damage may be the diminished 
value of the pioperty by reason of difficulty of selling or 
letting it {k). 

(3) For a person in trade to pufi his own goods or 
proclaim their sujaeriority over those of his rivals is not 
actionable, even though the statement is untrue and made 
maliciously, and causes damage to the rivals. A mere 
puffing of one's own goods, without active disparagement 
of a rival's goods, gives no ground of action, for the rival's 
goods have not been decried (I). 

(/) Lyne v. NichoUs (1906), 23 T. L. R. 86 ; Griffiths v. Benn 
(1911). 27 T. L. R. 346. 

(g) Per Bowen, L.J., in Ratdijfe v. Evans, [1892] 2 Q. B. 524, 
[C. A.], at p. 527. 

{h) Ibid. 

(i) White V. Mellin, [1895] A. C. 154. 

(j) Wren v. Wild, L. R. 4 Q. B. 730 ; Hubhuck <£• Sons v. Wilkin- 
son, Heywood and Clark, [1899] 1 Q. B. 86 [C. A.] ; Western Counties 
Manure Co. v. Lawes Chemical Manure Co., L. R. 9 Ex. 218 ; Halsey 
V. Brotherhood, 19 Ch. D. 386 [C. A.]. 

(&) White V. Mellin, supra ; Ratclijfe v. Evans, supra. 

(I) White V. Mellin, supra; Alcott v. Millar^s Karri Forests, 
Limited (1905), 91 L. T. 722. 



CANADIAN NOTES. 130a 



CANADIAX NOTES TO CHAPTER I. OF PART II. 

xA.RTICLE 48. 

The general propositions stated in the text hold good 
in the English law provinces of Canada, subject to some 
statutor}- modifications intended mainly for the protection 
of newspapers. 

The Quebec Code contains no articles dealing specifically 
with the subject of defamation^ and actions under this 
head must be brought under the general words of Article 
]053. In practice this means that the development of 
the law on this subject has been left to the courts. For 
the most part, though not without exception, common 
law principles have been followed. The distinction between 
libel and slander, involving the consequences stated in 
the text, is unknown to the law of Quebec. 

The following definition by Dalloz (vo. Pre.sse, Ouirage, 
Vijfaination n. 215) is cited with approval by Beauchamp, 
vol", i, p. 1004:— 

" L'on distingue la difl^amation de I'injure ; la premiere 
renferme l'imj)utati()n d'un fait qui porte atteinte a I'hon- 
neur ou a la consideration de quelqu'un : la seconde est 
toute expression outrageante, terme de mepris ou invective 
qui ne renferme I'imputation d'aucun fait." 

Article 49. 

It scarcely seems profitable to multiply instances of 
tln^ meaning attached to particular exj)ressions in individ- 
ual decisi(jiis, since the question of innuendo obviously 
depends entirely uj)on the special circumstances of each 
case. To take one example, in Bordeaux v. Johs (1913), 6 
Alta. L. R. 440, the words complained of were: "He has 
a wife in the States." formally there would be nothing 
defamatory about su('h a remark, l)ut since it happened 
that the words were addressed to the father of the ])lain- 
tiff's iiancee, and caused the postponement of his engage- 
ment, they gave him a cause of action. 

Wftrds may be defamatory, although tlicy may only dis- 
(•reclit the j)laintiff in the eyes of persons holding certain 



130b CANADIAN NOTES. 

religious or political views. In Noyes v. La Cie. d'lmpri- 
merie et du Publicaiion du Canada (1890), M. L. R., 6 
S. C. 370; 13 L. N. 345, it was held actionable to accuse 
a parliamentary candidate of being an Orangeman, The 
charge of being a Freemason is defamatory of a Frencii 
Roman Catholic candidate: Brunelle v. Girard (1913), 23 
Que. K. B. 437. 

To accuse a newspaper of selling its political influence 
is actionable at the suit of the cor])oration which owns t!ie 
paper: Alberlan Puhllsliing Co. v. Munn, 13 Alta. L. ]{. 
533; (1918), 3 W. W. R. 761. 

A non-commercial corporation may maintain an action 
for libel, if the words have reference to the purposes for 
which the corporation exists: Chinese Empire Reform 
Association v. Chinese Daily New.^paper Publishing Co. 
(1907), 13 B. C. R. 141. 

Article 50. 

Statutes more or less similar to the English Slander of 
Women Act have now been ])assed by all the common law 
})rovinces. In most cases the plaintiff is only allowed to 
recover nominal damages in the absence of proof of special 
damage, but a verdict for nominal damages is sufficient to 
carry costs. For examples see Mitchell v. Clement, 14 
Alta. L. R. 348; (1919), 1 W. W. R. 183; Stewart v. 
Sterling (1918), 42 Ont. L. R. 477; 42 D. L. R. 738. 

In Rutledge v. Astell (1908), 1 Sask. L. R. 389, it was 
held actionable to accuse the plaintiff, a horse-dealer, of 
drugging his horses for sale. 

The rules laid down in this article have no application in 
the law of Quebec. 

Article 51. 

In Germain v. Ryan (1918), 53 Que. S. C. 543, the 
plaintiff claimed damages for certain offensive language 
which the defendant had used concerning the French-Can- 
adians generally. It was held that he could not recover 
without proving that the abuse in question was specially 
directed towards himself. 

If the plaintiff makes false accusations against a par- 
ticular community with the object of inciting his hearers 
to boycott and injure them, individual members of the 
community may have a right of action: Ortenberg v. 



CANADIAN NOTES. 130c 

Plamondon (1914), 24 Que. K. B. GSJ, 385. Cross, J., in 
this case held that the liability was not for defamation, but 
for (lamage maliciously caused. 

In CInniqui/ v. Begin (1912), 41 Que. S. C. 261; T 
D. L. R. 65, aflfirmed 24 Que. K. B. 394, the defendant 
was held to have libelled the plaintiff by asserting that her 
parents were not married, althou^^ih he was unaware of the 
plaintiff's existence. 

Article 52. 

The rule laid down in Pullman v. Hill regarding pub- 
lication to stenographers was applied in Pu.ierhaugh v. 
Gold Medal FurnHuve Manufacturing Co. (1904), T Ont. 
L. R. 582. See also Moran v. 0' Regan (1907), 38 N. B. R. 
189; Quillinan v. Stuart (1917), 38 Ont L. R. 623; 35 
D. L. R. 35. In some American States the courts appear 
to regard communication to a stenographer as being an 
absolute publication, but the decisions are not entirely 
uniform. 

In Dominion Telegraph Co. v. Silver (1882), 10 S. C. R. 
238, the telegraph company was held liable for the trans- 
mission over its lines of a message, which on the face of it 
was defamatory. Upon this point there is some conflict 
of opinion among the American decisions. 

In Rudd V. Cameron (1912), 8 D. L. R. 622, the plain- 
tiff had employed detectives to investigate the origin of 
certain slanderous rumours that were in circulation con- 
cerning him, and the detectives induced the defendant to 
re{)eat them. As the detectives had acted on their own 
discretion it was held that there had been a puldication 
for which the defendant was responsible. 

The artificial theory of husl)an(l and wife being '•'one 
person in the eye of the law " is unknown in the law of 
Quebec, but the same result is reached by holding that 
communications between husband and wife are absolutely 
privileged: Soullieres v. de Repentigni/ (1886), M. L. R., 
2 S. C, 414. It might be more reasonable to base the 
common law rule upon the same grounds instead of explain- 
ing it by a fantastic reason which has no foundation in fact. 

Article 53. 

In Hertlein v. Herflein (1912), 9 D. L. R. 72; 22 
W. L. R. 959, the defendant anonymously communicated 



130(1 CANADIAN NOTES. 

to the plaintiff, his brother, accusations which he had 
lieard conccrnin^^ the plaintiff's wife. The court held that 
his mode of action destroyed any cdaim of privilege, and 
that he was responsible for the libel. 

The fact that defamatory statements contained in a 
newspaper are already matters of notoriety may properly 
be considered in mitigation of damages: Patierson v. 
Edmonton Bulletin Co. (1908), 1 Alta. L. K. 477; Car- 
ring ton V. Mosher (1912), 46 Que. S. C. 484. 

Aeticle 54. 

In Govenlocl- v. London Free Press Co. (1915), 35 Ont. 
L, R. 79; 26 D. L. R. 681, it was stated in the newspaper 
that the plaintiff had been fined for assaulting the starter 
on a race-course. The fact that he had been fined for 
minor irregularities on another occasion was held to be 
no justification. 

The publication must be taken as a whole in order for 
its truth or falsehood to be judged : Robert v. Herald Co. 
(1913), 10 I). L. R. 20. 

In Quebec, where the old French law has been accepted 
without any statutory changes, truth is not an absolute 
defence, but may be pleaded to shew the good faith of the 
defendant and to mitigate the damages: see Bhis v. 
Deschene (1914), 48 Que. S. C. 178, where the authorities 
are reviewed. 

Article 55. 

In Wade v. Tlie News-Adrertiser (1917), 24 B. C. R. 
260; 2 W. W. R. 1134, the plaintiff had attacked the gov- 
ernment in a paper which be edited, and the defendant 
replied by attacking the ])laintiff's conduct as a government 
official in the Yukon sixteen years earlier. The court 
held that this revival of ancient controversies could iiot 
be justified as fair comment. 

Ain'TCLE 56. 

The ])riiicip]e of the rule laid down in the text was- 
extended beyond the law of defamation in the curious 
case of Le Club de Garni.son de Quebec v. Lavergne (1917), 
27 Que. K. B. 37. The plaintiff had made a speech in the' 
legislature which was considered l)v manv to be of a dis- 



CANADIAN NOTES. 130e 

loyal nature, and was in consequence expelled from liis 
club. A majority of the Court of King's Bench held that 
the action of the club was a violation of the absolute 
privilege accorded to parliamentary proceedings, anil that 
the plaintiff was therefore entitled to retain his member- 
ship. 

In Quebec words spoken by witnesses and others in the 
course of judicial proceedings are only privileged in so 
far as they are relevant to the subject-matter of the 
case: Hon^n v. Parsons (1911), 13 Que. P. E. 363: Car- 
rington v. Russell (1912), 13 Que. P. E. 353. 

Article 57. 

Although the occasion may be one of qualified privilege, 
yet if there is evidence that the defendant did not actually 
believe the charge which he made against the plaintiif, the 
Jury may be justified in inferring malice from such facts: 
Woods V. Plummer (lOOT), 15 Ont. L. E. 552. 

A letter written to a magistrate charging the plaintiff 
with fraud is not privileged unless it is intended to be 
the initial step in judicial proceedings : Lowther v. Baxter 
(1890), 22 N. 8. E. 372. 

A physician is privileged in advising his patient to pat- 
ronise one drug store rather than another, provided that 
he acts in good faith: Aumovt v. Cousineau (1911), 18 
Eev. de Jur. 271. 

In the common law provinces there is now a large 
amount of legislation intended to protect the freedom of 
the press in the honest performance of its duties. In gen- 
eral the statutes enact that only actual damage shall be 
recovered, provided that the news is of public interest and 
is published in good faith, and that the person defamed is 
given a fair opportunity of refuting the attack upon him 
in the columns of the defendants' paper. These statutes 
which the student should study in detail, go farther in 
some respects than the English legislation cited in the 
text. 

In Quebec there has been no such legislation. So far as 
the matter is one of constitutional principle, it is governed 
by the English law existing at the date of the cession. 
So far as it is purely a matter of private right, the French 
law applies. See Maille v. La Cie. de Publication du 
Canada (1913), 43 Que. S. V. 397. 



130t" CANADIAN NOTES. 

Article 59. 

In Manitoha Free Press Co. v. Nagy (1907), 39 S. C. R. 
340, the defendants printed in their ])aper a statement 
that the plaintiff's honse was haunted, and a sale of the 
property fell through in consequence. Upon the question 
of malice Davies, J., said : " The article complained of 
was false and was puhlished h_v defendant recklessl}' with- 
out regard to consequences, and in this may be found the 
absence of good faith which imports malice, which is an 
essential condition of liability." The ])laintiff recovered 
damages to the extent of the depreciation in the value of 
the property. 



( 131 ) 



CHAPTER II. 
OF MALICIOUS PROSECUTION. 

Art. 60. — General Rule. 

(1) Malicious prosecution of criminal proceed- 
ings consists in instituting unsuccessful criminal 
proceedings maliciously and without reasonable 
or probable cause {a). 

(2) Malicious prosecution of criminal proceed- 
ings causing actual damage to the party prose- 
cuted is a tort, for which he may maintain an 
action. 

(3) Malicious prosecution will lie against those 
who maliciously, and without reasonable and 
probable cause, petition to have a person adjudi- 
cated bankrupt or attempt to have a company 
wound up {h). 

(4) It is actionable to procure the arrest and 
imprisonment of a person by means of civil or 
criminal judicial process if such process be 
instituted maliciously and without reasonable 
or probable cause (c). 

(5) Malicious execution against property. 
Where an action is brought maliciously, and 
without reasonable and probable cause, to issue 

(a) Soo Churcldll v. Siygerts, 3 E. & B. 929, 937 ; Johnson v. 
Emerson, L. R. 6 Ex. 329 ; and Quartz Hill Gold Mining Co. v. Eyre, 
11 Q. B. D. 674 [C. A.]. 

(b) Qwirlz Hill Mining Co. v. Eyre, supra. 

(c) Churchill v. Siggers (1854), 3 E. & B. 929. 



132 



Of Malicious Prosecution. 



Art. 60. 



Distinct 
from false 
imprison- 
ment. 



Essentials. 



execution against the property of a judgment 
debtor malicious prosecution will lie {d). 

The distinction between malicious prosecution and 
false imprisonment has already been pointed out. Prose- 
cution consists in setting a judicial officer in motion. Im- 
prisonment consists in causing a person to be arrested or 
imprisoned without the intervention of a judicial officer. 

To sustain this action the following essentials must 
exist : — 

(1) Defendant must have actively instigated and carried 
on some proceedings of the classes above mentioned, and 
such proceedings must come before a judicial officer. 

(2) The defendant must have acted maliciously {i.e., 
with an improper motive and not to further the ends of 
justice). 

(3) There must be a want of reasonable and probable 
cause. 

(4) The proceedings must have ended in favour of the 
person proceeded against (unless of their nature this is 
not possible). 

(5) Damage to the party proceeded against— in some 
cases this is implied. 

Art. 61. — Prosecution by the Defendant. 

The defendant must have instigated the pro- 
secution or continued it, and need not be a 
party to it (e). But if the prosecution is taken 
by the authorities it is not enough that the 
defendant merely furnished information (/). 
And if criminal the proceedings need not be 
punishable by imprisonment in the first in- 
stance (g). 

(d) Churchill v. Siggers, cf. Clissold v. Cratchley, [1910] 2 K. B. 
244. 

(e) Johnson v. Emerson (1871), L. R. 6 Ex. 329. 

(/) Fitzjohn v. Mackinder, 9 C. B. (n.s.) 505 ; Sewell v. N. T. Co., 
[1907] 1 K. B. 557. 

ig) Wifftn V. Bailey, [1915] 1 K. B. 600. 



Prosecution by the Defendant. 133 

(1) Thus, if a person bond fide lays before a magistrate Art. 61. 
a statement of facts, without making a specific charge of " : 
crime, and the magistrate erroneously treats the matter as 

a felony when it is in reality only a civil injury, and issues magistrate, 
his warrant for the apprehension of the plaintiff, the 
defendant who has complained to the magistrate is not 
responsible for the mistake. For he has not instituted the 
prosecution, but the magistrate (h). But if a person goes 
before a magistrate and makes a specific charge against 
another, as by swearing an information that that other has 
committed a criminal offence, he is the jierson prosecuting, 
for he and not the magistrate has set the law in motion. 
So, too, if a person instructs a solicitor to prosecute, he is 
liable for the consequences if he does it maliciously and 
without reasonable and probable cause. 

(2) It has been held that if a person acting bond fide 
swears an information before a magistrate, under s. 10 of 
the Criminal Law Amendment Act, 1885, that he has 
reasonable grounds for suspecting that a woman or girl is 
detained for immoral purposes, and thereupon the magis- 
trate issues a search-warrant, the person swearing the infor- 
mation is not a prosecutor, as the magistrate acts judicially 
upon such information, and the decision of the magistrate 
that there is reasonable cause for suspicion protects the 
person giving the information (^). 



Art. 62. — Want of Reasonable and Probable 

Cause. 

(1) The onus of proving the absence of reason- 
able and probable cause for the prosecution 
rests on the plaintiff {j). 

(2) The jury find the facts on which the 
question of reasonable and probable cause de- 
pends ; but the judge determines whether those 

(/t) WyaU V. White 2!) L. J. Kx. 193; Cooper v. Booth, 3 Esp. 
135, 144. 

(i) Hope V. Evered, 17 Q. B. D. 338. 

(j) Lister v. Perrymnn, L. K. 4 H. L. 521 : Abrath v. North Kuatern 
nail. Co., 11 Af)p. Cas. 247. 



134 



Of Malicious Prosecution. 



Art. 62. 



Burden of 
proof. 



Reasonable 

and 

probable 

cause 

defined. 



facts do constitute reasonable and probable 
cause [k). 

(3) No definite rule can be laid down for the 
exercise of the judge's determination (l) ; but 
the defendant will be deemed to have had 
reasonable and probable cause for a prosecution 
where (a) he took reasonable care to inform 
himself of the true facts ; (b) he honestly, 
although erroneously, believed in his informa- 
tion (m), and (c) that information, if true, would 
have afforded a prima facie case for the prose- 
cution complained of (n). 

Note, that in both malicious prosecution and false im- 
prisonment the question of what amounts to reasonable 
and probable cause is for the judge. But there is this 
important difference, that in malicious prosecution it is for 
the plaintiff to prove the absence of reasonable and probable 
cause ; whereas in false imprisonment, the imprisonment is 
prima facie wrongful, and it is for the defendant, if he can, 
to prove that he had reasonable and probable cause. 

In Hicks v. Faulkner (o), Hawkiks, J., says : " I should 
define reasonable and probable cause to be an honest belief 
in the guilt of the accused based upon a full conviction, 
founded ujion reasonable grounds, of the existence of a 
state of circumstances which, assuming them to be true, 
would reasonably lead an ordinary prudent and cautious 
man, placed in the position of the accuser, to the con- 
clusion that the person charged was probably guilty of the 
crime imputed. There must be first an honest belief of 
the accuser in the guilt of the accused ; secondly, such belief 
must be based on an honest conviction of the existence of 
the circumstances which led the accuser to that conviction ; 
thirdly, such secondly mentioned belief must be based upon 

(k) Panton v. Williams, 2 Q. B. 169 [Ex. Ch.] ; Cox v. Eng. 
Batik, [1905] A. C. 168. 

(l) Lister v. Ferryman, L. R. 4 H. L. 521. 
(m) Heslojj v. Chapman (1853), 2.3 L. J. Q. B. 49. 
(n) See Abrath v. North Eastern Rail. Co., ubi supra. 
(o) 8 Q. B. D. 167, at p. 171. 



Want of Reasonable and Probable Cause. 135 

reasonable grounds ; by this I mean such grounds as would Art. 62. 

lead any fairly cautious man in the defendant's situation 

so to believe ; fourthly, the circumstances so believed and 
relied on by the accuser must be such as amount to reason- 
able ground for belief in the guilt of the accused." 

A man who makes a criminal charge against another, 
cannot absolve himself from considering whether the charge 
is reasonable and probable by delegating that question to 
an agent, even although that agent be presumably more 
capable of judging. Thus, the opinion of counsel as to the 
propriety of instituting a prosecution will not excuse the 
defendant if the charge was in fact unreasonable and impro- 
bable. For, as Heath, J., said in Hewlett v. Cruchley (p), 
" it would be a most pernicious practice if we were to in- 
troduce the principle that a man, by obtaining the opinion 
of counsel, by applying to a weak man or an ignorant 
man, might shelter his malice in bringing an unfounded 
prosecution." 

With regard to the amount of care which a prosecutor is 
bound to exercise before instituting a prosecution, it would 
seem that although he must not act upon mere tittle- 
tattle or rumour, or even upon what one man has told his 
immediate informant, without himself interviewing the 
first-mentioned man, yet where his immediate informant is 
himself cognizant of other facts, which, if true, strongly 
confirm the hearsay evidence, that will be sufficient to 
justify the prosecutor in acting, without first going to the 
source of the hearsay (q) . But as circumstances are infinite 
in variety, it is quite impossible to lay down any guiding 
principle as to what steps a person ought reasonably to 
take for informing himself of the truth before instituting a 
prosecution. 

Art. 63. — Malice. 

Malice means improper motive, that is to say, 
any motive other than the desire of bringing a 
person to justice (r). Malice is a question of 

ip) 5 Taunt. 277, at p. 283. 

(q) Lister v. Ferryman, L. R. 4 H. L. 52L 

(r) Ahrulh v. North Eastern Rail. Co., 11 A{)i). Cas. 247. 



136 



Of Malicious Prosecution. 



Art. 63. 



Illustration?. 

Improper 
motives. 



Honest 
mistake. 



Bad 
memory. 



fact, and the absence of reasonable and probable 
cause does not necessarily infer malice (.s) ; nor 
does the acquittal of the person proceeded 
against (t). 

(1) If a person prosecutes another to prevent that other 
bringing actions against him (?/), or to stop the mouth of a 
witness (v), or to frighten others and thereby deter them 
from committing depredations on the prosecutor's pro- 
perty (w), all these are indirect and improper motives which 
may constitute malice. So, too, if a man presents a petition 
to wind ujD a company with a view to recovering from it 
money paid by him for shares in the company (x). 

(2) So, too, where one is assaulted justifiably, and insti- 
tutes criminal proceedings for the assault ; if in the opinion 
of the jury he commenced such proceedings knowing that 
he was wrong and had no just cause of complaint, malice 
may be presumed (y) 

(3) In Brown v. Hawkes (2) it was pointed out that a 
prosecutor may act without reasonable and probable cause 
and yet not be malicious. Stupidity and malice are not 
the same thing ; if the defendant honestly believed in 
the plaintiff's guilt, and there is no evidence that he was 
actuated by any improj^er motive, even though he had 
not taken care to inform himself of the facts, and had no 
reasonable and probable cause for prosecuting, yet he 
cannot be said to have acted maliciously. Honest belief 
rebuts the inference of malice from absence of reasonable 
and probable cause. 

(4) So, too, where the defendant has honestly and hond 
fide instituted the prosecution, he is not liable, although 

{s) Brown v. Hawkes, [1891] 2 Q. B. 727 ; Bradshaw v. Waterlow, 
[1915] 3 K. B. 527. 

[t) Corea v. Peiris, [1909] A. C. 549. 

(u) Leith V. Pope, 2 W. Bla. 1327. 

(y) Haddrick v. Heslop, 12 Q. B. 267. 

(w) Stevens v. Midland Rail. Co., 10 Ex. 352, 350. 

(x) Quartz Hill Co. v. Eyre (1883), 11 Q. B. D. 687. 

(y) Hinton v. Heather, 14 M. & W. 131. 

(z) [1891] 2 Q. B. 718 [C. A.]. 



Malice. 137 

owing to a defective memory he has wrongly accused the Art. 63. 
plaintiff {a). 

(5) Whether a corporation can be guilty of malicious pro- Malice 

secution was, until recently, not free from doubt, it being ^"^ ^ 

. , , . 1 . .1 i i i • corporation. 

said that a corporation having no mmd cannot entertain 

malice (b). In Cornford v. Carlton Bank (c), Darling, J., 

held that if a corporation institutes a prosecution acting on 

motives which in an individual would amount to malice, the 

corporation may be said to have prosecuted maliciously, 

and it is now well established that an action of malicious 

prosecution will lie against a corporation. 

Art. 64. — Failure of the Prosecution. 

It is necessary to show that the proceeding has 
terminated in favour of the plaintiff, if, from its 
nature, it be capable of such a termination {d). 
But the plaintiff does not need judicial deter- 
mination of his innocence ; the absence of 
judicial decision of his guilt is enough, e.g.^ by 
discontinuance (e), or the quashing of a con- 
viction on some technical ground (/). 

(1) This rule, which at first sight appears somewhat Explanation 
harsh, is founded on good sense, and applies even where ? reasons 

• 111 . 'O"" rule. 

the result of the prosecution cannot be appealed {g). As 
Crompton, J., said, in Castrique v. Behrens (h), " there is 
no doubt on principle and on the authorities that an action 
lies for maliciously, and without reasonable and probable 
cause, setting the law of this country in motion, to the 

(rt) Hicks V. Faulkner, 8 Q. B. D. 107. 

(b) See per Lord Bkamwell in Ahrath v. North Easlerti liail. Co., 
II App. Cas. 247. 

(c) [1899] 1 Q. B. 392. In the Court of Appeal ([1900] 1 Q. B. 
22 [C. A.]) it was conceded that the action would lie ; and see 
Citizens'' Life Assurance Co. v. Brown, |1904] A. ('. 42.'L 

(d) Basebe v. Matthews, L. R. 2 C. P. 084. 

(e) Watkins v. Lee, 5 M. & W. 270. 

(/) Johnson v. Emerson (1871), L. R. Ex. .S29. 
(g) Basebe v. Matthews, L. R. 2 C. P. 684. 
(h) .'50 L. J. Q. B. 103, at p. 108. 



138 



Of Malicious Prosecution. 



Art. 64. damage of the plaintiff. . . . But in such an action 

it is essential to show that the proceeding alleged to be 

instituted maliciously and without probable cause has 
terminated in favour of the plaintiff, if from its nature it 
be capable of such termination. The reason seems to be 
that, if in the proceeding complained of, the decision was 
against the plaintiff, and was still unreversed, it would not 
be consistent with the principles on which law is adminis- 
tered for another court, not being a court of appeal, to hold 
that the decision was come to without reasonable and 
probable cause." 

(2) Upon the same principle, an action for trespass by 
wrongfully causing execution to be issued under a judg- 
ment obtained by fraud or irregularity, will not lie until 
the judgment has been set aside. It is not competent to 
any person to aver anything contradicting or impeaching 
the judgment as long as it stands (i). 



Damage 
need not be 
pecxmiary. 



Art. 65. — Damage. 

In order to support an action for malicious 
prosecution, it is necessary that some damage 
result to the plaintiff as the natural consequence 
of the prosecution complained of, but this will 
be presumed in cases which of their nature 
involve damage to reputation or possible loss 
of liberty or credit (j). 

The damage need not necessarily be pecuniary. " It 
may be either the damage to a man's fame, as if the matter 
he is accused of be scandalous, or where he has been put in 
danger to lose his life, or limb, or liberty ; or damage to his 
property, as where he is obliged to spend money in neces- 
sary charges to acquit himself of the crime of which he is 
accused " (A;). 

{i) Huffer v. Allen, L. R. 2 Ex. 15 ; Metropolitan Bank v. Pooley, 
10 App. Cas. 210. 

{j) Quartz Hill Co. w. Eyre, supra ; T7*J9'"en v. BaiZej/, [1915] 1 K. B- 
600. 

{k) Mayne's Treatise on Damages, p. 345. 



CANADIAN NOTES. 138a 



CANADIAN NOTES TO CHAPTEE II. OF PART II. 

Articles 60-65. 

Upon the subject of malicious prosecution the student 
should be careful to note an important point of difference 
between the Quebec law and that of the other provinces. 
The common law provinces follow the rule as laid down in 
Article 63 of the text, and hold that malice forms a dis- 
tinct and essential part of the plaintiff's case, not to bo 
identified with absence of reasonable and probable cause : 
Scott V. Harris (1918), 14 Alta. L. R. 143; (1918), 3 
W. W. R. 1028 ; 44 D. L. R. 737. 

In Quebec, on the other hand, following the French law, 
it has been held that absence of reasonable and probable 
cause is in itself sufficient to sustain the action without 
independent evidence of malice. The student should care- 
fullv read the judgement of Archambeault, C.J., in Can- 
adicin Pacific By. Co. v. Waller (1912), 1 D. L. R. 47; 19 
Can. Cr. Cas. 190, in which the rules of the two systems 
are compared. 

It may further be observed that the Quebec law differs 
from the common law in permitting an action for the 
malicious institution of purely civil proceedings : see Mont- 
real Street By. Co. v. BitcUe (1889), M. L. R. 5 Q. B. 77. 
Such actions are, however, very uncommon. 

On the respective functions of judge and jury in cases 
of malicious prosecution see Archibald v. Maclaren 
(1892), 21 S. C. R. 588. 

The Ontario Judicature Act (3-4 Geo. V. c. 19, s. 62) 
})iovides: " In actions for malicious prosecution the judge 
sliall decide all questions, whether of law or fact, necessary 
for determining whether or not there was reasonable and 
|tiobable cause for the prosecution." 

The student may refer with advantage to an article by 
Mr. C. B, Labatt in 35 Canada l^aw Journal, p. 545. 



139 



CHAPTER III. 
OF MAINTENANCE. 

Art. 66. — Definition. 

(1) ^Maintenance is the unlawful assistance, 
by money or otherwise, proffered by a third 
person, to either party to a civil suit, to enable 
him to prosecute or defend it. 

(2) Assistance of another in a suit is not 
unlawful if (a) the maintainer has a common 
interest in the action with the party maintained ; 
or (b) the maintainer is actuated by motives 
of charity, bond fide believing that the person 
maintained is a poor man oppressed by a rich 
one. 

(3) Special damage must be proved and the 
success of the maintained litigation is no bar to 
an action for maintenance {a). 

Maintenance differs from malicious prosecution in four Distin- 
respects: f"^"*^^^ 

(a) It applies to civil, not criminal proceedings. prosecutTon 

(b) It consists not in instituting proceedings on one's 

own behalf, but in assisting another. 

(c) Malice is not a necessary ingredient. 

(d) It is not necessary to prove that the proceedings 

terminated in favour of the person who is the 
person who brings the action of maintenance. 

(1) Thus, in the well-known case of Bradlaugh v. New- Illustrations. 
degate (b). the plaintiff, having sat and voted as a member 

(a) Oram v. Hult, [1914] 1 Ch. 107; Neville v. London Express 
Newspaper, Limited, [1919J A. C. 3G8. 
ib) 11 Q. B. U. 1. 



140 



Of Maintenance. 



Art. 66. 



Common 
interest. 



Interest 
arising out 
of charitj'. 



of Parliament without having made and subscribed the 
oath, the defendant, who was also a member of Parliament, 
jjrocured C. to sue the plaintiff for the penalty imposed for 
so sitting and voting. C. was a person of insufficient 
means to pay the cost in the event of the action being 
unsuccessful : — Held, that the defendant and C. had no 
common interest in the result of the action for the penalty, 
and that the conduct of the defendant in respect of such 
action amounted to maintenance, for which he was liable 
to be sued by the plaintiff. The plaintiff accordingly re- 
covered all the costs he had incurred in the first action. 

(2) But, on the other hand, where there is a common 
interest believed on reasonable grounds to exist, assistance 
in bringing or defending an action is justifiable. A master 
for a servant, or a servant for a master, an heir, a brother, 
a son-in-law, a brother-in-law. a fellow commoner defending 
rights of common, or a landlord defending his tenant in 
a suit for tithes (c) . 

(3) So, if a number of proprietors of land subscribe to 
defend an action relating to the land of one in the reason- 
able belief that they have a common interest in the result, 
that is not maintenance {d). 

(4) The other exception is where a rich man gives money 
to a poor man to maintain a suit out of charity. And the 
motive is none the less charitable within this exception 
because it is induced by common religious sympathy, as 
when the Kensit Crusade Committee assisted a poor man in 
taking proceedings to get a child removed from a home to 
the religious principles of which the committee objected (e). 
And this exception is applicable notwithstanding that if the 
person advancing the money had made full inquiry, he 
would have ascertained that there was no reasonable or 
probable ground for the proceedings which he assisted (/). 

(c) Per Coleridge, C. J., in BrudUnujli v. Ncudegatc, 11 Q. B. D., 
at p. 11. 

(d) Findon v. Parker, 1 1 M. & W. 675. See, too, British Ca&h avd 
Parcel Conveyers, Limited v. Lamson Store Service Co., [1S08] 1 K. E. 
1006 [C. A.], and Alabaster v. Harness, [1895] 1 Q. B. .339 [C. A.]. 

(e) Holden v. Thompson, [1907] 2 K. B. 489. 
(J) Harris v. Brisco, 17 Q. B. D. 504 [C. A.]. 



Definition. 141 

(5) In a recent case the plaintiff contemplated laying Art. 66. 

out land on the south coast as a building estate and offered 

a prize for a suitable name for the intended resort. He '^pecial 
offered also consolation prizes of freehold building plots, 
subject to the payment by the winners of these of three 
guineas for the conveyance of their respective plots to them . 
Defendants in their newspaper alleged the competition was 
not bond fide, and that the prizes really were sales of the 
land at a profit. Defendants offered to take legal proceed- 
ings at their own expense on behalf of consolation prize 
winners to recover the three-guinea fees. Two actions were 
brought by defendants' solicitors in this behalf and were 
successful. Plaintiff sued defendants for libel and mainten- 
ance. No special damage was shown by the plaintiff. It 
was held : (1) The success of the maintained action did not 
deprive plaintiff of his right of action for maintenance : 
(2) but his failure to prove special damage caused his action 
to fail [g). 

(g) Neville v. London Express Newspaper, Limited, [1919] A. C. 
368. 



CANADIAN NOTES. 141a 



CANADIAN NOTES TO CHAPTER III. OF PART II. 

Article 66. 

Malice, in the sense of improper motives directed against 
the plaintiff, is an essential element in the action for main- 
tenance. In Newsivander v. Giegeridi (1907), 39 S. C. R. 
354, the defendant had assisted one Briggs, an impecunious 
man, to bring an action, which proved successful, against 
the plaintiff for recovering a share in a mining claim. The 
agreement was champertous, and an action which the 
defendant brought against Briggs upon the agreement was 
therefore dismissed. In the present case, however, the 
jury found that Giegerich " did not enter into the litiga- 
tion for the purpose of stirring up strife and litigation," 
and that he had not solicited Briggs to undertake it. Upon 
these findings the Supreme Court, after a careful review 
of the authorities, held that the plaintiff's appeal must be 
dismissed. 



( 143 



CHAPTER IV. 
OF HARBOURING AND SEDUCTION. 

Art. 67. — Enticing and Harbouring. 

Every person is liable to an action for 
damages who wilfully assaults or entices away 
another's wife or servant, or knowingly harbours 
a wife or a servant who has wrongfully quitted 
his or her master's service («). 

The gist of the action for enticing away or harbouring 
a wife or servant is loss of society of the wife or of the 
services of the servant. Formerly actions were sometimes 
brought for beating a wife or servant, whereby the husband 
or master lost the society or services of his wife or servant. 
Actions of this sort are now rarely brought. 

It seems that in the case of a servant (where the action 
is not brought by a parent or other person in loco parentis) , 
the only damages recoverable are the actual pecuniary loss 
which the jjlaintiff suffers (6) . 

A master whose servant is injured by the negligence of 
the defendant may, it seems, sue for damages for loss of 
service, unless the injuries have 'caused the immediate 
death of the servant (c). 



(a) Winsmore v. Greenbank, Willes, 577 ; Smith v. Kaye, 20 T.L.R. 
261 ; Blake v. Lanyon, 6 Term Rep. 221. 

(6) McKemie v. Hardinge, 23 T. L. R. lo. In this case tlie de- 
fendant seduced a servant of the plaintiff so that she became preg- 
nant and the plaintiff lost her services ; Frederick Wilkins t& liron., 
Limiteriv. Weaver, [1915] 2 Ch. 322 — a case of knowingly harbouring 
a servant during a breach of contract of service. 

(c) Berringer v. Great Eastern Rail. Co., 4 C. P. D. 103 ; Clark v. 
London General Omnibus Co., [190G] 2 K. B. 048 [C. A.]. See ante, 
p. 71, note (t). 



144 



Of Harbouring and Seduction. 



Art. 68. Art. 68. — The ordinary Action for Seduction. 

(1) A parent may bring an action for damages 
against one who seduces his daughter whilst she 
is in his service, whereby lie is deprived of her 
services. 

(2) The plaintiff must prove (a) that the 
female seduced was at the time of the seduc- 
tion in his service, actual or constructive {d) ; 
(b) that he lost her services, either by reason of 
her pregnancy and confinement, or by reason 
of her being kept away by the persuasion of the 
defendant (e). 

(3) A daughter is constructively in her father's 
service if she lives at home and performs in fact 
any slight services (f). 

(4) A daughter under the age of twenty-one, 
unmarried and not in other service, is presumed 
to be in the service of her parents {g). 

The ordinary action for seduction is founded on the action 
for assaulting or enticing away a servant. Accordingly, it 
is always necessary to prove that the female seduced was in 
the service of the plaintiff, and that in consequence of the 
seduction the plaintiff lost her services. The substance of 
the action, however, is not the loss of services, but the 
injury done to the female seduced and to the honour of her 
family. She cannot bring an action herself, for she must 
have given her consent to the connexion, and volenti non fit 
injuria. Hence the action must be brought by someone 
who has been deprived of her services by the wrongful act 
of the seducer. 

(d) Davies v. Williams, 10 Q. B. 725; Peters v. Jones, [1914] 
2 K. B. 781. 

(e) Hedges v. Tagg, L. R. 7 Ex. 283 ; Evans v. Walton, L. R. 2 
C. P. 615. 

(/) Peters v. Jones, supra. 

(g) Harris v. Butler, 2 M. & W. 5.39, 542 ; Terry v. Hutchinson 
(1808), L. R. 3 Q. B. 599. 



Foundation 
of action 
loss of 
service. 



The Ordinary Action for Seduction. 145 

Accordingly, the plaintiff in an action for seduction must Art. 68. 
always prove — 

(i) That the female seduced was in his service, actual or 

constructive, at the time of the seduction. 
(ii) That by reason of her confinement or otherwise, he 

was deprived of her services. 

The action may be brouglit not only by a parent, but by Who can 
anyone in loco parentis, such as a person who has adopted bring 
the girl as his daughter, or a brother or an aunt with w^hom 
the girl makes her home {h). It is not necessary that the 
female seduced should have been under a contract of service 
with the plaintiff, it is enough that she lived in his house 
and in fact performed services. 



of service. 



(1) Thus, the plaintiff's daughter was in service as a Illustrations, 
governess, and was seduced by the defendant whilst on a Evidence 
three days' visit, with her employer's permission, to the 
plaintiff, her widowed mother. During her visit she gave 
some assistance in household duties. At the time of her 
confinement she was in the service of another employer, 
and afterwards returned home to her mother : — Held, that 
there was no evidence of service at the time of the seduction. 
And by Kelly, C.B., and Martin and Bramwell, BB., 
that the action must fail also on the ground that the con- 
finement did not take place Avhilst tlie daughter was in 
the plaintiff's service (i). 

(2) When a girl was seduced whilst living at home with 
her father and mother, but the father died before her 
confinement, it was held that the widowed mother could 
not bring an action against the seducer, as the girl was not 
in her service at the time of the seduction, but in that of 
the father {k). 

(3) In the case of a daughter living at home, such small 

{h) See note to Fore.s v. Wil.sox, 1 Peake, 55, 56 ; Murray v. Fitz- 
r/eralfl, [1900] 1 1. R. 254 [C. A.]. 

(0 Iledijcs V. I'ar/g, L. R. 7 Ex. 283 ; of. Terry v. Hutchinson 
(1808), L. K. 3 Q. B. 599. 

(k) Hamilton v. Loyuj, [1903] 2 I. R. 407 ; affirmed, (1905] 2 1. R. 
552 [C. A.]. 

h 



146 



Of Harbouring and Seduction. 



Art. 68. services as milking, or even making tea, are sufficient 
evidence of service (Z). 

(4) Where a girl was in the defendant's service when 
seduced by him, but was allowed to go home for an after- 
noon and evening twice a week, and on those occasions 
assisted in household work and in looking after the other 
children, it was held that the relationship of master and 
servant did not exist between the plaintiff and the daughter 
so as to support an action for seduction (m). 

(5) And where the daughter at the time of the seduction 
is acting as housekeeper to another person, the action 
will not lie (n) ; not even when she partly supports her 
father (o). 



Daughter 
under age. 



Action by 
brother. 



(6) The plaintiff's daughter, being under age, left his 
house and went into service. After nearly a month, the 
master dismissed her at a day's notice, and the next day, 
on her way home, the defendant seduced her. It was held, 
that as soon as the real service was put an end to by the 
master, whether rightfully or wrongfully, the girl intending 
to return home, the right of her father to her services 
revived, and there was, therefore, sufficient constructive 
service to maintain an action for the seduction (p). 

(7) When the child is only absent from her father's house 
on a temporary visit, there is no termination of her services, 
provided she still continues, in point of fact, one of his 
own household (q). 

(8) When an orphan girl, who lived on a farm with her 
younger brother and managed the house for him, was 
seduced, it was held that there was sufficient relation of 
master and servant to enable him to bring an action and 
recover general damages against the seducer (r). 

[l) Bennett v. Allcott, 2 Term Rep. 1C6 ; Carr v. Clarke, 2 Chit. R. 
260. 

(m) Whitbourne v. Williams, [1901] 2 K. B. 722 [C. A.]. See also 
Thompson v. Ross, 5 H. & N. 16. 

(n) Dean v. Peel, 5 East, 45. 

(o) Manley v. Field, 29 L. J. C. P. 79. 

{p) Terry v. Hutchinson, L. R. 3 Q. B. 599. 

[q) Griffiths v. Teetgen, 15 C. B. 344. 

(r) Murray v. Fitzgerald, [1906] 2 I. R. 254 [C. A.]. 



Damages in Ordinary Action for Seduction. 147 

Art. 69. — Misconduct of Parent. Art. 69. 

If a parent has introduced his daughter to, or 
has encouraged, profligate or improper persons, 
or has otherwise courted his own injury, he has 
no ground of action if she be seduced. 

Thus, where the defendant was received as the daughter's 
suitor, and it was afterwards discovered by the plaintiff that 
he was a married man, notwithstanding which he allowed 
the defendant to continue to pay his addresses to his 
daughter on the assurance that the wife was dying, and 
the defendant seduced the daughter : it was held, that the 
plaintiff had brought about his own injury, and had no 
ground of action {s). 



Art. 70.— Damages in ordinary Action for 
Seduction. 

(1) In cases of seduction, in addition to the 
actual damage sustained, including any expenses 
incurred through the daughter's illness, damages 
may be given for the loss of the society and 
comfort of the daughter who has been seduced, 
and for the dishonour, anxiety, and distress 
which the plaintiff has suffered {t). 

(2) Where more than ordinarily base methods 
have been employed by the seducer, the damages 
may be aggravated. On the other hand, the 
defendant may show, in mitigation of damages, 
the loose character of the girl seduced. 

(3) The right of action is barred after six 
years {u). 

{s) Reddie v. Scoolt, 1 Peake, 240. 

(I) Bedford V McKowl, 3 Esp. 119 ; Terry v. Hutchinson, L. R. 
3 Q. B. 599. 

(u) 21 Jac. I. 0. 10. s. 3. 



148 



Of Harbouring and Seduction. 



Art. 70. 



Aggravation 
of damages. 



Mitigation 
of damages. 



(1) Thus, as was observed by Lord Eldon, in Bedford v. 
McKowl {x), " although in point of form the action only 
purports to give a recompense for loss of service, we cannot 
shut our eyes to the fact that it is an action brought by a 
parent for an injury to her child, and the jury may take 
into their consideration all that she can feel from the nature 
of the loss. They may look ujjon her as a parent losing the 
comfort as well as the service of her daughter, in whose 
virtue she can feel no consolation ; and as the parent of 
other children whose morals may be corrupted by her 
example." Damages given by a jury for this kind of tort 
will, therefore, rarely be reduced by the court on the ground 
that they were excessive. 

(2) A fortiori will this be the case where the seducer has 
made his advances under the guise of matrimony. As was 
said by Wilmot, C.J., in a case of that character : " If the 
party seduced brings an action for breach of promise of 
marriage (//) , so much the better. If much greater damages 
had been given, we should not have been dissatisfied there- 
with, the plaintiff having received this insult in his own 
house, where he had civilly treated the defendant, and 
permitted him to pay his addresses to his daughter " (2). 

(3) On the other hand, the defendant may, in mitigation 
of damages, call witnesses to prove that they have had 
sexual intercourse with the girl previously to the seduc- 
tion {a). And, generally, the previous loose or immoral 
character of the girl seduced is ground for mitigation ; as, 
for instance, the using of immodest language or submitting 
herself to the defendant under circumstances of extreme 
indelicacy. 

(X) 3 Esp. 119. 

(y) The loss caused to the plaintiff by breach of a promise to marry, 
however, is not to be taken into consideration, for that is a civil 
injury to her and not to the father. 

(2) TulUdge v. Wade, 3 Wils. 18. 

(a) Eager v. Grimwood, 16 L. J. Ex. 236 ; Verry v. Watkin-i, 
7 C. & P. 308. 



CANADIAN NOTES. 148a 



CANADIAN XOTES TO CHAPTER IV. OF PART II. 

Articles 67-TO. 

In Canada the law relating to seduction has been some- 
what complicated by provincial legislation. The follow- 
ing statutes should be consulted: P. E. I., 1876, c. 4; 
1877, e. 6; 1895. c. 5; R. 8. Ont. (1914), c. 72; R. S. Man. 
(1913), c. 177; R. S. Sask. (1909), c. 139; Alta. C. 0. 
(1915), c. 117; N. W. T., 1903 (2), c. 8. 

These statutes aim in part at relieving the parent from 
the necessity of proving service, and in part at giving a 
right of action to the seduced woman herself. The first 
of these two objects tends to simplify and rationalise 
the law by clearing the real cause of action from the 
encumbrance of an unreasonable fiction. The second object 
tends to create new difficulties, because it violates the well- 
known principle of volenti non fit injuria. The following- 
cases may be referred to : — 

Sfoner v. Skeene (1918), 44 Ont. L. R. 609; Collard 
V. Armstrong (1913), 6 Alta. L. R. 187: Brown v. Noktn 
(1917), 1 W. W. R. 1463. 

A widow is not an " unmarried female " within the pro- 
tection of the statutes: Cambridge v. Satherland (1914), 
8 Alta. L. R. 25. 

Under the Quebec law the ])arent has a right of action 
against the seducer of his daughter, irrespective of any 
question of service, and the girl herself has a right of 
action where the seduction has been accomplished under 
jiTomise of marriage and followed by pregnancy: see 
Mallin V. Bogie (1893), 3 Que. S. C. 34. 

In connection witli this subject the student should 
observe that tlic obi action for "criminal conversation,'' 
which was abolished in England hy the Divorce Act of 
1857, still exists in Canada. For modern examples see 
Bannviler v. Thompson. (1914), 32 Ont. L. R. 34; Zdrahal 
V. Hhatneg (1912), 22 Man. L. R. 521 ; 7 D. L. R. 55-1. 
The damages slidiild be coni[»ensatory and not punitive: 
Iiervex. J)oi,nNl(jiir { I!tl'.\), 7 I). L. R. 787. 



14.S1) CANADIAN NOTES. 

The Imsbaiul or parent may maintain an act inn a.uainst 
a defendant wlio induces his wife or (hiu^hter to h'ave her 
home, even where there is no evidenee of any inniioral 
relationship iia\in,u- taken phice : \'i(ii J)orn v. Fclqer 
(1918), M Aha. L. 1{. 110; Wallers v. Moore, |i;)19J :] 
W. W. E. 806 ; 50 J). L. R. 336. For a general discussion 
of the law on this subject see Osborne v. Clark (1919), 45 
Out. L. R. 594, 48 I). L. R. 558, where the husband failed 
in an action against his wife's parents, who took lier away 
with her own consent in the interests of her health. 

It has been much disputed on this continent whether 
the action for criminal conversation is available to tlie 
wife since the {)assing of the various Acts relating to the 
emancipation of married women. In Lellls v. Lmnherl 
(1897), 24 Ont. App. R. 653, this question is answered 
in the negative, and the decision has been followed in 
Ontario. The })roblem does not seem to have arisen in any 
other province. In most of the American states the wife 
is now granted the action, Init the jurisprudence is not 
quite unanimous. 

In Quebec the husband has a right of action against the 
seducer of his wife: St. Laurent v. Ilaniel (1892), 1 Que. 
K. B. 438. In all probability a corresponding right on 
the part of the wife would not be recognised. 

In the United States the principle of the action for 
seduction has sometimes been ap])lied to other injuries. In 
1918 the New York Court of Appeals held that a mother 
was entitled to recover damages from a defendant who 
injured her son's health by selling him drugs in contraven- 
tion of the law : Tidd v. Skinner, 225 N. Y. 422 ; 122 N. E. 
247; 3 Am. L. R. 1145. 

In criminal conversation cases the Statute of Limitations 
does not begin to run against the plaintift' so long as the 
adulterous intercourse continues: King v. BaUey (1901), 
31 S. C. R. 338. 



( 149 ) 



CHAPTER V. 
TRADE MOLESTATION. 

Art. 71. — Inducing Breach of Contract. 

A PERSON who knowingly and without lawful 
justification induces another to break a sub- 
sisting contract with a third person whereby 
that third person suffers damage, commits a 
tort at common law {a). 

This proposition of law was established after a good deal Comment, 
of controversy by the cases cited in the note. It was at one 
time supposed that though an action lay for inducing a 
menial servant to break his contract of service, the rule 
did not api^ly to other contracts ; but by successive stages 
the rule has been extended to all contracts, such as a 
contract with an opera singer, or a contract to sell goods (6). 

The rule is confined to cases where the defendant has 
induced someone to break a contract. 

In connection with actions of the kind discussed in this The Trade 

Article, the effect of the Trade Disputes Act, 1906 (c), must ^^^P"^®^^ 

Act 1906 
be considered. That Act, besides enacting that no court 

shall entertain any action of tort against a trade union [d) , 

provides (e) that : " An act done by a person in contem'pla- 

fion or furtherance of a trade dispute shall not he actionable 

on the ground only that it induces some other person to break a 

contract of employment.''' 

This section gives no protection to persons who induce 
breaches of contract by threats or violence, for then there 

(a) Lurnlny v. Gye, 2 E. & B. 21t) ; Temperton v. Rusfiell, [189.3] 
1 Q. B. 71.5 [C. A.] ; Quinn v. Leathern, [1901] A. C. 510. 

(b) See the Illustrations. (c) 6 Edw. J, c. 47. 
(d) Ibid., s. 4. See ante. Art. 21. (e) By ibid., s. :{. 



150 

Art. 71. 



Examples. 

Lumley v, 
Gye. 



Temperton 
V Rtissell. 



Procuring 
breach of 
contract 
by fraud. 



Trade Molestation. 

is some other ground of action besides the ground that 
" it induces some person to break a contract." But it 
changes the law in this respect, that if the inducement to 
break a contract bo without threat or violence, then this is 
no longer actionable if it is done " in contemplation or 
furtherance of a trade dispute" (/). The fact that trade 
union officials take part in a dispute does not make it a 
trade dispute {g). 

(1) The plaintiff agreed with a famous singer to perform 
in an opera. The defendant, a rival manager, offered the 
singer a large sum of money to break her contract with 
the plaintiff and sing for him. Assuming that there was 
an actual contract of service, a breach of which the de- 
fendant had knowingly brought about, and the plaintiff 
had thereby suffered damage, there was a good cause of 
action (h). 

(2) In order to induce the plaintiff to carry on his trade 
in a particular manner, agreeably to the wishes of a trade 
union, the defendants induced B. to break a contract he 
had with the plaintiff for the supply of building materials. 
The plaintiff thereby suffered damage and the defendants 
were held hable {i). 

(3) The plaintiff's sold their goods wholesale to factors 
who entered into agreements with them not to sell them 
to dealers on the plaintiffs' "' suspended list." The defen- 
dants employed agents to obtain the plaintiffs' goods for 
them from these factors by falsely rejjresenting that they 
were independent dealers and deahng in fictitious names. 
By these fraudulent means the defendants induced the 
factors to break their agreements with the plaintiffs, and 



(/) Per Lord LoREBtmN in Conway v. Wade, [1909] A. C. 506, 
511. As to what is a trade dispute, see that case and the definition 
in the Trades Disputes Act, 1906, s. 5 (3) ; and see Valentine v. Hyde, 
[1919] 2 Ch. 129 ; Hodges v. Webb, [1920] 2 Ch. 70. 

(g) Larkin v. Long, [1915] A. C. 814. 

{h) Lumley v. Gye, 2 E. & B. 216, followed and approved in Court 
of Appeal in Bowen v. Hall, 6 Q. B. D. 333 [C. A.], and approved by 
the House of Lords in Quinn v. Leathern, [1901] A. C. 495. 

(t) Temperton v. Russell, [1893] 1 Q. B. 715 [C. A.]. 



Inducing Breach of Contract. 151 

as they had interfered, without justification, with the Art. 71. 

contractual relations between the plaintiffs and the factors, 

and the plaintiffs had thereby suffered damage, they had 
a cause of action against the defendants {k). 



Art. 12.- — Molestation hy Inducements not to 
Work, not to Employ, and not to Trade with. 

(a) One who intentionally and without suffi- 
cient justification, by threats, intimidation, 
molestation or violence, induces persons not to 
work for or trade with another whereby that 
other suffers damage, commits a tort at common 
law {I). 

(1) The plaintiffs were endeavouring to trade ^^dth natives Examples. 
on the coast of Calabar. The. defendant fired a cannon Molestation, 
at the natives in order to drive them away and thereby 
deterred them from trading Avith the plaintiffs. This was 

held actionable [m). 

(2) The plaintiff was a stone-mason. The defendant 
was held Uable for threatening his workmen and customers 
with mayhem and suits so that they desisted from doing 
business with the plaintiff [n). 

(b) Combination to advance self-interest or 
to injure another's interests by acts which those 
combining are entitled by law to do individually, 
is not actionable at the suit of a party whose 
interests are thereby injured. And combina- 
tion, even to harm another by the exercise in a 
lawful manner of a right which is a legal right 

{k) National Phonograph Co. v. Edison Bell Consolidated Phono- 
graph Co., [1908] 1 Cli. 335 [C. A.]. 

(l) Quinn v. Leathern, [1901] A. C. 495 ; Pratt v. British Medical 
Associfition, [1919] 1 K. B. 244. 

(m) Tarleton v. M'Oawley, 1 Peake, 205. 

(n) Oarret v. Taylor, Cro. Jac. 567. 



Trade Molestation. 



Art. 72. of each person so combining, gives no ground of 
action to the party injured (o). 

(3) The plaintiffs were shipwrights eiuplojed " for the 
job " on the repairs to the woodwork of a ship, but were 
liable to be discharged at any time. Some ironworkers who 
were employed on the ironwork of the ship objected to the 
plaintiffs being employed, on the ground that they had 
previously worked at ironwork on a ship for another firm, 
the practice of shipwTights working on iron being resisted 
by the trade union of which the ironworkers were members. 
The defendant, who was a delegate of the union, was sent 
for by the ironworkers, and informed that they intended to 
leave oft' working. The defendant then warned the employers 
that, unless the 'plaintiffs were discharged, all the iron- 
workers would he called out on strike, and that wherever 
the shipwTights were employed the iron men A\ould cease 
w^ork. The employers accordingly discharged the plaintiffs, 
i.e., lawfully terminated their engagement and refused to 
re-engage them. They broke no contract in so doing. 
The plaintiffs thereupon sued the defendant, and the jury 
found that he had mahciousl}^ induced the employers to 
" discharge " the plaintiffs, and gave damages. The 
House of Lords, however, by a majority, dismissed the 
action, on the ground that the defendant had violated no 
legal right of the plaintiffs, and done no unlaA\'ful act in 
merely ivarning the employers of the consequences of their 
continuing to employ the plaintiffs ; and that therefore 
his conduct, however malicious or bad his motive might be, 
was not actionable (o). 

Note that no threats, violence or intimidation were used 
by the defendant. He only Avarned them of danger which 
would result from continuing to employ the plaintiffs. 

(c) In the presence or absence of combination 
where illegal means are employed either to 
advance the lawful trade or other interests of 
the person or persons emplojdng such means or 

(o) Mayor of Bradford v. Pickles, [1895] A. C. 598. 601 ; Mogul 
S.S. Co. V. McGregor, Goto <&: Co., [1892] A. C. 25 : Allen v. Flood, 
[1898] A. C. 1 ; Davies v. Thomas, [1920] 2 Ch. 189. 



Molestation by Inducements, etc. 153 

to injure the interests of another, the employ- Art. 72- 
ment of such means gives the injured party a 
right of action (p). 

(d) No combination can be a conspiracy 
unless it is an agreement between two or more 
persons to do an unlawful act or to effect a 
lawful purpose by unlawful means (p). 

(4) In Quinn v. Leathern the defendants were guilty 
of an illegal act in that they used threats and coercion of 
the plaintiff's customers and thereby infringed the liberty 
of action of these latter {q) , and similarly in Pratt v. British 
Medical Association the defendants were guilty of illegal 
acts in using coercion of their own members by threat 
of ostracism of each member (similar to that inflicted on 
the plaintiffs) who failed to comply with the dictated 
policy of the Association. 



Art. 73. — Unfair Coinpetition. Passing Off. 

A trader who gets up, describes or marks his 
goods in such a way as would be calculated to 
deceive an ordinary purchaser into thinking 
they are the goods of another, so that he would 
be likely to secure part of the custom of that 
other, commits a tort, and is liable in damages 
or to be restrained by injunction. 

Actions of this kind must not be confused with actions Comment, 
for infringement of trade- marks, the right to enjoy which 
is statutory. The wrongs we are now discussing are torts 
at common law for Avhich an action can be brought for 
damages (r), though the remedy sought is generally an 
injunction in the Chancery Division. 

(p) Quinn v. Leaihem, [1901] A. C. 49.") ; Pratt v. British Medical 
Association, [1919] 1 K. B. 244. 

(q) Quinn v. Leathern, [1901] A. C. 495; see judgment of Lord 
LiNDT.KV, at p. .5.39. 

(r) Blofield v. Payne, 4 B. & Ad. 410 ; Rorlgcrs v. Nowill, 5 C. B. 
J 09 ; Reddaway v. Banham, [189()] A. C. 199. 



154 



Trade Molestation. 



Description. 



Use of one's 
own name. 



Art. 73. Where a trader gets up his goods as those of another it 

: is not necessary to prove that he does so fraudulently with 

goods^as° intent to deceive, or that anyone is in fact deceived (s). 
those of " All that it is necessary to prove is that the defendants' 

another. goods are SO marked, made up, or described by them as to 

be calculated to deceive ordinary purchasers, and to lead 
them to mistake the defendants' goods for the goods of the 
plaintiffs," even though the description is true as to the 
nature of the goods or their locality of manufacture {t), 
for " no man can have any right to represent his goods 
as the goods of another person " (u). 

When a person assumes a name which does not belong 
to him he will be restrained from doing so if the result 
would be calculated to deceive (x). 

Generally speaking, a man may use his owti name, even 
though his goods may in consequence be mistaken for 
those of another (y). When a person assumes a name 
which does not belong to him, he will be restrained from 
doing this, if his so doing would be calculated to deceive {x). 
And a man may even be restrained from using his o\\ti 
name, if it is clearly proved that he is using it ^Wth the 
fraudulent intent of attracting the custom of a rival, but 
not otherwise. For prima facie a man has a right to use 
his o^Ti name (z). 

Illustrations. (1) Actions have been brought successfully by an in- 
Get up -of ventor of metalHc hones against another trader who 
goods. -RTapped his in envelopes resembhng the plaintiff's (a) ; 

(s) Warwick v. Neiv Motor Co., Ltd., [1910] 1 Ch. 248 ; Ewing 
V. Buttercup Margarine Co., [1917] 2 Ch. 1 ; Pulltnan v. Pullman 
(1919), 36 R. P. C. 240. 

{t) Per LiNDLEY, L.J., in Reddaway v. Bentham Hemp Spinning 
Co., [1892] 2 Q. B. 639 [C. A.], at p. 644; ''Singer" Machine 
Manufacturers V. Wilson, 3 App. Cas. 376 ; Montgomery v. Thompson, 
[1891] A. C. 217 ; Edge v. Niccolls, [1911] A. C. 693. 

(u) Per Halsbury, L.C, in Biryningham Vinegar Brewery Co. 
V. Powell, [1897] A. C. 710, at p. 711, quoting from TtTRNER, L.J., 
in Burgess v. Burgess, 3 De G. M. & G. 896. 

(x) F. Pinet et Cie v. Maison Louis Pinet, Limited, [1898] 1 Ch, 
179. 

(y) Turton v. Turton, 42 Ch. D. 128 [C. A.]. 

(2) Burgess v. Burgess, 3 De G. M. & G. 896. 

(a) Blofield v, Payne, 4 B. & Ad. 410. 



Unfair Competition. Passing Off. 155 

by makers of camel-hair belting against defendants who Art. 73. 

made similar belting, which they described quite truly 

but using the name used by the plaintiffs, i.e., camel-hair 
belting. It was held that the term " camel-hair belting" 
had come to indicate to the pubhc the plaintiffs' article, 
and therefore such use by defendants in fact deceived the 
pubhc, and an injunction to cease such description was 
granted against the defendants (b) ; and by brewers at 
Stone of a drink known as " Stone Ale," against another 
firm of brewers who also manufactured ale at Stone and 
sold it as " Stone Ale "(c). 

(2) Though the plaintiffs had for many years carried on Similarity- 
business as steel manufacturers under the style of Thomas °^ name. 
Turton & Sons, it was held they could not prevent a firm 
consisting of John Turton and his two sons from carrying 
on a similar business under the name of John Turton & 
Sons, that being a true description of the firm, and there 
being no evidence of any attempt to deceive the pubhc (d) ; 
but where a person assumed as his name the name of a 
manufacturer of boots and shoes with the object of making 
boots and shoes and passing them off as those of the old- 
estabUshed firm, he was restrained from using the name in 
connection with the sale of boots and shoes (e). 

(6) Reddaway v. Banham, [1896] A. C. 199. Note the effect of 
the Trade Marks Act, 1919, s. 6. 

(c) Montgomery v. Thompson, [1891] A. C. 217. 

(d) Turton v. Turton, 42 Ch. D. 128 [C. A.]. 

(e) F. Pinet et Cie v. Maison Louis Pinet, Limited, [1898] 1 Ch. 
179 ; and see the still stronger case where the plaintiff had no place 
of business here yet was granted an injunction (Poiret v. Poiret 
(Jules), Limited, <&; Nash (1920), 37 R. P. C. 177). 



CANADIAN NOTES. 155a 



CANADIAX NOTES TO CHAPTER V. OF PART II. 

Articles 71 axd 72. 

The Canadian cases upon trade union activities raise 
the same kind of difficult problems as have arisen in 
England. It should, however, be observed that the provi- 
sions of the English Trades Disputes Act of 1906 have 
not been adopted by any Canadian province, and that the 
question therefore still remains open for the application 
of purely legal principles. 

Since the publication of the text the English Court of 
Appeal has decided the case of Ware £ de Freville v. 
British Motor Trade Association (1921), 3 K. B. 40, in 
which the learned judges have frankly expressed the diffi- 
culty which most students have felt in reconciling the 
various English decisions. The wrong complained of was 
a scheme by which the defendants organized a commercial 
boycott of any dealers who sold certain makes of cars at 
prices different from those sanctioned by the Association. 
The Court of Appeal lield that this gave no right of action 
to the plaintiffs, who had been boycotted in accordance with 
the rules. 

The right of action in cases where the defendant induces 
a breach of contract is now well established. In all other 
cases I would submit that no cause of action is disclosed 
where A., B., and C. agree to do acts which, if done inde- 
pendently, would be within the legal rights of each one. 
For example, they cannot be made liable for refusing to deal 
with X., or for persuading others not to deal with X., or 
for socially ostracising X. If, however, they cannot ett'e(;t 
their common object without libelling X., or without com- 
mitting some of the acts prohibited by section 501 of the 
Criminal Code, then they are guilty of a tort. This would 
appear to be the princijjle of the decision in Ware's Case, 
a pronouncement which should be of valuable assistance in 
clearing up this confused and diiriciilt braiicli of the law. 
The difficulty in these cases has liccii cicatcd hy the 
attemfit of the courts to give an unwarrantably extended 
]neariiii<r to the word "coercion." If the law were to be 



155b CANADIAN NOTES. 

^fathered 6iitir('ly ivom the decisions cited in note [o) on p. 
152, it would be clear and intellifi^ible. Unfortunately some 
judges have been tempted to strain the meaning of " coer- 
cion " in order to hold that it is an actionable wrong for 
men to threaten to do things which they are legally at 
liberty to do. 

The Canadian cases are not entirely consistent, but for 
the most part appear to be in accord with the principle 
suggested above. In Cotter v. Oshonie (1909), 18 Man, 
L. R. 471, the defendants were guilty of acts prohibited 
by section 501 of the Criminal Code. In Krug Furniture 
Co. V. Berlin Cnion of AniaJganiated Woodirorkers ( 1 !)();>), 
5 Ont. L. R. 46;5, they had induced workmen to break their 
contracts. In Jose v. Metallic Roofing Co. (1908), A. C. 
514, the Privy Council corrected the Ontario Court of 
Appeal (14 Ont. L. R. loG), and held that the union could 
liot be made liable for passing a strike resolution, though it 
resulted in a strike, unless they had in addition been guilty 
of some unlawful act. See also Gralnnn v. Knoit (1908), 
14 B. C. R. 97. 

On the other hand, in W'illianis v. Local Union No. 1562 
of U. M. W. A. (1919), 14 Alta. L. R. 251, a decision was 
rendered in favour of plaintiffs, who had been dismissed 
fi'om their employment under threat of a strike. The 
Court of Appeal was equally divided upon the question, 
and there is strong reason for holding with the dissentient 
judges that the case was governed by the principle of 
Allen V. Flood. An appeal to the Supreme Court was dis- 
missed (59 S. C. R. 240), so far as the individual defend- 
ants were concerned, Duff, J., dissenting. The whole case 
is a striking example of the confused state of judicial 
opinion upon this ])roblem, a confusion which Ware's Case 
may do much to remedv. 

in Heinrirhs v. Wi^ns (1917), 1 W. W. R. 306; 31 D. 
li. R. 94, the plaintiff, a member of a Mennonite congrega- 
tion, had been boycotted aiul injured commercially in 
consequence of an excommunication j)ronounced against 
him by the local bishop. The boycott was in accordance 
with the rules of the sect, but the bishop's decision had been 
given owing to the ])laintiff''s refusal to settle a money 
claim, which the civil courts subsequently found to be 
unjustified. Upon these facts it was held that he had a 
right of action against the bishop and other church officers. 
The decision can be supported on the ground that the 



CANADIAN NOTES. 155c 

plaintiff had been wrongfully expelled from membership, 
and was entitled to rectover damages for the injury thereby 
sustained, but it should not be read as an authority for 
holding that the agreement of the congregation to have no 
dealings with an excommunicated member gave him any 
cause of action. 

The principle of Allen v. Flood was applied by the 
Supreme Court in the Quebec case of PerrauU v. (iauilixer 
(1898), 28 S. C. R. 241, where the plaintiff had been 
driven out of his employment by a strike. Taschereau and 
Girouard, JJ., made it clear that the doctrine qui jure siio 
utitur neminem laedit applies equally in civil and in com- 
mon law. 

Article 73. 

Apart from the violation of statutory rights, the essence 
of the wrong in these cases consists in the diversion of the 
plaintiff's trade by words or signs likely to deceive the 
public. 

In Pahst Brewing Co. x. Fleers (1902), 21 Que. S. C. 
545, the defendants had for many years sold beer, admit- 
tedly brewed in Montreal, as " ^lilwaukee Lager." At a 
later date the plaintiffs, who were a Milwaukee firm, began 
to sell beer in Canada, and sought an injunction to restrain 
the defendants from continuing to use the name of Mil- 
waukee on their bottles. The evidence shewed that the 
defendants had never concealed the fact that their beer 
was brewed in Montreal, and the action was dismissed. 

In Boston Rubber Shoe Co. v. Boston Rubber Co. of 
Montreal (1902), 32 S. C, R. 315, the dispute turned upon 
tbe use of the word "Bostons" as descriptive of certain 
goods. Although there could ])e no property in such a word, 
t!ie facts shewed a clear attempt on the part of tbe defend- 
ants to pass off their goods as being those of the plaiiitifi' 
company, and an injunction was granted. 

So again in ".1/;/ Valel,- Lid. v. Winters (1913), 29 
Out. L. R. 1 : 13 D.L. K. 583, the defendant was restrained 
from describing his clothes pressing establishment as " My 
New Valet," since bis action was an obvious attempt to 
secure part of the plaintiff's custom by the use of that 
name. 



( 157 ) 



CHAPTER VI. 
OF DECEIT OR FRAUD. 

Art. 74. — Definition of Fraud. 

Fraud consists of a false representation made 
with intent to deceive and to be acted upon, and 
either known by the party making it to be false, 
or made without behef in its truth, or recklessly 
without caring whether it be true or false. 

The general rule of law is, that mere silence 
with regard to a material fact will not give a 
right of action for fraud, and no action can be 
maintained on deceit which does not in fact 
deceive {a). 

The essentials of actionable deceit are : (1) A false state- Essentials of 
ment of fact ; (2) made recklessly or with knowledge of actionable 
its falsity ; (3) with intent plaintiff shall act on it (6) ; ^ ^^^^ ' 
(4) that plaintiff has so acted (c) ; (5) that plaintiff therebj^ 
suffered damage. 

Though it is generally true to say that there must be When 

active fraud, nevertheless there may be statements of a silence 

£ , Til p , 1 1 , amounts to 

iragmentary character, true as far as they go, but so fraud. 

distorted as to convey a wholly erroneous impression ; 
and statements of that kind made with intent to deceive 
may amount to fraudulent statements although hterally 
true. " Supposing you state a thing partially, you make 
as much a false statement as if you misstated it altogether. 
Every word may be true, but if you leave out something 
which quaUfies it, you make a false statement. For in- 
stance, if pretending to set out the report of a surveyor. 

(a) Hor-sfaU v. Thomas (1862), 1 H. & ('. 90. 

(b) Peek v. Gurncy (1873), L. R. 6 H. L. .377 ; Tackcy v. McBain, 
[1912] A. C. 186. 

(c) Smith V. Chadwick, L. R. 9 App. Cas. 187. 



Of Deceit or Fraud. 



Art. 74. you set out two passages in his report and leave out a 
third passage which quahfies them, that is an actual mis- 
statement " {d). 

The leading case of Derry v. Peek {e) estabhshes that, in 
an action of deceit, the plaintiff must prove actual fraud ; 
he may prove it by showing that the false representation 
was made knowingly, or without beHef in its truth, or 
recklessly, not caring whether it was true or false. But an 
untrue statement made through carelessness, and without 
reasonable ground for believing it to be true, does not 
amount to fraud ; and if the jury finds that it was made 
in the honest belief that it was true, the defendant will 
not be liable in an action of deceit, however unreasonable 
his behef may have been. No amount of negligence can 
amount to fraud {e). 

(1) The false statement must be of a fact (/) not a mere 
promise ; but a statement of opinion if AvilfuUy false is 
actionable as a tort {g) . 

(2) It must be made recklessly, that is wdthout an honest 
beUef in the truth of the statement {h), but not merely 
negUgently (t). 

(3) The right of action is confined to the person intended 
to act on the statement (who need not be the person to 
whom the statement is made (/) ), others must act at their 
owTi risk. But purchasers of shares relying on a prospectus 
have a good cause of action {j). 

(4) It is essential that the plaintiff be influenced by 
the untrue statement (k) and that he acted as a result 

(d) Per James, L.J., in Arkwright v. Newbold, 17 Ch. D. 301, 
at p. 318 ; Peek v. Gurney, L. R. 6 H. L., at p. 403. 

(e) 14 App. Cas. 337 ; and see Le Lievre v. Gould, [1893] 1 Q. B. 
491 [C. A.] ; Weir v. Bell, 3 Ex. D. 238. 

' (/) Langridge v. Levy, 2 M. & W. 519. 

(g) A)iderson v. Pacific Insurance Co. (1872), L. R. 7 C. P. 69. 
(h) Derry v. Peek, supra. 

(i) Le Lievre v. Gould, supra ; Glasier v. Rolls, 62 L. T. 133 [C. A.]. 
0') Andrews v. Mockford, [1896] 1 Q. B. 372 ; Richardson v. 
Silvester (1873), L. R. 9 Q. B. 34. 

(k) Edgington v. Fitzmaurice (1885), 29 Ch. D. 485. 



Definition of Fraud. 159 

of it {I). But no action lies if the plaintiff is not in Art. 74. 
fact deceived (m), though the fact that the plaintiff has 
been negHgent in so acting on the untrue statement is no 
defence (n). 

(5) The cause of action is not the deceit but the detriment 
suffered by the plaintiff, hence damage must be proved (o). 

(6) The false statement need not be made with intent to No intent 
benefit the defendant. It is sufficient that it was made ^° benefit, 
with intent to deceive, and was followed by loss which a 
reasonable man might have contemplated. Thus, where 

a foohsh practical joker told the plaintiff that her husband 
had had both his legs smashed in a railway accident, and 
that she was to go to him at some distance immediately 
with appliances for bringing him home, he was held Uable 
for the nervous shock and subsequent ill-health of the 
plaintiff (p). 

(7) Where a gunmaker sold a gun to B., for the use of 
C, fraudulently representing it to be sound, and the gun 
burst while C. was using it, and he was thereby injured : — 
Held, that C. might maintain an action of fraud against 
the gun-maker, as the statement with regard to the sound- 
ness of the gun, though made to B., was intended to be 
acted upon, and was acted upon by C. (q). 

(8) A principal is generally hable for the fraud of his Fraud of 
agent or servant acting Avithin the scope of, and in the course ^^®° ' 
of, his employment (r), and in Cornfoot v. Fowke {s) the p^^H^ 
question arose whether a principal is hable for the act of 

his agent who makes, on behalf of his principal but without 
his authority, a false statement which he believes to be 
true, but which the principal would have known to be 
untrue. A house agent represented to an intending lessee 

(I) Macleay v. Tail, [1906] A. C. 24. 
(m) Horsjall v. Thomas (1862), 1 H. & C. 90. 

(n) Redgrave v. Hurd (1881), 20 Ch. D. 1 ; Wells v. Smith, [1914] 
3 K. B. 722. 
(o) Dobell V. Stevens, 3 B. & C. 623. 
(p) Wilkinson v. Downton, [1897] 2 Q. B. 57. 
(q) Langridge v. Levy, supra, 
(r) See Art. 27, ante. 
(») 6 M. & W. S.-JS. 



160 Of Deceit or Fraud. 

Art. 74. that there was no objection to a house. There was, in 

fact, a brothel next door. The principal knew of this ; the 

agent did not : — Held, the principal was not liable in an 
action of fraud. The agent was not fraudulent, because 
he did not know that the statement was untrue, and the 
principal had not himself committed a fraud, because he 
did not make the statement or authorise the agent to make 
it. How, then, could the principal be hable for a fraud which 
neither he himself nor his agent had committed ? 

Where, however, a jmncipal intentionally keeps an agent 
ignorant of a fact, intending that he shall misrepresent it, 
and the agent does so, the principal is Hable for fraud. His 
conduct in that case is as fraudulent as if he had himself 
made the misrepresentation Anth knoA\iedge of its falsity {t). 



Art. 75. — Statements as to Credit. 

Where the fraudulent statement consists of a 
false representation as to the conduct, credit, 
ability or dealings of another, with intent to 
procure for him credit, money or goods, no 
action will lie unless the representation is in 
writing signed by the defendant (z(), conse- 
quently an incorporated bank is not liable for 
a fraudulent misrepresentation made by a 
manager {v). 



Art. 76. — The Liability of Directors and 
Promoters of Compayiies. 

Directors and promoters of companies who are 
parties to the issuing of any prospectus inviting 

{t) Ludgater v. Love, 44 L. T. 694 [C. A.]. 

(u) 9 Geo. 4, c. 14, s. 6. It will be observed that the signature 
must be that of the defendant himself, and not of an agent or partner 
(Sw'ft V. Jewsbury, L. R. 9 Q. B. 301 [Ex. Ch.] ; Williams v. Mason, 
28 L. T. 232). 

(v) Bishop. V. Balkis Consolidated Co. (1890), 25 Q. B. D. 512; 
Hirst V. West Riding Union Banking Co., [1901] 2 K. B. 560. 



Liability of Directors and Promoters. 161 

subscriptions to the shares, debentures or deben- Art. 76. 

ture stock of a company, are liable to persons 

who subscribe on the faith of such prospectus 
for untrue statements therein made without 
reasonable ground (iv). 

The decision in Derry v. Peek {x) , that if a person issuing Comment. 
a prospectus had an honest behef in its truth he could not 
be made Hable in an action for deceit, however careless he 
may have been, and however slender the grounds of his 
behef, led to an amendment of the law by which Parlia- 
ment created a statutory liability to pay compensation 
for untrue statements in prospectuses, without proof of 
actual fraud, unless the defendant has reasonable grounds 
for beheving the statement to be true, or can estabhsh one 
of the other defences allowed by the Act (w). It is now- 
enacted that where a prospectus invites persons to subscribe 
for shares in, or debentures or debenture stock of, a com- 
pany, every director and promoter of the company, and 
every person who has authorised the issue of the prospectus, 
shall be hable to pay compensation to persons who sub- 
scribe for any shares, debentures, or debenture stock, on 
the faith of such prospectus, for loss sustained by any untrue 
statement in the same, unless it is proved either — 

(a) that the defendant had reasonable ground to believe, 

and did believe, that it was true ; or 

(b) that the statement fairly represented some state- 

ment in the report of an expert (whom the de- 
fendant believed to be competent), or in a public 
or official document ; or 

(c) that the prospectus was issued without the authority 

or consent of the defendant, and that he took the 
proper steps indicated in the Act to make this 
known {w). 

It will be perceived that this statute really creates a new- 
statutory duty, the breach of which is a tort, but that it 

{w) Section 84 of the Companies (Consolidation) Act, 1908, being 
a re-enactment of the Directors' LiabiUty Act, 1890. 
{x) 14 App. Cas. 337. 



162 Of Deceit or Fraud. 

Art. 76. makes no alteration in the common-law action for deceit. 

In short, it makes directors and promoters liable for 

carelessness as well as for fraud (y). But the liability is 
none the less based in tort, and so the right dies with the 
possessor (2). 

(y) See Dovey v. Cory, [1901] A. C. 477 ; Prcfontaine v. Grenier, 
[1907] A. C. 101 [P. C.]. 

(2) Geipel v. Peach, [1917] 2 Ch. 108. 



CANADIAN NOTES. 163a 



CANADIAN NOTES TO CHAPTER YI. OF PART II. 

Articles 74-75. 

Deceit and fraud play a larger part in the law of con- 
tract than in tort. The delictual problems which have 
given rise to most difficulty have now been dealt with by 
statute : see Article 76. 

lu the case of Gillis Supply Co. v. Chicago, Milwaukee, 
and Paget Sound Ihj. Co. (1911), 16 B. C. R. 254, the 
agent of the defendant company gave the plaintiflPs errone- 
ous information as to freight rates^ thereby causing them 
to enter into an unprofitable transaction. As the informa- 
tion was given in good faith, although carelessly, the 
court held that the defendants were not liable. 

Petrie v. Guelph Lumber Co. (1886), 11 S. C. R. 450, 
was an action against directors for mis-statements in a 
company's prospectus. The Supreme Court found that 
the statements in question were honestly made, and dis- 
missed the action on the same view of the law that was 
later adopted in the leading English case of Derri/ v. 
Peek. 

Article 76. 

In Canada the Dominion and the provinces have con- 
current powers of incorporating companies, and there is 
tlicrefore a large volume of legislation upon this subject. 
In the Dominion Act and in Nova Scotia, Ontario, Sas- 
katchewan, Alberta and British Columbia, the liability of 
directors is defined by ])rovisions closely resembling those 
of tbc English .Act, l)nt with variations in wording whicli 
should be carefully noticed. The Companies Acts of New 
Brunswick, Prince Edward Island, Quebec, ami Manitoba 
contain no special provisions defining the liability of 
directors for statements made in the prospectus. 



( 163 ) 



CHAPTER VII. 
OF NEGLIGENCE. 

Art. 77. — Definition. 

(1) Negligence consists in the omission to do 
something which a prudent and reasonable man 
would do, or the doing something which a 
prudent and reasonable man would not do {a). 

(2) Negligence is actionable whenever, as 
between the plaintiff and the defendant, there is 
a duty cast upon the latter not to be negligent, 
and a breach of this duty which causes damage 
to the plaintiff (&). 

It will be seen that there are three points to be estab- 
lished to found an action for negligence : 

(i) A duty to take care, owed by the defendant to the Duty to 
plaintiff. take care, 

(ii) A breach of that duty — neghgence. 
(iii) Damage as the natural and probable consequence. 

The duty to take care arises out of many relations equally 
impossible of strict definition or of enumeration in a short 
compass. 

Some of the typical cases are dealt with in the following 
articles, but the list is not exhaustive. It must not be 
forgotten, however, that though there is a vast variety of 
circumstances in which there is a duty to take care, where 
there is no duty there can he no action for negligence. 

The student should refer back to Part I., Chapter III., 
where some of the cases in which it has been held that 

(a) lilyth V. Birminghntn Waterworks Co., 11 Ex. 781, 784. 
(h) See par Lord Hkk.schell, Caledonian Rail. Co. v. Mulholland, 
I 1898] A. C. 210, at p. 22.'). 



164 



Of Negligence. 



Art. 77. 



Whatsis 
negligence. 



Degree 
of care 
required 
depends on 
circum- 
stances. 



Want of 
skill. 



there is no duty to take care are considered (c). Other 
cases will be found in the following Articles. 

It will be observed that negligence may consist in either 
misfeasance, i.e., doing that which a prudent and reason- 
able man would not do ; or in nonfeasance, i.e., omitting to 
do something which a prudent and reasonable man would 
do. Xeghgence is judged by the standard of prudence 
of an ordinary reasonable man, and if a person omits some 
precaution which a person of ordinary intelligence and 
prudence would take, he is negHgent, although he may 
himself honestly think it unnecessary to take such a 
precaution. So a person may be negHgent in taking care of 
another's money entrusted to him for that purpose — though 
he takes as much care of it as he takes of his own {d). 

It must be remembered that the degree of care which a 
person is bound to use in regard to others is relative, and 
that in deciding whether a given act is, or is not, negligent, 
the circumstances attending each particular case must 
be fully considered. " A man," it has been said, " who 
traverses a crowded thoroughfare with edged tools, or bars 
of iron, must take especial care that he does not cut or 
bruise others Avith the tilings he carries. Such person 
would be bound to keep a better look out than the man 
who merely carried an umbrella ; and the person who 
carried an umbrella would be bound to take more care in 
walking with it than a person who had nothing at all in his 
hands."' 

A person who undertakes something requiring special 
knowledge or skill is neghgent if by reason of his not 
possessing that knowledge or skill he bungles, although he 
does his best {e). 

So a person who drives a horse or a motor car is negli- 
gent if he does something which a prudent person having 

(c) See especially Winterbottom v. Wright, 10 M. & W. 109 ; Glad- 
well V. SteggaU, 5 Bing. N. C. 733 ; and Le Lievre v. Gould, [1893] 
1 Q. B. 491 [C. A.], ante. Art. 17 ; and Caledonian Bail. Co. v. 
Mulholland, [1898] A. C. 216 ; Butler v. Fife Coal Co., [1912] A. C. 
159. 

(d) Doorman v. Jenkins, 2 A. & E. 256 ; Meux v. Great Eastern 
Bail. Co., [1895] 2 Q. B. 387 [C. A.]. 

(e) Heaven v. Pender (1883), 11 Q. B. D. 507. 



Definition. 165 

reasonable skill as a driver would not do ; and a person Art. 77. 
practising surgery without the ordinary skill and know- 
ledge of a surgeon, is negUgent if he blunders by reason 
of his want of knowledge and skill (/). 

But no person is required to have extraordinary fore- 
sight, prudence or skill, and so long as one uses ordinary 
skill and acts with reasonable prudence, he cannot be said 
to be negligent (g). 

So in the case of a solicitor, erroneous judgment upon a 
new point of law or upon a difficult question of construction 
is not negligence, but ignorance of practice and mismanage- 
ment of the preparation of a case for trial is, for these are 
matters in which a solicitor of ordinary intelhgence, and 
having that knowledge of his professional duties which all 
solicitors should have, ought not to make a mistake {h). 



Art. 78. — Duty of Persons using Highway 
to take Care. 

Every person using a highway or other place 
frequented by the pubhc owes a duty to take 
care as regards the persons and property of 
others. So if a person driving or riding on a 
highway by his negligence runs over, or other- 
wise damages, another person on the highway 
an action will lie for the damage suffered. So, 
also, persons in charge of ships at sea or on 
rivers are bound to use care not to do damage 
to the persons or property of others {i). 

(/) Gladwell v. Steggall, 5 Bing. N. C. 733. 

{g) Hammack v. White (1862), 11 C. B. [n.s.] 588; Munzoni v. 
Douglas (1880), 6 Q. B. D., Lindley, J., at p. 153. 
• (h) See Godejroy v. Dalton, (J Bing. 460, 468. 

{i) See the rule stated more broadly by Lord Blackburn in 
Dublin, Wicklow and Wexford Rail. Co. v. Slaf'ery, 3 App. Cas. 
1 155, at p. 1206 ; and by Lord Esher more broadly still in Heaven v. 
Pender, 11 Q. B. D. 503 [C. A.]. In the latter case Cotton and 
BowEN, L.JJ., (hssented from Lord Eshek's proposition, and Lord 
EsHEK himself explained it in Le Lievre v. Gould, [18931 1 Q. B 
491, 497 [C. A.I. 



166 Or Negligence. 

Art. 78. Note. — This rule does not depend on the special nature of 

highways. It applies generally to all places where persons 

are likely to meet others. As Lord Blackburn says : 
" Those who go personally or bring property where they 
know that they or it may come in collision with the per- 
sons or property of others, have by law a duty cast upon 
them to use reasonable care and skill to avoid such a 
collision " (/). So the rule applies equally to persons on 
railway stations, in shops, or any other places where people 
congregate. 



Art. 79. — Duty of Carriers of Passengers. 

Carriers of passengers by any sort of carriage 
or conveyance owe to passengers a duty to take 
reasonable care to carry them safely. This duty 
arises not from contract but from the fact that 
the passenger is being carried with the knowledge 
and consent of the carrier ; and it applies whether 
the carriage is gratuitous or for reward {k), but 
not if the passenger is a mere trespasser (I). 

Note. — This rule is the foundation of the liability of 
railway companies to their passengers. That the duty is 
one arising quite independently of any contract between the 
carrier and the passenger is laid down in Kelly v. Metro- 
politan Rail. Co. (m), and is well shown by the following 
illustrations. It must be noted that a carrier of passengers 
• (unlike a common carrier of goods) does not warrant the 
safety of the passenger. He is only liable for negligence, 
and if an injury happens to the passenger without negligence 
there is no liability {n). 

(j) Dublin, Wicklow and Wexford Rail. Co. v. Slattery, 3 App. Cas. 
1155, at p. 1206. 

(k) Harris v. Perry & Co., [1903] 2 K. B. 219. 

(/) Grand Trunk Rail. Co. v. Barnett, [1911] A. C. 361 [P. C] ; 
Lygo V. Newhold, 9 Ex. 302. 

(m) [1895] 1 Q. B. 944 [C. A.], explaining Ta^jlor v. Manchester, 
Sheffield and Lincolnshire Rail. Co., [1895] 1 Q. B. 134 [C. A.]. 

(n) Readhead v. Midland Rail. Co., L. R. 4 Q. B. 379 [Ex. Ch.] : 
Newberry v. Bristol Tramuuiys Co. (1912), 107 L. T. 801. 



Duty of Carriers of Passengers. ' 167 



Illustrations. 



(1) x\n infant over three years of age whilst travelling Art. 79. 
by railway with its mother (with the knowledge and implied 
consent of the company's servants, but without a ticket) 
was injured by the negligence of the railway company. 
The company were held liable though there was no contract 
to carry the infant (o). 

(2) But where a person was injured whilst travelling on 
the footboard of a train in defiance of a byelaw and without 
the permission of the company, so that he was a mere 
trespasser, it was held that the company owed him no duty 
and he had no cause of action (p). But distinguish this 
from the position of a licensee for whose safety failure to 
take reasonable care will entail liability for negligence (q). 

(3) A passenger in a railway train was injured in an 
accident caused by the breaking of the tyre of a wheel of 
the carriage in which he rode. The defendants had used 
all diligence in providing a safe carriage and examining it 
before starting and in the course of the journey. There 
being no negligence the company were not liable (r) . 

See also Harris v. Perry & Co. {s), cited a7ite, p. 37, 
Art. 18. 

Art. 80. — Duty of Occupiers of Land and Houses 
to Persons coming by Invitation, etc. 

(1) An occupier of land, buildings or struc- 
tures owes to persons resorting thereto in the 
course of business upon his invitation, express 
or imphed, a duty to use reasonable care to 
prevent damage from unusual danger of which 
he knows or ought to know {t). 

(2) An occupier of land or buildings owes to 

(o) Austin V. Great Western Rail. Co., L. R. 2 Q. B. 442. 
(p) Grand Trunk Rail. Go. v. Burnett, [1911] A. C. 301 [P. C.]. 
(q) Tough v. North British Rail. Co., 1 1914 1 S. C. 291. 
(r) Readhead v. Midland Rail Co., L. R. 4 Q. B. 379. 
(s) [1903] 2 K. B. 219 [C. A.]. 

(0 Indermaur v. Dames, L. R. 1 C. P. 274 ; affirmod L. \<. 2 C. P. 
311 [Ex. Ch.] ; Elliott v. Roberts, Limited, {\f)US] 2 K. B. .518 [C. A.]. 



168 



Of Negligence. 



Art. 80. 



Persons 
coming by 
invitation.' 



Duty as 
between 
landlord and 
tenant. 



bare licensees and guests a duty not to set a 
trap, i.e., not to put there any unexpected 
danger of which he actually knows without 
warning the licensee or guest (u). 

The duty owed to persons coining in the course of 
business by invitation appHes to all persons who go on 
business which concerns the occupier, or in which he is 
even indirectly interested. There need not be an express 
invitation. An invitation is implied when the persons 
come in the ordinary course of business. It will be noticed 
that the rule of liability does not throw on the occupier an 
absolute duty to insure the safety of the premises. So he 
is not liable for some latent defect in a structure which he 
did not know of and could not have provided against by 
taking reasonable care. It is only a duty to use reasonable 
care to prevent damage from unusual danger, i.e., from 
dangers which would not usually be found on premises 
of the kind. Persons cannot complain of dangers which 
they would expect to find on premises of the kind. 

As between landlord and tenant the duty to repair the 
demised premises depends entirely on the contract between 
the parties, and apart from contract the landlord owes the 
tenant no duty to repair or not to let the premises in a 
dangerous condition. Hence, if a landlord lets a house in 
a dangerous condition, he is not liable to the tenant or to a 
person using the premises by invitation of the tenant for 
any injuries happening during the term owing to the 
defective state of the house (v). 

(u) See Indermaur v. Dames, supra, and Gautret v. Egerton, L. R. 2 
C. P. 371 ; Kimber v. Gas Light cfc Coke Co., [1918] 1 K. B. 439 [C. A.]. 

(v) Lane v. Cox, [1897] 1 Q. B. 415 [C. A.]. As to the implied 
warranty in the ease of a letting of a furnished house, see Synith v. 
Marrable, 11 M. & W. 5; and Wilson v. Finch Hntton, 2 Ex. D. 
336 ; and see Sarson v. Roberts, [1895] 2 Q. B. 395 [C. A.]. 

And as to the statutory obligation to repair in the case of small 
houses within the Housing, Town Planning, etc. Act, 1909 (9 Edw. 
7, c. 44), ss. 14, 15, it has been decided that this obHgation is in favour 
of the tenant only, and not available to give a right of action to his 
wife (Middleton v. Hall (1913) , 108 L. T. 804) or his daughter {Ryall v. 
Kidwell (k Son, [1914] 3 K. B. 135) to recover for damage due to 
non-fulfilment of the obligation. But as to the tenant himself 
it is no answer that the danger was obvious (Dunster v. Hollis, 
[1918] 2 K. B. 795). 



Duty of Occupiers to Invited Persons. 169 

Accordingly when a landlord contracted with his tenant Art. 80. 

to repair a defective house, but failed to do so, and the wife 

of the tenant was injured by reason of the defective state of 
the house, it was held that she had no cause of action, as 
she was a stranger to the contract (x) , and the defect being 
obvious there was no trap for which the landlord could be 
made liable in tort (?/). 

So, too, when an owner of a building let out in flats or 
separate tenements keeps possession of the common stair- 
case, he owes to his tenants (apart from contract) with 
regard to lighting and repairing the staircase, and the 
guests of his tenants or persons coming on business with 
them, no duty other than that owed to bare licensees, i.e., to 
warn of any unusual or concealed danger of which the owner 
is aware. Accordingly, if such a person is injured in conse- 
quence of the dangerous condition of the staircase he has 
no cause of action against the landlord (2) unless (1) the 
landlord has taken upon himself, by contract with the 
tenant, the obligation of repairing, in which event, as he 
must contemplate that the staircase will be used by per- 
sons having business with the tenants, he owes them a duty 
to keep it in a reasonably safe condition (a), or (2) the 
defect is concealed and constitutes a trap. 

Bare licensees, i.e., persons who come not for any business Licensees 
in which the occupier is interested, but merely by permission ^^^ guests. 
for their own purposes, and guests, are in a somewhat 
different position. Their position is analogous to that of a 
person who receives a gift. He is only entitled to use the 
place as he finds it, and cannot complain, unless there is 
some design to injure him, or the occupier has done some 

(x) Cavalier v. Pope, [1906] A. C. 428. 

{y) Lucy v. Bawden, [1914] 2 K. B. 318 ; Normanv. Great Western 
Rail. Co., [1915] 1 K. B. 584 [C. A.] ; Dobson v. H order/, [1915] 
1 K. B. 634 [C. A.]. 

(z) Huggett v. Mier.s, [1908] 2 K. B. 278 [C. A.]; and compare 
Ivay V. Hedycfi, 9 Q. B. D. 80. It is difficult to reconcile Hargroves, 
Aronson ds Co. v. Hartojtp, [1905] 1 K. B. 472, with these cases. 

(a) Miller V. Hancock, [1893] 2 Q. B. 177 [C. A.]— a case which can 
be supported on the special facts. Judgment of Atkin, .J., at p. 321. 
It seems now established that, apart from contract, the landlord's 
liability is to warn of concealed dangers of which he actually knows ; 
see (y) above. 



170 



Of Negligence. 



Art. 80. 



Trespasser 



Illustrations. 
Persons 
coming by 
invitation. 



wrongful act, such as digging a trench on the land or 
misrepresenting its condition, or anything equivalent to 
laying a trap for the unwary. A giver of a gift is not 
responsible for the insecurity of the gift unless he knows 
its evil character at the time and omits to caution the 
donee. So, too, in the case of a person to whom permission 
to go on land is given, he cannot complain unless there is 
something like fraud in the gift (&). But where the licence 
is limited in area the Hcensor is under no liability to warn 
a Ucensee who trespasses on to other ground (c). 

Trespassers are in a worse position than bare licensees, 
for, as no permission is given, there can be no duty to give 
warning of danger. And he cannot maintain an action 
where his unlawful act or conduct is connected with the 
harm he suffers as part of the same transaction, e.g., fall- 
ing into a hole in the land trespassed on. But even a 
trespasser has a right of action if he is injured, whilst 
trespassing, by some wTongful act of the occupier, as, for 
instance, if he is assaulted, or is injured by something which 
the occupier of the land has put there for the purpose of 
injuring him (rf), e.g., spring guns, and other infractions of 
statutes as to fencing, barbed \vire, and highways, or with 
a knowledge he is there (c). 

The judgment of Willes, J., in the two leading cases 
of Indermaur v. Dames and Gautret v. Egertoyi, should be 
carefully studied. 

(1) Upon the defendant's premises was a trap-door on 
the level of the floor used for raising and lowering bags of 
sugar from one floor to another. It was not necessary that 
it should be unfenced when not in use. The plaintiff, a 
journeyman gasfitter employed by persons who had fixed a 
gas regulator upon the defendant's premises, came to test 
the apparatus. Whilst so engaged he fell through the trap- 
door and was injured. The trap-door at the time was not 

{h) See the judgment of Willes, J., in Gautret v. Egerton, L. R. 
2 C. P. 371. 

(c) .Jenkins v. Great Western Rail. Co., [1912] 1 K. B. 525. 

(d) Bird v. Holbrook, 4 Bing. 628. 

(e) Petrie v. Rostrevor Owners, [1898] 2 Ir. R. 556. 



Duty of Occupiers to Invited Persons. 1" 

in use and was not fenced. There was no negligence on his Art. 80. 

part : — Held, that he was on the premises on business in 

which the defendant was interested, and that the defendant 
was Hable as the danger was an unusual danger, and the 
defendant had neglected his duty to take reasonable care 
by fencing it or warning the plaintiff (/). 

(2) The plaintiff, a Hcensed waterman, having complained 
to the person in charge that a barge of the defendants was 
being navigated unlawfully, was referred to the defendants' 
foreman. While seeking the foreman, he was injured by 
the falling of a bale of goods so placed as to be dangerous, 
and yet to give no warning of danger : — Held, that the 
defendants were Hable {g) . 

(3) The defendant engaged a contractor to erect a grand 
stand for vie\\"ing races. The plaintiff paid for a seat on 
the grand stand. OAnng to the negligence of the contractor 
the stand was defective, and it fell and the plaintiff was 
injured. The defendant was Uable, although neither he nor 
his servants were personally negligent. It was their duty 
to see that the stand was reasonably safe [h). 

(4) Workmen Avere allowed to cross a piece of vacant 
land to get to some docks. On this land were canals and 
bridges. One of the bridges was out of repair, and a work- 
man when crossing by it fell into a canal and was drowned. 

• In an action brought by his Avidow it was held that as the 
workman was a bare licensee he must take the place as he 
found it, and as there was no trap the defendant was not 
liable (^). 

But where children were bare licensees and in playing 
on defendant's land one was injured by one of a heap 
of stones there falling on her hand, it was held that there 
being no concealed danger there was no duty to warn and 
consequently no liability [k). And where children were 

(/) Indermaur v. Dames, L. R. 1 C. P. 274 : afiirmed L. R. 2 C. P. 
311 [Ex. Ch.]. 

(g) White v. France, 2 C. P. D. 308. 

{h) Francis v. Cockrell, L. R. 5 Q. B. 184. 

(i) Gautret v. Egerton, L. R. 2 C. P. 371. 

(k) Latham v. Johnson dt Nephev), Limited, [19131 1 K. B. 398. 



72 Of Negligence. 

Art. 80. repeatedly warned and sent away by the servants of a 
railway company to prevent them coming on the com- 
pany's premises and playing with a moving staircase, it 
was held that their return after such warnings constituted 
them trespassers with no right of action for resultant 
injury (Z). 

(5) In Lowery v. Walker (m) the defendant was a farmer 
who put in a field a horse which he knew to be savage. 
The defendant had tacit permission to cross the field, and 
whilst doing so was bitten by the horse, and as no warning 
was given of the concealed danger to the tacit licensee 
the defendant was held liable. 

(6) If a person sets a spring gun on his land with the 
intention that it shall go off and cause injury to tres- 
passers, he is liable for the intentional wrong so done. 
What he does really amounts to an assault {n) . If he leaves 
dangerous things like guns about he must take proper pre- 
cautions to prevent their doing damage (o), and a fortiori 
he is liable if he contrives that they shall do damage. 



Art. 81. — Duty of Bailees of Goods. 

Bailees of all kinds, including carriers, owe to 
their bailors a duty to take care of the goods 
and chattels bailed. The degree of care required 
varies with the nature of the bailment (p). 

Note. — All kinds of bailees of goods and chattels are 
bound at least to take reasonable care of the goods bailed 
to them, though, generally speaking, greater care is expected 
of one who derives benefit from the bailment, such as a 
borrower of goods, or a joawnbroker or hirer, or a ware- 
houseman who is paid for keeping them, than from one 
who has the custody of goods for the benefit of the bailor 

(/) Hardy v. Central London Rail. Co. (1920), 36 T. L. R. 843. 

(m) [1911] A. C. 10. 

(n) Bird v. Holbrook, 4 Bing. 628. 

(o) See Dixon v. Bell, 6 M. & S. 198. 

(p) See Coggs v. Bernard, 1 Sin. L. C. 173. 



Duty of Bailees of Goods. 173 

only, such as one who gratuitously undertakes their Art. 81. 
custody for the convenience of the owner (g). 

The topic of the liability of carriers and other bailees 
for the safety of goods entrusted to them is too large to 
be dealt with fully in this work, and it is only necessary 
here to refer the student to the cases cited in a previous 
Article, which show that the liability is one in tort, arising 
by reason of the bailment and quite apart from contract (/•) . 
It must be remembered, however, that the liability of a 
bailee may be modified by contract between the parties, 
and where goods are carried under an express contract 
the common-law liability of the bailee may be thereby 
much enlarged or curtailed. 

At common law a common carrier, that is, a person who Common 
holds himself out as carrying on the business of carrying carriers. 
the goods of all and sundry from place to place, is liable 
for any loss of, or injury to, the goods unless he can show 
that the loss was due to the act of God or the King's 
enemies, or to some inherent vice or unfitness to be carried 
of the goods themselves. A carrier of goods by sea is 
under the same liability, as also is an innkeeper. The 
common-law liability in all these cases has to some extent 
been modified by statute (s) , and may always in any parti- 
cular case be modified by agreement between the parties. 
Bailees who are under this special liability are sometimes 
(though not quite accurately) spoken of as " insurers." 

Art. 82. — Duty to take Precautions with regard 
to things Dangerous in themselves. 

(1) In the case of articles dangerous in them- 
selves, such as loaded firearms, poisons, explo- 
sives and other things ejiisdetn generis, there is a 
peculiar duty imposed on those who send forth, 
make or leave about such articles to take 

{q) See ante. Art. 18. 

(r) See Turner v. Stallibrass, [1898] 1 Q. B. 56 [C. A.] ; and Meux v. 
Great Eastern Rail. Co., [1895] 2 Q. B. 387. 

(«) See notes to Cogr/s v. Bernard in 1 Sm. L. C. 173. As to inn- 
keepers, see Calyces Case and notes in 1 Sm. L. C. 119. 



74 Of Negligence. 

Art. 82. precautions that they shall not do damage to 
persons who may come in contact with them {t). 

(2) A person who without due warning sup- 
plies to others for use an instrument or thing 
which to his knowledge, from its construction or 
otherwise, is in such a condition as to cause 
danger not necessarily incident to the use of 
such instrument or thing is liable if damage is 
caused thereby (?i). 

(3) If damage is done by reason of the neglect 
of such precautions or warning, it is no excuse 
that the damage would not have happened but 
for the intermeddling of some thircl person, if 
such intermeddling is such as might naturally 
occur (v). 

(4) But if the immediate cause of the damage 
is the conscious act of volition of some third 
person that is a defence, for no precaution can 
avail against such conscious act of volition (v). 

The first rule is applicable to all things dangerous in 
themselves, such as those above described. The nature 
of the precautions to be taken must necessarily dej^end on 
the circumstances. In some cases it would be proper and 
sufficient to give warning of the danger so as to put persons 
on their guard against dangers which are not apparent 
from the nature of the thing. The following illustrations 
will show the nature of the precautions which the courts 
have held requisite in different circumstances (see also the 
closely allied rules stated in Arts. 88-90). In most of 
these cases the immediate cause of the damage has been 
the intermeddling of a third person. This is no defence 

(t) Per Lord Dunedin in Do7ninion Natural Gas Co. v. Collins 
and Perkins, [1909] A. C. G40, 64(3 [P. C] ; Blacker v. Lake <&; Elliot, 
Limited (1912), 106 L. T. 533. 

(u) Per Cotton and Bowen, L.JJ., in Heaven v. Peiider, 11 
Q. B. D. 503, 517 [C. A.] ; Bates v. Batey cfc Co., Limited, [1913] 3 K. B. 
351. 

(d) See [t), supra. 



Duty to Take Precautions, etc. 175 

if such intermeddling is what would be naturally expected Art. 82. 

of a person who was unconscious of the danger or of the 

proper way to avoid it. "A loaded gun will not go off 
unless someone pulls the trigger, a poison is innocuous 
unless someone takes it, gas will not explode unless it is 
mixed with air and then a light is set to it " ; yet in each 
of these circumstances the liability has been enforced. It 
is, however, another matter if a third person finding a 
loaded gun consciously fires it off at someone, or if a person 
who has bought poison consciously takes it himself or 
administers it to someone else. In such cases the damage 
is not caused by the absence of precautions, but by the 
wrongful act of the person who fires the gun or administers 
the poison. 

(1) Where the defendant entrusted a loaded gun to an Illustrations, 
inexperienced servant girl, and she pointed and fired it at 

the plaintiff's son, wounding and injuring him, it was 
held that the defendant was liable. He had given direc- 
tions that the priming should be removed so as to make the 
gun safe, but this was not done properly and the gun was 
left in a dangerous state ; so the defendant was respon- 
sible {w). 

(2) Where the defendant negligently compounded a hair 
wash of dangerous chemical ingredients, and a person using 
it, and for whose benefit it was bought, suffered injur3% the 
defendant was held liable (x). But this decision has not 
been followed in two recent cases where the manufacturers 
of articles which have caused damage to purchasers by 
virtue of defective manufacture have not been held liable 
for such damage, on the ground that as there was no con- 
tract between the parties no duty was owed by the makers 
to the injured purchasers (y). 

(3) Quite apart from any warranty or the terms of the 
contract of sale, the vendor of goods which have some 

(w) Dixon V. Bell, 5 M. & S. 198. 

(x) George v. Skivington, L. R. 5 Ex. 1. 

iy) Blacker V. Lake <fc Elliott (1912), 106 L. T. .53.3 ; Bates v. Bafey 
d; (Jo., Lijiiited, [1913] .3 K. B. 351; per contra White v. Stcadman, 
[1913] 3 K. B. 340 ; but here Lush, J., appears to draw a distinction 
between things inherently dangerous and those which are dangerous 
by defective manufacture only. 



176 Of Negligence. 

Art. 82. dangerous quality of which he knows, but of which the 

purchaser cannot be expected to be aware, owes a duty to 

the purchaser to take reasonable precautions by warning 
him that special care will be requisite, and for damages 
resulting from breach of that duty an action lies (2). Thus, 
where the defendants sold a tin of chlorinated lime, knowing 
that it was likely to cause danger to a person opening it 
unless special care was taken, and the danger was not such 
as would be known by the purchaser, the defendants were 
held liable for damage caused to the plaintiff by opening 
the tin without taking proper precautions, in consequence of 
which there was an explosion and her eyes were injured (a). 
And there is a similar duty on the part of one gratuitously 
lending goods to another, for breach of which, followed by 
damages, an action will lie. Note that in these cases it 
is essential to show knowledge of the defect on the part of 
the seller or lender (&). A person who does not make but 
merely sells a thing he does not know to be dangerous may 
be liable for breach of warranty to the buyer, but is not 
liable in tort to the buyer or to users of the thing (c). 

(4) A railway company kept a turntable unlocked (and 
therefore dangerous to children) on their land close to a 
public road. The railway servants knew that children were 
in the habit of trespassing and playing with the turntable, 
and took no steps to prevent them from so doing or to lock 
the machine so as to prevent it being dangerous. A child 
between four and five years of age, playing with other 
children on the turntable, was seriously injured. The com- 
pany were held liable as they should have taken precautions 
to prevent such an accident as was likely to happen, and 
did happen, to the child {d), because the presence of the 
dangerous unlocked turntable constituted an allurement 
which made the children invitees. In a later case (e), on 

(2) Heaven v. Pender (1883), 11 Q. B. D. 517. 

(a) Clarke v. Artny and Navy Co-operative Society, [1903] 1 K. B. 
155 [C. A.]. 
(6) Bates v. Batey cfc Co., Limited, [1913] 3 K. B. 351. 
(c) Longmeid v. Holliday, 6 Ex. 761 ; Coughlin v. Gillison, [1899] 
1 Q. B. 145 [C. A.]. 

{d) Cooke V. Midland Great Western Rail. Co. of Ireland, [1909] 
.4. C. 229. 

(e) Latham v. .Johnson da Nephew, Limited, [1913] 1 K. B. 398. 



Duty to Take Precautions, etc. 177 

analogous facts, where the injury to a child arose from Art. 82. 

playing with a heap of stones on defendants' ground, the — — 

heap of stones was held not to be an allurement nor to be 

a dangerous thing laying upon the defendants any other 

duties than those owed to mere licensees. In a more recent 

case warnings given repeatedly to children to go away from 

a company's premises to prevent them being injured by 

playing about a working staircase was held to constitute 

them trespassers and so without remedy for injuries 

resultant in disobedience to the warnings (/). So if a 

person leaves a cart unattended in the street and boys 

play with it, as is their nature, and one is injured, he may 

have a cause of action against the o\\Tier of the cart, 

although the action would not have happened but for the 

intermeddling of himself and his companions (gr). But it 

is now clear that the owTier of a vehicle left on the highway 

will not be liable for damage done by its being set in motion 

by third parties unless it was reasonable that he should 

have anticipated the effective interference which caused 

the damage {h). 

(5) A person who consigns to a common carrier is under 
an absolute duty not to consign to him for carriage goods 
which are dangerous to carry, without ^^ arning the carrier 
of their dangerous character, unless the carrier knows, or 
ought to know, the dangerous character of the goods ; and 
if by reason of their dangerous character the carrier or his 
servants are injured the consignor is liable, although he 
does not himself know of the dangerous character of the 
goods (i). 

Art. 83. — Contributory Negligence. 

(1) Though negligence, whereby actual dam- 
age is caused, is actionable, yet if the damage 
would not have happened had the plaintiff 

(/) Hardy v. Central London Rail. Co. (1920). 3(i T. L. H. 843. 

{g) Lynch v. Nurdin, 1 Q. B. 29. 

(h) Ruoffw. Long dk Co., [HHii] I K. H. 148. Cf. with Turner v. 
Coate.') (1916), 33 T. L. R. 79. 

(i) Bamfield v. Goole and SheJJicId Tran.'iport Co., | l!»l()| 2 K. H. 
94 [C. A.]. 



178 



Of Negligence. 



Art. 83. 



Radley v. 
London and 
North 
Western 
Rail. Co. 



himself used ordinary care, the plaintiff cannot 
recover from the defendant. 

(2) But where the plaintiff's own negligence 
is only remotely connected with the accident, 
and the defendant might by the exercise of 
ordinary care have avoided the accident, the 
plaintiff will be entitled to recover. 

The rule of contributory negligence is well illustrated 
by the leading case of Radley v. London and North Western 
Rail. Co. (k). In that case the facts were these : The 
defendants were in the habit of taking full trucks from 
the siding of a colliery company and returning empty ones. 
Over this siding was a bridge belonging to the colliery 
company. One Saturday afternoon the company ran some 
trucks on the sidmg. One was loaded so high that it 
would not pass under the bridge. On the Sunday even- 
ing the company brought some more trucks and pushed 
forward those already on the siding. Finding something 
was holding the trucks, the engine-driver put on more 
power and pushed till he got them on. It was the bridge 
which held the loaded truck, and the result was that 
the bridge was knocked down. Now, assuming that the 
colliery company were negligent in loading the truck so 
that it would not pass under the bridge, it does not follow 
that their negligence was an effective cause of the accident. 
It may be that if the engine-driver had been prudent 
and reasonable he should have got out to see what was 
wrong, and so would have avoided the consequences of 
the colliery company's negligence. In this view of the 
facts it was held that the judge who tried the case was 
wrong in telling the jury that the plaintiffs (the colliery 
owners) must satisfy them that the accident happened solely 
through the neghgence of the defendants' servants, and that 
if both sides were negligent so as to contribute to the 
accident, the plaintiffs could not recover. He ought to have 
told them that if they thought the engine-driver might by 
ordinary care have avoided all accident, any previous negli- 



(k) 1 App. Cas. 754. See especially, per Lord Penzance, at 
p. 759. 



Contributory Negligence. 179 

gence of the defendants would not preclude them from Art. 83. 
recovering. 

The law on this point was thus summarised by Willes, Statement 

J. : "If both parties were equally to blame, and the °^}^^ 

^ ^ ^ ' _ _ rule by 

accident the result of their joint negligence, the plaintiff Willes, J. 
could not be entitled to recover. If the negligence and 
default of the plaintiff' was in any degree the proximate 
cause of the damage, he could not recover, however great 
may have been the negligence of the defendant. But that if 
the negligence of the plaintiff was only remotely connected 
with the accident, then the question was, whether the de- 
fendant might not, by the exercise of ordinary care, have 
avoided it" (l). The doctrine of Tu^ v. Warman has 
received a refinement of application in a recent case (m) 
where, despite the negligence of the plaintiff in crossing a , 

level crossing when a train was approaching, and that the 
last opportunity to avoid the accident lay with the plaintiff, 
yet as the inability of the train driver to pull up in the 
space left was due to the faulty condition of his brake, 
it was held the company could not set up the contributory 
negligence of the plaintiff, as the last opportunity of avoid- 
ing the accident would have lain with their driver if his 
brake had been in good order, and so it was held to have 
lain constructively with them. 

(1) Therefore, where the plaintiff left his ass with its legs Illustrations, 
tied in a public road, and the defendant drove over it Davies v. 
and killed it, he was held to be liable ; for he was bound to Mann. 
drive carefully and circumspectly, and had he done so he 

might readily have avoided driving over the ass [n). 

(2) But where the defendant negligently and wrongfully Butterfidd 
left a pole across a highway, and the plaintiff, by riding ^* Forrester. 
negligently, ran against it and was hurt, it was held that as, 

if he had used ordinary care, he might have seen the pole 
and avoided it, the accident was entirely due to his own 
negUgence, and the defendant was not liable (o). 

il) Tuffw. Warman, 2 C. B. (n.s.) 740, 743 ; affirmed in Ex. Ch., 
5 C. B. (N.s.) 57.3. 

(to) British Columbia Electric Rail. Co. v. Loach . | l!)l(;| A. C. 719. 
(n) Davies v. Mann. 10 M. & W. 546. 
(o) Butterfield v. Forrester, 1 1 East, 60. 



180 



Of Negligence. 



Art. 83. 

Joint 
negligence 
of plaintiff 
and 
defendant. 



Doctrine of 
identifica- 
tion. 



Contribu- 
tory negli- 
gence in 
infants. 



(3) But in all cases where two persons are negligent and 
the accident is the result of their joint negligence, neither 
can recover against the other. And so, in cases of collision 
between carriages, the question is, whether the sole effective 
cause of the disaster was the negligence of the defendant, 
or whether the plaintiff himself so far contributed to the 
disaster, by his own negligence, or want of common and 
ordinary care, that, but for his default in this respect, the 
disaster would not have happened. In the former case he 
recovers, in the latter not. 

(4) For many years it was thought that where a person 
voluntarily engaged another person to carry him, he so 
identified himself with the carrier as to be precluded from 
suing a third party for negligence in cases where the carrier 
was guilty of contributory negligence (p). However, this 
doctrine was overruled by the House of Lords, in the case 
of The Bernina (q), and there is no longer any rule of law 
that the driver of an omnibus, or coach, or cab, or the 
engineer of a train, or the master of a vessel, and their 
respective passengers, are so far identified as to affect the 
latter with any liability for the former's contributory 
negligence (r). 

(5) It was decided many years ago that, where the 
plaintiff is a child of tender j^ears, it is not necessarily 
a good defence to an action of negligence to prove that 
he himself contributed to his injury. In that case the 
defendant left a cart unattended in the street. The 
plaintiff, a boy of seven, climbed into the cart to play, 
another boy led on the horse, and the plaintiff fell and was 
hurt. If he had been a grown man it would have been a 
good defence that the proximate cause of the accident was 
his own wrongdoing — but the court held that as much care 
cannot be expected of a boy as of a grown person — and the 
act of the plaintiff, considering his age, was not such as to 
disentitle him from recovering (s) . This case and the later 
authorities show that what would amount to contributory 

(p) Thorogood v. Bryan, 8 C. B. 115. 

{q) 13 App. Cas. 1. 

(r) Mathews v. London Street Tramways Co., 58 L. J. Q. B. 12. 

(s) Lynch v. Nurdin, 1 Q. B. 29. 



Contributory Negligence. 



181 



negligence in a grown-up person, may not be so in a child 
of tender years (t). 



Art. 83. 



(6) It has been held that where an infant is incapable of Persons in 

taking care of himself, he cannot recover if the person in ?f''^f 
11 1 -IP -1 1- infants, 

whose charge he was, was guilty of contributory negli- 
gence (w). But whether this is consistent with principle 
seems questionable. For the person in charge is not the 
agent of the child, but of its parent or guardian ; and in 
other respects the case of IVie Berniiui [x) would seem to 
apply. 



Art. 84. — Effective Cause. 

The negligence of the defendant must be an 
effective cause of the damage. 

As we have seen (y) wherever damage is a part of the 
cause of action, it must be shown that the damage com- 
plained of was the natural and probable result of the 
wrongful act. Illustrations will be found at pp. 14 and 
15, many of which are cases of negligence. 

It sometimes happens that though the defendant was 
negligent, the real effective cause of the damage was either 
the negligence of the plaintiff or the negligence of a third 
person. The former is dealt with as one aspect of contribu- 
tory negligence. It is well illustrated by Butterfield v. 
Forrester {z). When the immediate cause of the damage 
is the interference of a third party, it does not necessarily 
follow that the defendant is not liable. If the defendant's 
negligence is a7i effective cause of the damage, he is liable, 
although the damage would not have occurred but for the 
interference of a stranger (a). It is, in every case, a 

(t) Per Kelly, C.B., Lay v. Midland Rail. Co., 34 L. T. 30. See 
also Harrold v. Watncy, [1898] 2 Q. B. 320 [C. A.] ; Jewson v. Gatti, 
2 T. L. R. 441 [C. A.] ; and Cooke v. Midland Great Western Rail. Co., 
[1909] A. C. 229. 

(u) Waite v. North Eastern Rail. Co., El. B. & E. 719 [Ex. Ch.] ; 
and see Taylor v. Dumbarton (1918), S. C. 9(1 (H. L.). 

(x) Supra, p. 180. 

{y) Supra, Art. .5. 

(z) Supra, p. 179. 

(a) Evgelhart v. Farmnl, | 1897] 1 Q. B. 243. 



General 
principle. 



Combined 

negligence 

of 

defendant 

and third 

party. 



182 



Of Negligence. 



Art. 84. question of fact whether the negligence of the defendant 

was an effective cause of the damage or merely a remote 

cause (6). 

illustration. So where the defendant had taken the plaintiff's horse 
under an agreement for agistment and put it into a field 
separated by a wire fence from a cricket field, and by the 
negligence of the defendant's servants a gate was left open 
and the horse escaped into the cricket field, it was held 
to be the natural consequence that the cricketers should 
proceed to drive the horse back into the defendant's field. 
Whilst being so driven back the horse hurt itself against 
the wire fence, and the defendant was held liable, as the 
negligence of his servants in leaving the gate open was an 
effective cause of the accident (c). 



Art. 85. — Onus of Proof . 

(1) The onus of proving negligence is on the 
plaintiff ; and that of proving contributory 
negligence on the defendant {d). 

(2) But where a thing is solely under the 
management of the defendant or his servants, 
and the accident is such as, in the ordinary 
course of events, does not happen to those having 
the management of such things and using proper 
care, the accident itself affords prima facie 
evidence of neghgence (e). 

(1) Thus, where a horse of the defendant suddenly bolted 
without any. explainable cause, and, swerving on to the 
footpath, collided with and injured the plaintiff, it was held 
that the plaintiff had not produced any evidence of negli- 
gence sufficient to entitle him to recover. For it is no 

(6) McDowall v. Great Western Rail. Co., [1903] 2 K. B. 331 
[C. A.], and see Richards v. Lothian, [1913] A. C. 263 ; Ruoffv. Long, 
[1916] 1 K. B. 148. 

(c) Halestrap v. Gregory, [1895] 1 Q. B. 561. 

(d) Dublin, Wickloiv, etc. Rail. Co. v. Slattery, 3 App. Cas. 1155, 
at p. 1169. 

(e) Scott V. London Dock Co., 3 H. & C. 596 ; Byrne v. Boadle, 
2 H. & C. 722. 



Onus of Proof. 



183 



negligence to drive a horse along a public street, and horses 
will occasionally run away without any negligence of the 
driver (/). 



Art. 85. 



(2) So, also, the mere fact of a motor omnibus skidding Skidding 
on a greasy road is no evidence of negligence, for it is well o^nnibus. 
known that roads are often greasy and that motor omni- 
buses, however well constructed and designed, have a 
tendency to skid on slippery roads (g). 

(3) So where the body of a dead man was found on the Accident 
defendants' railway near a level crossing, the man having capable 
been killed by a train which bore the usual head-lights but explana- 
did not whistle, it was held, in an action by the widow, that tions. 
there was no evidence of negligence on the defendants' part. 

For, as Lord Halsbury said : " One may surmise, and it is 
but surmise and not evidence, that the unfortunate man 
was knocked down by a passing train while on the level 
crossing ; but assuming in the plaintiff's favour that fact 
to be established, is there anything to show that the train 
ran over the man rather than that the man ran against the 
train ? " (/O- 

(4) On the other hand, where a person was walking in Accident 



a public street and a barrel of flour fell upon him from 
a window of the defendant's house, it was held sufficient 
prima facie evidence of negligence to cast on the defendant 
the onus of proving that the accident was not attributable 
to his want of care. For barrels do not usually fall out of 
windows in the absence of want of care (^). And when a 
railway train was thrown off the line whereby the plaintiff 
(a passenger) was injured, and it appeared that the engine, 
the coaches and the line all belonged to the same company, 
it was held that there was a prima facie case of negligence, 
as trains do not run off the line unless there is something 

(/) Manzoni v. Douglas, 6 Q. B. D. 145. 

(g) Wing v. London General Omnibus Co., [1909] 2 K. B. 652 
[C. A.]. 

(h) Wakelin v. London, and South Western Rail. Co., 12 App. Cas. 
41. See also Davey v. London and South Western Rail. Co., 1 2 Q. B. D. 
70 [C. A.]. 

{i) Byrne v. Boadle, .33 L. J. Ex. 13 ; Scott v. London Dock Co., 
3 H. & C. 596. 



prima facie 
due to 
negligence. 



Res ipsa 
loquitur. 



184 Of Negligence. 

Art. 85. wrong with the line, or the train, or the running of thc^ 

train {]). In short, the question must always depend on 

the nature of the accident. In general, where an accident 
may be equally susceptible of two explanations, one in- 
v'olving negligence, and the other not, the plaintiff must 
give some evidence of want of care. But where the 
probability is that the accident could only have had a 
negligent origin, the presumption will be reversed. 

Art. 86. — Duties of Judge and Jury. 

Whether there is any evidence to be left to 
the jury from which neghgence causing the in- 
jury complained of may be reasonably inferred, 
is a question for the judge. 

It is for the jury to say whether, and how far, 
the evidence is to be believed, and whether, 
in fact, there was negligence which was the 
effective cause of the damage {k). 

That is to say, the judge should not leave the case to the 
jury merely because there is a scintilla of evidence, but 
should rather decide whether there is any evidence from 
which negligence may be reasonably inferred, and then leave 
it to the jury to find whether upon that evidence negligence 
ought to be inferred [l). 



Art. 87. — Volenti non jit Injuria. 

(1) In an action of negligence it is a good 
defence that the plaintiff, with full knowledge 
and appreciation of the risk of danger from the 
defendant's negligence, voluntarily accepted the 
risk and exposed himself to the danger (m). 

(j) C'arpue v. London and Brighton Co., 5 Q. B. 747. 
(k) Metropolitan Rail. Co. v. Jackson, 3 App. Cas. 193 ; Toronto 
Rad. Co. V. King, [1908] A. C. 260. 
(Z) Ibid., at p. 197. 
(m) Smith V. Bak<jr <k Sons, [1891] A. C. 325. 



Volenti non fit Injuria. 185 

(2) It is a question of fact, not of law, whether Art. 87. 
the plaintiff voluntarily incurred the risk, and 

the burden of proof is on the defendant {n). 

(3) But the doctrine of acceptance of the 
risk cannot be set up in answer to an action 
for damages for negligence based on non-fulfil- 
ment of a statutory duty (o). 

Note. — This rule must be applied with caution. It does 
not mean that whenever a person knows there is a risk of 
being injured by another's negligence whilst doing some- 
thing, he is incapable of recovering in an action if, neverthe- 
less, he does the thing with knowledge of that risk. If it 
were so, no one could ever bring an action for damages 
resulting from an accident to a train in which he was 
travelling, or even for being run over in the street. For 
everyone who travels by train or walks in the streets knows 
he runs a certain amount of risk in so doing. But if a 
person knowing of a particular risk voluntarily accepts that 
risk and takes the risk upon himself, the rule applies. For 
instance, if a man seeing an express train coming along a 
line approaching a level crossing, chooses to cross the line 
in front of it, taking the chance of getting across in time, 
the rule would apply. 

Again, the rule does not apply where one person is put Situations of 

alternal 
danger. 



by another in a situation of alternative danger, that is to alternative 



say, one in which he will be in danger if he sits still and in 
danger if he tries to escape. In such a case any injury 
he may sustain in taking the course which he thinks best 
in the circumstances, will be regarded as the consequence 
of his being ^vl■ongfully put in that situation and not of his 
own voluntary act (p) . 

So, in an action against a coach proprietor for so negli- 
gently driving his coach that the plaintiff, a passenger, was 

(n) Williams v. Birryilngham Buttery Co., [1899] 2 Q. B. 338 
[C. A.]. 

(o) Badddey v. Earl (Iranvillr, 19 Q. B. D. 423 ; cf. Davies v. 
Owen, [1919] 2 K. B. 39. 

{p) Per Montagu Smith, J., in Adams v. Lancashire and York- 
shire Rail. Co., L. R. 4 C. P. 739, 742 ; The George and Richard, L. R. 
3 A. & E. Am. 



186 



Of Negligence. 



Art. 87. 



Doctrine 
applied. 



Yarmouth 
France. 



obliged to jump off the coach, whereby he broke his leg, 
Lord Ellenborough said : "To enable the plaintiff to 
sustain the action it is not necessary that he should have 
been thrown off the coach. It is sufficient if he was placed 
by the misconduct of the defendant in such a situation as 
obliged him to adopt the alternative of a dangerous leap 
or to remain at certain peril ; if that position was occa- 
sioned by the default of the defendant, the action may be 
supported " {q). 

When a workman in the employment of a contractor 
engaged by the defendants had to work in a tunnel rendered 
dangerous by the passing of trains, and after working there 
a fortnight was injured by a passing train, it was held that 
the workman, having continued in his employment with full 
knowledge, could not make the railway company liable for 
an injury arising from the danger to which he had volun- 
tarily exposed himself, although the railway company were 
guilty of negligence (r). 

The application of the rule has arisen chiefly in ques- 
tions between employers and workmen, and in a case 
of this kind (under the Employers' Liability Act), Lord 
EsHER, M.R., stated the rule in the following words : " It 
seems to me to amount to this, that mere knowledge of the 
danger will not do ; there must be an assent on the part of 
the workman to accept the risk with a full appreciation of 
its extent, to bring the workman within the maxim Volenti 
non fit injuria. If so, that is a question of fact " (s). 
And LiNDLEY, L.J., added : "A workman who never in 
fact engaged to incur a particular danger, but who finds 
himself exposed to it, and complains of it, cannot, in my 
opinion, be held as a matter of law to have impliedly agreed 
to incur that danger, or to have voluntarily incurred it, 
because he does not refuse to face it. . . . If nothing 
more is proved than that the workman saw the danger, 
and reported it, but on being told to go on went on as before, 
in order to avoid dismissal, a* jury may, in my opinion, 

{q) Jones v. Boyce, 1 Stark. 493. 

(r) Woodley v. Metropolitan District Rail. Co., 2 Ex. D. 384. 
(s) Yarmouth v. France, 19 Q. B. D. 647, and see Williams y, 
Birmingham Battery Co., [1899] 2 Q. B. 338 [C. A.l. 



Volenti non fit Injuria. 187 

properly find that he had not agreed to take the risk, and Art. 87. 
had not acted voluntarily in the sense of having taken the — 

risk upon himself.^ Fear of dismissal, rather than voluntary 
action, might properly be inferred " (t). 

So, too, when a workman, engaged in an employment Smith v 
not in itself dangerojas, is exposed to danger arising from 
an operation in another department over which he has no 
control, the mere fact that he undertakes or continues in 
such employment with full knowledge and understand- 
ing of the danger is not conclusive to show that he has 
voluntarily accepted the risk {u). 

(t) Yarmouth v. France, 19 Q. B. D. 647. 
(u) Smith V. Baker cfc Som, [1891] A. C. 325. 



Baker. 



CANADIAN NOTES. 187a 

CANADIAN NOTES TO OHAPTEll VII. OF PAIIT II. 

Article 77. 

The general principles of the law of negligence, as 
defined in the text, are accepted throughout Canada. 

For an application of these principles to the case of a 
i;hysician see Ilanipton v. MacAdam (1912), 22 W. L. li. 
31 ; 7 D. L. R. 880, where the defendant, being called on 
to act in an emergency without the necessary equipment, 
was held to have done the best he could in the circumstances 
and was exonerated from liability. 

In Taijlor v. Robertson (1901'), 31 S. C. R. 615, the 
Supreme Court pointed out that a lawyer could 'not be 
considered negligent who advised his client in accordance 
with a recent decision of the court before which the case 
was to be heard, although the decision in question was. 
subsequently overruled. 

Article 78. 

The use of automobiles and other vehicles on the high- 
ways is now generally regulated by special statutes iii' 
the interest of the public safety. Compliance with these 
regulations is a duty which every ])erson using the high- 
way owes to all others. From this it follows that where 
an accident occurs through disregard of the statutory pre- 
cautions the driver is liable in damages, even apart from 
the general hiw of ne2:liuence : Stewart v. Steele (1912),. 
5 Sask. L. K. 358 ; 22 W. L. R. (! ; 2 W. W. R. 902 ; 6; 
1). ].. R. 1. 

Tlic tcndfiicy of provincial legislation in ("aiiada is to- 
increase the liability of autmnobile owners, and in some 
cases the Iturdeii of ])roving due care is thrown upon the- 
.leleiilant. See Ler/iiir v. Srirrei/, [1918] 2 W. W. R. 
3,S(i, illnstiating l^ S. Man. (I!)13), c. 131. 

Ak'TIcli-: ^i). 

Till' liability of tbe cari'ier is not necessarily discharged' 
iiv the fact that the |)assenger has rorl'eiled his right to 
be (arried. In /)n,>i?i v. Dominioti Atlanlir Hi/. Co. (1920),. 
(iO S. C. H. 310, a drunken passenger was put off a train 



187b CANADIAN NOTES. 

at a closed and unlighted station about one o'clock in tlic 
inornint;, and Mas subsequently found dead on the li)ie, 
having evidently been run over by another train. The com- 
pany was held liable for his death. But in another case 
■where the passenger, though slightly drunk, was capable of 
looking after himself, and was put off at an open and 
lighted station, it was held that the company was not to 
blame for his death: Delahanty v. Michigan Central Rv. 
(1905), 10 Ont. L. E. 388. 

It is also the duty of the company, so far as is reasonably 
possible, to protect passengers from the violence of drunken 
and disorderly fellow travellers : Ckumdian Pacific Ry. Co. 
V. Blain (190a), 3i S. C. R. 74; (1904), A. C. 453. This 
ruling is supported by a large number of American deci- 
sions. * 

The company owes no duty to a small boy who steals a 
ride on the cow-catcher: Wallace v. Canadian Pacific Ri/. 
Co. (1912), 6 D. L. E. 864. 

The relation of carrier and passenger does not neces- 
sarily terminate as soon as the passenger has alighted 
from the vehicle: see Barr v. Toronto Ry. Co. (1919), 46 
Ont. L. E. 64, where the negligence consisted in improp- 
erly starting a street car round a curve before the pas- 
senger had reached the sidewalk. 

Aeticle 80. 

In King v. Northern Navigation Co. (1912), 27 Ont. 
li. E. 79 ; 6 D. L. E. 69, the plaintiff's husband had been 
an engineer on the defendant's ship. While the ship was 
laid up for the winter he visited it for his own purposes, 
and was killed by falling through an unprotected hatch- 
way. The court held that he was a bare licensee and that 
the company was not liable. 

The student should refer to the careful analysis of the 
law on this subject by the High Court of Australia in 
South Australian. Co. v. Richardson (1915), 20 C. L. E. 
]81; 9 B. E. C. 52. The plaintiff's husband in this case 
was a lorry driver, and the fatal accident was caused by 
his lorry colliding with some rails which projected above the 
level of the road on the company's premises. The defence 
relied upon the fact that the danger was visible. After 
judgement for the defendant in the trial court the High 
Court affirmed the decision of the Supreme Court of Soutli 
Australia ordering a new trial. " In my opinion," said 



CANADIAN NOTES. 18Tc 

Griffith, C.J., '' the only material questions in the case 
are: (1) Whether the defendants invited the deceased 
to make use of the road for the purposes for whicli, and 
under the circumstances in which, he used it; (2) whether 
the road was reasonably safe for such use; and (3) if not, 
whether the deceased, either by using the road at all or 
in the manner of his use, failed to take reasonable care to 
avoid the consequences of the defendants' breach of duty, 
so far as he knew or ought to have known of it." 

The occupier cannot escape liability by delegating his 
duty to an independent contractor, but he is not liable if 
the dangerous condition is due to vis major, such as a vio- 
lent and unexpected storm : Valiquefte v. Fraser (1907), 39 
S. C. E. 1. See also Stewart x. Cobalt Curling and Skat- 
ing Association (1909), 19 Ont. L. R. 667, where the 
railing of a gallery at a hockey match broke beneath the 
weight of the plaintiff; the defendants were held liable, 
although they had employed a competent architect. 

The occupier is under a duty to passers-by, as well as 
to those entering the premises: see Lamarclie v. Les Rev. 
Peres OJjkits (1905), 29 Que. S. C. 138, where the plain- 
tiff, walking on the street, was injured by the fall of a 
decayed branch from a tree on the defendant's land. 

Since municipalities are usually bound by statute to 
keep the streets in repair, they are liable for accidents due 
to the icy condition of the sidewalks, if no attempt has 
been made to render them safe within a reasonable time : 
Tuohey v. City of Medicine Hat (1913), 7 D. L. R. 759; 
City of Sydney v. Slaney (1919), 59 S. C. R. 232. 

Article 81. 

In Quebec a bailee is known as a "'depositary," and l)y 
Article 1803 of the Code he is " bound to apply in the 
keeping of the thing deposited the care of a prudent 
administrator {hoti pere de famille)." In substance this 
amounts to the same as the common law rule. 

In Canada, as in England, the liability of the more 
important classes of bailees and de])ositaries, such as rail- 
way companies and hotel keepers, is now largely regulated 
by statute. 

Articlk 82. 

Some of the cases arising nnder this Article have ])e(Mi 
already considered under Artii-le 17 and tiie note thereto. 



]ST(I CANADIAN NOTES. 

Jt is siil)iiiitt('(l that the dist iiictioii (lr;i\vii in soiiie dec-isioiis 
between those objects wliicli arc "essentially dangerous"' 
and those which are oidy daniicrous thr()U<i"h iie^^liuence in 
manufacture is founded ujion no sufficient reason. See 
esjiecially BucUeij v. Molt (1919), 50 I). L. R. 408. Under 
tlie civil law also the manufacturer is delictually respon- 
sible for ])utting on the market goods that are dangerous 
owing to latent defects: Lajoie v. Rohcrl (1916), 50 Que. 
S. ('. 395; ;];3 I). L. M. 5::. 

Aeticle 83. 

The case of British Cotunihia Elect rir Ey. Co. v. Lonch 
(1916), A. C. :i9, cited in the text, is now the leading 
Canadian authority u|)()n this question. It has been com- 
mented upon by Lord Justice O'Connor of the Irish Court 
of Appeal in the Law Quarterly Review, vol. 38, p. 17. 
For a recent application of tlic ru'c, sc(> McJim .r \. loinl- 
reau (1921), IT Alta. L. K. 100. 

The law of contributory negligence is equally applicable 
to adults and to children, but with children the age and 
intelligence of the child must be considered in determining 
whether his conduct is in fact negligent. For example, in 
Moran v. Biirrouglis (1912), 27 Out. L. E. 539; 10 I). L. R. 
18, the defendant negligently allowed his son, a boy of 
twelve, to play with a loaded rifle. The plaintiff, a l)oy 
of about the same age, carelessly ran across the line of fire, 
and was injured. The Court of Appeal held that this 
negligence disentitled him to recover. So again it has been 
held that a boy of eight should have sufficient sense not 
to run needlessly in front of a street car: Sclnvartz v. Win- 
nipeg Electric 'By. Co. (1913), 23 Man. L. R. 483; 12 
I). L. E. 56. Cases such as Cool-e v. Midland c(- Great 
Western By. Co. (1909), A. C. 229, really rest upon tlie 
temptation or implied invitation held out to the child to 
play in a dangerous place: they should not be interpreted 
to meaji that a child cannot be debarred from recovering by 
reason of his own contributory negligence. 

The case of Waife v. Xorlli-Eastern By. Co., which is 
commented on adversely in ])ara. (6) of the text, rests 
upon the doctrine of " identification " whicli led to the 
erroneous decision in Tliorogood v. Bri/an. Since this 
doctrine has now been definitely condemned by the House 
of Lords in Tlie Benrna ( ISScS), 13 A. C. 1, it would seem 
that Waite's Case can no loni^fer be regarded as law. 



( 189 ) 



CHAPTER VIII. 

LIABILITY FOR BREACH OF DUTY TO PRE- 
VENT DAMAGE FROM DANGEROUS THINGS 
AND ANIMALS. 

Art. 88. — The Rule in Fletcher v. Rylands (a). 

(1) The person who for his own purposes 
brings on his land and collects and keeps there 
anything likely to do mischief if it escapes, must 
keep it in at his peril, and, if he does not do so, 
is prima facie answerable for all the damage 
which is the natural consequence of its escape. 

(2) He can excuse himself by showing — 

(a) That the escape was owing to the plaintiff's 

default. 

(b) That the escape was the consequence of 

the act of God, or vis major. 

(3) That the escape was due to the wrongful 
act of a stranger over whom the defendant had 
no control. 

(4) The rule does not apply — 

(a) Where the person charged has not himself 

brought, collected or kept the thing on 
his land. 

(b) Where he has brought or collected and 

(a) L. R. 1 Ex. 265 [Ex. Ch.] ; affirmed in the House of Lords, sub- 
nom. Rylands v. Fletcher, L. R. 3 H. L. \VM). The first paragraph 
of the Rule here given is quoted from the judgment of the Exchefjuer 
Chamber dehvered by BLACKUtUN, .). The other paragraphs are 
taken partly from that judgment and partly from later cases referred 
to in the explanatory note and illustrations. The application of 
this principle of liability to those who cause damage by the 
explosion of matfsrials use<l in manufacturing pi-ocesses is exempli- 
fied in liuinhain (Jhemiait Workii v. Jielvedere Fisli (/ikiho Co.. \ 192! | 
W.N. 281. 



190 



Liability for Breach of Duty, etc. 



Art. 88. 



Explanation. 



Principle 
of rule. 



Excuses. 



(c) 



kept it not solely foi' his own purposes 
but wholly or in part for the benefit 
of the person who is damaged by its 
escape. 
If he has statutory authority for bringing, 
collecting or keeping it on his land. 



(5) The defendant is only liable for the natural 
consequences of the escape. 

The famous case of Fletcher v. Eylands (b) is the leading 
authority on this rule — in fact, perhaps the first case in 
which the rule was laid down with precision, though it had 
been applied in many earlier cases. In a very early case 
the rule was succinctly stated by saying that it is the duty 
of a man to keep his own filth in his own ground (c). In 
Fletcher v. Rylands the dangerous thing was a large body 
of water. The rule has also been applied to such things as 
electricity [d), yew trees (e), wire fencing (/), and sewage ((/), 
and (with some modifications) is the foundation of the 
liability for damage done by animals and fire {h) . 

The principle of the rule is that a person who brings on 
his land for his own purposes a thing of the kind mentioned 
in the rule, must keep it at his peril, and is jprimd facie 
answerable for all the damage which is the natural con- 
sequence of its escape. 

Blackburn, J., says : " He can excuse himself by 
shewing that the escape was owing to the plaintiff's de- 
fault {i), or perhaps that the escape was the consequence 
of vis major, or the act of God ; but as nothing of this 

(b) L. R. 1 Ex. 2G5 ; L. R. 3 H. L. 350. 

(c) Tenant v. Goldwin, 1 Salk. 360 ; 2 Lord Raym. 1089. 

(d) National Telephone Co. v. Baker, [1893] 2 Ch. 186 ; Eastern 
and South African Telegraph Co. v. Cape Town Tramways Co., [1902] 
A. C. 381 [P. C.]. 

(e) Crowhurst v. Amersham Burial Board, 4 Ex. D. 5. 
(/) Firth V. Bowling Iron Co., 3 C. P. D. 254. 

(g) Te)uint v. Goldwin, supra ; Ballard v. Tomlinson, 29 Ch. D. 115 
[C. A.] ; Foster v. Warblington Urban Council, [1906] 1 K. B. 648 
[C. A.]. 

(h) See Arts. 89, 90. (i) See Art. 11, ante. 



The Rule in Fletcher v. Rylands. 191 

sort exists here it would be unnecessary to inquire what Art. 88. 
excuse would be sufficient " [j). 

This leading case is then an authority for saying that 
failure to keep from escaping a dangerous thing brought 
on your land for your own purposes gives rise to a priind 
facie liability for the damage naturally resulting from such 
escape. It goes no further than this, as no evidence was 
brought before the court to provide excuses for the escape 
of the water, and so to rebut the prima facie case against 
the defendant. 

(1) The plaintiff was the lessee of mines. The defendant Illustrations. 
Avas the owner of a mill, standing on land adjoining that Rylands v. 
under which the mines were worked. The defendant Fletcher. 
desired to construct a reservoir, and employed competent 
persons to construct it. The plaintiff had worked his 
mines up to a spot where there were certain old passages 
of disused mines ; these passages were connected with 
vertical shafts communicating with the land above, which 
had also been out of use for years, and were apparently 
filled with marl and earth of the surrounding land. Shortly 
after the water had been introduced into the reservoir it 
broke through some of the vertical shafts, flowed thence 
through the old passages, and finallj^ flooded the plaintiff's 
mine. The gist of the action was the collecting of the 
water and not keeping it from escaping, and to the prima 
facie case raised by these facts the defendants offered no 
answer {j). 

In 1875 the next important case (k) which followed this 
decision raised the question of what would amount to an 
answer to the prima facie case set up in Rylands v. Fletcher ; 
and it Avas decided that in the absence of negligence on 
the part of the defendant act of God or vis major causing 
the escape of the dangerous thing amounts to an excuse, 
and such defendant is consequently not liable for the 
resultant damage. 

0) Rylands v. Fletcher ( 18(58), L. H. .'5 It. L., at j). .•}40. 

(k) Nicholn V. Marnland, 2 Ex. D. 1 [C. A. | ; Greenock Corjiora- 
tion V. Caledonian Hail. Co., [1917] A. C, distinguished at bottom of 
I). 573. 



192 



Liability for Breach of Duty, etc 



Art. 88. 



Act of God. 



Box V. Jiibb. 

Third party 
bringing 
thing on to 
defendant's 
land. 



(2) On the defendant's land were artifieial pools con- 
taining large quantities of water. These pools had been 
formed by damming up, with artificial embankments, a 
natural stream, which rose above the defendant's land 
and flowed through it, and which was allowed to (>scape 
from the pools by successive weirs into its original course. 
An extraordinary rainfall caused the stream and the water 
in the pools to swell, so that the artificial embankment 
was carried away by the pressure, and the water in the 
pools, being suddenly loosed, rushed down the course of 
the stream and injured the plaintiff's adjoining property. 
The plaintiff having brought an action against the de- 
fendant for damages, the jury found that there was no 
negligence in the construction or maintenance of the 
pools, and that the flood was so great that it could not 
reasonably have been anticipated. The court found that 
this was in substance a finding that the escape of the 
water was caused by the act of God or vis major, and that 
accordingly the defendant was not liable (/). 

This was followed in 1879 [m) by a decision that where 
a third party over whom the defendant has no control 
brings a dangerous article on to defendant's land and 
thereby causes this new danger and the defendant's article 
to escape, in the absence of negligence on the part of the 
defendant he is not liable for the damage resulting from 
the third party's action. 

(3) And so again where the reservoir of the defendant 
was caused to overflow by a third i)arty sending a great 
quantity of water down the drain which supplied it, and 
damage was done to the plaintiff, it was held that the 
defendant was not liable ; for the overflow was not caused 
by anything Avhich he had done, nor had he any reasonable 
means of preventing it. As Pollock, B., said : " Here 
this water has not been accumulated by the defendants, but 
has come from elsewhere and added to that which was 
properly and safely there. For this the defendants . . . 
cannot be held liable " (m). 



(I) Nichols V. MarsUtnd, supra, 
(m) Box V. Jubh, 4 Ex. D. 7(). 



The Rule in Fletcher v. Rylands. 193 

In 1913 the Judicial Committee of the Privy Council Art. 88. 

decided that where the escape of the dangerous article is 

caused by the maUcious act of a third person over whom 
the defendant had no control, and \\ithout negligence 
on the part of the defendant, the latter is not liable for 
damage which results from such escape (??). 

(4) Where the defendant was lessee of a building and 
plaintiff his tenant of part of the second floor, the plaintiff's 
premises were damaged through the flow of water from 
the lavatory on the fourth floor due to the turning on of 
the water-taps and plugging up of the waste-pipes by the 
mahcious act of a third person over whom the defendant 
had no control, it was held that as no neghgence on the 
part of defendant was shown and as it was not reasonable 
that the defendant should have anticipated the inter- 
ference of the third party which actuaUy caused the escape 
of the water, the defendant could not be said to have 
caused its escape and in consequence was not liable (ri). A 
distinction was drawn in this case between the natural and 
non-natural user of property (o). 

It has been held that this rule does not apply where the Escape of 

water which escapes has accumulated on the defendant's Y%-^^ 

7 falling on 

land by natural causes, and the defendant has done nothing land. 

to cause it to accumulate (p), and has taken no active 

means to cause it to escape on to his neighbour's land (g). 

(5) The defendant was owner of a house which he let out Not for 

in floors to separate tenants. The different floors were "^ °^™ 
■t . purposes. 

suppHed with water from a cistern at the top of the house. 
One of the supply pipes burst and the plaintiff's tenement, 
in the basement, was flooded. As the defendant had 
stored the water for the benefit of the plaintiff (along 
w ith the other tenants) he was not liable in the absence of 

(n) Rickards v. Lothian, [191.3] A. C. 2G3. 

(o) [ 1 9 1 3 ] A. C. , at p. 280 : and compare tho reasoning in this case 
with that in Iluoff v. Long d' Co., [1910] 1 K. B. 148. 

(p) Wilson V. Waddell, 2 App. Cas. 95 ; and see Fletcher v. Smith, 
•2 App. Cas. 781. 

(7) WhfilUy V. LanctLshire (tnd Yorkshire Hail. Co., \?, Q. B. D. 131 
[C. A.]. 

o 



194 Liability for Breach of Duty, etc. 

Art. 88. negligence (r). And the same rule applies where water is 

stored partly for the plaintiff's benefit and partly for the 

defendant's {s). 

Yew trees (6) If a person plants on his own land yew trees and they 

and thistles. gj.Q^ gQ ^j^a^^ ^j^e branches project over his neighbour's 
land, and his neighbour's horses and cattle eat of them 
and are poisoned, the person planting the yew trees is 
liable for this natural consequence of their escape {t). 
But he is not liable if his neighbour's cattle stray on to 
his land and eat them ; for it is his neighbour's duty to 
keep his cattle from straying (u). Also a landlord is not 
liable if he lets premises adjoining his outi with his yew 
trees overhanging the premises let at the time the letting 
begins, for the tenant must take the premises as he finds 
them (v). Nor is he hable if he has not planted them on 
his" land and clippings escape on to his neighbour's land 
without his knowledge (w). So also a person is not liable 
for the escape from his land of thistle seeds, when the 
thistles have grown natural^ on his own land {x). 

Art. 89. — Damage by Animals. 

(1) A person who keeps a wild animal or a 
domestic animal known by him to be vicious 

keeps it at his peril, and is liable for all the 
natural consequences of his not keeping it 
securely, such as attacks on mankind (?/). 

(2) A person who keeps a dog is liable for any 
injury it causes to cattle, sheep, horses, etc., 

(r) Anderson v. Oppenheimer, 5 Q. B. D. 602 [C. A.]. 

(s) Carstairs v. Taylor, L. R. 6 Ex. 217 ; Whitmorcs Edenbridge, 
Limited v. Stanford, [1909] 1 Ch. 427. 

(t) Crowhurst v. Amersham Burial Board, 4 Ex. D. 5, explaining 
Wilson V. Newberry, L. R. 7 Q. B. 31. 

(u) Pouting v. Noakcs, [1894] 2 Q. B. 281. 

{v) Cheater v. Cater, [1918] 1 K. B. 247. 

{w) Wilson V. Newberry, L. R. 7 Q. B. 31. 

{x) Giles V. Walker, 24 Q. B. D. 656. 

(y) Filburn v. People's Palace, 25 Q. B. D. 258 [C. A] ; Baker v. 
Snell, [1908] 2 K. B. 825. 



Damage by Animals. 195 

although he does not know it has any propensity Art. 89. 
to attack them (2;). 

(3) A person who keeps a dog or other 
domestic animal is not liable for the conse- 
quences of its attacking mankind unless he 
keeps it with knowledge that it has a propensity 
to attack mankind (a). 

Animals are of two kinds in law : Explana- 

(i) Wild animals, i.e., animals which are not ordinarily 
kept in captivity in this country. 

This class includes elephants (b), bears (c), monkeys (d), 
and doubtless many others. These animals a man keeps 
at his peril, whether or not he knows that the particular 
specimen is dangerous. 

(ii) Domestic animals, including dogs (e), horses (/), 
bulls (g), rams {/>), and others. 

These animals are not, in theory of laAV, necessarily 
dangerous, and an o^\^ler does not keep them at his peril, 
unless in the particular case he knows the animal is 
dangerous. If he knows the animal is dangerous he 
keeps it at his peril just as if it were a wild animal (i). 
The case of Baker v. Snell {j) is quoted as the authority for 
saying that the keeper of an animal known to be dangerous 
keeps it at his peril and is liable for damage, however 

■ (2) Dogs Act, 1906 (6 Edw. 7, c. 32), s. 1 (1). 

(a) Cox V. Burbidge, 13 C. B. (n.s.) 430 ; Osborne v. Chocqueel, 
[ 1 89G] 2 Q. B. 109 • but see Clinton v. J. Lyons d: Co., Limited, [1912] 
3 K. B. 198. 

(6) Filburn v. People's Palace, 25 Q. B. D. 258. 

(c) Besozzi V. Harris, 1 F. & F. 92. 

\d) May v. Burdett, 9 Q. B. 101. 

(e) Baker v. Snell, [1908] 2 K. B. 825. 

(/) Cox V. Burbidge, 13 C. B. (n.s.) 430. 

(g) Hudson v. Roberts, G Ex. 697. 

(h) Jackson v. Smithson, 15 M. & Q. 563. 

{i) But a man is not liable for wliat is done by a dog belonging to 
his seventeen -year-old daughter who lives with him (North v. Wood, 
[1914] 1 K. B. 629). 

[j) [1908] 2 K. B. 825. 



196 Liability for Breach of Duty, etc. 

Art. 89. caused, which results from its activities. This appears 

to be the decision of Cozens Hardy, M.R., and Farwell, 

L.J., based apparently on the view that to keep an animal 
knowing it is dangerous is of itself a wrongful act. These 
judges in their judgments refer with approval to the words 
respectively of Mellish, L.J., in Nichols v. Marsland (k), 
and Blackburn, J., in Rylands v. Fletcher (Z), delivering 
the judgments of their respective courts, where the person 
who brings and keeps a dangerous thing on his land is 
held to be answerable for damage done by not keeping it 
secure, subject to the exceptions of act of God, vis major, 
or the ])laintiff's own default. Yet Blackburn, J., says 
that a man is subject to an equal degree of liability 
for whatever he keeps that is likely to do mischief, and 
this dictum, contained in this judgment, is quoted with 
approval by Kennedy, L.J., in his dissenting judgment in 
Baker v. Snell (at p. 835) , where he takes the view, apparently 
supported by Channell, J., in the court below, that the 
liability of the keeper is made out prima facie only by the 
damage caused by the action of the dangerous thing. 
If this view be correct, then the keeper of the dangerous 
thing is entitled to put forward a ground of exemption 
from liability if he can show such ground. In Nichols 
V. Marsland, act of God or vis major was held, in the absence 
of negligence, and where it was the sole cause of the escape 
of the danger, to be a ground of exemption ; and based on 
that decision is the recent decisionof Richards v. Lolhian [m] , 
where in the absence of negligence the malicious act of a 
third party was held also to be a ground of exemption 
from liability for resultant damage. It is submitted that, 
despite the actual decision in Baker v. Snell, there are 
strong grounds for the view that the liability for any 
dangerous article brought and kept on the defendant's 
land is on the same basis, and that Rickards v. Lothian 
now represents the true view of such liability. 

Scienter. Knowledge of the savage character of an animal is 

usually called scienter. The plaintiff in suing for damages 
for a bite of the defendant's dog must always prove scienter. 

(A) L. R. 10 Ex. 255. (/) L. R. 1 Ex. 265. 

(m) [1913] A. C. 2(13. 



Damage by Animals. 197 

If he does not, he will fail. In the case of dogs, it is usually Art. 89. 

proved by evidence that the dog has, to the knowledge of 

the defendant, on a previous occasion bitten or attempted 
to bite a human being (n). It may be proved in other 
ways, as, for instance, by evidence that the defendant 
had told people " to beware of the dog " (o). It must be 
proved that the dog was known to be '" accustomed to 
bite mankind." Accordingly it is not enough to prove a 
previous tendency to bite other animals — for an animal 
may be disposed to bite other animals and yet not savage 
qua human beings (p). 

It has been held that, if the owner of the dog appoints a 
servant to keep it, the servant's knowledge of the animal's 
disposition is the knowledge of the master, for it is know- 
ledge acquired by him in relation to a matter within the 
scope of his employment (q). But if another basis for 
the action can be found, e.g., trespass, then the need to 
prove scienter no longer exists (r). 

At common law an action did not lie against an owner of Dogs Act, 
a dog which bit or worried sheep or cattle, without proof 1906. 
of scienter. But now this is altered by statute (s), and 
the owTier is liable in damages for injury done to any 
cattle, horses, mules, asses, sheep, goats or swine, and it 
is not necessary to prove the previous mischievous pro- 
pensity of the dog. 

Scienter must be proved even in the case of such animals Bulls, 
as bulls and rams, though it is well known that they are 
often dangerous ; but no proof of scienter is necessary 
where a human being is attacked by the usually harmless 
elephant. He is in contemplation of law a wild animal 
which any person keeps at his peril {t). 

(n.) A proof of an attempt to bite is enough (Worth v. Gilling 
L. R. 2C. P. 1). 

(o) Judge v. Cox, 1 Stark. 285 ; Hudson v. Roberts, 6 Ex. 697. 

(p) Osborne v. Chocqueel, [1896] 2 Q. B. 109. 

(q) Baldwin v. Casella, L. R. 7 Ex. 325. 

(r) Theyer v. Purnell, [1918] 2 K. B. 333. 

(s) Dogs Ar:t, 1906 (6 Echv. 7, c. 32), ss. 1, 7, repealing and (on this 
point) ro-enacling the Dogs Act of 1865 to the same olfect. 

{t) Filburn v. Peoples Palace, 25 Q B. D. 258. 



198 



Liability for Breach of Duty, etc. 



Art. 89. 

Animals 
straying on 
to highway. 



Animals 
straj'ing 
from high- 
ways. 



Trespass by 

domestic 

animals. 



Though it is the duty of an owner of a domestic animal 
to keep it on his own land, and lie may be liable if it 
escapes on to a highway for such damage as an animal of 
the kind would be likely to do, yet he is not liable for all 
the consequences of its escape. Thus, if a horse not known 
to be dangerous escapes, the owner will not be liable for 
the biting or kicking a human being (u). 

So, too, where a fowl straying on a highway was 
frightened by a dog, and flew into the spokes of the wheel 
of a passing bicycle, and the bicyclist was thereby thrown 
and injured, it was held that this was not a natural conse- 
quence of the straying of a fowl (v). 

It may be added that where a person is lawfully using a 
public highway for driving an animal, he is not under an 
absolute liability to prevent it from straying. If without 
negligence on his part it leaves the highway and does 
damage to an adjoining o^^^ler's land, he is not liable ; 
for, though a man must keep his animals from trespassing 
from his own land on to his neighbour's, there is no obliga- 
tion on persons using a highway to fence it, and the owner 
of land adjoining a highway must protect himself [w). Of 
course this will not justify wilful trespass, or even negli- 
gence in allowing animals to trespass from a highway. 

There is a duty on a man to keep his cattle in ; and if 
they stray on another's land he is liable in trespass for the 
natural and direct consequences of their so doing. So, if a 
horse gets out of a field through a defective fence and 
trespasses on another's land, the owner is liable even for 
damage it does by kicking another horse, that being a 
natural consequence of the trespass (x). And even if a 
horse merely kicks another through a fence, the owner 
may be liable, as it is a trespass even to put one foot over 

(u) Cox V. Burbidge, 13 C. B. (n.s.) 430; Jones v. Lee (1912), 
106 L. T. 123. 

(v) Hadwell v. Righton, [1907] 2 K. B. 345 ; and compare Higgins 
V. Searle, 100 L. T. 280 [C. A.], damage resulting from a sow's fright 
at the horn of a passing motor. 

(w) Tillettv. Ward, lOQ.B.B. n. The owner of cattle straying on 
to landis bound to remove them within a reasonable time, i.e., reason- 
able in all the circumstances {Goodtryn v. Chevcley, 4 H. & N. 631). 

(x) Lee V. Riley, 18 C. B. (n.s.) 722. 



Damage by Animals. 199 

the boundary of another's land {y). As between two Art. 89. 

adjoining owTiers of land there may, however, be a duty 

imposed on one by grant or prescription to fence for the 
benefit of the other. If animals stray by reason of a 
neglect of this duty, such straying is not actionable (2). 

In Loivery v. Walker (a) it was held in the Court of Liability to 
Appeal that an occupier of land who kept on it a horse trespassers. 
which he knew was bad-tempered and prone to bite, was 
not liable to a trespasser who was bitten. In the House 
of Lords the decision was reversed on the ground that 
the plaintiff was not a trespasser ; but the decision in the 
Court of Appeal seems to be sound, on the assumption that 
the plaintiff was a trespasser. If it were not so, no farmer 
could safely keep a savage bull. But towards licensees 
the general proposition applies, and the owner is bound to 
secure them from injury by an animal which he knows 
to be savage. 



Art. 90. — Duty to keep Fire from doing Mischief. 

(1) If a person intentionally makes a fire on 
his land he must see that it does no harm to 
otliers and answer the damage if it does (6). 

(2) Tf a person by his negligence allows a fire 
to arise on his land he is liable if it spreads to 
his neighbour's land and does damage (c). 

(3) If a fire accidentally arises on a person's 
land and it spreads without negligence on his 
part he is not answerable (d). 

(y) Ellis V. Lojtus Iron Co., L. R. 10 C. P. 10. 
(z) See Boyle v. Tamlyn, 6 B. & C. 329. 
(a) [1910] 1 K. B. 17.3 [C. A.] ; reversed, [1911] A. C. 10. 
(6) Tubervil v. Stamp, 1 Salk. 13. 

(c) Vaughan v. Menlove, 3 Bing. N. C. 408 ; Filliter v. Fhippnrd, 
11 Q. B. 347. 

{(1) Fires Prevention (Metropolis) Act, 1774 (14 Geo. 3, c. 78), s. 86, 
not limited to the metropolis. See Filliter v. Phippard, 11 Q. B. 
347 ; and as to wliat is and wliat is not an accidental fire, see Musgrove 
V. Fundelis, [19191 2 K. 15. 43. 



200 



Liability for Breach of Duty, etc. 



Art. 90. (4) Where a person brings fire into dangerous 

proximity to another's land without statutory 
authority lie does so at his peril, and is lia])]e if 
it does damage (e). If he has statutory autho- 
I'ity he is only liable if the damage results from 
negligence in using his statutory powers (/). 

Explanation. Fire is obviously a thing which, if not kept within 
bounds, may do great mischief, and the common law rule 
seems to be that a person lights any fire on his land or in 
his house at his peril ; though he is not liable for damage 
done by a fire which begins accidentally {i.e., without 
negligence) or is lighted by a third person. 

Illustrations. \Miere the defendant's servant, cleaning his car in 
plaintiff's garage, turned the starting handle and a flame 
shot up from the carburettor, whereupon the servant 
neglected at once to turn off the petrol supply tap, with 
the result that the fire extended to the tanks and thence 
damaged plaintiff's garage, it was held that s. 86 of the 
Fires Prevention (Metropolis) Act, 1774, was no defence, 
because (1) the fire which caused the damage was not the 
fire in the carburettor, but the subsequent one in the 
petrol tanks caused by the servant's neglect to turn off 
the petrol supplj^ tap ; (2) that the statute left unaffected 
the common-law liability of the defendant as owner 
of a potentially dangerous thing which causes damage. 
Defendant was therefore liable (g). 



Liability of 

railway 

companies. 



A person who, without statutory authority, uses a steam- 
engine on a highway or a railway, is liable for all damage 
done by escaping sparks setting fire to crops, etc., quite 
apart from neghgence. He uses the fire at his peril {h). 
But railway companies which have statutory authority for 
using locomotives are, as we have seen, protected by their 

(e) Mamsel v. Webb (1918), 88 L. J. K. B. 323. 

(/) Jo7}€s V. Festiniog Rail. Co., L. R. 3 Q. B. 733 ; Powell v. 
Fall, 5 Q. B. D. 597 [C. A.] ; Smith v. London and South Western 
Rail. Co., L. R. 6 C. P. 14 [Ex. Ch.]. 

(g) Musgrove v. Pandelis, [1919] 2 K. B. 43. 

(h) Jones v. Festiniog Rail. Co., L. R. 3 Q. B. 733 ; Powell v. Fall, 
5 Q. B. D. 597 ; Mansel v. Webb, supra ; cf. Wing v. London General 
Qrnnibus Co., [1909] 2 K. B. 652, 



Duty to Keep Fire from Doing Mischief. 201 

statutory authority from this absolute liabihty, and are, at Art. 90. 

common laAv, not liable for fires caused by sparks without 

negligence (i). But they are liable if they cause fires by 
their negligence (^i"). But when the statutory authority 
is not directive but discretionary due consideration must 
be given to the rights of other? (k). 

By the Railway Fires Act, 1905 (/), railway companies Railway 
are made responsible for damage done to agricultural ,q!?-^ ' 
land or agricultural crops by fire arising from sparks from 
locomotive engines, notwithstanding that the engine is 
used with statutory authority, provided the claim for damage 
does not exceed £100. Railway companies are by the same 
Act given powers of entering on land for the purpose of 
extinguishing or arresting fire, and of doing certain things 
to diminish the risk of fire. 

(^) Vaughan v. Tujf Vale Rail. Co., 5 H. & N. 679 [Ex. Ch.]. 
(j) Smith V. London and South Western Rail. Co., L. R. 6 C. P. 14 
[Ex. Ch.]. 

(A-) Morrison v. Shfffield Corporation, [1917] 2 K. B. 866. 
(I) 5 Echv. 7, c. 11. 



CANADIAN NOTES. 201a 



CANADIAN NOTES TO CHAPTEE VIII. OF 
PAET II. 

Article 88. 

The doctrine of Fleiclier v. Rylands was applied by the 
Privv Council in the Quebec case of Quebec Light, Heat, 
and Power Co. v. Vandnj (1920), A. C. 662, where the 
damage was caused by high tension electric wires being 
blown down in a storm. The wording of the Code (Art. 
lOo-l) makes a defendant liable for damage caused "by 
things which he has under his care," but the accepted 
doctrine is that these words refer only to things of an 
exceptionally dangerous nature. 

Article 89. 

In Connor v. Princess Theatre (1912), 27 Ont. L. R. 
466; 10 D. L. R. 143, the court held that where wild ani- 
mals are kept for any legitimate purpose the keeper is free 
from lial)ility, provided that he can shew that he took all 
proper precautions for safe custody, having regard to the 
dangerous character of the animal in question. In this case 
the damage was caused by a monkey which was kept in the 
custody of one of the performers, not on the theatre prem- 
ises, but in an adjoining yard. 

Article 1055 -of the Quebec Code makes an owner liable 
for the damage caused by his animals, but this has been 
interpreted to mean that he can escape liability if he 
proves that he took all proper precautions and could not 
liave prevented the damage: Du, Tremble v. Poulin (1917), 
48 Que. S. C. 121. If the animal was under the control 
of the owner at the time of the injury, the case must be 
decided according to the general rules of negligence under 
Article ]05;i: Denis v. Kennedy (1914), 46 Que. S. C. 
459. The Quebec law draws no distinction between differ- 
ent classes f)f animals. 

Article 90. 

W'bctlicr in the forests or on the prairies the (hmger from 
fire is such a serious mcnMcc in Canada that all the ])rov- 



2011) CANADIAN NOTES. 

iliccs l);i\r loiiiid it iicccssai'V to siipplcinciit tlic coiuiiion 
law rules (if liiihility hy s|it'cial statutory ri\u'ulations, 
which usually prcscrihc in drtail the |)i'('('auti()iis that must 
he taken hy any |)crs(in wlm starts a (ii'c Xrii'lcct of the 
statutory precautions is sullicient to make a derendant 
liable: Beitger v. TuniiT (1914), 27 W. L. W. ()25 ; 1(5 I). 
L. K. 484. See also Moselei/ v. Kclclniui (li)lO), 3 Sask. 
L. I\. 29, where the policy of the statutes is reviewi'd : 
Imperial Oil Co. v. Bnshforil ( 1912), 4 Sask. L. E. ;3G0. 

By section 2!)8 of the Railways Act {l\. S. ('. c. 3?), rail- 
way c()inpanies are made liable, irrespective of ne<i;li(i^enee, 
for lii'es cause(| hy locomotives, hut the total liability for 
any one tire is limiteil to $5,000, pro\ided that all proper 
precautions have been taken, and the court may apportion 
this sum, if there is more than one |)laintiir. Railway 
oompanies are also bound to comply with the rules laid 
down in the ])rovincial statutes. 



( 203 ) 



CHAPTER IX. 

LIABILITY OF EMPLOYERS FOR INJURIES TO 
THEIR SERVANTS AND WORKMEN. 

SECTION I.— COMMON-LAW LIABILITY. 

We have seen {ante, Art. 27) that generally a master is 
liable for the negligence of his servants committed in the 
course of their employment ; but the liability of a master 
to his servant for an injury resulting from the negligence of 
a fellow-servant differs materially from his liability to a 
third party for a similar injury, by reason of the common- 
law rule that a master is not so liable where the injurer and 
the injured are the servants of a common master in a 
common employment, and the injury was inflicted in the 
course of that employment. 

This rule, knowTi as the doctrine of common employ- Common 
ment, was founded on the idea that the servant takes all employment 
the risks incident to his employment as part of the contract 
of service. With regard to servants generally it still exists, 
but with regard to certain classes of servants Parliament 
has of late years made large exceptions to it (1) by the 
Employers' Liability Act, 1880, and (2) by the Workmen's 
Compensation Act, 1906. The Employers' Liability Act, Employers' 
1880, does not abolish the doctrine of common employment, Liability 
but it gives a remedy by action for damages in certain 
specific cases to servants who are injured by the negligence 
of their fellow-servants in the course of their employment. 

The Workmen's Compensation Act does not abolish the Workmen's 
doctrine of common employment or repeal the Employers' Compensa- 
Liability Act, but it gi ves to all servants to whom it applies 
a statutory right to be compensated by their masters 
for accidents suffered by them in the course of and arising 
out of their employment, whether sucli accidents are 
caused by the negligence of a fellow-servant or nf)t. In 



204 Liability for Injuries to Servants. 

other words, it gives to servants to whom it apphes a right 
to compensation quite independent of any tort whatever. 
Its consideration, therefore, does not fall strictly within 
the scope of this work. But the importance of the subject 
is such that the student may reasonably expect to find some 
account of the Act and its main provisions. 



Art. 91. — The Doctrine of Common Employment. 

(1) A master is not liable to his servant for 
damage resulting from the negligence or unskil- 
fiilness of his fellow-servant in the course of 
their common employment. 

(2) The doctrine only applies when there is 
both a common master and common employ- 
ment under that master. 

(3) Common employment does not necessarily 
imply that both servants should be engaged in 
the same or even similar acts, or in the same 
grade of employment, so long as the risk of 
injury from the one is so much a natural and 
necessary consequence of the employment which 
the other accepts, that it must be included in 
the risks which must be contemplated as inci- 
dent thereto {a). And the defence of common 
employment is good against an infant {h). 

(4) A master who is personally negligent is 
liable to his servant for damage resulting from 
such negligence ; and such negligence may 
consist in — 

(a) employing another servant knowing him 
to be incompetent or without making 

(a) Morgan v. Vale of Neath Rail. Co., L. R. 1 Q. B. 149 [Ex. Ch.] ; 
Allen V. New Gas Co., 1 Ex. D. 251. 

(b) Heasmer v. Pickfords, Limited (1920), 36 T. L. R. 818. 



The Doctrine of Common Employment. 205 

proper inquiries as to his compe- Art. 91. 
tence (c) ; 

(b) retaining in his employment a servant 

whom he knows to be habitually 
negligent (d) ; 

(c) allowing the premises, plant or machinery 

to be in a dangerous condition, when 
he knew or might have known they 
were dangerous (e) ; 

(d) breach of an absolute unqualified duty 

imposed upon the employer by statute 
to do something for the protection of 
workmen (/). 

The rule was first established in Priestley v. Fowler (g). Explanation 
In that case a butcher's man was ordered to deliver meat of ^xile. 
from a van. The van was overloaded by the negligence 
of a fellow-servant, in consequence of which it broke do\vn 
and the butcher's man was hurt. The master was held 
not liable. 

It was further established in Hutchinson v. York, New- 
castle and Berwick Rail. Co. (Ii), in which it was held that 
where a servant of a railway company in discharge of his 
duty as such was proceeding in a train under the guidance 
of other servants of the company, through whose negligence 
a collision took place, and he was killed, his personal repre- 
sentatives had no cause of action. The foundation of the 
doctrine is " that, under the circumstances, the injured 
person must be taken to have accepted the risks involved 
by putting himself in juxtaposition with other persons 
employed by the same employer, whose presence is inci- 
dental to the occupation in which he is engaged, and 

(c) Tarrant v. Webb, 18 C. B. 797. 

(d) See Senior v. Ward, 28 L. J. Q. B. 139. 

(e) Williams v. Birmingham Battery, etc. Co., [1899] 2 Q. B. .338 
[C. A.]. 

(/) Grovefi v. Lord Wimhorne, [1898] 2 Q. B. 402 [C. A.]. See 
Butler V. Fife Coal Co., [1912] A. C. 149 ; Watkins v. Naval Colliery 
Co., [1912] A. C. (593. 

(g) (1837) 3 .M. & W. 1. (A) (18.10) .") Kx. 343. 



206 



Liability for Injuries to Servants. 



Art. 91. 



Illustrations 

Common 
employ- 
ment. 



cannot complain of that which is a necessary or reason- 
able incident of the situation in which he has voluntarily 
placed himself " (i). 

(1) The driver and guard of a stage-coach ; the steers- 
man and rowers of a boat ; the man who draws the red- 
hot iron from the forge, and the man who hammers it into 
shape ; the person who lets down into, or draws up from, 
a pit the miners working therein, and the miners them- 
selves ; all these are fellow-servants within the meaning 
of the doctrine (j) ; and so are the captain of a ship and the 
sailors employed under him {k) ; and the scene-shifter and 
the chorus girl engaged to sing in a pantomime {I). 

(2) In Morgan v. Vale of Neath Rail Go. (m) , the plaintifif 
was in the employ of a railway company as a carpenter, to 
do any carjDenter's work for the general purposes of the 
company. He was standing on a scaffolding at work on 
a shed close to the line of railway, and some porters in 
the service of the company carelessly shifted an engine 
on a turntable, so that it struck a ladder supporting the 
scaffold, by which means the plaintiff was thrown to the 
ground and injured. It was held, however, that he could 
not recover against the company ; on the ground that 
whenever an employment in the service of a railway 
company is such as necessarily to bring the person accepting 
it into contact with the traffic of the line, risk of injury 
from the carelessness of those managing that traffic is one 
of the risks necessarily and naturally incident to that 
employment. 

(3) Where a workman was, after his day's work was 
done, going home in a train which the colliery company 
ran voluntarily for the convenience of the colliers and was 
kiUed by the negligence of a servant of the company 

(i) Per Collins, M.R., in Burr v. Theatre Royal, Drury Lane, 
Limited, [1907] 1 K. B. 544 [C. A.], at p. 554. 

(j) Barton's Hill Coal Co. v. Reid, 4 Jur. (n.s.) 767 [H. L.]. 

(k) Hedley v. Pinkney cfc Sons Steamship Co., [1892] 1 Q. B. 58 
[C. A.]. 

{I) Burr V. Theatre Royal, Drury Lane, Limited, [1907] 1 K. B. 
544. 

(m) L. R. 1 Q. B. 149 [Ex. Ch.]. 



The Doctrine of Common Employment. 207 

employed in mending a bridge, it was held that the collier Art. 91. 

and the other were in common employment, though the 

accident happened whilst the deceased was not being 
actually employed, as he must be deemed to have under- 
taken the risk of such an accident {n). 

(4) But when a coUision occurred between two steam- Common 
ships belonging to the same owners, it was held that the "I'ister but 

r 1 • A J. ■ 1 1. ■j.T J.1 ^^^ common 

crew oi ship A. were not m common employment with the employ- 
crew of ship B. (although employed by the same masters), ment. 
so as to protect the owners from habiHty to the crew of 
ship A. for the neghgence of their servants, the crew of 
ship B. (o). 

(5) Where one of two raihvay companies has the user of Common 
the other's station, but not the control of its servants employment 
employed on such station, one of whom is injured by the common 
negligence of a servant of the company having such right of master. 
user, the rule does not apply, for the men though in common 
employment are not in the employment of a common 

master {p). 

(6) And so the rule does not apply where one servant is 
the servant of a contractor, and the other is the servant of 
the person who employs the contractor, for the servant 
of the contractor is not the servant of the contractor's 
employer ; or where the person injured is a servant of 
one contractor, and the person by whose negUgence he is 
injured is the servant of another contractor (q). 

(7) Whilst a workman was in the course of his employ- Personal 
ment descending from an elevated tramw^ay belonging to negligence 
his employers his foot shpped and he fell to the ground and °^ master 
received injuries. His employers had provided no ladder 

or other safe means of descending from the tramwaj^ In 
an action brought against the employers it was proved that 
it was dangerous to descend without a ladder, and that 

(n) Coldrick v. Partridge, Jones dk Co., [1910] A. C. 77. 
(o) The Petrel, [1893] P. 320. 

(p) Warburton v. Great Western Rail. Co., L. R. 2 Ex. 30 ; 
Swainson v. North Eastern Rail. Co., 3 Ex. D. 341 [C. A.], 
(g) Johnson v. Lindsay, [1891] A. C. 371. 



208 Liability for Injuries to Servants. 

Art. 91. the employers knew tliis, and knew there was no ladder. 

On this it was held they were liable for personal negligence. 

If proper appUances had been provided and they had got 
out of order without the knowledge of the employers they 
would not have been liable {r). 

(8) A workman was injured in consequence of a breach 
by his employer of a statutory duty to maintain fencing 
for dangerous machinery, imposed by the Factory and 
Workshop Act, 1878. For the breach of this absolute duty 
he had a right of action, and it was no defence that the 
defect in the fence was due to the negligence of a fellow- 
workman {s). 



Art. 92. — Volunteer Servants — Volenti non fit 
Injuria. 

If a stranger invited by a servant to assist 
him in his work, or who volunteers to assist him 
in his w^ork, is, while giving such assistance, 
injured by the negligence of another servant 
of the same master, the doctrine of common 
employment applies, and no action will lie at 
common law against the master. 

Explanation. The reason of this rule is obvious, for the volunteer, by 
aiding the servant, is simply of his own accord placing 
himself in the position of a servant, and that without 
the consent or request of the master. He has taken upon 
himself the risk of the common employment, and he cannot 
impose on the master a greater Uability than that in which 
the master stands towards his own servants. 

Thus, where the servants of a railway company were 
turning a truck on a turntable, and a person not in the 
employ of the company volunteered to assist them, and, 
whilst so engaged, other servants of the company negli- 

(r) Willinms v. Birmingham Battery and Metal Co., [1899] 2 Q. B. 
338 [C. A.]. 

(s) Groves v. Lord Wimborne, [1898] 2 Q. B. 402 [C. A.]. 



The Doctrine of Common Employment. 209 

gently propelled a locomotive against, and so killed, the Art. 92. 
volunteer, it was held that the company ^^'as not liable (/). 

Where a person aids the servants of another, with such Exception, 
other's consent or acquiescence, and not as a mere volunteer, 
but for the purpose of expediting seme business of his own, 
he is not considered to be in a position of a servant pro 
tempore and consequently can recover (u). 



SECTION II.— THE EMPLOYERS' LIABILITY 
ACT, 1880 (v). 

Art. 93. — Epitome of Act. 

(1) In the case of railway servants, labourers, 
husbandmen, journeymen, artificers, handi- 
craftsmen, miners, and other persons engaged 
in manual labour and not being domestic or 
menial servants, an employer cannot set up the 
defence of common employment in any case 
where the injury complained of is due to any 
of the following causes, viz. : 

(a) A defect in the condition of the ways, 
works, machinery, or plant which arose 
from, or liad not been discovered or 
remedied owing to the negligence of the 
employer, or of some person entrusted 
by him with the duty of seeing that 
the ways, works, machinery or plant 
were in proper condition. This includes 
original defectiveness or unsuitability 
for its task of the plant, etc., employed. 

(t) Dfif/f/ V. Midland Rail. Co., 1 H. & N. 773 ; Putter v. Faulkner, 

1 B. & S. 800 [Ex. Ch.]. 

(m) Wright v. London and North Western Rail. Co., 1 Q. B. D. 252 
[C. A.] ; and see Hayward v. Drury Lane Theatre, Limited, [1917] 

2 K. B. 899. 

(y) 4.3 & 44 Vift. c. 42. 



210 Liability for Injuries to Servants. 

Art. 93. (})) The negligence in the exercise of superin- 

tendence of any person in the service 

of the employer whose sole or principal 
duty is superintendence, and who is 
not ordinarily engaged in manual 
labour. 

(e) The negligeiice of a person in the employ- 
ment of the master to whose orders or 
directions the servant at the time of 
the injury w^as bound to conform and 
did conform. 

(d) An act or omission of any person in the 

service of the employer done or made 
in obedience to the rules or byelaws of 
the employer (not approved by a 
Government department), or in obedi- 
ence to particular instructions given by 
any person delegated with the authority 
of the employer. 

(e) The negligence of any person in the service 

of the employer having the charge or 
control of any signal-points, locomo- 
tive-engine, or train upon a raihvay. 

But the workman injured in each of the above 
cases cannot recover if he knew of the negligence 
or defect and did not complain of it to a superior 
within a reasonable time, unless he was aware 
the superior or employer already knew of such 
negligence or defect. 

(2) The injured servant, or his representatives, 
must give notice of his claim to the employer 
within six weeks of the accident, unless, in case 
of death, the judge thinks there was reasonable 
excuse for not giving it. 



Epitome of Act. 211 

(3) The action must be commenced by the Art. 93. 

injured servant within six months, or by his 

personal representatives (if he is killed) within 
twelve months. 

(4) The action must be brought in the County 
Court, but is removable, under very exceptional 
circumstances, to the High Court. 

(5) The damages are limited to three years' 
average earnings ; which is the maximum award, 
not the basis of calculation. 

(6) The action is an action for negligence, 
and any defence available at common law (ex- 
cept that of common employment) is good (w), 
as, for instance, contributory negligence (x), 
volenti non fit injuria (y), or that the workman 
has contracted himself out of the Act (z). 

It will be perceived that this Act appUes only to a Hmited Class of 

class of employees. Thus, a arocer's assistant is not a servants to 

1 • 111, -xi • ^1 • r which the 

person engaged m manual labour witmn the meamng of ^ct appHes. 

the Act (a) ; nor is the driver of a tramcar (6) ; nor an 
omnibus conductor (c). And it only apphes to accidents 
happening by reason of neghgence of the specific kinds 
enumerated in the Act. It does not abohsh the doctrine of 
common employment generally, nor on the other hand does 
it give an injured servant a right of action unless he can 
prove neghgence on the part of the master or some fellow- 
servant of the kind specified. 

(w) Per Smith, J., in Weblin v. Ballard, 17 Q. B. D. 122, at 
p. 125. 

(x) Stuart V. Evans, 31 W. R. 70(). 

(y) Thomas v. Quartermaine, 18 Q. B. D. 685 [C. A.]. See Yar- 
mouth V. France, ante, p. 187. 

(z) Griffiths V. Earl of Dudley, 9 Q. B. D. 357. 

(a) Bound v. Lawrence, [1892] 1 Q. B. 220 [C. A.]. 

(b) Cook V. North Metropolitan Tramways Co., 18 Q. B. D. 683. 

(c) Morgan v. London General Omnibus Co., 13 Q. B. D. 832 
[C. A.]. 



212 Liability for Injuries to Servants. 

Art 93 
-^ * SECTION III.— THE WORKMEN'S COMPENSATION 

ACT, 1906. 

The Workmen's Compensation Act, 1897, created a new 
kind of liability by making a master liable to pay compen- 
sation at a fixed rate to his servant if he was incapacitated 
by accident happening to him in the course of his employ- 
ment, and to those dependent on the servant if he was 
killed by such accident. 

The Act of 1897 was somewhat limited in its application. 
It was extended by the Act of 1900 ; and in 1906 both those 
Acts were repealed and the present Act was substituted for 
them. That Act again extended the application of the 
earlier Act, while preserving its main principles. 

It must be kept in mind that liability to pay compensation 
arises iyidependently of any 7ieglect or ivrongful act on the 
part of the master or his servants. And, strictly speaking, 
its consideration does not belong to the law of torts at 
all. The hability to pay compensation is not one arising 
out of tort, but is an incident attached by statute to the 
relation of master and servant. Moreover, the amount 
payable is fixed by a scale, and depends not on the amount 
of suffering caused to the workman, or on the expenses 
caused by his illness, but on the difference between his 
wages-earning capacity before and after the accident. But 
the subject is so closely connected with that of the Em- 
ployers' Liability Act that it is convenient here to give 
a slight sketch of the main principles of the Act. 

Art. 94. —Liability to Pay Compensation. 

(!) To entitle a workman to compensation he 
must show either— 

(a) (i) That he has suffered personal injury 
by accident, and 

(ii) That the " injury by accident " arose 
out of his employment^ and 



Liability to Pay Compensation. 



213 



(iii) That the " injury by accident " arose Art, 94. 
in the course of his employment, 
and 

(iv) That the injury has disabled him for 
at least one week from earning full 
wages at the work at which he was 
employed {d), or 

(b) That by reason of his suffering from an 
" industrial disease," due to the nature 
of his employment, he has been dis- 
abled for at least one week from earning 
full wages at the work at which he was 
employed. This includes the conse- 
quences of an operation necessitated 
by an industrial disease (e). 

(2) Where the injury by accident or industrial 
disease results in death the workman's depen- 
dants are entitled to compensation (/). " Depen- 
dants " means members of the family who were, 
in fact, wholly or in part dependent on his 
earnings [g). 

It must be observed that in this connection the words Comment. 
" injury " and " accident " are used in a popular sense. 

" Injury " does not mean "" injuria," i.e., an actionable 
WTong, but physiological injury, such as a broken limb, 
rupture, wound, or other hurt however caused. 

" Accident " does not mean '" inevitable accident." 
There is an " injury by accident " if a workman is hurt, 
whether it be by inevitable accident for which no one is 
to blame, or be the result of the negligence of a fellow- 
workman, or of the employer, or of the workman who is 
injured. 

(d) Workmen's Compensation Act, 190G, s. 1. 

(e) Ibid., s. 8 ; Russell v. Corser, [1921] W. N. 5. 
(/) IbwL, s. 1, Sched. I. 
((j) Ibid., s. 13. 



Injury by 
accident. 



Accident. 



out of." 



214 Liability for Injuries to Servants. 

Art. y4. " Accident " is used in the popular and ordinary sense of 

the word as denoting an unlooked-for mishap or an un- 
toward event which is not expected or designed (h). And 
the fact that a man, by reason of his physical debility, is 
more likely to suffer an accident does not affect the question 
whether what befell him is to be regarded as an accident or 
not. Thus, when a workman in a very weak and emaciated 
condition while working in the stokehole of a ship received 
a heat stroke from the effect of which he died, it was held 
to be a death by accident (i) . But accident does not include 
injury by disease alone not accompanied by any accident. 
"Arising The words " arising out of " indicate the origin or cause 

of the accident which must be dependent on and connected 
with the employment, that is due to some cause or risk 
incidental to the employment. So where a sailor dis- 
appeared while on watch, his death was held to be due to 
an accident arising out of his employment (j). Where a 
cashier, whose duty it was to take large sums of money by 
train to a colliery, was murdered whilst so employed, it was 
held that the accident arose out of his employment inas- 
much as his duty exposed him to this special risk which 
was consequently incidental to his employment {k) . Where 
a workman was injured by lightning it was held to be an 
accident arising out of his employment, owing to the place 
and circumstances in Avhich he was employed involving a 
greater than ordinary risk of injury by lightning {I). So 
where a teamster in the course of his employment was 
bitten by one of the stable cats, the accident was held to 
have arisen out of his employment (m). But where a 
workman was injured in the course of his employment by 
the tortious act of a fellow-workman which had no relation 
to the employment, the accident was held not to have arisen 
out of the employment {n). 

(h) Per Lord Macnaghten, Fenton v. Thorley, [1903] A. C. 443. 

(i) Ismay, Imrie c& Co. v. Willimnaun, [1U0S\A. C. 437. 

(j) Owners of S.S. Swansea Vale v. Rice, 27 T. L. R. 440. 

{k) Nisbet v. Rayne and Burn, [1910] 2 K. B. 689 [C. A.] ; approved 
in Trim Joint District School Board v. Kelly, [1914] A. C. 667. 

{I) Andrew v. Failsworth Industrial Society, [1904] 2 K. B. 32 
[C. A.]. 

(m) Rowland v. Wright, 24 T. L. R. 852 [C. A.]. 

(n) Fitzgerald v. Clarke dh Son, [1908] 2 K. B. 796 [C. A.]. 



Liability to Pay Compensation. 



215 



" A man may be within the course of his employment not Art. 94. 
merely while he is actually doing the work set before him, ^^ — — 
but also while he is where he would not be but for his „^, " ^ Zt " 

L-ours© oi. 

employment, and is doing what a man so employed might 

do without impropriety " (o). So the Act applies where the 

accident arises on the employers' premises, but at a time ' 

when the actual employment has not commenced or after it 

has terminated {f), or during some temporary cessation of 

work ; but does not apply when the accident occurs whilst 

the workman is going to, or returning from, his work. 

The fact that the accident was due to the negligence, or Serious and 
even to the misconduct, of the workman is no answer to his wilful 
claim for compensation. If, however, the accident only 
results in temporary disablement, and was attributable to 
serious and wilful misconduct, he is not entitled to compen- 
sation {q) . It has been held that mere disobedience to rules 
is not necessarily serious and wilful misconduct, even 
though it renders the workman liable to prosecution, and 
though it was such as would entitle the master to dismiss 
the workman without notice (r). 

All persons who work under a contract of service or To whom the 
apprenticeship are " workmen " entitled to the benefit of ^^^ applies, 
the Act, except : 

(a) persons not engaged in manual labour (such as clerks) 

and earning more than £250 a year (s) ; 

(b) persons whose employment is casual and are 7iot 

employed in the emj)loyer's business, e.g., a 
domestic charwoman not having a regular en- 
gagement ; 

(c) members of the employer's family dwelling in his 

liouse ; 

(d) out-workers ; 



(o) Per Lord Lorkbukn, L.C, Low or Jackson v. General Steam 
Fishing Co., [1909] A. C. 523, at p. 532. 

(p) Gane v. Norton Hill Colliery Co., [1909] 2 K. B. 539 [C. A.]. 
(q) Workmen's Compensation Act, 1906, s. 1 (2) (c). 
(r) Johnson v. Marshall, Sons tfc Co., [1906] A. C. 409. 

{s) Reid V. British and Irish Steam Packet Co., Limited, [1921] 
W. N. 61. 



216 



Liability for Injuries to Servants. 



Art. 94. 



Scale of 

compenscX- 

tion. 



Procedure. 



Alternative 
remedies. 



(e) members of a police force ; 

(f) persons in the naval or military service of the 

crown {f). 

The scale of compensation and the mode of working it 
out is set out in detail in Schedule I. to the Act, and has 
been the subject of a good many decisions. The amount 
to which the workman is, or, in case of death, his depen- 
dants are, entitled, depends primarily on his wages. In the 
case of total or partial incapacity he gets a weekly sum, so 
long as the incapacity lasts, not exceeding half his average 
weekly earnings during the preceding twelve months. In 
the case of death his dependants get a lump sum in no case 
exceeding £300. 

No action lies for compensation. If the right to compen- 
sation or the amount of compensation is disputed the matter 
is decided in the first instance by an arbitrator, who may 
be, and generally is, a county court judge. From him 
there is an appeal direct to the Court of Appeal. And a 
wnr'it of prohibition will not lie against a county court 
judge sitting as arbitrator under the Act (u). 

When the injury is such that there is a cause of action 
against the emploj^er at common law or under the Em- 
ployers' Liability Act, the workman must elect whether he 
Avill proceed for compensation or bring an action. The 
employer cannot be compelled to pay both damages and 
compensation {v). But if he fail in his action he can still 
proceed under the Act, provided application for a com- 
pensation award is made either before final judgment or 
pending appeal, but in the latter case, if compensation is 
awarded, the appeal must be abandoned (iv). 

(t) Workmen's Compensation Act, 1900, ss. 9, 13. 

(u) Turner v. Kingsbury Collieries, Limited, [1921] W. N. 184. 

{v) Workmen's Compensation Act, 1906, s. 1 (2). 

(w) Neale v. Electric and Ordnance Accessories Co., Limited, [1906] 
2 K. B. 558 ; and generally, see Willis' Workmen's Compensation 
.Act, 1906. 



CANADIAN NOTES. 216a 



CANADIAN NOTES TO CHAPTER IX. OF PART IT. 

Article 91. 

The P^nolish doctrine of "common employment" ha? 
never formed part of the law of Quehec: see Dupont v. 
Quehec S. S. Co. (1896), 11 Que. S. C. 188, a ease of 
the conflict of laws. 

In Saskatchewan and Alherta the defence of " common 
employment" has been formally abrogated by statute. 

With these exceptions the Canadian law is substantially 
the same as the English, redress being granted in specified 
cases under the various Employers' Liability Acts. Where 
the employer has done everything possible to provide safe 
working conditions the employee has no remedy at com- 
mon law for an injury caused by the act of a fellow servant, 
and can onlv sue under the statutes : Koshi v. Can^adian 
Northern Ry. Co. (1916), 26 Man. L. R. 214; 34 W. L. R. 
146: 27 1). L. R. 473. 

Where the employer chooses to neglect statutory pre- 
cautions his liability is defined as follows by Anglin, J. : — 

" If a defendant, who is required by statute to pro- 
vide certain means of protection, has chosen to substi- 
tute for them other means, however effective when 
properly carried out, but which have failed to aft'ord 
protection owing to negligence of the person employed 
to carry them out, and if it be found on suHiciiMit evi- 
dence that had the statute been obeyed the injury com- 
plained of would not have been sustained, tiie defend- 
ant's position is that of a man IVom wliosc faihire to 
discharge an absolute statutory duty injury lias resulted. 
He substitutes means otlicr than those provided bv the 
statute entirely at his own peril, and if he wouhl dis- 
charge himself from liability he must see to it that 
the protection thus provided proves efficacious. He takes 
the risk of all injuries which observance of the statute 
would probably have j)revented": Fnilicl- v. Grand 
Truiih- l!ti. To.' (1910), 13 S. C. R. 491, at .532. 



216b CANADIAN NOTES. 

An ('in])l(»ypr incurs liability it' he sends a man to do 
work for which l)y reason of inexperience or otherwise the 
man is personally unfitted. Thus in National Trust Co. 
V. McLeod (192l'), 61 D. L. \{. VM) the defendants sent an 
inex])erienced workman to di,u' <;ravel from a pit which was 
dangerous to a man wlui did not know its dangers. Although 
the danger was unknown to the employers it was held that 
they were liable. 

Article 94. 

The ])rinci])le of workmen's compensation, by which an 
employer is bound to compensate workmen for their injur- 
ies irrespective of any fault on his own part, has been 
adopted by all the provinces. The Quebec law is modelled 
on the French Code des Accident. -i du Travail, while the 
other provinces follow the English model. Ontario has 
now adopted a provincial scheme of accident insurance, 
under which disputes are settled by special arbitration tri- 
bunals. 



( 217 ) 



CHAPTER X. 

OF PRIVATE INJURY FROM PUBLIC 
NUISANCES. 

The term " nuisance " is used to include two distinct Meaning of 
causes of action. A public nuisance is an infringement of " pubhc ^ 
a public right and an injury to the pubHc, for which the ^^^d 
proper remedy is either criminal proceedings or an infor- " private 
mation by the Attorney-General on the part of the public, nuisance 
asking for an injunction to restrain the continuance of the 
pubhc nuisance. It is only w^hen there is some special 
injury to an individual that it is the subject of an action for 
damages. 

A private nuisance, on the other hand, is some injury to 
the property of an individual. It is not an injury to the 
pubhc. 

In some cases, however, the line between pubhc and 
private nuisance is rather fine. Thus, such an act as 
carrying on a noisy trade, or emitting foul gases, though 
usually only a private nuisance, may amount to a public 
nuisance if, by reason of the injury done to the neighbour- 
hood, it interferes with the comfort and enjoyment of the 
pubhc generally, or at least of all w^ho come within range 
of it {a). 



Art. 95. — Description of Public Nuisances. 

(1) A public nuisance is some unlawful act, 
or omission to discharge some legal duty, which 
act or omission endangers the lives, safety, 
health, or comfort of the public, or by which the 
public are obstructed in the exercise of some 
common right. 

(a) See Soltuu v. Dc Hdd, 2 Sim. (n.s.) 1.3.3. 



218 



Of Private Injury from Public Nuisances 



Art. 95. 



Kinds of 

public 

nuisances. 



Nuisances to 
highways. 



Examples. 

Excava- 
tions. 



Ruinous 
premises. 



(2) No action can be brought for a public 
nuisance by a private person unless he has 
suffered some substantial particular damage 
beyond that suffered by the public generally. 

Public nuisances consist not only of those acts or omis- 
sions which interfere mth definite public rights, such as the 
right of the pubhc to use a highway, but also of nuisances 
which endanger the health, safety, or comfort of the pubhc 
generally. 

So, where a sanitary authority so manage their sewers as 
to affect the health or comfort of the pubhc or the inhabi- 
tants of a large district, they commit a public nuisance in 
respect of which the Attorney- General is the proper party 
to take proceedings (b). As also does a person who allows 
rubbish or filth to be deposited on his land so as to be 
injurious to the inhabitants of the neighbourhood (c). 

Nuisances to liighways consist in any obstruction of the 
liighway, or anything Avhich renders the use of the high- 
way unsafe or incommodious for the jjublic, as physically 
stopping it up, or making excavations on, or immediately 
adjoining, it, or maintaining ruinous fences or buildings 
immediately adjoining it. 

(1) Thus, where a man makes an excavation adjoining 
a highway, and keeps it unfenced, he commits a public 
nuisance and is hable for any injury occasioned to a person 
f alhng into it {d) . 

(2) So, also, traders who keep vans in a street for an 
unreasonable time for the purpose of loading and un- 
loading, cause an unreasonable obstruction which may 
amount to a pubhc nuisance (e). 

(3) To permit premises adjoining a highwaj" to fall into 
a ruinous condition is a public nuisance entithng a person 

(b) See Att.-Gen. v. Luton Local Board, 2 Jur. (n.s.) 180 ; Att.-Gen. 
V. Birmingham Town Council, 6 W. R. 811 ; Att.-Gen. v. Tod Heatley, 
[1897] 1 Ch. 560 [C. A.]. 

(c) Att.-Gen. v. Tod Heatley, [1897] 1 Ch. 560 [C. A.\ 

(d) Barnes v. Ward, 9 C. B. 392. 

(e) Att.-Gen. v. Brighton and Hove Co-operative Supply Assoqiqfion, 
[1900] 1 Ch. 276 [C. A.]. 



Description of Public Nuisances. 219 

injured thereby to damages. Thus, where the defendant Art. 95. 

had a heavy lamp projecting over the iiighway, which by 

reason of want of repair fell on the plaintiff and injured her, 
it was held that the defendant was hable (/). But if the 
injury is sustained by an invitee who is not on the highway 
but on the defendant's premises at the time he is injured, 
the defendant is only liable if he knew or ought to have 
known of the defective condition which gave rise to the 
injury (g). 

(4) So also, a person who maintained a low spiked wall Dangerous 
immediately adjoining a highway was held Hable for in- f®'^^®^- 
juries caused to a httle girl who stumbled against the spikes 

whilst using the highway {h). And, similarly, where a boy 
attempted wrongfully to climb a rotten fence adjoining a 
highway, and the fence fell upon and injured him, he was 
held to be entitled to recover, because the fence was a 
nuisance, and he only did what might have been expected 
of a boy (i). 

(5) An excavation on land not so near to a highway as to Excava- 
be dangerous to persons lawfully using the highway is not tiop ^lot 
a nuisance, and a trespasser has no right of action if he roads, 
falls into it (j) 

(6) A public nuisance may be authorised by statute (k), Justifica- 

but the right to do what amounts to a pubUc nuisance *i°" °^ 

,1 -11 • .• 1 • ,-n 1 nuisances. 

cannot be acqmred by prescription or long user, or justmed 

on the ground that it is in some respects a convenience to 
the pubhc (l). So the mere fact that a nuisance to a high- 
way has existed for a long time is no defence. In order to 
justify, it must be shown to have existed at the time when 
the highway was dedicated to the pubUc, so that it may be 
inferred that the highway was dedicated subject thereto. 
Thus, a highway may be dedicated subject to the right to 
plough it up at intervals (m) , or to hold markets or fairs on 

(/) Tarry v. Ashlon, 1 Q. B. D. 314. 

(g) Pritcfmrd v. Peto, [1917] 2 K. B. 17.3. 

(h) Fenna v. Clare, [1895| 1 Q. B. 199. 

(i) Harrold v. Watney, [1898] 2 Q. B. 320 [C. A.]. 

(j) See Hounsell v. Smyth, 7 C. B. [n.s.] 731. 

(jfc) R. V. Pease, 4 B. & Ad. 30, ante. Art. 10. 

(I) R. V. Train, 2 B. & S. 040 ; R. v. Ward, 4 A. & E. 384. 

(m) Arnold v. Blaker, L. R. 6 Q. B. 433 [Ex. Ch.J. 



220 Of Private Injury from Public Nuisances. 

Art. 95. it (n), or to the right of an adjoining owner to maintain in 

the footway a cellar flap or grating (o). But after the 

pubhc have acquired the highway, no right to do these 
things can be gained except by statute. 



Art. 96. — Public Nuisance only Actionable in 
respect of Particular Damage. 

To enable a private person to bring an action 
for damages in respect of a public nuisance, he 
must prove either — 

(a) That he has suffered some substantial 

damage peculiar to himself in his per- 
son or trade or calling, and different 
in kind from the damage suffered by 
the public ; or 

(b) That the public nuisance is also an in- 

terference with some private right or 
property of his. 

Comment. The damage to fall within the first part of this rule must 

be different in kind, and not merely in degree, from that 
suffered by the public generally. Thus obstructing a 
highway is a public nuisance. A person who is merely 
prevented from using the highway suffers only the same 
damage as any other member of the pubhc (p). But a 
person who in using the highway suffers personal injuries 
by reason of the obstruction, suffers damage peculiar to 
himself, and in respect thereof has a right of action {(j). 

So, too, has a person whose business is interfered with 
by reason of customers being deterred from getting to 

(«) Elwood V. Bullock, 6 Q. B. 383 ; Alt. -Gen. v. Horner, 11 App. 
Cas. 66. 

(o) Fisher v. Proivse, 2 B. & S. 770 ; Bobbins v. Jones, 15 C. B. 
(N.s.) 221. 

{p) Winterbottom v. Lord Derby, L. R. 2 Ex. 316. 

(7) Barnes v. Ward, 9 C. B. 392. 



Liability for Public Nuisances. 221 

his shop {r) , or by reason of 1 his^ business" premises being Art. 96. 
rendered dark or less commodious (s). 

Again, an obstruction to a highway may also be an inter- 
ference with some private right, or some property of the 
plaintiff, so that in that way also he suffers damage of a 
kind pecuhar to himself. The right of access to a highway 
from adjoining property is a private right quite distinct 
from the public right of using the highway, and accordingly 
an obstruction which cuts off access to a highway is 
actionable as causing particular damage (t). 

Any person may abate a public nuisance by which he Abatement. 
is obstructed in the exercise of a public right by removing 
the obstruction so far as is reasonably necessary to enable 
him to exercise the right interfered with ; but he cannot 
do more than this. So, if there is an obstruction in a high- 
way, a person using the highway may only interfere with it 
as far as is necessarij to exercise his right of passing along 
the highway, and if there is room to pass by without removing 
the obstruction, he has no right to interfere with it (u), and 
may be liable to the owner if he damages the property by 
interfering with it (v). 



Art. 97. — Liability of Owner or Occupier for 
Public Nuisances. 

(1) If a person is injured by reason of a public 
nuisance caused by the want of repair or con- 
dition of premises adjoining a higliway, the 
occupier is prima facie hable and not the owner 
(unless he is also the occupier) {w). In particular 

(r) Fritz v. Hobson, 14 Ch. D. 542; Lyons v. Gulliver, [1914] 
1 Ch. 03 L 

(«) Benjamin v. Starr, L. H. 9 C. P. 400. 

(t) Lyon V. Fi-shmonr/ers' Co., 1 App. Cas. ()()2. 

(u) Dimes v. Petley, 1.5 Q. B., 27fi ; Dcivies v. Mann, 10 M. & W. 
546. 

(v) Hope V. Osborne, |191.'}J 2 Cli. .•}49 ; Mills v. Drookcr, [1919] 
1 K. B. 555. 

(w) Nelson v. Liverpool Brcivery Co., 2 C P. 1). 311. Hut .see 
rritcfiardv. Peto, rmiT] 2 K. H. 173 



222 Of Private Injury from Public Nuisances. 

Art. 97. the owner is not liable if he lets the premises 
to a tenant who agrees to repair them, unless 
he knows of the nuisance at the time of the 
letting and does something which amounts to 
an authority to continue it {x). 

(2) The owner is liable (i) if iie has contracted 
with the tenant to repair and the nuisance is 
due to want of repair {y) ; (ii) if he has let the 
premises in a ruinous condition and the tenant 
has not agreed to repair (z). 

(3) Where the premises are in the occupation 
of a tenant from year to year there is, in effect, 
reletting each year, and (unless the tenant has 
agreed to repair) the landlord is liable for damage 
caused by a nuisance, if since the creation of the 
nuisance and before the damage he might have 
determined the tenancy and did not, for in that 
case he " lets the premises in a ruinous condi- 
tion " (a). 

(4) When premises are let on a weekly 
tenancy there is not a reletting at the end of 
each week so as to make the landlord liable for 
nuisances arising since the original letting, unless 
he has contracted with the tenant to do repairs. 
For such nuisances the tenant and not the land- 
lord is liable (b). 

Comment. The principle is that the occupier is prima facie liable. 

An owner not in occupation is only liable if he has in some 

{x) Pretty v. Bickmore, L. R. 8 C. P. 401 ; Gwinnell v. Earner, 
L. R. 10 C. P. 658 ; Harris v. James (1876), 45 L. J. Q. B. 545. 

(y) Payne v. Rogers, 2 H. BI. 350 ; Broggi v. Bobbins (1898), 14 
T. L. R. 439. 

(z) Gandy v. Jubber, 5 B. & S. 78 ; but see Pollock on Torts, 
11th ed., ID. 436, note {g). 

(a) Ibid. 

(b) Bowen v. Anderso7i, [1894] 1 Q. B. 164. 



Liability for Public Nuisances. 223 

way authorised the continuance of the nuisance. He may Art. 97. 
authorise the continuance of the nuisance if, kno^^'ing of its 
existence, he lets the premises without repairing or re- 
quiring the tenant to repair, or if he keeps control of the 
premises by undertaking to repair them himself (c). 

So, too, the owner and occupier of vacant land is hable 
if he knows it is being so used by the public as to become 
a pubUc nuisance, and does not take reasonable steps to 
prevent such a user, even though he may not liimself have 
actively done anything to cause the nuisance (d). 

But neither o\\Tier nor occupier is Hable for a nuisance 
created by some third person without his knowledge and 
which he could not by reasonable care have jwevented (e). 

(1) The defendant let premises to a tenant who Illustrations, 
covenanted to keep them in repair. Attached to the house 

was a coal-cellar under the footway, with an aperture 
covered by an iron plate, which was, at the time of the 
demise, out of repair and dangerous. A passer-by, in conse- 
quence, fell into the aperture, and was injured : — Held, 
that the obHgation to repair being, by the lease, cast upon 
the tenant, the landlord was not liable for this accident. 
And Keating, J., said : "In order to render the landlord 
liable in a case of this sort, there must be some evidence 
that he authorised the continuance of this coal shoot in 
an insecure state ; for instance, that he retained the 
obhgation to repair the premises ; that might be a cir- 
cumstance to show that he authorised the continuance of 
the nuisance. There was no such obligatioti here. The 
landlord had parted with the possession of the premises to 
a tenant, who had entered into a covenant to repair " (/). 

(2) A. was injured by the giving way of a grating in a 
public footway, which was used for a coal shoot, and for 
letting light into the lower part of the premises adjoining. 
The premises were at the time under lease to a tenant who 

(c) Gandy v. Jubber, supra. 

id) Att.-Gen. v. Tod Heatley, [1897] 1 Ch. 5(i0 [C. A.], 
(e) Barker v. Herbert, [1911] 2 K. B. 0.33. 

{/) Pretty v. Bickmore, L. R. 8 C. P. 401, and see Nelson v. Liverpool 
Brewery Co., 2 C. P. D. 311. 



224 



Of Private Injury from Public Nuisances. 



Art. 97. covenanted to repair. At the time of the demise the 

grating was insecure, but there was no evidence that the 

hindlady had any knowledge of its unsafe state, and 
the jury found she was not to blame : — Held, that as 
the premises were demised, and there was no longer any 
obligation on the landlord to keep them in repair, the 
plaintiff had no cause of action against the landlady. 
It was intimated that if the landlady had, at the time of 
the demise, known of the defect and done nothing to remedy 
it, she might have been liable as well as the tenant (r/). 



Liability of 
landlord to 
tenant. 



(3) The above rules only apply to nuisances {h). They 
have no application as between landlord and tenant, or 
landlord and the guests of a tenant. Apart from contract, 
a landlord is not bound to keep the demised premises in 
repair as regards either his tenant {i), or the guests of 
his tenant [j). But a landlord who retains portions of 
buildings the other portions of which are let to different 
tenants, if the portions he retains are not used by the 
tenants his liability to keep these portions in repair is 
absolute {jj). Where the portions retained by the land- 
lord are used by the tenants and their guests the liability 
of the landlord (apart from contract and statute) is merely 
the duty he has towards licensees — to warn of any concealed 
danger of which he knows, i.e., not to make a trap {k). As 
to premises let subject to the provisions of the House 
and Town Planning Act, 1909, ss. 14 and 15, the implied 
obligation to repair is in favour of the tenant alone, not 
for the benefit of his wife {I) or daughter {m), but to a 
claim of the tenant himself for damage suffered from non- 
fulfilment of the statutory obligation to repair it is no 
answer that the danger was obvious (n). 

(g) Gwinnel v. Earner, L. R. 10 C. P. 658. 
(h) As to private nuisances, see post, 
{i) Keates v. Cadogan, 20 L. J. C. P. 7fi. 
ij) Lanev. Cox, [1897] 1 Q. B. 415 [C. A.]. 
(jj) Hart V. Rogers (1915), 32 T. L. R. 150. 

(k) Huggett v. Miers, [1908] 2 K. B. 278 ; Lwyv. Baivdrn, [1914] 
2 K. B. 318. 

(l) Middleton v. Hall (1913), 108 L. T. 804. 
(m) Ryall v. Kidwell <b Son, [1914] 3 K. B. 135. 
(71) Dunster v. H oil is. [1918] 2 K. B. 795. 



Liability for Public Nuisances. 225 

(4) When some boys broke the raiHngs of an area of Art. 97. 

a vacant house, so that the area was a danger to persons 

using the street, it was held that the owner was not hable 
as he did not know of the broken raiUng and had used 
reasonable care to prevent the railings becoming a nuisance. 
An area is not a thing a man keeps at his peril (o). 

(o) Barker v. Herbert, [1911] 2 K. B. 633. 



CANADIAN NOTES. 225a 



CANADIAN NOTES TO CHAPTER X. OF PART II. 

Articles 95-96. 

In Halifax Street Ry. Co. v. Joyce (1893), 23 S. C. R. 
■258, the defendant company obstructed a highway by per- 
mitting street car tracks to project above the level of the 
road, with the result that the plaintiff's horse suffered 
injury. It was held that the company was liable to the 
plaintiff. 

Works undertaken under statutory authority may be an 
actionable nuisance, if it is possible for them to be operated 
ijioffensively : Chadwicl- v. City of Toronto (1914), 33 
Ont. L. R. 111. 

In Caliill and Co. v. Strand Theatre Co. (1920), 53 
N. S. R. 514, the Supreme Court of Nova Scotia followed 
the dubious English decision in Lyons v. Gulliver (1914), 
1 Ch. 631, and held a theatre-owner responsible for the 
queue wdiich collected in the street awaiting admission to 
the performance. I would respectfully submit that in 
these cases the dissenting opinion of Phillimore, L.J., in 
the English Court of Appeal is based upon sounder legal 
reasoning than the decision of the majority. 

A wharf unlawfully constructed in a navigable stream is 
a public nuisance which gives a right of action to any 
person suffering special damage : Arsenault v. The King 
(1916), 16 Ex. R. 271; 32 D. L. R. 622. 

Persons who undertake the responsibility of abating a 
nuisance should be carel'ul to keep their feelings under 
control. In Lorraine v. Norrie (1912), 46 N. S. R. 177; 
G 1). L. R. 132, the plaintiff and his men set out to destroy 
an obstruction in the river erected by the defendant. The 
defendant resisted their action and appears to have struck 
ihe first blow, whereupon the plaintiff's men held him down 
ard beat him severely. Tlio court lidd tl)at tlie ])laijitiff 
was liable in damages. 

Similarly it has been held that a private individual is a 
trespasser if he destroys an obstruction on the highway 
which does not interfere with his passage and causes him 



225b CANADIAN NOTES. 

no special damage: Waddell v. Hidmrdson (1912), 17 
B. C. R. 19. 

Article 97. 

In Lore v. Murhrai/ (1912), 22 Man. L. R. 52; 20 
W. L. R. 505; 1 I). L. R. 674, the plaintiff's horse was 
pastured, by agreement with the tenant on land leased by 
the defendant to a tenant. The animal fell down an open 
well, and the plaintiff sued the owner in reliance on a 
municipal by-law which required the " owner or occupant " 
to fence all wells. The court held that the word " owner " 
must be inter])reted as meaning " owner in occupation," 
and that the defendant could not be held liable, since he 
retained no control or right of entry to the premises. 



( 227 ) 



CHAPTER XI. 

PRIVATE NUISANCES. 

SECTION I.— NUISANCE TO CORPOREAL 
HEREDITAMENTS. 

Art. 98. — General Liability. 

(1) A private nuisance is some unauthorised 
user of a man's own property causing damage 
to the property of another, or some unauthor- 
ised interference with the property of another, 
causing damage (a). 

(2) Any private nuisance whereby sensible 
injury is caused to the property of another, or 
whereby the ordinary physical comfort of human 
existence in such property is materially inter- 
fered with, is actionable. 

(3) Liability for nuisance is independent of 
negligence. 

(4) No use of property which would be legal 
if due to a proper motive, can be a nuisance 
merely because it is prompted by a motive 
which is improper or even malicious {h). 

The law with regard to jjrivate nuisances mainly depends Comment, 
upon the maxim sic utere tuo ut alienum non Icedas. Not 
that that maxim can receive a literal interpretation, for 
a man may do many acts which may injure others {ex. gr., 
build a house which may shut out a fine view theretofore 
enjoyed by a neighbour except where a right to such view 

(a) Stearn v. Prentice Brothers, [I'Jl'JJ 1 K. B. .•594. 
(6) Bradford Corporation v. Picklcv, [1895] A. C. 587. 



228 



Private Nuisances. 



Art. 98. 



Lawful act 
done with 
malicious 
motive. 



Illustrations, 
Fumes. 



Noisy and 

noisome 

trades. 



Interference 
with enjoy- 
ment of 
property. 



is reserved by covenant (c) ; but such acts are necessarily 
incidental to the ownership of property. The acts referred 
to in the maxim are acts which go beyond the recognised 
legal rights of a proprietor. 

The owner of land containing underground water which 
percolates by undefined channels, and flows to the land 
of a neighbour, has the right to divert or appropriate the 
percolating water within his own land, so as to deprive 
his neighbour of it (d). An owner diverted underground 
water percolating in undefined channels, not to improve 
his own land, but maliciously in order to injure his neigh- 
bours by depriving them of their water supply and to com- 
pel them to buy him out. This unneighbourly conduct, 
however, was held to be lawful, because it was an act 
rightful in itself, and therefore not wrongful when done 
maliciously (e). 

(1) In the leading case of Tipping v. St. Helen's Smelting 
Co. (/), the fact that the fumes from the comjDany's works 
killed the plaintiff's shrubs was held sufficient to support 
the action ; for the killing of the shrubs was an injury to 
the property. 

(2) So, too, it was said, in Crump v. Lambert (g), that 
smoke, unaccompanied with noise or with noxious vapour, 
noise alone, and offensive vapours alone, although not 
injurious to health, may severally constitute a nuisance ; 
and that the material question in all such cases is, whether 
the annoyance produced is such as materially to interfere 
with the ordinary comfort of human existence in the 
plaintiff's property (li). 

(3) Where the alleged nuisance consists of acts which 
interfere with the reasonable enjoyment of property, the 
inconvenience must be substantial. The standard is 
referred to in Bland v. Yates as " a serious inconvenience 
and interference with the comfort of the occupiers of the 

(c) Browne v. Flower, [1911] 1 Ch. 219. 

{d) Chasemore v. Richards, 7 H. L. Cas. 349. 

(e) Bradford Corporation v. Pickles, [1895] A. C. 587. 

(/) L. R. 1 Ch. 66 ; Wood v. Conway Corporation, [1914] 2 Ch. 47. 

(g) L. R. 3 Eq. 409. 

(h) Bland v. Yates, 58 Sol. Jo. 612. 



General Liability. 229 

dwelling-house according to notions prevalent among Art. 98. 
reasonable English men and women." 

(4) The collection of a crowd of noisy and disorderly Noisy enter- 
people outside grounds in which entertainments with t^inments. 
music and fireworks are being given for profit may con- 
stitute a nuisance, even though the entertainer has excluded 

all improper characters, and the amusements have been 
conducted in an orderly way (j). 

So, too, may the collection of large and noisy crowds 
outside a club kept open till 3 a.m. for pugHistic en- 
counters (j). 

(5) So, too, the turning of the ground floor of a London 
house into a stable, so that the neighbours are disturbed 
all night by the noises of the horses, may constitute a 
nuisance {k). 

(6) Other examples of nuisances to corporeal heredita- Other 
ments are, permitting buildings to become ruinous so as examples. 
to fall on one's neighbour's land (1) ; overhanging eaves 

from which the water flows on to another's property (m) ; 
or overhanging trees {n) ; or pigsties creating a stench, 
erected near to another's house. And it would seem that 
noisy dogs, preventing the plaintiff's family from sleeping, 
are a nuisance if serious discomfort is caused (o). So, 
also, is a smaU-pox hospital so conducted as to spread 
infection to neighbouring houses (p). The ringing of 
bells at a Roman Catholic chapel adjoining plaintiff's 
premises at all hours of the day and night (g), and the 
collecting a queue so that the entrance to plaintiff's 
premises was interfered with, are other examples (r). 

(i) Walker v. Brewster, L. R. 5 Eq. 25. See also Inchbald v. 
Robinson, Inchbald v. Barrington, L. R. 4 Ch. 388. 

{j) Bellamy v. Wells, 60 L. J. Ch. 156. And see also Barber v. 
Penley, [1893] 2 Ch. 447, and Jenkins v. Jackson, 40 Ch. D. 71. 

(k) Ball V. Ray, L. R. 8 Ch. 467. 

(/) Todd V. Flight, 9 C.B. (n.s.) 377. 

(m) Bathishill v. Reed, 25 L. J. C. P. 290. 

(n) Lemmon v. Webb, [1895] A. C. 1 ; Smith v. Qiddy, [1904] 
2 K. B. 448. 

(o) Street v. Tugwell, Selwyn's Nisi Prius, 13th ed., 1070. 

{p) Metropolitan Asylum District v. Hill, 6 App. Cas. 193. 

(q) Saltan v. de Held (1851), 21 L. J. Ch. 153. 

(r) Lyons v. Gulliver, [1914] 1 Ch. 631. 



230 Private Nuisances. 



Art. 99. Art. 99. — Reasonableness of Place. 

(1) That which is prima facie a nuisance can- 
not be justified by the fact tliat it is done in a 
proper and convenient place and is a reasonable 
use of the defendant's land [s). 

(2) Where the acts complained of are nui- 
sances by reason of injury to property, it is no 
defence that the locality is one devoted to trades 
which cause such injury {t). 

(3) But with regard to acts which are nui- 
sances by reason of their interfering with the 
enjoyment of property, as distinguished from 
those which damage the property itself, the 
circumstances of the locality must be taken into 
consideration {u). 

Comment. (1) The spot selected may be very convenient for the 

defendant, or for the public at large, but very incon- 
venient to a particular individual who chances to occupy 
the adjoining land ; and proof of the benefit to the public, 
from the exercise of a particular trade in a particular 
locality, can be no ground for depriving an individual of his 
right to compensation in respect of the particular injury 
he has sustained from it. Thus, where the defendant used 
his land for burning bricks and so caused substantial 
annoyance to his neighbour, it was held that it was no 
defence that it was done in a proper and convenient spot, 
and was a reasonable use of the land (s). At the same 
time a person is entitled to use his land or house in the 
ordinary way in which property of the like character is 

(s) Bamford v. Turnley, 31 L. J. Q. B. 28G [Ex. Ch.]. 

{t) St. Helen's Smelting Co., v. Tipping, 1 1 H. L. Gas. 642 ; Wood v. 
Conway Corporation, [1914] 2 Ch. 47. 

(m) Ibid, and Polsue and Alfieri, Limited v. Rushmer, [1907] 
A. C. 121 ; Bland v. Yates, 58 Sol. Jo. 612 ; De Keyser's Hotel, 
Limited v. Spicer (1914), 30 T. L. R. 257 ; and note the decision 
en requisitioning hotels {Ait. -Gen. v. De Keyser's Hotel, Limited, 
89 L. J. Ch. 417). 



Reasonableness of Place. 231 

used, and an adjacent owner must put up with such noises Art. 99. 
and inconveniences as may reasonably be expected from srrr- 
his neighbours, such as the noise of a pianoforte, or the 
noise of children in their nursery, which are noises we must 
reasonably expect, and nuist, to a large extent, put up 
with (v). 

(2) In St. Helen's Smelting Co. v. Tipping (iv). Lord West- 
BTJRY said : "In matters of this description, it appears to 
me that it is a very desirable thing to mark the difference 
between an action brought for a nuisance upon the ground 
that the alleged nuisance produces material injury to the 
property, and an action brought for a nuisance on the 
ground that the thing alleged to be a nuisance is pro- 
ductive of sensible personal discomfort. With regard to 
the latter — namely, the personal inconvenience and inter- 
ference with one's enjoyment, one's quiet, one's personal 
freedom, anything that discomposes or injuriously affects 
the senses or the nerves — whether that may or may not be 
denominated a nuisance, must undoubtedly depend greatly 
on the circumstances of the place where the thing com- 
plained of actually occurs. If a man Hves in a town, it 
is necessary that he should subject himself to the conse- 
quences of those operations of trade which may be carried 
on in the immediate locality, which are actually necessary 
for trade and commerce, and also for the enjoyment of 
property, and for the benefit of the inhabitants of the town, 
and the public at large. If a man lives in a street where 
there are numerous shops, and a shop is opened next door 
to him which is carried on in a fair and reasonable way, 
he has no ground of complaint because, to himself indi- 
vidually, there may arise much discomfort from the trade 
carried on in that shop. But when an occupation is carried 
on by one person in the neighbourhood of another, and 
the result of that trade or occupation or business is a 
material injury to property, then unquestionably arises a 
very different consideration. I think that in a case of 
that description, the submission which is required from 

{v) See Ball v. Ray, L. R. 8 Ch. 4()7 ; Att.-Gen. v. Cole, [lOOl] 
1 Ch. 205 ; Reinhardt v. MentaHi, 42 Ch. D. 685. 
(w) II H. L. Cas. (150. 



232 Private Nuisances. 

Art. 99. persons living in society to that amount of discomfort 
which may be necessary for the legitimate and free exer- 
cise of the trade of their neighbours, would not apply to 
circumstances the immediate result of which is sensible 
injury to the value of the property." 

(3) In a recent case {x), Warrington, J., said that for 
the purpose of coming to a decision whether working a 
noisy printing machine by night in Gough Square (a 
neighbourhood devoted to the printing trade) was a nuisance 
to a residence adjoining the square, he w^as to look not 
at the defendants' operations in the abstract and by them- 
selves, but in connection with all the circumstances of the 
locaUty, and in particular with regard to the trades usually 
carried on there, and the noises and disturbance existing 
prior to the commencement of the defendants' operations ; 
but that if, after taking these circumstances into con- 
sideration, he found a serious and not merely a sUght 
interference with the plaintiff's comfort, he thought it 
his duty to interfere. And acting on this principle, he 
granted an injunction restraining the defendants from 
using their machine, although the machine was one of an 
improved type, quieter than those generally used, and 
was projDerly used. It was enough that in fact it created 
a -nuisance. His decision was affirmed in the House of 
Lords. 

Art. 100. — Plaintiff coming to the Nuisance. 

It is no answer to an action for nuisance, that 
the plaintiff knew that there was a nuisance, 
and yet went and lived near it (y). 

Or in the words of Byles, J., in Hole v. Barlow (z) : " It 
used to be thought that if a man knew that there was a 

{x) Rushmer v. Polsue and Alfieri, Limited, 21 T. L. R. 183, 
affirmed in House of Lords, [1907] A. C. 121 ; more recently the 
same judge has decided on the same principles Bland v. Yates 
(1914), 58 Sol. Jo. 612 ; De Keyser's Hotels, Limited v. Spicer 
Brothers (1914), 30 T. L. R. 257. 

(y) St. Helenas Smelting Co. v. Tipping, supra. 

(z) 27 L. J. C. P. 207, at p. 208. 



Plaintiff Coming to the Nuisance. 233 

nuisance and went and lived near it, he could not recover, Art. 100. 

because it was said it is he that goes to the nuisance, and 

not the nuisance to him. That, however, is not law now." 
The justice of this is obvious from the consideration, that 
if it were otherwise, a man might be wholly prevented from 
building upon his land if a nuisance was set up in its 
locahty, because the nuisance might be harmless to a mere 
field, and therefore not actionable, and yet unendurable 
to the inhabitants of a dweUing-house. 

So where a confectioner had for many years used a Illustration, 
pestle and mortar in his kitchen in Wigmore Street, and 
then the plaintiff, a physician in Wimpole Street, built a 
consulting room in his back garden against the confec- 
tioner's kitchen, and the noise from the pestle and mortar 
was a nuisance to the consulting room, it was held that, 
although the plaintiff had come to the nuisance, he was 
nevertheless entitled to complain of it as a nuisance. 
But the right to commit a nuisance may be acqmred by 
having committed the nuisance complained of for upwards 
of twenty years, not merely the cause but the nuisance 
must have been committed for that period (a). 

Art. 101. — Liability of Occupier and Owner for 
Nuisances. 

(1) The occupier of premises upon which a 
nuisance is created to adjoining property is 
prima facie Uable. There is no hability upon 
an owner as such (6). 

(2) An owner who is not in occupation may 
be hable if he has originally created the nui- 
sance and let the premises with the nuisance 
complained of, or, when the nuisance is due 
to want of repair, has permitted the premises to 

(a) Sturges v. Bridgman, 11 Ch. D. 852 [C. A.] ; and see Crossley 
ds Sons, Limiled v. Lightowhr, L. R. 2 Ch. 478. As to the effect 
of an established business being declared by subsequent statute to 
have been an " offensive trade," see Mayo v. Stazicker,[\Q2\^ W.N. 64. 

^6) Russell V. Shenton, 3 Q. B. 449. 



234 



Private Nuisances. 



Art. 101. 



Comment. 



Xuisances 
caused by 
user of 
land. 



get out of repair, and lets them with knowledge 
of the want of repair, if, as between himself and 
his tenant, he has undertaken the repairs (c). 

(3) Where the nuisance is caused, not by the 
state of the premises themselves, but by their 
user, an owner who is not in occupation is 
not liable for the nuisance, although he has 
let the premises in such a condition that they 
are capable of being so used as to cause a 
nuisance (d). 

(1) Generally the person who causes or authorises the 
nuisance is liable, so a person who creates a nuisance on 
his land and then lets it with the nuisance, is liable if the 
nuisance is continued (e). And the purchaser or lessee 
also may be liable for continuing the nuisance (/). 

So, too, an owner of land who lets a house and under- 
takes, as between himself and his tenant, to repair, is Liable 
if, by reason of his not repairing, a nuisance is caused to 
adjoining premises {g). But an owner who is not occupier 
is not hable unless he can be fixed Avith habihty in one of 
these ways {h). 

(2) If a person builds a factory with a chimney on his 
land, and lets the land, he does not thereby authorise the 
user of the chimney so as to be a nuisance. It is not 
the existence of the chimney which is a nuisance, but its 
use, and for this the person who uses the chimney, not the 
owner of the land, is liable (t). So, also, if a third person 
against my will puts something on my land which is a 
nuisance to my neighbour, I am not liable, for I have not 
caused the nuisance (;;'). 

(c) Rosewell v. Prior, 2 Salk. 460 ; Todd v. Flight, 9 C. B. (n.s.) 
377. 

(d) Rich V. Basterfield, 4 C. B. 783. 

(e) Rosewell v. Prior, 2 Salk. 460. 

(/) Penruddock' s Case, 5 Co. Rep. 100 b. 

{g) Todd V. Flight, 9 C. B. (n.s.) 377. 

(h) Russell V. Shenton, 3 Q. B. 449. 

(i) Rich V. Basterfield, supra. 

(j) Saxby v. Manchester and Sheffield Rail. Co., L. R. 4 C. P. 198. 



Prescription to Commit a Nuisance. 235 



Art. 102. — Prescription to Commit a Nuisance. Ar t. 10 3. 

The right to commit a private nuisance may 
be acquired by grant or prescription. 

Note. — An owner of land may by express grant give to 
another a right to do that which would otherwise be a 
nuisance, e.g., to discharge foul water on to his land. If 
a person has been actually committing a nuisance for a 
great many years without objection, it is reasonable to pre- 
sume that he has in some way acquired a right to do so, 
and at common law juries were directed to presume a lost 
grant in such cases. But juries were not bound to, and 
in some cases refused to, presume a lost grant which they 
did not believe ever existed in fact {k). 

The right of one owner of land to commit nuisances of 
this kind in respect of the land of another is a right in the 
nature of an easement, being not a mere personal right, but 
a right granted, or presumed to have been granted, by the 
owner of land or his predecessors in title (so as to bind 
all subsequent owners), to the owner of the land for 
whose benefit it is created for the benefit of him and all 
subsequent owners. 

Now, by the Prescription Act, 1832, it is seldom neces- Prescription 
sary to presume a lost grant, for where an easement which ■^^*- 
might at common law be claimed by lost grant has been 
actually enjoj^ed by a person claiming it as a right without 
interruption for twenty years immediately before action 
brought, that is generally enough to establish the right, 
unless it has been enjoyed by consent or agreement [1). 

{k) The law as it stood before the Prescription Act " put an 
intolerable strain on the consciences of judges and jurymen " {per 
Lord Macnaghtkn in Gardner v. Hodgson's Kingston Brewery Co., 
[1903] A. C. 229, at p. 2.36). 

(I) 2 & 3 Will. 4, e. 71. The period is in some cases forty years, 
as when the land of the servient tenement (that is the land whose 
owner is supposed to have made the grant) has been owned by some 
person who could not lawfully make a grant to bind his successors 
in title, such as a tenant for life. If there has been forty years' 
enjoyment the right can only be defeated by showing that it was 
enjoyed under an expre.ss grant or consent in writing. No grant 
can now be presumed from enjoyment for a less period than 
twenty years. 



236 



Private Nuisances. 



Art. 102. 



Illustrations. 



(1) Accordingly, now a person may by twenty years' user 
gain a right to pour foul water into another's stream (m). 

(2) It must be noted that the period of twenty years only 
begins to run from the time when the acts complained of 
begin to be a nuisance. So when the defendant had for 
more than twenty years made a noise which did not amount 
to an actionable nuisance to his neighbour, because the 
neighbour's land was not built on, he acquired no easement 
by so doing ; and accordingly when the plaintiff built a 
consultation room on the land affected by the noise, and the 
noise then began to be a nuisance, it was held that the 
defendant had not acquired a right under the Prescription 
Act (w). 

(3) A person can only acquire by prescription a right to 
do acts of the same kind and amount as he has used for 
the period of enjoyment. So if he has for twenty years 
poured a certain amount of filth of a particular kind into 
a stream, he can only prescribe to discharge filth of that 
amount and of that kind, and is not justified in pouring 
in any larger amount, or filth of a different kind (o). 



Art. 103.— Remedy of Reversioners for 

Nuisances. 

Whenever any wrongful act is necessarily in- 
jurious to the reversion to land, or has actually 
been injurious to the reversionary interest, the 
reversioner may sue the wrongdoer (p). 

Illustrations. (1) Any permanent obstruction of an incorporeal right, 
as of way, air, light, water, etc., may be an injury to the 
reversion (</). 

(m) Wright v. Williams, 1 M. & W. 77 ; and see Oardner v. 
Hodgson's Kingston Breivery Co., [1903] A. C". 229. 

(n) Sturges v. Bridgman, 11 Ch. D. 852 [C. A.]. 

(o) Crossley efc Sons, Limited v. Lightowler, L. R. 2 Ch. 478. 

(p) Bedingfield v. Onslow, 3 Lev. 209. 

(g) Kidgill v. Moor, 9 C. B. 364 ; Metropolitan Association v. 
Fetch, 27 L. J. C. P. 330 ; Oreenslade v. Halliday, 6 Bing. 379. 



Remedy by Abatement. 237 

(2) But an action will not lie for a nuisance of a mere Art. 103. 

transient and temporary character (r). Thus, a nuisance 

arising from noise or smoke will not support an action by 
the reversioner (s). Some injury to the reversion must 
always be proved, for the law will not assume it (t) . 



Art. 104. — Remedy by Abatement. 

(1) A person injured by a nuisance may 
abate it, that is remove that which causes the 
nuisance, provided that he commits no riot in 
the doing of it, nor occasions any damage 
beyond what the removal of the inconvenience 
necessarily requires (u). 

(2) Where there are alternative ways of 
abating a nuisance the less mischievous must 
be chosen {v). 

(3) A person cannot justify doing a wrong 
to an innocent third party or to the public in 
abating a nuisance. So it seems that entry on 
the lands of an innocent third party cannot be 
justified (w). 

(4) In order to abate a nuisance an entry may 
be made on the lands on which the cause of the 
nuisance is, provided notice requesting removal 
of the nuisance be first given. But if a nuisance 
can be abated without committing a trespass no 
notice is required (x). 

(r) Baxter v. Taylor, 4 B. & Ad. 72. 

{s) Mumford v. Oxford, Worcester and Wolverhampton Rail. Co., 
25 L. J. Ex. 20,5 ; Simpson v. Savage, 26 L. J. C. P. 50. 

(t) Kidfjill V. Moor, 9 C. B. 364. 

{u) Stephen's Commentaries, Bk. V., Chap. I. (15th ed., Vol. III., 
p. 284). It is generally very imprudent to attempt to abate a 
nuisance. It is far better to apply for an injunction. 

(v) Per Blackburn, J., in Roberts v. Rose, L. R. 1 Ex. 82 [Ex. 
Ch.], at p. 89. 

{w) Ibid. (x) Lemmon v. Webb, [1895] A. C. 1. 



238 



Private Nuisances. 



Art. 104. (5) An entry on another's land to prevent an 
apprehended nuisance cannot be justified. 

Notice. It must be observed that notice is generally necessary 

before entry on the lands of another — but it seems that 
notice is dispensed with in three cases, viz., (a) where the 
owTier of the land was the original wrongdoer, by placing 
the nuisance there ; (b) where the nuisance arises by 
default in performance of some duty cast on him by law ; 
and (c) when the nuisance is immediately dangerous to life 
or health (y). 

Examples. (1) Thus, if my neighbour build a wall and obstruct my 

ancient lights, I may, after notice and request to him to 
remove it, enter and pull it down (z) ; but where the 
plaintiff had erected scaffolding in order to build, which 
building when erected would have been a nuisance, and the 
defendant entered and threw down the scaffolding, such 
entry '^ was held wholly unjustifiable (a). But even after 
notice abatement cannot be justified in cases where an 
injunction would not be granted (b). 

(2) Branches of trees overhanging a man's land may be 
cut to abate the nuisance without notice, prov^ided this can 
be done without committing a trespass (c). 



Pulling 
down 
inhabited 
house. 



(3) A commoner may abate an encroachment on his 
common by pulling down a house or a fence obstructing 
his right (d) ; so also may one whose right of way is 
obstructed (e) ; before pulling down a house, notice and 
request to remove must be given if the house is actually 
inltahited (/) . 

(t/) See Jones v. Williams, 11 M. & W. 17(5. 
(z) R. V. Rosewell, 2 Salk. 459. 

(a) Norris v. Baker, 1 RoU. Rep. 393, fol. 15. 

(b) Lane v. Capsey, [1891] 3 Ch. 4U. 

(c) Lemmon v. Webb, [1895] A. C. 1. 

(d) Mason v. Ccesar, 2 Mod. Rep. 65. 

(e) Lanev. Capsey, [1891] 3 Ch. 411. 

(/) Davies v. Williams, 16 Q. B. 556 ; Lane v. Capsey, [1891] 
3 Ch. 411. 



Nuisances to Incorporeal Hereditaments. 239 



SECTION II.— NUISANCES TO INCORPOREAL 
HEREDITAMENTS. 

A servitude is a duty or service which is owed in respect Servitudes. 
of one piece of land, either to the owTier as such of another 
piece of land, or to some other person. Property to which 
such a right is attached is called the dominant tenement, 
that over which the right is exercised being denominated 
the servient tenement. 

Where the right is annexed to a dominant tenement it is 
said to be appurtenant if it arises by prescription or grant, 
and appendant if it arises by manorial custom. Where it 
is annexed merely to a person it is said to be a right in 
gross. 

Servitudes are either natural or conventional. Natural Natural 
servitudes are such as are necessary and natural adjuncts servitudes, 
to the properties to which they are attached (such as the 
right of support to land in its natural state) , and they apply 
universally throughout the kingdom. Conventional ser- 
vitudes, on the other hand, are not universal, but must 
always arise either by custom, prescription, or express or 
imphed grant. The right to the enjoyment of a conven- 
tional servitude is called an easement or a profit a prendre Easements 

in alieno solo, according as the right is merely a right of ^'^^ profit d 

^ o prendre 

user, or a right to enter another's land and take something 

from it, as game, fish, minerals, gravel, turf, or the hke. 

The easements knowTi to our law are numerous. Mr. 
Gale, in his excellent treatise on Easements, gives a list 
of no less than twenty-five "amongst other" instances. 
Any unjustifiable interference with an easement or other 
servitude is a tort, and torts of this kind are usually classed 
with nuisances. As the rights interfered with are incor- 
poreal hereditaments, they are spoken of as nuisances to 
incorporeal hereditaments. Torts of this kind are as 
various as are the kinds of easements and other servitudes, 
but in an elementary work such as this, it is only possible 
to treat of those which most often occur in practice, 
namely, interferences with : (1) rights of support for land, 



240 Private Nuisances. 

(2) rights of support for buildings, (3) rights to the free 
access of hght and air, (4) rights to the use of water, 
and (5) rights of way. And as to these, it is only proposed 
to deal with the nature of the rights sufficiently to enable 
the student to appreciate Avhat kind of acts amount to 
disturbances. The law relating to the acquisition of servi- 
tudes and their incidents belongs rather to the law of 
property than to that of torts. 

Franchises. Another kind of incorporeal right is a franchise, and a 

disturbance of that right is a nuisance. Franchises include 
rights of ferry and market. Other rights akin to franchises 
are patent rights, copyrights, and rights to trade marks ; 
the nature and acquisition of which depend largely upon 
the several statutes relating thereto. The right to vote for 
members of Parliament is also a franchise, and an action 
lies for preventing a person from exercising that right (g). 

Disturbances or interferences with, profits a prendre (such 
as rights of common and fisheries) and of franchises (such 
as ferries and markets) are torts, and are properly included 
among nuisances to incorporeal hereditaments. But the 
nature of these rights and what acts amount in law to 
disturbances belongs rather to the law of property than to 
that of torts, and cannot be conveniently discussed in an 
elementary work on torts. 

Art. 105, — Disturbance of Eight of Support for 
Land without Buildings. 

(1) Every person commits a tort, who so uses 
his own land as to deprive his neighbour of the 
subjacent or adjacent support of mineral matter 
necessary to retain such neighbour's land in its 
natural and unencumbered state {h). 

(2) A man may not pump from under his own 
land a bed of wet sand so as to deprive his 

(g) Ashby v. White, 2 Lord Raym. 938 ; 1 Sm. L. C. 240. 

{h) Backhouse v. Bonomi, 9 H. L. Cas. 503 ; Birmingham Corpora- 
lion V. Alleti, 6 Ch. D. 284 [C. A.] ; Howley Park Coal and C(xx><wJ, Qa, 
V. London and North Western Rail. Co., [1913] A. C. 11. 



Disturbance of Right of Support, etc. 241 

neighbour's land of support (^) ; but he may Art. 105. 
pump water from under his own land with 
impunity, although the result may be to deprive 
his neighbour's land of support (k). 

(3) In order to maintain an action for distur- 
bance of this right, some appreciable subsidence 
must be shown (/), or, where an injunction is 
claimed, some irreparable damage must be 
threatened (m). 

(4) The right of support may be destroyed by 
covenant, grant or reservation (w). 

(1) In Humphries v. Brogden (o), Lord Campbell said : Illustrations. 
" The right to lateral support from adjoining soil is not, '^^® ^^^ht 
Uke the support of one building from another, supposed to jure naturar, 
be gained by grant, but it is a right of property passing' 
with the soil. If the owTier of two adjoining closes convej^s 
away one of them, the ahenee, without any grant for that 
purpose, is entitled to the lateral support of the other close 
the very instant when the conveyance is executed, as much 
as after the expiration of twenty years or any longer period. 
Pari ratione where there are separate freeholds from the 
surface of the land and the mines belong to different owners, 
we are of opinion that the owner of the surface, while 
unencumbered by buildings and in its natural^ state, is 
entitled to have it supported by the subjacent mineral 
strata. Those strata may, of course, be removed by the 
owTier of them, so that a sufficient support is left ; but if 
the surface subsides and is injured by the removal of these 

(i) Jordeson v. Sutton, etc. Gas Co., [1899] 2 Ch. 217 [C. A.]. 

{k) Popplewell v. Hodkinson, L. R. 4 Ex. 248 ; but see per 
LiXDLEY, M.R., in Jordeson v. Sutton, etc. Gas Co., [1899] 2 Ch., at 
p. 2.39. 

(I) Smith V. Thackerah, L. R. 1 C. P. 564, as explained in Alt.- 
Gen. V. Conduit Colliery Co., [1895] 1 Q. B. 301 [C. A.], at p. 313. 

(m) Birmingham Corporation v. Allen, 6 Ch. D. 284 [C. A.]. 

(/t) Rowbotham v. Wilson, 8 H. L. Cas. 348 ; Aspden v. Seddon, 
L. R. 10 Ch. App. 394, and cases there cited ; Daviea v. Powell 
DuJJryn Steam Coal Co., [1921] W. N. 161 [C. A.]. 

io) 12 Q. R. 739. 

B 



242 Private Nuisances. 

Art. 105. strata, although the operation may not have been conducted 

neghgently nor contrary to the custom of the country, the 

owner of the surface may maintain an action against 
the owner of the minerals for the damage sustained by 
the subsidence. 

Subter- (2) But although there is no doubt that a man has no 

water right to withdraw from his neighbour the support of ad- 

jacent soil, there would seem to be nothing at common 
law to prevent him draining that soil, if for any reason it 
becomes necessary or convenient for him to do so. It has 
therefore been held that he is not Uable if the result of his 
drainage operations is to cause a subsidence of his neigh- 
bour's land {p). But whatever may be true of percolating 
waters themselves, if a man withdraws, along with that 
water, quicksand or water-logged soil, and in consequence 
thereof his neighbour's land settles and cracks, he Avill be 
liable (q). And the same remark applies a fortiori to the 
withdrawal of pitch or other Hquid mineral, and (it is 
submitted) to mineral oil (r) . 

Exception. Companies governed by the Railways Clauses Consoh- 

dation Act, 1845, by virtue of the mining sections (ss. 77- 
85) do not acquire a right to support in respect of mines 
within 40 yards of a railway ; but as to all the mines 
outside that hmit the common-law right to lateral support 
for its railway is maintained unaffected {s). 

(p) Popplewell V. Hodkinson, L. R. 4 Ex. 248 ; but see the 
observations on this case made by Lindley, M.R., and Rigby, L.J., 
in Jorde.wn v. Sutton, etc. Gas. Co., [1899] 2 Ch. 217 [C. A.], at 
pp. 239, 243. 

(q) The subject was discussed in Salt Union v. Brunner, Moyid dh 
Co., [1906] 2 K. B. 822. There the defendants were held not 
liable for pumping brine from under their land, though the result 
was to remove the support of neighbouring land by dissolving 
the salt in the subsoil. The decision, however, turned on the 
special circumstances of the case, and does not support the general 
principle that brine may be lawfully pumped so as to remove the 
support of adjacent lands. 

(r) Jordeson v. Sutton, etc. Gas Co., [1899] 2 Ch. 217 ; Trinidad 
Asphalt Co. V. Ambard, [1899] 2 Ch. 260, and [1899] A. C. 594 
[P. C.]. 

(s) Howley Park Coal and Cannel Co. v. London and North Western 
Rail. Co., [1913] A. C. 11 (H. L.). 



Disturbance of Support of Buildings. 243 

Art. 108. — Disturbance of Support of J 

Buildings. 

(1) A tort is 7iot committed by one who so 
deals with his own property as to take away the 
support necessary to uphold his neighbour's 
buildings, unless a right to such support has 
been gained by grant, express or implied {t), or 
by twenty years' uninterrupted user, peaceable, 
open, and without deception (u). 

(2) But the owner of land may maintain 
an action for disturbance of the natural right 
to support for the surface, notwithstanding 
buildings have been erected upon it, provided 
the weight of the buildings did not cause the 
injury (x). 

(1) Thus, in Partridge v. Scott {y), it was said that Right not 
" rights of this sort, if they can be estabUshed at all, must, ^^/^^'^ 
we think, have their origin in grant. If a man builds a 

house at the extremity of his land, he does not thereby 
acquire any easement of support or otherwise over the land 
of his neighbour. He has no right to load his own' soil, so 
as to make it require the support of his neighbour's, unless 
he has some grant to that effect." So, again, as between 
adjoining houses, there is no obligation towards a neighbour, 
cast by law on the owner of a house, merely as such, to 
keep it standing and in repair ; his only duty being to 
prevent it from being a nuisance, and from falling on to his 
neighbour's property (z). 

(2) But a grant of a right of support for buildings is Right 
gained by uninterrupted user for twenty years, if the f^'^""'' ^^ 



(t) Partridge v. Scott, 3 M. & W. 220 ; Brown v. Robins, 4 H. & N. 
186 ; North Eastern Rail. Co. v. Elliott, 29 L. J. Ch. 808. 

(u) Dalton v. Angus, G App. Cas. 740. 

{x) Brown v. Robins, 4 H. & N. 186 ; Slroyan v. Knowles, Hamer v. 
Same, 6 H. & N. 4.54. 

(y) Ubi supra. (z) Chauntler w. Rohln.son, 4 Ex. 16,'}. 



twenty 
years' user. 



244 

Art. 106. 



Where 
natural 
right to 
support 
of site 
infringed, 
the con- 
sequent 
damage to 
a modern 
house may 
be recover- 
able. 



Private Nuisances. 

enjoyment is peaceable and without deception or conceal- 
ment, and so open that it must be known that some support 
is being enjoyed by the plaintiff's building (a). 

(3) The right of support for an ancient building by 
adjacent buildings may be acquired by prescription in 
the same way as may the right of support by adjacent 
lands (b). 

(4) Though no right of support for a building has been 
gained, yet if the act of the defendant would have caused 
the site of the building to subside without the building, the 
defendant will be liable, not merelj'' for the damage done to 
the land, but also for the injury caused to the building. 
For he will have committed a wrongful act (viz., an act 
causing the subsidence of his neighbour's land), and will 
consequently be liable for all damages which might reason- 
ably have been anticipated as the consequence of that 
act (c). 



Art. 107. — Disturbance of Bight to Light 
and Air. 

(1) There is no right, ex jure naturce, to the 
free passage of Ught to a house or building, but 
such a right may be acquired by (a) express or 
impHed grant from the contiguous proprietors ; 
(b) by reservation (express or implied) on the 
sale of the servient tenement ; or (c) by actual 
enjoyment of such light for the full period of 
twenty years without interruption submitted to 
or acquiesced in for one year after the owner of 
the dominant tenement shall have had notice 
thereof, and of the person making or authorising 
such interruption [d). 

(a) Dalton v. Angus, 6 App. Cas. 740. 

(b) Lemaitre v. Davis, 19 Ch. D. 281. 

(c) Stroyan v. Knowles, Hanier v. Same, 6 H. & N. 454. For an 
example of a proper case for an injunction to prevent such damage, 
see Consett Industrial, etc. Society, Limited v. Consett Iron Co., Limited, 
[1921] W. N. 161. 

{d) 2 & 3 Will. 4, c. 71, ss. 3, 4. 



Disturbance of Right to Light and Air. 245 

(2) A right to the free access of air through Art. 107. 
a particular defined channel, or through a par- 
ticular aperture, may be acquired (e) in the same 

way as a right to light. But a right to the free 
access of air over land to land or buildings at 
large cannot (it seems) be acquired (/). 

(3) Where the owner of a house has acquired 
a right over land to light in respect of any 
windows in that house, any person who builds 
on that land so close to those windows as to 
render the occupation of the house uncom- 
fortable according to the ordinary notions of 
mankind, and (in the case of business premises) 
as to render it impossible to carry on busi- 
ness therein as beneficially as before, commits 
a tort (g). 

(1) Implied grants of easements are generally founded Illustrations, 
on the maxim, " A man cannot derogate from his o\mi Implied 
grant." In other words, the grantor of land which is to grants of 

be used for a particular purpose is under an obhgation 
to abstain from doing anything on adjoining property 
belonging to him which would prevent the land granted 
from being used for the purpose for which the grant was 
made (h). 

(2) To gain a right by prescription under s. 3 of the Right 
Prescription Act, 1832 (i), there must be user without the gained by 
written consent (k) of the owner of the servient tenement, P^®^*^"P ^°^' 
uninterrupted for twenty years, from the time when window 

(e) Bass v. Gregory, 25 Q. B. D. 481 ; Cable v. Bryant, [1908] 
I Ch. 259. 

(/) Webb V. Bird, 13 C. B. (n.s.) 841 ; Bryant v. Lefever, 4 C. P. D. 
172 [C. A.] ; Chastey v. Ackland, [1895] 2 Ch. 389 [C. A.] ; see S. C. 
[1897] A. C. 155. 

(fj) Colls V. Home and Colonial Stores, Limited, [1904] A. C. 179. 

(h) Aldin v. Latimer Clark, Muirhead <t- Co., [1894] 2 Ch. 437. 

(i) 2 & 3 Will. 4, c. 71. 

(A-) Verbal consent is not enough to prevent acquisition of tlio 
right {Mallam v. Rose, [1915] 2 Ch. 222). 



air 



246 Private Nuisances. 

Art. 107. spaces arc complete and the building is roofed in (/). As, 

however, by s. 4, nothing is to be deemed an interruption 

unless submitted to for a year after notice, it has been held 
that enjoyment for nineteen years and 330 days, followed 
by an interruption of thirty-five days just before the action 
was commenced, was sufficient to establish the right (m). 
However, for the purposes of commencing an action an 
inchoate title of nineteen years and a fraction is not 
sufficient, and no injunction will be granted until the 
twenty years have expired {n). 

Right to (3) Actions to prevent, or to claim damages for, inter- 

access of ference with ancient lights, are frequently spoken of as 

cases of light and air, and the right relied on, as a right to 
the access of " Hght and air." Most of the cases relate 
solely to the interference with the access of Hght, and it 
has been said that a right to the access of air over the 
general unlimited surface of the land of a neighbour cannot 
be acquired by mere enjoyment (o). Thus, in Webb v. 
Bird (p), it was held that the owner of an ancient windmill 
could not, under the Prescription Act, prevent the owner of 
adjoining land from building so as to interrupt the passage 
of air to the mill. A similar decision was given in Bryant v. 
Lefever (q), where it was sought to restrain the defendant 
from building so as to obstruct the access of air to the 
plaintiff's chimneys. But there seems really to be no 
difference in principle between easements of light and of air, 
and a right to the uninterrupted passage of air through a 
defined aperture, such as a window used for ventilation (r) , 
or a ventilating shaft (s), may be acquired by grant or 
prescription. 

(I) Collis V. Laugher, [1894] 3 Ch. G59 ; and the section does not 
apply to doorways (Levet v. Gaslight and Coke Co., [1919] 1 Ch. 24). 

(m) Flight v. Thomas, 11 A. & E. 688 [Ex. Ch.]. 

(n) Lord Battersea v. City of London Commissioners of Sewers, 
[1895] 2 Ch. 708. 

(o) Per Cotton, L.J., Bryant v. Lefever, 4 C. P. D. 172 [C. A.]. 
See also Chastey v. Ackland, [1895] 2 Ch. 398 [C. A.] ; [1897] A. C. 
155. 

(p) 13 C. B. (N.s.) 841. {q) Supra. 

(r) Cable v. Bryant, [1908] 1 Ch. 259. 

(s) Bass V. Gregory, 25 Q. B. D. 481. 



Disturbance of Right to Light and Air. 247 

(4) Where a right to light has been acquired by express Art. 107. 

grant, the question whether any substantial infringement of ■ 

the right has taken place must depend upon the construe- dirn[nudon 
tion of the grant. But where a right has been acquired by giving rise 
implied grant or under the Prescription Act, the owner of *'° ^^ action. 
the right is entitled to prevent any jaerson from building so 
close to the window in respect, of which the hght is acquired 
as to render the occupation of the house in which the 
window is situated uncomfortable according to the ordinary 
notions of mankind, and (in the case of business j)remises) to 
prevent the owner from carrying on business as beneficially 
as before (t). The sole question to be determined in 
deciding whether a right to light has been so far infringed 
as to give rise to an action is whether the obstruction is 
so great as to amount to a nuisance (u). It follows, there- 
fore, that the use of an extraordinary amount of light for 
twenty years will not give rise to a right to receive that 
amount of light always, because the question whether an 
obstruction of light is so great as to be a nuisance cannot 
be affected by any considerations of what the light has 
been used for {w). Very generally speaking, an obstruction 
of the hght which flows to a window will not be considered 
a nuisance if the light which remains can still flow to the 
window at an angle of forty-five degrees with the horizontal, 
especially if there is good light from other directions as 
well (x). And in a recent case a good illustration is given 
of the variation in light an obstruction may afford and the 
principles applicable (y). 

Art. 108. — Disturbance of Water Rights. 

(1) Every owner of land on the banks of a 
natural stream has a right ex jure naturce to the 
ordinary use of the water which flows past his 
land {e.g., for irrigation, feeding cattle, domestic 

(0 Colli V. Home and Colonial Stores, [1904] A. C. 179. 
(u) Ibid., per Lord Davey, at p. 204. 
{w) Ambler v. Gordon, [190.5] 1 K. B. 417. 

(x) Per hordhii^DLKY in ColLs V. Home and Colonial Stores, [1904] 
A. C, at p. 210 ; and soo Kine v. Jolly, [190.5 J 1 Cli. 480 [C. A.]. 
(y) Davis v. Marrable, [191.3] 2 Ch. 421. 



248 



Private Nuisances. 



Art. 108. purposes, etc.). Such an owner may also make 
use of the water for other purposes than ordinary 
ones, provided that, in so doing, he does not 
interfere with the similar rights of other riparian 
owners lower down the stream (2). 

(2) An artificial watercourse may have been 
originally made under such circumstances, and 
have been so used, as to give to the owners on 
each side all the rights which a riparian pro- 
prietor would have had if it had been a natural 
stream {a). 

(3) There is, however, no right to the con- 
tinued flow of water which runs through natural 
underground channels, which are undefiyied or 
unknown, and can only he ascertained by 
excavation (6). 

(4) No one has a right to pollute the water 
percolating under his own land and flowing 
thence by underground channels into another's 
land so as to poison the water which that other 
has a right to use (c). 

Illustrations. (1) Every riparian owner may reasonably use the stream 

Rights of for drinking, watering his cattle, or turning his mill, and 

riparian other purposes connected with his tenement, provided he 

does not thereby seriously diminish the stream {d) . But he 

has no right to divert the water to a place outside his 



(z) Miner v. Gilmour, 12 Moo. P. C. C. 131 ; Emhrey v. Owen, 
6 Ex. 353. 

(a) Baily db Co. v. Clark, Son and Morland, [1902] 1 Ch. 649 
[C. A.] ; Whitmore's {Edenbridge), Limited v. Stanford, [1909] 1 Ch. 
427 ; Stollmeyer v. Trinidad Petroleum Development Co., [1918] 
A. C. 498. 

(b) Chasemore v. Richards, 7 H. L. Cas. 349 : Bradford Corpora- 
tion V. Ferrand, [1902] 2 Ch. 655. 

(c) Ballard v. Tomlinson, 29 Ch. D. 115 [C. A.]. 

(d) Embrey v. Owen, 6 Ex. 353 ; White {John) ds Sons v. White 
(J. and M.), [1906] A. C. 72. 



Disturbance of Water Rights. 249 

tenement, and there consume it for purposes unconnected Art. 108. 
wth the tenement (e). 

(2) If the rights of a riparian proprietor are interfered Disturbance 
\Wth, as by diverting the stream or abstracting or fouhng °. "P'^rian 
the water, he may maintain an action against the WTong- 

doer for violation of the right, even though he may not be 
able to prove that he has suffered any actual loss (/). So 
if one erects a weir which affects the flow of water to 
rij)arian o^\^lers lower down the river, an injunction will 
be granted (g). 

(3) But where a riparian owner takes water from a river, 
and after using it for cooling certain apparatus returns it 
undiminished in quantity and unpolluted in quahty, a lower 
riparian owner has no right of action. For his only right is 
to have the water abundant and unde filed, and that right 
is not infringed {k). 

(4) The o^vner of land containing underground water. Abstracting 
which percolates by undefined channels, or by defined but ^^^er- 
unascertained chamiels, and flows to the land of a neigh- water, 
bour, has the right to divert or appropriate the water within 

his own land so as to deprive his neighbour of it (i). The 
same rule appUes to common surface water rising out 
of springy or boggy ground and flowdng in no defined 
channel (k). 

(e) McCartney v. Londonderry and Lough SwiUy Rail. Co., [1904] 
A. C. 301 ; Att.-Gen. v. Great Northern Rail. Co. (1908), 72 J. P. 442. 

(/) Wood V. Waud, 3 Ex. 748 ; Emhrey v. Owen, 6 Ex. 353 ; 
Crossley v. Lightowler, L. R. 2 Ch. 478. 

(g) Belfast Ropeworks v. Boyd, 21 L. R. Ir. 560 [C. A.]. 

{h) Kensit v. Great Eastern Rail. Co., 27 Ch. D. 122 [C. A.]. In 
that case the water was abstracted by a non-riparian owner under 
a licence from a riparian owner. This Hcence, however, could not 
confer any right, as a riparian owner clearly cannot confer on others 
such rights as he has as riparian owner. But, as the action failed 
against the non-riparian owner, a fortiori it would against a riparian 
owner taking away water and returning it undiminished and 
unpolluted. 

{i) Chasemore v. Richards, 7 H. L. Cas. 349 ; Bradford Corpora- 
tion V. Ferrand, [1902] 2 Ch. 055 ; Bradford Corporation v. Pickles, 
[1895] A. C. 587, see ayite, p. 228. 

{k) Rawstron v. Taylor, 11 Ex. 369. 



250 



Private Nuisances. 



Art. 108. 

Fouling 
under- 
ground 
water. 



(5) But although there can be no property in water 
running through underground undefiyied channels, yet no 
one is entitled to pollute water flowing beneath another's 
land. Thus, in Ballard v. Tomlinson (I), where neighbours 
•each possessed a well, and one of them turned sewage into 
his well, in consequence whereof the well of the other 
became polluted, it was held by the Court of Apjieal that 
an action lay ; for there is a considerable difference between 
intercepting water in which no property exists, on the one 
hand, and sending a new, foreign and deleterious substance 
on to another's property, on the other. The one merely 
deprives a man of something in which he has no property, 
the other causes an active nuisance. 



Exception. 



Rights in derogation of those of the other riparian 



ViT"^*^^^ proprietors may be gained by grant or prescription (m). 



Right 
restricted 
by the terms 
of the grant 
or the 
extent of 
the user. 



Art. 109. — Disturbance of Private Rights of Way. 

(1) A right of way over the land of another 
can only arise by grant, express or implied, or 
by prescription. 

(2) A person commits a tort who disturbs the 
enjoyment of a right of way by blocking it up 
permanently or temporarily, or by otherwise 
preventing its free user. 

(1) We are here deaUng with private rights of way, as 
distinguished from public rights of way. A public way or 
highway is a right enjoyed by the pubUc to pass over land. 
A private right of way is a right one person may enjoy by 
grant or prescription to pass over another's land, or which 
an owner of land may have by grant or prescription for 
himself, his tenants and servants to pass over the lands 
of another. 



(Z) 29 Ch. D. 115. 

(m) See Mason v. Hill, 3 B. & Ad. .304 ; Carlyon v. Lovering, 
1 H. & N. 784 ; Whitehead v. Parks (1858), 2 H. & N. 870. 



Disturbance of Private Rights of Way. 251 

There may also by custom be a way which can only be Art. 109. 

lawfully used by the inhabitants of a parish for going to 

and from the parish church (n). 

(2) It does not require a permanent obstruction to give Obstruction 
rise to a right of action. Thus padlocking a gate (o), or of I'gnts of 
permitting carts or wagons to remain stationary on the 
road in the course of loading and unloading, in such a way 
as to obstruct the passage over the road, will give rise to 
an action {p). 

(n) See Brocklebank v. Thompson, [1903] 2 Ch. 344. 

(o) Kidgill v. Moor, 9 C. B. 364. 

{p) Thorpe v. Brumfitt, L. R. 8 Ch. 650. 



CANADIAN NOTES. 251a 



CANADIAN NOTES TO CHAPTER XI. OF PART II. 

Article 98. 

The following cases may be referred to as illustrating 
various uses of property which may amount to an action- 
able nuisance : — 

Macintosh v. City of Wesfmouni (11)12), 8 D. L. R. 
820 : hospital for contagious diseases. 

Beamish v. Glenn (1916), 36 Ont. L. R. 10: 28 D. L. R. 
702 : blacksmith's shoj). 

Pope V. Peate (1904), ? Ont. L. R. 20T : music lessons 
(injunction refused upon the evidence). 

Dnjsdale \. Dugas (1896), 26 S. C. R. 20: odours from 
a liverv stable. 

Chandler Electric Co. v. //. //. Fuller d- Co. (1892), 21 
S. C. R. 337 : escaping steam. 

Audette v. O'Cain (1907), 39 S. C. R. 103: melting 
water leaking from an ice-house. 

Appleby Y.Erie Tobacco Co. (1910), 22 Ont. L. R. 533: 
odours from a tobacco factory. 

An erection which is not a nuisance at common law does 
not become so merely because it is prohibited by a city 
bv-law: Presfon v. Hilton (1920), 48 Ont. L. R. 172: 55 
I). L. R. 647. 

Ahticles 99-100. 

Ill Dnisdiih' v. Dugns (1896), 26 S. C. R. 20, the livery 
stable had been constructed in the most modern and scicn- 
tilic manner possible. But the court held that, since the 
odours in fact constituted a nuisance, the defendant was 
lialile, Ta-^ch'^roau, J., citing Proncli authorities to shew 
that the ■•■i\il law doctrine led to \\v same- result as the 
common law on this matter. 

In Ciisson v. (lalibcrt (1902), 22 Que. S. ('. I!i;;, the 
j)]aintiff |)urchased a house ailjoining ;i taiiixTv. The evi- 
dence disclosed a certain amount of iiiconvciiience, hut 
no jnaterial injury to [ii-o|)eity, ami the action was dis- 



251b CANADIAN NOTES. 

missed. Tlie J'ollowiiijj;- consideranis may be cited from the 
roiiiial judii'iiieiit of Archibald, J.: — 

" ('()iisid('riii<i- that by law iicigbboui's are obhjied to 
endure the rt'asonable iiicoiiveiiieiices which arise from 
iiciiihbourhood, and tliat the nature and (U'g'ree of such 
inconveniences vary accordin*;' to circumstances of place, 
occupation, and (piality of the population: 

" Consiih'rin^' that it is pr{jvc(l tiiat tlu; neiglil)our- 
hood in question is a nianufacturin«i' one; that the 
defen(hints' tannery has been ex])loited for a great num- 
ber of years, long previous to tlie plaintiff's ])urchase 
of his property in question : that the (k'fenchints have 
em})loyed the best known means to minimise tlie incon- 
veniences resulting to their neiglibours from the opera- 
tion of their works; 

" Considering that, under the circumstances proved, 
the inconvenience which ])laintifr is suffering is not 
greater tiian a neighbour is bound to endure; 

" Doth dismiss the plaintiff's action with costs." 

For other cases where the character of the neighl)()ur- 
hood influenced the decision, see OaHeij v. Wehh (lOKi), 
;iS Ont. L. R. 151 ; ;53 D. L. R. 35, and Beamish v. Glenn 
(lOHi), :M\ Ont. L. R. 10; 28 T). L. R. 702. 

Article 101. 

8ee the case of Love v. Macliraii, cited above in the note.4 
to Article 97. 

Article 102. 

The claim to a prescriptive right to commit a nuisance 
almost invariably arises in cases of the pollution of streams. 
For example illustrating the rules laid down in the text 
see Hunler v. Richards (1913), 28 Ont. L. R. 267; 12 
D. L. R. 503 ; ('(inlirell v. BreclnnruUje (1913), 11 T). L. R. 
461. 

Article 103. 

In Ma-cl-enzie v. Kai/ler (1905), 15 Man. L. R. 660; 1 
"W. L. R. 290, the nuisance was committed by the tenant. 
It \vas held that the landlord could not obtain an injunc- 
tion, unless he could prove injury to the reversion, but 



CANADIAN NOTES. 251c 

that adjoining tenants holding from the landlord conld 
maintain the action. 

.Simihirly a mortgagee cannot sue, unless he shews that 
his security will he imperilled: Preston v. Hilton (1920), 
48 Ont. L.E. 172; 55 D. L. E. 647. 

Article 104. 

In Sutfhes v. Cantin (1915), 22 B. C. E. 139; 32 
W. L. E. 101; 8 W. W. E. 1293; 24 D. L. E. 1, it was 
held that the nuisance caused by the washing down of 
mining tailings on to another's land gives the aggrieved 
owner the right to enter upon his neighl)Our's land with- 
out notice and abate the nuisance. 

But any exercise of the right of abatement must be 
exercised with caution and moderation : see the notes to 
Articles 95-96. 

Articles 105-106. 

In Boyd v. Cifij of Toronto (1911), 23 Ont. L. E. 421^ 
the defendant corporation had dug a sewer in the street 
which caused the collapse of the plaintiff's land together 
with the house built upon it. The evidence shewed that 
the excavation was sufficient to cause a subsidence of the 
land even without the weight of the building. Upon 
these facts it was held that the plaintiff could succeed, and 
that the collapse of the house must be reckoned in estimat- 
ing the damage. 

Irpdale v. Loudon (1908), 40 S. (". E. 313, was a case 
which raised the question of the legal nature of the right 
of support acquired by an upper flat against the lower 
l)ortion of the building. Three judges out of five in the 
Sn])reme Court held that twelve years' occupation of a 
room without ])ayment of rent gave the tenant a possessory 
title under the Statute of Limitations. One of the major- 
ity judges held that the right of support from the lower 
wall was a pr(>|)rictary right which was acquired with the 
title. The other two held that the right of support was 
an easement for which twenty years" prescription was 
required, and that the title oidy extended to so mucli of the 
structure as actually rested on the soil. 

Article 107. 

Ill aiicieiit lights cases the hurileii of proof is, first u|)on 
the clMiniaiil to shew ;iii iiiiinteri'iipted user of the liglit for 



^51(1 CANADIAN NOTES. 

twenty years, and tlieii ujjon tlie other jjarty to give evi- 
dence of facts negativing the presumption which the claim- 
ant has set uj) : Feiqcnhnum v. Jiirkson (1901), 8 B. ('. \{. 
417. 

Article 108. 

The student must bear in mind that the English law of 
waters is only applicable to Canada subject to important 
modifications arising out of the sj)ecial circumstance of 
the country and the course of legislation. Certain rights 
whicli exist in Canada,- such as the right of logging and 
the j)ublic right of ice-harvesting in navigable waters, are 
unknown to the English law. 

For example, a provincial statute in British Columbia 
has taken away the common law right of a riparian pro])ri- 
etor to the undiminished flow of the stream: Cooh v. Cil'i 
of Vanroiirer (1J)U), A. C. K)T7. 

The student should read carefully the elaborate judge- 
ment of Beck, J., in the case of MaJiOwecki v. Yachimyc 
(1917), 10 Alta. L. R. 366, where an important distinction 
is drawn between (a) lakes and ponds, (&) natural 
streams, and (c) surface water running in defined 
channels. 

The right of the riparian owner to unpolluted water is 
an absolute proprietary right, and it is unnecessary for 
liim to prove actual damage: CroniJier v. Town of Cohourg 
(1912), 1 1). L. R. 40. See also Nlpisiqidt Co. v. Canadian 
Iron Corporaiion (1913), 42 N. B. R. 287: 13 E. L. R. 
458; 14D. L. R. 752. 

The right of lumbermen to float logs down " floatable " 
streams is everywhere governed by statute. It is commonly 
called an " easement," though the accuracy of this tern< 
seems to be questionable. In any event it is not a para- 
mount right, but a right in the nature of a servitude, 
which must be exercised wnth such care as is necessary to 
prevent injury to riparian ])roperty: ITV^rrf v. Township 
of (irenviUe (1902), 32 S. C. R. 510. Any unauthorised 
obstruction of the right to float logs is a tort which gives 
rise to an action: Fan/ iili arson v. Imperial Oil Co. (1899), 
30 S. C. R. 188, 21(5. 

The exercise of the public right of ice-cutting in navig- 
able waters involves the right to bring the ice ashore, and 
the harvester mav cut a t'hannel through the ice in ])rivat ' 



CANADIAN NOTES. 25 le 

water lots for that ])urpo8e: Lal-e Simcoe Ice d Cold Stor- 
age Co. V. McDonald (1901), 31 S. C. E. 130. ' 

Article 109. 

Ill Barheau v. McKeoini (1917 ), ol Que. S. C. 311, the 
(iefendant, desiring to protect the property from tramps 
and loafers, placed a locked gate across the plaintiff's right 
of way, and gave the plaintiff a key. It was held that 
tliis amounted to an unjiistifiahle obstruction. 

Quebec Law. 

Although some of the cases cited above arise under the 
f'ivil Code, the student must bear in mind that the space 
available for these notes does not permit of an adequate 
summary of the Quebec rules, which in many respects 
differ from the law of the other provinces. The Quebec 
law on this subject is contained in Articles 499-566 of the 
Code, which should be studied with the aid of the standard 
commentaries thereon. 



( 253 ) 



CHAPTER XII. 

TRESPASS TO THE PERSON. 

In the case of most of the torts which we have hitherto Intro- 
considered, there was a wrongful act distinct from the ductory. 
damage to the plaintiff, and which would, if it had not 
been followed by damage, have given no right of action. 
But in the case of trespass to the person, and of trespass to 
land and goods, the wrongful act and the damage resulting 
from it are practically indivisible. These are what are 
spoken of in many text-books as injurice. They require no 
proof of damage resulting from the wrongful act. The 
mere fact that a private right has been infringed without 
lawful excuse, constitutes of itself both wrongful act and 
damage, and gives the party affronted a right of action, 
even although his actual surroundings may have been im- 
proved rather than depreciated, e.g., by false imprisonment. 

Trespass consists in (a) infringements of the right of 
safety and freedom of the person (trespass to the person) ; 
(b) infringements of rights of real property (trespass to 
land) ; and (c) infringements of rights to goods (trespass to 
goods). 

Art. 110. — General Liability for Trespass to 
the Person. 

(1) Trespass to the person may be by assault, 
battery, or false imprisonment. 

(2) Any person who commits a trespass to 
the person whether by assault, battery, or im- 
prisonment without lawful justification commits 
a tort. 

The older Avriters speak of six kinds of trespasses to the Ancient 
person : threats, assault, battery, wounding, mayhem (or ^^^^ 



254 



Trespass to the Person. 



Art. 110. 



Onus of 
proof. 



maiming) and false imprisonment. But at the present 
time it is sufficient to distinguish the three groups above 
mentioned. 

Prima facie every hostile interference with the person or 
liberty of another is wrongful without proof of damage ; but 
as we shall see, acts which are 'prima facie trespasses may 
often be justified. The burden of proof of justification 
always lies on the defendant. The plaintiff need only prove 
that without his consent the defendant committed an act 
which would prima facie amount to a trespass to the 
person, and it is for defendant to justify if he can. 



Art. 111. — Definition of Assault. 

An assault is an attempt or offer to apply force 
to the person of another directly or indirectly if 
the person making the attempt or offer causes 
the other to believe on reasonable grounds 
that he has the present ability to execute his 
purpose {a). 

Attempt. (1) Thus, if one make an attempt, and have at the time 

of making such attempt a present prima facie ability to 
do harm to the person of another, although no harm be 
actually done, it is nevertheless an assault. For example, 
menacing with a stick a person within reach thereof, 
although no blow be struck {h) ; or striking at a person 
who wards off the blow with his umbrella or walking-stick, 
would constitute assaults. 

Threat. (2) But a mere verbal threat is no assault ; nor is a 

threat consisting not of words but gestures, unless the 
other party be induced on reasonable grounds to believe 
that there is present ability to carry it out. The essence 
of the tort is that the wrongdoer puts the other in present 
fear of violence. This was illustrated by Pollock, C.B., 
in Cobhett v. Grey (c). " If," said the learned judge, " you 
direct a weapon, or if you raise your fist within those limits 

(a) See the Criminal Code (Indictable Offences) Bill, 1879, s. 3. 

(b) Read v. Coker, 13 C. B. 850. 

(c) 4 Ex. 729, at p. 744. 



Definition of Assault. 255 

which give you the means of striking, that may be an Art. 111. 

assault ; but if you simply say, at such a distance as that 

at which you cannot commit an assault (d), 'I will commit 
an assault,' I think that is not an assault." 

(3) To constitute an assault there must be an attempt. 
Therefore, if a man says that he would hit another were it 
not for something which withholds him, that is no assault, 
as there is no apparent attemj^t (e). 

(4) For the same reason, shaking a stick in sport at 
another is not actionable (/) . 

Art. 112. — Definition of Battery. 

(1) Battery consists in touching another's 
person hostilely or against his will, however 
slightly {g). 

(2) If the violence be so severe as to wound, 
and a fortiori if the hurt amount to a " mayhem " 
(that is, a deprivation of a member serviceable 
for defence in fight), the damages will be greater 
than those awarded for a mere battery; but 
otherwise the same rules of law apply to these 
injuries as to ordinary batteries. 

(1) This touching may be occasioned by a missile or any Illustrations, 
instrument set in motion by the defendant, as by throwing 

water over the plaintiff (h), or spitting in his face, or 
causing another to be medically examined against his or 
her will (i). In accordance with the rule, a battery must 
be involuntary : therefore a beating voluntarily suffered is 
not actionable ; for volenti nonjit injuria [j). 

(2) Merely touching a person in a friendly way in order Friendly 
to engage his attention, is no battery {k). touching. 

((/) Query — Battery. 

(e) Tuberville v. Savage, 1 Mod. Rep. 3. 

(/) Christopherson v. Blare, 11 Q. B. 47.3, at p. 477. 

[g) RawUngs v. Till, .3 M. & W. 28. 

{h) Fur.sell v. Horn, 8 A. & E. 602. 

(i) Latter v. Braddell and Sutclifje, 29 W. R. 239. 

(j) Christopherson v. Blare, 11 Q. B. 473. 

(k) Coward v. Baddeky, 28 L. J. J-^x. 2()f>. 



256 



Trespass to the Person. 



Art. 112. 

Pure 
accident. 



Accident in 
course of 
doing un- 
lawful act. 



(3) An entirely unintentional touching, which is the 
result of pure accident, does not amount to trespass. 
Where one of a shooting party fired at a pheasant and a 
shot from his gun glanced off a tree and accidentally 
wounded the plaintiff, a carrier, it was held that there was 
no trespass {I). But whenever an injury to the person is 
the result of an act of direct force, it amounts to trespass to 
the person if it is ^\Tongful, either as being wilful or as 
being the result of negligence (m). 

(4) But a touch unintentional and mthout negligence is 
an assault if it be done in the course of doing an unlawful 
act {n). Thus, where a tramway company was authorised 
by statute to run a steam tramcar on a public road, the 
statute must be taken to impose on the company a duty 
to see that the cars and tramway, and all necessary 
apparatus, are kept in proper condition for this purpose. 
If they fail to do so, and the tramway be in an improper 
condition, then, in running their cars on that tramway, 
they are doing that which they are not authorised to do by 
their Act. They are only authorised to be on the highway 
at all by their Act ; and as regards the pubhc, they can only 
justify using the tramway if they are doing what the Act 
allows them to do. If, therefore (apart from any question 
of negligence), a car runs on the defective tramway, and 
injures a passer-by, the company will be Hable ; for it is a 
direct injury to the person done in the course of doing an 
unlawful act, and without justification or excuse (o). 



Art. 113. — Definition of False Imprisonment. 

False imprisonment consists in the imposition 
of a total restraint for some period, however 
short, upon the liberty of another, without 
sufficient lawful justification (2^). The restraint 

(l) Stanley v. Powell, [1891] 1 Q. B. 86. 

(7)1) Per Bbamwell, B., in Holmes v. Mather, L. R. 10 Ex. 261. 
(n) Sadler v. South Staffordshire and Birmingham District Steam 
Tramways Co., 23 Q. B. D. 17 [C. A.], 
(o) Ibid. 
(p) Bird V. Jones, 7 Q. B. 742. 



Definition of False Imprisonment. 257 

may be either physical or by a mere show of Art. 113. 
authority. 

Imprisonment does not necessarily imply incarceration, Moral 
but any restraint by force or show of authority. For restraint, 
instance, where a bailiff tells a person that he has a writ 
against him, and thereupon such person peaceably accom- 
panies him, that constitutes an imprisonment (q). So, too, 
it is imprisonment if one is restrained in his own house from 
leaving a room and going upstairs (r). But some total 
restraint there must be, for a partial restraint of locomotion 
in a particular direction (as by preventing the plaintiff from 
exercising his right of way over a bridge) is no imprison- 
ment ; for no restraint is thereby put upon his Uberty (s). 

Actual restraint for however short a time constitutes 
imprisonment — as when a prisoner who has been acquitted 
was taken down to the cells and detained for a few minutes 
whilst questions were put to him by the warders (t). 

The distinction between false imprisonment and mahcious False 

prosecution is that the former unjustifiably restrains the imprison- 

liberty of the person — the latter is the mahcious institution "^'5[!*.^"d 
. ^ ^ f 1 1 malicious 

against another of bankruptcy or criminal proceedings prosecution 

without reasonable cause and may frequently be the actual distin- 

precursor of false imprisonment, but malicious prosecution ^^^^ 

sets in motion judicial process. False imprisonment sets 

in motion executive process. 

In addition to the remedy by action, the law affords a Habeas 
pecuUar and unique summary relief to a person wrongfully (corpus. 
imprisoned, viz., the writ of habeas corpus ad subjiciendum. 

This writ may be obtained by motion made to any 
superior court, or to any judge when those courts are not 
sitting, by any of his Majesty's subjects. The party moving 
must show probable cause that the person whose release he 
desires is wrongfully detained. If the court or judge thinks 

(q) Warner v. Riddiford, 4 C. B. (n.s.) 180. 

(r) Grainger v. Hill, 4 Bing. N. C. 212 ; see Harvey v. Mayne, 
6 Ir. C. L. R. 417. 

(s) Bird V. Jones, supra. 

(t) Mee V. Cruikshank, 8G L. T. 708. 

S 



258 Trespass to the Person. 

Art. 113. that there is reasonable ground for suspecting illegahty, the 
writ is ordered to issue, commanding the detainer to pro- 
duce the party detained in court on a specified day, when 
the question is summarily determined. If the detainer can 
justify the detention, the prisoner is remitted to his custody. 
If not, he is discharged, and may then have his remedy by 
action {u). 

Art. 114. — Justification of Trespass to the 
Person. 

A trespass to the person, whether amounting 
to assault, battery, or false imprisonment, may 
be justified by the defendant as being authorised 
by the exercise of a right at common law or by 
statute, and if the defendant prove the facts 
alleged in justification, the plaintiff must fail. 

Justifica- Trespass to the jDerson may be justified as being (a) in 

^^°^- defence of property or person {x) ; (b) as being in the 

exercise of parental or other sj^ecial authority {y) ; (c) as 
being an arrest or imprisonment made by judicial autho- 
rity (z) ; (d) as being an arrest on suspicion of felony 
or misdemeanor, or for preservation of the peace (a) ; 
(e) for execution of legal process, e.g., search authorised 
by law (b). 

But in every case the force used must not exceed that 
which is reasonably required in the circumstances, and any 
excess of violence amounts to a trespass. 

Art. 115. — Self-defence as Justification of 
Assault and Battery. 

Assault and battery is justified if made in self- 
defence or in defence of real or personal property, 
provided the force used does not exceed that 

(u) See 31 Car. 2, c. 2, and 56 Geo. 3, c. 100. 

(x) See Art. 115. {y) See Art. 116. 

(2) See Art. 117. (a) See Arts. 118-122. 

(6) Taylor v. Pritchard, [1910] 2 K. B. 320. 



Self-defence as Justification of Assault. 259 

which is reasonably required in the circum- Art. 115. 
stances. — 

Any violence in excess of what is reasonably 
necessary is a trespass. 

(1) A battery is justifiable if committed in self-defence. Self-defence. 
Such a plea is called a plea of " son assault demesne." 

But, to support it, the battery so justified must have been 
committed in actual defence, and not afterwards and in 
mere retahation (c). Neither does every common battery 
excuse a mayhem. As, if " A. strike B., B. cannot justify 
d^a^ving his sword, and cutting off A.'s hand," unless there 
was a dangerous scuffle, and the mayhem was infhcted in 
self-preservation ((/). 

(2) A battery committed in defence of real or personal Defence of 
property is justifiable. Thus, if one forcibly enters my Property, 
house, I may forcibly eject him ; but if he enters quietly, 

I must first request him to leave. If after that he still re- 
fuses, I ma}' use sufficient force to remove him. in resisting 
which he mil be guilty of an assault (e). 

(3) Lord E. was steward of Doncaster Races. With his 
sanction, tickets for the grand stand were issued at one 
guinea each, entitHng the holder to come into the stand and 
the enclosure. The plaintiff, having bought a ticket, came 
into the enclosure. The defendant, by order of Lord E., 
asked him to leave, and when he refused, after a reason- 
able time had elapsed, put him out, using no unnecessary 
violence, but not returning the guinea : — Held, that the de- 
fendant was justified, as he was acting by order of Lord E. 
in removing the plaintiff from Lord E.'s enclosure. The 
ticket was a revocable licence, and as soon as it Avas revoked, 
the plaintiff was a trespasser (/). But since the Judica- 
ture Act this rule has ceased largely, if not entirely, to be 
enforceable, and a hcensee whose Hcensor can be compelled 
by injunction to allow him to do the act licensed cannot 
be treated as a trespasser because he does that act. In 

(o) Cockroft V. Smith, 11 Mod. Rep. 43. 
{d) Cook V. Real, Ld. Raym. 177. 

(e) Wheeler v. Whiting, 9 C. & P. 2G2 ; Hemmings and Wife v. 
Slake Poges Golf Club, [1920] 1 K. B. 720. 
(/) Wood V. Lgadbilter, 13 M. & W. 838. 



260 
Art. 115. 



Imprison- 
ment not 
justified. 



Trespass to the Person. 

Hurst V. Picture Theatres, Limited (g), it was held by the 
Court of Appeal that a person who had bought a ticket for 
a seat at a cinema performance could sue in tort for damages 
for forcible ejection by the defendants' servants acting on 
the erroneous impression that he had obtained admission 
without payment. 

(4) It should be added that an owner of property is not 
j ustified in forcibly detaining another to compel restitution 
of his property {h). 



Parental 
and other 
authority. 



Marital 
authority. 



Naval and 

military 

officers. 



Art. 116. — Justification by Parental or 
Other Authority. 

Assault and imprisonment may be justified as 
being done in the lawful exercise of parental or 
other authority. 

(1) A father may moderately chastise his son, and this 
authority he may delegate to a schoolmaster. School- 
masters are justified in moderately chastising and in putting 
restraint on the liberty of their pupils ; and this autho- 
rity extends to chastisement for offences committed whilst 
going to and returning from school (i) . But for any excess 
of punishment an action for assault or false imprisonment 
lies. So, too, a master may chastise his apprentice (j.) 

(2) It was formerly thought that a husband had the 
right of chastising and imprisoning his wife — but this can 
no longer be regarded as the law {k). 

(3) Officers in the army and navy, and officers of terri- 
torials have statutory authority by which they may 
justify assaults and imprisonment of the men under them 
as being authorised punishments for military or naval 
offences (/). 

(g) [1915] 1 K. B. 1. 
(/() Harvey v. Mayne, 6 Ir. C. L. 471. 
{i) deary v. Booth, [1893] 1 Q. B. 465. 
{j) Penn v. Ward, 2 C. M. & R. 338. 

(k) R. V. Jackson, [1891] 1 Q. B. 671 [C. A.]; Scully v, Scully 
(1921), Times Newspaper, 24th June, et seq. 

(I) See Marks v. Frogley, [1898] 1 Q. B. 888 [C. A.]. 



Justification by Judicial Authority. 261 

Art. 117. 
Art. 117. — Justification by Judicial Authority. 

When a person is arrested or imprisoned by 
judicial authority no action for trespass to the 
person hes against the judge who gives the 
authority, or against persons executing his 
orders, or against the person who set the law 
in motion. 

TEis general jDroposition must be read with the qualifica- Distinction 
tions and explanation given in Arts. 8 and 9, where we between 
have discussed the consequences of irregularities and want imprison- 
of jurisdiction. Assuming the judgment, sentence, or ment and 
order to be regular, and the imprisonment or arrest to be !^i.osecution 
authorised by it, the protection is absolute, and no action 
for assault or false imprisonment will lie against the judge, 
or against the persons who carry out the order, or against 
the person who procured the order from the judge. 

(1) So if 1 lay an information before a justice, upon 
which he issues his warrant for the arrest of the alleged 
offender, it is his arrest and not mine. Though 1 may be 
liable in an action for malicious prosecution I cannot be 
liable in an action for false imprisonment. 

(2) But if, without the interposition of any judicial 
authority, I request a constable to arrest a person, 1 make 
him my agent for that purpose, and, if the arrest is not 
justifiable on some ground, 1 am liable as if 1 had myself 
arrested him. Accordingly it is important to distinguish 
clearly cases where the arrest is judicial from those where 
it is not. The distinction is thus laid down by Willes, 
J. (m) : 

" The distinction between false imprisonment and Rule laid 
maUcious prosecution is well illustrated by the case where, ^°^^^ ^^^ 
parties being before a magistrate, one makes a charge 
against another, whereupon the magistrate orders the 
person charged to be taken into custody and detained until 
the matter can be investigated. The party making the 

(m) Austin v. Bowling, L. E. .1 C. P. .5.34, at p. 540. 



262 Trespass to the Person. 

Art. 117. charge is not liable to an action for false imprisonment 

because he does not set a ministerial officer in motion but 

a judicial officer. The opinion and judgment of a judicial 
officer are interposed between the charge and the imprison- 
ment. There is, therefore, at once a line drawn between 
the end of the imprisonment by the ministerial officer and 
the commencement of the proceedings before the judicial 
officer." 

(3) False imprisonment only lies where the defendant 
has taken on himself the responsibility of directing the im- 
prisonment. When a person merely gives information to 
a police officer, and he arrests on his own initiative, the 
person giving the information is not guilty of a trespass {n) , 
though, of course, the police officer may be. 

So, too, signing a charge sheet is not in itself evidence 
of anything supporting an action for false imprisonment 
against the person who signs (n). Though, when accom- 
panied by other circumstances (as in Austin v. Dowling (o)), 
it may show that the person who signs authorises the 
imprisonment. 

Art. 118. — -Power of Magistrates to Arrest or 
order Arrest. 

If a felony, or breach of the peace, be com- 
mitted in view of a justice, he may personally 
arrest the offender or command a bystander to 
do so, such command bemg a good warrant. 
But if he be not present, he must issue his 
written warrant to apprehend the offender (^j). 

Warrant for Except in the case mentioned in this Article a magistrate 
arrest. c^in only justify an arrest made by his order if he has 

issued a \\Titten Avarrant for arresting the person arrested. 
A warrant is an authority to the person to whom it is 
directed (usually a constable) to arrest the person named 
therein. It is issued by a justice of the peace upon in- 
formation given to him that the person to be arrested is 

(n) Grinham v. Willey, 4 H. & N. 496 ; followed in Sewell v. 
National Telephone Co., [1907] 1 K. B. 557. 

(o) L. R. 5 C. P. 534. {p) 2 Hale P. C. 86. 



Power of Magistrates to Arrest, etc. 263 

suspected of having committed an offence. The magistrate Art. 118. 

in issuing a warrant acts judicially, and at common law 

the warrant was an absolute justification for any arrest 
made by a constable within the terms of the warrant, 
provided the magistrate had jurisdiction (q). But there 
are some cases in which an arrest may lawfully be made 
without warrant ; these are dealt with in the following 
Articles. 

Art. 119. — Power of Constables and Others to 
Arrest in Obedience to Warrant. 

No action lies against a constable, or any 
person acting by his order and in his aid, for 
anything done in obedience to any warrant 
issued by any justice of the peace notwith- 
standing any defect of jurisdiction of such 
justice (r). 

Note. — At common law an action lay against a constable 
if he arrested a person upon a warrant issued by a justice 
who had no jurisdiction to issue it (see ante, Art. 9), but 
constables and those assisting them are protected by this 
enactment, whether the justice of the peace has juris- 
diction to issue the warrant, or not. 

The statute does not, however, afford any protection to 
a constable who does something not authorised by the 
warrant, as, e.g., if he arrests the wrong person. 

Art. 120. — Arrest for Felony without Warrant. 

(1) Any person may arrest another without a 
warrant if a felony has in fact been committed, and 
he has reasonable grounds for suspecting that 
the person arrested has committed the felony. 

(2) A constable may arrest any person with- 
out a warrant if he has reasonable grounds for 
thinking that a felony has been committed, and 

(q) See ante. Art. 9. (r) 24 Geo. 2, c. 44, s. 0. 



264 



Trespass to the Person. 



Art. 120. that it has been committed by the person 
arrested. 

Felons. A treason or felony having been actually committed, 

a private person may arrest one reasonably, although 
erroneously, suspected by him ; but the suspicion must 
not be mere surmise, and the defendant must show that 
the particular felony in respect of which the plaintiff was 
arrested had been in fact committed {s). 

In an action for false imprisonment, where the defen- 
dant, in order to justify himself, must prove that a felony 
was in fact committed, and where it appears that if it 
were committed it could only have been committed by 
the plaintiff, the fact that the latter has been tried for 
the alleged felony and acquitted, does not estop the de- 
fendant from giving evidence that he did really commit it. 
For the verdict in the criminal trial was res inter alios 
acta, and is not binding on the defendant in a distinct 
proceeding (t) . 

As we have seen, a private person can only arrest a 
suspected felon in cases where a felony has actually been 
committed by some one ; and if it should turn out that no 
such felony was ever committed, he will be liable, however 
reasonable his suspicions may have been. It would, how- 
ever, be obviously absurd to require a constable to satisfy 
himseK at his peril that a felony had been in fact committed 
before acting ; and consequently the law provides that a 
constable may make an arrest merely upon reasonable 
suspicion that a felony has been committed, and that the 
party arrested was the doer ; and even though it should 
turn out eventually that no felony has been committed, he 
will not be liable (u). The suspicion, however, must be a 
reasonable one, or the constable will be liable. 

The constable was formerly an officer apjDointed for a 
constablewick or other district, who had at common law 
certain powers within that district. Police constables are 

(s) Beckwith v. Philby, 6 B. & C. 635 ; Walters v. Smith, [1914] 
1 K. B. 595. 

(<) Cahill V. Fitzgibbon, 16 L. R. Ir. .371. 

(^t^ Marsh v. Loader, 14 C. B. (n.s.) 535 ; Griffin v. Coleman, 
28 L. J. Ex. 134. 



Arrest for Felony without Warrant. 265 

now apjDointed for counties and boroughs under various Art. 120. 

statutes, and the constables so appointed have throughout 

the counties or boroughs for which they are appointed, 
the powers which at common law a constable had within 
his constablewick, together with other statutory powers (x). 

(1) Thus, a person told the defendant, a constable, that Illustrations. 
a year previously he had had his harness stolen, and that 

he now saw it on the plaintiff's horse, and thereupon the 
defendant went up to the plaintiff and asked him where 
he got his harness from, and the plaintiff making answer 
that he had bought it from a person unknown to him, the 
constable took him into custody, although he had known 
him to be a respectable householder for twenty years. It 
was held that the constable had no reasonable cause for 
susptecting the plaintiff, and was consequently Uable for 
the false imprisonment (y). But, on the other hand, where 
a constable knows that a warrant is out against a man, 
that is sufficient ground for his reasonably suspecting that 
a felony has been committed (2). 

(2) But where one man falsely charges another with 
having committed a felony, and a constable, at and by his 
direction, takes the other into custody, the party making 
the charge, and not the constable, is Hable (a). " It would 
be most mischievous," Lord Mansfield remarks, " that 
the officer should be bound first to try, and at his peril 
exercise his judgment as to the truth of the charge. He 
that makes the charge alone is answerable " (b). 

Art. 121. — Power of Arrest for Preservation 
of the Peace. 

For the sake of preserving the peace, any per- 
son who sees it broken may without a warrant 
arrest him whom he sees breaking it at the 
moment of the affray or immediately after, so 

(x) See the Police Acts, especially s. 8 of the County Police Act, 
1839, and the Municipal Corporations Act, 1882, s. 191. 
(y) Hogg v. Ward, 27 L. J. Ex. 443. 
(z) Creagh v. Gamble, 24 L. R. Jr. 458. 

(a) Davis v. Russell, 5 Bing. 354. 

(b) Griffin v. Coleman, 4 H. & N. 205. 



266 Trespass to the Person. 

Art. 121. long as there is a reasonable prospect of a 
renewal of the affray (c). 

The right of arrest stated in this Article is only to 
prevent disturbances of the peace. It seems that all 
persons taking joart in the affray may be arrested — pro- 
vided there is a prospect of the affray being renewed — 
and may be detained till the heat is over, and may then be 
delivered to a constable to be taken before a magistrate. 
Thus, when the plaintiff entered the defendant's shop and 
exchanged blows with a shopman, the defendant was 
justified in arresting him and handing him over to the 
constable, on the ground that though the affray had not 
been actually committed in his presence, yet the j)laintiff 
persisted in remaining on the premises in such circum- 
stances as made it seem probable that he would renew the 
disturbance unless he was taken into custody (c). In such 
circumstances it seems that a constable is justified in taking 
the disturber upon the information of one who has seen the 
affray (even though he was not himself present) if there 
is a prospect of its being renewed (c). There is some 
authority for saying that a constable may arrest imme- 
diately after an affray even though there is no prospect 
of the affray being renewed ; but the proposition is open 
to doubt. 

Art. 122. — Arrest for Misdemeanor. 

No person has at common law power to arrest 
another for a misdemeanor without a warrant ; 
but by various statutes powers of arrest for mis- 
demeanor are given to constables and others to 
arrest without a warrant. 

The following list is not complete, but it contains some 
examples of statutory powers of arrest for misdemeanor : 

fight (1) Any person may arrest and take before a justice one 

Senders. found committing an indictable offence between 9 p.m. and 
6 A.M. {d). 

(c) Timothy v. Simpson, 1 Cr. M. & R. 757. 

{d) 14 & 15 Vict. c. 19, s. 11 ; and see Trebeck v. Croudace, [1918] 
1 K. B. 158, a case under s. 12 of the Licensing Act, 1872. 



Arrest for Misdemeanor. 267 



Malicious 
injure rs. 



(2) The owner of property or his servant, or a constable, Art. 122. 
may arrest and take before a magistrate anyone found 
committiyig malicious injury to such property (e). 

(3) Any person may arrest and take before a magistrate Vagrants. 
one found committing an act of vagrancy (/). 

N.B. — Such acts are soliciting alms b}^ exposure of 
wounds, indecent exposure, false pretences, fortune- telling, 
betting, gaming in the public streets, and many other acts, 
for which one must refer to the fourth section of the Act. 

(4) A constable or churchwarden may apprehend, and Brawlers, 
take before a magistrate, any person disturbing divine 
service {g). 

(5) Many Acts of Parliament give powers of arrest of Other Acts. 
persons committing offences and refusing to give their 

names and addresses when requested. See, for instance, 
the Railways Clauses Consolidation Act, 1845, s. 154, and 
the Motor Car Act, 1903. 

Art. 123. — Institution of Criminal Proceedings 
endangers Right of Action for Assault. 

Where any person unlawfully assaults or 
beats another, two justices of the peace, upon 
complaint of the party aggrieved, may hear and 
determine such offence, and if they deem the 
offence not to be proved, or find it to have 
been justified, or so trifling as not to merit any 
punishment, and accordingly dismiss the com- 
plaint, they must forthwith make out a certi- 
ficate stating the fact of such dismissal, and 
deliver the same to the party charged. 

If any person shall have obtained a certificate of 
dismissal or having been convicted shall have suffered 
the punishment inflicted, he shall be released from 
all further or other proceedings, civil or criminal, 
for the same cause (h). 

(e) 14 & 15 Vict. c. 19, s. 11 ; 24 & 2.5 Vict. c. 97, s. 61. 

(/) 5 Geo. 4, c. 83. [g) 23 & 24 Vict. c. 32, s. 3. 

(h) 24 & 2.5 Vict. c. 100, ss. 42-45. 



268 Trespass to the Person. 

Art. 123. (1) A certificate can only be granted by magistrates 

^ " M'here there has been a hearing upon the merits. Where 

Comment. ,. . i • i , ■ , 

the prosecutor, havmg obtamed a summons, did not 

attend to give evidence and the magistrates dismissed the 

summons, the magistrates had no jurisdiction to give a 

certificate of dismissal (i). The fact that the accused has 

been ordered by the magistrates to enter into recognizances 

to keep the peace and to pay the recognizance fee, will 

not constitute a bar to an action (j). 

(2) The granting a certificate by magistrates where the 
complaint is dismissed, is not merely discretionary. Magis- 
trates are bound, on proper application, to give the 
certificate mentioned in the section {k) ; and, if they refuse 
to do so, may be compelled by mandamus (1). 

(3) The Avords '' from all further or other proceedings, 
civil or criminal, for the same cause," include all pro- 
ceedings against the defendant arising out of the same 
assault, whether taken by the prosecutor or by any other 
person (m) consequentially aggrieved thereby (w). 

Art. 124. — Amount of Damages. 

In assessing the damages for an assault, or 
battery, or false imprisonment, the time when, 
and the place in which, the trespass took place 
should be taken into consideration. 

Thus, an assault committed in a public place calls for 
much higher damages than one committed where there are 
few to witness it. "It is a greater insult," remarks 
Bathurst, J., in Tullidge v. Wade (o), " to be beaten 
upon the Royal Exchange than in a private room." 

(i) Reed v. Nutt, 24 Q. B. D. 669. 

0") Hartley v. Hindmarsh, L. R. 1 C. P. 553. 

{k) Hancock v. Somes, 28 L. J. M. C. 196. 

(L) Costar v. H ether itigton, 28 L. J. M. C. 198. 

(m) E.g., the complainant's husband. 

(n) Masper v. Brown, 1 C. P. D. 97. 

(o) 3 Wils. 18, at p. 19. 



CANADIAN NOTES. 268a 



CAXADIAN NOTES TO CHAPTER XII. OF PART II. 

Articles 110-112. 

The Criminal Code (s. 290) abolishes for criminal pur- 
poses the distinction between assault and battery, both 
actual and threatened violence being included under the 
term " assault." This does not, strictly speaking, affect 
any question of purely civil liability, but for practical pur- 
poses the distinction is no longer of importance, and the 
practice has now sprung up of using the word " assault '* 
to cover both torts. 

The least touch, if it be delivered with a hostile inten- 
tion, amounts to an assault. For example, in Her v. Gass 
(1909), 7 E. L. R. 98, an action against a police officer, 
the defendant did no more than gently place his hand upon 
the plaintiff's arm with the intention of arresting her. 
The court held that the intention was the governing factor 
and that his act therefore amounted to a technical assault. 

The act of a cyclist in running down a pedestrian raises 
against him a prima facie case of assault, and throws upon 
liim the onus of shewing justification or excuse: Woolman 
V. Cummer (1912), 8 D. L. R. 835. 

Article 113. 

There seems to be no Canadian authority directly illus- 
trating the meaning of " false imprisonment," which in 
Canada is often called " false arrest." 

In Birmingham Ledger Co. v. Bacharmn (1914), 10 Ala. 
Apj). 527 ; ()5 So. 6(57, the Alabama court held that a 
newspaper company was liable for false imj)risonment in 
refusing to allow some newsboys to leave the office premise* 
u)itil a s})ecial "extra" edition was ready. It should be 
added that they had been detained witli the object of pre- 
venting them from selling other ])apers. 

Akti(i.i<:s 114-122. 

Under the heading " Justification or Excuse '' the Crim- 
inal Code now contains an elaborate catalogue (ss. 16-68) 



268b CANADIAN NOTES. 

of the defences which may be pleaded on the ground of 
self-defence, necessity, discipline, or official authority, to a 
criminal charge. Any other common law defences are 
saved by section 16. Although the provisions of the Code 
do not strictly affect civil liabilitv. the student may take 
these sections as a sufficient statement of the law applicable 
to actions for assault and false imprisonment. Provincial 
statutes provide for the civil protection of police officers 
and other public authorities on lines generally similar to 
those of the English law. The statutory rules are too 
long to be summarised here, and it will suffice to cite a few 
cases. 

In Evans v. Bradhum (1915), 9 Alta. L. R. 523; 32 
W. L. R. 585; 9 W. W. R. 281; 25 D. L. R. 611, the 
defendant in an assault cause pleaded self-defence. The 
plaintiff had called the defendant a liar, whereupon the 
defendant, first taking off his coat, proceeded to beat him. 
The Appellate Division, reversing the trial judgment, held 
that the plaintiff was entitled to damages. 

In Her v. Gass (1909), 7 E. L. R. 98, the defendant, a 
police officer, committed a technical assault on the plaintiff 
by arresting her under the belief that she was drunk, and 
pleaded in defence a statute permitting peace officers to 
arrest without warrant persons drunk or feigning to be 
drunk. It Avas held that his honest belief in the plain- 
tiff's intoxication was no defence under the statute. 

In Washlurn v. Rohertson (1912), 8 D. L. R. 183, the 
defendant, a justice of the peace, issued a warrant for the 
plaintiff's arrest without taking the precaution to see that 
all the statutory preliminaries had been fully observed. 
The court held, that, until the conditions precedent had 
all been fulfilled, the magistrate was acting without jur- 
isdiction, and was therefore liable in damages. 

In Anderson V. Johnston, 10 Sask. L. R. 352: (1917), 
3 W. W. R. 353; 38 D. L. R. 563, a plaintiff recovered 
damages who had been arrested in good faith upon a mis- 
taken ideptificatiou and then unnecessarily detained. : 

With regard to Article 120, it should be observed that 
the distinction between felony and misdemeanour has been 
abolished by section 14 of the Criminal Code. The Can- 
adian rules corresponding to those of the text will be 
found in sections 30-38. 



CANADIAN NOTES. 268c 

Article 133. 

By section 734 of the Criminal Code the summary dis- 
posal of a charge of assault, whether by way of acquittal 
or of, conviction, is a bar to any further civil or criminal 
proceedings arising out of the same matter. In all other 
matters it is provided (s. 13) that the fact of an offence 
constituting a crime is no bar to any civil remedy. 

For a case illustrating the rule laid down in section 734 
see Hehert v. Hehert (1909), 16 Can. Cr. Cas. 199. 

Article 124. 

This rule may be illustrated by the cases cited in the 
notes to Articles 114-123. In Iler v. Gass, where the 
assault was purely nominal and was committed in perfect 
good faith, the plaintiff was allowed five dollars damages 
without costs. 

In Evans v. Bradhurn the plaintiff, who was laid up for a 
fortnight, was allowed $37.50 for loss of time, as well as 
$15.00 for the doctor's bill. For general damages he was 
only given $50.00 on account of the provocation which he 
had offered. 

Substantial damages should be awarded for an assault 
aggravated by circumstances of insolence and brutality, 
even though the plaintiff may have suffered no real physical 
injury: McLeod v. Holland (1913), 13 E. L. R. 509; 14 
D. L. R. 634. 



( 269 ) 



CHAPTER XIII. 

OF TRESPASS TO LAND AND DISPOSSESSION. 

SECTION I.— OF TRESPASS QUARE CLAUSUM 
F REGIT. 

Art. 125. — Definition. 

Trespass quare clausum fregit is committed in 
respect of another man's land, by entry on the 
same without lawful authority. It constitutes 
a tort without proof of actual damage. 

(1) Thus, driving nails into another's wall, or placing Illustrations, 
objects against it, are trespasses (a) ; or fox-hunting 

across land against the will of the o^vner (6). 

(2) So, it is generally a trespass to allow one's cattle to Trespass of 
stray on to another's land. Thus, where the plaintiff's ^^**^®- 
mare was injured by the defendant's horse biting and 

kicking her through the fence separating plaintiff's and 
defendant's land, it was held that this was a trespass for 
which the defendant was liable apart from any question 
of negligence (c). 

(3) Where one has authority to use another's land for a Exceeding 
particular purpose, any user going beyond the authorised authority, 
purpose is a trespass. 

(4) So, where a public highway runs across the lands of 
a landowner, the soil of which is vested in the o\vner, a 
member of the public who uses the road not merely in 
exercise of his right of way, but in order to interrupt the 
landowner's sport, is guilty of trespass. For he is using 
the site of the road for a purpose not covered by his 

(a) Laivrence v. Obee, 1 Stark. 22 ; Gregory v. Piper, 9 B. & C. 
591. 

(b) Paul V. Summerhayes, 4 Q. B. D. 9. 

(c) Ellis V. Loftus Iron Co., L. R. 10 C. P. 10. 



270 



Of Trespass to Land and Dispossession. 



Art. 125. 



Exceptions. 



Retaking 
goods. 



Cattle. 



Distraining 
for rent. 



Reversioner 
inspecting 
premises. 
Grantee of 
easement. 

Public 
rights. 



limited right of user (d) ; for the public only have a right 
to use a highway for passing and repassing and not for 
loitering or depasturing cattle (e), or for watching the 
training of horses on the adjoining lands (/). 

In the following cases a person has lawful authority to 
enter upon another's land : 

(1) If one takes and places on his own land another's 
goods, the latter may enter and retake them (g). 

(2) If cattle escape on to another's land through the 
non-repair of a hedge which that other is bound to repair, 
the owner of the cattle may enter and drive them out (h). 

(3) So a landlord may enter his tenant's house to distrain 
for rent, or a sheriff to do execution ; but they may not 
break open the outer door of a house (^). 

(4) A reversioner of lands may enter in order to see that 
no waste is being committed (k). 

(5) And the grantee of an easement may enter upon the 
servient tenement in order to do necessary repairs (l). 

(6) Land may be entered under the authority of a 
statute (m) ; or in exercise of a public right, as of a high- 
way ; or the right to enter an inn, provided there is accom- 
modation (w). Also land may be entered to preserve 
property, e.g. where a fire breaks out the tenant of sporting 
rights may use such methods as are reasonably believed 
by him to be necessary to preserve his rights, and he will 
not be liable if it afterwards turns out that the course he 
adopted, though reasonable, was not necessary (o). 

(d) Harrison v. Rutland (Duke), [1893] 1 Q. B. 142 [C. A.]. 

(e) Dovaston v. Payne, 2 H. Bl. 527 ; and 2 Sm. L. C. 160. 
(/) Hickman v. Maisey, [1900] 1 Q. B. 752 [C. A.]. 

[q] Patrick v. Colerick, 3 M. & W. 483 ; Coakerw. Willcocks, [1911] 
2 k. B. 124. 

[h) See Faldo v. Ridge, Yelv. 74. 

(i) Semayne''s Case, 5 Co. Rep. 91 c. ; 1 Sm. L. C. 104. 

(k) Six Carpenters' Case, 1 Sm. L. C. 132 ; 8 Co. Rep. 146 a. 

(l) Pomfret v. Rycroft, 1 Saimd. 321. 

(m) Beaver v. Manchester Corporation, 26 L. J. Q. B. 311. 

(n) Six Carpenters' Case, supra ; and see R. v. Ivens, 7 C. & P. 
213. 

(o) Cope V. Sharpe (1911), 132 L. T. Jo. 178. 



Definition. 



271 



(7) Lastly, land may be entered on the ground that it 
is the defendant's, and that he has a right to immediate 
possession (p). A person in wrongful possession cannot 
treat the rightful owner as a trespasser (g). This latter, 
known as the plea of liberum tenementum, is generally 
pleaded in order to try the title to lands. And a trespasser 
cannot get damages for forcible entry by the rightful 
owner unless more force than is necessary is used or there 
is a want of care in dealing with the trespasser's goods (r). 



Art. 125. 

Liberum, 
tenementum. 



Art. 126. — Trespassers ab initio. 

(1) Whenever a person has authority given 
him by law to enter upon lands or tenements 
for any purpose, and he goes beyond or abuses 
such authority by doing that which he has no 
right to do, then, although the entry was lawful, 
he will be considered as a trespasser ah initio. 

(2) But where authority is not given by the 
law, but by the party, and abused, then the per- 
son abusing such authority is not a trespasser 
ah initio. 

(3) The abuse necessary to render a person a 
trespasser ah initio must be a misfeasance and 
not a mere nonfeasance {s). 

Thus, six carpenters entered an inn and were served Illustration, 
with wine, for which they paid. Being afterwards at their 
request supj^lied with more wine, they refused to pay for 
it, and upon this it was sought to render them trespassers 
ab initio, but without success ; for although they had 
authority by law to enter (it being a public inn), yet the 
mere non-payment, being a nonfeasance and not a mis- 
feasance, was not suflficient to render them trespassers (s). 

ip) See Ryan v. Clark, 14 Q. B. (55. 

(q) Taunton v. Costur, 7 Term Rep. 4.'il. 

(r) Hemmings and Wife v. Stoke Poges Golf Club, [1920] 1 K. B. 



720. 



(s) Six Carpentem^ Case, 1 Sm. L. C. 132 ; 8 Co. Rep. 14G a. 



272 Of Trespass to Land and Dispossession. 

Art. 126. At common law this doctrine made a landlord a tres- 

passer ab initio when he distrained for rent justly due, 

and he, or his bailiff, was guilty of any irregularity. This, 
however, was very hard on landlords, and by the Distress 
for Rent Act, 1737 (t), an irregularity in such circum- 
stances does not make the distrainer a trespasser ab initio, 
and the tenant can only recover for the special damage 
sustained by the irregularity. 



Art. 127. — Possession necessary to enable the 
Plaintijf to maintain an Action of Trespass. 

( 1 ) In order to maintain an action of trespass, 
the plaintiff must be in the possession of the 
land ; for it is an injury to possession rather 
than to title. A mere interesse termini is not 
sufficient {u). But constructive possession, {.e., 
by a servant or agent, or a present right to pos- 
sess although no physical transfer has taken 
place, is sufficient {v). 

(2) The actual possession of land suffices to 
maintain an action of trespass against any 
person wrongfully entering upon it ; and if two 
persons are in possession of land, each asserting 
his right to it, then the person who has the title 
to it is to be considered in actual possession, and 
the other person is a mere trespasser {w). 

(3) Where a person is in possession of land, 
the onus lies upon the frimd facie trespasser to 
show that he is entitled to enter {x). 

{t) 11 Geo. 2, c. 19, ss. 19, 20, and see the Poor Relief Act, 1743 
(17 Geo. 2, c. 38), s. 8, which gives the same relief in case of any 
irregularity in a distress for poor rates. 

(u) Wallis V. Hands, [1893] 2 Ch. 75. 

(v) Glyn V. Howell, [1909] 1 Ch. 666. 

{w) Jones V. Chapman, 2 Ex. 803, at p. 821. 

(x) Asher v. Whitlock, L. R. 1 Q. B. 1 ; Corporation of Hastings v., 
Ivall (1874), L. R. 19 Eq. 585. 



Possession Necessary to Maintain Action. 



273 



Art. 127. 

Illustrations. 

Possession 
necessary. 



(1) Thus a person entitled to the possession of lands or 
houses cannot bring an action of trespass against a tres- 
passer until he is in actual possession of them (y). But 
when he has once entered and taken possession, he may 
maintain trespass against a person who was wrongfully 
in possession at the time of his entry and continued so 
afterwards (z). 

(2) A person who is not in actual possession at the Possession 
time of the trespass may maintain trespass, if at the time ^^ relation, 
of the trespass he was entitled to immediate possession, 

and at the time of action brought he has actual possession. 
His possession is then said to relate back in law to the 
time when the title arose, and he is considered as in 
possession from that time for the purposes of his action (a) . 

(3) Where one parts with the right to the surface of Surface and 
land, retaining only the mines, he cannot maintain an ^V!?^°^^ ^^ 
action for trespass to the surface, because he is not in owners, 
possession of it (b) ; but he may for a trespass to the 

subsoil, as by digging holes, etc. (c). So the owner of 
the surface cannot maintain trespass for a subterranean 
encroachment on the minerals (d), unless the surface is 
disturbed thereby. 

(4) When one dedicates a highway to the public, or Highways, 
grants any other easement on land, possession of the soil ®*^- 

is not thereby parted with, but only a right of way or 
other privilege given (e). An action for trespasses com- 
mitted upon it, as, for instance, by throwing stones on to 
it, or erecting a bridge over it, may therefore be maintained 
by the owner of the soil (/). 

(y) Ryan v. Clark, 14 Q. B. 65. 
(z) Butcher v. Butcher, 7 B. & C. 399, at p. 402. 
(a) Anderso7i v. Radcliffe, El. Bl. & El. 806 ; Ocean Accident and 
Guarantee Corporation v. Iljord Gas Co., [1905] 2 K. B. 493 [C. A.]. 
(6) Cox V. Mousley, 5 C. B. 533, at p. 546. 

(c) Cox V. Glue, 17 L. J. C. P. 162. 

(d) Keyse v. Powell, 22 L. J. Q. B. 305. 

(e) Goodtitle v. Alker, 1 Burr. 133 ; Northampton Corporation v. 
Ward, 1 Wils. 114. 

{/) Every V. Smith, 26 L. J. Ex. 344; and see Art. 125, Illustra- 
tion 4, supra. 



274 



Of Trespass to Land and Dispossession. 



Ordinary 

joint 
holders. 



Co-owners 
of mines. 



Art. 128. Art. 128. — Trespasses by Joint Owners. 

Joint tenants, or tenants in common, can only 
sue one another in trespass for acts done by one 
inconsistent with the rights of the other {g). 

(1) Among such acts may be mentioned the destruction 
of buildings (/;), carrying off of soil (^), and expelling the 
jilaintiff from his occupation (_/'). 

(2) But a tenant in common of a coal mine may get 
the coal, or license another to get it, not appropriating 
to himself more than his share of the proceeds ; for a coal 
mine is useless unless worked {k). If more than the 
appropriate share be taken the remedy of the co-owner 
is not an action in tort for tresj^ass, but an action for an 
account (/). 

Party-walls. (3) There is also one other important case of trespass 
between joint o\\Tiers, viz., that arising out of a party- 
wall. If one OAATier of the wall excludes the other owner 
entirely from his occupation of it (as, for instance, by 
destroying it, or building upon it), he thereby commits 
a trespass ; but if he pulls it down for the purpose of 
rebuilding it, he does not (m). 



Art. 129. — Limitation. 

All actions for trespass to land must be com- 
menced within six years next after the cause 
of action arose {n) ; but when a trespass is 
continuing, there is a new cause of action 
constantly arising, and the plaintiff may bring 
successive actions until the trespass ceases (o). 

(g) See Jacobs v. Seward, L. R. 5 H. L. 464. 
{h) Cresswell v. Hedges, 31 L. J. Ex. 497. 
(i) Wilkinson v. Haygarth, 12 Q. B. 837. 
ij) Murray v. Hall, 7 C. B. 441. 
{k) Job V. PoUo7i, L. R. 20 Eq. 84. 
(I) Jacobs V. Seward, supra. 

(m) Stedman v. Smith, 26 L. J. Q. B. 314 ; Cubitt v. Porter, 
8 B. & C. 257. 

(n) Statute of Limitations, 1623 (21 Jac. 1, c. 16), s. 3, 
(o) Bowyer v. Cook, 4 C. B. 236. 



Remedies other than by Action. 275 

Art. 130.^ — Remedies other than hy Action. '^"- ^^^' 

(1) One who is in possession of land may 
forcibly turn out another who wrongfully enters, 
using no more force than is reasonably necessary. 

(2) When animals or other chattels are wrong- 
fully upon land the person in possession may 
distrain them damage feasant. 

As to forcibly ejecting a trespasser, see ante, Art. 115. Comment. 
In the case of animals or other chattels found trespassing, Distress 
the law gives the person in possession of the land the right ^^^^^l 
to seize and detain them in order to compel the owner to 
make reasonable compensation for the damage done {'p). 
There is no power of sale ; and the power of detention is 
only in respect of the actual damage done by the offending 
animal, either to the land itself or to other animals on 
the land (such as damage caused by one horse kicking 
another) (g). This remedy is not, however, available 
where animals are being actually tended ; in such case 
the person injured must bring his action. A somewhat 
analogous remedy is allowed in the case of animals ferce 
naturce reared by a particular person. In such cases 
the law, not recognising any property in them, does not 
make their owner liable for their trespasses, but any 
person injured may shoot or capture them while trespassing. 
Thus, at common law, I may kill pigeons coming upon 
my land, but I cannot sue the breeder of them {r). 

SECTION II.— OF DISPOSSESSION. 

Art. 131. — Definition. 

Dispossession or ouster consists of wrongfully 
withholding the possession of land from the 
rightful owner. 

(j)) See Green v. Duckett, 1 1 Q. B. D. 275. 
\q) Boden v. Roscoe, [1894] l^Q. B. 608. 

(r) Hannam v. Mockett, 2 B. & C. 934, per Bayley, J. But the 
killing may amount to a criminal offence by the Larceny Act, 18G1 

( 24 & 25 Vict. c. 90), s. 23. 



276 



Of Trespass to Land and Dispossession. 



Art. 131. 

Specific 
remedy. 



Before the Judicature Act, 1873, the remedy for this 
wrong was by an action of ejectment, and since that 
statute it is by an action for the recovery of land wherein 
the plaintiff claims possession of the land. 

A successful plaintiff gets a judgment for possession and 
mesne 'profits, i.e., damages for the profits of the land 
which the plaintiff has lost whilst the defendant was 
wrongfully in possession, and for any damage done to the 
land by him whilst he was in possession. 



Possession 
prima facie 
evidence of 
title. 

Title of 
successful 
claimant 
need not be 
indefeasible. 



Jus tertii. 



Art. 132. — Onus of Proof of Title. 

The law presumes possession to be rightful, 
and therefore the claimant must recover on the 
strength of his own title, and not on the weak- 
ness of the defendant's {s). 

(1) Thus, mere possession is 'prima jacie evidence of title 
until the claimant makes out a better one {t). 

(2) But where the plaintiff makes out a better title than 
the defendant, he may recover the lands, although such 
title may not be indefeasible. Thus, where one inclosed 
waste land, and died without having had twenty years' 
possession, the heir of his devisee was held entitled to 
recover it against a person who had entered upon it without 
any title {u). 

(3) Conversely, a man in possession who may not have 
an indefeasible title as against a third party, may yet 
have a better title than the actual claimant, and therefore 
he may set up the right of a third person to the lands, 
in order to disj)rove that of the claimant {w). But the 
claimant cannot do the same, for possession is, in general, 
a good title against all but the true owner {x). 

[s) Martin v. Strachan, 5 Term Rep. 107. 
(t) Doe d. Smith v. Webber, 1 A. & E. 119. 
(u) Asher v. Whitloclc, L. R. 1 Q. B. 1. 
(w) Doe d. Carter v. Barnard, 1.3 Q. B. 945. 

(x) Asher v. Whitlock, L. R. 1 Q. B. 1 ; Richards v. Jenkins, 
17 Q. B. D. 544. 



Onus of Proof of Title. 



277 



(4) Where the relation of landlord and tenant exists Art. 132. 
between the plaintiff and defendant, the landlord need — 7- 
not prove his title, but only the expiration of the tenancy ; ^°®^ '°^^' 
for a tenant cannot in general dispute his landlord's title (y) , ^^^ tenant, 
unless a defect in the title appears on the lease itself (2). 

But nevertheless he may show that his landlord's title 
has expired, by assignment, surrender, or otherwise {a). 
The principle does not extend to the title of the party 
through whom the defendant claims prior to the demise 
or conveyance to him. Thus, where the plaintiff claims 
under a grant from A. in 1818, and the defendant under a 
grant from A. in 1824, the latter may show that A. had 
no legal estate to grant in 1818 (&). 

(5) The same principle is applicable to a licensee or Servants 

servant, who is estopped from disputing the title of the f:"^^ 

1 ,. 1 1 • / ^ licensees, 

person who licensed hnn (c). 



Art. 13^.— Limitation. 

No person can bring an action for the recovery 
of land or rent but within twelve years after the 
right to maintain such action shall have accrued 
to the claimant, or to the person through whom 
he claims {d). 

(1) Where claimants are under disability, by reason of Exceptions, 
infancy, coverture, or unsound mind, they must bring Disability, 
their action within six years after such disability has 
ceased : provided that no action shall be brought after 

(y) Delaney v. Fox, 26 L. J. C. P. 248. 

(z) Saunders v. Merryweather, 35 L. J. Ex. 11.5 ; Doe d. Knight v. 
Smythe, 4 M. & S. 347. 

(a) Doe d. Marriott v. Edwards, 5 B. & Ad. 10G5 ; Walton v. 
Waterhouse, 2 Wms. Saund. 420. 

(b) Doe d. Oliver v. Powell, 1 A. & E. 531. 

(c) Doe d. Johnson v. Baytup, 3 A. & E. 188 ; Turner v. Doe d. 
Bennett, 9 M. & W. 643 [Ex. Ch.]. 

(d) 37 & 38 Vict. c. 57, s. 1, replacing 3 & 4 Will. 4, c. 27, s. 2 ; 
Brassington v. Llewellyn, 27 L. J. Ex. 297. The owner of the legal 
estate must, however, be a party to the action {Allen v. Woods, 
68 L. T. 143 [C. A.]). 



278 
Art. 133. 



Acknow- 
ledgment 
of title. 



Ecclesias- 
tical cor- 
porations. 



Of Trespass to Land and Dispossession. 

thirty years from the accrual of the right (e). But once 
the statute has begun to run against a party subsequent 
disabiUty has no effect (/) . But where the defendant 
has been guilty of some fraud or wrong and the plaintiff 
is unaware of the existence of his cause of action the period 
of limitation does not begin to run till the existence of his 
cause of action becomes knoA\Ti to the plaintiff (g). 

(2) When any person in possession of lands or rents 
gives to the person, or the agent of the person entitled to 
such lands or rents, an acknowledgment, in writing and 
signed, of the latter's title, then the right of such last- 
mentioned person accrues at, and not before, the date at 
which such acknowledgment was made, and the statute 
begins to run as from that date {h). 

(3) The period in the case of ecclesiastical and eleemosy- 
nary corporations is sixty years (^). 

Art. 134. — Commencement of Period of 
Limitation. 

The right to maintam ejectment accrues, 
(a) in the case of an estate in possession, at the 
time of dispossession or discontinuance of pos- 
session of the profits or rents of lands, or of the 
death of the last rightful owner {k) ; and, (b) in 
respect of an estate in reversion or remainder or 
other future estate or interest, at the determina- 
tion of the particular estate. But a reversioner 
or remainderman must bring his action within 
twelve years from the time when the owner of 
the particular estate was dispossessed, or within 
six years from the time when he himself becomes 

(e) 37 & 38 Vict. c. 57, ss. 3-5, replacing 3 & 4 Will. 4, c. 27, 
ss. 16, 17. 

(/) Rhodes v. Smethurst (1840), 6 M. & W. 351. 
(g) Oelkers v. Ellis, [1914] 2 K. B. 139. 
(h) Ley V. Peter, 27 L. J. Ex. 239. 
(i) 3 & 4 Will. 4, c. 27, s. 29. 
(k) 3 & 4 Will. 4, c. 27, s. 3. 



Commencement of Period of Limitation. 279 

entitled to the possession, whichever of these Art. 134. 
periods may be the longer [1). "~~ 

(1) Discontinuance does not mean mere abandonment, Discontinu 
but rather an abandonment by one followed by actual ^"'^®* 
possession by another (?n). Therefore, in the case of mines, 
where they do not belong to the surface owner, the period 
cannot commence to run until someone actually works 
them : and even then it only commences to run qua the 
vein actually worked (?t). 



(2) No defendant is deemed to have been in possession Continual 

assertion 
of claim. 



of land merely from the fact of having entered upon it • ^^^®^ '""^ 



and, on the other hand, a continual assertion of claim 
preserves no right of action (o). Therefore, a man must 
actually bring his action wthin the time limited ; for 
mere assertion of his title will not preserve his right of 
action after adverse possession for the statutory period. 
As to what acts constitute dispossession, see Littledale v. 
Liverpool College {p). 

(I) 37 & 38 Vict. c. 57, s. 2. 

(?n) See Smith v. Lloyd, 23 L. J. Ex. 194 ; Cannon v. Ritnington, 
12 C. B. 1. 

(n) See Low Moor Co. v. Stanley Coal Co., 34 L. T. 186, 187 ; 
Ashton V. Stock, 6 Ch. D. 726. 

(o) 3 & 4 Will. 4, c. 27, ss. 10, 11. 

(p) [1900] 1 Ch. 19 [C. A.]. 



CANADIAN NOTES. 279a 



CANADIAN NOTES TO CHAPTER XIII. OF 
PART II. 

Article 125. 

In practice an action for trespass to land is commonly 
a means of settling a disputed title. Many of the deci- 
sions turn upon an analysis of the acts necessary to sup- 
port a possessory title. 

In Brookman v. Conway (1902), 35 N. S. R. 402 
(affirmed 35 S. C. R. 185), the land, the title to which 
was in dispute, had been enclosed by mutual agreement 
between the parties to prevent cattle from straying. It 
was held that such enclosure did not deprive the plaintiff 
of possession so as to debar him from maintaining an 
action for trespass. 

Numerous provincial statutes impose upon land-owners 
the obligation of maintaining fences of a certain character. 
It has been held that these requirements do not affect the 
common law liability of a cattle owner to keep his cattle 
from. straying, unless he can prove that his animals strayed 
through an opening which it was the plaintiff's duty to 
keep fenced: Garrwch v. McKay (1901), 13 Man. L. R. 
404. 

The unsettled condition of the greater part of Canada 
has compelled the Canadian courts to take a somewhat 
strict view of the acts upon which a claim to possession is 
founded. For example, it has been held in the Supreme 
Court that such acts as luml)ering operations, hunting, 
fishing, etc., on wilderness land do not constitute posses- 
sion either for maintaining an action of trespass or for 
acquiring a title: Sherren v. Pearson (1887), 14 S. C. R. 
581; Wood v. Le Blanc (1904), .34 S. C. R. 627. Such 
acts amount to nothing more than so many trespasses 
against the true owner. Possession, to be of any legal 
value, must be "open, notorious, continuous, exclusive" 
(34 S. C. R., at 633) ; the claimant must "keep his flai: 
tlvinjjf over the land he claims." 



•i:!)l. CANADIAN NOTES. 

.Siniilai'ly uinlcr the Quebec law the j)laintiir in a posses- 
sory action must shew tliat his possession is '" continuous 
and uninterrupted, i)eaeeable, public, unequivocal, and as 
proprietor" (('. ('. 2193). It cannot be foundeti upon 
a(;ts whicli are. "merely facultative or of sutt'erance " 
(actes de pure faculte et ceux de simple tolerance) : 
(Article 3196), For examples see Couture v. Couture 
(1904), 34 S. C. E. 716; Pellet ier v. Roi/ (1913), 44 Que. 
8. ('. 141. 

In trespass cases the good faith of the defendant is of 
importance in assessing the damages : see Lamb v. Kiticaid 
(1907), 38 S. C. R. 516, cited above in the notes to 
Article 3(5. 

Ill the case of Latie Sinicoe Ice and Cold Storage Co. v. 
McDonald (1900), 31 S. C. E. 130, the plaintiff was the 
grantee of twelve acres of water-covered land in Lake 
Simcoe, the grant being made subject to the " free use, 
passage, and enjoyment of the waters of the lake," which 
is navigal)le. The defendant company, which was engaged 
iu harvesting ice, cut a ])assage through the ice upon the 
])laintifl:''s lot in order to reach its own ice-houses on the 
shore. A majority of the Supreme Court held that the 
defendant was exercising a i)ublic right, and that the cut- 
ting of the passage therefore was no tresj)ass, provided 
that it was done without causing unnecessary loss to the 
plaintiff. 

Article 129. 

See the cases already cited in the notes to Articles 44 
and 45; also Carr v. Canadian Pacific By. Co. (1912), 5 
D. L. E. 208. 

Article 130. 

Section 61 of the Criminal Code justifies the use of 
reasonable force against a trespasser, so far as criminal 
liability is concerned. Eesistance by t4ie trespasser consti- 
tutes an assault. 

It has been held that where a stray animal trespasses 
upon land, the owner of the land has the right, although 
he has not erected the statutory fences, to tie up the ani- 
mal and retain possession of until the cost of its keep is 
])aid, subject to a corresponding obligation on his part t:> 



CANADIAN NOTES. 279c 

care for it properlv : Bolion v. MacDonald (1894), 3 Terr. 
L. K. 269. 

The student should be careful to consult the provincial 
statutes in all cases relating to trespass by animals. 

Articles 131-132. 

Rohinson v. Osborne (1912), 27 Ont. L. R. 248; 8 
D. L. E. 1014, was an action to recover possession brought 
by a plaintiff who had a good paper title. The defendant 
put forward a possessory title, based upon his own occupa- 
tion and that of previous trespassers. It appeared that 
there was a gap of a year in the occupation of his immedi- 
ate predecessor, and the court held that this was fatal to 
the defendant's claim : " the moment the property becomes 
vacant the law attributes possession to the true owner '* 
(Lennox, J.). 

In Mann v. Fitzgerald (1912), 4 D. L. R. 274, neither 
party could make out a good paper title, and neither could 
shew exclusive possession. In such circumstances the 
plaintiff"s action must be dismissed with costs. 

All presumptions are in favour of the party in posses- 
sion, and the plaintiff must remove every possibility of 
title in another before he can succeed: Gaudet v. Hayes 
(1906), 3 E. L. R. 152. 

Article 133. 

The statutory periods differ in various provinces. 

In ^'ohle V. Nohle (1912), 1 I). L. R. 516, the defendant 
and her husband were tenants-at-will of her father-in-law's 
house, paying no rent, from 1895 until the date of action. 
There was a mortgage on the house, the interest on which 
was paid by the plaintiff until he paid off the loan in 
1910. The court held that he thereupon derived title 
from the mortgagee, and that his action was therefore 
not })arr<'fl. 



281 



CHAPTER XIV. 

TRESPASS TO GOODS, DETENTION AND 
CONVERSION OF GOODS. 

Art. 135. — Definitions. 

There are three specific torts in respect of the 
possession of goods : 

(i) Tresspass, which consists in wrongfully 
taking goods out of the plaintiff's pos- 
session, or forcibly interfering with 
them whilst they are in his possession ; 

(ii) Detention of goods or detinue, which con- 
sists in wrongfully detaining from the 
plaintiff goods to the immediate pos- 
session of which he is entitled ; 

(iii) Conversion, which consists in the defen- 
dant's wrongfully converting to his own 
use goods to the possession of which 
the plaintiff is entitled, by taking them 
away, detaining them, destroying them, 
delivering them to a third person, or 
otherwise depriving the plaintiff of 
them. 

Note. — The ancient causes of action for torts to goods 
were trespass and detinue. The action of " trover and 
conversion " was invented later, and was founded on the 
fiction that the defendant had found the plaintiff's goods 
and converted them to his own use. 

I'he broad distinction between tresjDass on the one hand 
and conversion and detinue on the other hand, is that 



282 



Trespass to Goods, etc. 



Detinue for 
return of 
goods. 



Art. 135. trespass is the only cause of action where the goods inter- 

— — fered with remain in the possession of the plaintiff ; whereas 

an action for conversion or detention lies when the plaintiff 

is wrongfully deprived of the possession of his goods by 

the defendant. 

Trespass. Trespass may be the result of an intentional conscious 

act of taking or touching goods, or may be the result of 
mere neghgence. So where A. drives his carriage so 
neghgently that it colUdes with B.'s carriage, this is a 
trespass (a), just as, if he colhdes with B.'s person, it 
would be trespass to the person. But it seems that there 
must be either intention or negligence, and a merely 
accidental touching does not constitute trespass (&). 

The principal distinction between detention and con- 
version is in the remedy sought. 

When the defendant has got possession of the plaintiff's 
goods (whether wTongfully in the first instance, or by 
keeping them wrongfully after having lawfully obtained 
possession) the plaintiff can sue either for wrongful de- 
tention or for conversion, but generally an action for 
detention is brought where the defendant is at the time 
of action brought in Avrongful possession of specific goods, 
such as a horse or a picture, which the plaintiff wishes 
to have returned to him. 

Conversion Conversion is the appropriate remedy where the plaintiff 

for damages, ge^ks merely to recover as damages the value of goods of 
which the defendant has deprived him. Thus, it is the 
proper remedy where the defendant no longer has posses- 
sion of the goods, or where they cannot be identified, such 
as so many bushels of corn, or so much coal. 

Actions for conversion or detention of goods are often 
brought to try title to goods, and, if the plaintiff proves 
his title, it is no defence that the defendant thought he 
himself had a good title. Thus, a person who buys A.'s 
goods from B. (thinking they are B.'s), and then, quite 
innocently, sells them to C, is 'guilty of a conversion, as 
also is C. if he refuses to give them up, or consumes them. 



(a) Lotan v. Cross, 2 Camp. 464. 



(6) See ante. Art. 3. 



Definitions. 



283 



A trespass may be justified as being done in self-defence 
or in exercise of a right, or in other ways illustrated by the 
examples below. 

(1) If one draws wine out of a cask and fills up the 
deficiency with water, he converts the whole cask. He 
converts the wine he draws out by taking it, and the 
remainder by turning it into something different, and so 
destroying it (c). 

(2) So, again, if a sheriff sells more goods than are 
reasonably sufficient to satisfy a writ of fieri facias, he will 
be liable for a conversion of those in excess {d) . 

(3) Beating the plaintiff's dogs is a trespass (e). 

(4) The innocence of the trespasser's intentions is im- 
material. Thus, where the sister-in-law of A., immediately 
after his death, removed some of his jewellery from a 
drawer in the room in which he had died to a cupboard in 
another room, in order to insure its safety, and the jewellery 
was subsequently stolen, it was held that the sister-in-law 
had been guilty of a trespass, and that it was no defence 
that she had removed the goods bond fide for their preserva- 
tion, and she was consequently held liable for nominal 
damages. It was suggested, however, that if the removal 
was in fact reasonably necessary for their preservation 
and was carried out in a reasonable manner, that might 
have been a good defence (/). But, on the other hand, 
the finder of a lost chattel does not commit a tort by merely 
warehousing or otherwise safeguarding it for a reasonable 
time until the true owner be discovered, so long as he is not 
unnecessarily officious {g). However, the intention to deny 
the owTier's right or to assert a right not consistent with 
that of the owTier is proved where the goods are used or 
taken as his owti property by the defendant (A). 

(c) Richardson v. Atkinson, 1 Stra. 576. 

{d) Aldred v. Constable, 6 Q. B. 370, at p. .381. 

(e) Dand v. Sexton, 3 Term Rep. 37. 

(/) Kirk V. Gregory, 1 Ex. D. 55. 

(fif) See per Blackburn, J., in Hollins v. Fowler, L. R. 7 H. L. 
757, at p. 766. 

(h) Lcmcashire and Yorkshire Rail. Co. v. MucNicoll (1918), 
88 L. J. K. B. 601. 



Art. 135. 

Justifica- 
tion. 

Illiistrations. 



Excessive 
execution. 



Injuring 
animals. 

Intention 
immaterial. 



284 



Trespass to Goods, etc. 



Art. 135. 



Conversion 
by innocent 
purchaser. 



Sale in 
market 
overt. 



(5) Again, where the owner of household furniture 
assigned it by bill of sale to the plaintiff, and subsequently 
eniplo3'ed the defendants (who were auctioneers) to sell it 
for her by auction, and they sold and delivered possession 
to the purchaser from them, they were held liable, although 
they knew nothing of the bill of sale (i). It is important, 
however, to note that the tort there was the delivering of 
the furniture to the purchaser, and not the mere selling 
of it ij). 

(6) So the purchaser of a chattel takes it, as a general 
rule, subject to what may turn out to be defects in the 
title (k). Thus, in the leading case of Holliyis v. Fowler {I), 
it was laid down that any person who, however innocently, 
obtains possession of the goods of a person who has been 
fraudulently deprived of them, and disposes of them, 
whether for his own benefit or that of any other person, is 
guilty of a conversion. 

(7) Where, however, the true owner has parted with a 
chattel to A. upon an actual contract, though there may be 
circumstances which enable that owner to set the contract 
aside for fraud, yet a bond fide purchaser from A. will 
obtain an indefeasible title (m). 

(8) To this rule, however, there is an exception, that 
a sale of goods in market overt gives a good title to the 
purchaser, although the seller has no title. So a purchaser 
in market overt cannot be sued in an action for conversion 
if he parts with the goods or refuses to give them up on 
demand. But this rule only j^rotects the purchaser, and 
the seller in market overt is guilty of conversion by selling 



(i) Consoliiated Co. v. Curtis & Son, [1892] 1 Q. B. 495 

(j) See Lancashire Wagon Co. v. Fitzhugh, 6 H. & N. 502 ; and 
jMr Brett, J., in Fowler v. Hollins, L. R. 7 Q. B. 616 [Ex. Ch.], 
at p. 627. 

{k) Sale of Goods Act, 1893, s. 21, unless it be a negotiable 
security (as to which see Glyn, Mills c& Co. v. East and West India 
Dock Co., 7 App. Cas. 591, and Sale of Goods Act, 1893, s. 25 (2), 
or unless he buy it in market overt (Sale of Goods Act, 1893, s. 22), 
and not even then if it was stolen and the thief had been prosecuted 
to conviction (ibid., s. 24). 

[l) L. R. 7 H. L. 757. 

(m) Sale of Goods Act, 1893, s. 23. 



Definitions. 285 

and delivering goods to which he has no title (n) . The sale Art. 135. 

must be an open sale in a lawfully constituted market, and 

made according to the usages of the market. By special 
custom all shops in the City of London are market overt 
between sunrise and sunset for the sale of goods of the 
kind which by the trade of the owner are there put for sale 
by him. But the sale must be by the shopkeeper not to 
him, and it must take place in the open part of the shop, 
not in a room at the back (o). 

Of this common-law exception there is, however, a Revesting 
modification by statute, first enacted by 21 Hen. 8, c. 11, °n prosecu- 
and now contained in s. 24 of the Sale of Goods Act, 1893, 
viz., that where goods are stolen and the thief is prosecuted 
to conviction, the property revests in the original o\\-ner, 
notwithstanding a sale in market overt. But note that 
until the conviction of the thief the property is in the person 
who has acquired it by sale in market overt, and no act of 
his before the conviction of the thief is a conversion. So, 
where the plaintiff's sheep were stolen and sold in market 
overt to the defendant, and the defendant then resold 
and delivered them to another, and subsequently the thief 
was prosecuted and convicted, though the property then 
revested in the plaintiff, he had no remedy against the 
defendant. For when the defendant sold the sheep they 
were his, not having then revested in the plaintiff (p). 

(9) It is a good justification that the trespass was the Justifica- 
result of the plaintiff's owti neghgent or wrongful act. ^^°^- 
Thus, if he place his horse and cart so as to obstruct my 

right of way, I may remove it, and use, if necessary, force 
for that purpose {q). 

(10) A trespass committed in self-defence, or defence of Self-defence 

property, is justifiable. Thus, a dog chasing sheep or deer ^l defence 
• J"' J . ' ® 1 u ^ I, ^r of property, 

m a park, or rabbits m a warren, may be shot by the owner f ^ •' 

(n) Peer v. Humphrey, 2 A. & E. 495 ; Ganley v. Ledwidge, 
14 L. R. Ir. 31 [C. A.]. 

(o) Hargreave V. Spink, [1892] 1 Q. B. 25; Clayton v. Le Roy, 
[1911] 2 K. B. 1031. 

{p) Norwood V. Smith, 2 Term Rep. 750. 

(g) Slater v. Swann, 2 Stra. 872. 



286 



Trespass to Goods, etc. 



Art. 135. 



In exercise 
of right. 



Legal 
authority. 



of the property in order to save them, but not otherwise (r). 
But a man cannot justify shooting a dog, on the ground 
that it was chasing animals /crcc naturae [s], unless it was 
chasing game in a preserve, in which case it seems that it 
may be shot in order to preserve the game, but not after the 
game are out of danger {t). So, too, though I may use 
reasonable force to remove trespassing animals from my 
land, I am liable in trespass if I use an unreasonable amount 
of force, as, for instance, by chasing trespassing sheep with 
a mastiff dog [u). 

(11) A trespass committed in exercise of a man's own 
rights is justifiable. Thus, seizing goods of another, under 
a lawful distress for rent or damage feasant, is lawful. 

(12) Due process of law is a good justification, as, for 
example, an execution under a writ of fieri facias {w). 



Art. 136. — Possession necessary to maintain an 
Action for Trespass. 

(1) To maintain an action for trespass to 
goods, the plaintiff must at the time of the 
trespass have been in possession of the goods. 

(2) Any possession however temporary is 
sufficient against a wrongdoer. 

(3) Although he cannot maintain an action 
for trespass, the person entitled to the rever- 
sion of goods may maintain an action for any 
permanent injury done to them (x). 



(r) Wells V. Head, 4 C. & P. 568. 

{s) Vere v. Lord Cawdor, 11 East, 568. 

(t) Read v. Edwards, 34 L. J. C. P. 31. 

(u) King v. Rose, 1 Freem. 347. 

(w) See ante. Art. 9. 

(x) Tancred v. Allgood, 28 L. J. Ex. 362 ; Lancashire Wagon Co. v. 
Fitzhugh, 6 H. & N. 502 ; Mears v. London and South Western Rail. 
Co., 11 C. B. (N.s.) 850. 



Possession Necessary to Maintain Action 287 



Possession. 



To enable him to bring an action for trespass, the plaintiff Art. 136. 
need not have actual physical possession ; it is enough if 
the goods are in the physical possession of a servant or 
other person who holds them for him. This kind of posses- 
sion is sometimes called " constructive possession." So, 
too, where goods are in a warehouse or in a ship, and the 
owner has the documents of title by means of which he can 
get actual possession, he may be said to have constructive 
possession. Another kind of possession is " possession by 
relation." An administrator or executor has possession by 
relation from the moment of the death of the intestate or 
testator, for his title relates back to the death. And this 
possession by relation is enough to supjjort an action against 
a wrongdoer, although at the time of the wrongful act the 
administrator or executor had neither title nor actual 
possession, nor the right to immediate possession [y). 

(1) A master of a ship, as bailee of the cargo, has actual Illustrations, 
possession, and can sue for trespass (2), as also can a 

person who has possession of another's cattle under a 
contract of agistment (a). 

(2) Upon the same principle it has been held that the 
Postmaster-General, as bailee in possession of letters 
delivered to him for carriage, can recover their value in 
an action for negligence against a wrongdoer, even though 
he would not himself be liable to the owners for their 
loss (6). 

(3) An owner of a chattel who has gratuitously lent it to 
another may maintain trespass, as it is considered to be 
in his possession, although the borrower has the physical 
possession. A loan does not, in contemplation of law, take 
the possession out of the owner (c). 



{y) Tharpe v. Stallwood, 5 Man. & Gr. 7G0 ; and see Kirk v. 
Gregory, 1 Ex. D. 55. 

(2) Moore v. Robinson, 2 B. & Ad. 817. 

(a) Booth V. Wilson, 1 B. & A. 59. 

(b) The Winkfield, [1902] P. 42 [C. A.]. 

(c) Lotan v. Cross, 2 Camp. 4G4. 



288 Trespass to Goods, etc. 

Art. 137. Art. 1.37. — Trespassers ab initio. 

If one, taking a chattel by authority given him 
by law, abuses his authority, he renders himself 
a trespasser ab initio {d). 

Thus, where the defendant took a horse as an astray, as 
he was authorised by law to do, and then worked the horse 
(which he had no authority to do), he became a trespasser 
ab initio. But the rule only applies where the original 
authority is given by law — not where it is given by the 
parties — and the abuse must be misfeasance, not mere 
nonfeasance (e). 



Art. 138. — Conversion and Detention. 

(1) To maintain an action for wrongful deten- 
tion the plaintiff must, as against the defendant, 
be entitled to immediate possession at the time 
of action brought. 

(2) To maintain an action for conversion the 
plaintiff must, as against the defendant, have 
been entitled to immediate possession at the 
time of the conversion. 

(3) The judgment in an action for wrongful 
detention is for the return of the goods and 
damages for their detention. 

(4) The judgment in an action for conversion 
is for damages. The measure of damages is the 
value of the goods at the time of the conversion. 

Comment. The plaintiff need only show that he is entitled as against 

the defendant. He need not show a good title to the goods 
as against everyone : and as possession is always a good 
title against a wrongdoer, it is sufficient if the plaintiff 
shows that he had possession and the defendant has 
taken them out of his possession. In these actions the 

(d) Oxley v. Watts, 1 Term Rep. 12. (e) Ibid. 



Conversion and Detention. 289 

plaintiff is not required to show that the defendant did Art. 138. 
not act in good faith (/) . 

In an action for wrongful detention the plaintiff gets Judgment, 
judgment for the return of the specific goods detained or 
(if the plaintiff prefers) their value, and the court may order 
that execution shall ensue for the return of the property 
itself ; accordingly, in this form of action, the goods must 
be specific ascertained goods. The plaintiff may also have 
damages for the detention of the goods. 

In an action for conversion the judgment is for damages 
only, and if the defendant satisfies the judgment, he thereby 
pays for the goods, and they thereupon vest in him as if he 
had bought them (g). 

A conversion or detention is commonly proved by demand Proof of 

and refusal. If the defendant has the plaintiff's goods in conversion 
... 1 • • ., . ,» or deten- 

his possession, this is not necessarily m itself a conversion tion. 

or wrongful detention. If, however, he treats them as his 
own, as by delivering them to a third person or consuming 
them, he thereby converts them to his own use. Where 
there is nothing else in the nature of a conversion, the 
plaintiff should demand their return, and if the defendant 
refuses to return them, his refusal is evidence of a conver- 
sion. It is also evidence of wrongful detention, and the 
plaintiff may then bring his action and will succeed, unless 
the defendant can justify his refusal to return the goods on 
demand (h). 

(1) If a hirer or carrier of my goods wrongfully delivers Illustrations, 
them to a third person, the bailment is thereby determined, Possession 
and the immediate right of possession at once revests in °^ bailee, 
me, so that I can sue in conversion either the bailee or the 
person to whom he has delivered them (^) . 

(/) Pridcjeon v. Mellor (1-912), 28 T. L. R. 2G1. 

(r/) Cooper V. Shepherd, 3 C. B. 266. But judgment without 
satisfaction does not change the property in the goods {Brinsmead v. 
Harrison, L. R. 6 C. P. 584) ; and see Eastern Construction Co., 
Limited v. National Trust Co., Limited, [1914] A. C. 197. 

(h) See Miller v. Dell, [1891] 1 Q. B. 468 [C. A.] ; Clayton v. 
Le Roy, [1911] 2 K. B. lO.'Jl. 

(i) Cooper v. Willomatt, 1 C. B. 672 ; Wyld v. Pickford, 8 M. & W. 
443. 



290 



Trespass to Goods, etc. 



Art. 138. 

Pledge. 



Sale of 
property 
under lien. 



Possession 
of trustee. 



Possession 
of a mere 
finder. 



(2) But where goods are pledged, no action for conversion 
or detention will lie against the pledgee for selhng them 
or repledging them until tender of the debt has been made 
and refused (j). 

(3) And so, when, by a sale of goods, the property in 
them has passed to the purchaser, subject to a mere lien 
for the price, the vendor will be Hable for conversion if he 
resells and dehvers them to another. But in such a case 
the plaintiff will only be entitled to recover the value of 
the goods, less the sum for which the defendant had a 
lien upon them {k). 

(4) A trustee, having the legal property, may sue in 
respect of goods, although the actual possession may be in 
his cestui que trust, for he has in law the right to immediate 

possession [1). 

(5) In the leading case of Armory v. Delamirie (m), it was 
held that the finder of a jewel could maintain an action 
against a jeweller to whom he had shown it, wdth the 
intention of selling it, and who had refused to return it to 
him ; for his possession gave him a good title against all the 
world except the true owoier. In short, a defendant cannot 
set up a jus tertii against a person in actual possession. 

(6) But the finder of lost goods has no title against any- 
one who can show a better title. So, where a workman 
found a ring embedded in mud on land which was in 
the possession of the plaintiffs, it was held that, as finder, 
he acquired no title against them. The plaintiffs being in 
possession of the land, w^ere in possession of the ring also. 
Consequently, the finder was hable to them in an action 
for detention when he refused to give it up to them (w). 

(7) A bailee of goods may maintain trespass or conver- 
sion against a wrongdoer, by virtue of his having the actual 

{j) Donald v. Suckling, L. R. 1 Q. B. 585 ; Halliday v. Holgate, 
L. R. 3 Ex. 299 [Ex. Ch.]. 

(k) Page v. Cowjsjee Eduljee, L. R. 1 P. C. 127 ; Martindale v. 
Smith, 1 Q. B. 389. 

(l) Barker v. Furlong, [1891] 2 Ch. 172. 

(m) 1 Sm. L. C. 356. 

(n) South Staffordshire Water Co. v. Sharman, [1896J 2 Q. B. 44. 



Conversion and Detention. 291 

possession. So also may the bailor as he is in possession Art. 138. 

by the bailee. Thus, when an article is lent the borrower 

or the lender may bring an action against a wrongdoer (o). 
So also may the owner of goods let on hire (p), and the 
pledgee of goods pawned {q). The bailee, if he succeeds in 
an action of conversion, recovers the full value of the goods 
as damages, and must account to the bailor (r). The true 
principle is not too clear. It would seem that satisfaction 
of the bailee does not preclude the right of the bailor unless 
the bailee acknowledges the right of the bailor to be 
indemnified. 



Art. 139. — Waiver of Tort. 

When a conversion consists of a wrongful sale 
of goods, the owner of them may elect to waive 
the tort, and sue the defendant for the price 
which he obtained for them, as money received 
by the defendant for the use of the plaintiff (s). 
But, by waiving the tort, the plaintiff estops 
himself from recovering any damages for it (t). 

Once having elected to treat the transaction as a sale, 
as by receiving or suing for part of the purchase-money, the 
plaintiff cannot afterwards sue in tort. If an action for 
money had and received is brought, that is a conclusive 
election to waive the tort ; and so the bringing of an action 
of conversion or trespass is a conclusive election not to 
waive the tort. These are conclusions of law (u). In other 
cases it is a question of fact whether or not there has been 
an election ; and if the facts show an intention to retain 

(o) Nicolls V. Bastard, 2 C. M. & R. 659 ; Burton v. Hughes, 
2 Bing. 173. 

(p) Cooper V. Willomatt, 1 C. B. 672. 

(q) Swire v. Leach, 18 C. B. (n.s.) 479. 

(r) See The Winkfield, [1902] P. 42 [C. A.], where the principles 
and cases are fully discussed ; Eastern Construction Co. v. National 
Trust Co., [1914] A. C. 197. 

(s) Lamine v. Dorrell, 2 Ld. Raym. 1216 ; Oughton v. Seppings, 
1 B. & Ad. 241 ; Notley v. Buck, 8 B. & C. 160. 

(0 Brewer v. Sparrow, 7 B. & C. 310. 

(u) Smith V. Baker, L. R. 8 C. P. 350. 



292 Trespass to Goods, etc. 

Art. 139. the remedy in tort against one tort-feasor, a settlement with 

another one will not affect that right, although the plaintiff 

may have sued alternately both in tort and for money had 
and received, and although he may have got an interim 
injunction restraining any dealings with the money (.r). 



Art. 140. — Trespass and Conversion by Joiyit 
Owners. 

A joint owner can only maintain trespass or 
conversion against his co-owner when the latter 
has done some act inconsistent with the joint 
ownership of the plaintiff {y). 

(1) Thus, a complete destruction of the goods would be 
sufficient to sustain an action, for the plaintiff's interest 
must necessarily be injured thereby (z). 

(2) But a mere sale of them by one joint owner would 
not, in general, be a conversion, for he could only sell his 
share in them. But if he sold them in market overt, so as 
to vest the whole property in the purchaser, it would be a 
conversion {a). 



Art. 141. — Remedy by Becaption. 

When anyone has been unlawfully deprived 
of his goods, he may lawfully reclaim and take 
them wherever he happens to find them, but 
not in a riotous manner or attended with breach 
of the peace, and he can justify an assault made 
for the purpose of recapturing after demand and 
refusal (b). 

(x) Rice V. Reed, [1900] 1 Q. B. 54 [C. A.]. 

(y) 2 Wms. Saund. 47 o ; and see Jacobs v. Seward, L. R. 5 H. L. 
464. 

(z) Barnardiston v. Chapman, cited 4 East, 121. 
(o) Mayhew v. Herrick, 7 C. B. 229. 
(b) Blades v. Higgs, 30 L. J. C. P. 347. 



Remedy by Action of Replevin. 293 



Art. 142. — Bemedy hy Action of Rej)levin. Art. 142. 

The owner of goods distrained is entitled to 
have them returned upon giving such security 
as the law requires to prosecute his suit without 
delay against the distrainer, and to return the 
goods if a return should be awarded (c). 

The application for the replevying or return of the goods 
is made to the registrar of the county court of the district 
where the distress was made, who thereupon causes them 
to be replevied to the person from whom they were seized, 
on his giving sufficient security. The action must be 
commenced within one month in the county court, or 
mthin one week in one of the superior courts ; but if the 
plaintiff intends to take the latter course, it is also made 
a condition of the replevin bond that the rent or damage, 
in respect of which the distress was made, exceeds £20, or 
else that he has good grounds for believing that the title 
to some corporeal or incorporeal hereditaments, or to some 
toll, market, fair, or franchise, is in dispute {d). 



Art. 143. — Orders for Restitution of Stolen 
Goods. 

If any person who has stolen property is 
prosecuted to conviction by or on behalf of the 
owner, the property is to be restored to the 
owner, and the court before whom such person 
is tried has power to order restitution of the 
property to the owner (e). 



(c) See County Courts Act, 1888 (51 & 52 Vict. c. 43), ss. l.'U- 
137. 

(d) 51 & 52 Vict. c. 43, ss. 133-130. 

(e) Larceny Act, 1861 (24 & 25 Vict. c. 90), s. 100. 



294 Trespass to Goods, etc. 

Art. 143. Therefore, even if the goods M^ere sold by the thief in 

market overt, yet, by this section, they must be given up 

to the original owner. Apparently where a bailee allows 
the court to make an order for restitution without in- 
forming the court that he holds on behalf of a bailor, he is 
liable to the bailor for the loss of the article (/). 

(/) Ranson v. Piatt, [1911] 1 K. B. 499. 



CANADIAN NOTES. 394a 



CANADIAN NOTES TO CHAPTEE XIV. OF 
PART II. 

Aktigle 135. 

In Mackenzie \. Scoti-a Lumber & Shipping Co. (1913), 
47 N. S. E. 115; 12 E. L. E. 464; 11 D. L. E. 729, the 
servants of the defendant company had inadvertently made 
use of the plaintiff's raft, which was returned to the plain- 
tiff as soon as the error was discovered. The court held 
that an action for conversion was maintainable, but that 
only nominal damages could be recovered. 

Actions for conversion in Canada frequently arise out 
of the wrongful cutting of timber upon the plaintiff's land. 
In Greer v. Faidkner (1908), 40 S. C. E. 399, the timber 
had been cut by wilful wrongdoers and sold by them to 
one of the defendants, who purchased in good faith and 
sold to the other defendant. The second purchaser inter- 
pleaded, paying the purchase-money into court, and the 
action was decided between the plaintiff and the first pur- 
chaser. The court held that a conversion took place, not 
only when the trees were first felled, but when the second 
sale took place, since the logs remained the plaintiff's pro- 
perty throughout. Consequently the plaintiff was entitled 
to the whole of the purchase-monev without deductions. 
See also Field v. Richards (1913), 13 D. L. R. 943. 

Article 136. 

For a review of the law governing possession as a neces- 
sary element of the plaintiff's case see the judgment of 
the Privy Council in Eustern Const ruci ion Co. v. Naiional 
TrxLHt Co. (1914), A. C. 197, where the true owner had 
transferred title to the defendant, jiiid it was held that 
this defeated the plaintiff's claim; also Du.llon v. (hwndian 
Northern Ry. Co. (1916), 26 Man. L. E. 493; 34 W. L. E. 
881 ; 21 Can. Ey. Cas. 294; 10 W. W. E. 1006 ; 30 D. L. K. 
250, where the principle of possession was ai){)li('d lo a 
case of negligence. 



294b CANADIAN NOTES. 

Ahticlk 1;}8. 

See tln' notes on Articles i;i.")-i;5(i. Jt will lie noted 
that in Greer v. Faulh-ner the [)laintitr elected to claim the 
j)urchase-money instead of demanding the return of the 
logs which had been converted. 

Under the Quebec law the bona pde purchaser of stolen 
goods can only be com|)elled to restore them to the true 
owner upon being repaid the sum which he has ])aid for 
them, if they have been bought at a fair or market, or at 
a public sale, or from ;i trader dealing in such articles 
(C. C. 1489). 

The rights of s{)ecial classes of pledgees, such as banker.-: 
and pawnbrokers, are dealt with in the Bank Act (li. S. C, 
c. 39) antl provincial statutes. In Quebec a pledgee )iot 
falling within the privileged classes has no right of sale, 
•except in the usual way by order of a court (C. C. 1971). 

Al^TICLE 140. 

In Kill/ V. Chapman (1913), 4 W. W. B. 448; G Sask. 
I,. R. 69 ; 24 W. L. Jl. 80, the plaintiff's partner fraudu- 
lently sold the whole ]:)roperty of the firm to the defend- 
ant, who resold it to other parties. The defendant accepted 
without inquiry the partner's assurance that he had 
authority to sell. It was held that the defendant was 
liable for conversion. 

Article 141. 

The right of peaceable recaption is protected by section 
56 of the Criminal Code, but it is provided that this does 
not justify a physical assault upon the wrongdoer. 

Article 142. 

Replevin is a matter of procedure, and is therefore gov- 
erned entirely by provincial statutes, the forms of whicli 
must be complied with in each case. For decisions the 
student shoidd cousnlt the various digests. 

Article 143. 

The restitution of stolen property is provided for by 
section 1050 of the Criminal Code. Section 1049 enacts 
that the bona, fide purchaser of stolen j)roperty may be com- 
pensated out of money found in the possession of the thief. 



INDEX. 

A. 

ABATEMENT 

of action. See Death. 
nuisance, 237. 

cutting overhanging trees, 238. 

not proper remedy to prevent prospective nuisance, 238. 

pulling down buildings, 238. 

inhabited house, 238. 

ABROAD, 

liability for torts committed, 39 et seq. 

ABSOLUTE RIGHT, 

infringement of, \\dthout damage, constitutes a tort, 5. 

ACCIDENT, 

actionable, if preventable, 9. 
if inevitable, not actionable, 9. 

And see Negligence ; Nuisance. 
when occurrence of, prima facie evidence of negligence, 183^. 

ACT OF GOD 

excuses what would be otherwise actionable, 190 et seq. 

ACT OF STATE, 

no action can be brought for damage resulting from, 16. 

whether between two independent states or between a 
state and an individual foreigner, 16. 
not easily defined, 16. 
what is, 16. 

ACT OF THIRD PARTY, 

where damage partly caused by, 192 et seq. 

ADOPTION. See Ratification. 

ADVERTISEMENTS, 

criticism of, privileged, 118. 

ADVICE, 

confidential, a privileged communication, 12r). 

[ 1 1 



Index. 

AGENTS 

cannot shelter themselves behind their principals, 52. 
general liability of principal for torts of, 52. 

where agent expressly employed to commit tort, 52. 

no liability in general for collateral negligence of 
agent, 62. 
unless he is a servant, 54 et seq. 
who is a servant, 54 et seq. 
wilful acts of servants, 54. 
arrests by, 58. 
assaults by, 59. 

And see Master and Sebvant. 

AGGRAVATION. See Damages. 

AIR, 

when action lies for obstruction of, 246. 

ALIEN ENEMY 
cannot sue, 41. 

AMBASSADORS 

not liable for torts, 42. 

but may waive privilege, 42. 

ANIMALS. A^ee Fekocious Animals. 
damage by, 194 et seq. 
bulls, 197. 
dog " accustomed to bite mankind," 197. 

biting and worrying sheep, 197. 
domestic animals, trespass by, 198. 
highway, straying from, 198. 

on, 198. 
if dangerous, kept with knowledge, kept at peril, 195, 

196. 
in suing for damages caused by dangerous, scienter must 

be proved, 196, 197. 
liability of persons keeping elephants, bears and monkeys, 

195. 
wild and vicious, 195. 
owner of vicious dog liable for servant's wrongful act, 195-6. 
persons keeping dog or other domestic, no liability of, 195. 
servant's knowledge that dog is dangerous, 197. 
trespasser bitten by horse, occupier of land not liable, 199. 
injuries done to, 285. 
killing in self-defence, justifiable, 285-6. 
trespasses of, 269. 

ARREST. See Imprisonment. 

ARTIFICIAL WATERCOURSE. See Watercourse. 

[ 2 ] 



Index. 
assault and battery, 

amount of damages, 268. 

aggravation a mitigation, 82-3. 
definition of assault, 254. 

ability to do harm necessary, 255. 
attempt necessary, 254. 
committed in sport, not actionable, 255. 
menacing, 254. 
definition of battery, 255. 

battery voluntarily suffered, not actionable, 255. 
caused by inevitable accident, excusable, 256. 
committed in mere retaliation, not justifiable, 259. 

defence of property, 259. 
injuries inflicted through defective tramway, 256. 
in order to arrest night offender, felon, malicious trespasser, 

or vagrant, 266-7. 
in order to expel disturber of congregation, justifiable, 267 
in order to stop breach of the peace, 258, 265, 266. 

by naval or military officers, 260. 
justification for, 258 et seq. 
may be occasioned by anything wrongly and wilfully or 

negligently set in motion by defendant, 255. 
mayhem, 255. 

of pupil or child for sake of correction, 260. 
self-defence, justifiable, 259. 
on person having ticket for grand stand and enclousure at 
races, 259-260. 
refusing to leave after being requested to, 259. 
proceedings before justices release civil proceedings, 268. 
responsibility of master for, by servant, 59. 



B. 
BAILEE. See Trespass. 

BAILEES OF GOODS, 

common carriers, meaning of, 173. 
duty of, 172. 

degree of care required, varies with nature of the bailment, 

172-3. 
to take reasonable care of goods bailed to them, 172-3. 
liability of, 173. 

BAILOR 

may bring trespass against third party or purchaser, where 
bailee has wrongfully delivered or sold goods, 289. 
unless sale in market overt, 284-5. 

and even then if goods stolen and thief convicted, 285. 

r 3 ] 



Index. 

bankruptcy, 

effect of, on the right to sue or the liability to be sued for 
tort, 68-9. 

BATTERY. See Assault and Battery. 

BODILY INJURIES. See Assault. 

caused by false imprisonment. See Imprisonment. 
negligence. See Negligence. 
nuisances. See Nuisance. 

BREACH OF DUTY, 

escape of water accumulated by natural causes, not a, 193. 

falling on land, is not a, 193. 
liability for, to prevent damage from dangerous things and 

animals, 189 et seq. 
planting yew trees and thistles, when a, 194. 

not a, 194. 
supply pipes bursting, not a, if not for defendant's own use, 193. 
third party bringing thing on land, defendant not liable for, 192. 
water stored in a tank is not a, 192. 
when caused by act of God, 192. 

BRICK-BURNING 

may be an actionable nuisance, 230. 



c. 

CABDRIVER, 

who liable for negligence of, 56. 

CAMPBELL'S (LORD) ACT, 69 et seq. 

action can only be maintained in cases where deceased himself 

could have sued had he lived, 71. 
action not maintainable when deceased received compensation 

before death, 73. 
effect of deceased having insured his life, 73. 
gives right of action to relatives of persons killed through 

another's default, 69 et seq. 
if servant injured but not killed, master may bring action for 

loss of services, 70-71. 
jury must apportion damages, 70. 
master cannot bring action for damages which cause the 

immediate death of his servant, 71. 
plaintiff must have suffered some pecuniary loss attributable 

to the relationship, 72. 
what damage must be proved, 72. 
when action maintainable, 71. 

for whose benefit maintainable, 71 
when assessing damages insurance not to be taken into account, 
who may sue, 70. 73. 

in case executor does not, 70. 
[4 ] 



Index. 

candidate 

for office, character of, privileged communication, 125. 

CATTLE OR SHEEP. See Trespass. 

when injury is done to, by dog, scienter need not be shown, 197. 
word " cattle " includes horses, 197. 

CAVEAT EMPTOR, 157 et seq. 

CHARACTER, 

evidence of plaintiff's bad or irritating character or conduct in 
mitigation of damages in defamation, 83. 
daughter's loose character in mitigation of damages in 
seduction, 83. 
fraudulent, when actionable, 157, 158. 

of candidate for office, given to a voter or elector, a privileged 
communication, 125. 
servant, when a privileged communication, 125. 

CHATTELS, 

trespass to, and conversion of, 281 et seq. 

See Trespass ; and see Wrongful Conversion. 

CHILDREN 

of deceased parent, action by. See Campbell's (Lord) Act. 

CHURCH BELLS, 

injunction to restrain ringing of, 87. 

CLERGYMAN, 

imputing unchastitj' to a beneficed, is actionable per se, 1 10. 

COERCION 

by illegal means, 149 et seq. 

COMMON EMPLOYMENT, 

meaning of, 204 et seq. 

See Master and Servant. 
there must be a common master, 207. 

COMPENSATION. See Workmen's Compensation. 

CONCEALMENT, 

when fraudulent. See Fraudulent Concealment. 

CONDUCT, 

evidence of plaintiffs objectionable, in mitigation or aggravation 
of damages, 83 et seq. 

CONFIDENCE. See Misfeasance. 

CONSEQUENTIAL DAMAGES. See Damages. 



Index, 
conspiracy, 153. 

not actionable where object is to induce persons not to employ 
defendant, 152. 
aliter where object is to induce persons to break contract, 

149, 150. 

CONSTABLE 

cannot, in general, arrest without a warrant, 266. 
definition of, 264. 
may arrest without warrant — 
for acts of vagrancy, 267. 
brawling in church, 267. 
breach of peace, even after affray over, in order to take 

offender before a justice, 266. 
malicious injuries, 267. 
on reasonable suspicion of felony, 263. 
power of, to arrest in obedience to warrant, 263. 
special protection of, in executing warrants of justices without 
jurisdiction, 263. 

CONTINUING TORTS, 

commencement of period of limitation in, 95. 
fresh action may be brought for, until they are stopped, 95 
et seq. 

CONTRACT, 

gratuitous bailees, 36, 37. 

in performance of duties undertaken gratuitously, 36-37. 

negligence of professional men, 35. 

servant can sue railway company who have booked him 

although master paid the fare, 35. 
third party injured, as to deleterious quack medicines, 35. 

aliter where fraud, 36. 
torts connected with, 33 et seq. 
who may be sued for torts connected with, 34 et seq. 

CONTRACTOR, 

employer not in general liable for nuisance committed by, or 
negligence of, 62 et seq. 
exceptions, 64^66. 

CONTRIBUTION, 

how far a right to, between tort-feasors, 45. 

CONTRIBUTORY NEGLIGENCE. See Negligence. 
CONVERSION. See Wrongful Conversion. 

CORPORATION 

is generally liable for torts, 43. 

liable for libels and slanders published by its servants, 60. 
torts, 44. 

even for those depending on fraud, 44. 
may sue for a tort unless it merely affects its reputation, 41. 
[6] 



Index. 

COUNSEL, 

opinion of, no excuse for malicious prosecution, 135. 
statements of, privileged communications, 121. 

CRIME. See Defamation. 
CRITICISM. See Defamation. 



D. 

DAMAGE 

continuance of, under Public Authorities Protection Act, 1893, 
special, must be some temporal loss, 108. 97. 

when necessary, 5 et seq. 
without wrongful act, not actionable, 5 et seq. 

DAMAGE BY ANIMALS. See Animals. 

DA^L\GES, 

measure of, in actions of tort, 75 et seq. 

(1) For injuries to person and reputation, 75 et seq. 

aggravation and mitigation of, 82 et seq. 

for defamation, 83. 
seduction, 82, 83. 
consequential damages, 79 et seq. 

injury to trade by defamation, 81. 

loss of business, 81. 

medical expenses, 80. 

mental shock, 79. 
excessive, 75. 
for assault, 76. 

false imprisonment, 76. 

seduction, 147, 148. 
insurance not to be taken into account, 84. 
mistake or ill-feeling of jury, 75. 
prospective damages may be given, 81, 82. 
too small, 75. 
under Employers' Liability Act, 2ll)9. 

(2) For injuries to property, 76 et seq. 

aggravation and mitigation, 82 et seq. 

insolent trespass, 83. 
compensatory in character, 76. 
consequential damages, 79, 80. 

collisions at sea, 80. 

having been obliged to pay damages to third party, 80. 

infectious disease, 80. 

must not be too remote, 79. 
continuing torts, 81. 
cost of repairing chattel, 78. 
for wrongful conversion, 77. 

[7 ] 



Index. 

T>A^L\GF.S—coniinved. 

(2) For injuries to property — continued. 

joint wrongdoers are jointly and severally liable for, 45. 
loss of use of chattel by reason of defendant's negligence, 

78. 
lightship, having been damaged bv collision, 

78. 
presumption of amount of damage against a wrongdoer, 79. 
prospective damages should be included, 81, 82. 
aliter where tort is continuing, 81, 82. 
or where distinct torts, one to person and the other 
to property, 81. 
trespass to land, 77. 

DAMNUM, 

definition of, 4, 5. 

DAMNUM ABSQUE INJURIA, 5. 

DANGER, 

trespass under the influence of a pressing, 270. 

DANGEROUS 

animals. See Ferocious Animals. 

substances brought on to land must be kept at peril of bringer, 

189 et seq. 
works, principal liable for contractor's defaults, 62. 

DAUGHTER, 

action for seduction of, 144. 

See SEDtJCTiox. 

DEATH, 

effect of, on the right to sue or liability to be sued for tort, 

67-68. 

DECEASED PERSON. See Campbell's (Lord) Act. 

DECEIT, 157 et seq. 
See Fraud. 

DEFAMATION, lUl et'seq. 

actual damage, when necessary, in slander, 107. 

damage caused by plaintiff himself repeating the slander, 
imputation — 108. 

mere suspicion insufficient, 110. 
must be of punishable crime, 109. 
of crime actual damage of itself, 109. 
impossible crime insufticient, 109. 
mere breach of trust, 109. 
unchastity, 108. 
unfitness for business, 110. 
office. 111. 
society, 110. 
[ 8] 



Index. 

DEFAMATION— continved. 
analysis of slander, 102. 
damages. See Damages. 
definition, 101. 

disparagement of tradesman's goods gives no cause of action, 
fair comment, 117 et seq. 110. 

criticism of such matter of public interest, 117. 

tradesmen's advertisements, 118. 
decision of court as to whether — 

evidence that any part of words complained of, go 

beyond limit of, 117, 118. 
matter commented on is of public interest, 117. 
defence of, 118. 

duty of jury to prove evidence not of, 117. 
in, no question of malice arises, 119. 
is outside the region of libel, 119. 
must be distinguished from privilege, 119. 
not actionable if defendant proves bond fide, 117. 
on public conduct of a public man, 117. 
functions of court and jury as to publication, 113. 
malice, 124. 
oral or written, 101. 
privileged communications — 
criticism, 118. 

of public men, 119 et seq. 
extracts from Parliamentary papers, 127. 
function of court and jury, 122. 

incidental publication to persons not having interest, 126. 
judicial proceedings, 121, 122. 

jury to decide whether communication fairly warranted, 
Parhamentary proceedings, 121. 123. 

reports of judicial proceedings, 127. 
legal proceedings, 122. 
g-Masi- judicial proceedings, 127, 
sending by telegram or postcard or in wrongly addressed 

envelope, 126. 
speeches at county and district councils, 127. 
statement made to a person having a corresponding 
interest, 125. 

aliter where made broadcast, 126. 
where character of a candidate is, 125. 

servant given to intending employer, 

confidential advice, 125. 125. 

social and moral duty to speak, 124, 125. 

warning a guest of character of person in his employ, 

publication, 113. 125. 

by dictating to clerk, 114. 

telegram or postcard addressed to person libelled, 113. 
justification of, 102. 

libel or slander must refer to the plaintiff. 111. 
to or bv husband or wife, 114. 

[9 ] 



Index. 

DEFAMATION— fo??/!'r??;pr?. 

repetition of defamation, 114. 

in slander where the damage is wholly in consequence of 

the repetition, 115. 
injunction to restrain, 88. 
printing of verbal slander, 115. 
slander of title and slander of goods, 129. 
may be in writing or in print, 129. 
puffing one's own goods, 130. 
special damage, 130. 
what is, 129. 
truth of defamatory statement a good defence, 1 16. 
waxen effigy, 106. 
when a corporation may sue, 106. 

actionable, 106. 
where no disparagement no amount of damage will give a cause 

of action, 106. 
words capable of bearing a defamatory meaning, 105. 

DEFAMATORY ARTICLE, 

publication of, 114. 

liability of publishers, 116. 

DEFECT. See Fraud. 

DEFENCE. See Assault. 

DETINUE, 

meaning of, 281. 

DISABILITY 

to sue or to be sued for tort, 41 e< seq. 
See Limitation. 

DISPOSSESSION, 

claimant's title may be legal or equitable, 276. 

definition of, 275. 

jus tertii available by defendant, but not by plaintiff, 276. 

landlord claimant need not prove his title, 277. 

licensor and licensee, 277. 

limitation, 277. 

acknowledgment of title, 278. 

commencement of period, 278. 

disability, 277. 

discontinuance of possession, 279. 

ecclesiastical corporations, 278. 

mere entry and continual assertion of claim no bar to 
running of statute, 279. 
master and servant, 277. 

mere possession evidence of title for defendant, 276. 
plaintiff must rely on strength of his own title, 276. 
plaintiff's title need not be indefeasible, 276. 
successful plaintiff, 276. 

tenant may show expiration of landlord's title, 277. 
[ 10 ] 



Index. 

DOGS, 

killing in defence of game, when justifiable, 285. 
sheep or cattle, 286. 
self-defence, 285. 
liability of owner for injuries by. See Ferocious Animals. 
noisy, 229. 



E. 

EASEMENT, 

grantee of, may enter upon servient tenement in order to 

repair, 270. 
what is an, 239. And see Nuisance. 

EJECTMENT. See Dispossession. 

EMPLOYERS' LIABILITY ACT, 209-211. 

class of servant to which the Act applies, 211. 

ENGINES 

near highway. See Nuisance. 

EXECUTIVE OFFICERS, 
general immunity of, 19. 



. F. 

FALSE IMPRISONMENT, 256 et seq. 
See Imprisonment. 

FALSE REPRESENTATION. See Fraud. 

FELLOW-SERVANTS. See Master and Servant. 

FELONY, 

how suspension may be effected, 24 et seq. 

remedy by action for, suspended until criminal trial ended, 24. 

FENCES, 

liability for injuries caused by dangerous, 219. 
non-liability for trespass of cattle if adjoining owner bound to 
keep in repair, 270. 

FEROCIOU.^ ANIMALS, 

liability for injuries caused by, 194 et seq. 
scienter the gist of the action for, 196 et seq. 
presumption of scienter, 197. 
proof of scienter, 197, 198. 

scienter when sheep or cattle worried by dog need not be 
proved, 197. 

See also Animals. 



Index. 

FIRE 

accidentally arising, 199. 
liability of railway companies, 201. 

persons intentionally lighting, must see that it docs no harm, 

199. 
negligently allowing, to arise, liable for damage to 
neighbour's land, 199. 
preventing from doing mischief, 19,9 et seq. 
under Railway Fires Act, 1905, 201. 

accidental, not checked by servant — negligence, 200. 

FIREWORKS 

near highway. See Nuisance. 

FLOODS, 

liability for, 189 et seq. 

where damage from is partly attributable to vis major, 191. 
attributable to act of third party, 192. 

FOREIGN COUNTRY, 

torts committed in, when remediable in England, 39 et seq. 

FOREIGN SOVEREIGNS 
not liable for torts, 42. 

but may waive the privilege, 42. 

FRAUD, 157 et seq. 

definition of, 157 et seq. 

essentials of actionable, 157. 

fraud followed by damage gives rise to action for deceit, 157. 

fraudulent character must be in writing to be actionable, 160. 

liability for fraud of agent, 159. 

honest misstatement by agent does not render 
principal liable, 159. 
of directors and promoters of companies, 160. 

prospectus issued in honest belief of its truth, 161. 
statutory duty as to, 161. 
mere silence not sufficient to give rise to action for deceit, 157. 
negligent misrepresentation not the same as fraudulent mis- 
representation, 158. 
when actionable, 157 et seq. 

actual damage essential, 157. 

false representation of soundness of a dangerous 

instrument, 159. 
not necessary that fraudulent statement should have 
been made to plaintiff, if intended to be acted on 
by him, 158. 
silence amounts to, 157. 

[ 12 J 



Index. 

FR AU D — C071 tinued . 

where deceit and malice present, it is immaterial that there was 
no intention by defendant to reap any benefit, 159. 
lying practical joke, 159. 

principal intentionally keeps agent ignorant of a fact, 
causing misrepresentation, principal liable for, 160. 

FRAUDULENT CONCEALMENT, 

mere abstinence from mentioning a known defect is not action- 
able as a tort, 157. 



G. 

GAME, 

killing dog in order to preserve, when justifiable, 285, 286. 

GOODS. See Negligence ; Trespass ; Wrongful Conversion. 

GOVERNMENT DEPARTMENTS, 

heads of, not liable for torts of their subordinates, 61. 
masters of Government servants, 61. 

GRATUITOUS DUTIES, 

when misfeasance in performance of, gives rise to an action, 
36, 37. 

GUN, 

accidents caused by, without negligence, 9. 

injury to third party by explosion of a, warranted, 159. 



H. 
HIGHWAY, 

authorities liable for damage resulting from misfeasance, 30. 

not liable for damages resulting from nonfeasance, 29. 
dedication of, to public not a grant of the land, 273. 
manhole put in, 31. 
obstruction of, 218. 

trespass may be maintained by grantor of, for unreasonable 
use of it, ex. gr., obstructing his right of sporting, 269, 270. 

HORSE, 

accident caused by a runaway, when excusable and when 

not, 9. 
injuries to, by dog, 197. 

HOUSE, 

liability for ruinous state of. See Nuisance. 

HUSBAND 

liable for torts of wife, 49. 

liability ceases if wife dies or marriage dissolved, 49, 50. 

judicially separated, 50. 
not entitled to imprison his wife, 260. 

or to sue her for tort, 41. 

[ 13] 



Index. 
I. 

ICE, 

when a public nuisance, 12, 

IMMORALITY. See Defamation. 

IMPRISONMENT, 

by judges and magistrates, absolute immunity of judges of 
superior courts for, 17. 
private persons and constables, 263, 264. 
arrest of — 

breakers of the peace, 262. 

exceptional cases in which a constable may arrest 
without warrant, 26.3. 
cases of suspected felony where no felony has 

in fact been committed, 263, 264. 
may arrest wherever a private person can, 265. 
interrupter of divine service, 267. 
malicious injurers, 267. 
night offenders, 266. 
• no power given to husband to imprison wife, 260. 

officers, 260. 
parents, 260. 
particular powers of arrest given to individuals, 

264, 265. 
suspected felon, when justifiable, 263, 264. 

what suspicion sufficient, 264. 
vagrants, 267. 

acts of vagrancy, 267. 
damages for, 268. 
habeas corpus, 257, 258. 
imprisonment by justices of the peace for breach of the peaces 

262. 
judicial authority, justification by, 261. 

distinction between false imprisonment and malicious 

prosecution, 261. 
signing a charge sheet is not sufficient evidence, 262. 
moral restraint constitutes, 257. 
total restraint necessary, 257. 
what constitutes, 256. 
when not justified, 260. 
INCORPOREAL HEREDITAMENT, 

injury to. See Light and Air ; Support ; Watercourse ; 
Way. 
INEVITABLE ACCIDENT. See Accident. 

INFANT, 

generally liable for his torts, 42 et seq. 
aliter if founded on contract, 43. 
unborn, may claim damages under Lord Campbell's Act if father 
killed by negligence, 42. 

r 14 1 



Index. 

injunction, 

cases where damages given instead, 86. 

church bells, 87. 

general rule as to granting of an, 85 et seq. 

granted even where it will inconvenience public, 89. 

injuries remediable by, 85 et seq. 

interlocutory or perpetual, 85 et seq. 

rarely granted to restrain a libel, 86. 
mandatory, 85, )wte (b). 
noise, for, 87. 
noxious fumes, for, 87. 
obstruction of light, 87. 
pollution of lake, 87. 
remedy by, 85 et seq. 
when granted to restrain libel, 86. 

INJURIA, 

meaning of, 4. 

INSANITY, 

imputation of. See Defamation. 

INSOLVENCY, 

imputation of. See Defamation. 

INTENTION, 

not always material in torts, 8 et seq. 

INTIMIDATION, 

when actionable, 149 et seq. 

INVOLUNTARY TORTS, 

when actionable, 9, 10. 



JOINT OWNERS, 

trespasses of, towards each other, 274. 

JOINT TORT-FEASORS, 
liability of, 45 et seq. 
only one cause of action, 46. 
what rights of contribution between, 46. 
when partner commits a tort in regard to any third person, 47. 

JUDGE, 

powers of, to imprison. See Imprisonment. 

statement of, absolutely privileged communications, 121. 

JUDICIAL OFFICERS, 

general immunity of, 17. 

JUDICIAL PROCEEDINGS, 

how far privileged communications, 120, 121. 
[ 15 1 



Index, 
jurisdiction, 

torts committed outside, 39. 

JUS TERTII, 

defendant in ejectment may set up, but not claimant, 276. 

JUSTICE OF THE PEACE. See Imprisonment. 

JUSTIFICATION. See Assault ; Defamation ; Imprisonment ; 

Trespass. 



LANDLORD, 

occupation of servant of, equivalent to personal occupation, 275. 
title of, cannot be disputed by tenant, 277. 
when liable for nuisance on demised premises, 222. 
LIBEL. See Defamation ; Injunction. 

LICENSEE, 

possession of, is the possession of the licensor, 277. 

LIEN, 

sale of goods held under, a wrongful conversion, 290. 

LIGHT AND AIR, 

implied grants of light, 244. 

a man cannot obstruct on property granted by him to 
another, 244, 245. 
in general no right to air can be gained, 245. 

aliter for access of air through defined openings or passages, 
245. 
no right to, ex jure naturce, 244. 
right to, can only be by prescription, grant, or reservation, 

244. 
rights to light gained by prescription, 244. 

interruptions sufficient to rebut prescription, 246. 
no interruption allowed after nineteen years, 246. 

but injunction not granted until full twenty years, 246. 
what amount of damage necessary to support action, 245-247. 
where the right arises by express grant depends on con- 
struction of the grant, 247. 
where the right arises by implied grant or prescription the 
sole question is whether the deprivation amounts to a 
nuisance, 247. 

LIMITATION 

commencement of period of, 92. 

commencement of period when tort continuing, 95. 
concealed fraud, 92. 
conversion, 94. 
disabihty, 96. 

arising subsequently to commencement of period, 96. 

[ 16 ] 



Index. 

LIMITATION— con tmued. 

commencement of period of — continued. 
in the case of nuisance, 96. 
taking away support of land, 93. 

when tort consists of actual damage, commencement of 
period of, 92. 
great distinction between real property limitation Acts and 

those relating to chattels, 95. 
in particular cases. See under the several headings of those 

cases, 
of actions of tort, 91. 
reasons for, 93. 
under Employers' Liability Act, 209. 

PubUc'^ Authorities Protection Act, 1893, 96. 

LOSS OF SERVICE. See Seduction. 

LUNATIC 

liable for his torts, 42, 44. 

M. 

MAGISTRATE. See Imprisonment. 

MAINTENANCE, 

definition of, 139. 

when action maintainable for, 139. 

not where common interest between maintainer and main- 
tained, 140. 
nor where maintainer actuated by charitable motives, 
140. 

MALICE 

not usually material in torts, 10 et seq. 

MALICIOUS PROSECUTION, 131 et seq. 

bankruptcy, maliciously taking proceedings in, 131. 
definition of, 131. 
essentials to ground action, 132. 

" prosecution " includes bankruptcy and liquidation proceed- 
ings, 131. 
when actionable, 132, 133. 

(1) Prosecution hy defendant, 132. 

prosecution ordered by a magistrate on defendant's infor- 
mation as to facts not sufficient, 132. 
unless defendant after ascertaining the innocence of 
plaintiff maliciously continues the prosecution, 132. 

(2) Want of reasonable and prohablc cause, 133. 
amount of care required, 135. 

duties of judge and jury as to, 133, 134. 
onus of proof on plaintiff, 133. 

opinion of counsel in favour of prosecution no excuse, 135. 
what constitutes, 134, 135. 
L 17 ] 



Index. 

MALICIOUS PROSECUTION— fow/i?!«ff/. 

(3) Malice, 135. 

adoption of proceedings already commenced, 132. 

defective memory, 136, 137. 

honest but stupid mistake, 136. 

knowledge of defendant that he was in the wrong, evidence 

of malice, 136. 
malice may be implied in a corporation, 137. 
to stop plaintiff's mouth, 137. 

(4) Setting aside of jifoceediiigs, a condition precedent to action 

for, 137. 
explanation of the reasons for tliis, 137. 

(5) Actual damage must he proved, 138. 

need not be pecuniary, 138. 

MANUFACTURE, 

noxious or offensive, an actionable nuisance. See Injunction ; 
Nuisance. 

MARRIED WOMAN 

cannot sue her husband for a tort, except for protection and 

security of her own separate property, 41. 
her husband also still liable for wife's torts, 49 et seq. 
may sue for a tort without joining her husband, 41. 

MASTER AND SERVANT, 

as to enticing and seducing servants. See Seduction. 
general liability of master for torts of, 54 et seq. 

accidents occasioned by carelessness of servant, 56, 57. 
contractor or intermediate employer liable for torts of 

workmen, 62. 
distinction between unlawful method of doing what he was 
engaged to do, and unlawful act completely outside the 
scope of his engagement, 57. 
job-master liable, and not hirer of horses, 56. 
liability of master for assaults of servant committed in 

scope of his employment, 58, 59. 
master not liable for injuries caused by servant while 

driving master's carriage on business of his own, 57. 
master not liable for servant's torts when committed out- 
side or beyond scope of his employment, 55 et seq. 
master not liable for torts committed by persons delegated 

by servant to do his work, 60, 61. 
master when liable for illegal act of servant, 58. 

liable for wilful act of servant if within the scope 
of and in the course of his employment, 54. 
meaning of term " servant," 55. 
unauthorised delegation by a servant of his duties excuses 

master from delegate's torts, 60, 61. 
who are servants, 55. 
inducing servant to break his contract of service, 149. 
[ 18 ] 



Index. 

MASTER AND SEHYA^T— continued. 

master may in general sue for a tort which deprives him of 
services of servant, 143. 
aliter if servant be killed, 71. 
when employer liable at common law for injuries caused by 
servant to fellow- servant, 203 et seq. 
And see Employers' Liability Act. 
master knowingly employing an unskilful servant, 204. 

not liable where there is common employment or a 
voluntary acceptance of risk, 208. 
meaning of common employment, 204. 
personal negligence of master, 204, 207. 
volunteer helpers are in the position of servants with re- 
gard to suing the master for negligence of his true 
servants, 208. 
aliter where acting with master's consent or acqui- 
escence, 209. 

MEASURE OF DAMAGES. See Damages. 

MEDICAL EXPENSES. See Campbell's (Lord) Act. 

MEDICAL MEN, 
negligence of, 35. 
slandering. See Defamation. 

MINE, 

flooding of, by water brought by defendant on to his land and 
not kept from escaping, actionable, 191. 

MISFEASANCE, 30. 

highway authorities liable for damage resulting from, 30. 
liabihty for, 37. 

MISREPRESENTATION. See Fraud. 

MISTAKE 

no justification, 8. 

MITIGATION. See Damages. 

MORAL GUILT 

generally immaterial in cases of tort, 10-12. 
aliter in case of fraud, 11. 



N. 

NECESSITY, 

may excuse what would otherwise be a tort, 15, 270. 

NEGLIGENCE, 

actions by representatives of a person killed by, 69 ei seq. 

See Campbell's (Lord) Act. 
amount of care required depends on circumstances, 164. 
bailees of goods, duty of, 172. 

[ 19 ] 



Index. 

NEGLIGENCE— ro«^/Hy/fr/. 

caused by want of skill, 164. 
contributory, 177. 

contributory negligence of carrier to whom plaintiff has 
entrusted liimself, no excuse, 180. 
in infants, 180. 
joint negligence of plaintiff and defendant, 180. 
where contributory, affords no excuse, 178. 
definition of, 163, 164. 

duties of judge and jury in actions for, 184. 
duty of occupiers of land and houses, 167. 
as to licensees and guests, 169. 
trespassers, 170. 

not to set spring gun on land, 172. 
injuries caused through defective grand stand, 171. 
journeyman gasfitter falling through trap-door, 170. 
landlord and tenant, duty as between, 168, 169. 
not to put any unexpected danger without warning licensee, 

167, 168. 
person coming by invitation, 168. 
to use reasonable care to prevent damage, 167. 
essentials to ground actions for, 163. 

extra care required where defendant has control of dangerous 
things, 173 et seq. 
dangerous and savage animals, 194 et seq. 

when scienter necessary, 196. 
entrusting loaded gun to inexperienced servant girl, 175. 
selling deleterious hairwash, 175. 

or even lending dangerous chemicals or other things 
without warning, 176. 
third person finding loaded gun consciously firing it, 175. 
grouping of relations necessitating exercise of care, 163, 164. 
highway, duty of persons using to take care, 165. 
negligence of person driving or riding on, 165. 
illustrations of effective cause, 182. 
not actionable unless it be proved that defendant's negligence 

was the proximate cause of the injury, 181. 
of carriers of passengers, 166. 

infant travelling without a ticket, injured by negligence, 

company liable, 167. 
person injured whilst travelling on footboard of train in 
defiance of a byelaw, 167. 
onus of proof of, 182 et seq. 

accident capable of two explanations, 183. 

aliter where the accident would not be likely to happen 

without negligence, 183, 184. 
generally on plaintiff, 182. 
heavy article dropping out of window, 183. 
railway train thrown off the line, 183. 
runaway horse, 182. 
skidding motor omnibus, 183. 
[20] 



Index. 

NEWSPAPERS. See Defamation. 

NOISE. See Injunction ; Nuisance. 

NOXIOUS TRADE. See Nuisance. 

NUISANCE, 

actions in respect of, 218, 220. 

alloAving dangerous things (such as water or electricity) to 

escape, 191. 
definition of, 217. 
description of nuisances, 217, 218. 

either pubHc or private, 217, 218. 
examples of, 218 et seq. 
franchises, disturbance of, 240. 

right of ferry and market included in, 240. 

trade marks, copyrights and patent rights included 
in, 240. 
right to vote for member of parliament, 240. 
line between public and private, rather fine, 217. 
malicious motive immaterial, 227. 
meaning of term, 217. 
prescription to commit, 233. 

by Prescription Act seldom necessary to presume lost 
grant, 235. 
twenty years' enjoyment of right, 235. 
right given to discharge foul water on land, 235. 
private, what is, 217. 

(1) Private injury from public nuisance, 217 et seq. 
abatement of public nuisances, 221. 
boys breaking railings of area, owner not liable, 225. 
dangerous adjacent buildings, relative liabilities of land- 
lord and tenant for nuisance caused by, 223. 
examples of public nuisances, 218 e^ seq. 
church bells, 87. 
excavations on highways, 218. 
fumes, 87. 

ruinous or dangerous fences or premises on high- 
ways, 219. 
liability of highway authority, 219. 

landlord and tenant respectively, 
224. 
excavations not adjacent to roads not actionable, 219. 
owner or occupier not liable for nuisance created by a 

third person without his knowledge, 223. 
particular damage, 220. 

business interfered with is, 220. 

being rendered dark or less commodious,221. 
interference with private right is, 221. 
obstruction cutting off access to highway, 221. 

of at highway, 221. 
public nuisance only actionable in respect of, 220. 
[ 21 ] 



Index. 

I^TJISANCE— continued. 

(1) Private injury from j^ublic nuisance — continued. 

when actionable, 218. 

authorised by statute, 219. 

(2) Causing injury to corporeal hereditaments — 

definition of, 227. 

disgusting fumes, 228. 

distinction between injury to property and annoyance in 

its user, 228, 229. 
entertainments causing crowds and noise, 229. 
immaterial whether plaintiff goes to the nuisance or it 

to him, 232. 
interference with enjoyment of property, 228. 
noise from pestle and mortar nuisance to consulting 

room, 233. 
noisy dogs, 229. 

entertainments, 229. 
printing machine, 232. 
trade, 228. 
overhanging eaves, 229. 

trees, 229. 
pigsties, 229. 

reasonableness of place, when no excuse, 230. 
small-pox hospital, 229. 
the nuisance must be material, 228. 

(3) Affecting incor^yoreal hereditaments — 

disturbance of natural right to support, 240. 

easements and servitudes, 239. 

no right to support by subterranean water, 242. 

aliter of other substances such as wet sand or pitch, 
242. 
profits a prendre, 239. 
railway and canal companies have limited right of 

support, 242. 
remedy bj' abatement, 237. 

not applicable to prospective nuisances, 

238. 
pulling down inhabited house, 238. 
injunction. See Injunction. 
of reversioner, 236. 
right arises ex jure naturcE, 241. 

of support for land burdened with buildings, 243. 
can be gained only by prescription or 

grant, 243, 244. 
may be similarly acquired for support 
from adjacent houses, 243. 
to light and air, 244 et seq. 
See Light and Am. 
watercourse, 248. 
See Watercourse. 
[22] 



Index. 

'NVISA'NCE— continued. 

(3) Affecting incorporeal hereditaments — continued. 
right to ways, 250. 
See Way. 
subterranean water, pumping brine from, 242. 
title to easements, 239. 

where natural right to support is infringed, the con- 
sequent damage to a modern hoiise may be recovered. 
243. 



0. 



OBSTRUCTION 

of light and air, 244. 
See Light and Air. 
road, 250. 

OUSTER. See Dispossession. 



PARTNERS, 

liability of, for each other's torts, 51 et seq. 

for torts other than fraudulent misappropriations, ib. 

fraudulent guarantees, 52. 
is joint and several, 51. 

PARTY-WALL, 

trespass to, 274. 

PERJURY, 

imputation of, not actionable, unless made with reference to a 

judical inquiry, 109. 
no action lies for consequences of, 121. 

PERSONAL PROPERTY, 

trespass to. See Trespass. 

PIGSTY. See Nuisance. 

PIT, 

accidents from unguarded, 9. 

POISONOUS TREES, 194. 

POLLUTION OF WATER, 250. 

POSSESSION, 

writ of. See Nuisance ; Trespass. 

PRESCRIPTION. See Light and Air ; Nuisance ; Support ; 
Watercourse ; Way. 

[23 ] 



Index. 

principal, 

liability of, for acts of agent, 52 et seq. 
See Agents. 

PRINTER. See Defamation. 

PRIVATE WAY. See Way. 

PRIVILEGED COMMUNICATIONS. See Defamation. 

PRIVITY 

in torts arising out of contract, 34 et seq. 

PROBABLE CAUSE. See Malicious Prosecution. 

PROBABLE CONSEQUENCE, 

every man presumed to intend the, of his acts, 8. 

PROFESSIONAL MEN, 
negligence of, 35. 

PUBLIC CONVENIENCE 

does not justify a tort to an individual, 89. 

PUBLIC NUISANCE. See Nuisance. 

PUBLIC RIGHT, 

infringement of, coupled with peculiar damage to an indivi- 
dual, 6. 

PUBLICATION. See Defamation ; Defamatory Article. 



Q- 

QUALIFIED RIGHT, 

infringement of, coupled with damage, 5. 



R. 

RAILWAY COMPANY. See Contract ; Master and Servant ; 
Misfeasance ; Negligence ; Nuisance. 

RATIFICATION. See Master and Servant. 

RECAPTION, 

remedy by, 292. 

REPLEVIN, 

action of, 293. 

REVERSIONER 

may enter into and inspect premises, 270. 

no remedy given to, for mere transient trespass or nuisances, 

237. 
remedy of, for injury to land, 236. 
obstructions, 238. 
for injury to personal property, 286. 
some injury to the reversion must be proved, 237. 
[24] 



Index. 

RIVER. See Watercourse. 

RUINOUS PREMISES. See Nuisance. 

RUNAWAY HORSE, 

how far owner liable for damage caused by, 9. 



s. 

SCIENTER. See Ferocious Animals. 

SEDUCTION, 

action for, whence arising, 143. 

contract of service, when implied, where the girl is plaintiff's 
daughter, 144. 
small services suffice, 14.5, 146. 

when daughter lives with her father, and is a minor, service 
is presumed, 144, 146. 
aliter where the daughter acts as another's house- 
keeper, 146. 
not even where she supports her father, 146. 
where service to another is put an end to, the right of the 
parent revives, 146. 
damages in, 147. 

And see Damages. 
aggravation of, 147. 
breach of promise of marriage not technically matter of 

aggravation, 148 n. 
mitigation of, 148. 

previous immorality or looseness, 148. 
daughter, of, father may bring action for loss of services 

of, 144, 145. 
if parent helps to bring about his own dishonour he cannot 

recover, 147. 
of orphan girl, action by brother, 146. 
of servant from master's employ is actionable, 144. 
relation of master and servant essential, 144. 
relation of master and servant must subsist at time of seduction 

and of confinement, 145. 
temporary visit no termination of service, 146. 
who may bring action for, 145. 

SELF-DEFENCE, 

tort committed in, 15, 258, 259, 270, 285. 

SERVANT 

may sue for loss of luggage or personal injury although master 
paid the fare, 35. 
See Master and Servant. 

SEWER, 

nuisance caused by defective, 218. 
f 25 ] 



Index. 

SHAFT, 

unguarded, 9. 

SHEEP, 

injuries to, by dog actionable without proof of scienter, 19G, 197. 

SHOOTING 

by accident not actionable, 9. 

not guilty of imprudent act, 9. 

SLANDER, ^ee Defamation. 

SOLICITOR, 

slandering a, 110, 111. 

SOVEREIGN 

not liable for torts, 42. 
nor foreign, 42. 

SPRING-GUNS. See Nuisance. 

STATUTE, 

acts authorised by, actionable when negligence proved, 21, 23. 
not actionable, 20, 22. 

STATUTORY DUTIES, 

breaches of, 27 et seq. 

created for benefit of individuals, 27 et seq. 

the public, 28, 29. 
highway authorities not liable for neglect to perform, 29. 
negligence in carrying out, 21, 23. 
of highway and sanitary authorities, 29, 30. 

STRIKERS, 

torts by, 149 et seq. 

SUPPORT. See Nuisance (2). 

T. 

TENANT 

cannot dispute landlord's title, 277. 

but may show that title has expired, 277. 
See Landlord. 

TITLE. See Dispossession ; Trespass. 

TORT, 

act or omission must be unauthorised, 15. 
authorised acts or omissions, what are, S. 
classification of personal rights, 7. 
of property, 7. 

[ 26] 



Index. 

TORT— conlimied. 

colonial governor is not a sovereign, and may be sued for, 44. 

definition of, 3, 7. 

distinction between actions for, and for breach of contract, 33. 

nature of a, discussed, 3 et seq. 

relation of, and contract, 33 et seq. 

waiver of, 291. 

who may sue for a, 41. 

be sued for, 42. 

TRADE MOLESTATION, 

breach of contract, inducing, 149. 

without lawful justification, 149. 
by threats, violence and conspiracy, 149. 

warning employers of consequences is not a threat, 152. 

where people by conspiracy further their own trade 
interest, 151, 152. 
procuring breach of contract by fraud, 150. 
securing custom unlawfullj', 153. 

passing of goods as those of another, 154. 

use of one's ovm. name, 154. 
under Trade Disputes Act, 1906, 149. 

TRADE UNIONS, 

torts by members of, 149. 

Trade Disputes Act, 1906, gives complete immunity from 
actions of tort, 43, 45. 

TRAP, 

illegal to permit any danger to exist in the nature of a, 168. 
even against trespassers, 170. 

TREES, 

poisonous, overhanging a neighbour's land, 194. 

TRESPASS, 

To the person, 253. 

actionable without proof of damage, 249. 
See Assault ; Battery ; False Imprisonment. 
To lands {quare clausum Jregit), 269. 
And see also Dispossession. 
any user going beyond that authorised, 269. 

ex. gr. unreasonable use of public right of way, 269, 270. 
by straying cattle, 269. 
damages for. See Da^siages. 
definition, 269. 

driving nails into wall is, 269. 
injuries to party walls, 274. 
justification of, 270. 

carrying away of soil by one of two joint owners, 274. 
[ 27 ] V 



Index. 

TRESPASS— coHimwecf. 

To lands {qiiare dausum fregif) — coniimied. 
justification of — continued. 

in distraining for rent, 270. 

driving cattle off plaintiff's land, 270. 
executing legal process, 270. 

by grantee of easement for the purpose of 
making repairs, justifiable, 270. 
reversioner inspecting premises, 270. 
in escaping a pressing danger, 270. 
under due legal authority, 270. 
re-taking goods, 270. 
limitation of actions for, 274. 
of joint owners, 274. 

onus of proof of title lies on prima facie, trespasser, 272. 
plea of liheruni tenementum, 271. 
possession by relation back, 27.3. 
dates back to title, 273. 
necessary to maintenance of action for, 272. 
reasonable working of coal-mine by joint owner, 274. 
remedies other than by action, 275. 

distress and damage feasant, 275. 
to highways, 269, 273. 
trespassers, ab initio, 271. 

when surface and subsoil in different owners, 273. 
when two people are in adverse possession, possession 
is in persons entitled, 272. 
no actual damage required to support action for, 269. 
remedy foi', by distress dainage feasant, 275. 
To goods, etc., 281. 

action of replevin, 293. 

conversion to enforce pledge, 290. 

defendant cannot in general set up jhs tertii, 290. 

destruction of goods by bailee, 284. 

distinction between fraudulent contract and no contract, 

excessive sale by sheriff, 283. 284. 

good intention no excuse, 283. 

killing game or animals /erec naturce, 285, 286. 

kindly oflficiousness may amount to, 283. 

no remedy if animals get injvu-ed whilst trespassing, unless 

defendant used unreasonable force, 285, 286. 
no trespass if plaintiff in fault, 285. 
possession necessary to maintenance of action, 286. 
follows title, 286. 
bailee delivering goods to an unauthorised person 

revests possession in bailor, 289. 
damages for sale of goods bj^ person having a lien, 290. 
possession of finder, 290. 

prima facie proof of title, 290. 
sale by a person having a lien is a trespass, 290. 
trustee may maintain trespass for injuries to goods 

when possession actually in cestui que trust, 290. 
what possession suffices, 290. 
[ 28 ] 



Index. 

TRESPASS— cow/irtttet?. 

To goods, etc. — continued. 

purchasing goods -without title, 284. 

in marliet overt, 284. 
recaption, 292. 

shooting a trespassing dog, when allowable, 285, 286. 
stolen goods, 293. 
to animals, 283, 286. 
trespass ah initio, 288. 

in defence of property, 285. 
exercise of right, 286. 

legal authority, 286. 
self-defence, 285. 
trespasses of joint owners, 292. 
waiver of tort, 291. 

TROVER. See Wrongful Conversion. 

TRUSTEE 

may maintain trespass or conversion for injuries to goods when 
actual possession in cestui que trust, 290. 



u. 

UNDERGROUND WATER, 

man has right to pump, from subsoil under his own land, 10. 
not actionable when spitefully done to injure neighbour, 
being lawful act, 10. 

UNT'ENCED SHAFT OR QUARRY, 9. 



T7.S' MAJOR 

excuses what would otherwise be actionable, 190, 191, 192. 

VOLENTI XON FIT INJURIA, 23, 184, 186. 
doctrine of, 184. 
inapplicable to breach of statutory duty, 185. « 

situation of alternative danger, 185. 
incurring risks, 23. 
not conclusive evidence of, 186. 

VOLITION, 

how far necessary to tort, 8. 

VOLUNTEERS 

not in general entitled to recover for negligence of a party or 
his servants, 208, 209. 

[ 29 ] 



Index. 
W. 

WALL, 

party, 274. 

trespass to, by sticking nails into it, 269. 

WARRANT. See Constable. 

WATER, 

causing accumulation of, and not keeping it from escaping 
whereby another's property is injured, is actionable, 
vinless injury caused by vis major, 191-193. 
aliter, if caused by act of a third party, 192, 193. 

WATERCOURSE, 

damage not essential to an action for disturbance of, 249. 

disturbance of right to use of, 249. 

drawing off underground water, where actionable, 249, 250. 

fouling of a well, 250. 

penning back water in, 249. 

prescriptive lights in derogation of other riparian proprietors, 

250. 
right to use of surface watercourse vested in riparian proprietors, 
aliter with regard to subterranean water, 248. 247, 248. 

rights may be gained in an artificial, 248. 

WAY, 

customary right of, 251. 

obstruction of a pviblic, may be a tort, 10. 

private, 250. 
only gained by prescription or grant, 250. 
prescriptive rights of way, 249. 

private right of way distinguished from public right of, 250. 
right of, 250. 

strictly limited by terms of grant or by mode of user, 
250. 

WIFE, 

damages in action under Lord Campbell's Act, 70. 
liability of husband for torts of, 49. 

may sue for loss caused by the killing of her husband, 70. 
without joining her husband, 41. 

WINDOWS. See Light and Air. 

WORDS. See Defamation. 

WORKMEN'S COMPENSATION, 

alternative remedies, 212. 

if right to or amount of compensation disputed, 216. 

serious and wilful misconduct proved, employer not liable, 
215. 

[ 30 ] 



Index. 

WORKMEN'S COMPENSATION— co?ifin«ef/. 

liability of employer to pay compensation, 212 et seq. 
accidents — • 

" arising out of," 214. 
" in the course of," 215. 
injury by, 213. 
what is, 213. 
scale of compensation, 216. 
in the case of death, 216. 

total or partial incapacity, 213. 
what workman must show to entitle him to compensation, 
under Act of 1906, 212. 214, 215. 

to whom it applies, 215, 216. 
words " injury " and " accident," meaning of, 213. 

WRONGDOER, 

all tilings are presumed against a, 78. 

any possession sufficient to sustain trespass against a, 272, 286. 

WRONGFUL CONVERSION, 

conversion and detention, 288. 

judgment for return of specific goods, 289. 
in an action for, 288. 
is for damages only, 289. 
plaintiff need not show good title to goods as against every- 
one, 288. 
only show that he is entitled to them as 
against defendant, 288. 
proof of, 289. 

to maintain an action for, 288. 
conversions of joint owners, 292. 
definition of — 

" conversion," 281. 
" detention of goods or detinue," 281. 
" trespass," 281. 
possession follows title, 286. 

any possession suffices against a wrongdoer, 286. 
possession of tinder, 290. 

prima J.icie evidence of title, 290. 
sale by one having a lien is a conversion, 290. 
unauthorised delivery by bailee revests possession in bailor, 
possession necessary to maintenance of action for, 288. 289. 

recaption, 292. 
replevin, 293. 

restitution of stolen goods, 293. 
reversioner cannot sue for, 286, 288. 
reversioner's remedy, 286. 

subsequent conversions of lawfully obtained chattel, 289. 
waiver of tort, 291. 
what is, 281. 

conversion where damages sought, 282. 
destruction of goods by bailee, 284. 
[ ?,\ 1 



Index. 

WRONGFUL CONVERSION— con/iwHef?. 
what is — contUnied. 

detinue for return of goods, 282. 
excessive execution, 283. 

good intention no excuse for officious interference, 283. 
purchase of goods from a person not entitled, even by a 
bond fide purchaser, 284. 
from person who has obtained goods by fraud may 
or may not be a conversion, 
284. 
is convicted of obtaining the 
goods by false pretences, 285. 
of goods in market overt, 284. 
selling another's goods by mistake, however bond fide, 284. 
when defendant may set up jus tertii, 290. 



Printed at The Ballantyne Press 

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