UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY LEADING CASES UPON THE LAW OF TORTS SELECTED BY GEORGE CHASE IM PROFESSOR OF LAW IN THE NEW YORK LAW SCHOOL, NBW YORK CITY, AND DEAN OF THE LAW FACULTY SECOND EDITION ST. PAUL, MINN. WEST PUBLISHING CO. 1904 COPYRIGHT, 1891, BT WEST PUBLISHING COMPANY. COPYBIOHT, 1904, BT WEST PUBLISHING COMPANY. T 3(^ 1904 PREFACE. THIS collection of cases upon the Law of Torts is intended to supple- ment and illustrate the statements of legal principles which are set forth in the various treatises upon this subject. Object lessons, show- ing the application of principles, are as efficacious in the study of law as in the study of other branches of learning, and such lessons are afforded by the actual decisions made by the courts in specific instances. Such decisions may also exhibit the growth and development of legal doctrines. The aim has been to select the most valuable and important cases that could be found, giving a comprehensive view of tfye particular point or question discussed, and presenting the actual living law of to-day as the result of the long process of adjudication in England and in this country. Hence the volume comprises modern cases to a large extent, and in some instances these are among the most recent that have been issued. The cases are printed in the same general form in which they ap- pear in the regular reports, viz., with head-notes, statements of facts, and sometimes arguments of counsel, prefixed to the opinions. Run- ning; head-lines in bold-faced type, also, direct the attention of the reader to the principle treated of in the particular case that follows. Numerous other valuable cases are also cited after each of those that are printed in full, so that the reader can extend his researches more widely, if he so desires. These cited cases are also among the most important authorities upon the various points discussed. G. C. NEW YORK, October, 1891. NOTE TO SECOND EDITION. IN this edition cases of special value and interest that have been decided since the first edition was issued have been added to the text, or have been substituted, in some instances, for cases of less importance which the earlier edition contained. Extensive notes have also been appended to many of the cases, citing the recent authorities very fully and exhib- iting the present condition of the law upon the various topics treated. It is hoped that the value of the book will ba found much increased. G. C. NEW YOBK, October, 1904. (iii)* TABLE OF CONTENTS. General Principles, 1. No tort committed, unless a legal right or legal duty is violated, 1. The violation of a moral right or duty, unless it also amounts to a legal right or duty, does not constitute a tort, 15. Illustration of the establishment of legal rights by the common law, in the decision of "cases of novel impression," 21. Illustration of the creation of legal rights or legal duties by statute, 28. Injuria sine damno gives a right of action, 36. Ex damno sine injuria non oritur actio, 44. In some classes of cases, there must be damage sustained In order that there may be a cause of action for tort, 60. In actions of tort, damages may be awarded for the proximate, but not for the remote, consequences of the tortious act Nature of this distinction, 75. a. General principles, 75. b. Difference between a cause and a condition, 80. c. Intervening operation of a natural force, 82. d. Intervening human agent, acting instinctively or In an emergency, 84. e. Intervening human agent under other circumstances, 93. Torts, as distinguished from crimes, do not, in general, involve a wrongful intent, 118. Same principle ; lunatics liable for torts, 123. There is, however, no liability in tort for purely accidental injuries, 127. An action upon tort lies for the breach of a right or duty created by law, even though the performance of such right or duty may have been as- sumed by contract In such cases the plaintiff may either sue ex con- tractu or ex delicto, 132. In some cases a plaintiff, instead of suing ex delicto for a tort, may waive the tort and sue ex contractu, upon an implied contract, 139. So a tort, as a violation of legal duty, may involve, as one of its elements, a breach of contract, 142. In cases of contract, where no legal duty arises independent of contract, one not in privity with the defendant cannot recover against him in tort, 151. But if, in cases of contract, the law imposes a duty towards third persons who are not parties to the contract, such persons may recover in an action of tort, 157. Liability of infants for torts, 163. Co-tort-feasors ; how sued, 169. Damages not apportioned among the co-tort-feasors, 171. In general, no right of contribution exists between co-tort-feasors; exceptions, 172. Indemnity between tort-feasors, 176. Effect of a release, 178. Aiding and abetting the commission of a tort ; ratification of a tort, 181. CHASE (2o ED.) (v) ri TABLE OF CONTENTS. Assault and Battery, 185. Nature of an assault Difference between a civil and a criminal assault, 185. Effect of accompanying words indicating that there is no intent to do actual violence, 189. Nature of a battery, 191. Assault and battery Effect of consent, 193. Justifiable and excusable assaults and batteries, 196. a. Self-defense Defense of property, 196. b. Rightful expulsion by carrier of passengers, 206. c. Discipline of children, pupils, etc., 209. d. Act of public officer in performance of official duty, 212. False Imprisonment, 214. What constitutes false imprisonment, 214. Arrest upon void process, 227. 1. Liability of magistrate, 227. 2. Liability of complainant or party suing out process, 234. 3. Liability of officer making arrest, 239. Arrest upon process voidable for "error" or "irregularity," 241. Arrest upon a warrant, where a warrant is by law necessary, 247. .Arrest without warrant, 249. A. In cases of felony, 249. B. In cases of breach of the peace, 255. a. By officer, 255. b. By a private person, 259. Malicious Prosecution, 261. Elements of action, 2G1. Difference between an action for false imprisonment and one for ma- licious prosecution, 263. Malice, 264. Want of probable cause, 267. Effect of advice of counsel, 273. Termination of the proceeding, 275. Malicious prosecution of a civil action Different doctrines, 280. Malicious attachment in civil action, 287. Malicious abuse of process, 289. Conspiracy, 293. Slander and Libel, 301. L Slander, 301. A. Slander per se, 301. 1. Charge of crime, 301. 2. Charge of certain contagious diseases, 312. 3. Charge affecting a man in his office, profession, trade, employment, etc., 314. B. Slander with special damage, 322. II. Libel, 328. III. Malice in libel and slander, 337. IV. Publication, 340. V. Defense of "justification," 345. VI. Defense of "privileged communication," 354. 1. Qualified privilege, 354. 2. Absolute privilege, 375. VII. Construction of words Colloquium Innuendo, 380. VIII. Slander of title ; slander of property, 383. TABLE OF CONTENTS. Vli Trespass to Land, 388. I. What constitutes a trespass, 888. II. Trespass is an injury to the possession, 397. III. Trespass 06 initio, 400. IV. Trespass by joint tenant, 402. V. Defenses : License, necessity, etc., 404. Nuisance, 417. I. What constitutes a nuisance Prescriptive right to maintain a nui- sance Injunction to restrain, 417. II. Examples of nuisances, 430. 1. Drainage of surface waters, 430. 2. Diversion and detention of stream, 436. 3. Pollution of water, 441. 4. Noise, 445. 5. Keeping dangerous substances, 449. 6. Obstruction of highway, 453. III. Who responsible, 455. IV. Private injury from public nuisance, 463. V. Legalized nuisance, 468. VI. Abatement of nuisance, 475. Injuries by Animals, 483. Trespass to Personal Property, 489. I. What constitutes a trespass, 489. II. Is an injury to the right of possession, 494. Conversion of Personal Property, 496. I. What constitutes conversion, 496. II. Is an injury to the right of possession, 509. III. Conversion by joint owner, 513. IV. Demand and refusal as evidence of conversion, 515. When title passes in an action of trover, 523. Liability of Public Officers for Official Acts, 525. I. Judicial officers, 525. II. Ministerial officers, 539. Criminal Conversation and Seduction, 548. Negligence, 554. I. Negligence gives a cause of action when It violates a legal duty, 554. II. Liability for negligence contrasted with absolute liability, 560. III. Contributory negligence, 566. 1. General principle, 566. 2. Negligence of plaintiff remote, 570. 3. Contributory negligence of children sul juris, 572. 4. Imputation of negligence to children non sui juris Different theories, 578. a. The rule that a parent's negligence will be imputed to his child, 578. b. The rule that a parent's negligence will not be imputed to his child, 585. 5. Imputation of negligence to passenger Former English' doc- trine now overruled, 589. 6. Effect of acting in an emergency, 597. 7. Effect of acting under stress of peril to human life, 598. Till TABLE OF CONTENTS. Negligence Continued. IV. Liability of a master for the negligence of his servant, 600. V. Liability of an employer for the negligence of a contractor, 60S. VI. Liability of master to his servant, 610. Injury Causing Death, 623. Fraud and Deceit, 626. L Elements of action Fraudulent Intent, 626. 1. English rule, 626. 2. Massachusetts rule, 642. II. Fraud by silence, 645. III. False statements as to matters of opinion, 648. IV. False statements as to patent or obvious defects, 657. V. Intent that false statements be acted upon To whom they may be made, 666. VI. False statement must be acted upon and damage result, 672. Conflict of Laws in Regard to Torts, 674. CASES REPORTED. Page Adams, Forward v. (7 Wend. 204). . 314 Adams, Proctor v. (113 Mass. 376, 18 Am. Rep. 500) 407 Adams, Youngs v. (113 Mich. 199, 71 N. W. 585) 351 Almy v. Harris (5 Johns. 175) 35 Anderson v. Gouldberg (51 Minn. 294, 53 N. W. 636) 510 Apsley Rubber Co., White v. (181 Maes. 339, 63 N. E. 885) 292 Armory v. Delamirie (1 Strange, 505) 509 Atlantic & St. L. R. Co., Stearns v. (46 Me. 95) 33 Atlas S. S. Co., Wamsley v. (168 N. Y. 533, 61 N. E. 896, 85 Am. St. Rep. 699) 500 Avery, Eaton, Cole & Burnham Co. v. (83 N. Y. 31, 38 Am. Rep. 389) 666 Ayers, Carl v. (53 N. Y. 14) 270 Backhouse, Bonomi T. (El., Bl. & El. 622) 64 Bailey v. Bussing (28 Conn. 455) . . 172 Baker, Moody v. (5 Cow. 351) 109 Ballard v. Tomlinson (L. R. 29 Ch. Div. 115) 442 Baltimore City Pass. R. Co. v. Kemp (61 Md. 619, 48 Am. Rep. 134) 132 Baltimore & P. R. Co. v. Jones (95 U. S. 439, 24 L. Ed. 506) 566 Barholt v. Wright (45 Ohio St. 177, 12 N. E. 185, 4 Am. St. Rep. 535) 193 Barker v. Stetson (7 Gray, 53, 66 Am. Dec. 457) 234 Barkley v. Wilcox (86 N. Y. 140, 40 Am. Rep. 519) 430 Barry, Slayton v. (175 Mass. 513, 56 N. E. 574, 49 L. R, A. 560, 78 Am. St. Rep. 510) 167 Barter, Stilwell v. (19 Wend. 487) 352 Beach, Scribner v. (4 Denio, 448, 47 Am. Dec. 265) 196 Beavan, Webb v. (11 Q. B. Div. 609) 304 Beehler v. Daniels, Cornell & Co. (18 R. I. 563, 29 Atl. 6, 27 L. R. A. 512, 49 Am. St. Rep. 790) 558 Bell v. Miller (5 Ohio, 250) 181 Berg v. Parsons (156 N. Y. 109, 50 N. E. 957, 41 L. R. A. 391, 66 Am. St. Rep. 542) 606 CHASE (2o ED.) (i: Page Bessey v. Olllot (T. Raym. 467). ... 118 Bigaouette v. Paulet (134 Mass. 123, 45 Am. Rep. 307) 548 Bird v. Jones (7 Adol. & E. [N. S.] 742) 214 Blodgett v. Race (18 Hun, 132)... 227 Boland, Freeman v. (14 R. I. 39, 51 Am. Rep. 340) 508 Bonomi v. Backhouse (El., Bl. & El. 622) 64 Booth v. Rome, W. & O. T. R. Co. (140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552) 51 Boston & A. R. Co., Stone v. (171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794) 93 Boston & M. R. R., Hett v. (69 N. H. 139, 44 Atl. 910) 520 Boulester v. Parsons (161 Mass. 182, 36 N. E. 790) 80 Boulware v. Craddock (30 Cal. 190) 544 Bowen v. Hall (6 Q. B. Div. 333) . . 113 Bradley v. Fisher (13 Wall. 335, 20 L. Ed. 646) 525 Bradstreet, Sunderlin v. (46 N. Y. 188, 7 Am. Rep. 322) 365 Brame, Mobile Life Ins. Co. v. (95 U. S. 754, 24 L. Ed. 580) 623 Brantley, White v. (37 Ala. 430) ... 4S9 Brightman v. Inhabitants of Bristol (65 Me. 426, 20 Am. Rep. 711). . . 480 Bromage v. Prosser (4 Barn. & C. 247) 337 Bronson v. Bruce (59 Mich. 467, 26 N. W. 671, 60 Am. Rep. 307) 369 Brooklyn City R. Co., Mangam v. (38 N. Y. 455, 98 Am. Dec. 66). . 578 Brown v. Kendall (6 Gush. 292) ... 127 Brown, Lunt v. (13 Me. 236) 494 Bruce, Bronson v. (59 Mich. 467, 26 N. W. 671, 60 Am. Rep. 307) ... 369 Buchholz v. New York, L. E. & W. R. Co. (148 N. Y. 640, 43 N. E. 76) 67 Burns v. Erben (40 N. Y. 463) 249 Bussing, Bailey v. (28 Conn. 455). . 172 Byam v. Collins (111 N. Y. 143. 19 N. E. 75, 2 L. R. A. 129, 7 Am. St. Rep. 72G) 358 Campbell v. Race (7 Cush. 408, 54 Am, Dec. 728) 408 CASES REPORTED. Page Campbell T. Seaman (63 N. Y. 568, 20 Am. Eep. 567) 417 Cardival v. Smith (109 Mass. 158, 12 Am. Rep. 682) 275 Carl v. Ayers (53 N. Y. 14) 270 Carr v. Fracis Times & Co. ([1902] App. Cas. 176) 674 Castle v. Houston (19 Kan. 417, 27 Am. Rep. 127) 345 Central Park, N. & E. R. R. Co., Twomley v. (69 N. Y. 158, 25 Am. Rep. 162) 597 Chambers, Clark v. (3 Q. B. Div. 327) 100 Chambers, Dempsey v. (154 Mass. 330, 28 N. E. 279, 13 L. R. A. 219, 26 Am. St. Rep. 249) 182 Chapman v. State (78 Ala. 463, 56 Am. Rep. 42) 185 Chase v. Whitlock (3 Hill, 139)... 305 Chesapeake & O. R. Co., Nelson's Adm'r v. (88 Va. 971, 14 S. E. 838, 15 L. R. A. 583) 680 Chicago West Division R. Co. v. Rend (6 111. App. 243) 66 Chicago & R. I. R. Co., Halligan v. ' (15 111. 558) 397 City of Dixon v. Scott (181 111. 116, 54 N. E. 897) 79 City of Syracuse, McCarthy v. (46 N. Y. 194) 539 Clinton v. Myers (46 N. Y. 511, 7 Am. Rep. 373) 435 Clark v. Chambers (3 Q. B. Div. 327) 100 Cole v. Turner (6 Mod. 149) 191 Cole, Dexter v. (6 Wis. 320) 492 Collins, Byam v. (Ill N. Y. 143, 19 N. E. 75, 2 L. R, A. 129, 7 Am. St Rep. 726) ;.. 358 Combs, Lawrence v. (37 N. H. 331, 72 Am. Dec. 332) 414 Commissioners of Asbury Park, Ocean Grove Camp Meeting Ass'n v. (40 N. J. Eq. 447, 3 Atl. 168) . . 57 Commonwealth v. Donahue (148 Mass. 529, 20 N. E. 171, 2 L. R. A. 623, 12 Am. St. Rep. 591) 201 Commonwealth v. O'Malley (131 Mass. 423) 199 Congreve v. Smith (18 N. Y. 79) ... 453 Coolidge, Rice v. (121 Mass. 393, 23 Am. Rep. 279) 25 Craddock, Boulware v. (30 Cal. 190) 544 Crown Point Iron Co., Larmore v. (101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718) 554 Crow, State v. (23 N. C. 375) 189 Curtice v. Thompson (19 N. H. 471) 458 Cutter, Fresh v. (73 Md. 87. 20 Atl. 774, 10 L. R. A. 67, 25 Am. St. Rep. 575) 354 Page Danf orth, Hager T. (20 Barb. 16) . . 212 Daniel v. Giles (108 Tenn. 242, 66 S. W. 1128) 204 Daniels, Cornell & Co., Beehler v. (18 R. I. 563, 29 Atl. 6, 27 L. R. A. 512, 49 Am. St. Rep. 790) 558 Davies v. Mann (10 Mees. & W. 545) 570 Davis, Sawyer v. (136 Mass. 239, 49 Am. Rep. 27) 468 Delamirie, Armory v. (1 Strange, 505) 509 Delaware, L. & W. R. Co., Rounds v. (64 N. Y. 129, 21 Am. Rep. 597) 600 Delaware & H. Canal Co., Kirby v. (90 Hun, 588, 35 N. Y. Supp. 975) 169 Dempsey v. Chambers (154 Mass. 330, 28 N. E. 279, 13 L. R. A. 219, 26 Am. St. Rep. 249) 182 Dennis, Frome v. (45 N. J. Law, 515) 504 Derry v. Peek (L. R. 14 App. Cas. 337) 62G Devendorf, Weaver v. (3 Denio, 117) 535 Devlin, Morain v. (132 Mass. 87, 42 Am! Rep. 423) 126 Dexter v. Cole (6 Wis. 320) 492 Dole, Van Rensselaer v. (1 Johns. Cas. 279) 310 Donahue, Commonwealth v. (148 Mass. 529, 20 N. E. 171, 2 L. R. A. 623, 12 Am. St. Rep. 591) 201 Donnell, Hatch v. (74 Me. 163) 388 Dowdney, Fowler v. (2 Moody & R. 119) 308 Dowling, Fisher v. (66 Mich. 370, 33 N. W. 521) 43 Driscoll, Gilmore v. (122 Mass. 199, 23 Am. Rep. 312) 44 Dubois, Wilson v. (35 Minn. 471, 29 N. W. 68, 59 Am. Rep. 335) 385 Dunlop, Harvey v. (Hill & D. Supp. 193) 130 Dupee v. Lentine (147 Mass. 580, 18 N. E. 465) 205 Duxbury, Hunnewell v. (154 Mass. 286, 28 N. E. 267, 13 L. R. A. 733) 669 Earl, Gidney v. (12 Wend. 98) 389 Eastman, Moore v. (1 Hun, 578) . . 165 Eaton, Cole & Burnham Co. v. Av- ery (83 N. Y. 31, 38 Am. Rep. 389) 666 Eckert v. Long Island R. Co. (43 N. Y. 502, 3 Am. Rep. 721) 598 Ellenwood v. Marietta Chair Co. (158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913) 679 CASES REPORTED. XI Page Elliott, Rogers v. (146 Mass. 349, 15 N. E. 768, 4 Am. St. Rep. 316) 445 Elsemore v. Longfellow (76 Me. 128) 239 Emery v. Hapgood (7 Gray, 55, 66 Am. Dec. 459) 235 Engelhardt v. State (88 Ala. 100, 7 South. 154) 191 Engelhardt, Homer v. (117 Mass. 539) 336 Engel, Huchting v. (17 Wis. 230) . . 163 Erben, Burns v. (40 N. Y. 463) 249 Estelle, Howitt v. (92 111. 218) 515 Ferguson, Foshay v. (2 Denio, 617) 267 Fischer v. Langbein (103 N. Y. 84, 8 N. E. 251) 241 Fisher v. Dowling (66 Mich. 370, 33 N. W. 521) 43 Fisher, Bradley v. (13 Wall. 335, 20 L. Ed. 646) 525 Forward v. Adams (7 Wend. 204). . 314 Foshay v. Ferguson (2 Denio, 617) 267 Foster, Trustees of Village of Can- andaigua v. (81 Hun, 147, 30 N. Y. Supp. 686) 176 Foster Min. Co., Pantzar v. (99 N. Y. 368, 2 N. E. 24) 610 Fow v. Roberts (108 Pa. 489) 455 Fowler v. Dowdney.(2 Moody & R. 119) 308 Fracis Times & Co., Carr v. ([1902] App. Cas. 176) 674 Francis, Moore v. (121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810) 331 Freeman v. Boland (14 R. I. 39, 51 Am. Rep. 340) 508 Freeman, Pasley v. (3 Term R. 51) 71 Fresh v. Cutter (73 Md. 87, 20 Atl. 774, 10 L. R. A. 67, 25 Am. St. Rep. 575) 354 Frome v. Dennis (45 N. J. Law, 515) 504 Gibney v. State (137 N. Y. 1, 33 N. E. 142, 19 L. R. A. 365, 33 Am. St. Rep. 690) 91 Gidney v. Earl (12 Wend. 98) 389 Giles v. Simonds (15 Gray, 441, 77 Am. Dec. 373) 404 Giles. Daniel v. (108 Tenn. 242, 66 S. .W. 1128) 204 Gilman, McDonough v. (3 Allen, 264, 80 Am. Dec. 72) 460 Gilmore v. Driscoll (122 Mass. 199, 23 Am. Rep. 312) 44 Gilmore v. Newton (9 Allen, 171, 85 Am. Dec. 749) 516 Glidden, Pullen v. (66 Me. 202)... 264 Golderman v. Stearns (7 Gray, 181) 312 Goldman, Kujek v. (150 N. Y. 176, 44 N. E. 773, 34 L. R. A. 156, 55 Am. St. Rep. 670) 21 Page Gordon v. Harper (7 Term R. 9). .. 511 Gorham v. Ives (2 Wend. 534) .... 308 Gott v. Pulsifer (122 Mass. 235, 23 Am. Rep. 322) 69 Gouldberg, Anderson v. (51 Minn. 294, 53 N. W. 636) 510 Grainger v. Hill (4 Bing. N. C. 212) 289 Gramlich v. Wurst (86 Pa. 74) 9 Grigsby v. Stapleton (94 Mo. 423, 7 S. W. 421) 645 Grove v. Van Duyn (44 N. J. Law, 654, 43 Am. Rep. 412) 229 Guest v. Reynolds (68 111. 478) 1 Guille v. Swan (19 Johns. 381, 10 Am. Dec. 234) 119 Guilleaume v. Rowe (94 N. Y. 268, 46 Am. Rep. 141) 237 Gunther v. Lee (45 Md. 60, 24 Am. Rep. 504) 178 Hackett, Little v. (116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652) 589 Hager v. Danforth (20 Barb. 16).. 212 Hagget, Hobart v. (12 Me. 67, 28 Am. Dec. 159) 490 Hall, Bowen v. (6 Q. B. Div. 333) 113 Halligan v. Chicago & R. I. R. Co. (15 111. 558) 397 Hall. Murray v. (7 Man. G. & S. 441) 402 Hall, Siordet v. (4 Bing. 607) 82 Hanson, Pike v. (9 N. H. 491) 220 Hapgood, Emery v. (7 Gray, 55, 66 Am. Dec. 459) 235 Harper, Gordon v. (7 Term R. 9). . . 511 Harris, Almy v. (5 Johns. 175) ... 35 Harris, Secor v. (18 Barb. 425) 319 Harvey v. Dunlop (Hill & D. Supp. 193) 130 Harwood v. Siphers (70 Me. 464). . 247 Hatch v. Donnell (74 Me. 163) 388 Hayden, Keegan Y. (14 R. I. 175) . . 171 Heeg v. Licht (80 N. Y. 579, 36 Am. Rep. 654) 449 Heisel, Quinn v. (40 Mich. 576) 255 Hett v. Boston & M. R. R. (69 N. H. 139, 44 Atl. 910) 520 Hickey v. Morrell (102 N. Y. 454, 7 N. E. 321, 55 Am. Rep. 824). . . 648 Hill, Grainger v. (4 Bing. N. C. 212) 289 Hill Co., Pullman v. ([1891] 1 Q. B. 524) 341 Kingston v. L. P. & J. A. Smith Co. (114 Fed. 294, 52 C. C. A. 206) 6G2 Hobart v. Hagget (12 Me. 67, 28 Am. Dec. 159) 490 Hobbs v. Ray (18 R. I. 84, 25 Atl. G94) 263 Homer v. Engelhardt (117 Mass. 539) 336 Hough v. Texas & P. R. Co. (100 U. S. 213, 25 L. Ed. 612) 615 rii CASES REPORTED. Page Houston, Castle T. (19 Kan. 417, 27 Am. Rep. 127) 345 Howitt v. Estelle (92 111. 218) 515 Huchting v. Engel (17 Wis. 230) ... 163 Humphrey T. Merriam (32 Minn. 197, 20 N. W. 138) 672 Hunnewell v. Duxbury (154 Mass. 286, 28 N. E. 267, 13 L. R. A. 733) 669 Hutchinson, Litchfield v. (117 Mass. 195) 642 Hyde, Miller v. (161 Mass. 473, 37 N. E. 760, 25 L. R. A. 42, 42 Am. St. Rep. 424) 523 Illinois Cent. R. Co. v. Whittemore (43 111. 420, 92 Am. Dec. 138). .. 206 Inhabitants of Bristol, Brightman v. (65 Me. 426, 20 Am. Rep. 711). . . 480 Ireland v. McGarvish (1 Sandf. 155) 316 Ives, Gorham v. (2 Wend. 534).... 308 Jones v. Williams (11 Mees. & W. 176) 475 Jones, Baltimore & P. R. Co. v. (95 TJ. S. 439, 24 L. Ed. 506) 566 Jones, Bird v. (7 Adol. & E. [N. S.] 742) 214 Keegan T. Hayden (14 R. I. 175). . 171 Keenan v. Southworth (110 Mass. 474, 14 Am. Rep. 613) 543 Kellogg, Milwaukee & St. P. R. Co. v. (94 U. S. 469, 24 L. Ed. 256). . 75 Kemp, Baltimore City Pass. R. Co. v. (61 Md. 619, 48 Am. Rep. 134) 132 Kendall v. Stone (5 N. Y. 14) 383 Kendall, Brown v. (6 Gush. 292).. 127 Kirby v. President, etc., of Dela- ware & H. Canal Co. (90 Hun, 588, 35 N. Y. Supp. 975) 169 Kujek v. Goldman (150 N. Y. 176, 44 N. E. 773, 34 L. R. A. 156, 55 Am. St. Rep. 670) 21 Lamb v. Stone (11 Pick. 527) 15 Langbein, Fischer v. (103 N. Y. 84, 8 N. E. 251) 241 Larmore v. Crown Point Iron Co. (101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718) 554 Laverty v. Snethen (68 N. Y. 522, 23 Am. Rep. 184) 496 Lawrence v. Combs (37 N. H. 331, 72 Am. Dec. 332) 414 Leathern, Quinn v. ([1901] App. Cas. 495) 297 Lee, Gunther v. (45 Md. 60, 24 Am. Rep. 504) 178 Le Forest v. Tolman (117 Mass. 109, 19 Am. Rep. 400) 676 Page Lentine, Dupee T. (147 Mass. 580, 18 N. E. 465) 205 Licht, Heeg v. (80 N. Y. 579, 36 Am. Rep. 654) 449 Litchfield T. Hutchinson (117 Mass. 195) 642 Little v. Hackett (116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652) 589 Lombard, Merrifield v. (13 Allen, 16, 90 Am. Dec. 172) 441 Long v. Warren (68 N. Y. 426) 657 Longfellow, Elsemore v. (76 Me. 128) 239 Long Island R. Co., Eckert v. (43 N. Y. 502, 3 Am. Rep. 721) 598 Loomis, McGarry v. (63 N. Y. 104, 20 Am. Rep. 510) 582 Lowery v. Manhattan R. Co. (99 N. Y. 158, 1 N. E. 60S, 52 Am. Rep. , 12) 87 L. P. & J. A. Smith Co., Kingston v. (114 Fed. 294, 52 C. C. A. 206) 662 Lunt v. Brown (13 Me. 236) 494 Lyke, Van Leuven v. (1 N. Y. 515, 49 Am. Dec. 346) 394 Lynch v. Metropolitan El. R. Co. (90 N. Y. 77, 43 Am. Rep. 141). . 222 Lynch v. Murphy (171 Mass. 307, 50 N. E. 623) 654 McCarthy v. City of Syracuse (46 N. Y. 194) 539 McDonough v. Gilman (3 Allen, 264, 80 Am. Dec. 72) 460 McGarry v. Loomis (63 N. Y. 104, 20 Am. Rep. 510) 582 McGarvish, Ireland v. (1 Sandf. 155) 316 Mclntyre v. Sholty (121 111. 660, 13 N. E. 239, 2 Am. St. Rep. 140). . 123 McKesson, Muller v. (73 N. Y. 195, 29 Am. Rep. 123) 483 McQueen, White v. (96 Mich. 249, 55 N. W. 843) 252 Mangam v. Brooklyn City R. Co. (38 N. Y. 455, 98 Am. Dec. 66) . . 578 Manhattan R. Co., Lowery v. (99 N. Y. 158, 1 N. E. 608, 52 Am. Rep. 12) 87 Mann, Davies v. (10 Mees. & W. 545) 570 Manufacturers' Nat. Bank. Moore v. (123 N. Y. 420, 25 N. E. 1048, 11 L. R. A. 753) 375 Marietta Chair Co., Ellenwood v. (158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913) 679 Marshall v. Welwood (38 N. J. Law, 339, 20 Am. Dec. 394) 5GO Merriam, Humphrey v. (32 Minn. 197, 20 N. W. 138) 672 CASES REPORTED. xiii Page Merrifield v. Lombard (13 Allen, 16, 90 Am. Dec. 172) 441 Metropolitan El. R. Co., Lynch T. (90 N. Y. 77, 43 Am. Rep. 141). . 222 Michigan Buggy Co., Smith v. (175 111. 619, 51 N. B. 569, 67 Am. St. Rep. 242) 280 Miller v. Hyde (161 Mass. 473, 37 N. E. 760, 25 L. R. A. 42, 42 Am. St. Rep. 424) 523 Miller v. Milligan (48 Barb. 30)... 261 Miller v. Woodhead (104 N. Y. 471, 11 N. B. 57) 7 Miller, Bell v. (5 Ohio, 250) 181 Miller, Young v. (3 Hill, 21) 301 Milligan, Miller v. (48 Barb. 30). .. 261 Millward, Mulvehall v. (11 N. Y. 343) 551 Milwaukee & St. P. R. Co. v. Kel- logg (94 U. S. 469, 24 L. Ed. 256) 75 Mobile Life Ins. Co. v. Brame (95 U. S. 754, 24 L. Ed. 580) 623 Moody v. Baker (5 Cow. 351) 109 Moore v. Eastman (1 Hun, 578) ... 165 Moore v. Francis (121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810) 331 Moore v. Manufacturers' Nat. Bank (123 N. Y. 420, 25 N. E. 1048, 11 L. R. A. 753) 375 Morain v. Devlin (132 Mass. 87, 42 Am. Rep. 423) 126 Morgan v. Vale of Neath R. Co. (5 Best & S. 570, L. R. 1 Q. B. 149) 617 Morrell, Hickey v. (102 N. Y. 454, 7 N. E. 321, 55 Am. Rep. 824) . . 648 Mortin v. Shoppee (3 Carr. & P. 373) 187 Mulledy, Willy v. (78 N. Y. 310, 34 Am. Rep. 536) 28 Muller v. McKesson (73 N. Y. 195, 29 Am. Rep. 123) 483 Mulvehall v. Millward (11 N. Y. 343) 551 Munger, Terry v. (121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216, 18 Am. St. Rep. 803) 139 Murphy, Lynch v* (171 Mass. 307, 50 N. E. 623) 654 Murray v. Hall (7 Man. G. & S. 441) 402 Myers, Clinton v. (46 N. Y. 511, 7 Am. Rep. 373) 435 Myers, Stephens v. (4 Carr. & P. 349) 188 National Bank of Commerce of Ta- coma, Wade v. (114 Fed. 377) ... 285 Nelson's Adm'r v. Chesapeake & O. R. Co. (88 Va. 971, 14 S. E. 838, 15 L. R. A. 583) 680 Newkirk v. Sabler (9 Barb. 652). .. 391 Pag Newman v. Phillipsburg Horse-Car R. Co. (52 N. J. Law, 446, 19 Atl. 1102, 8 L. R. A. 842) 585 Newton, Gilmore v. (9 Allen, 171, 85 Am. Dec. 749) 516 New York Cent. & H. R. R. Co., Rich v. (87 N. Y. 382) 142 New York, L. E. & W. R. Co., Buchholz v. (148 N. Y. 640, 43 N. E. 76) 67 Ocean Grove Camp Meeting Ass'n v. Commissioners of Asbury Park (40 N. J. Eq. 447, 3 Atl. 168) 57 Oliver, Weld v. (21 Pick. 559) 513 Olliot, Bessey v. (T. Raym. 467) . . 118 O'Malley, Commonwealth v. (131 Mass. 423) 199 Osborn, Wall v. (12 Wend. 39) 493 Pantzar v. Tilly Foster Min. Co. (99 N. Y. 368, 2 N. E. 24) 610 Parsons, Berg v. (156 N. Y. 109, 50 N. E. 957, 41 L. R. A. 391, 66 Am. St. Rep. 542) 606 Parsons, Boulester v. (161 Mass. 182, 36 N. E. 790) 80 Pasley v. Freeman (3 Term R. 51) 71 Paulet, Bigaouette v. (134 Mass. 123, 45 Am. Rep. 307) 548 Pease v. Smith (61 N. Y. 477).... 121 Peek, Derry v. (L. R. 14 App. Cas. 337) 626 People v. Warren (5 Hill, 440) 546 Phillips v. Trull (11 Johns. 486). .. 259 Phillipsburg Horse-Car R. Co., Newman v. (52 N. J. Law, 446, 19 Atl. 1102, 8 L. R. A. 842) 585 Pike v. Hanson (9 N. H. 491) 220 Portland Mfg. Co., Webb v. (3 Sumn. 189, Fed. Cas. No. 17,322) 36 Prescott, Woodman v. (66 N. H. 375, 22 Atl. 456) 278 President, etc., of Delaware & H. Canal Co., Kirby v. (90 Hun, 588, 35 N. Y. Supp. 975) 169 Proctor v. Adams (113 Mass. 376, 18 Am. Rep. 500) 407 Prosser, Bromage v. (4 Barn. & C. 247) 337 Pullen v. Glidden (66 Me. 202) 264 Pullman v. Walter Hill & Co. ([1891] 1 Q. B. 524) 341 Pulsifer, Gott v. (122 Mass. 235, 23 Am. Rep. 322) 69 Quinn v. Heisel (40 Mich. 576) 255 Quinn v. Leathern ([1901] App. Cas. 495) 297 Race, Blodgett v. (18 Hun, 132). .. 227 Race, Campbell v. (7 Gush. 408, 54 Am. Dec. 728). 408 CASES REPORTED. Page Ray, Hobbs v. (18 R, I. 84, 25 Atl. 694) 263 Rend, Chicago West Division R. Co. v. (6 111. App. 243) 66 Reynolds, Guest v. (68 111. 478)... 1 Reynolds, Stitzell v. (59 Pa. 488) . . 380 Rice v. Coolidga (121 Mass. 393, 23 Am. Rep. 279) 25 Rice. Zinn v. (154 Mass. 1, 27 N. E. 772, 12 L. R. A. 288) 287 Rich v. New York Cent. & H. R. R. Co. (87 N. Y. 382) 142 Robbins, Tillson v. (68 Me. 295, 28 Am. Rep. 50) 328 Roberts v. Roberts (5 Best & S. 384) 60 Roberts, Fow v. (108 Pa. 489) 455 Rogers v. Elliott (146 Mass. 349, 15 N. E. 768, 4 Am. St. Rep. 316). .. 445 Rome, W. & 0. T. R. Co.. Booth v. (140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552) 51 Rounds v. Delaware, L. & W. R. Co. (64 N. Y. 129, 21 Am. Rep. 597) 600 Rowe, Guilleaume v. (94 N. Y. 268, 46 Am. Rep. 141) 237 Sabler, Newkirk v. (9 Barb. 652). . . 391 St. Helen's Smelting Co. v. Tipping (11 H. L. Cas. 642) 425 Salt Springs Nat. Bank v. Wheeler (48 N. Y. 492, 8 Am. Rep. 564). . 518 Sample, Walter v. (25 Pa. 275)... 273 Sawyer v. Davis (136 Mass. 239, 49 Am. Rep. 27) 468 Scott, City of Dixon v. (181 111. 116, 54 N. E. 897) 79 Scribner v. Beach (4 Denio, 448, 47 Am. Dec. 265) 196 Seaman, Campbell v. (63 N. Y. 568, 20 Am. Rep. 567) 417 Secor v. Harris (18 Barb. 425) 319 Sheehan v. Sturges (53 Conn. 481, 2 Atl. 841) 209 Sheffill v. Van Deusen (13 Gray, 304, 74 Am. Dec. 632) 340 Sholty, Mclntyre v. (121 111. 660, 13 N. E. 239. 2 Am. St. Rep. 140). . . 123 Shoppee, Mortin v. (3 Carr. & P. 373) 187 Simonds, Giles v. (15 Gray, 441, 77 Am. Dec. 373) 404 Siordet v. Hall (4 Bing. 607) 82 Siphers. Harwood v. (70 Me. 464). . 247 Six Carpenters' Case (8 Coke, 146a, 1 Smith, Lead. Cas. 62) 400 Slayton v. .Barry (175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560, 78 Am. St. Rep. 510) 167 Smith v. Michigan Buggy Co. (175 111. 619, 51 N. E. 569, 67 Am. St. Rep. 242) 280 Smith, Cardival v. (109 Mass. 158, 12 Am. Rep. 682) 275 Smith Co., Hingstqn v. (114 Fed. 294, 52 C. C. A. 200) 662 Smith, Congreve v. (18 N. Y. 79) ... 453 Smith, Pease v. (61 N. Y. 477)... 12] Snethen, Laverty v. (68 N. Y. 522, 23 Am. Rep. 184) 496 Southworth, Keenan v. (110 Mass. 474, 14 Am. Rep. 613) 543 Spencer, Williams v. (5 Johns. 352) 411 Stapleton, Grigsby v. (94 Mo. 423, 7 S. W. 421) 645 State v. Crow (23 N. C. 375) 189 State v. White (18 R. I. 473, 28 Atl. 968) 477 State, Chapman v. (78 Ala. 463, 56 Am. Rep. 42) 185 State, Engelhardt v. (88 Ala. 100, 7 South. 154) 191 State, Gibney v. (137 N. Y. 1, 33 N. E. 142, 19 L. R. A. 365, 33 Am. St. Rep. 690) 91 Stearns v. Atlantic & St. L. R. Co. (46 Me. 95) 33 Stearns, Golderman v. (7 Gray, 181) 312 Stephens v. Myers (4 Carr. & P. 349) 188 Stetson. Barker v. (7 Gray, 53, 66 Am. Dec. 457) 234 Stilwell v. Barter (19 Wend. 487). . 352 Stitzell v. Reynolds (59 Pa. 488) ... 380 Stone v. Boston & A. R. Co. (171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794) 93 Stone, Kendall v. (5 N. Y. 14) 383 Stone, Lamb v. (11 Pick. 527). i . . . 15 Sturges, Sheehan v. (53 Conn. 481, 2 Atl. 841) 209 Sunderlin v. Bradstreet (46 N. Y. 188, 7 Am. Rep. 322) 365 Swan, Guille v. (19 Johns. 381, 10 Am. Dec. 234) 119 Terry v. Munger (121 N. Y. 161. 24 N. E. 272, 8 L. R. A. 216, 18 Am. St. Rep. 803) 139 Terwilliger v. Wands (17 N. Y. 54, 72 Am. Dec. 420) 322 Texas & P. R. Co., Hough v. (100 U. S. 213. 25 L. Ed. 612) 615 Thomas v. Winchester (6 N. Y. 397, 57 Am. Dec. 455) 157 Thompson, Curtice v. (19 N. H. 471) 458 Tillett v. Ward (10 Q. B. Div. 17) 412 Tillson v. Robbins (68 Me. 295, 28 Am. Rep. 50) 32S Tilly Foster Min. Co., Pantzar v. (99 N. Y. 308. 2 N. E. 24) 610 Times & Co., Carr v. ([1902] App. Cas. 176) 674 CASES REPORTED. Page Tipping, St. Helen's Smelting Co. v. (11 H. L. Ca3. 642) 425 Tolman, Le Forest v. (117 Mass. 109, 19 Am. Rep. 400) 676 Tomlinson, Ballard v. (L. R. 29 Ch. Div. 115) 442 Truax, Vandenburgh v. (4 Denio, 464, 47 Am. Dec. 268) 84 Trull, Phillips v. (11 Johns. 486) ... 259 Trustees of Village of Canandaigua v. Foster (81 Hun, 147, 30 N. Y. Supp. 686) 176 Turner, Cole v. (6 Mod. 149) 191 Twist v. Winona & St. P. R. Co. (39 Minn. 164, 39 N. W. 402, 12 Am. St. Rep. 626) 572 Twomley v. Central Park, N. & E. R. R. Co. (69 N. X. 158, 25 Am. Rep. 162) 597 Vale of Neath R. Co., Morgan v. (5 Best & S. 570. L. R. 1 Q. B. 149) 617 Van Ankin v. Westfall (14 Johns. 233) 307 Vandenburgh v. Truax (4 Denio, 464, 47 Am. Dec. 268) 84 Van Deusen, Sheffill v. (13 Gray, 304, 74 Am. Dec. 632) 340 Van Duyn, Grove v. (44 N. J. Law, 654, 43 Am. Rep. 412) 229 Van Horn v. Van Horn (52 N. J. Law, 284, 20 Atl. 485, 10 L. R. A. 184) 293 Van Leuven v. Lyke (1 N. Y. 515, 49 Am. Dec. 346) 394 Van Rensselaer v. Dole (1 Johns. Cas. 279) 310 Wade v. National Bank of Com- merce of Tacoma (114 Fed. 377). . 285 Wall v. Osborn (12 Wend. 39) 493 Walter v. Sample (25 Pa. 275) 273 Walter Hill & Co., Pullman v. ([1891] 1 Q. B. 524) 341 Wamsley v. Atlas S. S. Co. (168 N. Y. 533. 61 N. E. 896, 85 Am. St. Rep. 699) 500 Wands, Terwilliger v. (17 N. Y. 54, 72 Am. Dec. 420) 322 Ward, Tillett v. (10 Q. B. Div. 17) 412 Warren, Long v. (68 N. Y. 426). . . 657 Warren, People v. (5 Hill, 440) 546 Washburn Iron Co., Wesson v. (13 Allen, 95, 90 Am. Dec. 181) 463 Weaver v. Devendorf (3 Denio, 117) 535 Webb T. Beavan (11 Q. B. Div. 609) 304 Webb v. Portland Mfg. Co. (3 Sumn. 189, Fed. Cas. No. 17,322) 36 Weld v. Oliver (21 Pick. 559) 513 Page Welsh v. Wilson (34 Minn. 92, 24 N. W. 327) 545 Welwood, Marshall v. (38 N. J. Law, 339, 20 Am. Dec. 394) 560 Wesson v. Washb,urn Iron Co. (13 Allen, 95, 90 Am. Dec. 181) 463 Westfall, Van Ankin v. (14 Johns. 233) 307 Wheeler, Salt Springs Nat. Bank v. (48 N. Y. 492, 8 Am. Rep. 564). . 518 White v. Apsley Rubber Co. (181 Mass. 339, 63 N. E. 885) 292 White v. Brantley (37 Ala. 430). . . 489 White v. McQueen (96 Mich. 249, 55 N. W. 843) 252 White, State v. (18 R. I. 473, 28 Atl. 968) 477 Whitlock, Chase v. (3 Hill, 139). .. 305 Whittemore, Illinois Cent. R. Co. v. (43 111. 420. 92 Am. Dec. 138). .. 206 Wilcox, Barkley v. (86 N. Y. 140, 40 Am. Rep. 519) 430 Williams v. Spencer (5 Johns. 352) 411 Williams, Jones v. (11 Mees. & W. 176) 475 Willy v. Mulledy (78 N. Y. 310, 34 Am. Rep. 536) 28 Wilson v. Dubois (35 Minn. 471, 29 N. W. 68, 59 Am. Rep. 335) 385 Wilson, Welsh v. (34 Minn. 92, 24 N. W. 327) 545 Wiman, Woods v. (122 N. Y. 445, 25 N. E. 919) 373 Winchester, Thomas v. (6 N. Y. 397, 57 Am. Dec. 455) 157 Winona & St. P. R. Co., Twist v. (39 Minn. 164, 39 N. W. 402, 12 Am. St. Rep. 626) 572 Winterbottom v. Wright (10 Mees. & W. 109) 151 Woodhead, Miller T. (104 N. Y. 471, 11 N. E. 57) 7 Woodman v. Prescott (66 N. H. 375, 22 Atl. 456) 278 Woods v. Wiman (122 N. Y. 445, 25 N. E. 919) 373 Wright, Barholt v. (45 Ohio St. 177, 12 N. E. 185, 4 Am. St. Rep. 535) 193 Wright, Winterbottom v. (10 Mees. & W. 109) 151 Wurst, Gramlich v. (86 Pa. 74)... 9 Young v. Miller (3 Hill, 21) 301 Youngs v. Adams (113 Mich. 199, 71 N. W. 585) 351 Zinn v. Rice (154 Mass. 1, 27 N. E. 772, 12 L. R. A. 288) 287 [Titles marked by a dagger (thus, t) refer to cases cited by the editor and author* Ities cited by counsel.] Pa'ge Abbott V. Bank, 175 U. S. 409, 20 Sup. Ct. 153, 44 L. Ed. 217, 20 Wash. 552, 56 Pac. 376 286 Abbott v. Blossom, 66 Barb. 353 140 Abbott v. Macfle, 2 Hurl. & C. 744, 33 Law J. Exch. 177 104 tAbrabams v. Deakin (1891) 1 Q. B. 516 226 tAbrath v. Railroad Co., 11 Q. B. D. 440; L. R. 11 App. Gas. 247 263 Absor v. French, 2 Show. 28 392, 409 Achtenhagen v. Watertown, 18 Wis. 331, 84 Am. Dec. 769 575 Acker v. Campbell, 23 Wend. 372 544 Ackerley v. Parkinson, 3 Maule & S. 411 531 tAckroyd v. Ackroyd, 3 Daly, 38 246 Acton T. Blundell, 12 Mees. & W. 324.. 59, 433 Adams v. Freeman, 9 Johns. 117, 118... 183 Adams v. Paige, 7 Pick. 542 19, 20 Adams v. Popham, 76 N. Y. 410 69 t Adams T. Richardson, 43 N. H. 212... 36 t Adams v. Rivers, 11 Barb. 390 402 Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230 193, 195 fAdams v. Young, 44 Ohio St. 80, 4 N. E. 599, 58 Am. Rep. 789 78, 79 Adamson v. Jar vis, 4 Bing. 66 175 tAdler v. Fenton, 24 How. 407, 16 L. Ed. 696 20 Adsit v. Brady, 4 Hill, 630, 40 Am. Dec. 305 539 tAhern v. Steele, 115 N. Y. 209, 210, 22 N. E. 194, 5 L. R. A. 449, 12 Am. St. Rep. 778 457, 463 tAinsworth v. Lakln, 180 Mass. 397, 62 N. E. 746, 57 L. R. A. 132, 91 Am. St. Rep. 314 565 tAlabama G. S. R. Co. v. Carroll, 97 Ala. 126, 11 South. 803, 18 L. R. A. 433, 38 Am. St. Rep. 163 678 tAlabama G. S. R. Co. v. Crocker, 131 Ala. 584, 31 South. 561 577 tAlbany City Sav. Inst. v. Burdick, 87 N. Y. 40, 49 661 tAlderson v. Maddlson, 5 Exch. Dlv. 296 20 Aldred's Case, 9 Coke, 58 450 Aldricti v. Printing Co., 9 Minn. 133 (Gil. 123) 372 tAldridge v. Stuyvesant, 1 Hall (N. Y.) 210 71 Alexander v. Alexander, 9 Wend. 141.. 302 tAlexander v. Hard, 64 N. Y. 228 400 tAlexander v. Pennsylvania Co., 48 Ohio St. 623, 30 N. E. 69 678 Page tAlexander r. Swackhamer, 105 Ind. 81, *4 N. E. 433, 5 N. E. 908, 55 Am. Rep. 180 508 t Allen T. Crofoot, 5 Wend. 507 402 Allen v. Flood (1898) A. C. 1, 108 298, 299 tAllen v. Flood (1898) A. C. 1, 106, 107 119-121, 126, 127, 153, 171-179 71, 116 tAllen v. Hillman, 12 Pick. 101 316 Allen v. State, 34 Tex. 230 ' 481 Allen v. Wright, 8 Carr. & Payne, 522.... 251 Allin v. Lumber Co., 150 Mass. 560, 23 N. E. 581, 6 L. R. A. 436 679 tAllison v. Hobbs, 96 Me. 26, 51 Atl. 245 170 tAllred v. Bray, 41 Mo. 484, 97 Am. Dec. 283 181 tAHsop v. Allsop, 5 Hurl. & N. 534.. 62, 327 tAlsop v. Lidden, 130 Ala. 548, 30 South. 401 289 tAmerican Exp. Co. v. Patterson, 73 Ind. 430 226 tAmerican Union Tel. Co. v. Middleton, 80 N. Y. 408 389, 507, 680 tAmes v. Railway, 117 Mass. 541, 19 Am. Rep. 426 138 tAmsterdam Knitting Co. v. Dean, 162 N, Y. 278, 56 N. E. 757 43 fAmy v. Sup'rs, U Wall. 136, 20 L. Ed. 101 542 Ancona v. Marks, 7 Hurl. & N. 686, 695 184 tAnderson v. Arnold's Ex'r, 79 Ky. 370 121 tAnderson v. Cowles, 72 Conn. 335, 44 Atl. 477, 77 Am. St. Rep. 310 402 tAnderson v. Gorrie (1895) 1 Q. B. 668 585 tAnderson T. How, 116 N. Y. 336, 22 N. E. 695 263, 269 Anderson v. State, 6 Baxt. 608 202 Andre v. Johnson, 6 Blackf. 375 203 tAndres v. Koppenheafer, 3 Serg. & R. 255, 8 Am. Dec. 647 304 tAndrew v. Deshler, 45 N. J. Law, 167.. 385 Andrews v. Jackson, 168 Mass. 266, 47 N. E. 412, 37 L. R. A. 402, 60 Am. St Rep. 390 655 tAndrews v. Jackson, 168 Mass. 266, 268, 47 N. E. 412, 37 L. R. A. 402, 60 Am. St. Rep. 390 655, 661! Andrews v. Ludlow, 5 Pick. 32 18 Andrews v. Vanduzer, 11 Johns. R. 38.. 353 tAngle v. Railroad Co., 151 U. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55 116 Angus v. Clifford, 2 L. R. Ch. 449 671 tAngus T. Clifford (1891) 2 Ch. 449 644 Angus v. Radin, 5 N. J. Law, 815, 8 Am. Dec. 626 396 CHASE (2o ED.) b (xvii) XV111 CASES CITED. Page tAnonymous, 80 N. Y. 26J, 19 Am. Rep. 174 304 tAnsteth v. Railroad Co., 145 N. Y. 210, 39 N. E. 708, 45 Am. St. Rep. 607 557 Antelope, The, 10 Wheat. 66, 6 L. Ed. 268 681 tAnthony v. Haney, 8 Bing. 186 394 Anthony v. Slaid, 11 Mete. (Mass.).... 290 Apgar v. Woolston, 43 N. J. Law, 67... 279 tApgar v. Woolston, 43 N. J. Law, 57.. 277 Arkwright v. Newbold, 17 Ch. Div. 301 635 Armory v. Delamirie, 1 Strange, 504... 610 Armstrong v. Railroad Co., L. R. 10 Exch. 47, 52 592 tArmstrong Co. v. Clarion Co., 66 Pa, 218, 5 Am. Rep. 368 176 tArnold v. Teel, 182 Mass. 1, 64 N. E. 413 666 Arrowsmith v. Le Mesurier, 2 N. R. 211 221 tArthur v. Grlswold, 55 N. Y. 400 669 Arundell v. White, 14 East, 216 276 Ash v. Railroad Co., 72 Md. 144, 19 Atl. 643, 20 Am. St. Rep. 461 682 tAsh v. Railroad Co., 72 Md. 144, 19 Atl. 643, 20 Am. St Rep. 461 678 Ashby v. White, 1 Salk. 21, 2 Lord Raym. 938, 953, 6 Mod. 45, Holt, 524; 1 Smith Lead. Cas. (8th Ed.) 264 17, 34, 38, 115 Ashford v. Choate, 20 U. C. C. P. 471, 3 Suth. Dam. 674 387 Ashley v. Dixon, 48 N. Y. 430, 8 Am. Rep. 559 62F Asser v. Finch, 2 Lev. 234 892 Association v. Fairhurst, 9 Exch. 422, 429 168 tAtchison, etc., R. Co. v. Parry (Kan.) 73 Pac. 105 80 tAtchison, etc., R. Co. v. Reesman, 9 C. C. A. 20, 60 Fed. 370, 23 L. R. A. 768 32 tAtkins v. Johnson, 43 Vt. 78, 5 Am. Rep. 260 178 ^Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. 764, 50 Am. Rep. 352... 78, 79 tAtkinson v. Waterworks Co., L. R. 2 Ex. D. 441 32 tAtlantlc & P. R. Co. v. Laird, 164 U. S. 393, 395, 399, 17 Sup. Ct. 120, 41 L. Ed. 485 138, 170 Attorney General T. Cleaver, 18 Ves. 211, 219 419, 421 Attorney General T. Telegraph Co., 30 Beav. 287 422 Atwater v. Tupper, 45 Conn. 144, 29 Am. Rep. 674 624 tAtwood v. Partree, 56 Conn. 80, 14 AtL 85 69 tAuchmuty T. Ham, 1 Denio, 495 171 tAustin v. Barrows, 41 Conn. 287 20 Austin v. Culpeper, Skin. 124 329 Austin v. Railroad Co., L. R. 2 Q. B. 442 137 tAustin v. Vrooman, 128 N. Y. 229, 28 N. E. 477, 14 L. R. A. 138. 234, 535 Austin's Case, 5 Rawle, 204 533 tAvery T. Halsey, 14 Pick. 174 178 Avery T. Maxwell, 4 N. H. 36, 37.... 414, 415 tAvery v. Railroad Co., 121 N. Y. 31, 24 N. B. 20 209 tAvery v. Ray, 1 Mass. 12 205 tAyer T. Ashmead, 31 Conn. 447, 83 Am. Dec. 154 180 Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132. 14 L. R. A. 398 177 Page tBabbitt T. Bank, 169 Mass. 861, 47 N. E. 1018 109 tBabcock v. Utter, 1 Abb. Dec. 27 407 Bacon v. Railroad Co., 55 Mich. 224, 21 N. W. 324, 54 Am. Rep. 372 344 Bacon v. Towne, 4 Gush. 217, 218. ...271, 276 tBacon v. Towne, 4 Cush. 217 269 Bacon T. Waters, 2 Allen, 400 276 Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105 169 Badkin v. Powell, Cowp. 476, 479 183 Bagshaw v. Seymour, 4 C. B. (N. S.) 873 671 Bailey v. Waterworks, 6 H. & N. 241.. 67 Bally v. Merrell, 3 Bulst. 95 73, 629 Baird v. Williamson, 15 C. B. (N. S.) 376 54 Baker T. Beers, 64 N. H. Iu2, 6 Atl. 35 521 Baker T. Bolton, 1 Camp. 493 624 tBaker v. Lothrop, 155 Mass. 376, 29 N. E. 643 516 tBaker v. Railroad, 118 N. C. 1015, 24 S. E. 415 571 Baldwin v. Cole, 6 Mod. 212 517 Baldwin v. Hayden, 6 Conn. 453 197, 202 Baldwin v. Weed, 17 Wend. 224 271 Balkum v. State, 40 AJa. 671 1S6 tBall T. Nye, 99 Mass. 582, 97 Am. Dec. 56 41.-, Ball T. Ray, L. R. 8 Ch. App. 467 424 tBallard v. State, 43 Ohio St. 340, 1 N. E. 76 258 Ballard T. Tomlinson, 26 Ch. Div. 194.. 59 Baltimore City Pass. R. Co. v. Kemp, 61 Md. 74 132 fBaltimore City R. Co. v. McDonnell, 43 Md. 534 577 tBaltimore Traction Co. v. Appel, 80 Md. 603, 31 Atl. 964 571 tBaltimore & O. R. Co. v. Cain, 81 Md. 87, 31 Atl. 801, 28 L. R. A. 688 260 tBaltimore & O. R. Co. v. Pumphrey, 59 Md. 390 138 Baltimore & P. R. Co. v. Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739.... 470 tBaltimore & P. R. Co. v. Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739 474 tBaltimore & P. R. Co. v. Reaney, 42 Md. 117 50 Bamford v. Turnley, 3 Best & S. 66; 31 Law J. Q. B. 286 420, 467 Bancroft v. Cambridge, 126 Mass. 438-441 468-470 Bank v. Addle, L. R. 1 H. L. Sc. 145, 162 633, 637 Bank T. Moore, 78 Pa. 407, 412, 21 Am. Rep. 24 127 Bank v. Wheeler, 48 N. Y. 492, 8 Am. Rep. 564 507 tBank v. Wheeler, 48 N. Y. 492, 8 Am. Rep. 564 508 Bankart v. Houghton, 27 Beav. 425 424 tBank of Miller v. Richmon, 64 Neb. Ill, 89 N. W. 627 270, 277 Barber v. Rollinson, 1 Cr. & M. 330; 3 Tyrwh. 266 235 tBarclay v. Abraham (Iowa) 96 N. W. 1080 60 Barclay T. Commonwealth, 26 Pa. 503, 64 Am. Dec. 715 481 tBardeh v. Crocker. 10 Pick. 383, 389.. 36 Bareham T. Hall, 22 Law T. (N. S.) 116 420, 421 CASES CITED. XIX Page Barbam's Case, 4 Rep. 20 3S1 Barker v. Bates, 13 Pick. 255, 23 Am. Dec. 678 407, 408 Barker v. Braham, 2 W. Bl. 866, 868, 3 Wils. 368, 376 183, 236, 238 Barker v. Stetson, 7 Gray, 53, 66 Am. Dec. 457 237 fBarker v. Stetson, 7 Gray, 53, 66 Am. Dec. 457 241 Barkley v. Wilcox, 19 Hun, 320 430 Barnardiston v. Soame, 6 State Tr. 1063, 1 East, 568 638 Barnes v. Hathorn, 54 Me. 125 481 Barnes v. McCrate, 32 Me. 442 26 tBarnes v. McCrate, 32 Me. 442 878 Barnes v. Martin, 15 Wis. 240, 82 Am. Dec. 670 203 Barnes v. Ward, 9 C. B. 392, 420 14 tBarnett v. Allen, 3 H. & N. 376 327 Barnett v. Reed, 51 Pa. 190, 88 Am. Dec. 574 288 tBarney v. Railroad Co., 126 Mo. 372, 28 S. W. 1069, 26 L. R. A. 847 577 fBarr v. Boyles, 96 Pa. 31 547 tBarr v. Essex Trades Council, 53 N. J. Eq. 101, 117, 30 Atl. 881 71, 117, 300 tBarr v. Moore, 87 Pa. 385, 30 Am. Rep. ' 367 331, 340 tBarr v. Post, 56 Neb. 698, 77 N. W. 123 20* tBarrett v. Palmer, 135 N. Y. 336, 31 N. E. 1017, 17 L. R. A. 720, 31 Am. St. Rep. 835 680 tBarrett v. Railroad Co., 91 Cal. 296, 27 Pac. 666, 25 Am. St. Rep. 186; 45 N. Y. 628 ISO, 577 Barren v. Alexander, 27 Mo. 530 647 Barry v. Railroad Co., 92 N. Y. 289, 44 Am. Rep. 377 556 Bartholomew v. Harwinton, 33 Conn. 408 474 Bartlett v. Gas-Light Co., 117 Mass. 533, 19 Am. Rep. 421 127 tBartlett V. Hoyt, 29 N. H. 317 512 Bartlett v. Perkins, 13 Me. 87 398 Bartley v. Richtmyer, 4 N. Y. 38, 53 Am. Dec. 338 552 Barton v. Syracuse, 37 Barb. 292; 36 N. Y. 54 540, 541 Barton v. Williams, 5 Barn. & Aid. 395 514 Barwell V. Brooks, 1 Law T. 454 423 tBascom v. Dempsey, 143 Mass. 409, 9 N. E. 744 400 Basely T. Clarkson, 3 Lev. 37 491 Bassell v. Elmore, 48 N Y. 563 387 tBassell v. Elmore, 48 N. Y. 561 327 tBassett v. Carleton, 32 Me. 553, 54 Am. Dec. 605 36 tBatchelder v. Currier, 45 N. H. 460.... 241 tBateman v. Lyall, 7 C. B. (N. S.) 638.. 62 tBath v. Metcalf, 145 Mass. 274, 14 N. B. 133,, 1 Am. St. Rep. 455 255 Battersey's Case, Winche, 48 175 Battishill v. Reed, 18 C. B. (N. S.) 696.. 424 Baum v. Clause, 5 Hill, 196 851 tBaxter v. Doe, 148 Mass. 558, 8 N. E. 415 32 Bayly v. Merrel, Cro. Jac. 386 659 Baynes v. Brewster, 2 Q. B. 384 257 tBays v. Hunt, 60 Iowa, 251, 14 N. W. 75 373 tBeach v. Hancock, 27 N. H. 223, 59 Am. Dec. 373 187 Beach v. Ranney, 2 Hill, 309, 314. .324, 325, 384 Beal T. Pinch, 11 N. T. 128-134 170, 172 Bealey v. Shaw, 6 East, 208 40, 41 tBearce v. Bass, 88 Me. 540, 34 Atl. 411, 51 Am. St. Rep. 446 373 Beard v. Murphy, 37 Vt. 99, 102, 86 Am. Dec. 693 48 tBeard T. Murphy, 37 Vt. 99, 86 Am. Dec. 693 482 Beardmore T. Tredwell, 31 Law J. Ch. 892 420 Beardsley v. Tappan, 5 Blatchf. 498, Fed. Cas. No. 1,189 368 tBeatrice Gas Co. v. Thomas, 41 Neb. 662, 59 N. W. 925, 43 Am. St. Rep. 711 445 Beauchamp v. Mining Co., 50 Mich. 163, 15 N. W. 65, 45 Am. Rep. 30 134 tBeaudette v. Gagne, 87 Me. 534, 33 Atl. 23 653 tBebinger v. Sweet, 1 Abb. N. C. 263 292 tBechel v. Express Co. (Neb.) 91 N. W. 853 269 Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 176 556 Beckwith v. Philby, 6 Barn. & Cres. 635 250 Beckwith v. Shordike, 4 Burrows, 2092.. 396 S^-X-rc 1 v. Bags&aw, 4 Hurl. & N. 537.. 671 Bedingfteld v. Onslow, 3 Lev. 209 398 tBee Pub. Co. v. Shields (Neb.) 94 N. W. 1029 372 Beeper v. Jackson, 64 Md. 593, 2 Atl. 916 355 Behling v. Pipe Lines, 160 Pa. 359, 28 Atl. 777, 40 Am. St, Rep. 724 98, 99 Behrens v. McKenzie, 23 Iowa, 333, 343, 92 Am. Dec. 428 125, 127 tBeiser v. Publishing Co. (Ky.) 68 S. W. 457 373 Belcher v. Costello, 122 Mass. 189 655 iBelcher v. Costello, 122 Mass. 189 656 Bell v. Hansley, 48 N. C. 131 194 Bell T. Josselyn, 3 Gray, 309, 63 Am. Dec. 741 49 tBell v. McGuinness, 40 Ohio St. 204, 48 Am. Rep. 673 354 Bell v. Morrison, 27 Miss. 68 172 tBell T. Railroad Co., 202 Pa. 178, 51 Atl. 600 274 Bell v. Stone, 1 Bos. & P. 331 329 tBellant v. Brown, 78 Mich. 294, 44 N. W. 326 36 tBellefontaine R. Co. v. Snyder, 24 Ohio St. 670 589 tBellefontaine & I. R. Co. v. Snyder, 18 v Ohio St. 408, 98 Am. Dec. 175 588 Bemla v. Upham, 13 Pick. 169 442 tBence v. Railroad Co., 181 Mass. 221, 63 N. E. 417 678 Benner v. Dredging Co., 134 N. Y. 156, 31 N. E. 328, 17 L, R. A. 220, 30 Am. St. Rep. 649 66 i Benner v. Dredging Co., 134 N. Y. 156, 31 N. E. 328, 17 L, R. A. 220, 30 Am. St Rep. 649 ll Bonnet v. Railroad Co., 36 N. J. Law, 225, 13 Am. Rep. 435 593 Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553 23 Bennett v. Railroad Co., 102 U. S. 577, 26 L. Ed. 235 560 IBennett v. Railroad Co., 102 U. S. 577, 26 L. Ed. 235 557 t Bennett v. Williamson, 4 Sandf. 60 837 CASES CITED. Page tBenolt T. Railroad Co., 154 N. T. 223, 48 N. E. 524 598 fBenton v. State, 59 N. J. Law, 551, 36 Atl. 1041 340, 372, 883 Bentz v. Armstrong, 8 Watts & S. 40, 42 Am. Dec. 265 432 fBenzing v. Steinway, 101 N. Y. 547, 5 N. E. 449 614 fBerger v. Gaslight Co., 60 Minn. 296, 62 N. W. 336 565 Bergmann v. Jones, 94 N. Y. 51 387 Berly v. Taylor, 5 Hill, 577, 584 140 Berry v. Fletcher, 1 Dill. 67, 71, Fed. Gas. No. 1,357 172 tBerry v. Sugar Notch Borough, 191 Pa. 345, 43 Atl. 240 82 tBeseman v. Railroad Co., 50 N. J. Law, 235, 245, 13 Atl. 164; 52 N. J. Law, 221, 20 Atl. 169 474 Besson v. Southard, 10 N. Y. 236 261, 262 tBesson v. Southard, 10 N. Y. 236 266 Beswick v. Cunden, Cro. Eliz. 520 461 Betts v. Gibbins, 2 Adol. & E. 57 175 tBickford v. Richards, 154 Mass. 163, 27 N. E. 1014, 26 Am. St. Rep. 224 163 Bicknell v. Dorion, 16 Pick. 478, 487. .276, 288 Biering v. Bank, 69 Tex. 599, 7 S. W. 90 286 tBigby v. U. S., 188 U. S. 400, 409, 23 Sup. Ct. 468, 47 L. Ed. 519 141 Bigelow v. Stearns, 19 Johns. 39, 10 Am. Dec. 189 538 fBillingsley v. White, 59 Pa. 469 495 Billiter v. Young, 6 El. & Bl. 41 517 fBinford v. Johnston, 82 Ind. 426, 42 Am. Rep. 508 109 Bird v. Brown, 4 Exch. 786, 799 183 Bird v. Holbrook, 4 Bing. 628 104, 486, 487, 556 Bird v. Randall, 3 Burrows, 1345 Ill, 385 tBisbey v. Shaw, 12 N. Y. 67 354 tBish T. Van Cannon, 94 Ind. 263 674 Bishop v. Montague, Cro. Eliz. 824 183 tBisbop T. Railroad Co., 48 Minn. 26, 60 N. W. 927 137 tBishop v. Ranney. 59 Vt. 316, 7 Atl. 820 137, 189 tBishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715 162 Bishop v. Williamson, 11 Me. 495 543 Bissell v. Gold, 1 Wend. 210, 19 Am. Dec. 480 221 Bitz v. Meyer, 40 N. J. Law, 252, 29 Am. Rep. 233 283, 286 tBixby v. Dunlap, 56 N. H. 456, 22 Am. Rep. 475 117 tBlack v. Buckingham, 174 Mass. 102, 54 N. E. 494 274 Blackman v. Simmons, 3 Car. & P. 138 485, 486 Blad v. Bamfleld, 3 Swanst. 604 677 Blades v. Higgs, 10 C. B. (N. S.) 713; 12 C. B. (N. S.) 501; 13 C. B. (N. S.) 844; 11 H. L. Cas. 621 202 tBlades v. Higgs, 11 H. L. C. 621 394 Blad's Case, 3 Swanst. 603 677 tBlaisdell v. Railroad Co., 51 N. H. 485 407 Blake v. Barnard, 9 Car. & P. 626 187 Blake v. Ferris, 5 N. Y. 48, 55 Am. Dec. 304 607, 608 Blake T. Jerome, 14 Johns. 406 393 Page tBlakeslee T. Carroll, 64 Conn. 223, 2? Atl. 473, 25 L. R. A. 106 37 Blanchard v. Baker, 8 Greenl. 253, 268, 270, 23 Am. Dec. 504 39, 41, 42 tBlanchenay v. Burt, 4 Ad. & El. (N. S.) 707 246 Blaymire v. Haley, 6 Mees. & W. 55.... 552 tBlodgett v. Race, 18 Hun, 132 229 tBlodgett v. Stone, 60 N. H. 167 43 Blood v. Railroad Corp., 2 Gray, 140, 61 Am. Dec. 444 465 tBloodgood v. Ayers, 108 N. Y. 400, 405, 15 N. E. 433, 2 Am. St. Rep. 443 59 Bloodworth v. Gray, 8 Scott, N. R. 11.. 313 tBloomfleld & R. Gaslight Co. v. Cal- kins, 62 N. Y. 386 390 fBluedorn v. Railroad Co. (Mo.) 24 S. W. 57, 60 67 Blyth v. Topham, Cro. Jac. 158 12 tBlythe v. Railroad Co., 15 Colo. 333, 25 Pac. 702, 11 L. R. A. 615, 22 Am. St. Rep. 403 84 fBoard of Trade Telegraph Co. v. Bar- nett, 107 111. 507, 47 Am. Rep. 453 389 Bobb v. Bosworth, Litt. Sel. Cas. 81 203 tBock v. Grooms (Neb.) 92 N. W. 603.... 83 tBocock v. Cochran, 32 Hun, 521 234 tBoddy v. Henry, 113 Iowa, 462, 85 N. W. 771, 53 L. R. A. 769 642, 644 tBohan v. Gaslight Co., 122 N. Y. 18, 25 N. E. 246, 9 L. R. A. 711 425 tBolin v. Railroad Co., 108 Wis. 333, 84 N. W. 446, 81 Am. St. Rep. 911 569 Bolingbroke v. Local Board, L. R. 9 C. P. 575 604 Bolivar Mfg. Co. v. Mfg. Co., 16 Pick. 241 40 Bonino v. Caledonio, 144 Mass. 299, 11 N. E. 98 206 tBonney v. King, 201 111. 47, 66 N. E. 377 , 284 Bonoml v. Backhouse, E. B. & E. 622, 654, 655; 9 H. L. Cas. 503, 513 47, 48 tBonomi v. Backhouse, 9 H. L. Cas. 503.. 66 tBoomer v. Wilbur, 176 Mass. 482, 57 N. E. 1004, 53 L. R. A. 172 609 tBooth v. Kurrus, 55 N. J. Law, 370, 26 Atl. 1013 234, 246 Booth T. Railroad Co., 63 Hun, 624, 17 N. Y. Supp. 336; 73 N. Y. 40, 29 Am. Rep. 97 52, 611, 613 tBooth V. Railroad Co., 140 N. Y. 267, 275, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552 50, 119 tBorchardt v. Boom Co., 54 Wis. 107, 11 N. W. 440, 41 Am. Rep. 12 84 jBornmann v. Star Co., 174 N. Y. 212, 219, 66 N. E. 723 335 tBorough of Bathurst v. Macpherson, L. R. 4 App. Cas. 256, 268 32 tBosi v. Herald Co., 33 Misc. Rep. 622, 68 N. Y. Supp. 898; 58 App. Div. 619, 68 N. Y. Supp. 1134 388 tBossingham v. Syck, 118 Iowa, 192, 91 N. W. 1047 655 tBoston & A. R. Co. v. Shanly, 107 Mass. 568 170 tBoston & M. R. Co. v. Small, 85 Me. 462, 27 Atl. 349, 35 Am. St. Rep. 379... 402 Bostwick v. Lewis, 2 Day, 447 2'. CASES CITED. xxi Page fBott T. Pratt, 88 Minn. 823, 23 N. W. 237, 53 Am. Rep. 47 32 fBottoms v. Railroad, 114 N. C. 699, 19 S. E. 730 588 tBoulden v. Railroad Co., 205 Pa. 264, 54 Atl. 906 684 fBoulier v. Macauley, 91 Ky. 135, 15 S. W. 60, 11 L. R. A. 550, 34 Am. St. Rep. 171 117 Boulter v. Clark, Bull. N. P. 16 194 tBourn v. Davis, 76 Me. 223 662 tBoush v. Fidelity & Deposit Co., 100 Va, 735, -52 S. E. 877 270 Bowden v. Lewis, 13 R. I. 189 478 tBowen v. Fenner, 40 Barb. 383 512 Bowen v. Hall, 6 Q. B. Div. 333 295 Bower v. Hill, 1 Bing. N. C. 549 39 tBowes T. Boston, 155 Mass. 344, 29 N. E. 633, 15 L. R. A. 365 626 Bowlsby v. Speer, 31 N. J. Law, 351, 86 Am. Dec. 216 432 Boyce v. Brockway, 31 N. Y. 490 122, 499 tBoyce v. Williams, 84 N. C. 275, 37 Am. Rep. 618 611 tBoyd v. Cross, 35 Md. 194 269, 270 tBoyd v. State, 88 Ala. 169, 7 South. 268, 16 Am. St. Rep. 31 212 tBoydell v. Jones, 4 M. & W. 446 310 tBoynton v. Stocking Co., 146 Mass. 219, 15 N. E. 507 387 fBoyson v. Thorn, 98 Cal. 578, 33 Pac. 492, 21 L. R. A. 233 117 fBoxsius T. Goblet Freres (1894) 1 Q. B. 843 344 Brabbits v. Railroad Co., 38 Wis. 289 616 Brace v. Yale, 10 Allen, 441 439 tBrackett v. Griswold, 112 N. Y. 454, 20 N. E. 376 296, 641, 674 tBradford Glycerine Co. v. Mfg. Co., 60 Ohio St. 560, 54 N. E. 528, 45 L. R. A. 658, 71 Am. St. Rep. 740 452 Bradley, Ex parte, 7 Wall. 364, 19 L. Ed. 214 527 fBradley v. Cramer, 59 Wis. 309, 18 N. W. 268, 48 Am. Rep. 511 331 Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646 231 fBradley T. Fuller, 118 Mass. 239 20 Bradley v. Gill, Lutw. 29 481 Bradley v. Poole, 98 Mass. 169, 93 Am. Dec. 144 671 tBradshaw v. Railroad Co., 135 Mass. 407, 46 Am. Rep. 481 209 Bradt v. Towsley, 13 Wend. 253 326 Brady v. Weeks, 3 Barb. 157 423," 450, 481 Brainard v. Railroad Co., 7 Gush. 506, 511 465 tBraithwaite v. Skinner, 5 M. & W. 327.. 35 tBramson's Adm'r v. Labrot, 81 Ky. 638, 50 Am. Rep. 193 577 tBrand v. Hinchman, 68 Mich. 590, 36 N. W. 664, 13 Am. St. Rep. 362 287 Brand v. Railway, L. R. 1 Q. B. 130; L. R. 2 Q. B. 223; L. R. 4 H. L. 171.. 470 tBrashear v. Traction Co., 180 Pa. 392, 36 Atl. 914 137 tBrayton v. Fall River, 113 Mass. 218, 18 Am. Rep. 470 69, 467 Brent v. Kimball, 60 111. 211, 14 Am. Rep. 35 66 Bretherton T. Wood, 3 Brod. & B. 54.... 136, 137 Page fBrettun T. Anthony, 103 Mass. 37 382 fBrewer v. Chase, 121 Mich. 526, 80 N. W. 575, 46 L. R. A. 397, 80 Am. St. Rep. 527 353, 354 Brewer v. Weakley, 2 Overt. 99 372 Brewster v. Silliman, 38 N. Y. 423 123 Brian v. Cockman, Cro. Car. 322 Ill tBrickell v. Railroad Co., 120 N. Y. 290, 24 N. E. 449, 17 Am. St. Rep. 648 596 Bricker v. Potts, 12 Pa. 200 382 Bridge v. Railroad Co., 3 Mees. & W. 244, 246 568, 570, 571 Bridge Co. v. U. S., 105 U. S. 470, 480, 26 L. Ed. 1143 474 Briggs v. Railroad Co., 28 Barb. 515 501 Bright v. Barnett Co., 88 Wis. 299, 60 N. W. 418, 26 L,. R. A. 524 162 Brightman v. Fairhaven, 7 Gray, 271.... 465 Brill v. Flagler, 23 Wend. 354 451 Brinsmead v. Harrison, L. R. 6 C. P. 584; Ex. Ch. L. R. 7 C. P. 547 179, 524 Bristol T. Burt, 7 J. R. 254 123 fBristor v. Burr, 120 N. Y. 427, 24 N. E. 937, 8 L. R. A. 710 200 British South Africa Co. v. Companhia De Mocambique [1893] App. Gas. 602, 621 679, 680 Brittaln T. Kinnaird, 1 Brod. & B. 432.. 231, 538 Broadbent v. Gas Co., 7 De Gex, M. & G. 436 422 Brock v. Copeland, 1 Esp. 203 486 tBrock v. Stimson, 108 Mass. 520, 11 Am. Rep. 390 402 tBrokaw v. Railroad & Transportation Co., 32 N. J. Law, 328, 90 Am. Dec. 659 209 Bromley v. Coxwell, 2 B. & P. 438 519 Brook v. Rawl, 4 Welsb. H. & G. 521.... 386 Brooker v. Coffin, 6 Johns. 188, 4 Am. Dec. 337 302 tBrooks v. Hodgkinson, 4 H. & N. 712.. 239 tBrostrom v. Lauppe, 179 Mass. 315, 60 N. E. 785 6 Brow v. Hathaway, 13 Allen, 239 356 tBrown v. Boom Co., 109 Pa. 57, 1 Atl. 156, 58 Am. Rep. 708 130 tBrown v. Cambridge, 3 Allen, 474 180 Brown v. Cape Girardeau, 90 Mo. 377, 2 S. W. 302, 59 Am. Rep. 28 286 Brown v. Carpenter, 26 Vt. 638, 62 Am. Dec. 603 484 Brown T. Chapman, 6 C. B. 365 235 tBrown v. Collins, 53 N. H. 442, 16 Am. Rep. 372 119, 130, 565 tBrown v. Cook, 9 Johns. 361 516 Brown T. De Groff, 50 N. J. Law, 409, 14 Atl. 219, 7 Am. St. Rep. 794 479 Brown v. Dinsmoor, 3 N. H. 103 398 Brown T. Dunham, 1 Root, 272 168 tBrown v. Hawkes (1891) 2 Q. B. 718 266 Brown v. Howe, 9 Gray, 84, 85, 69 Am. Dec. 276 127 tBrown v. Illlus, 27 Conn. 84, 71 Am. Dec. 49 69 tBrown v. Lowell, 8 Mete. 177 36 Brown v. Perkins, 12 Gray, 89 478, 482 tBrown v. Perkins, 1 Allen, 89 181, 389 Brown v. Railroad Co., 58 Me. 384 675 Brown v. Randall, 36 Conn. 66, 4 Am. Rep. 36 279 CASES CITED. Page tBrown T. Ran t Pillow v. Bushnell, 5 Barb. 156 196 Piper v. Hoard, 107 N. Y. 73, 76, 13 N. E. 626, 629, 1 Am. St. Rep. 789.... 22, 23, 25 Piper v. Pearson, 2 Gray, 120, 61 Am. Dec. 438 236 fPiper v. Pearson, 2 Gray, 120, 61 Am. Dec. 438 535 Pitts v. Lancaster Mills, 13 Mete. (Mass.) 156 439 tPittsburg, etc., R. Co. T. Gilleland, 56 Pa. 445, 94 Am. Dec. 98 84 tPittsburgh, C. & St. L. R. Co. v. Lyon, 123 Pa. 140, 16 Atl. 607, 2 L. R. A. 489, 10 Am. St. Rep. 517 209 Pixley v. Clark, 35 N. Y. 523, 91 Am. Dec. 72 451 tPlant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 9 Am. St. Rep. 330 300 Platt v. Johnson, 15 Johns. 213, 8 Am. Dec. 233 65 Pleasants v. Fant, 22 Wall. 121, 22 L. Ed. 780 569 Plumer v. Harper, 3 N. H. 92, 14 Am. Dec. 333 458 Plumer v. Robertson, 6 Serg. & R. 179.. 553 tPlummer v. State, 135 Ind. 308, 34 N. E. 968 258 Plummer v. Webb, 1 Ware, 79, Fed. Cas. No. 11,234 624 Pocock v. Moore, Ryan & Moody, 321 221 Poe v. Monford, Cros. Eliz. 620 320 fPoeppers v. Railroad Co., 67 Mo. 715, 29 Am. Rep. 518 79 Pointer v. Gill, 2 Rolle, Abr. 140 421 tPokrok Pub. Co. v. Ziskovsky, 42 Neb. 64, 60 N. W. 358 351 Polhlll v. Walter, 3 Barn. & Adol. 114 630, 631 Polkinhorn y. Wright, 8 Q. B. (N. S.) 197 202 Pollard y. Lyon, 91 U. S. 225 387 tPollard y. Lyon, 91 U. S. 225,, 237, 23 L. Ed. 308 304, 327 tPollard y. McKenney (Neb.) 96 N. W. 679, 681 656 tPollasky y. Mlnchener, 81 Mich. 280, 46 N. W. 5, 9 L. R. A. 102, 21 Am. St. Rep. 516 368 Pollett v. Long, 56 N. Y. 200 90 Pollitt y. Long, 58 Barb. 20 422 xlvi CASES CITED. Page fPollock T. Hastings, 88 Infl. 848 307 Pollock v. Lester, 11 Hare, 266 419 Pomfret v. Ricroft. 1 Saund. 321, 323, note, 3 392, 409 fPomponlo v. Railroad Co., 66 Conn. 528, 537, 34 Atl. 491, 32 L. R. A. 530, 50 Am. St. Rep. 124 557 tPonting v. Noakes (1894) 2 Q. B. 281... 9 tPope v. Boyle, 98 Mo. 527, 11 S. W. 1010 463 Popplewell v. Pierce, 10 Gush. 509 677 fPost v. Stockwell, 34 Hun, 373 172 fPost Pub. Co. v. Hallam, 8 C. C. A. 201, 59 Fed. 530 372 Pothonier v. Dawson, Holt, N. P. 383... 522 fPotter v. Casterline, 41 N. J. Law, 22 277 Potts v. Imlay, 4 N. J. Law, 330, 377, 7 Am. Dec. 603 282, 283, 286 tPottstown Gas Co. v. Murphy, 39 Pa. 257 **5 Poucher v. Blanchard, 86 N. Y. 256 238 tPouilin v. Railroad Co. (C. C.) 47 Fed. 858 138 fPowell v. Linde Co., 58 App. Div. 261, 68 N. Y. Supp. 1070, affirmed 171 N. Y. 675, 64 N. E. 1125 641 tPowers, In re, 25 Vt. 261 260 Pozzl v. Shipton, 8 Adol. & E. 963 136 Pratt v. Bogardus, 49 Barb. 89 228 Pratt v. Gardner, 2 Gush. 68, 48 Am. Dec. 652 529 tPratt v. Gardner, 2 Gush. 63, 48 Am. Dec. 652 635 tPrentice v. Geiger, 74 N. Y. 341 442 tPrentice v. Harrison, 4 Ad. & El. (N. S.) 852 246 Presbrey v. Railway, 103 Mass. 1, 6, 7.. 470 Preasey v. Wirth, 3 Allen, 191 677 fPrewitt v. Garrett, 6 Ala. 128, 41 Am. Dec. 40 178 Price v. Hewett, 8 Exch. 146 168 fPrice v. Railroad Co., 50 N. Y. 213, 10 Am. Rep. 475. 504 tPrice v. Seeley, 10 Cl. & F. 28 .'. 260 fPrice v. Water Co., ' 58 Kan. 551, 50 Pac. 450, 62 Am. St Rep. 625 577 Prideaux v. Bunnett, 1 C. B., N. S. 613 653 Priestley v. Fowler, 3 Mees. & W. 1. .153, 154 tPrinie v. Cobb, 63 Me. 200 517 fPringle v. Coal Co., 172 Pa. 438, 33 Atl. 690 51 fPrint Works v. Lawrence, 23 N. J. Law, 9; 23 N. J. Law, 590, 57 Am. Dec. 420.. 408 tProctor v. Webster, 16 Q. B. Div. 112... 375 tPrue v. Railroad Co., 18 R. I. 360, 27 Atl. 450 571 tPrussak v. Hutton, 30 App. Div. 66, 51 N. Y. Supp. 761 452 tPryse v. McGuire, 81 Ky. 608 666 tPullman Car Co. v. Bluhm, 109 111. 20, 50 Am. Rep. 601 138 tPullman Palace Car Co. v. Laack, 143 111. 242, 32 N. E. 285, 18 L. R. A. 215... 78 fPurcell v. Sowler, L, R. 2 C. P. D. 218. . 373 fPursell v. Stover, 110 Pa. 43, 20 Atl. 403 407 Putnam v. Payne, 13 Johns. 312 484 Putnam v. Railroad Co., 55 N. Y. 108, 14 Am. Rep. 190 90 Putnam v. Wise, 1 Hill, 234, 240, 37 Am. Dec. 309 140 Putnam v. Wyley, 8 Johns. 432, 5 Am. Dec. 346 495 Page Quarman r. Burnett, Mees. ft W. 499.. 59C tQuimby v. Lowell, 89 Me. 547, 36 Atl. 902 141 Quincy Canal v. Newcomb, 7 Mete. (Mass.) 276, 283, 39 Am. Dec. 778 46i tQuinn v. Insurance Co., 116 Iowa, 522, 90 N. W. 849 331 tQuinn v. Lsatham (1901) A. C. 495, 510, 535 71, 116 tQuinn v. Leatham (1901) A. C. 495, 509, 510, 535 116, 117 tQuinn v. O'Gara, 2 E. D. Smith, 388 327 tQuinn v. Power, 87 N. Y. 535, 41 Am. Rep. 392 606 tRachmel v. Clark, 205 Pa. 314, 64 Atl. 1027, 62 L. R. A. 959 577 tRackliff v. Greenbush, 93 Me. 104, 44 Atl. 375 35 Radenhurst v. Coate, 6 Grant, Ch. 140... 424 Railroad Co. v. Archer, 6 Paige, 83 422 Railroad Co. v. Blocher, 27 Md. 277, 287.. 137 Railroad Co. v. Crudup, 63 Miss. 291 682 Railroad Co. v. Doyle, 60 Miss. 977 682 Railroad Co. V. Flagg, 43 111. 364, 92 Am. Dec. 133 207 Railroad Co. v. Gladmon, 15 Wall. 401, 21 L. Ed. 114 575 Railroad Co. v. Hickey, 166 U. S. 521, 17 Sup. Ct. 661, 41 L. Ed. 1101 96 Railroad Co. v. Hope, 80 Pa. 373, 21 Am. Rep. 100 77 Railroad Co. v. Hummell, 44 Pa. 378, 84 Am. Dec. 457 13 tRailroad Co. v. Jones, 111 Pa. 204, 2 Atl. 410, 56 Am. Rep. 260 467 Railroad Co. v. Keely's Adm'r, 23 Ind. J 133 624 Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256 96 Railroad Co. v. Kerr, 62 Pa. 353, 1 Am. Rep. 431 76, 79 Railroad Co. v. Lewis, 24 Neb. 848, 40 N. W. 401, 2 L. R. A. 67 683 Railroad Co. v. Page, 22 Barb. 130 223 Railroad Co. v. Parks, 18 111. 460, 68 Am. Dec. 562 208 Railroad Co. v. Salmon, 39 N. J. Law, 299 97 tRailroad Co. v. Schwindling, 101 Pa. 258, 47 Am. Rep. 706 14 tRailroad Co. v. Skillman, 39 Ohio St. 444 209 Railroad v. Sprayberry, 8 Baxt 341, 35 Am. Rep. 705 682 Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745 573 tRailroad Co. T. Truman, L. R. 11 App. Cas. 45 474 Railroad Co. v. Yarwood, 15 111. 468 569 Railway Co. v. Broom, 6 Exch. 314, 326 327 183, 184 Railway Co. v. Donahoc, 56 Tex. 162 184 Railway Co. v. Eininger, 114 111. 79, 29 N. E. 196 575 tRaisler v. Oliver, 97 Ala. 710, 12 South. 238, 38 Am. St. Rep. 213 543 tRamsey v. Wallace, 100 N. C. 75, 6 S. E. 638 642 Randall v. Brigham, 7 Wall. 523, 19 L. Ed. 285 530 Randall v. Cleaveland, 6 Conn. 328 398 CASES CITED. xlvii Page Randall T. Haselton, 12 Allen, 412 147 t Randall v. Hazelton, 12 Allen, 412, 414.. 20, 296 tRandlette v. Judkins, 77 Me. 114, 52 Am. Rep. 747 25 tRankin v. Ekel, 64 Cal. 446, 1 Pac. 895.. 545 Rapson v. Cubitt, 9 Mees. & W. 710 153 fRathke v. Gardner, 134 Mass. 14 435 Ravenga v. Mackintosh, 2 Barn. & C. 693 273 tRawley v. Brown, 18 Hun, 456 618 Rawstron v. Taylor, 11 Exch. 309 433 Ray v. Law, Fed. Gas. No. 11,592 286 tRaycroft v. Taynt,or, 68 Vt. 219, 223, 36 Atl. 53, 33 L, R. A. 225, 54 Am. St. Rep. 882 71, 117 fRaymond v. Yarrington, 96 Tex. 443, 73 S. W. 800, 62 L. R. A. 962 117 fRaymond Syndicate v. Guttentag, 177 Mass. 562, 59 N. E. 446 512 Rayne v. Taylor, 14 La. Ann. 406 351 tRaynsford v. Phelps, 43 Mich. 342, 5 N. W. 403, 38 Am. Rep. 189 642 tRead v. Society (1902) 2 K. B. 732, 738, 739 116, 118, 300 Read v. Nichols, 118 N. Y. 224, 23 N. E. 468, 7 L. R. A. 130 96, 99 tReade v. Sweetzer, 6 Abb. Pr. (N. S.) 9 373 Rearick v. Wilcox, 81 111. 77, 81 372 tRedding v. Wright, 49 Minn. 322, 51 N. W. 1056 666 Redman v. Redman, 1 Vern. 348 25 Reg. v. Boden, 1 Car. & K. 395, 397 203 Reg. v. Calllngwood, 2 Ld. Raym. 1116... 112 Reg. v. Cohen, 2 Denison, Cr. Gas. 249.. 202 Reg. T. Haines, 2 Car. & K. 368, 371 160 Reg. v. Hemmings, 4 Fost. & F. 50 203 Reg. v. James, 1 Car. & K. 530 187 Reg. v. Mabel, 9 Car. & P. 474 257 Reg. v. Parnell (1881) 14 Cox, C. C. 508.. 300 Reg. v. Rodway, 9 Car. & P. 784 202 Reg. v. St. George, 9 Car. & P. 483 187 Reg. v. Slowly, 12 Cox, Crim. Cas. 269.... 202 Reg. v. Swindall, 2 Car. & K. 232, 233.. 160 Reg. v. Thompson, Leigh & C. 225 202 Reg. v. Toohy, 2 Ld. Raymond, 130 250 Reid v. Gifford, Hopk. Ch. 416 422 Reiper v. Nichols, 31 Hun, 491 96 tReisert v. New York, 174 N. Y. 196, 66 N. E. 731 60 tReock v. Newark, 33 N: J. Law, 129 36 tReuck v. McGregor, 32 N. J. Law, 70... 252 Revis v. Smith, 18 C. B. 126 26 Rex . Creevey, 1 Maule & S. 273 375 Rex . Cross, 2 Car. & P. 483 472 Rex . Harvey, 2 Barn. & C. 257 334 Rex . Home, Cowp. 684 381 Rex . Huggins, 2 Ld. Raym. 1583 395 Rex . Milton, Moody & M. 107 202 Rex . Pappineau, 1 Strange, 686 481 Rex . Pease, 4 Barn. & Adol. 30 470 Rex . White, 1 Burrows, 337 421, 451 Rex . Williams, 6 Car. & P. 390 202 f Reynolds v. Fitzpatrick (Mont.) 72 Pac. 510 511 tReynolds v. Pierson, 29 Ind. App. 273, 64 N. E. 4S4 87 Reynolds v. Shuler, 5 Cow. 325 492 tRhinehart v. Whitehead, 64 Wis. 42, 24 N. W. 401 181 Rhodes v. Dunbar, 57 Pa. 274, 290, 98 Am. Dec. 221 98, 99 Page tRloe T. Albee, 164 Mass. 88, 41 N. B. 122 117 Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53 168, 169 Rice v. Coolidge, 121 Mass. 393, 23 Am. Rep. 279 378 Rice T. Day, 34 Neb. 100, 51 N. W. 464.. 286 tRlce v. Paper Co., 174 N. Y. 385, 66 N. K. 979, 62 L. R. A. 611, 95 Am. St. Rep. 585 617 tRichardson v. Noble, 77 Me. 390 656 Richardson v. Railroad, 25 Vt. 465, 471, 60 Am. Dec. 283 48, 49 Richardson T. Railroad Co., 98 Mass. 85.. 677, 682 tRichardson v. Silvester, L. R. 9 Q. B. 34 , 669 Rlchart v. Scott, 7 Watts, 460, 462, 32 Am. Dec. 779 48, 49 tRlchmond Traction Co. r. Martin's Adm'x (Va.) 45 S. E. 886 569 tRicker v. Freeman, 50 N. H. 420, 9 Am. Rep. 267 87 tRiddell v. Thayer, 127 Mass. 487 382 tRiddle y. McGinnis, 22 W. Va. 253 553 fRideout v. Knox, 148 Mass. 368, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560 6 tRider v. Kite, 61 N. J. Law, 8, 38 Atl. 754 277 tRider v. Railroad Co., 171 N. Y. 139, 63 N. E. 836, 58 L. R. A. 125 672 Rider v. White, 65 N. Y. 54, 22 Am. Rep. 600 485 Riding v. Smith, 1 Exch. Dlv. 91 296 tRidley v. Perry, 16 Me. 21 352 Riford v. Montgomery, 7 Vt. 418 517 Rigaut v. Gallisard, 7 Mod. 78, 2 Ld. Raym. 809 550 tRiley v. Bell, 120 Iowa, 52, 95 N. W. 170 666 Rlley v. Water Power Co., 11 Gush. 11 617 tRing v. Cohoes, 77 N. Y. 83, 33 Am. Rep. 574 100 Ring v. Wheeler, 7 Cow. 725 378 tRipley v. McBarron, 125 Mass. 272. .263, 266 Ripley v. Severance, 6 Pick. 474, 17 'Am. Dec. 397 18 Risney v. Selby, 1 Salk. 211 73, 629 tRitchie v. Waller, 63 Conn. 155, 28 Atl. 29, 27 L. R. A. 161, 38 Am. St. Rep. 361 606 Roath v. Driscoll, 20 Conn. 533, 52 Am. Rep. 352 59 Robbins v. Mount, 4 Rob. 553 166 fRobbins v. Robbins, 133 N. Y. 697, 30 N. E. 977 277 Roberts T. Clarke, 18 Law T. (N. S.) 49.. 420 Roberts T. Johnson, 58 N. Y. 613 170 tRoberts v. Johnson, 68 N. Y. 618 170 tRoberts T. Roberts, 5 B. & S. 384 327 tRoberts v. Rose, 4 H. & C. 103 482 tRobertson v. Coal Co., 172 Pa. 566, 33 Atl. 706 51 Robinson v. Burleigh, 5 N. H. 225 621 Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713 539 tRobinson r. Cone, 22 Vt. 214, 64 Am. Dec. 67 588 tRobinson v. Jones, 4 L. R. Ir. 391 344 Robinson v. State, 31 Tex. 170 187 tRochester v. Anderson, 1 Bibb, 428 205 tRoddy v. Railroad Co., 104 Mo. 234, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333 156 xlviii CASES CITED. Page tRodgert T. Lees. 140 Pa. 475, 21 Atl. 399, 12 L. R. A. 216, 23 Am. St. Rep. 250. .557. 577 fRodgers v. Railroad Co., 67 Cal. 607, 8 Pac. 377 84 tRoe v. Campbell, 40 Hun, 49 123 Roe v. Railway Co., 7 Exch. 36, 42, 43 184 Roemer v. Striker, 142 N. Y. 134, 36 N. E. 808 607 Rogers v. Clifton, 3 Bos. & P. 587 356 fRogers v. Cox, 66 N. J. Law, 432, 50 Atl. 143 180 fRogers v. Manufacturing Co., 144 Mass. 198, 11 N. E. 77, 59 Am. Rep. 68 614 Rogers v. Spence, 13 Mees. & W. 571, 581 202 tRohan v. Sawin, 5 Gush. 281 255 Root v. King, 7 Cow. 613, 632 351, 572 Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654 423 Ros& v. Johns, 5 Burr. 2825 519 Ross v. Johnson, 5 Burrows, 2825 507 Ross v. Norman, 5 Exch. 359 276 Roswell v. Prior, 12 Mod. 635 462 tRothmiller v. Stein, 143 N. Y. 581, 591, 38 N. E. 718, 720, 721, 26 L. R. A. 148... 648 Rounds v. Railroad Co., 64 N. Y. 129, 21 Am. Rep. 597 226 tRousey v. Wood, 47 Mo. App. 465 547 Roussin v. Benton, 6 Mo. 592 398 tRowell T. Chase, 61 N. H. 135 642, G44 fRowen v. Railroad Co., 59 Conn. 364, 21 A. 1073 569 Rowland's Case (1851) 5 Cox, C. C. 436... 299 tRoy v. Goings, 112 111. 656 '274 Rubber Co. v. Adams, 23 Pick. 256 660 tRuble v. Bunting (Ind. App.) 68 N. E. 1041 310 Ruble v. Turner, 2 Hen. & M. 38 180 Ruckley v. Kiernan, 7 Ir. C. L. 75 357 Rudder v. Koopmann, 116 Ala. 332, 22 South. 601, 37 L. R. A. 489 99 Ruggles v. Lesure, 24 Pick. 190 406 jRundell T. Kalbfus, 125 Pa. 123, 17 Atl. 238 296 Rung v. Shoneberger, 2 Watts, 23, 26 Am. Dec. 95 478 tRunge v. Brown, 23 Neb. 817, 34 N. W. 660 74 Runkle T. Meyer, 3 Yeates, 518, 2 Am. Dec. 393 330 tRussell v. Morgan (R. I.) 52 Atl. 809.... 277 Russell v. Richards, 10 Me. 429, 25 Am. Dec. 254; 11 Me. 371, 26 Am. Dec. 532.. 405 Russell v. Shuster, 8 Watts & S. 309 258 Russen v. Lucas, 1 C. & P. 153 221 Rust v. Low, 6 Mass. 94, 99, 100 414, 415 Ruter v. Foy, 46 Iowa, 132 196 tRuth v. St. Louis Transit Co., 98 Mo. App. 1, 71 S. W. 1055 263 Rutherford v. Holmes, 66 N. Y. 370 244 fRutherford v. Paddock, 180 Mass. 289, 293, 62 N. E. 381, 91 Am. St. Rep. 282 304, 353 Ryan v. Railroad Co., 35 N. Y. 210, 91 Am. Dec. 49 76, 79 tRyan v. Tower, 128 Mich. 463, 87 N. W. 644, 55 L. R. A. 310, 92 Am. St. Rep. 481 577 tRyerson v. Bathgate, 67 N. J. Law, 337, 51 Atl. 708, 57 L. R. A. 307 657 tRylands v. Fletcher, L. R. 3 H. L. 330 565 Ryppon v. Bowles, Cro. Jac. 373 462 tSabre v. Mott (C. C.) 88 Fed. 780. 203 Page tSaddler v. Alexander, 56 S. W. (Ky.) 618 S tSadgrove v. Hole (1901) 2 K. B. 1 344 tSt. John v. Antrim Co., 122 Mich. 68, 80 N. W. 998 141 tSt. Paul Water Co. v. Ware, 16 Wall. 566, 21 L. Ed. 485 609 tSswtsbury v. Herchenroder, 106 Mass. 458, 8 Am. Rep. 354 84 Salkwell v. Milwarde, 26 Hen. VI. c. 23; 10 Edw. IV. c. 7 415 Saltus v. Everett, 20 Wend. 267, 32 Am. Dec. 541 122 Salvin v. Coal Co., L. R. 9 Ch. App. 705 418 Sampson v. Smith, 8 Sim. 272 421 Samuel v. Payne, Doug. 358 250 tSandeen v. Railroad Co., 79 Mo. 278 141 Sanderson v. Baker, 2 W. Bl. 832, 3 Wils. 309 183 Sanderson v. Caldwell, 45 N. Y. 405, 6 Am. Rep. 105 334 tSanderson v. Caldwell, 45 N. Y. 398, 6 Am. Rep. 105 310, 319 tSandford v. Clarke, 21 Q. B. Div. 398... 463 tSandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151 241 Sanford v. Railroad Co., 23 N. Y. 343, 80 Am. Dec. 286 605 tSanguinetti v. Pock, 136 Cal. 466, 69 Pac. 98, 89 Am. St. Rep. 169 435 Sargent v. Gile, 8 N. H. 325, 331 521, 522 Sarjeant v. Blunt, 16 Johns. 74 498 Saunders v. Newman, 1 Barn. & Aid. 258 41 tSauter v. Railroad Co., 66 N. Y. 50, 23 Am. Rep. 18 137 tSavacool v. Boughton, 5 Wend. 170, 21 Am. Dec. 181 240 Savage v. Brewer, 16 Pick. 453, 28 Am. Dec. 255 276, 288 Savage v. Stevens, 126 Mass. 207 665 fSavannah, F. & W. Ry. Co. v. Beavers, 113 Ga. 398, 39 S. E. 82, 54 L. R. A. 314. . 577 Savile v. Jardine, 2 H. Bl. 532 308 tSaville v. Welch, 58 Vt. 683, 5 Atl. 491.. 14i Sayles v. Briggs, 4 Mete. 421, 426 276 tScheffer v. Railroad Co., 105 U. S. 249, 26 L. Ed. 1070 138 tSchlitz v. Brewing Co., 57 Minn. 303, 59 N. W. 188 617 fSchmuck v. Hill (Neb.) 96 N. W. 158.... 341 tSchneider v. Railroad Co., 133 N. Y. 583, 30 N. E. 752 598 tSchoepflin v. Coffey, 162 N. Y. 12, 56 N. E. 502 327 Schroyer v. Lynch, 8 Watts, 453 543 tSchubert v. Clark Co., 49 Minn. 331, 51 N. W. 1103, 15 L. R. A. 818, 32 Am. St. Rep. 559 162 tSchultz v. Bower, 57 Minn. 493, 59 N. W. 631, 47 Am. St. Rep. 630 50 tSchultz v. Byers, 53 N. J. Law, 442, 22 Atl. 514, 13 L. R. A. 569, 26 Am. St. Rep. 435 61 tSchumaker v. Mather, 133 N. Y. 590, 30 N. E. 755 656, 661 tSchumaker v. Railroad Co., 46 Minn. 39, 48 N. W. 559, 12 L. R. A. 257 80, 100 tScotland, The, 105 U. S. 24, 29, 26 L. Ed. 1001 678 tScott v. Bank, 72 Pa, 471, 13 Am. Rep. 711 65 Scott v. Bay, 3 Md. 431 ft CASES CITED. xlix Page Scott v. Dock Co., 3 Hurl. & C. 596 664 tScott v. Eldridge, 154 Mass. 25, 27 N. E. 677, 12 L. R. A. 379 258 tScott v. Fishblate, 117 N. C. 265, 23 S. E. 436, 30 L.. R. A. 696 535 tScott v. Grover, 56 VL 499, 48 Am. Rep. 814 416 Scott v. Rogers, 31 N. Y. 676 498 Scott v. Scott, 1 Cox, 378 25 Scott v. Shepherd, 2 Black. R. 892; 3 Wils. 403, 2 W. Bl. 892 77, 85, 87, 90, 102, 108, 120, 494 Seaman v. Cuppledick, Owen, 150 197, 202 Seaman v. Netherclift, 1 C. P. Div. 540.. 26 tSearls v. Viets, 2 Thomp. & C. 224 222 Secretary of State v. Sahaba, 13 Moore, P. C. 22, 86 183 Seely v. Blair, Wright (Ohio) 358, 683.... 372 Seibert v. Price, 5 Watts & S. 438, 40 Am. Dec. 525 268 tSeifter v. Railroad Co., 169 N. Y. 254, 62 N. E. 349 138 tSelp v. Deshler, 170 Pa. 334, 32 Atl. 1032 341 tSellman v. Wheeler, 95 Md. 751, 54 Atl. 512 181 tSemayne's Case, 5 Coke, 91a 546 Seneca Road Co. v. Railroad Co., 5 Hill, 170 87 tSeneca Road Co. T. Railroad Co., 6 Hill, 170, 176 44 Severy v. Nickerson, 120 Mass. 306, 21 Am. Rep. 514 557 Seyd v. Hay, 4 T. R. 260 519 tShackell v. Rosier, 2 Bing. N. C. 634... 178 tShade v. Creviston, 93 Ind. 591 655 fShafer v. Ahalt, 48 Md. 171, 30 Am. Rep. 456 327 Sharp v. Powell, L. R. 7 C. P. 253 107 tShaver v. Edgell, 48 W. Va. 502. 37 S. E. 664 181 Shaw v. Coffin, 58 Me. 254, 4 Am. Rep. 290 ". 168 fShaw v. Kaler, 106 Mass. 448 611 Shay v. Thompson, 59 Wis. 540, 18 N. W. 473, 48 Am. Rep. 538 195 tShea v. Gurney, 163 Mass. 184, 39 N. E. 996, 47 Am. St. Rep. 446 657 tSheehan v. Flynn, 59 Minn. 496, 61 N. W. 462, 26 L. R. A. 632 434 tSheldon v. Hill, 33 Mich. 171 241 tShelton v. Healy, 74 Conn. 265, 50 Atl. 742 655 Shelton v. Nance, 7 B. Mon. 128 330 tShepard v. Merrill, 13 Johns. 475 352 Shields v. Yonge, 15 Ga. 349, 60 Am. Deo. 698 624 Shingleton v. Smith, Lutw. 1481, 1483 202 tShlpley v. Edwards, 87 Iowa, 310, 54 N. W. 151 205 Shipley v. Todhunter, 7 Car. ft P. 680.... 330 tShippy T. Au Sable, 85 Mich. 280, 48 N. W. 584 589 tShovlin v. Comm., 106 Pa. 369 214 Shrieve v. Stokes, 8 B. Mon. 453, 48 Am. Dec. 401 48 Shultz v. Chambers, 8 Watts, 300 381 Shurtleff v. Parker, 130 Mass. 293, 39 Am. Rep. 454 98 Shury v. Piggot, 3 Bulst. 339, Poph. 166.. 41 Sikes v. Johnson, 16 Mass. 389 164, 168 CHASE (2o ED.) d Page Simar v. Canaday, 53 N. Y. 306, 13 Am. Rep. 623 653 Simpson T. Hornbeck, 3 Lans. 53 243 t Simpson v. Hornbeck, 3 Lans. 63 246 tSinger Mfg. Co. v. King, 14 R. I. 611.... 622 Skinner v. Powers, 1 Wend. 451 353 fSkinner v. Powers, 1 Wend. 451 352 tSlagle v. Goodnow, 45 Minn. 531, 48 N. W. 402 65C tSlater v. Mersereau, 64 N. Y. 138.... 100, 171 Slaughter's Adm'r v. Gerson, 13 Wall. 379-383, 20 L. Ed. 627 660, 664 fSlaughter's Adm'r v. Gerson, 13 Wall. 379, 20 L. Ed. 627 661 tSleight T. Leavenworth, 5 Duer, 122... 239 tSloggy v. Dilworth, 38 Minn 179, 36 N. W. 451, 8 Am. St. Rep 656 ' 459 fSmall v. McGovern, 117 Wis. 608, 94 N. W. 651 266 tSmedley v. Soule, 125 Mich. 192, 84 N. W. 63 382 Smelting Co. v. Tipping, 11 H. L. Cas. 642 447 Smith v. Benson, 1 Hill, 176 405 Smith v. Boston, 7 Gush. 254 465 tSmith v. Brooklyn, 18 App. Div. 340, 46 N. Y. Supp. 141; 160 N. Y. 357, 54 N. E. 787, 45 L. R. A. 664 60 Smith v. Buggy Co., 175 111. 619, 51 N. E. 569, 67 Am. St Rep. 242; 66 111. App. 516 280, 286 tSmith v. Burrus, 106 Mo. 94, 16 S. W. 881, 13 L. R. A. 59, 27 Am. St. Rep. 329 287, 372 Smith v. Chadwick, 20 Ch. Div. 27, 44, 67; L. R. 9 App. Cas. 187, 190.. 635, 636, 641 Smith v. Condry, 1 How. 28, 17 Pet. 20, 11 L. Ed. 35 677 tSmith v. Condry, 1 How. 28, 11 L. Ed. 35 678 Smith v. Docks Co., L. R. 3 C. P. 326 556 tSmith v. Faxon, 156 Mass. 589, 31 N. E. 687 84 tSmith v. Foran, 43 Conn. 244, 21 Am. Rep. 647 178 tSmith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 Am. St. Rep. 485 394 Smith v. Hintrager, 67 Iowa, 109, 24 N. W. 744 283 Smith v. Howard, 28 Iowa, 51 26 tSmith v. Johnson, 76 Pa. 191 71 Smith v. Kenrick, 7 C. B. 515 64 tSmith v. Leaven worth, 15 Kan. 81 67 Smith v. Lewis, 3 Johns. 157, 3 Am. Dec. 469 27 Smith v. Lozo, 42 Mich. 6, 3 N. W. 227.. 183 Smith v. Martin, 2 Saund. 400 49 tSmith v. Moore, 74 Vt 81, 52 Atl. 320... 307 tSmith v. Nippert, 76 Wis. 86, 44 N. W. 846, 20 Am. St. Rep. 26 71 Smith v. Pelah, 2 Strange, 1264 485, 486 tSmith v. Railroad, 114 N. C. 728, 19 S. E. 863, 923, 25 L. R. A. 287 571, 572 Smith v. Richardson, Wllles, 24 338 Smith v. Shepherd, Abbott, Shipp. (4th Ed.) pp. 263, 269, pt. 3, c. 4 83 tSmith v. Smith, 110 Mass. 302; 43 N. H. 536 141, 389 Smith v. Spooner, 3 Taunt. 254 384 tSmith v. Stewart, 5 Pa. 372 301 Smith T. Taylor, 1 Bos. & P. (N. R.) 196 320 1 CASES CITED. Page Smith T. Thackerah, L. R. 1 C. P. 564... 48 tSmith v. Thackerah, L. R. 1 C. P. 564. . 50 Smith v. Tonstall, Carth. 3 19, 20 tSmith v. Tripp, 13 R. L 152 32 Smiths v. McConathy. 11 Mo. 517 481 tSmurthwaite v. Publishing Co., 124 Mich. 377, 83 N. W. 116 372 tSnag y. Gee, 4 Coke, 16a 311 tSnead T. Bonnoil, 166 N. Y. 325, 59 N. E. 899 255 tSnedeker v. Snedeker, 164 N. Y. 58, 58 N. E. 4 626 fSnell v. Snow, 13 Mete. 278, 46 Am. Dec. 730 382 Snyder v. Andrews, 6 Barb. 43 332 tSohn v. Cambern, 106 Ind. 302, 6 N. E. 813 467 tSolinsky v. Bank, 85 Tenn. 368, 4 S. W. 836 546 Solomon v. Vintners' Co., 4 H. &. N. 585, 599, 602 49 Soltau v. De Held, 2 Sim. (N. S.) 133.. 447, 467 tSoltau v. De Held, 2 Sim. (N. S.) 133... 448 Somerville v. Hawkins, 10 C. B. 583 356 Sommer v. Wilt, 4 Serg. & R. 24 274 tSorenson v. Dundas, 50 Wis. 335, 7 N. W. 259 220 tSorgenfrei v. Schroeder, 75 111. 397 205 tSouter v. Codman, 14 R. I. 119, 51 Am. Rep. 364 200 Southern v. Allen, 3 Salk. 326, T. Raym. 231 318 South Carolina v. Georgia, 93 U. S. 4, 12, 23 L. Ed. 782 474 tSouthern Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. 881, 31 L. Ed. 678.. 654, 674 tSouthern Exp. Co. v. Couch, 133 Ala. 285, 32 South. 167 181 Southold v. Daunston, Cro. Car. 269 Ill Spade v. Railroad Co., 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St Rep. 393 98 tSpaits v. Poundstone, 87 Ind. 522, 44 Am. Rep. 773 341 +Spalding v. Vilas, 161 U. S. 483, 16 Sup. Ct 631, 40 L. Ed. 788 635 tSpancake v. Railroad Co., 148 Pa. 184, 23 Atl. 1006, 33 Am. St. Rep. 821 623 Sparhawk v. Railroad Co., 54 Pa. 401... 447 tS. P. Conner v. Comstock, 17 Ind. 90... 518 tSpencer v. Anness, 32 N. J. Law, 100. . 252 Spencer v. Blackman, 9 Wend. 167. ..497, 498 Spencer v. McGowen, 13 Wend. 256 198 Spencer T. Railroad Co., 8 Sim. 193 467 Spofford v. Harlow, 3 Allen, 176 14 Spooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514 506 tSpooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514 499, 508 tSpooner v. Railroad Co., 115 N. Y. 22, 21 N. B. 696 600 Spoor v. Newell, 3 Hill, 307 140 Sprague v. Kneeland, 12 Wend. 161 172 t Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487 488 Sproul v. Plllsbury, 72 Me. 20 344 Stackpole v. Healy, 16 Mass. 38, 8 Am. Dec. 121 415 tStaftord v. Ingersol, 3 Hill, 38 36 Page tStahl v. Railroad Co., 71 N. H. 57, 51 Atl. 176 522 tStandard Oil Co. v. Murray, 67 C. C. A. 1, 119 Fed. 572 156 Standish v. Steam-Ship Co.. Ill Mass. 512, 16 Am. Rep. 66 224 Stanley v. Gaylord, 1 Gush. 546, 48 Am. Dec. 643 516 t Stanley v. Gaylord, 1 Cush. 536, 48 Am. Dec. 643 493, 517 tStanley v. Powell (1891) 1 Q. B. 86... US, 119, 130 Stansell T. Jollard, cited in 2 Car. & K. 250, 255 49 Stanton v. Hart, 27 Mich. 539 279 Stanton v. McMullen, 7 111. App. 326... 178 tStaples v. Smith, 48 Me. 470 495 Starling v. Turner, 2 Lev. 50, 2 Vent. 25 38 Starr v. Jackson, 11 Mass. 519 399 tState v. Balch, 31 Kan. 465, 2 Pac. 609 373 tState v. Bank (Neb.) 81 N. W. 319 499 tState v. Beckner, 132 Ind. 371, 31 N. E. 950, 32 Am. St. Rep. 257 546 State v. Benedict, U Vt. 238, 34 Am. Dec. 688 187 State v. Blackwoll, 9 Ala. 79 186 State v. Brown, 5 Har. (Del.) 507 258 tState v. Burnham, 56 Vt 445, 48 Am. Rep. 801 196 tState v. Campbell, 107 N. C. 48, 12 S. E. 441 260 State v. Davis, 23 N. C. 125, 127, 35 Am. Dec. 735 186, 187, 190 State v. Elliot, 11 N. H. 540, 545 202 tState v. Elliot, 10 Kan. App. 69, 61 Pac. 981; 11 N. H. 540 382 State v. Fifield, 18 N. H. 34 521 State v. Flannagan, 67 Ind. 140 478 tState v. Fox, 79 Md. 514, 29 Atl. 601, 24 L. R. A. 679, 47 Am. St Rep. 424... 162 tState v. Gibson (Or.) 73 Pac. 333 200 tState v. Godfrey, 17 Or. 300, 20 Pac. 625, U Am. St. Rep. 830 1S7 tState v. Goold, 53 Me. 279 209 tState v. Greer, 22 W. Va. 800 200 tState v. Hampton, 63 N. C. 13 190 State v. Hollyway, 41 Iowa, 200, 20 Am. Rep. 586 203 tState v. Home, 92 N. C. 805, 53 Am. Rep. 442 189 tState v. Hoskins, 109 Iowa, 656, 80 N. W. 1063, 47 L. R. A. 223, 77 Am. St Rep. 560 351 tState v. Jones, 95 N. C. 688, 59 Am. Rep. 282 212 tState v. Kaiser, 78 Mo. App. 575 200 tState v. Keenan, 111 Iowa, 286, 82 N. W. 792 373 State v. Keeran, 5 R. I. 497, 510 478 tState T. Koontz, 83 Mo. 323 545 tState v. Lewis, 50 Ohio St 179, 33 N. B. 405, 19 L. R. A. 449 258 tState v. Malster, 57 Md. 287 622 tState v. MIddleham, 62 Iowa, 150, 17 N. W. 446 200 tState v. Mills, 3 Pennewill (Del.) 508, 52 Atl. 266 193 tState v. Mizner, 45 Iowa, 248, 24 Am. Rep. 769 212 State v. Moore, 31 Conn. 479, 83 Am. Dec. 153 14 CASES CITED. li Pago State v. Mullikin, 8 Blackf. 260 472 State v. Nash, 88 N. C. 618 203 State v. Neely, 74 N. C. 425, 21 Am. Rep. 496 187 tState v. Newland, 27 Kan. 764 196 fState v. Patten, 49 Me. 383 516 State v. Paul, 5 R. I. 185 481, 482 tState v. Peacock, 40 Ohio St. 333 200 State v. Pendergrass, 19 N. C. 365, 31 Am. Dec. 416 211 tState v. Railroad Co., 80 Me. 430, 15 Atl. 36; 52 N. H. 528 571, 596 State v. Richardson, 38 N. H. 208, 75 Am. Dec. 173 521 tState v. Sears, 86 - Mo. 169 187 State v. Shepard, 10 Iowa, 126 187 tState v. Shippman, 83 Minn. 441, 86 N. W. 431 351, 383 State v. Smith, 2 Humph. 457 187 tState v. Totman, 80 Mo. App. 125 200 tState v. Underwood, 75 Mo. 231 255 tState v. Vannoy, 65 N. C. 532 189 tState v. Verry, 36 Kan. 416, 13 Pac. 838 352 tState v. Wait, 44 Kan. 310, 24 Pac. 354 351 tStearns v. Vincent, 50 Mich. 209, 15 N. \V. 86, 45 Am. Rep. 37 546 JSteele v. Dunham, 26 Wis. 393 538 tSteele v. Edwards, 15 Ohio Cir. Ct. R. 52 344 Steele v. Southwick, 1 Amer. Lead. Cas. 135; 1 Hare & W. Lead. Cas. (5th Ed.) 123; 9 Johns. 214 330, 333 Steinmetz v. Kelly, 72 Ind. 442, 37 Am. Rep. 170 196 tStendal v. Boyd, 67 Minn. 279, 69 N. W. 899 577 tStephen v. Smith, 29 Vt. 160 209 tSterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594 557 tSterling v. Warden, 51 N. H. 217. 12 Am. Rep. 80 394 tStern v. Katz, 38 Wis. 136 307 Stetson v. Faxon, 19 Pick. 147, 31 Am. Dec. 123 465 Stevens v. Fassett, 27 Me. 280 211 tStevens v. Gordon, 87 Me. 564, 33 Atl. 27 511 Stevens v. Hartwell, 11 Mete. (Mass.) 542 324 tStevens v. Kelley, 78 Me. 445, 6 Atl. 868, 57 Am. Rep. 813 60 tStevens v. Rowe, 59 N. H. 578, 47 Am. Rep. 231 28 Stevenson v. Hayden, 2 Mass. 406 306 tStevenson v. Love (C. C.) 106 Fed. 466 385 Stevenson v. Newnham (1853) 13 C. B. 297 298 tStevenson v. Newnham, 13 C. B. 297... 71 tSteward v. Gromett, 7 C. B. (N. S.) 191 289 tStewart v. Emerson, 52 N. H. 301 656 tStewart.v. Railroad Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537 684 Stewart v. Ranche Co., 128 U. S. 383, 9 Sup. Ct. 101, 32 L. Ed. 439 648 tStewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116 266, 270 tStewart v. Stearns, 63 N. H. 99, 56 Am. Rep. 496 648 Stiebeling v. Lockhaus, 21 Hun, 457 387 Stiles v. Davis, 1 Black, 101, 17 L. Ed. 33 521 Page tStillwater Water Co. v. Farmer (Minn.) 93 N. W. 907, 60 L. R. A. 875 60 tStock v. Keele, 86 App. Div. 136, 83 N. Y. Supp. 133 353 Stockton v. Frey, 4 Gill. 406, 45 Am. Dec. 138 137 Stokes v. Saltonstall, 13 Pet. 181, 10 L. Ed. 115 137, 598 tStokes v. Saltonstall, 13 Pet. 181, 10 L. Ed. 115 598 Stone v. Denny, 4 Mete. (Mass.) 151 643 tStone v. Hills, 45 Conn, 44, 29 Am. Rep. 635 606 tStonebridge v. Perkins, 141 N. Y. 1, 5, 35 N. E. 980 511 Storey v. Challands, 8 Car. & P. 234 360 Storm v. Livingston, 6 Johns. 44 522 Storrs v. Utica, 17 N. Y. 104, 72 Am. Dec. 436 608 Stout v. Wood, 1 Blackf. 71 677 Stout v. Wren, 1 Hawks, 420 195 tStover v. Bluehill, 51 Me. 439...., 137 Stow v. Converse, 3 Conn. 325, 8 Am. Dec. 189 330 Stowball v. Ansell, Comb. 116 538 tStowell v. Lincoln, 11 Gray, 434 43 tStowell v. Otis, 71 N. Y. 36 512 tStrand v. Griffith, 38 C. C. A. 444, 97 Fed. 854 666 tStrang v. Bradner, 114 U. S. 555, 5 Sup. Ct. 1038, 29 L. Ed. .248 170 Strauss v. Francis, 4 F. & F. 1107, 1114 70 tStreater v. State, 137 Ala. 93, 34 South. 395 117 tStreet v. Sinclair, 71 Ala, 110 203 t Street R. Co. v. Eadie, 43 Ohio St. 91, 1 N. E. 519, 54 Am. Rep. 802 596 tStriegel v. Moore, 55 Iowa, 88, 7 N. W. 413 121 Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870, 1 L. R. A. 483 614 tStrobel v. Salt Co., 164 N. Y. 303, 58 N. E. 142, 51 L. R. A. 687, 79 Am. St. Rep. 643 440 Strout v. Gooch, 8 Greenl. 127 221 Stroyan v. Knowles, 6 H. & N. 454.... 48 Struthers v. Railway, 87 Pa. 282 470 tStuart v. Publishing Co., 83 App. Dlv. 467, 82 N. Y. Supp. 401; 67 N. J. Law, 317, 51 Atl. 709 353, 373 tStubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650 266, 270, 274 tStuber v. McEntee, 142 N. Y. 200, 36 N. E. 878 626 tSturtevant v. Root, 27 N. H. 69 382 tSuggs v. Anderson, 12 Ga, 461 206 tSullivan v. Dunham, 161 N. Y. 290, 55 N. B. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274 118 tSullivan v. Railroad Co., 112 N. Y. 643, 20 N. E. 569, 8 Am. St. Rep. 793... 138 tSullivan v. Zeiner, 98 Cal. 346, 33 Pac. 209, 20 L. R. A. 730 61 Sumner v. Utley, 7 Conn. 257 320, 321 Sunbolf v. Alford, 3 Mees. & W. 248 224 tSun Life Assur. Co. v. Bailey (Va.) 44 S. E. 692 344 Supreme Lodge v. Unverzagt, 76 Md. 104, 24 Atl. 323 283, 286 tSusquehanna Fertilizer Co. v. Malone, 73 Md. 268, 20 Atl. 900, 9 L.. R. A. 737, 25 Am. St. Rep. 595 425, 429 lii CASES CITED. Page tSutphen T. Hedden, 67 N. J. Law, 324, 51 Atl. 721 84 Sutton v. Buck, 2 Taunt. 302, 312 407 Swaim v. Stafford, 25 N. C. 289; 26 N. C. 392 268 Swan T. Tappan, 5 Cush. 104 70, 386, 387 Swans, Case of, 7 Coke, 18 489 fSwart v. Rickard, 148 N. Y. 264, 269, 42 N. B. 665 229, 246 Sweeney v. Baker, 13 W. Va. 183, 31 Am. Rep. 757 371 tSweeney v. Baker, 13 W. Va. 158, 31 Am. Rep. 757 351 tSweeney v. Berlin Co., 101 N. Y. 520, 5 N. E. 358, 54 Am. Rep. 722 622 tSweeney v. Merrill, 38 Kan. 216, 16 Pac. 454, 5 Am. St. Rep. 734 83 tSweeney v. Railroad Co., 10 Allen, 368, 87 Am. Dec. 644 557 Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276 432 Syeds v. Hay, 4 Term R. 260 497, 498 tSymonds v. Hall, 37 Me. 354, 59 Am. Dec. 53 545 Taaffe v. Downes, 3 Moore, P. C. 41 528 tTalbott v. Plaster Co., 86 Mo. App. 558.. 289 tTapley v. Forbes, 2 Allen, 24 35 Tapley v. Wainwright, 5 Barn. & Adol. 395 ; 398 Taplin's Case, 2 East, P. C. 712 186 Tarver v. State, 43 Ala. 354 186 Tasbiirgh v. Day, Cro. Jac. 484 387 Taylor v. Ashton, 11 Mees. & W. 401 631 tTaylor v. Bank, 174 N. Y. 181, 184, 66 N. E. 181, 62 L. R. A. 783, 95 Am. St. Rep. 564 656 tTaylor v. Bidwell, 65 Cal. 489, 4 Pac. 491 28 Taylor v. Church, 8 N. Y. 452 366, 368 Taylor v. Doremus, 16 N. J. Law, 473 230 tTaylor v. Guest, 58 N. Y. 262 74 Taylor v. Markham, Cro. Jac. 224 202 Taylor v. Pennsylvania Co., 78 Ky. 348, 39 Am. Rep. 244 683 Taylor v. People, 6 Parker, Cr. R. 352 421, 423 tTaylor v. Railroad Co., 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457; (1895) 1 Q. B. 134 32, 138 tTaylor v. Turnpike Co., 65 N. J. Law, 102, 46 Atl. 707 557 Taylor v. Whitehead, 2 Doug. 745, 747 392, 409 tTeal v. Fissel (C. C.) 28 Fed. 351 235 tTeall v. Felton, 1 N. Y. 537, 49 Am. Dec. 352; Id., 12 How. 285, 13 L. Ed. 990.. 543 tTellefsen v. Fee, 168 Mass. 188, 46 N. E. 562, 45 L. R. A. 481, 60 Am. St. Rep. 379 547 Temperton v. Russell (1893) 1 Q. B. 715.. 298, 299 tTemperton v. Russell (1893) 1 Q. B. 715 117 tTemple Co. v. Insurance Co. (N. J. Sup.) 54 Atl. 295 516 Tenant v. Golding, 1 Salk. 21 563 tTerre Haute & I. R. Co. v. Buck, 96 Ind. 346, 49 Am. Rep. 168 137 Terry v. Davis, 114 N. C. 31, 18 S. E. 943 283, 286 tTerry v. Munger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216, 18 Am. St. Rep. 803 141 Terwilliger v. Telegraph Co., 59 111. 249... 671 tTerwilllger v. Telegraph Co., 59 111. 249.. 669 Tessymond's Case, 1 Lewin, Cr. Cas. 169. . 160 Tewksbury v. Bucklin, 7 N. H. 518 415 tTexas & P. R. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829 678 Thayer v. Arnold, 4 Mete. (Mass.) 589.... 415 tThayer v. Arnold, 4 Mete. (Mass.) 589.. 416 Thayer v. Boston, 19 Pick. 511, 514, 31 Am. Dec. 157 465 Thayer v. Brooks, 17 Ohio, 489, 492, 49 Am. Dec. 474 679 tThayer T. Manley, 73 N. Y. 305, 309... 525 Thomas v. Croswell, 7 Johns. 271, 5 Am. Dec. 269 381 tThomas v. Murphy, 87 Minn. 358, 91 N. W. 1097 648 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455 90,93 Thompson v. Lusk, 2 Watts, 17, 26 Am. Dec. 91 381 tThompson v. Shackell, M. & M. 187.... 373 Thorley v. Kerry, 4 Taunt. 355 329 Thorogood v. Bryan, 8 C. B. 115 591-594 tThorogood v. Bryan 596 tThorpe v. Coal Co., 24 Utah, 475, 68 Pac. 145 684 fThrall v. Knapp, 17 Iowa, 468 206 tThurber v. Railroad Co., 60 N. Y. 326.. 577 Thurman v. Wild, U Ad. & El. 453 180 Thurston v. Adams, 41 Me. 419 240 tThurston v. Adams, 41 Me. 419 547 Thurston v. Hancock, 12 Mass. 220, 224, 229, 7 Am. Dec. 57 46-48, 53, 55 tTice v. Munn, 94 N. Y. 621 137 tTillman v. Beard, 121 Mich. 475, 80 N. W. 248, 46 L. R. A. 215 235 tTimes Pub. Co. v. Carlisle, 36 C. C. A. 475, 94 Fed. 762 354 tTimlin v. Oil Co., 126 N. Y. 514, 27 N. E. 786, 22 Am. St. Rep. 845 463 Timothy v. Simpson, 1 Cromp. M. & R. 757 257 tTimothy v. Simpson, 1 Cr. M. & R. 757 260 tTindle v. Birkett, 171 N. Y. 520, 64 N. E. 210, 89 Am. St. Rep. 822 669 tTinker v. Forbes, 136 111. 221, 26 N. E. 503 I Tipping v. Smelting Co., 4 Best & S. 608- 615, U H. L. Cas. 642; 1 Ch. App. 66.. 55, 421, 451, 467 Tobias v. Harland, 4 Wend. 537 387 tTobias v. Harland, 4 Wend. 537 387 tTobin v. Bell, 73 App. Div. 41, 76 N. Y. Supp. 425 258, 260 Todd v. Hawkins, 8 Car. & P. 88 363, 367 Todd v. Railroad Co., 3 Allen, 18, 30 Am. Dec. 49; 7 Allen, 207, 83 Am. Dec. 679.. 569 ITodd v. Rough, 10 Serg. & R. 18 304 tToledo, W. & W. R. Co. v. Black, 88 111. 112 622 Tollit v. Sherstone, 5 Mees. & W. 283.... 152 Tompkins v. Railroad Co., 66 Cal. 163, 4 Pac. 1165 595 t*Tompkins v. Railroad Co., 66 Cal. 163, 4 Pac. 1165 180 tTonawanda R. Co. v. Munger, 5 Denio, 255, 49 Am. Dec. 239 414, 416 Toogood v. Spyring, 1 Cronrp. M. & R. 181 359, 368 tToth v. Greisen (N. J. Sup.) 51 Atl. 927.. 270 CASES CITED. liii Page fTotten Y. Burhans, 91 Mich. 495, 61 N. W. 1119 642 Towne v. Wiley. 23 Vt. 355, 56 Am. Dec. 85 166, 508 Town of Plerrepont v. Loveless, 72 N. Y. 211 607 Townsend v. Railroad Co., 56 N. Y. 295, 15 Am. Rep. 419 223 fTracy v. Cloyd, 10 W. Va. 19 543 fTrain v. Taylor, 51 Hun, 215, 4 N. Y. Supp. 492 296 Transfer Co. v. Kelly, 36 Ohio St. 86, 38 Am. Rep. 558 595 Tremain v. Cohoea Co., 2 N. Y. 163, 61 Am. Dec. 284 451 fTremain v. Cohoes Co., 2 N. Y. 163, 51 Am. Dec. 284 118 fTremain v. Richardson, 68 N. Y. 617 36 JTreschman v. Treschman, 28 Ind. App. 206, 61 N. E. 961 212 Tribune Co. v. Bruck, 61 Ohio St. 489, 56 N. E. 198, 76 Am. St. Rep. 433 286 tTrimble v. Reid, 97 Ky. 713, 31 S. W. 861 642 tTrimmer v. Hiscock, 27 Hun, 364 319 tTriplett v. Jackson, 5 Kan. App. 777, 48 Pac. 931 6 tTrower v. Chadwick, 3 Bing. N. C. 334; 4 Bing. N. C. 1 61 tTrussell v. Scarlett (C. C.) 18 Fed. 214. . 368 Trustees of Geneva v. Electric Co., 50 Hun, 581, 3 N. Y. Supp. 595; 130 N. Y. 670, 29 N. E. 1034 177 tTrustees of Village of Canandaigua v. Foster, 156 N. Y. 354, 50 N. E. 971, 41 L. R. A. 554, 66 Am. St. Rep. 575 178 fTuberville v. Savage, 1 Mod. 3 190 tTucker v. Draper, 62 Neb. 66, 86 N. W. 917, 54 L. R. A. 321 557 Tucker v. Jerris, 75 Me. 184 183 fTucker's Adm'r v. Railroad Co., 92 Va. 549, 24 S. E. 229 571 Tuff v. Warman, 5 C. B. (N. S.) 573 568 tTully v. Railroad Co., 2 Pennewill, 537, 47 Atl. 1019, 82 Am. St. Rep. 425 671 fTunstall v. Christian, 80 Va. 1, 56 Am. Rep. 581 6, 61 Tunstall v. Clifton (Tex. Civ. App.) 49 S. W. 244 286 tTuress v. Railroad Co., 61 N. J. Law, 314, 40 Atl. 614 677 Turner v. Brock, 6 Heisk. 50 624 tTurner v. Holtzman, 54 Md. 148, 89 Am. Rep. 361 479 Turner v. Meymott, 1 Bing. 158 393 Turnpike Road v. Boone, 45 Md. 344 137 Turnpike Road v. Miller, 5 Johns. Ch. 101, 9 Am. Dec. 274 40 tTurpen v. Booth, 56 Cal. 65, 38 Am. Rep. 48 535 Turpen v. Remy, 3 Blackf. 210 264 Tuson v. Evans, 12 Adol. & El. 733 378 Tutein v. Hurley, 98 Mass. 211, 93 Am. Dec. 154 98 Tuthill v. Milton, Cro. Jac. 222 316 tTuttle v. Campbell, 74 Mich. 652, 42 N. W. 384, 16 Am. St. Rep. 652 515 tTuttle v. Farmington, 58 N. H. 13.... 137 fTuttle v. Railroad Co., 66 N. J. Law, 327, 49 Atl. 450, 54 L. R. A. 582, 88 Am. St. Rep. 491; 122 U. S. 189, 7 Sup. Ct. 1166, 30 L. Ed. 1114 87, 614 Page Tutty T. Alewln, 11 Mod. 221 320 jTwigg v. Byland, 62 Md. 380, 50 Am. Rep. 226 488 Tyler v. Wilkinson, 4 Mason, 397, 400- * 405, Fed. Cas. No. 14,312 41, 437 Type & Stereotype Foundry Co. v. Mor- timer, 7 Pick. 166, 19 Am. Dec. 266 18 Tyson v. Booth, 100 Mass. 258 206 tUnion Nat. Bank v. Hunt, 76 Mo. 439.. 666 tUnion Pac. R. Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756, 38 L. Ed. 597 614 tUnion Pac. R. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct 619, 38 L. Ed. 434.. 577 tUnion Pac. R. Co. v. O'Brien, 161 U. S. 451, 16 Sup. Ct. 618, 40 L. Ed. 766.... 614 tUnited Lines Tel. Co. v. Grant, 137 N. Y. 7, 32 N. E. 1005 241 tUnited Railways & Electric Co. v. Hard- esty, 94 Md. 661, 51 Atl. 406, 57 L. R. A. 275 209 U. S. v. Coolldge, 1 Gall. 488, Fed. Cas. No. 14,857; 1 Wheat. 415, 4 L. Ed. 124.. 315 U. S. v. Elder, 4 Cranch, C. C. 507, Fed. Cas. No. 15,039 472 U. S. v. Hudson, 7 Cranch, 32, 3 L. Ed. 259 315 U. S. v. Worrall, 2 Dall. 384, Fed. Cas. No. 16,766, 1 L. Ed. 426.... 315 tUpjohn v. Richland, 46 Mich. 542, 9 N. W. 845, 41 Am. Rep. 178 445 tUpton v. Tribilcock, 91 U. S. 45, 50, 23 L. Ed. 203 656 Upton v. Vail, 6 Johns. 181, 182, 5 Am. Dec. 210 17, 653 tUrban v. Helmick, 15 Wash. 155, 45 Pac. 747 337 tUrquhart v. Ogdensburg, 91 N. Y. 67, 43 - Am. Rep. 655 542 Usher v. Railroad Co., 126 Pa. 206, 17 Atl. 597, 4 L. R. A. 261, 12 Am. St. Rep. 863 683 tUthermohlen v. Boggs Run Co., 50 W. Va. 457, 40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884 677 tVallo v. Express Co., 147 Pa. 404, 23 Atl. 594, 14 L. R. A. 743, 30 Am. St. Rep. 741 598 tVan v. Pacific Coast Co. (C. C.) 120 Fed. 699 255, 270 Van Bergen v. Van Bergen, 3 Johns. Ch. 282, 8 Am. Dec. 511 40 Vandenburgh v. Truax, 4 Denio, 464, 47 Am. Dec. 268 90 Vanderbilt v. Mathis, 5 Duer, 304 261 Vanderbilt v. Turnpike Co., 2 N. Y. 479, 51 Am. Dec. 315 603 Vanderlip v. Roe, 23 Pa. 82 382 Vanderwiele v. Taylor, 65 N. Y. 341 431 Vandiver v. Pollak, 97 Ala. 467, 12 South. 473, 19 L. R. A. 628 176 Vanduzor v. Linderman, 10 Johns. 106... 262 tVan Fossen v. Clark, 113 Iowa, 86, 84 N. W. 989, 52 L. R. A. 279 425 tVan Horn v. Van Horn, 56 N. J. Law, 318, 28 Atl. 669 296 tVan Inwegen v. Railroad Co., 165 N. Y. 625, 58 N. E. 878 100 Van Lien v. Mfg. Co., 14 Abb. Prac. (N. S.) 74 568 liv CASES CITED. Page Van Tassel T. Capron, 1 Denlo, 250, 43 Am. Dec. 667 318 Vanuxem v. Burr. 151 Mass. 386, 389, 24 N. E. 773, 21 Am. St. Rep. 458 525 tVan Vactor v. State, 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645 212 Van Vechten v. Hopkins, 5 Johns. 221, 4 Am. Dec. 339 381 fVan Wegeuen v. Cooney. 45 N. J. Eq. 25, 16 Atl. 689 69 fVan Winkle v. Boiler Co., 52 N. J. Law. 240, 19 Atl. 472 162 Van Wyck v. Aspinwall, 17 N. Y. 190.... 368 tVan Wyck v. Aspinwall, 17 N. Y. 190... 358 Vasse v. Smith, 6 Cranch, 226, 3 L. Ed. 207 168, 508 Vaughan T. Menlove, 32 E. C. L. 219, 740 90 Vaughan v. Railway, 5 Hurl. & N. 679, 685, 687 : 470 Vaughan v. Watt, 6 Mees. & W. 492 521 tVaughn v. Congdon, 56 Vt. Ill, 48 Am. Rep. 758 229 Vawter v. Railroad Co., 84 Mo. 679, 54 Am. Rep. 105 682 Vedder v. Fellows, 20 N. Y. 126 208, 223 Venafra v. Johnson, 10 Bing. 301, 3 Moore & S. 847; 6 Car. & P. 50 276 fVeneman v. Jones, 118 Ind. 41, 20 N. E. 644, 10 Am. St. Rep. 100 252 Vernon v. Keys, 12 East, 632 20 tVerplanck v. Van Buren, 76 N. Y. 259.. 28, 296 Verrall v. Robinson, 2 Cromp. M. & R. 495 521 Vicars v. Wilcocks, 8 East, 1 67, 110, 325 Village of Delhi v. Youmans, 45 N. Y. 362, 6 Am. Rep. 100 59 tVillage of Pine City v. Munch, 42 Minn. 342, 44 N. W. 197, 6 L. R. A. 763 474 Village of Port Jervls v. Bank, 96 N. Y. 550 177 Village of Senaca Falls v. Zalinskl, 8 Hun, 575 177 Villers v. Monsley, 2 Wils. 403 329 tVinal v. Core, 18 W. Va. 1 266, 269, 274 Vincent v. Conklin, 1 E. D. Smith, 203.. 123 Vincent v. Stinehour, 7 Vt. 62 129 tVining v. Baker, 53 Me. 544 512 Vizetelly v. Mudie's Library (1900) 2 Q. B. 170 344 tVogel v. New York, 92 N. T. 10, 44 Am. Rep. 349 609 Von Latham v. Rowan, 17 Abb. Prac. 238, 248 262 fVosburg v. Putney, 80 Wis. 523, 50 N. W. 403, 14 L. R. A. 226, 27 Am. St. Rep. 47 121 Vredenburgh v. Hendricks, 17 Barb. 179.. 228 Vrooman v. Lawyer, 13 Johns. 339 395 Wabash, St L. & P. R. Co. v. Shacklet, 105 111. 364, 44 Am. Rep. 791 , 595 tWabash, St. L. & P. R. Co. v. Shacklet, 105 111. 364, 44 Am. Rep. 791 170 tWade v. Chaffee, 8 R. I. 224, 5 Am. Rep. 572 255 tWahl v. Walton, 30 Minn. 506, 16 N. W. 397 258 Wakeman v. Robinson, 1 Bing. 213... 129, 131 Page tWakeman T. Wilbur, 147 N. T. 657, 42 N. E. 341 69, 467 tWakley v. Healey, 4 Exch. 611 353 tWaldron v. Sperry, 63 W. Va. 116. 44 S. E. 283 277 tWales v. Miner, 89 Ind. 118 550 tWalker v. Cronin, 107 Mass. 562, 564, 5G7 71, 112, 117 Walker v. Davis, 1 Gray, 506 169 tWalker v. Davis, 1 Gray, 506 164 tWalker v. Duncan, 68 Wis. 624, 32 N. W. 689 141 Walker v. Milner, 4 Fost. & F. 745 652 Walker v. Railway, 103 Mass. 10-14, 4 Am. Rep. 509 470 tWalker v. Railroad Co., 165 U. S. 593, 17 Sup. Ct. 421, 41 L. R. A. 837 435 Wall v. Hoskins, 27 N. C. 177 677 tWall v. Lit, 195 Pa. 375, 46 Atl. 4 130 Wallace v. Morss, 5 Hill, 391 168 Waller v. Railroad Co., 32 Law J. Exch. 205 621 tWalsh v. Railroad Co., 160 Mass. 571, 36 N. E. 584, 39 Am. St. Rep. 514; 145 N. Y. 301, 39 N. E. 1068, 27 L. R. A. 724, 45 Am. St. Rep. 615 577, 678 Walter v. Selfe, 4 De Gex & S. 323; 4 Eng. Law & Eq. 18 419, 447 tWalton v. Car Co., 139 Mass. 556, 2 N. E. 101 606 Wamsley v. Steamship Co., 63 N. Y. Supp. 761 500 Wanser v. Wyckoff, 9 Hun, 178 272 Ward v. Conatser, 4 Baxt. 64 127 Ward v. Macauley, 4 Term R. 480, 489 495, 512 Ward v. Railroad Co., U Abb. Prac. (N. S.) 411 569 tWard v. Railroad Co., 96 Me. 136, 51 Atl. 947 569, 571 tWard v. Reasor, 98 Va. 399, 36 S. E. 470 280 Ward T. Weeks, 7 Bing. 211 324 tWard v. Weeks, 7 Bing. 211 327 tWarder, Bushnell & Glessner Co. v. Whittish, 77 Wis. 430, 46 N. W. 540... 661 fWarnock v. Mitchell (C. C.) 43 Fed. 428 341 Warren v. Brown (1902) IK. B. 15 6 tWarren v. Kelley, 80 Me. 512, 531, 15 Atl. 49 241 tWarren v. Railway, 70 N. H. 352, 47 Atl. 735 588 Warren v. Warren, 1 Cromp. ML & R. 250 378 Washburn T. Cooke, 3 Denio, 110, 112 367, 377 fWashington C. & A. Turnpike v. Case, 80 Md. 36, 30 Atl. 571 130 tWashington & G. R. Co. v. Hickey, 166 U. S. 521, 17 Sup. Ct. 661, 41 L. Ed. 1101 138 tWashington & G. R. Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. Ed. 235 614 tWason v. Walter, L. R. 4 Q. B. 73 373 tWatkin v. Hall, L. R. 3 Q. B. 396 354 Watkins v. Lee, 5 Mees. & W. 270 276 tWatson v. Crandall, 78 Mo. 583 669 Watson v. Earle of Charlemont, 12 Adol. & E. (N. S.) 856 671 Watson v. Vanderlash, Het. 69 320 Watson v. Watson, 9 Conn. 140, 23 Am. Dec. 324 547 CASES CITED. Page tWatters T. Smoot, S3 N. C. 315 352 t Watts v. Cummins, 59 Pa. 84 655 Watts v. Thomas, 2 Bibb, 458 681 Weatherston v. Hawkins, 1 Term R. 110 339, 356 Weaver v. Bush, 8 Term R. 78 197, 198, 393 tWeaver v. Devendorf, 3 Denlo, 117... 538 Weaver v. Ward, Hob. 134 125, 126, 131 fWebb v. Drake, 52 La. Ann. 290, 26 South. 791 300 Webb v. Railroad Co., 49 N. Y. 420, 10 Am. Rep. 389 77, 90 Webber v. Gage, 39 N. H. 182 422 Webber v. Gay, 24 Wend. 485 547 tWeeks v. Currier, 172 Mass. 53, 51 N. B. 416 644 Weidner v. Rankin, 26 Ohio St. 522 680 fWeil v. Altenhofen, 26 Wis. 708 307 tWell v. Railroad Co., 119 N. Y. 147, 23 N. E. 487 582 Weir v. Bell, 3 Exch. Div. 238 635, 637 tWelch v. Stowell, 2 Doug. 332 482 Weller v. Baker, 2 Wils. 414 39 Wells v. Howell, 19 Johns. 385 415 Wells v. Sisson, 14 Hun, 267 228 Wells v. Watling, 2 W. Bl. 1233 39 tWelsh v. Bell, 32 Pa. 12 493 tWelsh v. Cochran, 63 N. Y. 181, 184, 20 Am. Rep. 519 184, 545 Wendell v. Railroad Co., 91 N. Y. 420... 575 Wennbak v. Morgan, 20 Q. B. D. 635 344 Wentworth v. Bullen, 9 Barn. & C. 840 288 tWenzlick v. McCotter, 87 N. Y. 122, 41 Am. Rep. 358 463 Wesson v. Iron Co., 13 Allen, 95, 90 Am. Dec. 181 446 tWest v. Cabell, 153 U. S. 78, 14 Sup. Ct. 752, 38 L. Ed. 643 248 West v. Smallwood, 3 M. & W. 418; Horn & Hurlst. 117 235, 236 tWestbrook v. Mize, 35 Kan. 299, 10 Pac. 881 171 tWest Chicago St. R. Co. v. Liderman, 187 111. 463, 58 N. E. 367, 32 L. R. A. 655, 79 Am. St. Rep.- 226 600 Westcott v. Middleton, 43 N. J. Eq. 478, 11 Atl. 490 447 Western Co. v. Lawes Co., L. R. 9 Exch. 218 386 tWestern Counties Manure Co. v. Man- ure Co., L. R. 9 Exch. 218 25 Westmore v. Greenbank, Willes, 577 34 fWetherbee v. Partridge, 175 Mass. 185, 55 N. E. 894, 78 Am. St. Rep. 486 610 Wetherell v. Clerkson, 12 Mod. 597 387 Wetmore v. Mellinger, 64 Iowa, 741, 18 N. W. 870, 52 Am. Rep. 465 283, 285 Whaler v. Ahl, 29 Pa. 98 439 Whaley v. Laing, 2 H. & N. 476, 3 H. & N. 675 445 tWhaley v. Lawton, 62 S. C. 91, 40 S. E. 128, 56 L. R. A. 649 235 Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721 ; 59 tWheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721 60 Wheeler v. Brant, 23 Barb. 324 484, 486 tWheeler v. Lawson, 103 N. Y. 40, 8 N. E. 360 495 tWheeler v. Nesbitt, 24 How. 544, 16 L. Ed. 765 266 Page tWheeler v. Wheeler, 33 Me. 347 515 Wheeler v. Whiting, 9 Car. & P. 262.. 258 Wheeler & Appleton's Case, Godb. 340.. 341 tWheelock v. Jacobs, 70 Vt. 162, 167, 40 Atl. 41, 43 L. R. A. 105, 67 Am. St. Rep. 659 59, 60 Wheelock v. Wheelwright, 5 Mass. 104.. 498 tWhllden v. Bank, 64 Ala. 1, 38 Am. Rep. 1 141 tWhipple v. Fuller, 11 Conn. 582, 29 Am. Dec. 330 287 tWhitbourne v. Williams (1901) 2 K. B. 722 553 tWhite T. Carr, 71 Me. 555, 36 Am. Rep. 533 274 White v. Carroll, 42 N. Y. 161, 1 Am. Rep. 503 26 White v. Lang, 128 Mass. 598, 35 Am. Rep. 402 81 tWhite v. Mellin (1895) A. C. 154 387 tWhite v. Morse, 139 Mass. 163, 29 N. B. 539 535 White v. Nicholls, 3 How. 266, 291, 11 L. Ed. 591 359 tWhite v. Nicholls, 3 How. 266, 11 L. Ed. 591 358, 375 tWhite v. Phelps, 12 N. H. 382.... 515 Whitehead v. Mathaway, 85 Ind. 85 196 Whitehouse v. Canning Co., 2 L. J. Exc. 25 67 Whiteley v. Adams, 15 C. B. (N. S.) 393 359 White's Case, 1 Burr. 333 481 Whitfleld v. Le De Spencer, Cowp. 754 543 tWhitlock T. Uhle, 75 Conn. 423, 53 Atl. 891 6 Whitney v. Bartholomew, 21 Conn. 213.. 421 Whittaker v. Bradley, 7 Dowl. & R. 649 333 Widrig v. Oyer, 13 Johns. 124 302 Wier's Appeal, 74 Pa. 230 423, 450 tWier's Appeal, 74 Pa. 230 425, 452 tWiggins v. Hathaway, 6 Barb. 632 543 Wiggins v. U. S., 3 Ct. Cl. 412 183 tWilcox v. Moore, 69 Minn. 49, 71 N. W. 917 373 tWilcox v. Telegraph Co., 176 N. Y. 115, 68 N. E. 153 661 tWildee v. McKee, 111 Pa. 335, 2 Atl. 108, 56 Am. Rep. 271 296 tWilds v. Railroad Co., 24 N. Y. 430.... 569 Willard v. Cambridge, 3 Allen, 574 465 tWillard v. Holmes, 142 N. Y. 492, 37 N. E. 480 284 Willard v. Holmes, Brook & Haydens Co., 142 N. Y. 492, 37 N. E. 480 286 tWilley v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853 196, 205 Williams v. Breedon, 1 Bos. & P. 329. . 679 tWilliams v. Casebeer, 126 Cal. 77, 58 Pac. 380 274 tWilliams T. Fuller (Neb.) 94 N. W. 118 331, 383 tWilliams v. Hayes, 157 N. Y. 541, 52 N. E. 589, 43 L. R. A. 253, 68 Am. St. Rep. 797 126 tWilliams v. Hays, 143 N. Y. 442, 38 N. E. 449, 26 L. R. A. 153, 42 Am. St. Rep. 743 126 Williams v. Hill, 19 Wend. 305 325 tWilliams v. Holdredge, 22 Barb. 396.... 313 tWilliams v. Holmes, Booth & Haydens, 142 N. Y. 492, 37 N. B. 480 263 Ivi CASES CITED. Page tWilllams V. Ives, 26 Conn. 568 402 tWilliams v. Le Bar, 141 Pa. 149, 21 Atl. 525 180 Williams T. Merle, 11 Wend. 80, 25 Am. Dec. 604 517 Williams v. Safford, 7 Barb. 309 409 Williams v. Smith, 108 E. C. L. 596 245 tWilliams v. Spencer, 5 Johns. 352 546 tWilliams v. Weaver, 75 N. Y. 30 538 tWilliamson v. Freer, L. R. 9 C. P. 393 344 tWilliamson v. Russell, 39 Conn. 411..:. 522 Wills v. Noyes, 12 Pick. 324 266 tWilly T. Mylledy, 14 R. I. 28 32 tWilms v. Jess, 94 111. 464, 34 Am. Rep. 242 51 Wilson v. Barker, 1 Nev. & M. 409, 4 Barn. & Adol. 614 183 tWilson v. Dubois, 35 Minn. 471, 29 N. * W. 68, 59 Am. Rep. 335 71 Wilson v. Mayor, etc., 1 Denio, 595, 598, 43 Am. Dec. 719 538, 540 tWilson v. New Bedford, 108 Mass. 261, 265, 11 Am. Rep. 352 59 tWilson v. Noonan, 35 Wis. 321 354 Wilson v. Reed, 3 Johns. 17B 615 Wilson v. Robinson, 6 How. Prac. 110.. 228 Wilson v. Tumman, 6 Man. & G. 236, 242 183 Wilson v. Waddell, 2 App. Cas. 95 54 Wilt v. Welsh, 6 Watts, 9 168 Wilton v. Webster, 7 Car. & P. 198 550 tWinchester v. Everett, 80 Me. 535, 15 Atl. 596, 1 L. R. A. 425, 6 Am. St. Rep. 228 246 tWinn v. Abeles, 35 Kan. 85, 10 Pac. 449, 57 Am. Rep. 138 61 tWinn v. Hobson, 54 N. Y. Super. Ct. 330 260 tWinship v. Neale, 10 Gray, 382 512 Winsmore v. Greenbank, Willes, 577, 580, 583 22, 28, 461 tWinter v. Atkinson, 92 111. App. 162 203 tWinter v. Sumvalt, 3 H. & J. 38 327 tWinterbottom v. Lord Derby, L. R. 2 Ex. 316 69 Winterbottom v. Wright, 10 Mees. & W. 109 160 tWinterbottom v. Wright, 10 M. & W. 109 25 Winterbourne v. Morgan, 11 East, 396.. 392 fWinters v. Railroad Co., 99 Mo. 509, 12 S. W. 652, 6 L. R. A. 536, 17 Am. St. Rep. 591 588 Wintringham v. Lafoy, 7 Cow. 735.. 492, 494 tWisconsin Cent. R. Co. v. Ross, 142 111. 9, 31 N. E. 412, 34 Am. St. Rep. 49 170 Witte v. Hague, 2 Dowl. & R. 33 153 tWolf v. Kilpatrick, 101 N. Y. 146, 4 N. E. 188, 54 Am. Rep. 672 455 Wolfe v. Pearson, 114 N. C. 621, 19 S. E. 264 479 Womersley v. Church, 17 L. T. (N. S.) 190 445 tWood v. Amory, 105 N. Y. 278, 11 N. E. 696 648 Wood v. Graves, 144 Mass. 365, 366, 11 N. E. 567, 59 Am. Rep. 95 288, 293 tWood v. Graves, 144 Mass. 365, 11 N. E. 567, 59 Am. Rep. 95 292 tWood v. Leadbitter, 13 Mees. & W. 838 407 Wood v. Manley, 11 Adol. & E. 34 405 Wood v. Sutcliffe, 2 Sim. (N. S.) 165.... 422 Wood T. Waud, 13 Jur. 472, 3 Exch. 748 442 Page Woodard v. Dowsing, 2 Man. & R. 74 330 Woodard v. Railroad Co., 10 Ohio St. 121 682 tWooden v. Railroad Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803 678, 683, 684 tWoodman v. Railroad Co., 149 Mass. 335, 21 N. E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427 610 Woodman v. Tufts, 9 N. H. 92 462 Woodruff v. Bowen, 136 Ind. 491, 34 N. E. 1113, 22 L. R. A. 198 558 Woodside v. Adams, 40 N. J. Law, 417.. 505 tWoodworth v. Mills, 61 Wis. 44, 20 N. W. 728, 50 Am. Rep. 135 280 tWoodyear v. Schaefer, 57 Md. 1, 40 Am. Rep. 419 442 Woolcott v. Goodrich, 5 Cow. 714 303 Wooley v. Batte, 2 Car. & P. 417 175 Woolf v. Chalker, 31 Conn. 121, 130, 81 Am. Dec. 175 485 tWoolf v. Chalker, 31 Conn. 127, 81 Am. Dec. 175 488 tWoolsey v. Morris, 96 N. Y. 311, 315.. 547 tWren v. Weild, L. R. 4 Q. B. 730 385 tWright v. Brown, 67 N. Y. 1 656 i Wright v. Express Co. (C. C.) 80 Fed. 85 200 Wright v. Howard, 1 Sim. & S. 190 40 Wright v. Leonard, 11 C. B. (N. S.) 258 168 tWright v. Lothrop, 149 Mass. 385, 21 N. E. 963 379 tWright v. Marvin, 59 Vt. 437, 9 Atl. 601 402 tWright v. Railroad Co., 4 Allen, 283.. 582 Wright v. Ramscot, 1 Saund. 85 489 Wright v. Wllcox, 19 Wend. 349, 32 Am. Dec. 507 603 Wyatt v. Harrison, 3 B. & Ad. 871.. ..47, 53 Wyatt v. Williams, 43 N. H. 102 626 tWykoff v. Stevenson, 46 N. J. Law, 326 522 jWyman v. Railroad Co., 34 Minn. 210, 25 N. W. 349 209 tYandes v. Wright, 66 Ind. 319, 32 Am. Rep. 109 51 Yates v. Joyce, 11 Johns, 136, 140. .17, 19, 20 Yates v. Lansing, 5 Johns. 282, 291; 9 Johns. 396, 6 Am. Dec. 290 528, 538 tYeaton v. Railroad Corp., 135 Mass. 418 614 York v. Davis, 11 N. H. 241 415 York v. Johnson, 116 Mass. 482 361, 362 Youmans v. Smith, 153 N. Y. 214, 47 N. E. 265 944 Young v. , 1 Ld. Raym. 725.. 392, 409 Young v. Clegg, 93 Ind. 371 344 tYoung v. Distillery Co. (1893) A. C. 691 442 tYoung v. Leach, 27 App. Di7. 293, 50 N. Y. Supp. 670 28 tYoung v. Miller, 3 Hill, 21 304 tYoung v. Muhling, 48 App. Div. 617, 63 N. Y. Supp. 181 167 tYoung v. Stone, 33 App. Div. 261, 53 N. Y. Supp. 656 547 Youngstown v. Moore, 30 Ohio St. 133. . 680 Yundt v. Hartrunft, 41 111. 9 550 tZieman v. Eevator Co., 90 Wis. 497, 63 N. W. 1021 156 tZorn v. Haake, 75 Hun, 235, 27 N. Y. Supp. 98 400 tZwack v. Railroad Co., 160 N. Y. 362, 54 N. E. 785 677 LEADING CASES UPON THE GENERAL PRINCIPLES. No tort committed, unless a legal right or legal duty is violated. (68 111. 478.) GUEST et al. v. REYNOLDS (in part). (Supreme Court of Illinois. September Term, 1873^ 1. ADJOINING LAND-OWNERSOBSTRUCTION OF LIGHT AND AIR. An owner of land who erects thereon a fence or wall which obstructs the access of light and air to a house on adjacent land, and also obstructs the view from such house, is not liable in damages for the obstruction to the owner of such adjoining premises, since no legal right to light, air, and prospect exists, in the absence of proof that such a right has been acquired by grant or prescription ; nor is such fence or wall, not being constructed of offensive materials, to be deemed a nuisance. 2. SAME "ANCIENT LIGHTS." It seems that the doctrine of "ancient lights" is not applicable In this country. Appeal from Circuit Court, Cook County; John G. Rogers, Judge. BREESE, C. J. This was an action on the case, brought to the circuit court of Cook county, to recover damages for an alleged ob- struction by defendants of the free use of the light and air passing laterally over the premises of defendants to plaintiff's premises. The declaration contains two counts, in substance as follows : Plain- tiff, after averring his residence on a particular lot, 73 South Sanga- mon street, in Chicago, in a house having doors, windows, and views of the street, through which light, air, and views had and ought to enter into the dwelling-house, and the views should not have been obstructed, and the use of the light and air and views should not have been obstructed, and ought to be used by plaintiff and his family, for CHASE (2o ED.) 1 2 LAW OF TORTS. the wholesome use and occupancy thereof, avers: Yet the said de- fendants, well knowing the premises, but contriving, wrongfully and unjustly intending, to injure the plaintiff and his family, and to de- prive them of the use of said doors, windows, and views, and to in- commode him in the use and enjoyment thereof, and to annoy plain- tiff in his use and possession and enjoyment of said premises, on, etc., wrongfully and injuriously caused and erected and raised a high board fence, and caused to be erected, constructed, and raised on the north part of said lot and dwelling-house and lot, and adjoining there- to, a high board obstruction. The obstruction was made and con- structed next to the north line of the house and lot No. 73 South Sangamon street. It was made upon the south line of an alley next north of said house and lot, and close adjoining, and was so made and constructed, and is now standing, and in such close proximity, that it hides the original fences. It nowhere protects the alley, and it is so raised and constructed, and of such height, made at certain places in its construction, and so near to the windows, that it wrong- fully and injuriously darkens the said dwelling-house, obstructs the light to said windows, and is so made as to obstruct the view to said street, and in fact is so constructed, wrongfully and injuriously, as aforesaid, as to interfere with the use of, and the light and air and views from, said dwelling house, and thereby renders said dwelling- house of but little use to plaintiff and his family; and defendants have wrongfully and injuriously kept and continued said high board fence obstruction, etc., by them erected, as aforesaid, for a long space of time, to-wit, etc.; and the same is now continued, by means of which premises the said dwelling-house, with its appurtenances, are greatly darkened and injured, and they continued darkened and in- jured, and the light, air, and views were and are hindered and pre- vented from coming into and through the said windows, into said dwelling-house, and the same hath thereby been rendered, and is, close, uncomfortable, unwholesome, and measurably unfit for habitation ; and plaintiff and his family have thereby been, and still are, greatly an- noyed and incommoded in the use, possession, and enjoyment of said dwelling-house and lot, with the appurtenances, to-wit, etc. ; to the damage, etc. The second count, omitting the formal and introductory parts, avers: Yet the said defendants, well knowing the premises, but contriving, etc., and intending to injure and prejudice plaintiff, and to deprive him of the use, benefit, and enjoyment of the said win- dows, and to annoy and incommode him in the use, possession, and enjoyment of said dwelling-house, with the appurtenances, heretofore, to-wit, etc., (with a continuando,) wrongfully, maliciously, willfully, and injuriously greatly darkened said windows, and hindered and pre- vented the light and air from coming and entering into and through said windows, into said dwelling-house and premises, and the samf have thereby been rendered, and are, uncomfortable, unwholesome and unfit for habitation, and the plaintiff thereby has been, and is, greatly annoyed and incommoded in the use, possession, and enjoy- GENERAL PRINCIPLES. 5 ment of said dwelling-house and premises, with the appurtenances, to his damage, etc. The plea was, not guilty. Under instructions from the court, the plaintiff had a verdict for $838, a portion of which was remitted, and judgment rendered for $500. To reverse this judgment defendants appeal. We have copied literally the counts of the declaration, in order that the precise nature of the action may be seen and understood. Ap- pellee claims that the gravamen of the action is not for obstructing light and air and views, but it is for erecting an unsightly fence and of offensive materials. The logic of the narr. certainly is that, plain- tiff having the right to use the light and air and views, he has been deprived of the same by the erection of the fence, and by which erec- tion his dwelling has been darkened, rendered unwholesome, and unfit for habitation. The latter is alleged as a consequence of the erection of the fence, and the right to build the fence is denied, because of plaintiff's right to have free course for light and air, and an unob- structed view from his windows. The gravamen of the action most clearly is the obstruction of light, air, and view, the rest being con- sequences, merely, of the obstruction. It is not alleged the materials which composed the obstruction the fence were of an offensive na- ture, or that the air, in passing through or over the fence, became charged with offensive matter. The averment simply is, by erecting a fence, the passage of light and air has been obstructed, by which the dwelling has been darkened, rendered unwholesome and unfit for habitation. In this view of the nature of the action, the first question to be de- termined is, were defendants' lots,' on the south boundary of which they erected this fence, servient lots? In other words, had the plain- tiff any right to the passage of light and air laterally over defendants' lots, to plaintiff's doors and windows, and to an unobstructed view of an adjacent street? If he had, whence does he derive it? This is for him to show, and he has not shown it. He shows no right by prescription, by use for 20 years, if such use could be available, and no grant from any one. The owner of the premises erected the dwell- ing-house occupied by plaintiff within two feet of the south line of defendants' premises. We have been referred to no law forbidding defendants from erecting a fence on the line of their own land. Ad- mit the erection does darken the rooms of his neighbor; that it does render them close and uncomfortable, and annoy and incommode him, the defendants have only exercised a right belonging to them by building the fence. This is not a case of ancient lights. The plain- tiff insists it is for a nuisance arising out of a violation of the maxim, sic utere tuo ut alienum non laedas. It is not denied that, by the common law, an action on the case lies for a nuisance to the hab- itation or estate of another, many instances of which are readily found in the books. The law unquestionably is, if a man erect any- thing offensive so near the house of another that it becomes useless thereby, case lies; as, a limekiln, a dye-house, a tallow furnace, a 4 LAW OF TORTS. privy, a brew-house, a tan-vat, a smelting-house, and the like. In all the cases where it was held the action would lie, a positive right was invaded. If this was a case of ancient lights, the maxim would apply. But, plaintiff having established no right, he cannot claim to be' injured or damnified, as no right is infringed, legally speaking, there is no injury or damage. The defendants cannot be charged with so using their own property as to injure another. By the fence the plaintiff has been deprived of the use of that which did not belong to him, for light and air are not the subjects of property beyond the moment of actual occupancy. Mahan v. Brown, 13 Wend. 261, 38 Am. Dec. 461; Parker v. Foote, 19 Wend. 309. That the defendants had the right to build a fence 50 feet high, on their own land, or a high wall which should have the effect to de- prive plaintiff of light and air, and obstruct his view, the plaintiff himself showing no prescriptive or other adverse right, is settled by authority. The case of Gerber v. Grabel, 16 111. 217, is referred to on this question. There the declaration did not prescribe for ancient lights, but declared generally, as in this case, that plaintiff was pos- sessed of the house, and ought to enjoy a right to the light and air through the windows. The court held the declaration was sufficient to admit proof of the right, whether it arises upon a prescription, by contract, or otherwise by estoppel. The English doctrine was fully examined and admitted by one of the judges, Mr. Justice Scates de- livering the opinion, that the rule in England was the presumptive prescription of 20 years, applied in analogy to the statute of limita- tions. But, he said, such was not the rule of the common law of this state; and, discussing the older authorities, from Rolle's Abridg- ment, through Coke, down to Croke's Eliz., to the accession of James I., the learned judge reached the conclusion that a prescription of 20 years for the easement of light and air was not applicable to the cir- cumstances of this state, unsettled and unimproved as it is; that the doctrine cannot be traced further back than the twenty-first year of James I. As we understand this opinion, the right to the free passage of light and air must be established for a length of time whereof the memory of man runneth not to the contrary, that is, from time immemorial; and this was the common law, as understood prior to the accession of James I. Another distinguished judge, Mr. Justice Caton, whose ability and great legal knowledge have never been questioned, understood the first section of chapter 62, Rev. St., adopted the common law of England as administered in Westminster Hall at the time the provision was originally adopted in this state, and the British statutes in aid of the common law prior to the fourth year of James I., except as provided in that section; and it was ad- mitted that, by the well-settled rule of the common law, as it has been understood and administered by the English courts for many years past, 20 years' uninterrupted and unquestioned enjoyment of lights constitutes them ancient lights, in the enjoyment of which the owner shall be protected. This is the only case in this court we have GENERAL PRINCIPLES. 5 been referred to touching this subject, and from it it will be seen the law has not been authoritatively declared, enough only appearing in the record to dispose of the case then pending. But be the law 20 years, or time immemorial, in which to prescribe, it cannot avail the plaintiff in this action, as he established neither. The complaint in this declaration is for erecting an obstruction, by which light and air were prevented from coming into plaintiff's house, rendering the rooms dark, unwholesome, and uninhabitable. The point is that defendants had a right to erect the fence, which was the obstruction alleged. The plaintiff, showing no right to the free pas- sage of light and air, must submit to this erection, in the absence of any allegation that the fence was made of unfit materials, the odor from which was of a noxious nature, which, penetrating the house of plaintiff, rendered it unwholesome. To entitle him to claim dam- ages for the erection of a fence, by which his dwelling was darkened and made unwholesome, he must show a prescriptive right to the use of the light and air, which he does not pretend. He cannot make one case in his declaration, and another and different case by his proofs. He declares against the defendants that he is possessed of a dwelling- house, with doors and windows, to and through which light and air ought to come freely, but you, the defendants, have obstructed their free passage, by which my house is darkened, rendered unwholesome, and unfit for habitation. This is his whole case, as he states it in the declaration. We submit, it is not competent for him on the trial, to prove that the materials out of which the fence was made were filthy and unfit, or that they created an atmosphere in the house which was noxious, for that is an independent cause of action. Now, on the question of prescription. As it is an open question in this court, we are inclined to adopt the views held and so well ex- pressed by the supreme court of the state of New York in Parker v. Foote, supra. In commenting on the doctrine as received by the Brit- ish courts, the court say: "They tell us a man may build on the extremity of his own land, and that he may lawfully have windows looking out upon the land of his neighbor." The court say the reason why he may lawfully have such windows should be because he does his neighbor no wrong; and yet, somehow or other, by the exercise of lawful right in his own land for 20 years, he acquires a beneficial interest in the land of his neighbor. The original proprietor is still seised of the fee, with the privilege of paying taxes and assessments ; but the right to build on the land, without which city and village lots are of little or no value, has been destroyed by a lawful window. How much land can thus be rendered useless to the owner remains yet to be settled. And the court further say there is no principle upon which the modern English doctrine on the subject of lights can be supported. It is an anomaly in the law. It may do well enough in England, and has been sanctioned, with some qualification, by act of parliament, but it can- not be applied to the growing cities and villages of this country without working the most mischievous consequences, and has never been 6 LAW OF TORTS. deemed a part of our law. In Myers v. Gemmel, 10 Barb. 537, this case is approved. In 3 Kent's Comm. 573, it is said the English doctrine is not much relished in this country, owing to the rapid changes and improvements in our cities and villages. A prescriptive right, spring- ing up under the narrow limitation in the English law, to prevent obstructions to window lights and views and prospects, or, on the other hand, to protect a house or garden from being looked in upon by a neighbor, would affect essentially the value of vacant lots, or of lots with low and back buildings upon them. To the same effect is Washburn on Easements and Servitudes, 497: We are disposed to concur in this view, and to hold it absurd to say that a man, by the exercise of rights over his own property for 20 years, can thereby acquire a title in the property of another. Such a doctrine is not applicable to our growing cities and villages, and was not the doc- trine of the common law, as expounded in Westminster Hall prior to the fourth year of the reign of James I. These views render it unnecessary to consider the instructions given in this case, as it is readily seen some of them were not applicable. As we understand the declaration, there is no cause of action stated in it to entitle the plaintiff to a recovery, and we must reverse the judgment. The judg- ment is therefore reversed, and the cause remanded. Judgment reversed. (The general rule is stated as follows : "At common law a man has a right to build a fence or other structure on his own land as high as he pleases, although he thereby completely obstructs his neighbor's light and air, and the motive by which he is actuated is immaterial." Karasek v. Peier, 22 Wash. 419, 61 Pac. 33, 50 L. R. A. 345 : Camfield v. U. S., 167 U. S., at page 523, 17 Sup. Ct 866, 42 L. Ed. 260 ; Mahan v. Brown, 13 Wend. 261, 38 Am. Dec. 461 ; Levy v. Brothers, 4 Misc. Rep. 48, 23 N. Y. Supp. 825; Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177; Triplett v. Jackson, 5 Kan. App. 777, 48 Pac. 931; Saddler v. Alexander, 56 S. W. [Ky.] 518; Metzger v. Hochrein, 107 Wis. 267, 83 N. W. 308, 50 L. R. A. 305, 81 Am. St. Rep. 841 [fence unsightly and made of old lumber, partly rotten, defendant acting from malicious motives] ; cf. Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93. But in some states it is now the law in several of them, by statute that if such an act be done maliciously, it affords a cause of action. Lord v. Langdon, 91 Me. 221, 39 Atl. 552 ; Rideout v. Knox, 148 Mass. 368, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560 ; Whitlock v. Uhle, 75 Conn. 423, 53 Atl. 891 ; Horan v. Byrnes, 70 N. H. 531, 49 Atl. 569 ; Flaherty v. Moran, 81 Mich. 52, 45 N. W. 381, 8 L. R. A. 183, 21 Am. St Rep. 510: Karasek v. Peier, supra; cf. Bros- troin v. Lauppe, 179 Mass. 315, 60 N. E. 785; Kuzniak v. Kozruinski, 107 Mich. 445, 65 N. W. 275, 61 Am. St Rep. 344. The doctrine of "ancient lights" has been almost universally discarded in this country as not suited to our conditions. Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80, and cases cited ; Hayden v. Butcher, 31 N. J. Eq. 217 ; Knabe v. Levelle [Super. Ct N. Y.] 23 N. Y. Supp. 818; Tinker v. Forbes, 136 111. 221, 26 N. E. 503 ; Tunstall v. Christian, 80 Va. 1, 56 Am. Rep. 581 ; 1 Wood on Nuisances [2d Ed.] 196; Cooley on Torts [2d Ed.J 833. But in England the Doctrine is still maintained. Colls v. Home and Colonial Stores [1904] A. C. 179.) GENERAL PRINCIPLES. 7 (104 N. Y. 471, 11 N. E. 57.) MILLER v. WOODHEAD. (Court of Appeals of New York. March 1, 1887.) NEGLIGENCE DANGEROUS PREMISES LANDLORD AND TENANT. Rooms, the windows of which overlooked an extension of the same house, were let by the owner of the whole building to a tenant, with the right to the latter to use the roof of the extension for drying clothes. In the roof near the windows was a sky-light, covered with a wire screen for the protecti< of the glass in it, but the screen was in bad condition, and was afterwards removed. Before it was replaced, plaintiff, a child about three years of age, while visiting the tenant, fell out of the window, through the sky-light, and was injured. Held, that the owner of the house was not liable to plaintiff for such injuries ; there was no violation of any duty which he owed plaintiff ; and, even if the screen was necessary to render the roof fit for the use of the tenant; plaintiff could not take advantage of any violation of the owner's duty to the tenant in that re- spect, as he was not, at the time of the accident, connected in any way with the tenant in the use of the roof. Appeal from Supreme Court, General Term, First Department. Action by Samuel L. Miller, an infant, against Richard Woodhead, to recover damages for personal injuries to plaintiff alleged to have been caused by defendant's negligence. PECKHAM, J. The defendant was the owner of a house in Thirty- Third street, New York, some rooms in which he had rented to a Mrs. O'Brien, who was the step-mother of the plaintiff's mother, the plaintiff being an infant of about the age of three years. Mrs. O'Brien had three rooms in the rear of the house, overlooking an extension thereof, which was covered with a tin roof, and in which there was a sky-light to give light to a saloon situated in such extension. Mrs. O'Brien had leased the right to use this roof for the purpose of hang- ing out and drying her clothes, and when she rented the rooms the defendant had cautioned her about not letting children out on the roof, because the ceiling was very bad, and she had never allowed them to go there. This tin roof was about a foot below the windows of Mrs. O'Brien's rooms, which looked out on it. About 16 or 18 inches from the wall in which the windows were set the sky-light in question was situated, so it was about a foot below the windows, and 1 6 inches away from the wall. The sky-light had panes of glass in it, and there had been a wire screen over the glass, made of long and small wires, very thin, and in bad condition, old and rotten. This screen had been taken off the sky-light some six weeks prior to the accident, and, at the time of its occurrence, had not been replaced. The glass in the sky-light would have been very likely broken if not covered, as the boys used to climb up a ladder and play ball about there. The sill of the windows from the floor inside was about 23 inches, and, in order to go out on the roof from the rooms occupied 9 LAW OF TORTS. by Mrs. O'Brien, it was necessary to raise the window and crawl through the lower part of it The permission given by the defendant was to Mrs. O'Brien to go out on the roof and dry her clothes there. There were no bars on the window, and if there had been she says she would not have taken the premises. On the day in question the mother of plaintiff, with a babe in her arms, and accompanied by plaintiff, called at Mrs. O'Brien's, and, as they went in the room, plaintiff's mother started to put the babe on a bed in the bed-room off the kitchen, and was gone but a few seconds, when Mrs. O'Brien saw the plaintiff, who had gone to the window, tumbling out. She caught sight of him just as he was disappearing. He fell through the sky-light, and sustained injuries to his head, etc., for which he brought this action. Mrs. O'Brien gave it as her opinion "that, if the wire had been on, it had been all right for the boy." From her own description, it is perfectly obvious the wire screen was not placed there to catch people, or prevent their falling through the sky-light, but for the purpose of saving the glass in the sky-light. The plain- tiff recovered a verdict, which has been affirmed at the general term, and the defendant appeals here. Upon the case as made by the plaintiff, we are unable to see that any proof was given of the violation of any duty which the defendant owed to the plaintiff. The roof over the saloon, or the sky-light there- in, was not a dangerous structure, and defendant had given no in- vitation, and issued no license, expressed or implied, to plaintiff to go upon the roof. Mrs. O'Brien had the right to go on it for the purpose suggested, and very likely any agent or servant of hers en- gaged in that occupation for her. This is no such case. If there had been no roof at this place, the plaintiff would, on falling out of the window, have come to the ground. Can it be contended, in such case, the defendant would have been liable? If not, how is his lia- bility increased by the fact that there is a roof just below these win- dows, but in it there is a sky-light which a child's weight could break ? If the defendant owes no duty in the one case to build a roof or .a wall or any other structure under these windows to catch people who fall out of them, how is his liability increased when he does build a structure with a roof, but which does not absolutely prevent one from falling through it because of a. sky-light? But the liability seems to have been placed, in the court below, upon the duty which it is said the defendant owed Mrs. O'Brien to furnish her a reasonably safe roof when he let her the right to go upon it to dry clothes. If that be assumed, we do not see how plaintiff is aided. Mrs. O'Brien was not injured, nor any of her servants, by reason of the unfitness of the roof for the purpose for which it was to be used by her or them. The plaintiff was not injured while he was using the roof at all. He simply fell out of a window, (as the evidence shows beyond all question,) and thus received his injury. What had the liability (whatever it was) of defendant to Mrs. O'Brien to do with this question between plaintiff and himself, as the plaintiff was not GENERAL PRINCIPLES. 9 using the roof for any purpose whatever? Conceding that to fulfill his obligations to Mrs. O'Brien, and to render the roof fit for her to use for the purpose spoken of, this wire screen was a necessity, and that if it had been there on this occasion the plaintiff would not have been hurt, still there was no duty owing by him to this plaintiff to have the roof in that condition, so that he could be caught when he fell out of the window, and the injury thus be averted. The duty of defendant to Mrs. O'Brien, in order to fulfill his contract with her in granting her permission to use the roof, is one thing; but the plaintiff cannot take advantage even of its violation, unless at the time when the accident happened he was himself in some way connected with her, as in the performance of the duty for her, or in using the roof with her license, (even if that would raise a duty,) and in carry- ing out some right which she had herself. This case has none of these features. The duty of defendant may be one thing to Mrs. O'Brien and quite another to the plaintiff. Larmore v. Iron Co., 101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718. We think this case not distinguishable in principle from McAlpin v. Powell, 70 N. Y. 126, 26 Am. Rep. 555. The judgment of the general term and of the circuit should be reversed, and a new trial ordered, costs to abide event.' All concur. (A case of quite similar character Is Galligan v. Metacomet Mfg. Co., 143 Mass. 527, 10 N. E. 171. Other interesting cases holding that there is no tort where no legal duty exists are the following: Plaintiff's horse ate the leaves of a yew tree growing on defendant's adjacent land, the branches of Which did not extend over the boundary line, and died therefrom. Held, that plaintiff had no cause of action. Ponting v. Noakes, [1894] 2 Q. B. 281. Plaintiff's country house had been called "Ashford Lodge" for 60 years, and defendant's adjoining house had been called "Ashford Villa" for 40 years. Then defendant adopted the name "Ashford Lodge." Plaintiff alleged that this caused him great inconvenience and annoyance and'had diminished the value of his prop- erty, but it was held on demurrer that no legal right had been violated. Day v. Brownrigg, L. R. 10 Ch. Div. 294.) (86 Pa. 74.) GRAMLICH v. WURST et al. (Supreme Court of Pennsylvania. January 28, 1878.) NEGLIGENCE DANGEROUS PREMISES INJURY TO TRESPASSER. A lawful occupant of land, who makes an excavation thereon for a law- ful purpose and in the accustomed manner, at a distance from any public highway, is not liable for injuries received by a trespasser from falling Into the excavation. Error to Court of Common Pleas, Philadelphia County. Action on the case by Mary Wurst and others, the widow and in- fant children of John A. Wurst, deceased, against Frederick Gram- 10 LAW OF TORTS. lich, for damages for the death of said John A. Wurst, alleged to have been caused by defendant's negligence. At the trial defendant submitted several points, among them the following: "(3) The place of this excavation being on private prop- erty, and not on any line of street or public highway, but some dis- tance therefrom, the said decedent, not being engaged in any manner whatever by the said defendant or his agents, had no right to be there, and was a trespasser, and the verdict should have been for the de- fendant." The judge presiding at the trial refused this point, and instructed, in part, the jury as follows: "Now, as to the defense, it is contended by defendant: First. That there is no direct evidence how the accident happened, and therefore no sufficient evidence of defendant's negligence. In support of this view, defendant's counsel has called your attention to the fact that Wurst, when he fell in, was not on his route home from the place where he was last seen at work. His home was in another direction. Further, he was a trespasser on the lot where the excavation was, and had no legal right to be there at all. I instruct you that those facts do not absolutely prevent a recovery by the plaintiffs. A man is bound to exercise reasonable care even towards a trespasser. But these facts bear very strongly on the question of what was reasonable care on the part of defendant under the circumstances, in other words, of his negligence ; and also of the negligence of the deceased. A trespasser is bound to proceed with more care than where he has a right, and, on the other hand, the defendant was not, in ordinary circumstances, bound to anticipate a trespass. Secondly. Has the plaintiff proved to your satisfaction that, under all the circumstances of the case, the defendant was guilty of negligence?" And after reviewing the evidence the judge con- tinued: "Now, you are to judge from all this evidence whether the defendant was negligent in leaving his excavation without lights and without a fence, under the special circumstances of that night. There had been a serious accident, resulting in loss of life, and there was. according to all the testimony, a crowd of people about the place all the afternoon. This in itself would impose on the defendant more care in regard to his excavation than under ordinary circumstances. It increased the danger of injury to trespassers, as to whom, as I have already said, the defendant owed the duty of a reasonable care ; not such degree of care as required as to people who should be hab- itually and lawfully there, but such as, under all circumstances, was reasonable to require, even as to others. In judging of this care, however, the defendant is entitled to have you consider the facts that this was an extraordinary occurrence, such as he was not bound to and in fact could not anticipate ; that the street was not opened through for public travel; that the ground between the fallen ice-house and the edge of this excavation was not only steep and up-hill, but was also incumbered with piles of lumber and the debris of the fallen ice- house, so as to make it unlikely that any one would clamber over them from that direction; and, in general, the want of probability GENERAL PRINCIPLES. 11 that any person would be injured by falling into his excavation. Last- ly. You will consider the question whether the deceased was neg- ligent in going towards the cellar on a dark and rainy night," etc. The judge then stated the law as to contributory negligence, and, calling the attention of the jury to the care incumbent on deceased under the circumstances, instructed them that contributory negligence on his part would bar a recovery. The jury found a verdict for plain- tiffs for $4,000. Plaintiffs subsequently filed a remittitur of $1,000 of that amount. Defendant sued out a writ of error, and assigned as error the refusal of the judge to affirm the point mentioned. Argued before AGNEW, C. J., and SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD, and TRUNKEY, JJ. WOODWARD, J. John Adam Wurst was killed by falling into a vault which Frederick Gramlich, the defendant below, was employed in excavating on a lot belonging to Adam Miller, on the east side of Thirty-First street, above Jefferson. The work was done under a contract between Gramlich and Miller, and for the purposes of the contract Gramlich had exclusive possession of the lot. Another per- son had fallen into the vault, and, in approaching to aid him in re- sponse to his cries for help, it is probable that Wurst met with the accident that caused his death. In falling, his head struck the shaft of a cart that was in use in doing the work, and which had been left overnight in the excavation. It was after dark, on the evening of the 1 3th of February, 1874, that the accident happened. On the morning of that day the roof of an ice-house on a lot of Henry Miller, inter- vening between Adam Miller's land and Jefferson street, had broken down, and Wurst, who was a carpenter, had been at work on that building during the whole of the afternoon. Michael Gossey, one of the witnesses for the plaintiffs, said he saw him about half past 3 o'clock on the top of the brewery getting wood down, and Henry Miller said : "Wurst was there before I was, clearing off the roof. It was a little after 12 o'clock when I arrived there. As long as I stood there he was working there. He was there until after seven o'clock. He was hauling away timber. It was hauled to the north side, between my brewery and the vault Mr. Gramlich was digging." There was an open space between Henry Miller's building and Adam Miller's line, and from the account which the plaintiffs gave of Wurst's employment during the day the fact that the excavation was being made must have been known to him, and the situation of the vault when the work ceased that evening must have been within his view. When he fell he was passing from the land of Henry Miller near the rear of Adam Miller's lot, and perhaps 80 feet eastwardly from the Thirty-First street front. Under these facts, and all of them that are material are gathered from the testimony on behalf of the plaintiffs, what duty did Gram- lich owe to Wurst? The contract for digging the vault was a per- fectly lawful one, and it has not been alleged that the work was done 12 LAW OF TORTS. otherwise than in the accustomed way. It was all done within Adam Miller's lines. No adjacent land was encroached upon, and no danger to passengers on any highway was created. Indeed, there was no highway to be involved in danger. Thirty-First street, north oi Jef- ' ferson, had only been opened along the property of Henry Miller, and the surface of Adam Miller's lot at the line of the street was from 10 to 15 feet above its established grade. There was some con- flicting testimony as to paths alleged to have traversed the lot, but, if there were such paths, they extended eastwardly or north-eastwardly in the direction of a lampblack factory, and it was not contested that Wurst fell into the vault as he approached it from the southern side. The existence or non-existence of paths across the property was im- material. In the ordinary case, a jury must pass upon evidence given in support of a charge of negligence. They must do this always when the measure of duty is ordinary and reasonable care, and the standard of the degree of care shifts with the change of circumstances. And they must do it also where essential facts are controverted. But where there is no conflict of testimony, and either the standard of individual duty has been judicially determined, or the rights of owners of prop- erty have been judicially defined, the decision of a question of neg- ligence affecting individual action in the one case, or the exercise of dominion over property in the other, becomes the duty of a court. Negligence is to be found upon evidence, and is not to be presumed from the bare fact of the occurrence of an accident on a defendant's land. Gramlich was in the lawful occupancy of the lot on which Wurst was killed, and was engaged in an employment that was en- tirely legitimate. In the absence of evidence to show the existence of exceptional hazards, he was not required to provide exceptional safeguards. An owner of land may improve it in his own time and in his own way, so that he violates no duty that he owes to any ad- jacent owner or to the public. A case as old as Blyth v. Topham, Cro. Jac. 158, held that "an action doth not lie if a man makes a ditch in his own waste, which lies near the highway, into which the horse of another falls; for the ditch in his own soil was no wrong to the other, but it was his fault that his horse escaped into the waste." Where A, who was the owner of a store-house and lot, left at the rear of the store-house an excavation walled up to give light to the cellar, and B, who, on an alarm of fire, went down to the store-house, adjoining the house in which the fire was, and, entering at the front door, went through the store, and, going through the back door, turned off the gangway across the opening, and fell in and was in- jured, it was held that the digging of an open space in the rear of the store-house by A, upon his own ground, was a lawful act by him, and he had the right to keep it there as an appurtenant right for the use of his property ; and B falling in by accident, the same not being near a public street or crossing, gave no right to recover damages from A as a wrong-doer, and B's going there on account of the fire did not change the rule. Kohn v. Lovett, 44 Ga. 251. The law fully GENERAL PRINCIPLES. 13 recognizes the right of him who, having the dominion of the soil, without malice does a lawful act on his own premises, and leaves the consequences of an act thereby happening where they belong, upon him who has wandered out of his way, though he may have been guilty of no negligence, in the ordinary acceptation of the term. It is purely damnum absque injuria. Morgan v. City of Hallowell, 57 Me. 377. "When an excavation is made adjoining to a public way, so that a person walking on it might, by making a false step, or being affected with sudden giddiness, fall into it, it is reasonable that the person making such excavation should be liable for the consequences. But when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case seems to me to be different." Mar- tin, B., in Hardcastle v. Railway Co., 4 Hurl. & N. 67. So where the defendants were owners of waste land which was bounded by two highways, and they worked a quarry in the waste, and the plain- tiff, not knowing of the quarry, passed over the waste in the dark and fell into the quarry and broke his leg, and then brought an action for the injury, it was held that the action could not be maintained, as there was no legal obligation on the defendants to fence the quarry for the benefit of the plaintiff, who was a mere trespasser on the land. Hounsell v. Smyth, 7 C. B. (N. S.) 731. This rule was laid down by Chief Justice Gibson in Knight v. Abert, 6 Pa. 472, 47 Am. Dec. 478, which decided that, though no action lies in Pennsylvania for trespass by cattle pasturing on uninclosed woodland, yet that, not be- ing a matter of right, the owner of the land is not liable for injuries sustained by such cattle falling into a hole dug by him within the boundaries of his land, and left uninclosed. And the opinions of Mr Justice Strong in Railroad Co. v. Hummell, 44 Pa. 378, 84 Am. Dec. 457, and of Mr. Justice Sharswood in Gillis v. Railroad Co., 59 Pa. 129, 98 Am. Dec. 317, illustrated and enforced substantially the same rule. Reliance has been placed on the case of Hydraulic Works Co. v. Orr, 83 Pa. 332, to support this judgment. The distinction between that case and this is marked and obvious. There the accident hap- pened in a private passage or cartway adjoining a factory, where several kinds of business were carried on in different stores, and was caused by the falling of a heavy platform employed as an inclined plane to move heavy articles into and out of the building. When used, it was lowered so as to cover the pavement of the cartway. When not in use, it was raised on hinges that connected one side of it within 18 inches of the wall, was not fastened at the upper side, and was so nearly at equipoise that slight force only was required to draw it down. The cartway opened from a public street, where peo- ple were constantly passing and children were often at play. There was a gate at the street end, and this was frequently left open. It was so left at the time of the accident, when four children intruded into the cartway, and their thoughtless tampering with the platform 14 LAW OF TORTS. resulted in drawing it down upon themselves, and in producing in- jury to the child of the plaintiffs from which he died. This court affirmed a verdict and judgment for damages in the common pleas. No cause was ever more justly decided. It was the case suggested by Baron Martin in Hardcastle v. Railway Co., of a dangerous ap- pliance adjoining a public way. The children were trespassers cer- tainly, but then they were children, and the defendants were bound to have regard to the reckless and thoughtless tastes and traits of childhood. The entrance to the cartway was open and unguarded, and the facts in the record showed the strong probability of danger from the structure. It had once fallen against the wheels of a wagon, and when other wagons passed it was held up by hand. Even a tres- passer may have redress for negligent injuries inflicted on him. Though he is liable to an action for his own wrong, he does not neces- sarily forfeit his right of action for injuries he has sustained, as, for example, by falling into a hole newly excavated on a defendant's prem- ises adjoining a public way, and rendering it unsafe to persons law- fully using the same with ordinary care. Barnes v. Ward, 9 C. B. 392, 420. The owner of open land has no right to plant in it spring- guns by which ordinary trespassers may be wounded. State v. Moore, 31 Conn. 479, 83 Am. Dec. 159. In this country, while a house may be thus protected from burglars, no man has a right to place on his land any instruments to injure persons merely straying on such land. Johnson v. Patterson, 14 Conn, i, 35 Am. Dec. 96. A party may be acting in violation of some particular statute, and still be under the general protection of the law. Spofford v. Harlow, 3 Allen, 176. Hydraulic Works Co. v. Orr rested on principles and precedents that sustained it amply, but which have no application here. The undis- puted facts proved the defendant to have been guiltless of all wrong, and the prayer for instruction to the jury that he was entitled to a verdict should have been granted. Judgment reversed. (See also for similar eases, Railroad Co. v. Sclnvindling. 101 Pa. 258, 47 Am. Rep. 706 ; Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365 ; Horstick v. Dunkle, 145 Pa. 220, 23 Atl. 378, 27 Am. St. Rep. 685; Peters v. Bowman. 115 CaL 345, 47 Pac. 113, 598, 56 Am. St Rep. 106.) GENERAL PRINCIPLES. 15 The violation of a moral right or duty, unless it also amounts to a legal right or duty, does not constitute a tort. (11 Pick. 527.) LAMB v. STONE. (Supreme Judicial Court of Massachusetts. October Term, 1831.) FEATJD PUBCHASE OF PBOPEBTY FBOM ABSCONDING DEBTOB. A creditor cannot maintain an action for fraud against one who has fraudulently purchased from the debtor property of the latter subject to attachment, and aided him to abscond, thereby preventing the creditor from arresting the debtor or attaching his property, or otherwise obtain- ing satisfaction of the debt ; the creditor having had no lien or claim upon or interest in the property so purchased. Though the defendant's fraudulent act is a moral wrong, no legal right of the creditor is violated thereby. Motion in Arrest of Judgment. Action on the case by Joseph Lamb against Richard Stone. The declaration contained five counts, of which the fourth alleged that one Thompson, at a place and on a date stated, was justly indebted to the plaintiff in the sum of $56.13, and was possessed of certain prop- erty, to-wit, etc., of great value, to-wit, $250; and the defendant, well knowing the premises, and fraudulently contriving to deprive the plain- tiff of the means of obtaining payment of his debt, and in order to aid and abet Thompson in his designs to evade payment of it, and thereby prevent the plaintiff from collecting and recovering it of Thompson, which he was about to do by due process of law, did fraudulently and wrongfully, and with an intent the plaintiff thereby to defraud and injure, take and receive the property from Thompson, and convert it to his (the defendant's) own use, and thereby prevented the plaintiff from collecting his debt by attaching and selling the property by due prqcess of law, as he might and would otherwise have done; whereby the plaintiff has been ever since prevented from recovering his debt of Thompson,' and wholly deprived of the benefit of the same, and the same is still due and unpaid. The fifth count alleges that whereas Thompson, at the same place and on the same date, was indebted to the plaintiff in the sum of $56, and was fraudu- lently and wrongfully contriving and intending to prevent the plaintiff from recovering the same of Thompson by putting out of his pos- session the property and estate of which he was possessed, so that the same could not be come at to be attached by due process of law, and avoiding the process of law provided for the collection of debts, by going out of the commonwealth and the reach of said process, of all which the defendant was then and there well knowing, he, the defendant, did, in order to aid and abet Thompson in his wrongful and fraudulent intent, and with the intent to injure arid defraud the plaintiff of his demand against Thompson, take into his possession, 16 , LAW OF TORTS. purchase and receive the property and estate of Thompson, then and there being found, of great value, to-wit, $250, and did fraudulently, and with the intent to deprive the plaintiff of the means of recovering his debt of Thompson, aid, abet, and assist Thompson to avoid the process of law provided for the collection of debts, by departing out of the commonwealth, which Thompson did, and has ever since re- mained without the reach and effect of the legal process of the com- monwealth, in foreign parts, to-wit, in the state of Vermont, whereby the plaintiff was deprived of the means of collecting his debt, as he might and would otherwise have done, and was about to do, by at- taching the property or arresting the body of Thompson by due pro- cess of law; and has ever since been deprived of his debt, and all means of collecting the same or enforcing payment thereof, and has wholly lost the same, and has been otherwise greatly injured by the fraudulent doings of the defendant as aforesaid. The defense was the general issue. At the trial the jury found a general verdict for plaintiff. Defendant moved in arrest of judgment, on the ground that the declaration set forth no sufficient cause of action. MORTON, J. This case comes before us on a motion in arrest of judgment. The verdict of the jury establishes every material al- legation in the plaintiff's declaration; and every fact substantially set forth is to be taken to be true. The question for our decision is whether these facts are sufficient to entitle the plaintiff to judgment. Although the verdict is general, yet in this case, if either count is good, the verdict may be applied to that count, and judgment be ren- dered upon it. The following are all the material allegations con- tained in either of the counts: That the plaintiff had a just debt due him from one Thompson ; that the latter had property liable to attach- ment sufficient to pay this debt; that the defendant took a fraudulent conveyance of this property; that Thompson has absconded from the state ; that the plaintiff has not been able to arrest him, to attach his property, or otherwise to obtain satisfaction of his debt ; and that the acts done by the defendant were done with intent to defraud the plaintiff, by preventing him from securing or getting satisfaction of his debt. Some of these are omitted in several of the counts, but no one contains any other material allegation. Will these facts support an action? Before proceeding to the investigation of the main question, it may be proper to remark that the declaration contains no averment that Thompson is insolvent, or that he has not, where he now resides, property liable to be taken sufficient to satisfy the debt, or that any suit has ever been commenced against him, or any attempt made to arrest his body or attach his property; nor is it alleged, except by implication, that he has not in this state real estate or personal prop- erty, other than that transferred to the defendant, liable to attach- ment. It ought also to be further remarked that this is not an action of conspiracy or of case in the nature of conspiracv. It is not founded GENERAL PRINCIPLES. 17 upon any illegal combination or confederacy. The declaration does not set forth any conspiracy to defraud the plaintiff or to evade or defeat any legal process. No such fact can be presumed to exist, and therefore we have no occasion to determine what effect such an aver- ment would have. It will, however, be perceived that some of our reasoning would apply to such an action as well as the one before us. This is a special action on the case, depending upon the precise facts set forth in the declaration. It is an action of new impression. It is admitted that no precedent can be found for it. This circum- stance of itself forms a pretty strong objection. It ought, however, to have less weight in this than any other form of action. In the diversified transactions of civilized life, new combinations of circum- stances will sometimes arise which will require, in the application of well-settled principles of law, new forms of declarations. Among the old and wise axioms of the law, none are more sound than those upon which the plaintiff attempts to found this action. In law, for every wrong there is a remedy. 3 Bl. Comm. 123 ; Ashby v. White, 1 Salk. 21. Whenever the law creates or recognizes a private right, it also gives a remedy for a violation of it. i Chit. PI. 83 ; Yates v. Joyce, ii Johns. 140. The general principle, that whenever there is fraud or deceit by the one party and injury to the other, or damnum cum injuria, there an action will lie, is very often referred to with approbation, and always recognized as good law. Upton v. Vail, 6 Johns. 182, 5 Am. Dec. 210; Pasley v. Freeman, 3 Term R. 51; Eyre v. Dunsford, I East, 329. But these principles, however sound, must be understood with such qualifications and limitations as other principles of law equally sound necessarily impose upon them. It is very clear that there may be many moral wrongs for which there can be no legal remedy. And there may be legal torts in which the dam- age to individuals may be very great, and yet so remote, contingent, or indefinite as to furnish no good ground of action. 3 Term R. 63. Without entering further into the explanation of these principles, their extent, qualifications, or limitations, we will proceed to inquire how far they may be relied upon in support of this action. To render them applicable, the plaintiff must show that he has sustained damage from the tortious act of the defendant, for which the established forms of law furnish him no remedy. If he may have redress by any of the forms of actions now known and practiced, it would be unwise" and unsafe to sanction an untried one, the practical operation of which cannot be fully foreseen. The court will adopt a new remedy to pre- vent the failure of justice, or to enforce the settled principles of law, but never when justice can be attained by any of the remedies already known to the law. Com. Dig. "Action on the Case," B. 8. The gist of the injury complained of is the fraudulent purchase by the defendant of the property of the plaintiff's debtor. If the sale was fraudulent, it might be avoided by the creditors, and the property was liable to attachment after as well as before the conveyance. The fraud could be established quite as easily in a suit for the chattels CHASE (2d ED.) 2 lg LAW OF TORTS. themselves as in the present case. There is no averment that the defendant had concealed the property, removed it out of the common- wealth, or in any other way so disposed of it that it could not be attached. But even if it were so, and the property could not be come at to be attached specifically, yet it might be attached in the defend- ant's hands by the trustee process. In this event the defendant would be compellable to disclose all the circumstances attending the trans- action on oath, and, if he did not answer truly, would be liable to a special action on the case, by St. 1794, c. 65, 9. It would be diffi- cult to show any good reason why the plaintiff might not obtain legal justice in the one or the other of these modes, as easily and surely as by the present action. Burlingame v. Bell, 16 Mass. 320 ; Devoll v. Brownell, 5 Pick. 448. It was said in argument by the plaintiff's counsel that, if he re- sorted to the trustee process, the defendant would be entitled to any equitable set-off which he might have against his principal ; that, if he had made advances or paid debts in good faith, he would be al- lowed to apply them towards satisfaction for the property conveyed to him; and so the plaintiff could not avail himself of the full value of the property. Andrews v. Ludlow, 5 Pick. 32; Ripley v. Sever- ance, 6 Pick. 474, 17 Am. Dec. 397 ; Type & Stereotype Foundry Co. v. Mortimer, 7 Pick. 166, 19 Am. Dec. 266. And why should it not be so? If the defendant paid bona fide the value of the property, the plaintiff is not injured. The owner had good right to sell to whom he pleased, and to prefer any other of his creditors to the plaintiff. If the fraudulent conduct of the defendant has done no injury to the plaintiff, he cannot complain. He cannot have the aid of the law to speculate upon the defendant's fraud. The law will protect him from damage, but will not enable him to derive advantage from the fraudu- lent conduct of the defendant. This action, if sustained, would es- tablish a precedent which would produce in practice great incon- venience, and oftentimes do manifest injustice. If the plaintiff may maintain this action against the defendant, so may every creditor of Thompson. The plaintiff had done nothing to give him priority. Shall the fraudulent purchaser be holden to pay all the debts of the fraudulent vendor? Justice does not require this. The conveyance might be fraudulent in law, and yet there might be no moral turpitude In the transaction. The property conveyed might be very small, and the debts very large. Shall the value of the property transferred be apportioned among all the creditors? By what rules shall the appor- tionment be made? Shall the creditor who first sues be entitled to the whole, if his debt be large enough to require the whole for its satisfaction? If one creditor should attach the property specifically, another should summon the fraudulent vendee as trustee of the vendor, and a third should commence an action like this, which would have the preference ? Can the same party resort to more than one of these remedies at the same time? And would the judgment in the one be a bar to the other? Many cases might occur in which it would be ex- GENERAL PRINCIPLES. 19 tremely difficult to adopt any rule of damages which would do justice to all the parties interested. But besides these practical inconveniences, which are of themselves insurmountable, there is another objection fatal to the present action. The injury complained of is too remote, indefinite, and contingent- To maintain an action for the deceit or fraud of another, it is indis- pensable that the plaintiff should show, not only that he has sus- tained damage and that the defendant has committed a tort, but that the damage is the clear and necessary consequence of the tort, and that it can be clearly defined and ascertained. What damage has the plaintiff sustained by the transfer of his debtor's property? He has lost no lien, for he had none. No attachment has been defeated, for none had been made. He has not lost the custody of his debtor's body, for he had not arrested him. He has not been prevented from attaching the property or arresting the body of his debtor, for he never had procured any writ of attachment against him. He has lost no claim upon or interest in the property, for he never had acquired either. The most that can be said is that he intended to attach the property, and the wrongful act of the defendant has prevented him from executing his intention. Is this an injury for which an action will lie? How can the secret intentions of the party be proved? It may be he would have changed this intention. It may be the debtor would have made a bona fide sale of the property to some other person, or that another creditor would have attached it, or that the debtor would have died insolvent before the plaintiff could have executed his intention. It is therefore entirely uncertain whether the plaintiff would have secured or obtained payment of his debt, if the defendant never had interfered with the debtor or his property. Besides, his debt remains as valid as it ever was. He may yet obtain satisfaction from property of his debtor, or his debtor may return and pay him. On the whole, it does not appear that the tort of the defendant caused any damage to the plaintiff. But even if so, yet it is too remote, indefinite, and contingent to be the ground of an action. Among the many cases cited by the plaintiff's counsel, those of Adams v. Paige, 7 Pick. 542; Yates v. Joyce, n Johns. 136; and Smith v. Tonstall, Carth. 3, bear the greatest resemblance to the case at bar. But an examination of these cases will not only show that there is an obvious and broad distinction between them and the one under consideration, but that the principles adopted in all of them support the ground now taken by the court. In Adams v. Paige the plaintiffs had made an attachment of the property of their debtor. The two defendants, one of whom was the debtor, had caused a pre- vious attachment to be made of the same property on a fictitious debt which they had created for the purpose of preventing attachments on bona fide debts. The suit upon which the fraudulent attachment was made was pursued to judgment, the property attached was sold on execution, and the proceeds of the sale remained in the hands of the 20 LAW OF TORTS. fraudulent judgment debtor. Now, by these collusive acts, the plain- tiffs' attachment was defeated, and the price of the property, which, but for the fraudulent acts of the defendants, would have been applied to the satisfaction of the plaintiffs' execution, was holden by one of the defendants. Here the loss of the debt was the consequence of the loss of the lien, and the loss of the lien was the clear and certain con- sequence of the fraudulent conduct of the defendants. The injury was direct and certain, and the damages easily shown and defined. The justice of the plaintiffs' claim was very obvious, and their re- covery founded on the soundest principles of law. Besides, if we were looking for distinctions between Adams v. Paige and the case at bar, it would be sufficient to state that the former was an action for a conspiracy between two, to defraud the plaintiffs by means of a fictitious debt and a collusive judgment, in which the unlawful con- federacy was the gist of the action. In Yates v. Joyce, the plaintiff, by means of a judgment against his debtor, had, according to the laws of New York, acquired a lien on certain property, which was injured and reduced in value by the tortious acts of the defendant, so as to be insufficient to satisfy the plaintiff's judgment. The plain- tiff suffered an injury for which he had no other remedy. The dam- age was definite and certain, and was the direct and necessary con- sequence of the defendant's tort. His right to recover was unques- tionable. The old case of Smith v. Tonstall, Carth. 3, is very similar, and rests upon the same principle. The plaintiff having obtained a judgment against one S, the defendant procured S to confess a judg- ment to himself when nothing was due to him. This collusive judg- ment was satisfied by the sale of goods on which the plaintiff, by his prior judgment, had acquired a lien; thus placing in the defendant's hands the price of goods which were liable for the plaintiff's judgment. In all these cases the plaintiffs had a clear and valuable interest in or lien on certain property, which was defeated or destroyed by the tor- tious acts of the defendants. Not so in the case at bar. The plaintiff does not allege that he had any special property or any interest in or claim on any property which was destroyed or injured by any act of the defendant. And we are all of opinion that he has not set forth any such ground of action as can be sustained upon any known prin- ciples of law. Vernon v. Keys, 12 East, 632. Judgment arrested. (The doctrines established by this case are also upheld by the following de- cisions: Bradley v. Fuller, 118 Mass. 239; Adler v. Fenton, 24 How. 407, 16 L. Ed. 696 ; Moody v. Burton, 27 Me. 427, 46 Am. Dec. 612 ; Hall v. Eaton, 25 Vt 458; Klous v. Hennessey, 13 R. I. 332; Austin v. Barrows, 41 Conn. 287 ; Hurwitz v. Hurwitz, 10 Misc. Rep. 353, 31 N. Y. Supp. 25. As to the general rule that a violation of a right or duty, which is moral only and not legal, will not constitute a cause of action, see Randall v. Hazel- ton, 12 Allen, 412; Hutchins v. Hutchins, 7 -Hill, 104; Heywood v. Tillson, 75 Me. 225, 46 Am. Rep. 373 ; remarks of Stephen, J., in Alderson v. Maddison, 5 Exch. Div., at page 296 ; remarks of Lord Herschell in Derry v. Peek, L. R. 14 App. Gas., at page 376.) GENERAL PRINCIPLES. 21 Illustration of the establishment of legal rights by the common law, in the decision of "cases of novel im- pression." (150 N. Y. 176, 44 N. E. 773, 34 L. R. A. 156, 55 Am. St Rep. 670.) KUJEK v. GOLDMAN et al. (Court of Appeals of New York. October 6, 1896.) DECEIT WHEN ACTION LIES, THOUGH THERE is No PBECEDENT THEBEFOB. An action lies against one who induced plaintiff to marry a woman by representing that she was virtuous, when she was at the time with child by defendant. The fact that there is no precedent for such an action does not preclude recovery. Appeal from Common Pleas of New York City and County, Gen- eral Term. Action by Johann August Kujek against Manassah L. Goldman, impleaded with Katie Kujek. No answer was served .by defendant Kujek, and no judgment was taken against her. From a judgment of the general term of the court of common pleas (9 Misc. Rep. 34, 29 N. Y. Supp. 294) affirming a judgment of the city court (5 Misc. Rep. 360, 25 N. Y. Supp. 753) affirming a judgment entered on a verdict against defendant Goldman, he appeals, by permission. Af- firmed. Prior to January 17, 1891, the defendant Katie Kujek, then named Katie Moritz, was an unmarried woman employed as a domestic in the family of the defendant Goldman, by whom she had become preg- nant. Upon discovering the fact, the defendants, as it is alleged in the complaint, conspired to conceal their disgrace, and to induce the plaintiff to marry the said Katie, and to that end represented to him that she was a virtuous and respectable woman, and he, believing the same, did marry her on the day last named. The plaintiff, as it was further alleged, would not have contracted said marriage if he had known the facts. Subsequently, and on July 29, 1891, owing to such pregnancy, she gave birth to a child, of which said Goldman was the father. The answer of Goldman was, in substance, a general denial. No answer was served by the other defendant, and no judgment was taken against her. The evidence tended to sustain the allegations of the complaint. VANN, J. (after stating the facts). The verdict of the jury has established as the facts of this case, beyond our power to review, that the plaintiff married Katie Moritz in the belief that she was a virtuous girl, induced by the representations of the defendant to that effect when in fact she was at the time pregnant by the defendant himself. The case was submitted to the jury upon the theory that if Goldman, knowing that Katie was unchaste, by false representations that she 22 LAW OF TORTS. was virtuous induced the plaintiff to marry her, he was entitled to recover damages, and the jury found a verdict in his favor for $2,000. While no precedent is cited for such an action, it does not follow that there is no remedy for the wrong, because every form of action, when brought for the first time, must have been without a precedent to sup- port it. Courts sometimes of necessity abandon their search for prec- edents, and yet sustain a recovery upon legal principles clearly ap- plicable to the new state of facts, although there was no direct prec- edent for it, because there had never been an occasion to make one. In remote times, when actions were so carefully classified that a mis- take in name was generally fatal to the case, a form of remedy was devised by the courts to cover new wrongs as they might occur, so as to prevent a failure of justice. This was called an "action on the case," which was employed where the right to sue resulted from the peculiar circumstances of the case, and for which the other forms of action gave no remedy. 26 Am. & Eng. Enc. Law, 694. For in- stance, the action for enticing away a man's wife, now well estab- lished, was at first earnestly resisted upon the ground that no such action had ever been brought. In an early case the court answered this position by saying: "The first general objection is that there is no precedent of any such action as this, and that, therefore, it will not lie; and the objection is founded on Litt. 108, and Co. Litt. 8ib, and several other books. But this general rule is not applicable to the present case. It would be if there had been no special action on the case before. A special action on the case was introduced for this reason: that the law will never suffer an injury and a damage with- out a remedy, but there must be new facts in every special action on the case." Winsmore v. Greenbank, Willes, 577, 580. As was re- cently said by this court in an action then without precedent, "If the most that can be said is that the case is novel, and is not brought plainly within the limits of some adjudged case, we think such fact not enough to call for a reversal of the judgment." Piper v. Hoard, 107 N. Y. 73, 76, 13 N. E. 626, 629, i Am. St. Rep. 789. The ques- tion therefore is not whether there is any precedent for the action, but whether the defendant inflicted such a wrong upon the plaintiff as resulted in lawful damages. The defendant by deceit induced the plaintiff to enter into a marriage contract, whereby he assumed certain obligations, and became entitled to certain rights. Among the obliga- tions assumed was the duty of supporting his wife in sickness and in health, and he discharged this obligation by expending money to fit up rooms for housekeeping, in keeping house with his wife, and caring for her during confinement, when she bore a child, not to him, but to the defendant. Among the rights acquired was the right to his wife's services, companionship, and society. By the fraudulent con- duct of the defendant, he was not only compelled to expend money to support a woman whom he would not otherwise have married, but was also deprived of her services while she was in childbed. He thus sustained actual damages to some extent; and as the wrong in- GENERAL PRINCIPLES. 23 volved not only malice, but moral turpitude also, in accordance with the analogies of the law upon the subject the jury had the right to make the damages exemplary. By thus applying well-settled prin- ciples upon which somewhat similar actions are founded, this action can be sustained, because there was a wrongful act in the fraud, that was followed by lawful damages, in the loss of money and services. The fact that the corruption of the plaintiff's wife was before he mar- ried her does not affect the right of action, as the wrong done to him was not by her defilement, but by the representation of the defendant that she was pure when he knew that she was impure, in order to bring about the marriage. It is difficult to see why a fraud which, if practiced with reference to a contract relating to property merely, would support an action, should not be given the same effect when it involves a contract affecting, not only property rights, but also the most sacred relation of life. Fraudulent representations with refer- ence to the amount of property belonging to either party to a pro- posed marriage, made by a third person for the purpose of bringing about the marriage, are held to constitute an actionable wrong, and the usual remedy is to require the person guilty of the fraud to make his representations good. Piper v. Hoard, supra; Mon^efiori v. Monte- fiori, I W. Bl. 363; Ath. Mar. Sett. 484. In such cases the injury is more tangible, and the measure of damages more readily applied, than in the case before us; but both rest upon the principle that he who by falsehood and fraud induces a man to marry a woman is guilty of a wrong that may be remedied by an action, the amount of dam- ages to be recovered depending upon the circumstances of the particu- lar case. We have thus far considered the right of action as resting upon some pecuniary loss, which, although trifling in amount, may be re- covered as a matter of right, leaving it to the jury, in their sound dis- cretion, as in a case for the seduction of a child or servant, to amplify the damages by way of punishment and example. We think, how- ever, that the action can be maintained upon a broader and more satis- factory ground, and that is the loss of consortium, or the right of Jthe husband to the conjugal fellowship and society of his wife. The loss of consortium through the misconduct of a third person has long been held an actionable injury, without proof of any pecuniary loss. Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553 ; Hutch- eson v. Peck, 5 Johns. 196; Hermance v. James, 32 How. Prac. 142. As has been well said by a recent writer: "To entice away, or cor- rupt the mind and affection of, one's consort, is a civil wrong, for which the offender is liable to the injured husband or wife. The gist of the action is not in the loss of assistance, but the loss of consortium of the wife or husband, under which term are usually included the person's affection, society, or aid." Bigelow, Torts, 153. The dam- ages are caused by the wrongful deprivation of that to which the husband or wife is entitled by virtue of the marriage contract. They rest upon the loss of a right which the marriage relation gives, and 24 LAW OF TORTS. of which it is an essential feature. Whether that right is wrongfully taken away after it is acquired, or the person entitled to it is wrong- fully prevented from acquiring it, does not change the effect or lessen the injury. While the plaintiff has not been actually deprived of the society of his wife, he has been deprived of that which made her society of any value, the same as if she had been seduced after mar- riage.' Although the formal right to consortium may remain, the sub- stance has been taken away. In other words, when he entered into the marriage relation he was entitled to the company of a virtuous woman, yet through the fraud of the defendant that right never came to him. He has never enjoyed the chief benefit springing from the contract of marriage, which is the comfort, founded upon affection and respect, derived from conjugal society. If the defendant had de- prived the plaintiff of his right to consortium after marriage, the law would have afforded a remedy 'by the award of damages. Yet the plaintiff, through the fault of the defendant, has suffered a loss of the same nature and to the same extent, except that, instead of losing what he once had, he has been prevented from getting it when he was entitled to it. This is a difference in form only, and is without sub- stantial foundation. The injury, although effected by fraud before marriage, instead of by seduction after marriage, was the same, and why should not the remedy be the same? While the method of in- flicting the injury is not the same, as it is tortious in character, has substantially the same effect, and causes damages of the same nature and to the same extent, why should damages be recovered- in the one case if not in the other? Where false representations are willfully made as to a material fact, for the purpose of inducing another to act upon them, and he does so act to his injury, he may recover such damages as proximately result from the deception. The representa- tions in this case, as the jury has found, were made to promote the marriage, and they were false, as the defendant well knew. They were clearly material. The plaintiff acted upon them, and was there- by injured; for he made a contract entitling him to certain rights, which he has not received, and which the defendant knew he could never receive. Here are all the elements of a good cause of action founded upon fraud resulting in damage. The contract induced by the fraud was of a peculiar nature, but it was in law simply a con- tract, conferring certain rights, and imposing certain obligations. While it is not agreeable to treat a subject of sacred importance upon this narrow basis, it is necessary to do so, for our law considers mar- riage in no other light than as a civil contract. If the defendant had induced the plaintiff to enter into any other contract by making false statements of fact, which if true would have made the contract more valuable, he would have been liable for all the damages that naturally resulted. If he had induced the very marriage contract under con- sideration by representing to the plaintiff that he owed his proposed wife a certain sum of money, according to the common law, which entitles the husband to the personal property of his wife, he could GENERAL PRINCIPLES. 25 have been compelled to make his representations good by the payment of that sum. Montefiori v. Montefiori, supra; Redman v. Redman, i Vern. 348 ; Neville v. Wilkinson, I Brown, Ch. Cas. 543 ; Scott v. Scott, i Cox, 378. These cases, as well as the more important case of Piper v. Hoard, supra, rest upon the principle that fraudulent rep- resentations as to the pecuniary condition of one party to a proposed marriage, made by a third person to the other party thereto, in order to promote the marriage, are actionable, and authorize the recovery of such damages as may be proved. In this case we have a repre- sentation that did not relate to property directly, although it involved rights in the nature of property, but did relate to character, and so vitally that its falsity was destructive of all happiness belonging to the plaintiff by virtue of his marriage. The injury was not merely sentimental, for, as has been shown, it extended to a right which the law recognizes as of pecuniary value, and for the wrongful destruc- tion of which it awards damages. We think that the facts found war- rant the recovery, and, after examining all the exceptions, are of the opinion that the judgment should be affirmed, with costs. All concur, except BARTLETT, J., not voting. Judgment affirmed. (For other interesting cases "of a novel impression," see Cleary v. Booth, [1893] 1 Q. B. 465 ; Western Counties Manure Co. v. Lawes Chemical Manure Co., L. R. 9 Ex. 218 ; Randlette v. Judkins, 77 Me. 114, 52 Am. Rep. 747 ; Lamb v. Stone, 11 Pick. 527 ; Winterbottom v. Wright 10 M. & W. 109. These last two cases are reported infra, pages 15, 151.) (121 Mass. 393, 23 Am. Rep. 279.) RICE v. COOLIDGE et al. (in part). (Supreme Judicial Court of Massachusetts. December 1, 1876.) DEFAMATION SUBORNATION OF PERJURY ACTION WITHOUT PRECEDENT. One who suborns witnesses to swear falsely to defamatory statements concerning another, in a suit to ivhich neither of them is a party, is liable to an action by the person whose character is so defamed. That the per- jured witness is protected by his personal privilege from a civil suit does not exempt the person who suborns him, they being joint tort-feasors. Nor is the novelty of such an action a valid objection thereto. Demurrer to declaration, Suffolk County. Action by Sarah M. Rice against John T. Coolidge and others. De- fendants demurred to plaintiff's declaration. MORTON, J. This is an action of tort. The principal question raised by the demurrer is whether the plaintiff's declaration states any legal cause of action. Each count alleges, in substance, that a proceeding for divorce was pending in the courts of the state of Iowa between Joseph S. Coolidge and Mary L,. Coolidge, in which the latter 26 LAW OF TORTS. alleged that the said Joseph S. Coolidge had been guilty of adultery with the plaintiff ; that the defendants conspired together and with the said Mary L. Coolidge to procure and suborn witnesses to falsely tes- tify in support of said charges of adultery; and that the defendants, in pursuance and execution of said conspiracy, did procure and suborn certain witnesses named, to testify in said divorce suit, and to falsely swear to criminal sexual intercourse between the plaintiff and said Joseph S. Coolidge, and between the plaintiff and other persons, and to various other acts and things which, if believed, would tend to bring disgrace and infamy upon the plaintiff. The question is pre- sented, therefore, whether the plaintiff can maintain an action of tort, in the nature of the common-law action on the case, against the defendants for suborning witnesses to falsely swear to defamatory statements concerning the plaintiff in a suit in which neither of the parties to this suit was a party. It requires no argument to show that the acts charged as done by the defendants, if proved, are a great wrong upon the plaintiff. It is a general rule of the common law that a man shall have a remedy for every injury. The plaintiff should have a remedy for the injury done to her by the defendants, unless there are some other rules of law, or some controlling considerations of public policy, which take the case out of this rule. The defendants contend that the witnesses who uttered the defamatory statements are protected from an action, because they were statements made in the course of judicial proceed- ings, and that, therefore, a person who procured and suborned them to make the statements is not liable to an action. It seems to be set- tled by the English authorities that judges, counsel, parties, and wit- nesses are absolutely exempted from liability to an action for defama- tory words published in the course of judicial proceedings. Hender- son v. Broomhead, 4 Hurl. & N. 569; Revis v. Smith, 18 C. B. 126; Dawkins v. Rokeby, L. R. 8 Q. B. 255, and cases cited; affirmed, L. R. 7 H. L. 744; Seaman v. Netherclift, I C. P. Div. 540. The same doctrine is generally held in the American courts, with the qualifica- tion, as to parties, counsel, and witnesses, that, in order to be privi- leged, their statements made in the course of an action must be per- tinent and material to the case. White v. Carroll, 42 N. Y. 161, I Am. Rep. 503; Smith v. Howard, 28 Iowa, 51; Barnes v. McCrate, 32 Me. 442; Kidder v. Parkhurst, 3 Allen, 393; Hoar v. Wood, 3 Mete. (Mass.) 193. In the last-cited case, Chief Justice Shaw says: "We take the rule to be well settled by the authorities that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable, if they are applicable and pertinent to the subject of inquiry." We as- sume, therefore, for the purposes of this case, that the plaintiff cannot maintain an action against the witnesses in the suit in Iowa for their defamatory statements, though they were false. But it does not fol- low that she may not maintain an action against those who, with GENERAL PRINCIPLES. 27 malice and intent to injure her, procured and suborned those wit- nesses to testify falsely. The reasons why the testimony of witnesses is privileged are that it is given upon compulsion, and not voluntarily ; and that, in order to promote the most thorough investigation in courts of justice, public policy requires that witnesses shall not be re- strained by the fear of being vexed by actions at the instance of those who are dissatisfied with their testimony. But these reasons do not apply to a stranger to the suit, who procures and suborns false wit- nesses, and the rule should not be extended beyond those cases which are within its reasons. The argument that an accessory cannot be held civilly liable for an act for which no remedy can be had against the principal is not satisfac- tory to our minds. The perjured witness and the one who suborns him are joint tort-feasors, acting in conspiracy or combination to injure the party defamed. The fact that one of them is protected from a civil suit by a personal privilege does not exempt the other joint tort-feasor from such suit. A similar argument was disregarded by the court in Emery v. Hapgood, 7 Gray, 55, 66 Arrr. Dec. 459, where it was held that the defendant, who instigated and procured an officer to arrest the plaintiff upon a void warrant, was liable to an action of tort therefor, although the officer who served the warrant was protected from an action for reasons of public policy. The defend- ants rely upon the cases of Bostwick v. Lewis, 2. Day, 447, and Smith v. Lewis, 3 Johns. 157, 3 Am. Dec. 469. But those cases turn upon a principle which does not apply in the case at bar. The facts in those cases were as follows : Lewis brought an action in Connecticut against several defendants, in which he prevailed. Afterwards Bostwick, one of the defendants in the original action, brought an action in Connecti- cut against Lewis, for suborning a witness in that action; and Smith, another of the defendants, brought a similar action in New York. It was held in each case that the action could not be maintained, be- cause, in the language of Mr. Justice Kent, it was "an attempt to overhaul the merits" of a former suit. The case of Dunlap v. Glid- den, 31 Me. 435, 52 Am. Dec. 625, is to the same effect. Although the parties to a former action cannot retry its merits while a judg- ment therein is in force and unreversed, yet any person who was not a party to the action or in privity with a party may, in a collateral action, impeach the judgment and overhaul the merits of the former action. Those cases, therefore, are not decisive of the case at bar. The defendants argue that an action of this nature ought not to be maintained, because the plaintiff therein might, by the testimony of a single witness, prove that a witness in another action had com- mitted perjury. The rule of law that a man cannot be convicted of perjury upon the unaided testimony of one witness is a rule applica- ble only to criminal proceedings. The argument may go to show that the rule ought to be extended to civil cases in which perjury is charged against a witness, but it does not furnish a satisfactory rea- 28 LAW OF TORTS. son why a plaintiff should be altogether deprived of a remedy for an injury inflicted upon him. It is also urged, as an argument against the maintenance of this action, that it is a novelty. The fact that an action is without a prece- dent would call upon the court to consider with care the question whether it is justified by correct principles of law; but, if this is found, it is without weight. In answer to the same argument, Lord Chief Justice Willes said : "A special action on the case was intro- duced for this reason, that the law will never suffer an injury and a damage without a remedy, but there must be new facts in every spe- cial action on the case." Winsmore v. Greenbank, Willes, 577. Up- on a careful consideration of the case, we are of opinion that there are no rules of law and no reasons of public policy which deprive the plaintiff of her remedy for the wrong done her by the defendants by suborning witnesses to defame her character. Demurrer overruled. (It is well settled that, at common law, a party to an action, who has been cast in a judgment through the perjury of a witness who testified against him, cannot maintain a civil action against the witness for perjury, nor against the opposite party for suborning the perjury. Verplanck v. Van Buren, 76 N. Y., at page 259 ; Young v. Leach, 27 App. Div. 293, 50 N. Y. Supp. 670 ; Garing v. Fraser, 76 Me. 37 ; Taylor v. Bidwell, 65 Cal. 489, 4 Pac. 491 ; cf. Bynoe v. Bank of England, [1902] 1 K. B. 467. The reason why the opposing party is not liable is that an action against him would be "an attempt to re-examine the merits of a ju'dgment in a collateral suit between the same parties. Reasons of public policy and uniform authority forbid the attacking and impeachment of a judgment in this way." Stevens v. Rowe, 59 N. H. 578, 47 Am. Rep. 231. The reason why the witness is not liable is that "public policy and the safe administration of justice require that witnesses be privileged against any re- straint excepting that imposed by the penalty for perjury, and that the merits of the judgment cannot be re-examined by a trial of the witness's testimony In a suit against him." Id. Sometimes, however, by modern statutes, the above rule is changed, and an action will lie for perjury or subornation of perjury. Landers v. Smith, 78 Me. 212, 3 Atl. 463.) Illustration of the creation of legal rights or legal duties by statute. (78 N. Y. 310, 34 Am. Rep. 536.) WILLY v. MULLEDY (in part). (Court of Appeals of New York. September 30, 1879.) L NEGLIGENCE STATUTORY DUTY FIRE-ESCAPES. Laws N. Y. 1873, c. 863, tit. 13, 36, which requires the owners of tene- ment-houses to provide them with fire-escapes, etc., imposes on such an owner an absolute duty for the benefit of his tenants, and he is liable for a breach of such duty causing damage to a tenant GENERAL PRINCIPLES. 29 2. SAME CONTRIBUTORY NEGLIGENCE. That a tenant had taken rooms in such a house not provided with a fire- escape, and had occupied them for a few days previous to the fire causing the injury complained of by him, does not relieve the owner from liability therefor, where it is not shown that the tenant knew there was no fire- escape. He had the right to assume that the statutory duty had been per- formed, and owed no duty to tlau owner to make an examination to see whether it had been done. 8. SAME EVIDENCE. In such a case, on the question of the probability that an occupant of the house, whose death was caused by the fire, would have escaped had there been a fire-escape as required by the statute, it may be inferred from the construction of the house and the structure of fire-escapes where one would probably have been placed. 4. SAME. And the facts that such person knew that there was a scuttle in the roof, had time after notice of the fire to reach it, and made efforts to escape, are suflicient to justify a jury in finding that such person tried to escape in that direction, and failed for want of a ladder to the scuttle, which the owner had not provided as required by the statute. Appeal from City Court of Brooklyn, General Term. Action by Joseph Willy, as administrator, etc., of his wife, against Patrick Mulledy, for damages for the death of plaintiff's wife, alleged to have been caused by neglect on the part of defendant. Defendant appeals from a judgment of the general term affirming a judgment for plaintiff entered upon a verdict, and affirming an order denying a motion for a new trial. EARL, J. This is an action to recover damages for the death of plaintiff's wife, alleged to have been caused by the fault of the defend- ant. Prior to the ist day of November, 1877, the plaintiff hired of the defendant certain apartments in the rear of the third story of a tenement-house in the city of Brooklyn, and with his wife and infant child moved into them, on that day. On the 5th day of the same month, in the day-time, a fire took place, originating in the lower story of the house, and plaintiff's wife and child were smothered to death. It is claimed that the defendant was in fault because he had not constructed for the house a fire-escape, and because he had not placed in the house a ladder for access to the scuttle. Section 36, tit. 13, c. 863, Laws 1873, provides that every building in the city of Brooklyn shall have a scuttle or place of egress in the roof thereof of proper size; and "shall have ladders or stairways leading to the same; and all such scuttles and stairways or ladders leading to the roof shall be kept in readiness for use at all times." It also provided that houses like that occupied by the plaintiff "shall be provided with such fire- escapes and doors as shall be directed and approved by the commis- sioners [of the department of fire and buildings;] and the owner or owners of any building upon which any fire-escapes may now or here- after be erected shall keep the same in good repair, and well painted, and no person shall at any time place any incumbrance of any kind 3Q LAW OF TORTS. whatsoever upon said fire-escapes now erected, or that may hereafter be erected, in the city. Any person, after being notified by said com- missioners, who shall neglect to place upon any such building the fire- escape herein provided for, shall forfeit the sum of $500, and shall be deemed guilty of a misdemeanor." Under this statute the defendant was bound to provide this house with a fire-escape. He was not per- mitted to wait until he should be directed to provide one by the com- missioners. He was bound to do it in such way as they should direct and approve, and it was for him to procure their direction and ap- proval. No penalty is imposed for the simple omission to provide one. The penalty can be incurred only for the neglect to provide one after notification by the commissioners. Here was, then, an absolute duty imposed upon the defendant by statute to provide a fire-escape, and the duty was imposed for the sole benefit of the tenants of the house, so that they would have a mode of escape in the case of a fire. For a breach of this duty causing damage, it cannot be doubted that the tenants have a remedy. It is a general rule that whenever one owes another a duty, whether such duty be imposed by voluntary con- tract or by statute, a breach of such duty causing damage gives a cause of action. Duty and right are correlative, and where a duty is imposed there must be a right to have it performed. When a statute imposes a duty upon a public officer, it is well settled that any person having a special interest in the performance thereof may sue for a breach thereof causing him damage, and the same is true of a duty imposed by statute upon any citizen. Cooley, Torts, 654; Hover v. Barkhoof, 44 N. Y. 113; jetter v. Railroad Co., 2 Abb. Dec. 458; Heeney v. Sprague, n R. I. 456, 23 Am. Rep. 502; Couch v. Steel, 3 El. & Bl. 402. In Comyn's Digest, "Action upon Statute," F, it is laid down as the rule that, "in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law." There was no fire-escape for this house. But the claim is made on behalf of this defendant that he is not liable in this action, because the plaintiff and his wife knew, when they moved into the house and while they occupied the same, that there was no fire-escape, and hence that they voluntarily took the hazard of its absence. It is undoubted- ly true that the plaintiff could have stipulated against or have waived the performance of this duty imposed for his benefit, but this he did not do. There is no proof of any kind that it was the intention of the parties entering into their contract that he should take and occupy this house without a fire-escape. There is nothing to show that he knew there was no fire-escape there when he hired the apartments. It is not shown that his attention was in any way called to the matter or that he looked for one. Its absence could be discovered only by an examination outside of the house, and there is no evidence that he made such examination. He had the right to assume that the stat- utory duty had been performed. There is no proof that during his GENERAL PRINCIPLES. 31 occupancy he discovered the absence of a fire-escape. He was there but three days, excluding the day upon which he moved in and the day upon which the fire occurred, and during that time it does not appear how much of the time he was in the house. There is certainly no evidence that he or his wife discovered that there was no fire- escape, or that their attention had been called to the matter. They owed no duty to the defendant to look and see whether there was one there or not. They had the right to rely upon its presence there as re- quired by the statute. But suppose they did discover that there was no fire-escape at some time while there, after they moved in, does such discovery absolve the defendant from his duty? After making the discovery, they were not bound at once to leave the house and go into the street. They had a reasonable time to look for and move into other apartments ; and by remaining for such reasonable time they waived nothing; and, if they did not choose to move out, they were entitled to a reasonable time to find the defendant and to call upon him to furnish the fire-escape. By remaining in the house for such reasonable time after discovery of the breach of duty on the part of the defendant, it could not be said as matter of law that they waived the performance thereof, or took upon themselves voluntarily the haz- ard of all the damages which they might sustain by the non-perform- ance thereof. The duty rested upon the defendant not solely to have a fire-escape there when the plaintiff leased the premises, but it con- tinued to rest upon him ; and, before it could be held that the plaintiff absolved him in any way from this duty, the proof should be clear and satisfactory. Here, I hold, there was no proof whatever from which it could properly have been found that he did so absolve him. But it was needful for the plaintiff to show, not only that there was this breach of duty, but that the death of plaintiff's wife was due to such breach ; that is, that her life would have been saved if there had been a fire-escape there. It is reasonably certain that if the defend- ant had placed the fire-escape at the rear of the house, constructed as they were required to be, that the deceased would have seen it, and made her escape, as it would have been at one of the windows of the rear rooms which she occupied. But it is said that the defendant was not bound to place the fire-escape at the rear of his house, but that he could have placed it in the front of his house, and that if he had placed it there she could not have escaped. It is probably true that she could not have escaped from the front of the house. But there is no proof where fire-escapes are usually constructed, nor whether the front or rear of this particular house would have been the more suitable place for the fire-escape. I think we may assume from the manner in which the front part of this house was constructed, and from the structure of fire-escapes, that it is most probable that it would have been placed on the rear of the house. We think upon the whole case there was enough to authorize the jury to find that the deceased would have escaped, if the defendant had discharged his duty as the law required. 32 LAW OF TORTS. Many of the observations already made apply to the ladder for the scuttle. The duty to furnish and keep such a ladder was imposed mainly for the benefit of the tenants. It was the intention of the stat- ute that they should have two means of escape in the case of fire, one by the scuttle and another by the fire-escape. It was the duty of the defendant to provide a ladder, and then to use reasonable care to keep it there in readiness for use. The defendant had once provided a ladder for this scuttle, but for many months before this fire there had been none there. This the plaintiff and his wife did not know. They knew where the scuttle was, and they had the right to suppose that there was a ladder to reach it, as the law requires. Hence there was, or at least the jury had the right to find that there was, a breach of duty in this respect. But the claim is also made as to this that there was not sufficient evidence to authorize the jury to find that the breach of this duty had any connection with the death of plaintiff's wife ; that her life would have been saved if the ladder had been there. We think there was. The evidence was not very satisfactory. It is true that much is left, from the necessity of the case, to the weighing of probabilities. But the jury could find that the deceased knew where the scuttle was ; that she had time after notice of the fire to reach it ; and that, as she was making efforts to escape, she probably tried to escape in that direction, and failed for want of the ladder. There 'vas sufficient evidence, therefore, to authorize a verdict for the plain- tiff, and we do not think the judgment should be reversed for other errors alleged. ^ The judgment must be affirmed, with costs. All concur. Judgment affirmed. (Statutes, which, as in the above case, prescribe or prohibit certain acts, and declare a penalty for their violation, may be so drawn as to create, expressly or impliedly, a duty towards the public only, and not towards individuals. In such cases the penalty can be enforced for the public wrong, but if an in- dividual also suffers damage from the violation of the statute, he cannot main- tain an action against the wrongdoer to obtain redress therefor. Heeney v. Sprague, 11 R. I. 456, 23 Am. Rep. 502; City of Rochester v. Campbell, 123 N. Y. 405, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760 ; Flynn v. Canton Co., 40 Md. 312, 17 Am. Rep. 603 ; Atkinson v. Newcastle Waterworks Co., L. R. 2 Ex. D. 441 ; cf. Borough of Bathurst v. Macpherson, L. R. 4 App. Cas. 256, 268 ; Pickering v. James, L. R. 8 C. P. 489 ; Grant v. Slater Mill Co., 14 R. I. 380. But when, as in Willy v. Mulledy, ante 28, the statutory obligation is construed as for the benefit of individuals, as well as of the public, the ap- propriate private remedy, as, e. g., an action for damages, is maintainable by the person injured. Baxter v. Doe, 148 Mass. 558, 8 N. E. 415; Parker v. Barnard, 135 Mass. 116, 46 Am. Rep. 450; Taylor v. Lake Shore R. Co., 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457; Hayes v. Mich. Cent. R. Co., Ill U. S. 239, 240, 4 Sup. Ct 369, 28 L. Ed. 410 ; Bott v. Pratt, 33 Minn. 323, 23 N. W. 237, 53 Am. Rep. 47 ; cf. Donnegan v. Erhardt, 119 N. Y. 4G8, 23 N. E. 1051, 7 L. R. A. 527; Atchison, etc., R. Co. v. Reesman, 60 Fed. 370, 9 C. Q A. 20, 23 L. R. A; 768 ; Smith v. Tripp, 13 R. I. 152.) GENERAL PRINCIPLES. 33 (46 Me. 95.) STEARNS et al. v. ATLANTIC & ST. L. R. CO. (In part). (Supreme Judicial Court of Maine. 1858.) STATUTE CREATING A LEGAL RIGHT, BTJT PAH-ING TO PBOVIDK A REMEDY OB FORM OF ACTION FOB ITS VIOLATION. Pub. Laws 1842, c. 9, 5, providing that a railroad corporation shall be held responsible to the owner of property that has been injured by fire communicated by a locomotive engine of the corporation, will not be held to be unavailing to the person whose property has been thus injured be- cause neither that nor any other statute provides a remedy or prescribes a form of action. When a statute gives a right, or forbids the doing of an injury to another, and no action is given therefor in express terms, still the party shall have an action therefor. Exceptions from the ruling of HATHAWAY, J. This was an action to recover for the destruction of plaintiffs' build- ing and other property by fire alleged to have been caused by a loco- motive engine of defendants. This action was brought under the fifth section of chapter 9 of the Public Laws of 1842, which provides that, "when any injury is done to a building or other property of any person or corporation, by fire communicated by a locomotive engine of any railroad corporation, the said corporation shall be held responsible in damages to the per- son or corporation so injured ; and any railroad corporation shall have an insurable interest in the property for which it may be held responsible in damages, along its route, and may procure insurance in its own behalf." The verdict was for the plaintiffs. MAY, J. The first objection is that this action cannot be main- tained because no remedy is given by the statute creating the liabil- ity, nor by any other statute, nor by the common law. That the statute, upon which the plaintiffs base their right to recover, gives to them a right to compensation for the injury they have sustained is not denied (Pub. Laws 1842, c. 9, 5) ; but it is insisted that the creation of such a right is wholly unavailing to the party injured, un- less the same statute, or some other, also provide some form of reme- dy. But such is not the law. Some form of action may always be maintained for a violation of a common-law right, and it is often said to be the pride of the common law that it furnishes a remedy for every wrong. In the absence of any authority to the contrary, it is not perceived why a legal right to compensation for actual damages sustained, even though such right depend wholly upon a statute, is not as worthy of protection in a court of law as any common-law right. The common law is said to be, in fact, nothing but the expres- sion of ancient statutes; but, whether this be so or not, the injury for a violation of a statute right is as real as are injuries which exist only by the common law.- CHASE (2o ED.) 3 34 LAW OF TORTS. If a man has a right, he must, as has been observed in a celebrated case, have a means to vindicate and maintain it, and a remedy, if he is injured in the exercise and enjoyment of it; and, indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. Ashby v. White, 2 Lord Raym. 953 J Westmore v. Greenbank, Willes, 577, cited in Broom's Maxims, 147. To deny the remedy is, therefore, in substance, to deny the right ; and it makes no difference whether the right exists at common law or by statute. Hence the familiar maxim quoted by the counsel in defense, that "wherever the statute gives a right the party shall, by consequence, have an action to recover it." The authorities cited in defense will be found to be in harmony with this maxim. The rule is now understood to be well settled that when a statute gives a right or forbids the doing of an injury to another, and no action be given therefor in express terms, still the party shall have an action therefor. Broom's Maxims, 149, 150, and cases there cited. The cases cited for the plaintiffs not only sustain the same position, but also show that where no other remedy is provided the proper remedy is a special action on the case. It is said, however, that in all these cases the fact that a wrong had been done is recognized by the court, while in the case at bar the de- fendants are without fault. This may be true, if the defendants or their lessees are required in the running of their engines to exercise only that degree of care which is required by the common law. But something more than ordinary care, at least by a strong implication, is made necessary by the statute on which this action is founded. In the rightful exercise of its powers the Legislature has determined that if the locomotive engines of any railroad corporation are driven by them or their agents in such a manner, or under such circumstances, that fire shall be communicated thereby to the property of any person or corporation along its route, such railroad corporation shall be held responsible in damages to the person or corporation injured. The degree of care, therefore, which is required to protect such railroad corporation against liability for damages occasioned by fire so com- municated is such as will prevent all such injury. If they exercise such care they are safe ; otherwise they are not. We cannot say, con- sidering the dangerous nature of this element, and the vast amount of property along our railroad routes which is exposed to its devour- ing flames, that such a rule is not required for the public good, or that when a less degree is exercised, even though it be all which ordi- nary prudence might require, the corporation is without legal fault There is at least a statute wrong. The foundation, therefore, for the alleged distinction between this case and those referred to in the cases cited does not exist, and the exception to the ruling of the presiding judge on this point is not sustained. Exceptions overruled, and judgment on the verdict (The rule laid down in the above case has been otherwise expressed as fol- lows : "When a statute gives a right, then, although in express terms it has GENERAL PRINCIPLES. 35 not given a remedy, the remedy which by law is properly applicable to that right follows as an incident" Braithwaite v. Skinner, 5 M. & W. 327. Ameri- can cases in support of this rule are Rackliff v. Qreenbush, 98 Me. 104, 44 Atl. 375 ; Brown v. City of Lowell, 8 Mete., at page 177 ; Tapley v. Forbes, 2 Allen, at page 24 ; Healey v. New Haven, 49 Conn. 394 ; Clark v. Brown, 18 Wend., at page 220 ; Dudley v. Mayhew, 3 N. Y. 9 ; Commrs. v. Duckett, 20 Md. 468 ; McCarthy v. St. Paul, 22 Minn. 527 ; Dore v. Milwaukee, 42 Wis. 108 ; Reock v. Mayor of Newark, 33 N. J. Law, 129 ; Householder v. Kansas City, 83 Mo. 468.) (5 Johns. 175.) ALMT v. HARRIS. (Supreme Court of New York. 1809.) 1. FEBEIES INFRINGEMENT OF RIGHTS ACTION PENALTIES. A person having a right of ferry, granted under the act to regulate ferries within this state, cannot maintain an action on the case for the disturbance of his right. His only remedy is for the penalty given by the statute. 2. STATUTES COMMON LAW ACTION. If a statute gives a remedy in the affirmative, without a negative ex- press or implied, for a matter which was actionable at the common law, the party may sue at the common law as well as upon the statute. On Certiorari from a Justice's Court. Harris sued Almy in the court below, in an action on the case, for disturbing him in the enjoyment of a ferry across the Cayuga Lake, at the village of Cayuga, granted to Harris, by the courts of common pleas, for the counties of Cayuga and Seneca. A judgment for dam- ages was given in favor of Harris, on which the certiorari was brought to this court. Several errors were assigned, but it will be sufficient to state the opinion of the court. PER CURIAM. There is one error which we consider fatal, and for that we think there must be a judgment of reversal. The act to regulate ferries within this state (20 Sess. c. 64, i) prohibits any person, except within the southern district, the counties of Orange and Clinton, from keeping or using a ferry for transporting across any river, stream, or lake, any person or persons, or any goods or mer- chandise, for profit or hire, unless licensed in the manner directed by that act, under a penalty of $5. If Harris had possessed a right at the common law to the exclusive enjoyment of this ferry, then, the statute giving a remedy in the af- firmative, without a negative expressed or implied, for a matter au- thorized by the common law, he might, notwithstanding the statute, have his remedy by action at the common law. I Com. Dig. Action on Statute, (C). But Harris had no exclusive right at the common law, nor any right but what he derived from the statute. Conse- quently he can have no right, since the statute, but those it gives; gg LAW OF TORTS. and his remedy, therefore, must be under the statute, and the penaltj only can be recovered. Judgment reversed. (These rules are well settled. Thus (1) the rule that "If a statute creates a rig-lit which did not exist before, and prescribes a remedy for the violation of it, this remedy only can be pursued," is supported by Stafford v. Ingersol, 3 Hill, 38 ; People v. Bd. of Canvassers, 150 N. Y., at page 59, 50 N. E. 432, and cases cited ; Coffin v. Field, 7 Cush. 355, 358 ; Henniker v. Contoocook R. R., 29 N H. 146 ; Lease v. Vance, 28 Iowa, 509 ; Bassett v. Carleton, 32 Me. 553, 54 Am. Dec. 605 ; City of Cainden v. Allen, 26 N. J. Law, 398, 403 ; cf. Fletcher v. State Capital Bank, 37 N. H. 369, 391 ; Learock v. Putnam, 111 Mass. 499. And (2) the rule that "where there was a remedy at common law, and a stat- ute gives a new remedy, without a negative express or implied, the old remedy Is not taken away, but a party injured may elect between the two," is sup- ported by Tremain v. Richardson, 68 N. Y. 617 ; People v. N. Y. Cent R. Co., 74 N. Y. 302 ; Gooch v. Stephenson, 13 Me. 371 ; Barden v. Crocker, 10 Pick. 383, 389 ; Adams v. Richardson, 43 N. H. 212 ; King v. Pomeroy, 121 Fed. 287, 292; Bellant v. Brown, 78 Mich. 294, 44 N. W. 326.) Injuria sine damno gives a right of action. (3 Sumn. 189, Fed. Cas. No. 17,322.) WEBB v. PORTLAND MANUF'G CO. (in part). (U. S. Circuit Court, D. Maine. May Term, 1838.) 1. VIOLATION OF RIGHT WITHOUT ACTUAL DAMAGE. To sustain an action, where there is a clear violation of a legal right, It is not necessary to show actual damage ; every such violation imports damage ; and plaintiff is entitled to nominal damages, if no other be proved. A fortiori this doctrine applies when the act done is such that, by its repetition or continuance, it may become the foundation or evidence of an adverse right; and, in such a case, a court of equity will interpose by injunction to restrain such injurious act, when the remedy at law is inadequate to prevent and redress the mischief. V5. DIVERSION OF WATER-COURSE INJUNCTION. Plaintiff and defendants severally owned different mills and mill priv- ileges at the same mill-dam. Defendants drew water for the supply of one of their mills from the head of the mill-pond, and afterwards returned the water into the stream below the dam. The water so withdrawn was much less than the amount to which defendants were entitled at the dam. Held, that plaintiff was entitled, not merely to his proportion of the water in the pond, but to his proportion of the whole stream at the dam, undi- vided and undiminished in its natural flow, and defendants should be re- strained by injunction from the diversion, at the mill pond, of even a part thereof less than their proportion ; and that it was no answer to plaintiff's bill therefor that defendants had improved the supply of water to the pond by a reservoir higher up the stream. In Equity. On bill for injunction. Bill in equity by Joshua Webb against the Portland Manufacturing Company to restrain the diversion of water from plaintiff's mill. On GENERAL PRINCIPLES. 37 the stream on which the mill was situated were two dams, the dis- tance between which was about 40 or 50 rods, occupied by the mill- pond of the lower dam. Plaintiff owned certain mills and mill privi- leges on the lower dam. Defendants also owned certanv other mills and mill privileges on the same dam. To supply water to one of such mills, defendants made a canal from the pond at a point immediately below the upper dam. The water thus withdrawn by them for that purpose was about one-fourth of the water to which defendants were entitled as mill-owners on the lower dam, and was returned into the stream immediately below that dam. STORY, J. The question which has been argued upon the sug- gestion of the court is of vital importance in the cause, and, if decided in favor of the plaintiff, it supersedes many of the inquiries to which our attention must otherwise be directed, It is on this account that we thought it proper to be argued separately from the general merits }f the cause. The argument for the defendants, then, presents two distinct ques- tions. The first is whether, to maintain the present suit, it is essen- cial for the plaintiff to establish any actual damage. The second is whether, in point of law, a mill-owner, having a right to a certain por- tion of the water of a stream for the use of his mill at a particular dam, has a right to draw off the same portion or any less quantity of the water, at a considerable distance above the dam, without the con- sent of the owners of other mills on the same dam. In connection with these questions, the point will also incidentally arise whether it makes any difference that such drawing off of the water above can be shown to be no sensible injury to the other mill-owners on the lower dam. As to the first question, I can very well understand that no action lies in a case where there is damnum absque injuria; that is, where there is a damage done without any wrong or violation of any right of the plaintiff. But I am not able to understand how it can correctly be said, in a legal sense, that an action will not lie, even in case of a wrong or violation of a right, unless it is followed by some percepti- blt damage, which can be established as a matter of fact ; in other words, that injuria sine damno is not actionable. See Mayor of Lynn, etc., v. Mayor of London, 4 Term R. 130, 141, 143, 144; Com. Dig. "Action on the Case," B i, 2. On the contrary', from my earliest read- ing, I have considered it laid up among the very elements of the com- mon law that wherever there is a wrong there is a remedy to redress it; and that every injury imports damage in the nature of it; and, if no other damage is established, the party injured is entitled to a ver- dict for nominal damages. A fortiori this doctrine applies where there is not only a violation of a right of the plaintiff, but the act of the de- fendant, if continued, may become the foundation, by lapse of time, of an adverse right in the defendant ; for then it assumes the character, not merely of a violation of a right tending to diminish its value, but 38 LAW OF TORTS. it goes to the absolute destruction and extinguishment of it. Under such circumstances, unless the party injured can protect his right from such a violation by an action, it is plain that it may be lost or destroyed, without any possible remedial redress. In my judgment, the common law countenances no such inconsistency, not to call it by a stronger name. Actual, perceptible damage is not indispensable as the founda- tion of an action. The law tolerates no further inquiry than whether there has been the violation of a right. If so, the party injured is entitled to maintain his action for nominal damages, in vindication of his right, if no other damages are fit and proper to remunerate him. So long ago as the great case of Ashby v. White, 2 Ld. Raym. 938, 6 Mod. 45, Holt, 524, the objection was put forth by some of the judges, and was answered by Lord Holt, with his usual ability and clear learn- ing; and his judgment was supported by the house of lords, and that of his brethren overturned. By the favor of an eminent judge, Lord Holt's opinion, apparently copied from his own manuscript, has been recently printed. In this last printed opinion (page 14) Lord Holt says : "It is impossible to imagine any such thing as injuria sine dam- no. Every injury imports damage in the nature of it." S. P. 2 Ld. Raym. R. 955. And he cites many cases in support of his position. Among these is Starling v. Turner, 2 Lev. 50, 2 Vent. 25, where the plaintiff was a candidate for the office of bridge-master of London bridge, and the lord mayor refused his demand of a poll, and it was determined that the action was maintainable for the refusal of the poll. Although it might have been that the plaintiff would not have been elected, the action was nevertheless maintainable ; for the re- fusal was a violation of the plaintiff's right to be a candidate. So, in Hunt v. Dowman, Cro. Jac. 478, 2 Rolle, 21, where the lessor brought an action against the lessee for disturbing him from entering into the house leased, in order to view it, and to see whether any waste \vas committed; and it was held that the action well lay, though no waste was committed and no actual damage done, for the lessor had a right so to enter, and the hindering of him was an injury to that right, for which he might maintain an action. So Herring v. Finch, 2 Lev. 250, where it was held that a person entitled to vote, who was refused his vote at an election, might well maintain an action therefor, al- though the candidate, for whom he might have voted, might not have been chosen, and the voter could not sustain any perceptible or actual damage by such refusal of his vote. The law gives the remedy in such case, for there is a clear violation of the right. And this doc- trine, as to a violation of the right to vote, is now incontrovertibly established; and yet it would be impracticable to show any temporal or actual damage thereby. See Harman v. Tappenden, i East, 555 ; Drewe v. Coulton, Id. 563, note ; Kilham v. Ward, 2 Mass. 236 ; Lin- coln v. Hapgood, ii Mass. 350; 2 Vin. Abr. "Action, Case," note c, pi. 3. In the case of Ashby v. White, as reported by Lord Raymond, (2 Ld. Raym. 953,) Lord Holt said : "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a GENERAL PRINCIPLES. 39 remedy, if he is injured in the exercise or enjoyment of it; and, in- deed, it is a vain thing to imagine a right without a remedy ; for want of right and want of remedy are reciprocal." S. P. 6 Mod. 53. The principles laid down by Lord Holt are so strongly commended, not only by authority, but by the common sense and common justice of mankind, that they seem absolutely, in a judicial view, incontro- vertible. And they have been fully recognized in many other cases. The note of Mr. Sergeant Williams to Mellor v. Spateman, I Saund. 3463, note 2; Wells v. Watling, 2 W. Bl. 1233; and the case of the Tunbridge Dippers, (Weller v. Baker,) 2 Wils. 414, are direct to the purpose. I am aware that some of the old cases inculcate a different doctrine, and perhaps are not reconcilable with that of Lord Holt. There are also some modern cases which at first view seem to the con- trary. But they are distinguishable from that now in judgment. On the other hand, Marzetti v. Williams, i Barn. & Adol. 415, goes the whole length of Lord Holt's doctrine; for there the plaintiff re- covered, notwithstanding no actual damage was proved at the trial; and Mr. Justice Taunton on that occasion cited many authorities to show that where a wrong is done, by which the right of the party may be injured, it is a good cause of action, although no actual damage be sustained. The case of Bower v. Hill, i Bing. N. C. 549, fully sustains the doc- trine for which I contend ; and, indeed, a stronger case of its applica- tion cannot well be imagined. There the court held that a permanent obstruction to a navigable drain of the plaintiff's, though choked up with mud for 16 years, was actionable, although the plaintiff received no immediate damage thereby; for, if acquiesced in for 20 years, it would become evidence of a renunciation and abandonment of the right of way. The case of Blanchard v. Baker, 8 Greenl. 253, 268, 23 Am. Dec. 504, recognizes the same doctrine in the most full and satis- factory manner, and is directly in point; for it was a case for divert- ing water from the plaintiff's mill. Upon the whole, without going further into an examination of the authorities on this subject, my judgment is that, whenever there is a clear violation of a right, it is not necessary in an action of this sort to show actual damage ; that every violation imports damage ; and, if no other be proved, the plaintiff is entitled to a verdict for nominal dam- ages; and a fortiori that this doctrine applies whenever the act done is of such a nature as that by its repetition or continuance it may be- come the foundation or evidence of an adverse right. See, also, Ma- son v. Hill, 3 Barn. & Adol. 304, 5 Barn. & Adol. i. But if the doc- trine were otherwise, and no action were maintainable at law, without proof of actual damage, that would furnish no ground why a court of equity should not interfere, and protect such a right from violation and invasion ; for, in a great variety of cases, the very ground of the interposition of a court of equity is that the injury done is irremedia- ble at law, and that the right can only be permanently preserved or perpetuated by the powers of a court of equity. And one of the most 40 LAW OF TORTS. ordinary processes to accomplish this end is by a writ of injunction, the nature and efficacy of which for such purpose I need not state, as the elementary treatises fully expound them. See Eden, Inj.; 2 Story, Eq. Jur. c. 23, 86-959; Bolivar Manuf'g Co. v. Neponset Manuf'g Co., 16 Pick. 241. If, then, the diversion of water com- plained of in the present case is a violation of the right of the plain- tiff, and may permanently injure that right, and become, by lapse of time, the foundation of an adverse right in the defendants, I know of no more fit case for the interposition of a court of equity, by way of injunction, to restrain the defendants from such an injurious act. If there be a remedy for the plaintiff at law for damages, still that rem- edy is inadequate to prevent and redress the mischief. If there be no such remedy at law, then, a fortiori, a court of equity ought to give its aid to vindicate and perpetuate the right of the plaintiff. A court of equity will not, indeed, entertain a bill for an injunction in case of a mere trespass fully remediable at law. But, if it might occasion irreparable mischief or permanent injury, or destroy a right, that is the appropriate case for such a bill. See 2 Story, Eq. Jur. 926- 928, and the cases there cited; Jerome v. Ross, 7 John. Ch. 315, n Am. Dec. 484; Van Bergen v. Van Bergen, 3 John. Ch. 282, 8 Am. Dec. 511 ; Turnpike Road v. Miller, 5 John. Ch. 101, 9 Am. Dec. 274; Gardner v. Village of Newburgh, 2 John. Ch. 162, 7 Am. Dec. 526. Let us come, then, to the only remaining question in the cause, and that is whether any right of the plaintiff, as mill-owner on the lower dam, is or will be violated by the diversion of the water by the canal of the defendants. And here it does not seem to me that, upon the present state of the law, there is any real ground for controversy, al- though there were formerly many vexed questions, and much con- trariety of opinion. The true doctrine is laid down in Wright v. Howard, I Sim. & S. 190, by Sir John Leach, in regard to riparian proprietors, and his opinion has since been deliberately adopted by the king's bench. Mason v. Hill, 3 Barn. & Adol. 304, 5 Barn. & Adol. I. See, also, Bealey v. Shaw, 6 East, 208. "Prima facie," says that learned judge, "the proprietor of each bank of a stream is the proprie- tor of half the land covered by the stream ; but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream; and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor, without the consent of the other proprietors who may be affected by his opera- tions. No proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Every proprietor, who claims a right either to throw the water back above or to diminish the quantity of water wh\ch is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors af- fected by his operations, or must prove an uninterrupted enjoyment of twenty years, which term of twenty years is now adopted upon a principle of general convenience, as affording conclusive presump- GENERAL PRINCIPLES. 41 tion of a grant." Mr. Chancellor Kent has also summed up the same doctrine, with his usual accuracy, in the brief but pregnant text of his Commentaries (3 Kent, Comm., 3d Ed., Lect. 42, p. 439); and I scarcely know where else it can be found reduced to so elegant and satisfactory a formulary. In the old books the doctrine is quaintly, though clearly, stated ; for it is said that a water-course begins ex jure naturae, and, having taken a certain course naturally, it cannot be [law- fully] diverted. Aqua currit, et debet currere, ut currere solebat. Shury v. Piggot, 3 Bulst. 339, Poph. 166. The same principle applies to the owners of mills on a stream. They have an undoubted right to the flow of the water as it has been accustomed of right and naturally to flow to their respective mills. The proprietor above has no right to divert or unreasonably to retard this natural flow to the mills below ; and no proprietor below has a right to retard or turn it back upon the mills above to the prejudice of the right of the proprietors thereof. This is clearly established by the authorities already cited : the only distinction between them being that the right of a riparian proprietor arises by mere operation of law as ar incident to his Ownership of the bank, and that of a mill-owner as an incident to his mill. Bealey v. Shaw, 6 East, 208; Saunders v. Newman, I Ban. & Aid. 258 ; Mason v. Hill, 3 Barn. & Adol. 304, 5 Barn & Adol. I Blanchard v. Baker, 8 Greenl. 253, 268, 23 Am. Dec. 504: and Tyler v. Wilkinson, 4 Mason, 397, 400-405, Fed. Cas. No. 14,312 are fully in point. Mr. Chancellor Kent in his Commentaries relies on the same principles and fully supports them by a large sur- vey of the authorities. 3 Kent, Comm. (3d Ed.) Lect. 52, pp. 441-445. Now, if this be the law on this subject, upon what ground can the defendants insist upon a diversion of the natural stream from the plaintiff's mills, as it has been of right accustomed to flow thereto? Fir si;, it is said that there is no perceptible damage done to the plain- tifi". That suggestion has been already in part answered. If it were true, it could not authorize a diversion, because it impairs the right of the plaintiff to the full, natural flow of the stream, and may become the foundation of an adverse right in the defendants. In such a case actual damage is not necessary to be established in proof. The law presumes it. The act imports damage to the right, if damage be nec- essary. Such a case is wholly distinguishable from a mere fugitive, temporary trespass, by diverting or withdrawing the water a short pe- riod without damage, and without any pretense of right. In such a case, the wrong, if there be no sensible damage, and it be transient in its nature and character, as it does not touch the right, may possibly (for I give no opinion upon such a case) be without redress at law; and certainly it would found no ground for the interposition of a court of equity by way of injunction. But I confess myself wholly unable to comprehend how it can be as- sumed, in a case like the present, that there is not and cannot be an actual damage to the right of the plaintiff. What is that right? It is the right of having the water flow in its natural current at all times .jo LAW OF TORTS. of the year to the plaintiff's mills. Now, the value of the mill privi- leges must essentially depend, not merely upon the velocity of the stream, but upon the head of water which is permanently maintained. The necessary result of lowering the head of water permanently would seem, therefore, to be a direct diminution of the value of the privileges ; and, if so, to that extent it must be an actual damage. Again, it is said that the defendants are mill-owners on the lower dam, and are entitled, as such, to their proportion of the water of the stream in its natural flow. Certainly they are. But where are they so entitled to take and use it ? At the lower dam ; for there is the place where their right attaches, and not at any place higher up the stream. Suppose they are entitled to use for their own mills on the lower dam half the water which descends to it, what ground is there to say that they have a right to draw off that half at the head of the mill-pond? Suppose the head of water at the lower dam in ordinary times is two 'feet high, is it not obvious that, by withdrawing at the head of the pond one-half of the water, the water at the dam must be proportion- ally lowered? It makes no difference that the defendants insist upon drawing off only one-fourth of what they insist they are entitled to; for, pro tanto, it will operate in the same manner; and, if they have a right to draw off to the extent of one-fourth of their privilege, they have an equal right to draw off to the full extent of it. The privilege attached to the mills of the plaintiff is not the privilege of using half, or any other proportion merely, of the water in the stream, but of hav- ing the whole stream, undiminished in its natural flow, come to the lower dam with its full power, and there to use his full share of the water-power. The plaintiff has a title, not to a half or other propor- tion of the water in the pond, but is, if one may so say, entitled per my et per tout to his proportion of the whole bulk of the stream, undivided and indivisible, except at the lower dam. This doctrine, in my judg- ment, irresistibly follows from the general principles already stated; and, what alone would be decisive, it has the express sanction of the supreme court of Maine in the case of Blanchard v. Baker, 8 Greenl. 253, 270, 23 Am. Dec. 504. The court there said, in reply to the sug- gestion that the owners of the eastern shore had a right to half the wa- ter, and a right to divert it to that extent: "It has been seen that, if they had been owners of both sides, they had no right to divert the wa- ter without again returning it to its original channel, (before it passed the lands of another proprietor.) Besides, it was impossible, in the na- ture of things, that they could take it from their side only. An equal portion from the plaintiff's side must have been mingled with all that was diverted." A suggestion has also been made that the defendants have fully in- demnified the plaintiff from any injury, and in truth have conferred a benefit on him, by securing the water, by means of a raised dam, higher up the stream, at Sebago pond, in a reservoir, so as to be capable of affording a full supply in the stream in the dryest seasons. To this suggestion several answers may be given. In the first place, the plain- GENERAL PRINCIPLES. 43 tiff is no party to the contract for raising the new dam, and has no in- terest therein, and cannot, as a matter of right, insist upon its being kept up, or upon any advantage to be derived therefrom. In the next place, the plaintiff is not compellable to exchange one right for an- other, or to part with a present interest in favor of the defendants at the mere election of the latter. Even a supposed benefit cannot be forced upon him against his will; and, certainly, there is no pretense to say that, in point of law, the defendants have any right to substi- tute, for a present existing right of the plaintiff's, any other which they may deem to be an equivalent. The private property of one man cannot be taken by another, simply because he can substitute an equivalent benefit. Having made these remarks upon the points raised in the argument, the subject, at least so far as it is at present open for the considera- tion of the court, appears to me to be exhausted. Whether, consist- ently with this opinion, it is practicable for the defendants successfully to establish any substantial defense to the bill, it is for the defendants, and not for the court, to consider. I am authorized to say that the district judge concurs in this opinion. Decree accordingly. (To the same effect are the following cases: N. T. Rubber Co. v. Rothery, 132 N. Y. 293, 30 N. E. 841, 28 Am. St. Rep. 575 ; Amsterdam Knitting Co. v. Dean. 102 N. Y. 278, 56 N. E. 757; Parker v. Griswold, 17 Conn. 288, 42 Am. Dec. 730 [a valuable decision] ; Clark v. Railroad Co., 145 Pa. 438, 22 Atl. 989, 27 Am. St. Rep. 710 : Lund v. New Bedford, 121 Mass. 286 ; Stowell v. Lincoln, 11 Gray, 434 ; Blodgett v. Stone, 60 N. H. 167 ; Embrey v. Owen, 6 Exch. 353. In Lamed v. Wheeler, 140 Mass. 390, 5 N. E. 290, 54 Am. Rep. 483, an action for damages was sustained against selectmen of a town for erasing a voter's name from the register of voters, whereby he was deprived of his right to vote. In Harrington v. McCarthy, 169 Mass. 492. 48 N. E. 278, 61 Am. St. Rep. 298, an action for an injunction was held maintainable where the cornice of de- fendant's building projected 18 inches over plaintiff's land, though the plaintiff had not suffered any actual damage therefrom in the use of Ms property.) (66 Mich. 370, 33 N. W. 521.) FISHER v. DOWLING (in part). (Supreme Court of Michigan. June 16, 1887.) TRESPASS DAMAGES RECOVERABLE THOUGH ACT IMPROVES PROPERTY. In an action for trespass for sawing off the top of plaintiff's fence, plaintiff is entitled to recover the full value of the property destroyed, even though the fence was improved by defendant's act. Error to Circuit Court, Oakland County. CAMPBELL, C. J. Fisher sued Bowling in trespass for sawing off about a foot of the upper part of plaintiff's fence between him and defendant. No question was made concerning plaintiff's title to the 44 LAW OF TORTS. property which he occupied, and the real question was whether this fence was on the plaintiff's land as actually occupied by him. The proof was very positive on his part that the fence was entirely within the land occupied by him for a period of many years. Defendant in- troduced some testimony to the contrary. The question of possession was very fairly left to the jury, who found for the plaintiff. But it is claimed the court erred in holding that for such a trespass there should be at least nominal damages, which are all that the jury awarded. Defendant's counsel insist that, if this cutting-down process improved the fence, there was not even a nominal wrong. This is a remarkable claim, and the verdict is a remarkable verdict. It was plaintiff's right to have a fence of such height as he adopted, and it is not the right of a neighbor to lower it. The jury ought to have rendered a verdict for the full value of the property destroyed. Judgment affirmed, with costs. (The rule that the violation of a legal right affords a cause of action, even if defendant's act has benefited the plaintiff. Is also upheld by Murphy v. Fond du Lac, 23 Wis. 3G5, 99 Am. Dec. 181 : Jones v. Hannovan, 55 Mo. 4G2 ; Parker v. Griswold, 17 Conn. 288, 303, 42 Am. Dee. 739; Seneca Rond Co. v. Auburn, etc., R. Co., 5 Hill, 170, 17G ; cf. Jewett v. Whitney, 43 Me. 242.) Ex damno sine injuria non oritur actio. (122 Mass. 199, 23 Am. Rep. 312.) GILMORE v. DRISCOLL (in part). (Supreme Judicial Court of Massachusetts, Suffolk. 1876.) 1. LATERAL SUPPORT OF SOIL REMOVAL LIABILITY. One who makes excavations of soil, causing the soil of a neighbor's ad- Joining tract to fall, is liable, even if there was no negligence on his part, for the injury done to the land in its natural condition. A landowner has the absolute right to have his land remain in its natural condition, unaffected by any act of his neighbor, and, if the neighbor digs upon or improves his own land, so as to injure this right, may maintain an action against him without proof of negligence. 2. SAME INJURY TO IMPROVEMENTS. One who makes excavations of soil is not liable, In the absence of negli- gence on his part, for injury thereby to artificial improvements, as build- ings, fences, etc., on a neighbor's adjoining tract, unless the neighbor had acquired a right to the support of such improvements by grant or pre- scription. It seems that such a right cannot be gained in this country by prescription. 3. SAME MEASURE OF DAMAGES. The measure of damages for removal of the lateral support of the soil J tract of land, thereby causing the soil to fall, is the damage oc- ioned by loss of and injury to the soil alone, not the sum required to restore the soil to its former condition, or the difference in the market value of the tract. GENERAL PRINCIPLES. 45 i. SAME OWNERSHIP OF ADJOINING TRACT. That land in which one makes excavations does not belong to him does not affect his liability for injury resulting from the removal of the lateral support of the soil of an adjoining tract Action by Anne Gilmore against James Driscoll. From a judgment in favor of plaintiff, the defendant appeals, on an agreed statement of fact. Judgment for the plaintiff. One Webb owned a tract of land adjoining a tract owned by the plaintiff. The defendant, with the permission of a licensee of Webb, made excavations in Webb's lot near the division line, causing the soil of plaintiff's lot to fall, taking with it a fence and shrubbery located thereon. The weight of structures on plaintiff's land did not contrib- ute to the falling away of the soil. The damages occasioned to the plaintiff by loss of and injury to her soil alone amount to $95. To put the soil in its former condition would cost $575, and to replace the fence and shrubs would cost $45. The difference in the market value of the land is equal to the sum of the last two amounts, or $620. GRAY, C. J. The right of an owner of land to the support of the land adjoining is jure naturae, like the right in a flowing stream. Ev- ery owner of land is entitled, as against his neighbor, to have the earth stand and the water flow in its natural condition. In the case of run- ning water, the owner of each estate by which it flows has only the right to the use of the water for reasonable purposes, qualified by a like right in every other owner of land above or below him on the same stream. But in the case of land, which is fixed in its place, each owner has the absolute right to have his land remain in its natural con- dition, unaffected by any act of his neighbor, and, if the neighbor digs upon or improves his own land so as to injure this right, may maintain an action against him without proof of negligence. But this right of property is only in the land in its natural condition, and the damages in such an action are limited to the injury to the land itself, and do not include any injury to buildings or improvements thereon. While each owner may build upon and improve his own es- tate at his pleasure, provided he does not infringe upon the natural right of his neighbor, no one can by his own act enlarge the liability of his neighbor for an interference with this natural right. If a man is not content to enjoy his land in its natural condition, but wishes to build upon or improve it, he must either make an agreement with his neighbor, or dig his foundations so deep, or take such other precau- tions, as to insure the stability of his buildings or improvements, what- ever excavations the neighbor may afterwards make upon his own land in the exercise of his right. The latest and the most authoritative statement of the law of Eng- land upon this point before the American Revolution is that of Chief Baron Comyns, who, citing Rolle's Abridgment and Siderfin's Reports (2 Rol. Abr. 564; Palmer v. Fleshees, i Sid. 167), says that an action upon the case lies for a nuisance "if a man dig a pit in his land so g LAW OF TORTS. near that my land falls into the pit," but does not lie "if a man build an house, and make cellars upon his soil, whereby an house newly built in an adjoining soil falls down." Com. Dig. "Action upon the Case for a Nuisance," A, C. In Thurston v. Hancock, 12 Mass. 220, 7 Am. Dec. 57, which was decided in 1815, and is the leading American case on this subject, the plaintiff in 1802 bought a parcel of land upon Beacon Hill, in Boston, bounded on the west by land of the town of Boston, and in 1804 built a brick dwelling house thereon, with its rear two feet from this bound- ary, and its foundation fifteen feet below the ancient surface of the land. The defendants in 1811 took a deed of the adjoining land from the town, and began to dig and remove the earth therefrom, and, though notified by the plaintiff that his house was endangered, contin- ued to do so to the depth of forty-five feet, and within six feet of the rear of the plaintiff's house, and thereby caused part of the earth on the surface of the plaintiff's land to fall away and slide upon the de- fendant's land, and rendered the foundations of the plaintiff's house insecure, and the occupation thereof dangerous, so that he was obliged to abandon it. The court, after advisement, and upon a review of the earlier English authorities, held that the plaintiff could recover for the loss of or injury to the soil merely, and not for the damage to the house; and Chief Justice Parker, in delivering judgment, said: "It is a common principle of the civil and of the common law that the proprietor of land, unless restrained by covenant or custom, has the entire dominion, not only of the soil, but of the space above and below the surface, to any extent he may choose to occupy it. The law, founded upon principles of reason and common utility, has admitted a qualification to this dominion, restricting the proprietor so to use his own as not to injure the property or impair any actual existing rights of another. Sic utere tuo ut alienum non Isedas." "But this subjec- tion of the use of a man's own property to the convenience of his neigh- bor is founded upon a supposed pre-existing right in his neighbor to have and enjoy the privilege which by such act is impaired." 12 Mass. 224, 7 Am. Dec. 57. "A man in digging upon his own land is to have regard to the position of his neighbor's land, and the probable conse- quences to his neighbor, if he digs too near his line, and if he disturbs the natural state of the soil he shall answer in damages ; but he is answerable only for the natural and necessary consequences of his act, and not for the value of a house put upon or near the line by his neigh- bor." "The plaintiff built his house within two feet of the western line of the lot, knowing that the town, or those who should hold under it, had a right to build equally near to the line, or to dig down into the soil for any other lawful purpose. He knew also the shape and nature of the ground, and that it was impossible to dig there without causing excavations. He built at his peril, for it was not possible for him, merely by building upon his own ground, to deprive the other party of such use of his as he should deem most advantageous. There was no right acquired by his ten years' occupation to keep his neigh- GENERAL PRINCIPLES. 47 bor at a convenient distance from him." "It is, in fact, damnum absque injuria." 12 Mass. 229, 7 Am. Dec. 57. Upon the facts of that case it was questionable whether the acts of the defendant would not have caused the falling away of the plaintiff's land if no house had been built thereon; and yet the court held the plaintiff not to be entitled to recover any damages for the fall of his house, without regard to the question whether the weight of the house did or did not contribute to the fall of his soil into the pit digged by the defendant. No claim for like damages was made in this common- wealth until more than forty years afterwards, when the decision in Thurston v. Hancock was followed and confirmed. Foley v. Wyeth, 2 Allen, 131, 79 Am. Dec. 771. In Foley v. Wyeth the court, after stating that the right of support from adjoining soil for land in its natural state stands on natural jus- tice, and is essential to the protection and enjoyment of property in the soil, and is a right of property which passes with the soil without any grant for the purpose, said : "It is a necessary consequence from this principle that for any injury to his soil, resulting from the removal of the natural support to which it is entitled, by means of excavation of an adjoining tract, the owner has a legal remedy in an action at law against the party by whom the work has been done and the mischief thereby occasioned. This does not depend upon negligence or unskill- fulness, but upon the violation pf a right of property which has been invaded and disturbed. This unqualified rule is limited to injuries caused to the land itself, and does not afford relief for damages by the same means to artificial structures. For an injury to buildings, which is unavoidably incident to the depression or slide of the soil on which they stand, caused by the excavation of a pit on adjoining land, an action can only be maintained when a want of due care or skill, or positive negligence, has contributed to produce it." 2 Allen, 133, 79 Am. Dec. 771. And it was accordingly adjudged that if the defend- ant in that case, by excavating and carrying away earth on her own land, caused the plaintiff's land to fall and sink into the pit which she had dug, she was liable for the injury to the soil of the plaintiff; but that, in the absence of any proof of negligence in the execution of the work, the jury could not take into consideration, as an element of damage for which compensation could be recovered, the fact that the foundation of the plaintiff's house had been made to crack and settle, although the weight of his house did not contribute to the sliding or crumbling away of the soil. By the modern authorities, in Great Britain, it is clear that a right to the support of a building by adjacent land can arise only by grant or prescription. Wyatt v. Harrison, 3 B. & Ad. 871 ; Partridge v. Scott, 3 M. & W. 220; Caledonian Railway v. Sprot, 2 Macq. 449; Bonomi v. Backhouse, E. B. & E. 622, and 9 H. L. Cas. 503. In Bonomi v. Backhouse, in which an action was maintained by an owner of land and of an ancient house for damage occurring within six years from the working of coal mines, 280 yards from the house, 48 LAW OF TORTS. more than six years before the commencement of the action, Mr. Jus- tice Willes, delivering the judgment in the Exchequer Chamber, which was affirmed by the House of Lords, said : "The right to support of land and the right to support of buildings stand upon different foot- ings as to the mode of acquiring them ; the former being prima facie a. right of property analogous to the flow of a natural river, or of air, though there may be cases in which it would be sustained as matter of grant, whilst the latter must be founded upon prescription or grant, express or implied ; but the character of the rights, when acquired, is in each case the same." E. B. & E. 654, 655. And Lord Wensley- clale said: "I think it perfectly clear that the right in this case was not in the nature of an easement, but that the right was to the enjoy- ment of his own property, and that the obligation was cast upon the owner of the neighboring property not to interrupt that enjoyment." 9 H. L. Cas. 513. The cases of Brown v. Robins, 4 H. & N. 186, Hunt v. Peake, H. R. V. Johns. 705, and Stroyan v. Knowles, 6 H. & N. 454, in which it was held that in an action for causing soil to sink, which would have sunk if there had been no building upon it, the damages recovered might include the injury to the buildings also, are directly opposed to our own cases of Thurston v. Hancock and Foley v. Wyeth, in the lat- ter of which Brown v. Robins was before the court. Upon a question of this kind, affecting all the lands in the common- wealth, it would be unjustifiable and mischievous for the court to change a rule of law which has been established and acted upon here for sixty years. Even in England it is held that for digging upon neighboring land, and thereby causing the plaintiff's land to sink and his building to fall, although the jury find that the land would have sunk if there had been no building upon it, yet no action will lie, if no appreciable damage is proved to the land without the building. Smith v. Thackerah, L. R. I C. P. 564. The weight of American authority is in accordance with the deci- sions of this court. It has generally been considered that for an ex- cavation causing an injury to the soil in its natural state an action would lie, but that without proof of a right by grant or prescription in the plaintiff, or of actual negligence on the part of the defendant, no action would lie for an injury to buildings by excavating adjoin- ing land not previously built upon. Panton v. Holland, 17 Johns. 92, 8 Am. Dec. 369; Lasala v. Holbrook, 4 Paige, 169, 25 Am. Dec. 524; Hay v. Cohoes Co., 2 N.. Y. 159, 162, 51 Am. Dec. 279; McGuire v. Grant, 25 N. J. Law, 356, 67 Am. Dec. 49 ; Richart v. Scott, 7 Watts, 460, 32 Am. Dec. 779; Richardson v. Vermont Central Railroad, 25 Vt. 465, 60 Am. Dec. 283 ; Beard v. Murphy, 37 Vt. 99, 102, 86 Am. Dec. 693 ; Shrieve v. Stokes, 8 B. Mon. 453, 48 Am. Dec. 401 ; Char- less v. Rankin, 22 Mo. 566, 66 Am. Dec. 642. It is difficult to see how the owner of -a house can acquire by pre- scription a right to have it supported by the adjoining land, inasmuch as he does nothing upon, and has no use of, that land, which can be GENERAL PRINCIPLES. 49 seen or known or interrupted or sued for by the owner thereof, and therefore no assent of the latter can he presumed to the acquirement of any right in his land by the former. The English cases are founded on an analogy to the doctrine of ancient lights, which is not in force in this country. Hide v. Thornborough, 2 Car. & K. 250, 255, and Stan- sell v. Jollard, there cited ; Solomon v. Vintners' Co., 4 H. & N. 585, 599, 602; Chasemore v. Richards, 7 H. L. Cas. 349, 385, 386; Green- leaf v. Francis, 18 Pick. 117, 122; Keats v. Hugo, 115 Mass. 204, 215, 15 Am. Rep. 80; Richart v. Scott, 7 Watts, 460, 462, 32 Am. Dec. 779; Napier v. Bulwinkle, 5 Rich. "Law, 311, 324. But this case does not require us to determine that question, because there is no evidence that the structures and improvements upon the plaintiff's land have been there for twenty years. Nor is it necessary to consider whether negligence on the part of the defendant could enlarge the measure of his liability; because the case stated does not find that he was negligent, nor set out any facts from which actual negligence can be inferred. The cause of action is that the plaintiff has an absolute right to have her soil stand in its natural condition, and that any one who injures that right is a wrongdoer, in- dependently of any question of negligence. Foley v. Wyeth, 2 Allen, 131, 133, 79 Am. Dec. 771 ; Hay v. Cohocs Co., 2 N. Y. 159, 162, 51 Am. Dec. 279 ; Richardson v. Vermont Lentral Railroad, 25 Vt. 465, 471, 60 Am. Dec. 283; Humphries v. Brogden, 12 Q. B. 739. The fact that the defendant was not the owner of the adjoining land affords him no exemption. It was never considered necessary in an action of this kind, to allege that the defendant owned or occupied the land on which the digging was done that injured the plaintiff's soil. Smith v. Martin, 2 Saund. 400, and note ; Nicklin v. Williams, 10 Exch. 259. Even an agent of the owner of the adjoining land would be liable for his own negligence and positive wrongs, for his principal could not confer upon him any authority to commit a tort upon the property or the rights of another. Bell v. Josselyn, 3 Gray, 309, 63 Am. Dec. 741; Story on Agency, 311. And, upon the case stated, the defendant appears not to have been an agent of the owner of the land, but to have removed the soil therefrom for his own benefit, by permission of Gillighan, who had a like agreement with and license from the owner, and it is at least doubtful whether the owner of the land could be held responsible for the defendant's acts. Gayford v. Nicholls, 9 Exch. 702; Hilliard v. Richardson, 3 Gray, 349, 63 Am. Dec. 743. The case finds that the defendant ceased his work towards the end of October, and left the bank in such a shape that by the effect of rains and frost it was rendered insufficient to hold the soil of the plaintiff in its natural condition, and began to give way at once, although the plaintiff's soil was not actually disturbed till the month of March fol- lowing. The necessary inference is that by the operation of natural and ordinary causes upon the land as it was left by the excavations of the defendant, and which he took no precaution to guard against, part CHASE (2o ED.) 4 50 LAW OP TORTS. of the soil of the plaintiff's land slid and fell off, and for the injury so caused to her soil this action may be maintained. But she cannot maintain an action for the injury to her fences and shrubbery, because her natural right and her corresponding remedy are confined to the land itself, and do not include buildings or other improvements thereon. The remaining question is of the measure of damages. The pecul- iar form of the case stated, in this respect, as might be inferred from its terms, and as was admitted at the argument, has been occasioned by incorporating into it the substance of the award of an arbitrator. It is agreed that the "damages occasioned to the plaintiff by loss of and injury to her soil alone, caused by the acts of the defendant, amount to ninety-five dollars." We are of opinion that she is entitled to recover that sum, and no more. She is clearly not entitled to re- cover the cost of putting her land into and maintaining it in its former condition, because that is no test of the amount of the injury. Mc- Guire v. Grant, 25 N. J. Law, 356, 67 Am. Dec. 49. She cannot re- cover the difference in market value, because it does not appear that that difference is wholly due to the injury to her natural right in the land. It may depend upon the present shape of the lot, upon the im- provements thereon, or upon other artificial circumstances, which have nothing to do with the natural condition of the soil. Judgment for the plaintiff for $95. (If the person excavating on his own land be called A, and the owner of the adjacent premises be called B, the following cases may arise: [1] B's land may have no buildings thereon, and may fall through A's digging, though A's work is done carefully. A is liable. The damages are, by some decisions, the diminution in the value of B's land [McGuire v. Grant, 25 N. J. Law, 356, 67 Am. Dec. 49 ; Schultz v. Bower, 57 Minn. 493, 59 N. W. 631, 47 Am. St. Rep. 630; Moellering v. Evans, 121 Ind. 195, 22 N. B. 989, 6 L. R. A. 449]; by other decisions, the actual loss of and injury to the soil [McGettigan v. Potts, 149 Pa. 155, 24 Atl. 198 ; Gilinore v. Driscoll, supra 44]. All the cases agree that the cost of restoring the land to its former condition is not the measure of damages [Id.]. [2] B's land may have a building [or buildings] thereon, and both his land and building may fall [or land fall and building be injured]. Then, [a] if A's digging were done carefully, and yet it would have caused B's soil to fall if there had been no building thereon, A is liable. By English decisions he Is liable for the injury to the building as well as to the soil [Brown v. Robins, 4 H. & N. 186] ; but by Giliuore v. Driscoll, ante 44, he is liable only for the injury to the soil. See Gildersleeve v. Hammond, 109 Mich. 431, 67 N. W. 519, 521, 33 L. R. A. 46. If, however, in this case [a] the fall of B's land would not have caused any appreciable damage, A is not liable. Smith v. Thackerah, L. R. 1 C. P. 564. [b] If A digs carefully, and B's land would not have fallen unless the building had been thereon, A is not liable, for the real cause of the injury is the weight of the superstructure. Hemsworth v. Gush- ing, 115 Mich. 92, 72 N. W. 1108 ; Obert v. Dunn, 140 Mo. 476, 41 S. W. 901 ; Clemens v. Speed, 93 Ky. 284, 19 S. W. 660, 19 L. R. A. 240 ; Booth v. Rome, etc., R. Co., 140 N. Y. 267, 275, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St Rep. 552. [c] If the injury to B's land and building was due to A's negligence in exca- vating, A is liable. Bait & P. R. Co. v. Reaney, 42 Md. 117 ; Louisville, etc., R. Co. v. Bonhayo, 94 Ky. 67, -21 S. W. 526; Irvine v. Smith, 204 Pa. 58. 53 Atl. 510 ; Gildersleeve v. Hammond, 109 Mich. 431, 67 N. W. 519, 33 L. R. A. 46 [a valuable case] ; Ketcham v. Newman, 141 N. Y. 205, 210, 36 N. E. 197, GENERAL PRINCIPLES. 51 24 L. R. A. 102 : Moellering v. Evans, 121 Ind. 195, 22 N. B. 989, 6 L. R. A 449. The care required of A is usually said to be "reasonable care" [Ketcharo v. Newman, supra; City of Quincy v. Jones, 76 111. 231, 20 Am. Rep. 243; Clemens v. Speed, supra], or "the care that a man of ordinary prudence would exercise in the circumstances of the particular situation" [Larson v. Metr. R. Co., 110 Mo. 234, 19 S. W. 416, 16 L. R. A. 330, 33 Am. St. Rep. 439 ; cf. Gilder- sleeve v. Hammond, 109 Mich. 431, 67 N. W. 519, 33 L. R. A. 46]. Some cases hold that A should give notice to B of his intention to excavate, unless B already has knowledge thereof [Schultz v. Byers, 53 N. J. Law, 442, 22 Atl. 514, 13 L. R. A. 569, 26 Am. St. Rep. 435; Clemens v. Speed, 93 Ky. 284. 19 S. W. 660, 19 L. R. A. 240], at least if he intends to dig below B's foundation wall [Krish v. Ford (Ky.) 43 S. W. 237], so that B may shore up or prop his wall, or otherwise protect himself from injury [see last three cases cited; also, Lapp v. Guttenkunst (Ky.) 44 S. W. 964] ; while other cases deny that there is, by common law, any duty to give notice [Dorrity v. Rapp, 72 N. Y. 307, 310 ; Trower v. Chadwick, 3 Bing. N. C. 334 ; Id., 4 Bing. N. C. 1 ; see Lar- son v. Metr. R. Co., 110 Mo. 234, 19 S. W. 416]. In some states there are statutes requiring the giving of notice. First Nat. Bk. v. Villegra, 92 Cal. 96, 28 Pac. 97. In New York there is a statute, applicable to New York City, that if a person excavates more than 10 feet below the curb, he must protect at his own expense a wall on the neighbor's adjoining land, "if afforded the necessary license to enter on such land" ; otherwise the neighbor must protect his own wall, as at common law. Ketcham v. Newman, 141 N. Y. 205, 36 N. E. 197, 24 L. R. A. 102. The clear weight of authority now supports the view approved in Gil- more v. Driscoll, ante, 44, that a prescriptive right cannot be acquired for the support of a building by adjacent land. Mitchell v. Mayor, etc., of Rome. 49 Ga. 19, 15 Am. Rep. 669 ; Tunstall v. Christian, 80 Va. 1, 56 Am. Rep. 581 ; Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 57 Am. Rep. 138; Handlan v. Mc- Manus, 42 Mo. App. 551 ; Clemens v. Speed, 93 Ky. 284, 19 S. W. 660, 19 L. R. A. 240 ; Sullivan v. Zeiner, 98 Cal. 346, 33 Pac. 209. 20 L. R. A. 730. There are, however, many dicta to the contrary, and in England such a prescriptive right may be gained. Dalton v. Angus, L. R. 6 A. C. 740. Similar rules apply in cases of subjacent support, i. e., where one man owns the surface of land, and another owns the underlying strata. Wilms v. Jess, 94 111. 464, 34 Am. Rep. 242 ; Pringle v. Vesta Coal Co., 172 Pa. 438, 33 Atl. 690; Robertson v. Coal Co., 172 Pa. 566, 33 Atl. 706; Yandes v. Wright. 66 Ind. 319, 32 Am. Rep. 109; Marvin v. Brewster Mining Co., 55 N. Y. 538, 14 Am. Rep. 322.) (140 N. Y. 267. 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552.) BOOTH v. ROME, W. & O. T. R. CO. (in part). (Court of Appeals of New York. December 5, 1893.) BLASTING ON LAND INJURY TO NEIGHBORING PROPERTY LIABILITY OF RAIL- ROAD COMPANY. A railroad company which, having to do blasting on its own land in order to conform its roadbed to the established grade, exercises due care in doing it, when this is the only practically available method of remov- ing the rock, is not liable for injury to a building on plaintiff's adjoining property, when such injury is attributable merely to concussion of the atmosphere or jarring of the ground, and no trespass is committed by casting rocks on plaintiff's premises. If, however, the blasting were negligently done, causing such damage, an action would lie. 52 LAW OF TORTS. Appeal from Supreme Court, General Term, Fifth Department. Action by Sophia Booth against the Rome, Watertown & Ogdens- burg Terminal Railroad Company for injuries to plaintiff's property resulting from concussion of the atmosphere or jarring of the ground caused by blasting on defendant's right of way. From a judgment of the general term (63 Hun, 624, 17 N. Y. Supp. 336) affirming a judgment for plaintiff, defendant appeals. Reversed. ANDREWS, C. J. The plaintiff, upon the findings of the jury, sus- tained a serious injury. It is true that witnesses on the part of the defendant gave evidence tending to show that the house was imper- fectly constructed, and that the foundation walls were giving way before the excavation was commenced. But, the verdict having been affirmed by the general term, there can be no controversy here that the blasting caused damage to the house to the amount of the verdict. But mere proof that the house was damaged by the blasting would not alone sustain the action. It must further appear that the defendant, in using explosives, violated a duty owing by him to the plaintiff in respect of her property, or failed to exercise due care. Wrong and damage must con- cur, to create a cause of action. If the injury was occasioned by the omission to use due care, this alone would sustain the action, even if the right of the defendant to use explosives in removing the rock was conceded. If one, by carelessness in making an excavation on his own land, causes injury to an adjoining building, even where the owner of the house has no easement of support, he will be liable. Leader v. Moxton, 3 Wils. 460 ; Lawrence v. Railway Co., 16 Adol. & E. (N. S.) 643-653 ; Leake, Real Prop. 248. The law exacts from a person who undertakes to do even a lawful act on his own premises, which may produce injury to his neighbor, the exercise of a degree of care measured by the danger, to prevent or mitigate the injury. The defendant could not conduct the operation of blasting on its own premises, from which injury might be apprehended to the property of his neighbor, without the most cautious regard for his neighbor's rights. This would be reasonable care only under the circumstances. The plaintiff, however, on this record, is precluded from claiming that the judgment may be sustained because of negligence in the mode of blasting. It must be assumed from concessions made on the trial, and from the rule of law laid down by the court, that blast- ing was the only mode of removing the rock practically available, that it was conducted with due care, and that it was necessary to enable the defendant to conform the roadbed to the established grade. This is a case, therefore, of unavoidable injury to the plain- tiff's house, occasioned by the act of the defendant in blasting on his own premises in order to adapt them to a lawful use ; the mode adopt- ed being the only practicable one, and the work having been prose- cuted with due care and without negligence. The question is whether the act of the defendant, connected with the resulting injury, was a legal wrong, for which the plaintiff has a right of action. GENERAL PRINCIPLES. 53 The general rule that no one has absolute freedom in the use of his property, but is restrained by the coexistence of equal rights in his neighbor to the use of his property, so that each, in exercising his right, must do no act which causes injury to his neighbor, is so well understood, is so universally recognized, and stands so impreg- nably in the necessities of the social state, that its vindication by argument would be superfluous. The maxim which embodies it is sometimes loosely interpreted as forbidding all use by one of his own property, which annoys or disturbs his neighbor in the enjoyment of his property. The real meaning of the rule is that one may not use his own property to the injury of any legal right of another. The cases are numerous where the lawful use of one's property causes injury to adjacent property, for which there is no remedy, because no right of the adjacent owner is invaded, although he suffers injury. The cases of excavation furnish a striking illustration. The easement of natural support of the land of one by the land of the adjacent owner applies only to lands in their natural condition, and does not extend so as to give the owner of a building erected on the confines of his land the right to have it supported laterally by the land of his neighbor; and so it has become the settled doctrine of the law that if one, by excavating on his own land adjacent to the land of his neighbor, using due care, causes a building on his neighbor's land to topple over, there is no remedy, provided the weight of the build- ing caused the land on which it stood to give way. There is, in the case supposed, injury, but no wrong, because what was done bv the adjacent owner was in the lawful and permitted use of his own prop- erty. Wyatt v. Harrison, 3 Barn. & Adol. 871 ; Partridge v. Scott, 3 Mees. & W. 220; Lasala v. Holbrook, 4 Paige, 170, 25 Am. Dec. 524; Thurston v. Hancock, 12 Mass. 220, 7 Am. Dec. 57. The fundamental proposition upon which the plaintiff's counsel rests his argument in support of the recovery is that the use of the explosives in blasting constituted, under the circumstances, a private nuisance, and that, according to the general rule of law, one who creates or maintains a nuisance is liable for any special injury to person or property resulting therefrom. The right of the defendant to excavate on its land for its roadbed is not challenged, but the right to use the destructive agency of gunpowder in the work of excavation, liable to produce injury, and which did occasion it, is de- nied. The exception is not to the thing done, but to the mode of doing it. It is to be observed, however, that, under the concessions in the case and the rulings on the trial, it must be assumed that the excavation could not have been done except by the use of explosives This mode of doing the work was therefore of the substance of the right, if the right existed at all. It has been frequently said that the right of an owner of land to use his property as he likes does not justify the maintaining of a nuisance or the commission of a tres- pass ; and Blackstqne, after stating that where one, by smelting works on his own land, causes noxious vapors, which injure the 54 LAW OF TORTS. corn or grain on his neighbor's land or damages his cattle, this would be a nuisance, proceeds to say "that if you do any other act in itself lawful, which yet being done in that place, necessarily tends to the damage of another's property, it is a nuisance, for it is in- cumbent on him to find some other place to do that act, where it will be less offensive." 2 Bl. Comm. c. 13, p. 218. There are many illustrations in the books of the doctrine stated by the learned com- mentator, that the use of one's own land for the purpose of a lawful trade may become a nuisance to his neighbor. But whether a par- ticular act done upon, or a particular use of, one's own premises, con- stitutes a violation of the obligations of vicinage, would seem to de- pend upon the question whether such act or use was a reasonable exercise of the right of property, having regard to time, place, and circumstances. It is not everything in the nature of a nuisance which is prohibited. There are many acts which the owner of land may lawfully do, although it brings annoyance, discomfort, or injury to his neighbor, which are damnum absque injuria. The case of the building caused to fall by an excavation in an adjoining lot, already referred to, is an illustration. The right of an owner of a mine to excavate the mineral in his mine, although by so doing it causes the water to collect therein, and to be discharged into an adjacent mine on a lower level, thereby causing damage to the mine of such adjacent owner, is another illustration of a lawful use of property, followed by damage to the property of another, for which no action lies. Smith v. Kenrick, 7 C. B. 515; Baird v. Williamson, 15 C. B. (N. S.) 376; Wilson v. Waddell, 2 App. Cas. 95. In referring to these cases in Hurdman v. Railway Co., 3 C. P. Div. 168, the court said: "The owner of lands holds his right to the enjoyment thereof subject to such annoyance as is the consequence of what is called the ''natural use by his neighbor of his land,' and that, where an inter- ference with his enjoyment by something in the nature of a nuisance is the cause of complaint, no action can be sustained, if this is the result of a natural use by a neighbor of his land." Whether a par- ticular act or thing constitutes a nuisance may depend on the circum- stances and surroundings. The use of premises for mechanical or other purposes, causing great noise, disturbing the peace and quiet of those living in the vicinity, and rendering life uncomfortable, or filling the air with noxious vapors, or causing vibration of the neigh- boring dwellings, constitute nuisances, and such use is not justified by the right of property. Fish v. Dodge, 4 Denio, 311, 47 Am. Dec. 254; McKeon v. See, 51 N. Y. 300, 10 Am. Rep. 659; Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701. These and like cases are those where the property of the owner is appro- priated to a permanent use, which is a constant and serious inter- ference with the enjoyment by other property owners of their prop- erty. But there is a manifest distinction b.etween acts and uses which are permanent and continuous, and temporary acts, which are resorted to in the course of adapting premises to some lawful use. GENERAL PRINCIPLES. 55 For example, the erection of an iron building adjacent to a dwelling might, for the time being, cause as much noise and discomfort as would arise from conducting the business of finishing steam boilers on adjacent premises ; but this would not constitute a nuisance, and the owner of the dwelling would have no remedy. The streets may be obstructed temporarily, subject to municipal regulations, for the deposit of building materials, and the party would not be chargeable with maintaining a nuisance. The test of the permissible use of one's own land is not whether the use or the act causes injury to his neighbor's property, or that the injury was the natural conse- quence, or that the act is in the nature of a nuisance, but the inquiry is, was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his prop- erty, having regard to all interests affected, his own and those of his neighbors, and having in view, also, public policy. The rule announced by the trial judge, that the use, by an owner of property, of explosives, in excavating his land, is at his peril, and imposes liability for any injury caused thereby to adjacent property, irrespective of negligence, is far-reaching. It would constitute, if sustained, a serious restriction upon the use of property, and in many cases greatly impair its value. The situation in the city of New York furnishes an apt illustration. The rocky surface of the upper part of Manhattan island makes blasting necessary in the work of excava- tion, and, unless permitted, the value of lots, especially for business uses, would be seriously affected. May the man who has first built a store or warehouse or dwelling on his lot, and has blasted the rock for a basement or cellar, prevent his neighbor from doing the same thing, when he comes to build on his lot adjoining, on the ground that by so doing his own structure will be injured? Such a rule would enable the first occupant to control the uses of the adjoining property, to the serious injury of the owner, and prevent, or tend to prevent, the improvement of property. The first occupant, in building on his lot, exercised an undoubted legal right. But his prior occupation deprived his neighbor of no legal right in his prop- erty. The first occupant acquires no right to exclude an adjoining proprietor from the free use of his land, nor to use his own land to the injury of his neighbor subsequently coming there. Platt v. Johnson, 15 Johns. 213, 8 Am. Dec. 233 ; Thurston v. Hancock, supra ; Tipping v. Smelting Co., I Ch. App. 66 ; Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567. The fact of proximity imposes an obliga- tion of care, so that one engaged in improving his own lot shall do no unnecessary damage to his neighbor's dwelling; but it cannot, we think, exclude the former from using the necessary and usual means to adapt his lot to any lawful use, although the means used may endanger the house of his neighbor. We have found no case directly in point upon the interesting and important practical question involved in this appeal. It was held in the leading case of Hay v. Cohoes Co., 2 N. if. 159, 51 Am. Dec. 56 LAW OF TORTS. 279, that the right of property did not justify the owner of land in committing a trespass on the 'land of his neighbor by casting rocks thereon in blasting for a canal on his own land for the use of his mill, although he exercised all due care in executing the work. In that case there was a physical invasion by the defendant of the land of the plaintiff. This, the court held, could not be justified by any consideration of convenience or necessity connected with the work in which the defendant was engaged. In the conflict of rights the court considered that public policy required that the right of the defendant to dig the canal on his own land must yield to the superior right of the plaintiff to be protected against an invasion of his pos- session by the act of the defendant. The case of Benner v. Dredging Co., 134 N. Y. 156, 31 N. E. 328, 17 L. R. A. 220, 30 Am. St. Rep. 649, was the case of an' injury to the plaintiff's house, resulting from the jarring caused by the blasting of rocks in Hell Gate ; and it was held that the injury was remediless, for the reason that the defendant was acting under the authority of the government of the United States, by virtue of a contract authorized by congress. It has been held that the keeping of gunpowder in large quantities near inhab- ited dwellings is a nuisance, and in the case of explosion subjects the party keeping it to liability for damages occasioned thereby. Myers v. Malcolm, 6 Hill, 292, 41 Am. Dec. 744; Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654. So, also, it has been held that the work- ing of quarries by the use of gunpowder, to the injury of property in the vicinity, gives a right of action. City of Tiffin v. McCormack, 34 Ohio St. 638, 32 Am. Rep. 408; Scott v. Bay, 3 Md. 431. Many of the cases cited by the counsel are cases of the permanent appro- priation of property, for damages, or noxious uses causing dam- age. But the defendant here was engaged in a lawful act. It was done on its own land, to fit it for a lawful business. It was not an act which, under all circumstances, would produce injury to its neighbor, as is shown by the fact that other buildings near by were not injured. The immediate act was confined to its own land ; but the blasts, by setting the air in motion, or in some other unexplained way, caused an injury to the plaintiff's house. The lot of the defendant could not be used for its roadbed until it was excavated and graded. It was to be devoted to a common use ; that is, to a business use. The blasting was necessary, was carefully done, and the injury was consequential. There was no technical trespass. Under these cir- cumstances, we think, the plaintiff has no legal ground of complaint. The protection of property is doubtless one of the great reasons for government. But it is equal protection to all which the law seeks to secure. The rule governing the rights of adjacent landowners in the use of their property seeks an adjustment of conflicting interests through a reconciliation by compromise, each surrendering some- thing of his absolute freedom so that both may live. To exclude the defendant from blasting to adapt its lot to the contemplated uses, at the instance of the plaintiff, would not be a compromise between GENERAL PRINCIPLES. 57 conflicting rights, but an extinguishment of the right of the one for the benefit of the other. This sacrifice, we think, the law does not exact. Public policy is sustained by the building up of towns and cities and the improvement of property. Any unnecessary restraint on freedom of action of a property owner hinders this. The law is interested, also, in the preservation of property and property rights from injury. Will it, in this case, protect the plaintiff's house by depriving the defendant of his right to adapt his property to a lawful use, through means necessary, usual, and generally harmless? We think not. The judgment should be reversed, and a new trial ordered, with costs to abide the event. All concur. (To the same effect is Holland House Co. y. Baird, 169 N. Y. 136, 62 N. B. 149.) (40 N. J. Eq. 447, 3 Atl. 168.) OCEAN GROVE CAMP MEETING ASS'N v. COMMISSIONERS OF ASBURY PARK. (Court of Chancery of New Jersey. October Term, 1885.) SUBTERRANEAN WATERS DIVERSION. Complainants, by boring for water, on land owned by them, to a depth of about 400 feet, had obtained a flow of 50 gallons per minute. Subse- quently defendants, needing water for use on their land, three-eighths of a mile from complainants', and having failed to obtain a supply by boring thereon, sank a shaft on land of third parties, by permission of the latter, within 500 feet of complainants' well, to nearly the same depth, and thereby secured a flow of 30 gallons a minute, and thereupon the supply from complainants' well fell to 30 gallons per minute. Held that, in the absence of proof that the water was taken from a stream, it must be pre- sumed to be the property of the owner of the fee ; and complainants could not maintain an action to compel defendants to close the well so opened by the latter, or to restrain them from sinking other wells nearer com- plainants' well. On order to show cause why injunction should not issue. BIRD, V. C. More than 15 years ago the complainants purchase( a large tract of land fronting upon the ocean, chiefly for the purpose:, of a summer resort to exercise the right of worship. The enter- prise has so grown that in winter it has a population of about 5,000, and in summer of 10,000 or 15,000. The authorities soon discovered that, to preserve the good health of the residents and visitors, it was absolutely necessary to improve their water-supply and sewerage sys- tem. To do this they bored for water, and at the depth of over 400 feet struck water which gave them a flow of 50 gallons per minute at an elevation above the surface of 28 feet. This they carried into the city by means of pipes, and supplied therewith about 70 hotels and 58 LAW OF TORTS. cottages. They also applied it to the improvement of their sewerage system. The volume of water thus produced continued to flow undi- minished in quantity and with unabated force until the action of the defendants now complained of, and to restrain which the bill in this cause was filed. The Commissiorers of Asbury Park, a corporate body, purchased a large tract of land immediately north of and adja- cent to the tract owned by Ocean Grove. Under their management, this, too, has become a famous seaside resort. Its population is equal to, if not greater at all times than, that of Ocean Grove. The authori- ties saw a like necessity for an increased supply of wholesome water. They entered into a contract with others, a portion of these defend- ants, to procure for them water by boring in the earth. These, their agents, sank several shafts to the depth of over 400 feet without satis- factory success. One shaft yielded about 4 gallons to the minute, and another, which yielded the most, only 9. All of the wells were upon the land and premises of the Asbury Park Association. It became evident, and is manifest to the most casual observer, that these wells would not supply the volume of water needed. It was also manifest that the experiment to procure water by digging upon their own land had been quite reasonably extended, although not so complete as to satisfy the mind that they cannot obtain water on their own premises as well as elsewhere, since it is in evidence that there are two wells on their premises, sunk by individuals, which produce 15 gallons each per minute, being as much in quantity as they procure from the well which is complained of. Failing in their efforts upon their own prem- ises, they go elsewhere, on the land owned by individuals, and, pro- curing a right from individual owners, sink a shaft upon the public highway, near to the land of the complainants, and within 500 feet of the complainants' well. This bore extended to the depth of 416 feet, within 8 feet of the depth of complainants' well. At this depth they secured a flow of water at the rate of 30 gallons per minute, and the supply from the complainants' well was almost immediately decreased from 50 gallons to 30 per minute. The diminution in water was im- mediately felt by many of those who depended for a supply from this source in Ocean Grove. The Asbury Park authorities propose to sink other wells still nearer the well of complainants. This bill asks that they may be prohibited from so doing, and that they may be com- manded to close the well already opened, which, it is alleged, is sup- plied from the same source that the complainants' well is supplied from. The complainants are first in point of time. They are upon their own land and premises. They procure water from their own soil to be used in connection with their said premises, in the improvement and beneficial enjoyment of their occupation. In this they have exer- cised an indefeasible and unqualified right. It matters not whether the water which they obtain is from a pond or under-ground basin, or only the result of percolation, or from a flowing stream. The defend- ants went from their own land upon the land of strangers, and ob- tained permission to bore for water, and there sink their shaft, procur- GENERAL PRINCIPLES. 59 mg water from the same source that the complainants procured their water, and diverted it and carried it to their premises, three-eighths of a mile, for use. Can they be restrained from doing this? A very careful consideration of a great many authorities leads me to the con- clusion that they cannot at the instance of the complainants. Ang. Water-Courses, 109-114, inclusive; Gould, Waters, 280; Ballard v. Tomlinson, 26 Ch. Div. 194; Chasemore v. Richards, 7 H. L. Cas. 349, 5 Hurl. & N. 982 ; Acton v. Blundell, 12 Mees. & W. 324 ; Chase v. Silverstone, 62 Me. 175, 16 Am. Rep. 419; Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352 : Village of Delhi v. Youmans, 45 N. Y. 362, 6 Am. Rep. 100; Goodale v. Tuttle, 29 N. Y. 459; Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721; Frazier v. Brown, 12 Ohio St. 294. The courts all proceed upon the ground that waters thus used and diverted are waters which percolate through the earth, and are not distinguished by any certain and well-defined stream, and conse- quently are the absolute property of the owner of the fee, as com- pletely as are the ground, stones, minerals, or other matter to any depth whatever beneath the surface. The one is just as much the subject of use, sale, or diversion as the other. The owner of a mine encounters innumerable drops of water escaping from every crevice and fissure. These, when collected, interfere with his progress, and he may remove them, although the spring or well of the land-owner below be diminished or destroyed. So the owner or owners of a bog, marsh, or meadow may sink wells therein, and carry off the waters collected in them, to the use or enjoyment of a distant village or town, although the waters of a large stream upon the surface be thereby so diminished as to injure a mill-owner who had enjoyed the use of the waters of the stream for many years. Upon these prin- ciples, there can be no doubt but that every lot-owner in Ocean Grove or Asbury Park could sink a well on his lot to any depth, and, in case one should deprive his neighbor of a portion or all of his sup- posed treasure, no action would lie. A moment's reflection will enable every one to perceive that such conditions or contingencies are necessarily incident to the ownership of the soil. In the case be- fore me there is no proof that the waters in question are taken from a stream, and I have no right to presume that they are. The pre- sumption is the other way. It seems to be my very plain duty to discharge the order to show cause, with costs. (This rule as to percolating waters is well established. The following cases may be cited in addition to those referred to in the above decision : Brown v. Illius, 27 Conn. 84, 71 Am. Dec. 49 ; Lybe's Appeal, 106 Pa. 626, 51 Am. Rep. 542 ; Wilson v. New Bedford, 108 Mass. 201, 265, 11 Am. Rep. 352 ; Bloodgtood v. Ayers, 108 N. Y. 400, 405, 15 N. E. 433, 2 Am. St Rep. 443; Wheelock v. Jacobs, 70 Vt 162, 4 Atl. 41, 43 L. R. A. 105, 67 Am. St Rep. 659. Neither an action at law or in equity will lie for the damages sustained. In Maine it has been held that if one who sinks a well, and draws off his neighbor's percolating waters, acts in good faith, he is not liable, but that he is liable if the act were done maliciously and for the "sole purpose of inflicting GO LAW OF TORTS. damage upon the neighbor." Chesley v. King, 74 Me. 164, 43 Am. Rep. 569; Stevens v. Kelley, 78 Me. 445, 6 Atl. 868, 57 Am. Rep. 813; S. P. in dicta, Greenleaf v. Francis, 18 Pick. 117 ; Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721. This doctrine is, however, denied in various other states and in England, the general rule being followed that "an act which is lawful in itself does not become unlawful because done with a malicious or wrongful motive." Mayor, etc., of Bradford v. Pickles [1895] A. C. 587 ; Wheelock v. Jacobs, 70 Vt. 162, 167, 40 Atl. 41, 43 L. R. A. 105, 67 Am. St Rep. 659: Huber v. Merkel, 117 Wis. 355, 94 N. W. 354, 356, 62 L. R. A. 589 ; Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93, and cases cited. In New York the general rule above stated as to percolating waters is maintained, but it has been held not applicable in a case where a city, in order to obtain a more extensive water supply, constructed a large pump- ing plant by which the underground waters were drained off from the neigh- boring lands [a total area of from five to eleven square miles], to the great injury of the farmers there residing. It was realized by the city in advance that just such results would follow, and the court characterized its acts as "unreasonable" and "unjust." Forbell v. City of N. Y., 164 N. Y. 522, 58 N. E. 644, 51 L. R. A. 695, 79 Am. St Rep. 666; Smith v. City of Brooklyn. 18 App. Div. 340, 46 N. Y. Supp. 141, s. c. on appeal 160 N. Y. 357, 54 N. E. 787, 45 L. R. A. 664. As to the measure of damages, see Reisert v. City of N. Y., 174 N. Y. 196, 66 N. E. 731. To the same effect is Kate v. Walkinshaw [Cal.] 70 Pac. 663, 74 Pac. 766. Other recent cases hold that one may draw perco- lating waters from his neighbor's land for a "reasonable or beneficial use," but not to let them go to waste. Barclay v. Abraham [Iowa] 96 N. W. 1080 ; Still- water Water Co. v. Farmer [Minn.] 93 N. W. 907, 00 L. R. A. 875.) In some classes of cases, there must be damage sustained in order that there may be a cause of action for tort. (5 Best & S. 384.) ROBERTS et ux. v. ROBERTS. (Court of Queen's Bench. June 3, 1864.) SLANDER SPECIAL DAMAGE. In an action by husband and wife for slander of the latter, the declara- tion alleged that the wife was a member of a certain religious sect and of one of the societies of such sect ; that the sect and its societies, and the members thereof, were subject to rules and regulations, by which a member of one such society could not become a member of another society in the sect, unless the leaders or elders of the first society certified that such member was morally and otherwise fit to be a member ; and that by reason of words spoken by defendant of the wife, imputing to her immoral con- duct, she was not allowed to continue to be a member of the society, and the leaders or elders thereof refused to certify that she was morally or other- wise fit to be a member of the sect, or of any society of the same, and she was not allowed to become a member of a certain society thereof, and was prevented from attending religious worship, and was injured in her good name and reputation, and became sick and greatly distressed in body and mind. HrU, that no special damage was alleged sufficient to make the words actionable. GENERAL PRINCIPLES. 61 Demurrer to declaration. Action by Robert Roberts and Margaret Roberts, his wife, for an alleged slander on the latter. The declaration stated that the plaintiff Margaret was a member of a sect of Protestant dissenters, to-wit, Calvinistic Methodists, and was a member of a private society and congregation of that sect held at Denbigh, in North Wales, and the sect, and the different societies of it, were subject to certain rules and regulations, and the different members of the sect and the societies were respectively subject to those rules and regulations, and under the control and authority of the several respective societies, and of the leaders of the same, with respect to the moral and religious conduct of such members, and with respect to their being respectively allowed and permitted to be and continue to be members of the different societies and congregations of the sect; and by those rules and regulations a member of one so- ciety in the sect could not become a member of another society in the sect unless the leaders or elders of the first-mentioned society certified that the said member was morally and otherwise fit to be a member of such sect, and of a society of the same; and the defendant, being a member of the sect, and of the society to which the plaintiff Mar- garet then belonged, and well knowing the premises, falsely and mali- ciously spoke and published of the plaintiff Margaret, and of her as a member of such sect and society, and in the presence of the leaders or elders and other members of the society and congregation which the plaintiffs and the defendant had just before then been attending, the false and scandalous words following, in the Welsh language, (setting them out;) which words, being. translated into the English language, have the meaning and effect following, and were so under- stood by the persons to whom they were so spoken and published: that is to say, "You [meaning the plaintiff Robert Roberts] have got for a wife [meaning the plaintiff Margaret] as great a whore as any in the town of Liverpool. I had connection with her several times, the last time a night or two before she left for Liverpool ;" meaning thereby that the plaintiff Margaret had been guilty of such immoral conduct as would prevent her being allowed and permitted to remain, become or be a member of any society and congregation of the sect aforesaid; and by means of the premises the plaintiff Margaret was not allowed or permitted to continue or be any longer a member of the society and congregation aforesaid, and was turned out of the same, and the leaders or elders of the society refused to certify that the plaintiff Margaret \vas morally or otherwise fit to be a member of the sect or of any society or congregation of the same; and the plaintiff Margaret, being desirous of becoming a member of a society and congregation of the sect in Liverpool, was not allowed or per- mitted or able to become a member of the society in Liverpool, and was prevented from attending religious worship; and by means of the premises the plaintiff Margaret became and was greatly injured in her good name and reputation, and became sick and ill, and greatly 62 LAW OF TORTS. distressed in body and mind. Averment, that, by means of the prem- ises, the plaintiff Robert Roberts had been put to and incurred great expenses in and about nursing the plaintiff Margaret, and endeavor- ing to get her cured from her sickness, illness, and distress of mind, and had sustained divers other injuries and damages; and the plain- tiffs claimed 500. Mclntyre, for defendant. The words in the declaration are not actionable without special damage. Allsop v. Allsop, 5 Hurl. & N. 534; Lynch v. Knight, 9 H. L. Cas. 577. And no special damage is alleged sufficient to render the words actionable by reason of such damage. The allegation that the plaintiff Margaret was injured in her good name and reputation, and became sick and ill and distressed in body and mind, is not suffi- cient. Allsop v. Allsop, 5 Hurl. & N. 534. [Crompton Hutton, for plaintiffs: That is admitted.] The remaining head of special dam- age, that she was not allowed to continue a member of the society and congregation of Calvinistic Methodists, and was prevented from at- tending religious worship, is not temporal or pecuniary damage. The first part amounts to no more than that she was excluded from as- sociating with particular persons. It is not alleged that she was a teacher in the society and congregation, or that she derived any spe- cial advantage from being a member of it. As to the other part, the elders could not prevent her from attending the chapel. In Bateman v. Lyall, 7 C. B. (N. S.) 638, there was an allegation of loss of custom- ers by the husband in his business in consequence of the words spoken of his wife by the female defendant. Crompton Hutton, for plaintiffs. Sufficient special damage to the wife is shown for which the hus- band may maintain this action. If the special damage must be pe- cuniary, an action for slander of a wife never could be maintained, as the damage would be to the husband, not to the wife. An action will lie for words spoken by which a woman has lost her marriage. Davis v. Gardiner, 4 Coke, i6b. [Blackburn, J. : Marriage has al- ways been considered a valuable consideration.] In Lynch v. Knight, 9 H. L,. Cas. 577, the special damage relied upon>was not the-natural and probable consequence of the words spoken ; but it was the opinion of Lord Campbell, at page 589, that loss of consortium or conjugal society would give a cause of action to a wife as well as to a husband. [Blackburn, J. : Lord Cranworth, page 595, was strongly inclined to agree in that, though Lord Wensleydale was of a different opinion. Crompton, J. : The loss of consortium of the wife has always been considered a temporal damage in an action by the husband for crim- inal conversation.] In the present case there is a loss of something more than consortium vicinorum. The wife was a member of a re- ligious society and congregation, and as such entitled to a seat in the chapel belonging to that society and congregation ; but, in consequence GENERAL PRINCIPLES. 63 of the words spoken by the defendant,' she was turned out of it. [Mc- Intyre : It is not alleged that she was entitled to a seat in the chapel without payment. Blackburn, J. : Unless she has been deprived of something of pecuniary value, it is difficult to distinguish the present case from that of slander of a chaste unmarried woman.] The court will not extend that doctrine. Value is attached to social advantages and position, of which the court will take notice. The wife had a status as member of the society and congregation, which she has lost. [Cockburn, C. J. : She had no other benefit from it except attending a congregational place of worship, and she may get that benefit whether she attends as a member of the society or not.] A right to a seat in a church or chapel is an advantage of which the law will take notice. The reason why the loss of consortium vicinorum is not sufficient special damage is that the most capricious motives may deprive a per- son of it. Com. Dig., "Action upon the Case for Defamation," D. 30. COCKBURN, C. J. No cause of action is shown in this declara- tion, as it does not allege special damage sufficient to make the words spoken of the female plaintiff actionable. It is admitted that the loss of consortium vicinorum is not sufficient; and I am of opinion that the loss by the female plaintiff of membership of this society and con- gregation, which appears to have been constituted for religious or spiritual purposes, amounts at most to no more than the loss of the merely nominal distinction of being able to call herself a member of it. It does not appear that any real or material advantages attach to membership ; . such as loss of seat in the chapel, or of the opportunity of attending divine worship there. If, by reason of the words spoken, the female plaintiff had been excluded from the meetings for religious worship, or from anything substantial which by right attached to membership of the society, I should be disposed to hold that it was sufficient special damage. I think that to prevent a woman whose character for chastity is assailed from bringing an action for the pur- pose of vindicating it is cruel ; but, as the law at present stands, such an action is not maintainable, unless it be shown that the loss of some substantial or material advantage has resulted from the speaking of the words. That is not shown in this declaration, and therefore I reluctantly hold that the demurrer is good. If, upon further inquiry, anything can be found amounting to such special damage as the law requires, the plaintiffs may have leave to amend their declaration. CROMPTON, J. On the last observation made by the lord chief justice I wish to remark that the amendment should be immediate, so that the cause may be tried at the coming assizes. I agree that the present case falls within the rule that the loss of consortium vicinorum is not sufficient special damage. Here is no loss of a tem- poral nature; or, if there be any, it is merely nominal. Though I wish the law were different in the case of words affecting the chastity of women, yet the line must be drawn somewhere between words 64 LAW OF TORTS. which are and words which are not actionable; and, if we held that the action for slander could be supported by the allegation that the plaintiff had suffered some nominal special damage, we must apply that doctrine to all kinds of less disparaging words, and should there- by encourage actions which ought not to be brought, as for saying that a person did some disreputable act, though not essentially crim- inal. My only doubt is whether the being prevented from attending religious worship is sufficient special damage; but, if it was conducted in a chapel, the female plaintiff could not be prevented from attend- ing and occupying a seat there, especially if she paid for her seat. We do not, however, know how that is; it is not even stated that this society had a chapel. The special damage alleged is of a nominal nature, and therefore our judgment must be for the defendant BLACKBURN, J. The law upon the subject of disparaging words spoken of other persons is not in a satisfactory state. For words written an action is maintainable, though possibly not more than one farthing damages could be obtained; whereas for words spoken im- puting unchastity to a woman no action can be maintained unless spe- cial damage is' shown, for which purpose there must be material in- jury to the interest of the person slandered. What is here alleged is no more than loss of the consortium vicinorum. Judgment for the defendant. (The rule of the common law, as declared in this case, that an action will not lie for spoken words imputing unchastity to a woman, unless there be proof of special damage of a pecuniary nature, has been changed by statute in many states of this country.) (El., Bl. & El. 622.) BONOMI et ux. v. BACKHOUSE (in part). (Court of Queen's Bench. June 7, 1858.) LATERAL SUPPORT OF LAND INJURY BY WORKING MINES CAUSE OF ACTION ACCRUES WHEN DAMAGE RESULTS. Plaintiff was owner of the reversion of an ancient house, and defend- ant, more than six years before action brought, worked some coal mines on his own land at 280 yards distance from the house. This excavation caused damage to plaintiff's house, but this damage did not result until within six years of action brought Held, that no cause of action accrued for the mere excavation by the defendant in his own land, so long as it caused no damage to the plain- tiff, and that the cause of action did accrue when the actual damage first occurred; hence, that the action was not barred by the statute of limitations. WILLES, J. The question argued before us may be stated in a very few words. The plaintiff was owner of the reversion of an ancient house. The defendant, more than six years before the com- GENERAL PRINCIPLES. 65 mencement of the action, worked some coal mines 280 yards distant from it. No actual damage occurred until within the six years. Question. Is the statute of limitations an answer to the action? Or, in other words, did the cause of action accrue within the six years ? There is no doubt that for an injury to a right an action lies ; but the question is, what is the plaintiff's right? Is it that his land should remain in its natural state, unaffected by any act done in the neighboring land, or is it that nothing should be done in the neigh- boring land from which a jury would find that damage might pos- sibly accrue? There is no doubt that in certain cases an action may be maintained, although there is no actual damage. The rule laid down by Sergeant Williams in note 2 to Mellor v. Spateman, I Wm. Saund. 346b, is that whenever an act injures another's right, and would be evidence in future in favor of the wrongdoer, an action may be maintained for an invasion of the right, without proof of any specific damage. This is a reasonable and sensible rule; but it has no application to the present case, for the act of the defendant in getting the coal would be no evidence in his favor as to any future act. Getting the coal was an act done by him in his own soil by virtue of his dominion over it. If the question were unaffected by decision, we cannot but think that the contention on the part of the plaintiffs in error is correct: That on behalf of the defendant is that the action must be brought within six years after the excavation is made, and that it is immaterial whether any actual damage has occurred or not. The jury, according to this view, would have, there- fore, to decide upon the speculative question whether any damage was likely to arise; and it might well be that in many cases they would, upon the evidence of mineral surveyors and engineers, find that no damage was likely to occur when the most serious injury afterwards might in fact occur, and in others find and give large sums of money for apprehended damage which in point of fact never might arise. This is certainly not a state of the law to be desired. On the other hand, the plaintiffs in error rely upon the ordinary rule that damnum and injuria must concur to confer a right of action, and that, although only one action could be maintained for damage in respect of such a claim, nevertheless it would be essential that some damage should have happened before a defendant was made liable for an act done in his own land. Actions upon contract and actions of trespass for direct injuries to the land of another are clearly distinguishable. We are not insensible to the consideration that the holding dam- age to be essential to the cause of action may extend the time dur- ing which persons working minerals and making excavations may be made responsible ; but we think that the right which a man has is to enjoy his own land in the state and condition in which nature has placed it, and also to use it in such manner as he thinks fit, sub- ject always to this : that, if his mode of using it does damage to his neighbor, he must make compensation. Applying these two princi- CHASE (2o ED.) 5 |J(j LAW OF TORTS. pies to the present case, we think that no cause of action accrued for the mere excavation by the defendant in his own land, so long as it caused no damage to the plaintiff, and that the cause of action did accrue when the actual damage first occurred. The judgment must therefore be reversed, and judgment given for the plaintiffs. Judgment reversed. (This decision was affirmed by the House of Lords, 9 H. L. Cases, 503. To the same effect is Ludlow v. Hudson Riv. R. Co., 6 Lans. [N. Y.] 128.) (6 111. App. 243.) CHICAGO WEST. DIV. RY. CO. v. REND et al. (extract from). (Appellate Court of Illinois. April 27, 1880.) 1. TOBT DISTINCT LEGAL WRONG PRESUMPTION OF DAMAGE. Where there is a distinct legal wrong, which in itself constitutes an Invasion of the right of another, the law will presume that damage fol- lows as the proximate result, and nothing further is necessary to a re- covery. 2. SAME CASES OF NEGLIGENCE, ETC. DAMAGE MUST BE PROVED. Where the act or omission complained of is not of itself a distinct wrong, as in cases of negligence, damage must be proved to sustain an action. Appeal from Circuit Court, Cook County; Thomas A. Moran, Judge. Action by the Chicago West Division Railway Company against William P. Rend and another. From a judgment sustaining a gen- eral demurrer to the declaration, plaintiff appeals. Reversed. The declaration alleged that the defendants negligently drove against the plaintiff's car, and caused an injury to one of its passengers, who recovered a judgment therefor against it, which it was compelled to pay. The plaintiff seeks to recover over from the defendants the amount so paid. McALLISTER, J. There are two classes of cases of wrongful acts or omissions between which there is a marked distinction. One is that where there is any distinct legal wrong, which in it- self constitutes the invasion of the right of another, the law will presume that some damage follows as a natural, necessary, and prox- imate result. In that case the wrong itself constitutes the right of action. Nothing further is necessary to a recovery, though the extent of it may depend upon the evidence. Cooley on Torts, 69; Mc- Connel v. Kibbe, 33 111. 179, 85 Am. Dec. 265; Sedg. on Dam. 445; Brent v. Kimball, 60 111. 211, 14 Am. Rep. 35. The latter class is where the act or omission complained of is not of itself a distinct wrong, and can only become so to any particular GENEKAL PRINCIPLES. 67 individual through injurious consequences resulting therefrom. In such case this consequence must not only be shown, but it must be so connected by averment and evidence with the act or omission as to appear to have resulted therefrom according to the ordinary course of events, and as a proximate result of a sufficient cause. Cooley on Torts, supra, and cases in note I. An instance of this class is where suit is brought against the cashier of a bank for neglect of duty. If no damage has resulted to plaintiff, then, although the neglect be proved, the plaintiff cannot even recover nominal damages. Com- mercial Bank v. Ten Eyck, 48 N. Y. 305. Another is where suit is brought for verbal slander, where the words are not actionable per se, but become so only by averring and proving special damages, as in Vickars v. Wilcocks, 8 East, I. In such cases the damages are said to be the gist of the action. Bare negligence, unproductive of dam- ages to another, will not give a right of action ; negligence causing damages will do so. Whitehouse v. Birmingham Can. Co., 2 L. .T-. Exc. 25 ; Bailey v. Wolverham Waterworks, 6 H. & N. 241 ; Duck- worth v. Johnson, 4 H. & N. 653. (The following cases also sustain the doctrine that an action is not main- tainable for negligence, unless it causes detriment or injury to the plaintiff : Harter v. Morris, 18 Ohio St. 493 [action by client against his attorney for negligence] ; Hinckley v. Krug [Cal.] 34 Pac. 118 [Id.] ; McAllister v. Cle- ment, 75 Cal. 182, 16 Pac. 775 [action against notary for neglect in taking acknowledgment to a mortgage] ; Joy v. Morgan, 35 Minn. 184, 28 N. W. 237 [action for negligence in filing mechanic's lien papers] ; Clay v. Western Union Tel. Co., 81 Ga. 285, 6 S. E. 813, 12 Am. St Rep. 316 [negligent failure to deliver a telegram] ; 111. Cent. R. Co. v. Benton, 69 111. 174 [negligence of railroad company in sounding whistle or bell at crossings, as statute requires]. "It is the consequences of negligence," it has been said, "not the abstract existence of it, for which a defendant is answerable." Hart v. Allen, 2 Watts [Pa.] 114. "Negligence without results is never actionable." Christuer v. Coal Co., 146 Pa. 67, 71, 23 Atl. 221; Conway v. Horse R. Co., 90 Me. 199, 38 Atl. 110; Bluedorn v. Mo. Pac. R. Co. [Mo.] 24 S. W. 57, 60; Smith v. Leavenworth, 15 Kan. 81; Harlan v. St Louis, etc., R. Co., 65 Mo. 22; Scott v. Nat Bk., 72 Pa. 471, 13 Am. Rep. 711.) (148 N. Y. 640, 43 N. E. 76.) BUCHHOLZ v. NEW YORK, L. E. & W. R. CO. (in part;. (Court of Appeals of New York. March 3, 1896.) PUBLIC NUISANCE SPECIAL DAMAGE OCCASIONED THEREBY GIVES CAUSE OF ACTION TO INDIVIDUAL. Where defendant, a railroad company, unlawfully built a fence across a public highway on which plaintiff's hotel property was situated, and opened a new way at some distance off for travelers to use in reaching the main road again, whereby travel was diverted from plaintiff's prem- ises and his business as a hotel keeper was seriously interrupted, held? that the defendant, by obstructing the highway, had caused a public fjg LAW OF TORTS. nuisance, and that the loss and detriment occasioned to the plaintiff was ' a special injury to him, for which he might maintain an action for dam- ages and for an injunction. Appeal from Supreme Court, General Term, Second Department. The facts, so far as material, are stated in the opinion. ANDREWS, C. J. Main street, in the village of Port Jervis, as it existed prior to March, 1890, ran in a northerly and southerly direc- tion, passing the plaintiff's premises, upon which for many years had been erected" a hotel and barns, used by him for hotel purposes. The plaintiff's lot adjoined lands of the defendant on the north, and, up to the date mentioned, the tracks' of the defendant crossed Main street at grade on its own premises, 50 feet or more north of the north line of the plaintiff's lot. In March, 1890, the defendant constructed a bridge over its tracks, 100 feet east of the grade crossing, and con- nected it with Main street, north of the plaintiff's lot, and an approach thereto on the south from Main street, 100 feet or more south of the plaintiff's premises, and at the same time took up the planking at the grade crossing, and built a fence across Main street north of plain- tiff's lot, where the bridge connected with the street. By these acts of defendant the travel on Main street in front of plaintiff's premises was diverted to the new way across the bridge. It left the plaintiff's hotel and premises on a spur of Main street, closed at the north, or on what was, after the change, practically a lane, starting from the point loo feet south where the new way diverged from Main street. It was found that the plaintiff, by reason of the interference with Main street, sustained special damage, and the facts proved in con- nection with the use to which the plaintiff's premises were devoted amply justify the finding. But the trial court refused relief, on the ground that, under the circumstances, the plaintiff had suffered no injury to his property for which he was entitled either to damages or an injunction. There can be no doubt of the general proposition that an unlawful obstruction of a public highway, by an individual or corporation, con- stitutes a public nuisance, and subjects the party who created or main- tains it to an indictment, and to a proceeding for its abatement in behalf of the public. But the public remedy is not, in all cases, ex- clusive. An individual who has suffered special injury from the nui- sance, not common to the whole public, may maintain a private action against the author of the injury for damages, and in a proper case may invoke the jurisdiction in equity to restrain its continuance. The equitable jurisdiction attaches when the legal remedy is inadequate, either because the damages are such that they cannot be measured by a money standard, with any certainty, or where they are continuous, and multiplicity of suits would be likely to result if the remedy was confined to proceedings at law. The injury suffered by the plaintiff in this case from the change in and obstruction of the street, whereby travel was diverted from his premises, and his business as an hotel GENERAL PRINCIPLES. 69 keeper seriously interrupted, made a case for equitable interposition, and for the recovery of damages, within the cases in this state, as- suming that the defendant's acts were unlawful. Adams v. Popham, 76 N. Y. 410; Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264, I Am. St. Rep. 831 ; Flynn v. Taylor, 127 N. Y. 596, 28 N. E. 418, 14 L. R. A. 556. See, also, Story, Eq. Jur. 926 et seq. We think the judgment should be reversed and a new trial ordered. All concur. Judgment reversed. (This doctrine in regard to public nuisances is well established. Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341 ; Knowles v. Pa. R. Co., 175 Pa. 623, 34 Atl. 974, 52 Am. St Rep. 860 ; Houck v. Wachter, 34 Md. 265, 6 Am. Rep. 332 ; Wintcrbottom v. Lord Derby, L. R. 2 Ex. 316 ; O'Brien v. Central Iron Co., 158 Ind. 218, 63 N. E. 302, 57 L. R. A. 508, 92 Am. St. Rep. 305 ; Jones v. City of Chanute, 63 Kan. 243, 65 Pac. 243 ; Van Wegenen v. Cooney, 45 N. J. Eq. 25, 16 Atl. 689. The "special damage" which the individual must suffer from the public nuisance must be, it is held, "different in kind, and not merely in degree or extent, from that which the general public suffers from the same cause." But though the authorities agree upon this rule, they differ much in their ap plication of it. Brayton v. Fall River, 113 Mass. 218, 18 Am. Rep. 470; Chi cago v. Union Bldg. Ass'n, 102 111. 379, 40 Am. Rep. 598 ; Atwood v. Partree, 56 Conn. 80, 14 Atl. 85 ; Knowles v. Pa. R. Co., supra ; Lansing v. Smith, 8 Cow. 146 ; Id., 4 Wend. 9, 21 Am. Dec. 89.) (122 Mass. 235, 23 Am. Rep. 322.) GOTT v. PULSIFER et al. (in part). (Supreme Judicial Court of Massachusetts. Suffolk. March 7, 1877.) 1. MALICE FALSEHOODS ABOUT PROPERTY SPECIAL DAMAGE. An action for publishing a false and malicious statement, disparaging the plaintiff's property, cannot be maintained without allegation and proof of special damage. 2. SAME EVIDENCE. Where the special damage alleged to have resulted from a false publi- cation concerning a statue was the loss of its sale to a certain person, evidence of its value as a scientific curiosity or for purposes of exhibition was immaterial. 8. SAME EVIDENCE OF MALICE. Though a newspaper is not liable for the publication of comments on a statue which has been made a subject of public exhibition, without proof of actual malice, it is not necessary that there should be direct proof of an intention to injure the value of the property ; such intention being inferable from false statements, exceeding the limits of fair criticism, or recklessly uttered in disregard of the rights of the owner. Action by Calvin O. Gott against R. M. Pulsifer and others. Ver- dict for defendants, and plaintiff excepts. Exceptions sustained. The declaration alleged that the plaintiff owned a colossal statue of great value, known as the "Cardiff Giant" ; that the defendants had published a false statement that it had been sold at New Orleans 70 LAW OF TORTS. for $8, referring to it as a sell, a humbug, and a fraud ; and that it had not been sold, but that plaintiff by such publication had lost Ihe sale of the statue for $30,000. GRAY, C. J. This action is not for a libel upon the plaintiff, but for publishing a false and-, malicious statement concerning his prop- erty, and could not be supported without allegation and proof of special damage. Malachy v. Soper, 3 Bing. N. C. 371 ; S. C. 3 Scott, 723 ; Swan v. Tappan, 5 Cush. 104. The special damage alleged was the loss of the sale of the plaintiff s statue to Palmer. Evidence of the value of the statue as a scientific curiosity or for purposes of exhibition was therefore rightly rejected as immaterial. The editor of a newspaper has the right, if not the duty, of pub- lishing, for the information of the public, fair and reasonable com- ments, however severe in terms, upon anything which is made by its owner a subject of public exhibition, as upon any other matter of public interest, and such a publication falls within the class of privi- leged communications for which no action can be maintained with- out proof of actual malice. Dibdin v. Swan, i Esp. 28; Carr v. Hood, I Campb. 355 ; Kenwood v. Harrison, L. R. 7 C. P. 606. But, in order to constitute such malice, it is not necessary that there should be direct proof of an intention to injure the value of the property. Such an intention may be inferred by the jury from false statements, exceeding the limits of fair and reasonable criti- cism, and recklessly uttered in disregard of the rights of those who might be affected by them. Malice in uttering false statements may consist either in a direct intention to injure another, or in a reck- less disregard of his rights and of the consequences that may result to him. Commonwealth v. Bonner, 9 Mete. 410; Moore v. Steven- son, 27 Conn. 14 ; Erie, C. J., in Hibbs v. Wilkinson, I F. & F. 608, 610, and in Paris v. Levy, 2 F. & F. 71, 74, and 9 C. B. (N. S.) 342, 350; Cockburn, C. J., in Morrison v. Belcher, 3 F. & F. 614, 620, in Heclley v. Barlow, 4 F. & F. 224, 231, and in Strauss v. Francis, 4 F. & F. 1107, 1114. The only definition of malice given by the learned judge who pre- sided at the trial was therefore erroneous, because it required the plaintiff to prove "a disposition willfully and purposely to injure the value of this statue," as well as "wanton disregard of the interest of the owner." The jury upon the evidence before them, and under the instructions given them, may have been of opinion that the de- fendants' statements that the plaintiff's statue was an "ingenious humbug," "a sell," and "a fraud," were false, reckless, and unjusti- fiable, and had the effect of injuring the plaintiff's property, and caused him special damage, and may have returned their verdict for the defendants solely because they were not convinced that they intended such injury. The ninth request for instructions distinctly called the attention of the court to the necessity of a definition of the legal meaning of GENERAL PRINCIPLES. 71 malice in this respect. As the instructions given were erroneous in this particular, and we cannot know that the error did not affect the verdict, the plaintiff is entitled to a new trial, in order that he may satisfy a jury, if he can, under proper instructions, that he has a good cause of action against the 'defendants. Exceptions sustained. (There are various classes of eases wherein malice, by words or acts, Is ac- tionable, provided it causes special damage ; as, e. g., [a] in cases of malicious disparagement of property [as in the principal case, supra], or of title to prop- erty. Dooling v. Budget Pub. Co., 144 Mass. 258, 10 N. B. 809, 59 Am. Rep. 83, and cases cited ; Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, 390, 64 N. E. 163; Wilson v. Dubois, 35 Minn. 471, 29 N. W. 68, 59 Am. Rep. 335; Malachy v. Soper, 8 Bing. N. C. 371 ; [b] malicious acts or malicious conspira- cies [followed by acts in pursuance thereof] to injure a man in his trade or business, outside the bounds of legitimate competition. Quinn v. Leatham (1901) A. C. 495 ; Mogul Stshp. Co. v. McGregor, L. R. 23 Q. B. D. 598, 614, (1892) A. C. 25 ; Walker v. Cronin, 107 Mass. 564 ; Barr v. Essex Trades Coun- cil, 53 N. J. Eq. 101, 30 Atl. 881 ; Aldridge v. Stuyvesant, 1 Hall (N. Y.) 210 ; Lucke v. Clothing Cutters' Assembly, 77 Md. 396, 26 Atl. 505, 19 L. R. A. 408, 39 Am. St. Rep. 421 ; Smith v. Nippert, 76 Wis. 86, 44 N. W. 846, 20 Am. St Rep. 26; Burton v. Fulton, 49 Pa. 151. But the malicious exercise of a definite legal right is not actionable, though it does result in damage to another. Stevenson v. Newnham, 13 C. B. 297 ; Allen v. Flood [1898] A. C. 1 ; Heywood v. Tillson, 75 Me. 225, 46 Am. Rep. 373; Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 225, 54 Am. St Rep. 882 ; Walker v. Cronin, 107 Mass., at page 5G4 ; Kiff v. Youmans, 86 N. Y. 324, 40 Am. Rep. 543 ; McCune v. Norwich Gas Co., 30 Conn. 521, 79 Am. Dec. 278 ; Smith v. Johnson, 76 Pa. 191. As to maliciously inducing a man to break a contract with a third person, see post, p. lie.) (3 Term R. 51.) PASLEY et al. v. FREEMAN (In part). (Hilary Term, 1789.) DECEIT ELEMENTS OF ACTION DAMAGE. Where defendant, to induce plaintiffs to sell goods to a certain person, represented that he was a person safely to be trusted, knowing this to be false and intending to deceive and defraud plaintiffs, and they, relying on and believing his representations, sold the goods on credit as desired, and were unable to collect therefor from the purchaser and wholly lost the goods and their value, defendant is liable for the deceit, though he had no interest in the sale, and had not colluded with any person who had such an interest. The gist of the action is the injury done to the plaintiff, not whether the defendant meant to be a gainer by it Fraud without damage, or damage without fraud, will not found an action ; but, where both concur, an action will lie. This was an action in the nature of a writ of deceit, to which the defendant pleaded the general issue. And after a verdict for the plaintiffs on the third count, a motion was made in arrest of judg- ment. 72 LAW OF TORTS. The third count was as follows : "And whereas also the said Joseph Freeman, afterwards, to wit on the 21 st day of February in the year of our Lord 1787, at London aforesaid, in the parish and ward aforesaid, further intending to deceive and defraud the said John Pasley and Edward, did wrongfully and deceitfully encourage and persuade the said John Pasley and Edward, to sell and deliver to the said John Christopher Falch divers other goods, wares and mer- chandizes, to wit, 16 other bags of cochineal of great value, to wit, of the value of ^2634. i6s. id. upon trust and credit; and did for that purpose then and there falsely, deceitfully, and fraudulently, assert, and affirm, to the said John Pasley and Edward, that the said John Christopher then and there was a person safely to be trusted and given credit to in that respect, and did thereby falsely, fraudulently, and deceitfully, cause and procure the said John Pasley and Edwaod to sell and deliver the said last mentioned goods, wares, and mer- chandizes upon trust and credit to the said John Christopher ; and in fact they the said John Pasley and Edward, confiding in and giving credit to the said last mentioned assertion and affirmation of the said Joseph, and believing the same to be true, and not knowing the contrary thereof, did afterwards, to wit, on the 28th day of Feb- ruary in the year of our Lord 1787, at London aforesaid, in the parish and ward aforesaid, sell and deliver the said last mentioned goods, wares, and merchandizes, upon trust and credit to the said John Christopher; whereas in truth and in fact at the time of the said Joseph's making his said last mentioned assertion and affirmation, the said John Christopher was not then and there a person safely to be trusted and given credit to in that respect, and the said Joseph well knew the same, to wit at London aforesaid, in the parish and ward aforesaid. And the said John Pasley and Edward further say, that the said John Christopher hath not, nor hath any other person on his behalf, paid to the said John Pasley and Edward, or either of them, the said sum of ^2634. i6s. id. last mentioned, or any part thereof, for the said last mentioned goods, wares, and merchandizes ; but on the contrary the said John Christopher then was and still is wholly unable to pay the said sum of money last mentioned, or any part thereof, to the said John Pasley and Edward, to wit, at London aforesaid, in the parish and ward aforesaid : and the said John Pasley and Edward aver that the said Joseph falsely and fraudulently de- ceived them in this, that at the time of his making his said last men- tioned assertion and affirmation, the said John Christopher was not a person safely to be trusted or given credit to in that respect as aforesaid, and the said Joseph then well knowing the same, to wit, at London aforesaid, in the parish and ward aforesaid ; by reason of which said last mentioned false, fraudulent, and deceitful assertion and affirmation of the said Joseph the said John Pasley and Edward have been deceived and imposed upon, and have wholly lost the said last mentioned goods, wares, and merchandizes, and the value thereof, GENERAL PRINCIPLES. 73 to wit, at London aforesaid, in the parish and ward aforesaid ; to the damage," etc. Application was first made for a new trial, which after argument was refused ; and then this motion in arrest of judgment. ASHHURST, J. The objection in this case, which is to the third count in the declaration, *is that it contains only a bare assertion, and does not state that the defendant had any interest, or that he colluded with the other party who had. But I am of opinion that the action lies notwithstanding this objection. It seems to me that the rule laid down by Croke, J., in Baily v. Merrell, 3 Bulst. 95, is a sound and solid principle, namely, that fraud without damage , or damage with- out fraud, will not found an action; but where both concur an action will lie. The principle is not denied by the other judges, but only the application of it, because the party injured there, who was the carrier, had the means of attaining certain knowledge in his own power, namely, by weighing the goods ; and therefore it was a fool- ish credulity against which the law will not relieve. But that is not the case here, for it is expressly charged that the defendant knew the falsity of the allegation, and which the jury have found to be true : but non constat that the plaintiffs knew it, or had any means of know- ing it, but trusted to the veracity of the defendant. And many reasons may occur why the defendant might know that fact better than the plaintiffs ; as if there had before this event subsisted a partnership between him and Falch, which had been dissolved : but at any rate it is stated as a fact that he knew it. It is admitted that a fraudu- lent affirmation, when the party making it had an interest, is a ground of action, as in Risney v. Selby, I Salk. 211, which was a false affirma- tion made to a purchaser as to the rent of a farm which the de fendant was in treaty to sell to him. But it was argued that the action lies not, unless where the party making it has an interest, or colludes with one who has. I do not recollect that any case was cited which proves such a position : but if there were any such to be found, I should not hesitate to say that it could not be law; for I have so great a veneration for the law as to suppose that nothing can be law which is not founded in common sense or common honesty. For the gist of the action is the injury done to the plaintiff, and not wheth- er the defendant meant to be a gainer by it : what is it to the plaintiff whether the defendant was or was not to gain by it; the injury to him is the same. And it should seem that it ought more emphatically to lie against him, as the malice is more diabolical, if he had not the temptation of gain. For the same reason it cannot be necessary that the defendant should collude with one who has an interest. But if collusion were necessary, there seems all the reason in the world to suppose both interest and collusion from the nature of the act; for it is to be hoped that there is not to be found a disposition so dia- bolical as to prompt any man to injure another without benefiting himself. But it is said that if this be determined to be law, any man 74 LAW OF TORTS. may have an action brought against him for telling a lie, by the crediting of which another happens eventually to be injured. But this consequence by no means follows ; for in order to make it ac- lionable it must be accompanied with the circumstances averred in this count, namely, that the defendant, "intending to deceive and defraud the plaintiffs, did deceitfully encourage and persuade them to do the act, and for that purpose made the false affirmation, in con- sequence of which they did the act." Any lie accompanied with those circumstances I should clearly hold to be the subject of an action : but not a mere lie thrown out at random without any intention of hurting anybody, but which some person was foolish enough to act upon ; for the quo animo is a great part of the gist of the action. Another argument which had been made use of is that this is a new case, and that there is no precedent of such an action. Where cases are new in their principle, there I admit thatjt is necessary to have recourse to legislative interposition in order to remedy the griev- ance : but where the case is only new in the instance, and the only question is upon the application of a principle recognized in the law to such new case, it will be just as competent to courts of justice to apply the principle to any case which may arise two centuries hence as it was two centuries ago : If it were not, we ought to blot out of our law books one fourth part of the cases that are to be found in them. The same objection might in my opinion have been made with much greater reason in the case of Coggs v. Bernard, I Salk. 26, for there the defendant, so far from meaning an injury, meant a kindness, though he was not so careful as he should have been in the execution of what he undertook. And indeed the principle of the case does not in my opinion seem so clear as that of the case now before us, and yet that case has already been received as law. Indeed one great reason perhaps why this action has never occurred may be that it is not likely that such species of fraud should be practised unless the party is in some way interested. Therefore I think the rule for arresting the judgment ought to be discharged. Lord KENYON and BULLER, J., concurred, GROSE, J., dis- senting. Rule for arresting the judgment discharged. (This doctrine that an action will not lie for fraud unless It has caused damage to the plaintiff is well settled. Ming v. Woolfolk, 116 U. S. 599, 6 Sup. Ct 489, 29 L. Ed. 740 ; Danforth v. Gushing, 77 Me. 182 ; Dawe v. Morris, 149 Mass. 188, 21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404 ; Taylor v. Guest, 58 N. T. 262 ; Byard v. Holmes, 84 N. J. Law, 296 ; Runge v. Brown, 23 Neb. 817, 34 N. W. 660.) GENERAL PRINCIPLES. 75 In actions of tort, damages may be awarded for the prox- imate, but not for the remote, consequences of the tor- tious act. Nature of this distinction. (a) General Principles. (94 U. S. 409, 24 L. Ed. 256.) MILWAUKEE & ST. P. RY. CO. v. KELLOGG (In part). (Supreme Court of the United States. October Term, 1876.) 1. PBOXIMATE OB REMOTE CAUSE. To warrant a finding that negligence, or an act not amounting to wan- ton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of at- tendant circumstances. When there is no intermediate efficient cause, dis- connected from the primary fault, and self-operating, which produced the Injury, the original wrong must be considered as reaching to the effect, and proximate to it. 2. SAME INJUBY BY SPBEADING PIBE. Defendants' elevator, 120 feet high, built of pine lumber, and standing on the bank of a river, was set on fire from a steam-boat, also owned by defendants, which made a landing at the elevator when an unusually strong wind was blowing towards it; and the fire was communicated from the elevator to plaintiff's saw-mill, 538 feet from the elevator, and to his lumber, the nearest pile of which was 388 feet distant from the elevator, in the direction in which the wind was blowing, and they were destroyed. Plaintiff brought an action to recover damages therefor from defendants on the ground of negligence of the latter in setting fire to their elevator. Held, that it was not error to refuse to instruct the jury that the injury was too remote from the negligence to afford ground for a recovery, and to submit to them to find whether the burning of the mill and lumber was the result naturally and reasonably to be expected from the burning of the elevator, under the circumstances, and whether it was the result of the continued effect of the sparks from the steam- boat, without the aid of other causes not reasonably to have been ex- pected ; and that a finding of the jury that the burning of the mill and lumber was the unavoidable consequence of the burning of the elevator was, in effect, a finding that there was no intervening and independent cause between the negligent conduct of defendants and the injury to plaintiff. Error to the Circuit Court of the United States for the District of Iowa. STRONG, J. This was an action to recover compensation for the destruction by fire of the plaintiff's saw-mill and a quantity of lumber, situated and lying in the state of Iowa, and on the banks of the River Mississippi. That the property was destroyed by fire was uncontro- verted. From the bill of exceptions it appears that the "plaintiff al- leged the fire was negligently communicated from the defendants' steam-boat Jennie Brown to an elevator built of pine lumber, and one hundred and twenty feet high, owned by the defendants, and standing 76 LAW OF TORTS. on the bank of the river, and from the elevator to the plaintiff's saw- mill and lumber-piles, while an unusually strong wind was blowing from the elevator towards the mill and lumber. On the trial, it was admitted that the defendants owned the steam-boat and elevator ; that the mill was five hundred and thirty-eight feet from the elevator; and that the nearest of plaintiff's piles of lumber was three hundred and eighty-eight feet distant from it." The verdict of the jury was: (1) That the elevator was burned from the steamer Jennie Brown; (2) that such burning was caused by not using ordinary care and prudence in landing at the elevator, under circumstances existing at that particular time ; and (3) that the burning of the mill ^nd lum- ber was the unavoidable consequence of the burning of the elevator. The only reasonable construction of the verdict is that the fault of the defendants in other words, their want of ordinary care and pru- dence consisted in landing the steamer at the elevator in the circum- stances then existing, when a gale of wind was blowing towards it, when the elevator was so combustible and so tall. If this is not the meaning of the verdict, no act of negligence, or want of care, or of fault has been found. And this is one of the faults charged in the declaration. It averred that, while the wind was blowing a gale from the steam-boat towards and in the direction of the elevator, the defend- ants carelessly and negligently allowed, permitted, and counseled, (or, as stated in another count, "directed,") the steam-boat to approach and lie alongside of or in close proximity to said elevator. This is something more than nonfeasance; it is positive action, the result, consequence, or outworking, as the jury have found it, of the want of such care as should have been exercised. An exception has been taken to the refusal of the court to instruct the jury, as requested, that "if they believed the sparks from the Jen- nie Brown set fire to the elevator through the negligence of the de- fendants, and the distance of the elevator from the nearest lumber- pile was three hundred and eighty-eight feet, and from the mill five hundred and twenty-eight feet, then the proximate cause of the burn- ing of the mill and lumber was the burning of the elevator, and the injury was too remote from the negligence to afford a ground for a recovery." This proposition the court declined to affirm, and in lieu thereof submitted to the jury to find whether the burning of the mill and lumber was the result naturally and reasonably to be expected from the burning of the elevator; whether it was a result which, un- der the circumstances, would naturally follow from the burning of the elevator; and whether it was the result of the continued effect of the sparks from the steam-boat, without the aid of other causes not reasonably to be expected. All this is alleged to have been er- roneous. The assignment presents the oft-embarrassing question what is and what is not the proximate cause of an injury. The point pro- pounded to the court assumed that it was a question of law in this case, and in its support the two cases of Ryan v. Railroad Co., 35 N. Y. 210, 91 Am. Dec. 49, and Railroad Co. v. Kerr, 62 Pa. 353, I Am. GENERAL PRINCIPLES. 77 Rep. 431, are relied upon. Those cases have been the subject of much criticism since they were decided, and it may perhaps be doubted whether they have always been quite understood. If they were in- tended to assert the doctrine that when a building has been set on fire through the negligence of a party, and a second building has been fired from the first, it is a conclusion of law that the owner of the second has no recourse to the negligent wrong-doer, they have not been accepted as authority for such a doctrine, even in the states where the decisions were made. Webb v. Railroad Co., 49 N. Y. 420, 10 Am. Rep. 389, and Railroad Co. v. Hope, 80 Pa. 373, 21 Am. Rep. 100. And certainly they are in conflict with numerous other decided cases. Kellogg. v. Railroad Co., 26 Wis. 224, 7 Am. Rep. 69; Perley v. Railroad Co., 98 Mass. 414, 96 Am. Dec. 645 ; Higgins v. Dewey, 107 Mass. 494, 9 Am. Rep. 63 ; Kent v. Railroad Co., 59 111. 349, 14 Am. Rep. 13. The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain' may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown into the market-place. Scott v. 'Shepherd, 2 W. Bl. 892. The question always is, was there an unbroken connection be- tween the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked to- gether as to make a natural whole, or was there some new and inde- pendent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been fore- seen in the light of the attending circumstances. These circumstances, in a case like the present, are the strength and direction of the wind, the combustible character of the elevator, its great height, and the proximity and combustible nature of the saw-mill, and the piles of lumber. Most of these circumstances were ignored in the request for instruction to the jury. Yet it is obvious that the immediate and in- separable consequences of negligently firing the elevator would have been very different if the wind had been less, if the elevator had been a low building constructed of stone, if the season had been wet, or if the lumber and the mill had been less combustible. And the defend- ants might well have anticipated or regarded the probable conse- quences of their negligence as much more far-reaching than would have been natural or probable in other circumstances. We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or 78 LAW OF TORTS. nonfeasance. They are not, when there is a sufficient and independ- ent cause operating between the wrong and the injury. In such a case, the resort of the sufferer must be to the originator of the inter- mediate cause. But, when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must therefore always be whether there was any intermediate cause disconnected from the primary fault, and self -operating, which produced the injury. Here lies the difficulty. But the inquiry must be answered in accordance with common under- standing. In a succession of dependent events, an interval may al- ways be seen by an acute mind between a cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. Thus, if a building be set on fire by negligence, and an adjoining building be destroyed without any negligence of the occupants of the first, no one would doubt that the destruction of the second was due to the negligence that caused the burning of the first. Yet in truth, in a very legitimate sense, the immediate cause of the burning of the second was the burning of the first. The same might be said of the burning of the furniture in the first. Such refinements are too minute for the rules of social conduct. In the nature of things, there is. in every transaction a succession of events more or less dependent upon those preceding, and it is the province of a jury to look at this suc- cession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be de- termined in view of the circumstances existing at the time. If we are not mistaken in these opinions, the circuit court was correct in refusing to affirm the defendant's proposition, and in submitting to the jury to find whether the burning of the mill and lumber was a result naturally and reasonably to be expected from the burning of the elevator, under the circumstances, and whether it was the result of the continued influence or effect of the sparks from the boat, with- out the aid or concurrence of other causes not reasonably to have been expected. The jury found, in substance, that the burning of the mill and lumber was caused by the negligent burning of the ele- vator, and that it was the unavoidable consequence of that burning. This, in effect, was finding that there was no intervening and inde- pendent cause between the negligent conduct of the defendants and the injury to the plaintiff. The judgment must therefore be affirmed. (The tests laid down In this case for determining whether a cause Is proxi- mate or remote have often been approved in subsequent decisions in the various states. [Pullman Palace Car Co. v. Laack, 143 111. 242. 32 N. E. 285, 18 L. R. A. 215; Louisville, etc.. Ferry Co. v. Nolan, 135 Ind. 60, 34 N. E 710' Adams v. Young, 44" Ohio St. 80. 4 N. E. 599, 58 Am. Rep. 789 ; Hammill v. Pa. H. Co., 56 N. J. Law, 370, 29 All. 151, 24 L. R. A. 531 ; Martin v. N. Y. *- IS. E. R. Co., 62 Conn. 331, 25 Atl. 239 ; Mo. Pac. R. Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399: Atkinson v. Goodrich Transp. Co., 60 Wis. 141, 18 N. W. 764. 50 Am. Rep. 352. These cases contain valuable discussions of the subject See, also, 13 Am. & Eng. Enc. of Law (2d Ed.) 446 et '.]) GENERAL PRINCIPLES. 79 The criticism which it makes of the Ryan and Kerr Cases in New York and Pennsylvania has been concurred in throughout the country, in states where similar questions have arisen, and the doctrines established by these decisions have been repudiated. . Id. ; Perley v. Eastern R. Co., 98 Mass. 414, 96 Am. Dec. 645 ; Del. L. & W. R. Co. v. Salmon, 39 N. J. Law, 299, 23 Am. Rep. 214 ; Louisville, etc., R. Co. v. Nitsche, 126 Ind. 229, 26 N. E. 51, 9 L. R. A. 750, 22 Am. St. Rep. 582 ; 13 Am. & Eng. Enc. of Law [2d Ed.] 452. Nevertheless the Ryan Case has recently been -upheld in New York, and it is now the settled law of that state that damage done by a spreading fire to the immediately adjacent lands is a proximate result, while if the fire runs across the abut- ting owners' lines upon lands of other proprietors, the damage there done is the remote result, for which the starter of the fire is not liable. Hoffman v. King, 160 N. Y. 618, 55 N. E. 401, 46 L. R. A. 672, 73 Am. St Rep. 715. So the Kerr Case is still the law of Pennsylvania, though doubt has been ex- pressed in a later decision in that state whether it was proper for the court in that case to decide the question instead of leaving it to the jury. Haverly v. Railroad Co., 135 Pa. 50, 58, 19 Atl. 1013, 20 Am. St. Rep. 848. In some states a party negligently starting a fire has been held liable for the destruction of property caused by it, though it spread over long distances; as, e. g., Adams v. Young, 44 Ohio St. 80, 4 N. E. 599, 58 Am. Rep. 789 [200 feet] ; Atkinson v. Goodrich Transp. Co., 60 Wis. 141, 18 N. W. 764, 50 Am. Rep. 352 [3,500 feet] ; Poeppers v. Mo., etc., R. Co., 67 Mo. 715, 29 Am. Rep. 518 [eight miles] ; Chicago, etc., R. Co. v. McBride, 54 Kan. 172, 37 Pac. 978 [ten miles]. This was because, under the circumstances as to wind, weather, intervening combustible material, etc., such a result was reasonably to be re- garded as natural and probable.) (181 111. 116, 54 N. E. 897.) CITY OF DIXON v. SCOTT (in part). (Supreme Court of Illinois. October 13, 1899.) PROXIMATE CAUSE NEGLIGENCE ABILITY TO FORESEE CONSEQUENCES. To make the negligent act of the defendant the proximate cause of plain- tiff's injury, it is not necessary that the particular injury, and the par- ticular manner in which it occurred, might reasonably have been expected to follow such negligent act. It is sufficient that by the exercise of or- dinary care he might have foreseen that some injury would result from his negligence, even though he could not have foreseen the particular results. Appeal from Appellate Court, Second District. Action by Robert H. Scott, administrator, against the city of Dixon for injuries to plaintiff's decedent. Decedent was traveling on a sidewalk when a neighbor coming in the opposite direction stepped upon one end of a loose board, and the end in front of de- cedent was thereby raised, caught her foot, and caused her to fall and sustain the injuries complained of. From a judgment of the appellate court (81 111. App. 368) affirming a judgment for plaintiff, defendant appeals. Affirmed. CARTER, J. The court decided properly in refusing the defend- ant's third instruction, having reference to the question of proximate 80 LAW OF TORTS. cause of the injury. This instruction would have told the jury that, if "it was not natural or reasonable to expect or anticipate fhat Mrs. Kost, or any one else, would step on the end of one of said planks, and cause the other end to tip up, and thereby trip or cause the plaintiff to fall, and receive the injury complained of," then the plaintiff could not recover. In order to make the negli- gent act of appellant the proximate cause of the injury, it was not necessary that the particular injury, and the particular manner in which it occurred, might reasonably have been expected to follow from such negligent act. In 16 Am. & Eng. Enc. Law, 438, the author says: "Consequences which follow in unbroken sequence, without an intervening cause, from the original wrong, are natural ; and for such consequences the wrongdoer must be held responsible, even though he could not have foreseen the particular results, pro- vided that by the exercise of ordinary care he might have foreseen that some injury would result from his negligence." It would be very unreasonable to make the liability of the defendant depend on the question whether the precise injury complained of, and the manner of its occurrence, ought to have been foreseen. Car Co. v. Laack, 143 111. 242, 32 N. E. 285, 18 L. R. A. 215. We find no error, and the judgment must be affirmed. Judgment affirmed. (This rule is supported by abundant authority. Hill v. Winsor, 118 Mass. 251 ; Schumaker v. St Paul, etc., R. Co., 46 Minn. 39, 48 N. W. 559, 12 L. R. A. 257 ; Hoepper v. Southern Hotel Co., 142 Mo. 378, 44 S. W. 257 ; Hammill v. Pa. R. Co., 56 N. J. Law, 370, 29 Atl. 151, 24 L. R. A. 531 ; Atchison, etc., R. Co. v. Parry [Kan.] 73 Pac. 105 ; 13 Am. & Eng. Enc. of Law [2d Ed.] 450 ; 21 Id. 487 ; cf. Ehrgott y. Mayor, etc., of N. Y., 96 N. Y. 264, 48 Am. Rep. 622.) (L) Difference Between a. Cause and a Condition* (161 Mass. 182, 36 N. E. 790.) BOULESTER v. PARSONS. (Supreme Judicial Court of Massachusetts. Norfolk. March 28, 1894.) CIRCUMSTANCES CONSTITUTING A "CONDITION." In an action for damages under Pub. St c. 102, 93, for the loss of a horse by reason of being bitten by defendant's dog, where it appeared that the horse injured was harnessed to a wagon, and was being led behind and attached to another wagon, it was error not to charge that a man has a right to lead a horse in such manner, and the fact that he was so leading, the horse was not such evidence of negligence as to preclude his recovery. The leading of the horse behind the wagon was simply a condition, and not, in any just sense, a contributory cause, of the injury. GENERAL PRINCIPLES. 81 Exceptions from Superior Court, Norfolk County; John Hopkins, Judge. Action by Jesse O. Boulester against Charles W. Parsons to re- cover damages for the loss of a horse by reason of being bitten by a dog. To a judgment for defendant, plaintiff excepts. Exceptions sustained. LATHROP, J. This is an action, under Pub. St. c. 102, 93% for the loss of a horse alleged to have been bitten by the defendant's dog, in consequence of which the horse died. There was evidence that the plaintiff's brother was driving an express wagon, drawn by a pair of horses, along a country road; that in the rear of this wagon, and attached to it by the reins, was another horse harnessed to a single wagon ; and that the defendant's dog ran out and bit the horse attached to the single wagon. The defendant contended that it was negligence on the part of the plaintiff to lead a horse harnessed in a wagon behind and attached to another wagon. The plaintiff thereupon requested the presiding judge to instruct the jury in sub- stance as follows : A man has a right to lead a horse in the way and manner described, and the mere fact that he was so leading a horse is not such evidence of negligence as would preclude the plaintiff from recovering in this action for the bite of the dog. The judge refused so to rule, and submitted the question to the jury whether the method of traveling adopted was negligent, and was such as to induce an attack by the dog. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions to the refusal to rule as requested, and to the instructions given. We are of opinion that the ruling requested should have been given in substance. While the doctrine of contributory negligence has been often said to apply to an action on Pub. St. c. 102, 93, and we have no doubt that it does apply where the plaintiff incites or provokes a dog, and, it may be, in other cases, the doctrine has no application to the case at bar. The leading of a horse behind a wagon was simply a condi- tion, and not, in any just sense, a contributory cause, of the injury. In White v. Lang, 128 Mass. 598, 35 Am. Rep. 402, a person un- lawfully traveling on the Lord's day was bitten by a dog, and it was held that his so traveling was merely a condition, and did not prevent his maintaining an action under the statute. To hold that the ques- tion whether leading a horse behind a wagon should be submitted to the jury as evidence of negligence on the part of the plaintiff in inducing an attack by a dog would render it necessary to submit to the jury the question whether the color of the horse or of the wagon, or of the clothes of the driver, might not have induced an attack. The law does not pay this respect to the characteristics or prejudices i This statutory provision is as follows : "Every owner or keeper of a dog shall forfeit to any person injured by it double the amount of the damage sus- tained by him, to be recovered in an action of tort." CHASE (2o ED.) 6 g2 LAW OF TORTS. of dogs. See Denison v. Lincoln, 131 Mass. 236. Exceptions sus- tained. (Other valuable cases showing the difference between a "cause" and a "con- dition" are Mo. Pae. R. Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399 Louisville, etc., Ferry Co. v. Nolan, 135 Ind. 60, 34 N. E. 710 ; Lillibridge v McCann, 117 Mich. 84, 75 -N. W. 288, 41 L. R. A. 381, 72 Am. St. Rep. 553 ; Berry Y. Sugar Notch Borough, 191 Pa. 345, 43 Atl. 240 ; Delaware, L. & W. R Co v. Trautwein, 52 N. J. Law, 169, 19 Atl. 178, 7 L. R. A. 435, 19 Am. St. Rep. 442 ; Hope v. Fall Brook Coal Co., 3 App. Div. 70, 38 N. Y. Supp. 1040. See, also, 21 Am. & Eng. Enc. of Law [2d Ed.] 494.) (o) Intervening Operation of a Natural Force* (4 Bing. 607.) SIORDET v. HALL et al. (May 5, 1828.) NEGLIGENCE INJTJBIES TO CARGO ACT OF GOD. Where damage was done to a cargo by water escaping through the pipe of a steam boiler, in consequence of the pipe having been cracked by frost, held, that this was not an act of God, but must be deemed the proximate result of the captain's negligence in filling his boiler, in mid- winter, several hours before he was to heat the boiler and start on his voyage, although he was but following the common practice to fill over- night when the vessel started in the morning. Action against the defendants, as carriers by water, for not deliver- ing a cargo in proper condition. At the trial before BEST, C. J., London sittings after Trinity term last, the defense was that the mischief was done by the act of God, which was one of the risks excepted in the bill of lading. It ap- peared that the cargo was shipped on the loth February, and the vessel, a steam vessel, was then tight and staunch. The captain, ex- pecting to start the following morning, caused the water to be pumped into the boiler on the evening of the loth, as that operation required two hours, and the heating about three more. For this reason, it was his practice, and the practice of steam vessels generally, when they started in the morning, to fill the boiler the preceding evening. The next morning it was ascertained that the pipe which conducts the water into the boiler had cracked, that a considerable quantity of wa- ter had escaped by this means into the hold, and that much of the cargo was damaged. The pipe was a sound and good one, and its bursting was occasioned by the action of frost on the external portion of it. The Chief Justice told the jury that if the water had been un- necessarily placed in the boiler, or, considering the season of the year, improperly left there, without heat to prevent the action of frost upon GENERAL PRINCIPLES. 83 the pipe, the mischief was not occasioned by the act of God, but by gross negligence. The jury having found for the plaintiff, Taddy, Serjt., obtained a rule nisi for a new trial, on the ground of an alleged misdirection by the learned Chief Justice. Wilde, Serjt., who was to have shown cause, was stopped by the court, who called on Taddy to support his rule. There was no negligence in filling the boiler overnight, which is the usual and necessary practice where dis- patch is required. The accident was immediately occasioned by the frost, and, in law, causa proxima non remota spectatur. It is urged that the action of the frost might have been prevented by fire, but that argument would render useless all exceptions in a bill of lading, for all the excepted risks might be avoided by certain precautions the king's enemies, by convoy; rocks, by care in navigation; and lightning, by conductors. But the meaning of the exceptions is that the owners shall not be liable where the injury proceeds from these causes, unless it has been occasioned purposely. The question in all such cases ought to be, what was the immediate cause of the loss? Smith v. Shepherd, Abbott, Shipp. (4th Ed.) pp. 263, 269, pt. 3, c. 4. BEST, C. J. No one can doubt that this loss was occasioned by negligence. It is well known that frost will rend iron, and, if so, the master of a vessel cannot be justified in keeping water within his boiler, in the middle of winter, when frost may be expected. The jury found that this was negligence, and I agree in their verdict. The rest of the Court concurred, and the rule was discharged. (In like manner, when a fire is negligently started, or negligently cared for, and is caused to spread by an ordinary wind, or even by a violent wind which might have been reasonably expected to occur, the negligent defendant, and not the wind, Is to be deemed the proximate cause [Northern Pac. R. Co. v. Lewis, 51 Fed. 658, 2 C. C. A. 446 ; Hays v. Miller, 70 N. Y. 112 ; Lillibridge v. McCann, 117 Mich. 84, 75 N. W. 288, 41 L. R. A. 381, 72 Am. St. Rep. 553 ; Fent v. Toledo, etc., R. Co., 59 111. 349, 14 Am. Rep. 13 ; Higgins v. Dewey, 107 Mass. 494, 9 Am. Rep. 63 ; Louisville, etc., R, Co. v. Nitsche, 126 Ind. 229, 26 N. E. 51, 9 L. R. A. 750, 22 Am. St. Rep. 582 ; Milwaukee, etc., R. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, and cases cited] ; and so as to the opera- tion of other natural forces, as, e. g., where burning oil floats on the surface of a stream and communicates fire to property [Kuhn v. Jewett, 32 N. J. Eq. 647 ; contra, Hoag v. Lake Shore, etc., R. Co., 85 Pa. 293, 27 Am. Rep. 653] ; or where ordinary floods or freshets break through or sweep away dams or railway embankments [Libby v. Me. Cent. R. Co., 85 Me. 34, 26 Atl. 943, 20 L. R. A. 812; Crawford v. Rambo, 44 Ohio St. 279, 7 N. E. 429], and in other like cases. But it has often been held that when injuries or losses are occasioned by extraordinary or unprecedented gales or floods or freshets or storms, etc., which could not have been foreseen, these acts of God are the proximate causes, and the persons whose acts constituted the con- ditions by means of which it was possible for the harm to be accomplished are not responsible ; as, e. g., where fire is spread by a whirlwind or ex- tremely violent gale [Bock v. Grooms (Neb.) 92 N. W. 603; Marvin v. Chi- cago, etc., R. Co., 79 Wis. 140, 47 N. W. 1123, 11 L. R. A. 506 ; Fahn v. Reich- ardt, 8 Wis. 255; Needham v. King, 95 Mich. 303, 54 N. W. 891; Sweeney v. Merrill, 38 Kan. 216, 16 Pac. 454, 5 Anx St Rep. 734] ; or where structures, 84 LAW OF TORTS. or parts thereof, or things connected therewith, are blown over or blown down by like gales, and injuries result therefrom [Sutphen v. Hedden, 67 N. J. Law, 324, 51 Atl. 721 ; City of Allegheny v. Zimmermann, 95 Pa. 287, 40 Am. Rep. 649; Blythe v. Denver, etc., R. Co., 15 Colo. 333, 25 Pac. 702, 11 L. R. A, 615, 22 Am. St Rep. 403] ; or where extraordinary floods cause loss of prop- erty [Central Trust Co. v. Wabash, etc., R. Co. (C. C.) 57 Fed. 441 ; Pittsburg, etc., R. Co. v. Gilleland, 56 Pa. 445, 94 Am. Dec. 98; Rodgers v. Cent. Pac. R. Co., 67 Cal. 607, 8 Pac. 377 ; Libby v. Me. Cent R. Co., 85 Me. 34, 26 Atl. 943, 20 L. R. A. 812 ; Borchardt v. Wausau Boom Co., 54 Wis. 107, 11 X. W. 440, 41 Am. Rep. 12 ; Grand Val. Irr. Co. v. Pitzer, 14 Colo. App. 123, 59 Pac. 420]. There are cases, however, in which a defendant has been held liable for the consequences of an extraordinary gale, etc. Salisbury v. Herchenroder, 106 Mass. 458, 8 Am. Rep. 354 ; Smith v. Faxon, 156 Mass. 589, 31 N. E. 687.) (d) Intervening Human Agent, Acting Instinctively or in an Emergency. (4 Denio, 464, 47 Am. Dec. 268.) VANDENBURGH v. TRUAX. (Supreme Court of New York. May Term, 1847.) NEGLIGENCE PROXIMATE OB REMOTE CONSEQUENCES. A boy, having had a quarrel with defendant in a city street ran away from him. Defendant took up a pickaxe, and followed the boy, pursuing him into the store of plaintiff, by whom the boy was employed. In trying to save himself from being struck with the pickaxe, the boy knocked out the faucet from a cask of wine, and part of the wine ran out and was lost Held, that defendant was liable for the damages to plaintiff. One who does an illegal or mischievous act, likely to prove injurious to others, is answerable for all the consequences which may directly and naturally result therefrom, although he did not intend to do the particular injury which followed. Error to Schenectady Common Pleas. Action by Truax against Vandenburgh, brought before a justice of the peace, for damages alleged to have been caused by defendant willfully driving a boy through plaintiff's store, and knocking a cock or faucet from a barrel of wine belonging to plaintiff, causing part of the wine therein to be lost. The evidence was that defendant had quarreled with a negro boy, about 16 or 18 years of age, employed by plaintiff as an hostler, while both were in the street near plaintiff's store in the city of Schenectady ; that, the boy having a stone in his hand, defendant took hold of him, and told him to throw down the stone ; that the boy did so, and broke loose from defendant and ran away ; that defendant then took up a pickaxe, and followed the boy, who fled into plaintiff's store, where defendant pursued him, having the pickaxe in his hand ; that, the rear door of the store being shut, the boy, not being able to escape through it without being overtaken, ran behind the counter, as the witness testified he believed, to save himself from being struck with the pickaxe; and that, in doing so, GENERAL PRINCIPLES. 85 he knocked out the cock or faucet of a cask of plaintiff's wine, and wine of the value of $4 was spilt and lost. The justice rendered judgment for plaintiff, which was affirmed by the court of common pleas. Defendant brought error to review the judgment of the com- mon pleas. BRONSON, C. J. It may be laid down as a general rule that when one does an illegal or mischievous act, which is likely to prove injurious to others, and when he does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable, in some form of action, for all the conse- quences which may directly and naturally result from his conduct, and in many cases he is answerable criminally as well as civilly. It is not necessary that he should intend to do the particular injury which follows, nor, indeed, any injury at all. If a man without just cause aim a blow at his enemy, which, missing him, falls upon his friend, it is a trespass upon the friend, and may be murder if a deadly weapon was used, and death ensued. Or if, in attempting to steal or destroy the property of another, he unfortunately wound the own- er, or a third person, he must answer for the consequences, although he did not intend that particular mischief. And, although no mis- chief of any kind may be intended, yet, if a man do an act which is dangerous to the persons or property of others, and which evinces a reckless disregard of consequences, he will be answerable civilly, and in many cases criminally, for the injuries which may follow; as if he discharge a gun, or let loose a ferocious or mad animal, in a multitude of people; or throw a stone from the house-top into a street where many are passing; or keep a large quantity of gun powder near the dwelling of another In these and such like cases he must answer for any injury which may result from his misconduct to the persons or property of others. And, if the act was so immi- nently dangerous to others as to evince a depraved mind, regardless of human life, and death ensue, it will be murder. These are familiar cases, which need not be proved by referring to books. In the case of the lighted squib which was thrown into the market-house, the debate was upon the form of the remedy. The question was whether the plaintiff could maintain trespass vi et armis, or whether he should not have brought an action on the case. His right to recover in some form seems not to have been disputed. Scott v. Shepherd, 2 W. Bl. 892, 3 Wils. 403. In that case the impulse was given to inanimate matter, while here a living and rational being was moved by tear. But still there is in some respects a striking analogy between the two cases. There the force which the defendant gave to the squib was spent when it fell upon the standing of Yates ; and it was after- wards twice put in motion, and in new directions, first by Willis, and then by Ryall, before it struck the plaintiff, and put out his eye. But as the throwing of the squib was a mischievous act, which was likely to do harm to some one, and as the two men who gave the new im- 86 LAW OF TORTS. pulses to the missile acted from terror and in self-defense, the de- fendant was held answerable as a trespasser for the injury which resulted to the plaintiff. Now, here, although the negro boy may have been wrong at the first, yet when he had thrown down the stone, and was endeavoring to get away from the difficulty into which he had brought himself, the defendant was clearly wrong in following up the quarrel. When the boy ran upon the cask of wine. he was moved with terror produced by the illegal act of the defendant ; he was fleeing for his life, from a man in hot pursuit, armed with a deadly weapon. The injury which the plaintiff sustained was not the necessary consequence of the wrong done bv the defendant, nor was it so in the case of the lighted squib. But in both instances the wrong was of such a nature that it might very naturally result in an injury to some third person. It is true that the boy might have gone else- where, instead of entering the plaintiff's store ; and it is equally true that Willis and Ryall might have thrown the squib out of the market- house, which was open on both sides and at one end, instead of toss- ing it across the market-house among the people there assembled. But in the one case, as well as in the other, the innocent agents were moved by fear, and had no time to reflect upon the most prudent course of conduct. It was quite natural, however, that the boy should flee to his employer for protection. And, finally, the proximate cause of the injury was, in both cases, an intelligenUagent. In Guille v. Swan, 19 Johns. 381, 10 Am. Dec. 234, the immediate actors in the wrong which was done to the plaintiff were moved by their sympathy for the defendant, who had brought himself into a perilous condition by ascending in a balloon. The balloon descended into the plaintiff's garden, which was near where it had gone up, and a crowd of people, seeing the defendant hanging out of the car in great peril, rushed into the garden to relieve him, and, in doing so, trod down the plaintiff's vegetables and flowers. For the wrong done by the crowd, as well as for the injury done by himself, the defendant was held answerable as a trespasser. Although the ascent was not an illegal, it was a foolish, act, and the defendant ought to have foreseen that injurious consequences might follow. The case seems not to have been put upon the ground of a concert of action between the defendant and the multitude, but on the ground that the defendant's descent, under such circumstances, would ordinarily and naturally draw a crowd of people about him, either from curi- osity, or for the purpose of rescuing him from a perilous situation. It was added, however, that if the defendant had beckoned to the crowd to come to his assistance, they would all have been co-tres- passers ; and the situation in which the defendant had voluntarily and designedly placed himself was equivalent to a direct request to the crowd to follow him. If the cases of the squib and the balloon have not gone beyond the limits of the law, the defendant is answerable for the injury which he has brought upon the plaintiff. And there is nearly as much GENERAL PRINCIPLES. 87 reason for holding him liable for driving the boy against the wine cask, and thus destroying the plaintiff's property, as there would be if he had produced the same result by throwing the boy upon the cask, in which case his liability could not have been questioned. It is not necessary to inquire whether the action should be trespass or case ; for this declaration may as well be considered one thing as the other. It seems that the plaintiff, when before the justice, called the action trespass; but the declaration does not allege that the act was done either vi et armis or contra pacem. Courts of record might well enough have been less nice than they have been about the dis- tinction between trespass and case. Seneca Road Co. v. Auburn & R. R. Co., 5 Hill, 170. And clearly, as the pleadings in justices' courts are construed in the most liberal manner for the advancement of justice, this may very well be regarded as an action on the case. Judgment affirmed. (In Ricker v. Freeman, 50 N. H. 420, 9 Am. Rep. 267, a schoolboy, A, seized another, B, by the arm, and swung him around violently two or three times, and then let him go. B, having been made dizzy, came violently against C, who instantly pushed him away, and B then came in contact with a hook, and was injured. B sued A, who contended that as the plaintiff was not a dan- gerous missile or instrument, like the squib in Scott v. Shepherd, C had no right to push him off, and therefore that A was not liable. The court, how- ever, held A responsible. A similar case is Reynolds v. Pierson, 29 Ind. App. 273, 64 N. E. 484. In Markley v. Whitman, 95 Mich. 236, 54 N. W. 763, 20 L. R. A. 55, 35 Am. St. Rep. 558, some school boys, by mutual consent, formed in line behind one another, then stole up behind another boy, and then, the end one giving a push, it was transmitted through the line, so that the head one was impelled forcibly against the victim of the game, who was severely injured. The boy at the head of the line was sued, and held liable, though he claimed that he did not push, but merely "was pushed." In Chambers v. Car- roll, 199 Pa. 371, 49 Atl. 128, two boys were sitting on a log in a vacant lot. X drove in carelessly, so that unless they moved he would pass over them. In their efforts to escape one of them moved the log, the result of which was, however, to throw the other under the team. X's negligence was held to be the proximate cause of the injury. In Tuttle v. Atlantic City R. Co., 66 N. J. Law, 327, 49 Atl. 450, 54 L. R. A. 582, 88 Am. St Rep. 491, the rule is laid down that where one by negligence puts another under reasonable apprehen- sion of personal injury, and in a reasonable effort to escape the latter sustains such injury, the person guilty of negligence is liable.) (99 N. Y. 158, 1 N. E. 608, 52 Am. Rep. 12.) LOWERT v. MANHATTAN RY. CO. (in part). (Court of Appeals of New York. May 5, 1885.) NEGLIGENCE PROXIMATE OB REMOTE CONSEQUENCES. Fire from defendant's locomotive on its elevated railway fell upon a horse attached to a wagon in the street below, and upon the hand of the driver, causing the horse to run away. The driver, after failing in an attempt to stop the horse by driving him against a post of the elevated gg LAW OF TORTS. railroad, intentionally turned him against the curb-stone to arrest his progress ; but the wagon passed over the curb-stone, threw out the driver, and ran over and injured plaintiff. Held, that defendant was not relieved from liability for the injury to plaintiff, even though plaintiff would not have been injured but for the driver's diversion of the horse from the natural course it might have taken, and though there might have been an error of judgment on the driver's part; as it might be assumed that by the injury to his hand, and the suddenness of the accident, the driver was so disconcerted as to be unable to manage and control the horse as he would otherwise have done. Appeal from Court of Common Pleas, City and County of New York, General Term. Action by Joseph Lowery against the Manhattan Railway Company, for personal injuries to plaintiff, an infant, alleged to have been caused by negligence on the part of defendant. MILLER, J. The principal question arising upon this appeal re- lates to the right of the plaintiff to recover for the injuries sustained. The claim of the defendant is that the cause of the injury was too remote to authorize a recovery of any damages whatever, and it is urged that the court erred in denying the motion to dismiss the com- plaint made by the defendant's counsel on the ground stated, as well as in the charge to the' jury that, if they believed "that the coal and ashes fell from the defendant's locomotive through any negligence on the part of the defendant, its servants or agents, and, falling upon the horse, caused him to become unmanageable and run against the plaintiff, inflicting injuries upon him, then the defendant is liable to the plaintiff for his damages occasioned thereby." The same ques- tion was also raised by the defendant's counsel by a request to the judge to charge that "if the jury believed the accident occurred through the driver's error of judgment in endeavoring to obtain con- trol of his horse the plaintiff cannot recover," which was refused, and an exception duly taken to the decision. It is urged by the appel- lant's counsel that, where there is an intermediary agent or medium between the primary cause of the injury and the ultimate result, tiie rule of law to be applied is that where the original act complained of was not voluntary or intentional, or one of affirmative illegality, or in itself the cause of criminal complaint, but was caused by negligence, the responsibility is limited to the necessary and natural consequences of the act, and that when, beyond that, they are or may be modified or shaped by other causes, they are too remote to be the foundation of legal accountability. The injury sustained by the plaintiff was caused by reason of fire falling from a locomotive of the defendant upon a horse attached to a wagon in the street below, and upon the hand of the driver. The horse became frightened, and ran away, and the driver attempted to guide his movements, and drive him against a post of the elevated railroad so as to stop him. Failing to accom- plish 'this, he intentionally turned the horse, and attempted to run him against the curbstone to make it heavy for him, and so arrest his GENERAL PRINCIPLES. 89 progress; but the wagon passed over the curb-stone instead of being arrested by it, and threw the driver out, and ran over and injured the plaintiff. It will be seen that the injury was not caused directly by the defendant, but was produced through the instrumentality of the horse and driver, the latter of whom, it appears, was doing all that lay in his power, and exercising his best judgment, in attempting to stop the frightened animal, and to prevent any further injury; and the question we are called upon to consider here is whether, in view of the fact that the plaintiff may have been injured by reason of the management of the horse by the driver, in consequence of which it was diverted from the natural course it might otherwise have taken, the defendant is relieved from responsibility for the result of the ac- cident. It may be assumed that at that time the driver, who was smarting from the effects of the burning coal which had fallen upon his hands, and startled by the suddenness of the accident, may have been some- what disconcerted by the peril in which he was placed, and therefore was unable to manage and control the infuriated animal as he might otherwise have done. The law, however, makes allowances for mis- takes, and for errors of judgment which are likely to happen upon such an emergency. It does not demand the same coolness and self- possession which are required when there is no occasion for alarm or a loss of self-control. Where a person is traveling upon a train of cars, and a collision has taken place, or is likely to occur, and he, under the excitement of the moment, jumps from the train, and there- by increases his own danger and chances of injury, although the act of attempting to escape is very hazardous and negligent, yet it is an instinctive act which naturally would take place when a person seeks to avoid great peril, and, though wrong in itself, that fact does not relieve the company from liability if its negligent conduct and a sense of impending danger induced the act. In the case under consideration the driver was passing along in pursuit of his customary business, driving his horse, when suddenly the falling of the fire upon himself and the horse placed him in a position of great danger, and he was justified in attempting to save his own life and protect himself from injury. If he made a mistake in his judgment, the company was not relieved from liability. If he had allowed the horse to continue on its own way, it is by no means clear that a similar, if not greater, injury might not have been in- flicted upon some other person than the plaintiff. It is impossible to determine what the result might have been in such a case, and therefore it is indulging in speculation to say that the driver's act, under the circumstances, was not the best thing that could have been done. In such cases it is difficult to disconnect the final injury from the primary cause, and say that the damages accruing are not the natural and necessary result of the original wrongful act. The de- fendant was chargeable with an unlawful act, which inflicted an in- jury upon the driver and the horse in the first instance, and ultimately 90 LAW OF TORTS. caused the injury sustained by the plaintiff. The injury originally inflicted was in the nature of a trespass, and the result which followed was the natural consequence of the act. So long as the injury was chargeable to the original wrongful act of the defendant, it is not apparent, in view of the facts, how it can avoid responsibility. There was no such intervening human agency as would authorize the con- clusion that it was the cause of the accident, and therefore it cannot be said that the damages were too remote. The company would clearly be liable for any direct injury arising from the falling of the burning coals upon the horse if it had been left to pursue its o'wn course uncontrolled by the driver, and there would seem to be no reason why it would not be equally liable when the driver seeks to control the horse, and exercises his best judgment in endeavoring to prevent injury. That he failed to do so for want of strength, or by reason of an error of judgment, does not prevent the application of the principle which controls in such a case. It may, we think, be assumed that such an accident might occur in a crowded street where conveyances are constantly passing, and that the driver of the horse, who might possibly be injured by the defendant's un- lawful act, would seek to guide the animal, and, if possible, prevent unnecessary injury. The action of the driver, in view of the exi- gency of the occasion, whether prudent or otherwise, may well be considered as a continuation of the original act which was caused by the negligence of the defendant, and the defendant was liable as much as it would have been if the horse had been permitted to pro- ceed without any control whatever. We think that the damages sus- tained by the plaintiff were not too remote, and that the wrongful act of the defendant in allowing the coals to escape from the locomo- tive, thus causing the horse to become frightened and run, was the proximate cause of the injury, and that the running away of the horse, and the collision with the plaintiff, were the natural and prob- able consequences of the negligence of the defendant. These views are fully sustained by the decisions of the courts. Scott v. Shepherd, 2 W. Bl. 892 ; Lynch v. Nurdin, I Adol. & E. (N. S.) 29 ; Former v. Geldmecher, 13 Reporter, 790; Vaughan v. Menlove, 32 E. C. L. 219, 740; Guille v. Swan, 19 Johns. 381, 10 Am. Dec. 234; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455 ; Vandenburgh v. Truax, 4 Denio, 464, 47 Am. Dec. 268 ; Webb v. Railroad Co., 49 N. Y. 420, 10 Am. Rep. 389 ; Pollett v. Long, 56 N. Y. 200 ; Putnam v. Railroad Co., 55 N. Y. 108, 14 Am. Rep. 190. We do not deem it necessary to examine these cases in detail, and, while it may be said that in some of them the injury was caused by the positive unlawful act of the defendant at the beginning, in others the original act was lawful, while the consequence which followed resulted from the subsequent interference with the plaintiff's rights. In Guille v. Swan, 19 Johns. 381, 10 Am. Dec. 234, supra, the act of setting up the balloon was lawful in itself, and the injury which fol- lowed was the result of its falling on the premises of the plaintiff in GENERAL PRINCIPLES. 91 the city, and attracting the attention of people outside, and thus caus- ing- the damages incurred. In the case at bar, the falling of the coals on the horse and driver was caused by the negligence of the defend- ant's servants, but it was, nevertheless, a direct invasion' of the rights of the property and person of the driver, and the owner of the horse and wagon, and produced the injury to the plaintiff the same as the falling of the balloon on the plaintiff's premises in the case last cited. We are unable to perceive any distinction between the two cases which would justify the conclusion that the damages to the plaintiff here were more remote than those which were incurred in the case last cited. The principle which is applicable to both cases is the same, and it is not apparent that any distinction can be drawn between them which would relieve the defendant from responsibility. It is enough to charge the defendant that it was the author and originator of the wrongful act which produced the injury, and hence it is liable for the same as one of the natural consequences arising from the act it- self. It is difficult to conceive any valid ground upon which it can be claimed that the effect of the defendant's negligence was not a probable and the natural consequence following the same. There was no error in the charge of the judge, or refusals to charge as requested, or in any ruling on the trial. The judgment was right, and should be affirmed. All concur, except RAPALLO, J., dissent- ing, and EARL, J., not voting. (See Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 216 ; Deisen- rieter v. Kraus-Merkel Co., 97 Wis. 279, 72 N. W. 735 ; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 405, 11 C. C. A. 253, 27 L. R. A. 583 ; Lynn Gas etc., Co. v. Meriden Ins. Co., 158 Mass. 570, 575, 33 N. E. 690, 20 L. R. A. 297, 35 Am. St Rep. 540.) (137 N. Y. 1, 33 N. E. 142, 19 L. R. A. 365, 33 Am. St. Rep. 690.) GIBNEY v. STATE. (Court of Appeals of New York. January 17, 1893.) DEFECTIVE BRIDGES NEGLIGENCE PROXIMATE CAUSE. Where a child fell through defendant's bridge Into a canal, In conse- quence of defendant's negligence in permitting an opening to remain un- guarded, and without contributory negligence on the part of its parents, and the father, in an effort to rescue the child, plunged into the canal, and both were drowned, the death of the father, as well as that of the child, must be deemed a proximate result of defendant's negligence in maintaining the unsafe bridge. Though the father intentionally jumped into the water, still this was a natural and instinctive act occasioned by the child's peril, and the cause of it was the culpable negligence of the defendant Appeal from Board of Claims. Action by Nellie C. Gibney, as administratrix of the goods, chat- tels, and credits of John F. Gibney, deceased, claimant, against the 92 LAW OF TORTS. state of New York. From a finding of the board of claims awarding $5,000 damages to plaintiff by reason of the death of her husband, John F. Gibney, caused by the negligence of defendant, defendant appeals. Affirmed. ANDREWS, C. J. We have decided, on the appeal brought from the award of damages for the death of the infant son of the plaintiff, that the evidence authorized a finding of negligence on the part of the state authorities in permitting the opening in the bridge, through which the boy fell into the canal, to remain unguarded, and also the further finding that there was no contributory negligence on the part of the parents of the child, and we therefore affirmed the award. The present appeal is from an award made for damages sustained by the widow and next of kin, arising from the drowning of the plain- tiff's husband, and the father of the child, in an attempt to rescue the child from the canal, into which the child had fallen. The ma- terial facts are undisputed. The plaintiff, with her husband and child, in an evening in August, while crossing the bridge, met an ac- quaintance, and the parents stopped to talk with him. The child re- mained within a few feet of them, and suddenly fell through the open-, ing in the railing of the bridge into the canal below. The father, as soon as he discovered that the boy was gone, plunged into the canal to recover the child, and both father and son were drowned. It is contended by the attorney general that the negligence of the state in permitting the bridge to remain in an unsafe condition, while it may have been the cause of the death of the boy, cannot be regarded as the cause of the death of the father, although it occurred in an at- tempt to save the life of the child. It is doubtless true that except for the peril of the child, occasioned by his falling through the bridge into the canal, there would have been no connection between the negligence of the state and the drowning of the father. But the peril to which the child was exposed was, as has been found, the result of the negligence of the state, and the peril to which the father ex- posed himself was the natural consequence of the situation. It would have been in contradiction of the most common facts in human ex- perience if the father had not plunged into the canal to save his child. ' But while the immediate cause of the peril to which the father ex- posed himself was the peril of the child, for the purpose of adminis- tering legal remedies, the cause of the peril in both cases may be attributed to the culpable negligence of the state in leaving the bridge in a dangerous condition. There is great difficulty, in many cases, in fixing the responsible cause of an injury. When there is a break in the chain of causes, by the intervention of a new agency, and then an injury happens, is it to be attributed to the new element, and is this to be treated as the originating .cause, to the exclusion of the ante- cedent one, without which no occasion would have arisen for the in- troduction of a new element? It is impossible to formulate a rule on the subject capable of definite and easy application. The general GENERAL PRINCIPLES. 93 rule is that only the natural and proximate results of a wrong are those of which the law can take notice. But where a consequence is to be deemed proximate within the rule, is the point of difficulty. In this case these elements are present: Culpable negligence on the part of the state; the falling of a child into the canal through the opening which the state negligently left in the bridge ; the natural and in- stinctive act of the father in plunging into the canal to rescue the child ; the drowning of both ; the fact that such an accident as that which befell the child might reasonably have been anticipated as the result of the condition of the bridge ; and the further consideration that a parent or other person seeing the child in the water, would incur every reasonable hazard for its rescue. We think it may be justly said that the death, both of the child and parent, was the con- sequence of the negligence of the state, and that the unsafe bridge was, in a legal and judicial sense, the cause of the drowning of both. We can perceive no sound distinction between this case and the Eck- ert Case, 43 N. Y. 502, 3 Am. Rep. 721. In that case the railroad train was being propelled at a dangerous speed. The negligence was active. In this case it consisted of an omission; that is, in the failure to originally construct the bridge properly, or permitting it to become dangerous. We do not perceive how the difference in the circumstances of the negligence affects the question of proxi- mateness between the cause and the result so as to distinguish, in this respect, the two cases. The Balloon Case, Guille v. Swan, 19 Johns. 381, 10 Am. Dec. 234, and the case of Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, give support to our conclusion. The judgment should be affirmed. All concur, except MAYNARD, J., not sitting. (e) Intervening Human Agent, under Other Circumstances. (171 Mass 536, 51 N. E. 1, 41 L. R. A. 794.) STONE v. BOSTON & A. R. CO. (in part). (Supreme Judicial Court of Massachusetts. Worcester. July 1, 1898.) 1. NEGLIGENCE DESTRUCTION OF BUILDINGS BY FIBE PROXIMATE CAUSE RE- MOTENESS EVIDENCE. Defendant's railway station, freight house, and a platform used mostly for storing oil till the consignees for whom the railroad had brought It should remove it, were situated across the street from plaintiff's buildings. The platform had become thoroughly saturated with oil leaking from the barrels. A teamster not connected with defendant brought goods to be shipped by it, and, in lighting his pipe, threw on the ground a match, which immediately started a fire, which spread to some barrels of oil standing on the platform, and soon destroyed the plaintiff's buildings. All this oil had been on the platform for a longer time than 48 hours, which was prohibited by statute. Plaintiff's buildings would probably not have been burned if this oil had not been on the platform. Held, 94 LAW OF TORTS. that the starting of the fire could not be deemed a natural and probable consequence of the defendant's negligent act in leaving the barrels of oil upon the platform, and that therefore plaintiff could not recover. 2. SAME ACT OF INTERVENING, INTELLIGENT, RESPONSIBLE PERSON. The rule that, where an Intelligent, responsible human being has inter- vened between the original cause and the resulting damage, the law will not look back beyond him, Is not true, where it was the duty of the original wrongdoer to anticipate and provide against such intervention, because such intervention was a thing likely to happen in the ordinary course of events. But where such intervening act is not to be anticipated as a probable result, the original wrongdoer is not accountable therefor. 3. SAME TRIAL DIRECTING VERDICT. In an action for negligence, where the court is able to say that the in- jury is the remote, and not the proximate, result of defendant's acts, it is proper to so direct the Jury. 4. SAME CONCURRENT ACTS OF PARTIES. Where defendant was negligent in keeping oil upon a platform which was subsequently fired by the carelessness of another, the acts of defendant and tue third person are not concurrent, and they are, therefore, not to be deemed co-tort-feasors, and so liable, both of them, for the resulting damage. Exceptions from Superior Court, Worcester County; John Hop- kins, Judge. Action by Edward E. Stone against the Boston & Albany Railroad Company. From a verdict for defendant directed by the clerk, plain- tiff brings exceptions. Exceptions overruled. ALLEN, J. This is an action of tort to recover for the loss of the plaintiff's buildings and other property by fire, under the following circumstances : The defendant owned and operated a branch rail- road extending from its main line at South Spencer to the village of Spencer, and had at the Spencer terminus a passenger station, a freight house, and a freight yard, all adjoining a public street. On the side of the freight house, and extending beyond it about 75 feet, was a wooden platform about 8 feet wide and 4 feet high, placed upon posts set in the ground, the underside being left open and exposed. The main tracks ran along on the front side of this platform and freight house, and on the rear of the platform there was a freight track, so near as to be convenient to load and unload cars from and upon it. The plaintiff was engaged in the lumber business, buying at wholesale and selling at wholesale and retail, manufacturing boxes, etc. His place of business comprised several buildings, some of which were across the street from the defendant's buildings, and his prin- cipal buildings were about 75 feet from the point on the defendant's premises, beneath the platform, where the fire originated. The evi- dence tended to show that the platform was mostly used for the stor- ing of oil which had been brought upon the railroad, until it was taken away by the consignees; and that the platform had become thoroughly saturated with oil, which had leaked from the barrels, and which not only saturated the platform, but dripped to the ground GENERAL PRINCIPLES. 95 beneath. More or less rubbish accumulated from time to time under the platform, and was occasionally carried away. The evidence tend- ed to show that this space below had been cleaned out two or three weeks before the fire. On the day of the fire, September 13, 1893, from 25 to 30 barrels of oil and oil barrels were upon the platform. Some were nearly or quite empty, some were partly full, but the most of them were probably full and nearly full. The only evidence to show how the fire originated tended to prove that one Casserly, a team- ster, brought a load of boots to be shipped upon a car which was standing upon the track on the rear side of the platform ; that he was smoking a pipe ; that he stepped into the car, to wait for the defendant's foreman of the yard, who was to help him unload the boots ; that, in stepping in, he stubbed his toe, and knocked some of the ashes and tobacco out of his pipe ; that he relighted the pipe with a match, and threw the match down ; that at this time he was stand- ing in the door of the car, facing the platform. It must be assumed upon the evidence that the fire caught upon the ground underneath the platform from the match thrown down by Casserly. All efforts to extinguish the fire failed. It spread fast, and was almost imme- diately upon the top of the platform, running up a post, according to one of the witnesses, and very soon it reached the barrels of oil, which began to explode, and the fire communicated to the plaintiff's buildings, and they were burned. There was evidence tending to show that all of the oil had been upon the platform for a longer time than 48 hours. According to the testimony of the plaintiff, the plat- form was never, to his knowledge, empty of oil or oil barrels. It was completely saturated with oil, and that general condition of things, so far as the platform was concerned, had existed for eight years, ever since he himself had been there. Upon the evidence introduced by the plaintiff, the court directed a verdict for the defendant. The plaintiff, in substance, contends before us that the defend- ant was negligent in storing oil upon the platform, taking into consid- eration the condition of the platform, and of the ground and material under it, and the length of time during which the oil had been allowed to remain there; that, irrespectively of the question of negligence, the platform with the oil upon it constituted a public nuisance, es- pecially in view of Pub. St. .c. 102, 74, providing that oil com- posed wholly or in part of any of the products of petroleum shall not be allowed to remain on the grounds of a railroad corporation in a town for a longer time than 48 hours without a special permit from the selectmen; that the defendant is responsible for the damage re- sulting from the public nuisance, whether the act of starting the fire was due to a third person or not; and that the question should have been submitted to the jury whether the damage to the plaintiff's property was the natural and proximate consequence of the defend- ant's tort. gti LAW OF TORTS. Upon the evidence, the supposed tort of the defendant, whether it be called "negligence" or "nuisance," appears to have been limited to the keeping of oil too long upon the platform. Assuming this oil to have been a product of petroleum, and so within the statute cited, nevertheless the defendant, as a common carrier, was bound to trans- port it and deliver it to the consignees. The oil, as is well known, was an article of commerce, and in extensive use, and the defendant was bound to transport it, and keep it for a reasonable time, after its arrival in Spencer, in readiness for delivery. There was no evidence that the oil was liable to spontaneous ignition, or that the platform was an unsuitable place for its temporary storage till it could be re- moved, or that the defendant could have prevented the escape of oil upon the platform from leaky barrels. But we may assume without discussion that the defendant was in fault in keeping the oil there so long, and that, if the oil had been removed within 48 hours after its arrival, the fire would probably not have been attended with such disastrous consequences. Nevertheless, the question remains and, in our view, this be- comes the important and decisive question of the case whether, as- suming that the defendant was thus in fault, the plaintiff introduced any evidence, which would warrant any finding by the jury that the damage to his property was a consequence for which the defendant is responsible; or, in other words, whether the act of Casserly in starting the fire was such a consequence of the defendant's original wrong in allowing the oil to remain upon the platform that the de- fendant is responsible to the plaintiff for it. The rule is very often stated that, in law, the proximate, and not the remote, cause is to be regarded ; and, in applying this rule, it is sometimes said that the law will not look back from the injurious consequence beyond the last sufficient cause, and especially that, where an intelligent and responsible human being has intervened between the original cause and the resulting damage, the law will not look back beyond him. This ground of exonerating an original wrongdoer may be found discussed or suggested in the following de- cisions and text-books, among others: Clifford v. Cotton Mills, 146 Mass. 47, 15 N. E. 84, 4 Am. St. Rep. 279; Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208, 5 L. R. A. 724; Hayes v. Inhabitants of Hyde Park, 153 Mass. 514, 27 N. E. 522, 12 L. R. A. 249; Freeman v. Accident Ass'n, 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753; Lynn Gas & Electric Co. v. Meriden Fire Ins. Co., 158 Mass. 570, 33 N. E. 690, 20 L. R. A. 297, 35 Am. St. Rep. 540; Insurance Co. v. Tweed, 7 Wall. 44, 19 L. Ed. 65 ; Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Railroad Co. v. Hickey, 166 U. S. 521, 17 Sup. Ct. 661, 41 L. Ed. .1101 ; Reiper v. Nichols, 31 Hun, 491 ; Read v. Nichols, 118 N. Y. 224, 23 N. E. 468, 7 L. R. A. 130; Mars v. Presi- dent, etc., 54 Hun, 625, 8 N. Y. Supp. 107; Leavitt v. Railroad Co., 89 Me. 509, 36 Atl. 998, 36 L. R. A. 382; Cuff v. Railroad Co., 35 GENERAL PRINCIPLES. 97 N. J. Law, 17, 10 Am. Rep. 205 ; Curtin v. Somerset, 140 Pa. 70, 21 All. 244; Railroad Co. v. Salmon, 39 N. J. Law, 299; Pennsylvania Co. v. Whitlock, 99 Ind. 16, 50 Am. Rep. 71 ; Goodlander Mill Co. v. Standard Oil Co., n C. C. A.. 253, 63 Fed. 400, 405, 27 L. R. A. 583; Shear. & R. Neg. 38, 666; Whart. Neg. 134 et seq. It cannot, however, be considered that in all cases the intervention even of a responsible and intelligent human being will absolutely exonerate a preceding wrongdoer. Many instances to the contrary have occurred, and these are usually cases where it has been found that it was the duty of the original wrongdoer to anticipate and pro- vide against such intervention, because such intervention was a thing likely to happen in the ordinary course of events. Such was the case of Lane v. Atlantic Works, in Mass. 136, where it was found by the jury that the meddling of young boys with a loaded truck left in a public street was an act which the defendants ought to have ap- prehended and provided against, and the verdict for the plaintiff was allowed to stand. In the carefully expressed opinion by Mr. Justice Colt the court say: "In actions of this description the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the mis- conduct charged; but it will not be considered too remote if, ac- cording to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening or con- tributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause 'of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the num- ber of subsequent events and agencies which might arise." Accord- ing to this statement of the law, the questions in the present case are : Was the starting of the fire by Casserly the natural and probable consequence of the defendant's negligent act in leaving the oil upon the platform ? According to the usual experience of mankind, ought this result to have been apprehended? The question is not whether it was a possible consequence, but whether it was probable; that is, likely to occur, according to the usual experience of mankind. That this is the true test of responsibility, applicable to a case like this, has been held in very many cases, according to which a wrongdoer is not responsible for a consequence which is merely possible, accord- ing to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. One is bound to anticipate and provide against what usually happens and what is likely to happen ; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable. A high degree of caution might, and perhaps CHASE (2o ED.) 1 98 LAW OF TORTS. would, guard against injurious consequences which are merely pos- sible; but it is not negligence, in a legal sense, to omit to do so. There may not always have been entire consistency in the application of this doctrine ; but, in addition to cases of boys meddling with things left in a public street, courts have also held it competent for a jury to find that the injury was probable, although brought about by a new agency, when heavy articles left near an opening in the floor of an unfinished building, or in the deck of a vessel, were accidentally jostled so that they fell upon persons below (McCauley v. Norcross, 155 Mass. 584, 30 N. E. 464; The Joseph B. Thomas [D. C.] 81 Fed. 578) ; when sheep, allowed to escape from a pasture, and stray away in a region frequented by bears, were killed by the bears (Oilman v. Noyes, 57 N. H. 627) ; and when a candle or match was lighted by a person in search of a gas leak, with a view to stop the escape of gas (Koelsch v. Philadelphia Co., 152 Pa. 355, 25 Atl. 522, 18 L. R. A. 759, 34 Am. St. Rep. 653) ; and in other cases not necessary to be specially referred to. In all of these cases the real ground of decision has been that the result was or might be found to be probable, ac- cording to common experience. Without dwelling upon other au- thorities in detail, we will mention some of those in which substan- tially this view of the law has been stated: Davidson v. Nichols, u Allen, 514; McDonald v. Snelling, 14 Allen, 290, 92 Am. Dec. 768; Tutein v. Hurley, 98 Mass. 211, 93 Am. Dec. 154; Hoadley v. Trans- portation Co., 115 Mass. 304, 15 Am. Rep. 106; Hill v. Winsor, 118 Mass. 251 ; Derry v. Flitner, Id. 131 ; Freeman v. Accident Ass'n, 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753; Spade v. Railroad Co., 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393, and cases there cited; Cosulich v. Oil Co., 122 N. Y. 118, 25 N. E. 259, 19 Am. St. Rep. 475 ; Rhodes v. Dunbar, 57 Pa. 274, 98 Am. Dec. 221 ; Hoag v. Railroad, 85 Pa. 293, 27 Am. Rep. 653 ; Behling v. Pipe Lines, 160 Pa. 359, 28 Atl. 777, 40 Am. St. Rep. 724; Good- lander Mill Co. v. Standard Oil Co., n C. C. A. 253, 63 Fed. 400, 405, 406, 27 L. R. A. 583; Haile's Curator v. Railway Co., 9 C. C. A. 134, 60 Fed. 557, 23 L. R. A. 774; Clark v. Chambers, 3 Q. B. Div. 327; Whart. Neg. (2d Ed.) 74, 76, 78, 138-145, 155, 955; Cooley, Torts, *6o,, *7o; Add. Torts, *4o; Pol. Torts, *388; Mayne, Dam. *39> *47> *4-8. For a recent English case involving a case of remote- ness, see Sngelhart v. Farrant [1897] I Q. B. 240. The rule exempt- ing a slanderer from damages caused by repetition of his words rests on the same ground. Hastings v. Stetson, 126 Mass. 329, 30 Am. Rep. 683; Shurtleff v. Parker, 130 Mass. 293, 39 Am. Rep. 454; Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208, 5 L. R. A. 724. Tried by this test, the defendant is not responsible for the conse- quences of Casserly's act. There was no close connection between it and the defendant's negligence. There was nothing to show that such a consequence had ever happened before, during the eight years GENERAL PRINCIPLES. 99 covered by the plaintiff's testimony, or that there were any exciting circumstances which made it probable that it would happen. It was, of course, possible that some careless person might come along, and throw down a lighted match, where a fire would be started by it. This might, indeed, have happened upon the plaintiff's own premises, or in any other place where inflammable materials were gathered. But it was not according to the usual and ordinary course of events. In failing, to anticipate and guard against such an occurrence or ac- cident, the defendant violated no legal duty which it owed to the plaintiff. What qualification, if any, of this doctrine, should be made in case of the storage of high explosives, like gunpowder and dyna- mite, we do not now consider. See Rudder v. Koopmann, 116 Ala. 332, 22 South. 601, 37 L. R. A. 489; Kinney v. Koopmann, 116 Ala. 310, 22 South. 593, 37 L. R. A. 497, 67 Am. St. Rep. 119, and cases there cited; Rhodes v. Dunbar, 57 Pa. 274, 290, 98 Am. Dec. 221. The plaintiff, however, contends that this question should have been submitted to the jury. This course would have been necessary if material facts had been in dispute. But where, upon all the evi- dence, the court is able to see that the resulting injury was not prob- able, but remote, the plaintiff fails to make out his case, and the court should so rule, the same as in cases where there is no sufficient proof of negligence. McDonald v. Snelling, 14 Allen, 290, 299, 92 Am. Dec. 768. It is common practice to withdraw cases from the jury on the ground that the damages are too remote. Hammond Co. v. Bussey, 20 Q. B. Div.79,89 ; Read v. Nichols, 118 N. Y. 224, 23 N. E. 468, 7 L. R. A. 130; Cuff- v. Railroad Co., 35 N. J. Law, 17, 10 Am. Rep. 205 ; Behling v. Pipe Lines, 160 Pa. 359, 28 Atl. 777,40 Am. St. Rep. 724; Good- lander Mill Co. v. Standard Oil Co., n C. C. A. 253, 63 Fed. 400, 405, 406, 27 L. R. A. 583 ; Pennsylvania Co. v. Whitlock, 99 Ind. 1 6, 50 Am. Rep. 71; Carter v. Towne, 103 Mass. 507; Hoadley v. Transportation Co., 115 Mass. 304, 15 Am. Rep. 106; Hutchinson v. Gaslight Co., 122 Mass. 219; Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208, 5 L. R. A. 724. The plaintiff further contends that the negligence of the defendant in keeping the oil upon the platform was concurrent with the care- less act of Casserly, and that, therefore, it was a case where two wrongdoers, acting at the same time, contributed to the. injurious result. But this is not a just view of the matter. The negligence of the defendant preceded that of Casserly, and was an existing fact when he intervened, just as in Lane v. Atlantic Works, in Mass. 136, the negligence of the defendants in leaving their loaded truck in the street preceded that of the boys who meddled with it. Without considering other grounds urged by the defendant, a majority of the court is of opinion that, upon the evidence, the de- fendant was not bound, as a matter of legal duty, to anticipate and guard against an act like that of Casserly, he being a stranger com- 100 LAW OF TORTS. ing upon the defendant's premises for his own purposes and in his own right. Exceptions overruled. (See, also, Mahogany v. Ward, 16 R. I. 479, 17 Atl. 860, 27 Am. St. Rep. 753 ; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253, 27 L R. A. 583. It is frequently held, as in the case of Milwaukee, etc., R. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, that the question whether a cause is proxi- mate or remote is ordinarily for the jury to decide. But where the evidence is such as to leave no room for difference of opinion among reasonable men that the cause is proximate, or that it is remote, it is common practice for the court to decide the matter. Cole v. German Sav., etc., Society, 124 Fed. 113, 59 C. C. A. 593 ; Mo. Pac. R. Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399 ; Schumaker v. St. Paul, etc., R. Co., 46 Minn. 39, 48 N. W. 559, 12 L. R. A. 257 ; Van Inwegeu v. Port Jervis, etc., R. Co., 165 N. Y. 625, 58 N. E. 878 ; 21 Am. & Eng. Enc. of Law [2d Ed.] 508, 509. When an injury is the result of two concurrent causes, the party responsible for one of these causes is not exempt from liability because the person who is responsible for the other cause may be equally liable. Lake v. Millikcn. C.'J Me. 240, 16 Am. Rep. 456 ; Murray v. Boston Ice Co., 180 Mass. 105, 61 N. K, 1001 ; Ring v. City of Cohoes, 77 N. Y. 83, 33 Am. Rep. 574 ; Slater v. Mer- sereau, 64 N. Y. 138 ; Cooley on Torts [2d Ed.] 89, 90.) (3 Q. B. Div. 327.) CLARK v. CHAMBERS. (Queen's Bench Division. April 15, 1878.) NEGLIGENCE PROXIMATE OB REMOTE CONSEQUENCES. Land used by defendant as a place for athletic sports abutted on a pri- vate road, consisting of a carriage-way and footway, and leading also to premises of others. To prevent persons driving vehicles up to the fence surrounding his premises, and overlooking the sports, defendant placed a barrier across the road, but left in the middle of the carriage- way a space through which vehicles could pass, which was closed by a pole at times when the sports were going on. A part of the barrier, armed with spikes, was removed from the carriage-way by some person other than defendant, without his authority, and was placed in an upright posi- tion across the footpath. Plaintiff, passing along the road at night, from one of the houses to which it led, passed safely, feeling his way, through the opening in the middle of the barrier, and, being wholly unaware that there was any obstruction on the footpath, as it was much too dark to see, turned towards it, and his eye came into contact with one of the spikes, and was injured. In an action by him against defendant therefor, it was admitted that the erection of the barrier by defendant was wrongful; and that plaintiff was lawfully using the road ; and the jury found that the use of that part of the barrier armed with spikes was dangerous to per- sons using the road. Held, that defendant was liable for the injury so occasioned to plaintiff, notwithstanding the fact that the immediate cause of the accident was the act of another, in removing the dangerous instru- ment from the carriage-way, where defendant had placed it, to the foot- path. Reserved Case. Action by Clark against Chambers for personal injuries to plaintiff, alleged to have been caused by defendant's negligence. At the trial, GENERAL PRINCIPLES. 101 before the lord chief justice, the case was reserved for further con- sideration. Argued before COCKBURN, C. J., and MANISTY, J. COCKBURN, C. J. This is a case of considerable nicety, and which, so far as the precise facts are concerned, presents itself for the first time. The defendant is in the occupation of premises which abut on a private road leading to certain other premises as well as to his ; it consists of a carriage-road and a footway. The soil of both is the property of a different owner; the defendant has no interest in it beyond the right of way to and from his premises. The de- fendant uses his premises as a place where athletic sports are carried on by persons resorting thereto for that purpose for their own amuse- ment. His customers, finding themselves annoyed by persons coming along the road in question in carts and vehicles, and stationing them- selves opposite to his grounds and overlooking the sports, the height of the carts and vehicles enabling them to see over the fence, the de- fendant erected a barrier across the road for the purpose of prevent- ing vehicles from getting as far as his grounds. This barrier con- sisted of a hurdle set up lengthways next to the footpath; then two wooden barriers armed with spikes, commonly called "chevaux-de- frise;" then there was left an open space through which a vehicle could pass ; then came another large hurdle, set up lengthways, which blocked up the rest of the road. At ordinary times, the space between the two divisions of the barrier was left open for vehicles to pass which might be going to any of the other premises to which the road in question led. But, at the times when the sports were going on, a pole attached by suitable apparatus was carried across from the one part of the barrier to the other, and so the road was effectually blocked. Among the houses and grounds to which this private road led was that of a Mr. Bruen. On the evening on which the accident which gave rise to the present action occurred, the plaintiff, who occupied premises in the immediate neighborhood, accompanied Mr. Bruen, by the invitation of the latter, to Bruen's house. It was extremely dark, but, being aware of the barrier and the opening in it, they found the opening, the pole not being set across it, and passed through it in safety ; but on his return, later in the evening, the plaintiff was not equally fortunate. It appears that, in the course of that day or the day previous, some one had removed one of the chevaux-de-frise hur- dles from the place where it had stood, and had placed it in an up- right position across the footpath. Coming back along the middle of the road, the plaintiff, feeling his way, passed safely through the opening in the center of the barrier ; having done which, being wholly unaware, it being much too dark to see, that there was any obstruc- tion on the footpath, he turned onto the latter, intending to walk along it the rest of the way. He had advanced only two or three steps, when his eye came into collision with one of the spikes, the effect of which was that the eye was forced out of its socket. It did 102 LAW OF TORTS. not appear by whom the chevaux-de-frise hurdle had been thus re- moved, but it was expressly found by the jury that this was not done by the defendant or by his authority. The question is whether the defendant can be held liable for the injury thus occasioned. It is ad- mitted that what the defendant did in erecting- this barrier across the road was unauthorized and wrongful, and it is not disputed that the plaintiff was lawfully using the road. There is no ground for im- puting to him any negligence contributing- to the accident. The jury have expressly found, in answer to a question put to them by me, that the use of the chevaux-de-frise in the road was dangerous to the safety of persons using it. The ground of defense in point of law taken at the trial and on the argument on the rule was that, although, if the injury had resulted from the use of the chevaux-de-frise hurdle, as placed by the defendant on the road, the defendant, on the facts as admitted or as found by the jury, might have been liable, yet, as the immediate cause of the accident was not the act of the defendant, but that of the person, whoever he may have been, who removed the spiked hurdle from where the defendant had fixed it, and placed it across the footway, the defendant could not be held liable for an in- jury resulting from the act of another. On the part of the plaintiff it was contended that, as the act of the defendant in placing a dan- gerous instrument on the road had been the primary cause of the evil, by affording the occasion for its being removed and placed on the footpath, and so causing the injury to the plaintiff, he was re- sponsible in law for the consequences. Numerous authorities were cited in support of this position. The first is the case of Scott v. Shepherd, 3 Wils. 403, 2, W. Bl. 892. In that case the defendant threw a lighted squib into a market-house where several persons were assembled. It fell upon a standing, the owner of which, in self-defense, took it up and threw it across the market-house. It fell upon another standing, the owner of which, in self-defense, took it up and threw it to another part of the market- house, and in its course it struck the plaintiff, and exploded, and put out his eye. The defendant was held liable, although, without the intervention of a third person, the squib would not have injured the plaintiff. In Dixon v. Bell, 5 Maule & S. 198, the defendant, having left a loaded gun with another man, sent a young girl to fetch it, with a message to the man in whose custody it was to remove the priming, which the latter, as he thought, did, but, as it turned out, did not do ef- fectually. The girl brought it home, and thinking that, the priming having been removed, the gun could not go off, pointed it at the plain- tiff's son, a child, and pulled the trigger. The gun went off, and in- jured the child. The defendant was held liable, "as by this want of care," says Lord Ellenborough, that is, by leaving the gun without drawing the charge or seeing that the priming had been properly re- moved, "the instrument was left in a state capable of doing mis- GENERAL PRINCIPLES. 103 chief, the law will hold the defendant responsible. It is a hard case, undoubtedly, but I think the action is maintainable." In Ilott v. Wilkes, 3 Barn. & Aid. 304, the well-known case as to spring-guns, it became necessary to determine how far a person set- ting spring-guns would be liable to a person injured by such a gun going off, even though such person were a trespasser,. inasmuch as the plaintiff, having had notice that spring-guns were set in a par- ticular wood, had voluntarily exposed himself to the danger. But both Mr. Justice Bayley and Mr. Justice Holroyd appear to have thought that without such notice the action would have lain, the use of such instruments being unreasonably disproportioned to the end to be obtained, and dangerous to the lives of persons* who might be in- nocently trespassing. Looking to their language, it can scarcely be doubted that if, instead of injuring the plaintiff, the gun which he caused to go off had struck a person passing lawfully along a path leading through the wood, they would have held the defendant liable. In Jordin v. Crump, 8 Mees. & W. 782, the use of dog-spears was held not illegal ; but there the injury done to the plaintiff's dog was alone in question. If the use of such an instrument had been pro- ductive of injury to a human being, the result might have been dif- ferent. In Illidge v. Goodwin, 5 Car. & P. 192, the defendant's cart and horse were left standing in the street without any one to attend to them. A person passing by whipped the horse, which caused it to back the cart against the plaintiff's window. It was urged that the man who whipped the horse, and not the defendant, was liable. It was also contended that the bad management of the plaintiff's shop- man had contributed to the accident. But Tindal, C. J., ruled that, even if this were believed, it would not avail as a defense. "If," he says, "a man chooses to leave a cart standing on the street, he must take the risk of any mischief that mav be done." Lynch v. Nurdin, I Q. B. 29, is a still more striking case. There, as in the former case, the defendant's cart and horse had been left standing unattended in the street. The plaintiff, a child of seven years of age, playing in the street with other boys, was getting into the cart when another boy made the horse move on. The plaintiff was thrown down, and the wheel of the cart went over his leg and fractured it. A considered judgment was delivered by Lord Denman. He says: "It is urged that the mischief was not produced by the mere negligence of the servant as asserted in the declaration, but, at most, by that negligence in combination with two other active causes, the advance of the horse in consequence of his being excited by the other boy, and the plaintiff's improper conduct in mounting the cart, and committing a trespass on the defendant's chattel. On the former of these two causes no great stress was laid, and I do not apprehend that it can be necessary to dwell on it at any length. For if I am guilty of negligence in leaving anything dangerous where I know it to be extremely probable that some other person will unjustifiably set 104 LAW OF TORTS. it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first." And then, by way of illustration, the chief justice puts the case of a gamekeeper leaving a loaded gun against the wall of a play-ground where school-boys were at play, and one of the boys in play letting it off and wounding another. "I think it will not be doubted," says Lord Denman, "that the game-keeper must answer in damages to the wounded party." "This," he adds, "might possibly be assumed as clear in principle, but there is also the authority of the present chief justice of the common pleas in its support in Illidge v. Goodwin, 5 Car. & P. 190." It is unnecessary to follow the judg- ment in the consideration of the second part of the case, namely, whether the plaintiff, having contributed to the accident by getting into the cart, was prevented from recovering in the action, as no such question arises here. In Daniels v. Potter, 4 Car. & P. 262, the defendants had a cellar opening to the street. The flap of the cellar had been set back while the defendant's men were lowering casks into it, as the plaintiffs con- tended, without proper care having been taken to secure it. The flap fell, and injured the plaintiff. The defendant maintained that the flap had been properly fastened, but also set up as a defense that its fall had been caused by some children playing with it. But the only question left to the jury by Tindal, C. J., was whether the defendant's men had used reasonable care to secure the flap. His direction im- plies that in that case only would the intervention of a third party causing the injury be a defense. The cases of Hughes v. Macfie, 2 Hurl. & C. 744, 33 Law J. Exch. 177, and Abbott v. Macfie, Id. ; twc actions arising out of the same circumstances, and tried in the pas- sage court at Liverpool, though at variance with some of the fore- going, so far as relates to the effect on the plaintiff's right to recover where his own act as a trespasser has contributed to the injury of which he complains, is in accordance with them as respects the de- fendants' liability for his own act, where that act is the primary cause, though the act of another may have led to the immediate result. The defendants had a cellar opening to the street. Their men had taken up the flap of the cellar for the purpose of lowering casks into it, and having reared it against the wall nearly upright with its lower face, on which there were cross-bars, towards the street, had gone away. The plaintiff in one of the actions, a child five years old, got upon the cross-bars of the flap, and in jumping off them brought down the flap on himself and another child, the plaintiff in the other action, and both were injured. It was held that, while the plaintiff whose act had caused the flap to fall could not recover, the other plaintiff who had been injured could, provided he had not been playing with the other so as to be a joint actor with him. Bird v. Holbrook, 4 Bing. 628, is another striking case, as there the plaintiff was undoubtedly a trespasser. The defendant being the GENERAL PRINCIPLES. 105 owner of a garden, which was at some distance from his dwelling- house, and which was subject to depredations, had set in it without notice a spring-gun for the protection of his property. The plaintiff, who was not aware that a spring-gun was set in the garden, in order to catch a peafowl, the property of a neighbor, which had escaped into the garden, got over the wall, and his foot coming, in his pursuit of the bird, into contact with the wire which communicated with the gun, the latter went off and injured him. It was held, though his own act had been the immediate cause of the gun going off, yet that the unlawful act of the defendant in setting it rendered the latter liable for the consequences. In the course of the discussion the similar case of Jay v. Whitfield, at page 644, 4 Bing., (cited in 3 Barn. & Aid. 308,) was mentioned, tried before Richards, C. B., in which a plaintiff who had trespassed upon premises in order to cut a stick, and had been similarly in- jured, had recovered substantial damages, and no attempt had been made to disturb the verdict. In Hill v. New River Co., 9 Best & S. 303, the defendants created a nuisance in a public highway by allowing a stream of water to spout up open and unfenced in the road. The plaintiff's horses, passing along the road with his carriage, took fright at the water thus spout- ing up, and swerved to the other side of the road. It so happened that there was in the road an open ditch or cutting, which had been made by contractors who were constructing a sewer, and which had been left unfenced and unguarded, which it ought not to have been. Into this ditch or cutting, owing to its being unfenced, the horses fell, and injured themselves and the carriage. It was contended that the remedy, if any, was against the contractors; but it was held that the plaintiff was entitled to recover against the company. In Burrows v. Coke Co., L. R. 7 Exch. 96, it was held in the ex- chequer chamber, affirming a judgment of the court of exchequer, that where, through a breach of contract by the defendants in not serving the plaintiff with a proper pipe to convey gas from their main into his premises, an escape of gas had taken place, whereupon, the servant of a gas-fitter at work on the premises having gone into the part of the premises where the escape had occurred, with a lighted candle, and examined the pipe with the candle in his hand, an explo- sion took place, by which the premises were injured, the defendants were liable, though the explosion had been immediately caused by the imprudence of the gas-fitter's man in examining the pipe with a light- ed candle in his hand. In Collins v. Commissioners, L. R. 4 C. P. 279, the defendants were bound, under an act of parliament, to construct a cut with proper walls, gates, and sluices, to keep out the waters of a tidal river, and also a culvert under the cut, to carry off the drainage of the lands lying east of the cut, and to keep the same open at all times. In con- sequence of the defective construction of the gates and sluices, the waters of the river flowed into the cut, and, bursting its western bank, 106 LAW OF TORTS. flooded the adjoining lands. The plaintiff and other proprietors on the eastern side closed the culvert, and so protected their lands; but the proprietors on the western side, to lessen the evil to themselves, reopened the culvert, and so increased the overflow on the plaintiffs' land, and caused injury to it. The defendants sought to ascribe the injury to the act of the western proprietors in removing the obstruc- tion which those on the other side had. placed at the culvert. But it was held that the negligence of the defendants was the substantial cause of the mischief. "The defendants," says Mr. Justice Montague Smith, "cannot excuse themselves from the natural consequences of their negligence by reason of the act, whether rightful or wrongful, of those who removed the obstruction placed in the culvert under the circumstances found in this case." "The primary and substantial cause of the injury," says Mr. Justice Brett, "was the negligence of the defendants, and it is not competent to them to say that they are ab- solved from the consequences of their wrongful act by what the plain- tiff or some one else did." "I cannot see how the defendants can excuse themselves by urging that the plaintiff was prevented by other wrong-doers from preventing a part of the injury." The case of Harrison v. Railway Co., 3 Hurl. & C. 231, 33 Law J. Exch. 266, belongs to the same class. The defendants were bound, under an Act of Parliament, to maintain a delph or drain with banks for carrying off water for the protection of the adjoining lands. At the same time certain commissioners, appointed under an Act of Parliament, were bound to maintain the navigation of the river With- am, with which the delph communicated. There having been an extraordinary fall of rain, the water in the delph rose nearly to the height of its banks, when one of them gave way, and caused the dam- age of which the plaintiff complained. It was found that the bank of the delph was not in a proper condition; but it was also found, and it was on this that the defendants relied as a defense, that the breaking of the bank had been caused by the water in it having been penned back, owing to the neglect of the commissioners to maintain in a proper state Certain works which it was their duty to keep up under their Act. Nevertheless the defendants were held liable. These authorities would appear to be sufficient to maintain the plain- tiff's right of action under the circumstances of this case. It must, however, be admitted that in one or two recent cases the courts have shown a disposition to confine the liability arising from unlawful acts, negligence, or omissions of duty within narrower limits, by holding a defendant liable for those consequences only which, in the ordinary course of things, were likely to arise, and which might therefore rea- sonably be expected to arise, or which it was contemplated by the parties might arise, from such acts, negligence, or omissions. In Greenland v. Chaplin, 5 Exch. 243, at page 248, Pollock, C. B., says : "I entertain considerable doubt whether a person who is guilty of neg- ligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no GENERAL PRINCIPLES. 107 possibility have been foreseen, and which no reasonable person would have anticipated." Acting on this principle, the court of common pleas, in the recent case of Sharp v. Powell, L. R. 7 C. P. 253, held that the action would not lie where the injury, though arising from the unlawful act of the defendant, could not have been reasonably expected to follow from it. The defendant had, contrary to the pro- visions of the police act, washed a van in the street, and suffered the water used for the purpose to flow down a gutter towards' a se\ver at some little distance. The weather being frosty, a grating, through which water flowing down the gutter passed into the sewer, had be- come frozen over, in consequence of which the water sent down by the defendant, instead of passing into the sewer, spread over the street and became frozen, rendering the street slippery. The plaintiff's horse, coming along, fell in consequence, and was injured. It was held that, as there was nothing to show that the defendant was aware of the obstruction of the grating, and as the stoppage of the water was not the necessary or probable consequence of the defendant's act, he was not responsible for what had happened. Bovill, C. J., there says : "No doubt one who commits a wrongful act is responsible for the ordinary consequences which are likely to result therefrom, but, gen- erally speaking, he is not liable for damage which is not the natural or ordinary consequence of such act, unless it be shown that he knows, or has reasonable means of knowing, that consequences not usually resulting from the act are, by reason of some exisjting cause, likely to intervene so as to occasion damage to a third person. Where there is no reason to expect it, and no knowledge in the person doing the wrongful act that such a state of things exists as to render the damage probable, if injury does result to a third person it is generally con- sidered that the wrongful act is not the proximate cause of the injury so as to render the wrong-doer liable to an action." And Grove, J.. said : "I am entirely of the same opinion. I think the act of the de- fendant was not the ordinary or proximate cause of the damage to the plaintiff's horse, or within the ordinary consequences which the defendant may be presumed to have contemplated or for which he is responsible. The expression, the 'natural' consequence, which has been used in so many cases, and which I myself have, no doubt, often used, by no means conveys to the mind an adequate notion of what is meant; 'probable' would perhaps be a better expression. If, on the present occasion, the water had been allowed to accumulate round the spot where the washing of the van took place, and had there frozen obviously within the sight of the defendant, and the plaintiff's horse had fallen there, I should have been inclined to think that the de- fendant would have been responsible for the consequences which had resulted." And Mr. Justice Keating said : "The damage did not immediately flow from the wrongful act of the defendant, nor was such a probable or likely result as to make him responsible for it. The natural consequence, if that be a correct expression, of the wrong- ful act of the defendant, would have been that the water would, under 108 LAW OF TORTS. ordinary circumstances, have flowed along the gutter or channel, and so down the grating to the sewer. The stoppage and accumulation of the water was caused by ice or other obstruction at the drain, not shown to have been known to the defendant, and for which he was in no degree responsible. That being so, it would obviously be un- reasonable to trace the damage indirectly back to the defendant." We acquiesce in the doctrine thus laid down as applicable to the circumstances of the particular case, but we doubt its applicability to the present, which appears to us to come within the principle of Scott v. Shepherd, 3 Wils. 403, 2 W. Bl. 892, and Dixon v. Bell, 5 Maule & S. 198, and the other cases to which we have referred. At the same time, it appears to us that the case before us will stand the test thus said to be the true one. For a man who unlawfully places an obstruction across either a public or a private way may anticipate the removal of the obstruction, by some one entitled to use the way, as a thing likely to happen; and, if this should be done, the probability is that the obstruction so removed will, instead of being carried away altogether, be placed somewhere near. Thus, if the obstruction be to the carriage-way, it will very likely be placed, as was the case here, on the footpath. If the obstruction be a dangerous one, wheresoever placed, it may, as was the case here, becomes a source of damage, from which, should injury to an innocent party occur, the original author of the mischief should be held responsible. Moreover, we are of opinion that, if a person places a dangerous obstruction in a high- way or in a private road, over which persons have a right of way, he is bound to take all necessary precaution to protect persons exercising their right of way, and that if he neglects to do so he is liable for the consequences. It is unnecessary to consider how the matter would have stood had the plaintiff been a trespasser. The case of Mangan v. Atterton, 4 Hurl. & C. 388, L. R. I Exch. 239, was cited before us as a strong authority in favor of the defendant. The defendant had there exposed in a public market-place a machine for crushing oil-cake without it being thrown out of gear, or the handle being fastened, or any person having the care of it. The plaintiff, a boy of four years of age, returning from school with his brother, a boy of seven, and some other boys, stopped at the machine. One of the boys began to turn the handle. The plaintiff, at the suggestion of his brother, placed his hand on the cogs of the wheels, and, the machine being set in motion, three of his fingers were crushed. It was held by the court of exchequer that the defendant was not lia- ble First, because there was no negligence on the part of the de- fendant, or, if there was negligence, it was too remote; and, sec- ondly, because the injury was caused by the act of the boy who turned the handle, and of the plaintiff himself, who was a trespasser. With the latter ground of the decision we have in the present case nothing to do ; otherwise we should have to consider whether it should prevail against the cases cited, with which it is obviously in conflict. If the decision as to negligence is in conflict with our judgment in GENERAL PRINCIPLES. 109 this case, we can only say we do not acquiesce in it. It appears to us that a man who leaves in a public place, along which persons, and among them children, have to pass, a dangerous machine, which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character, and not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful act or negligence of the defendant has given occasion. But, be this as it may, that case cannot govern the present ; for the decision proceeded expressly on the ground that there had been no default in the defendant; here it cannot be disputed that the act of the defendant was unlawful. On the whole, we are of opinion, both on principle and authority, that the plaintiff is entitled to our judgment. Judgment for the plaintiff. (Analogous cases of special interest are Halestrap v. Gregory [1895] 1 Q. B. 561 ; McDowall v. Gt. West. R. Co. [1903] 2 K. B. 331 ; Engelhart v. Far- rant [1897] 1 Q. B. 240; Parker v. Cohoes, 10 Hun, 531, affirmed 74 N. Y. 610 ; McDonald v. Snelling, 14 Allen, 290, 92 Am. Dec. 768 ; McCauley v. Nor- cross, 155 Mass. 584, 30 N. E. 404 ; Babbitt v. Safety Fund Nat. Bk., 169 Mass. 361, 47 N. E. 1018 ; Henry v. Dennis, 93 Ind. 452, 47 Am. Rep. 378 ; Binford v. Johnston, 82 Ind. 426, 42 Am. Rep. 508. In this last case a dealer sold to two boys, aged ten and twelve years, cartridges loaded with powder and ball, for use in a toy pistol, and instructed the boys in their use. The boys after- wards left the toy pistol loaded with one of the cartridges on the floor of their home, where a younger brother, aged six years, picked it up and discharged it. the ball wounding one of the older brothers and causing his death. It was held that an action would lie against the dealer.) (5 Cow. 351.) MOODY v. BAKER (in part). (Supreme Court of New York. February Term, 1826.) SLANDER SPECIAL DAMAGE BREAKING OFF MARRIAGE AS PROXIMATE RESULT. An action may be maintained for words spoken of plaintiff by defend- ant, charging her with unchaste conduct, to a man to whom she was en- gaged to be married, by reason of which accusation the man broke the engagement, although such words are not in themselves actionable, and although plaintiff has a remedy against the man engaged to her for breach of the contract to marry. Motions in arrest of judgment and for a new trial. Action for slander. The declaration alleged a contract of marriage between plaintiff and one Parkman Baker ; that defendant, to pre- vent such intended marriage, stated to said Parkman Baker that he had carnal intercourse with plaintiff, by reason whereof said Parkman Baker refused to marry plaintiff. The jury found a verdict for plain- tiff. Defendant moved in arrest of judgment, on the ground that the declaration was insufficient. HO LAW OF TORTS. BY THE COURT, per WOODWORTH, J. The words spoken are not in themselves actionable. If the action is sustainable, it must be on the ground of special damage. It is contended on the part of the defendant that no action can be maintained on the facts alleged in the declaration. The case of Vicars v. Wilcocks, 8 East, i, is re- lied on as an authority in point. In that case it was held that, when special damage is necessary to sustain an action for slander, it is not sufficient to prove a mere wrongful act of a third person, induced by the slander, but the special damage must be a legal and natural consequence of the words spoken. It appeared that in consequence of speaking the words the plaintiff had been dismissed from his em- ployment before the end of the term for which he had contracted. Lord Ellenborough proceeded on the ground that this was an illegal consequence, a mere wrongful act of the master, for which the de- fendant was not answerable, and inquired whether any case could be mentioned of an action of this sort sustained by proof only of an injury by the tortious act of a third person. If the doctrine here advanced is well founded, it disposes of the case before us. The learned judge does not refer to any authority in support of the de- cision. In my view, it seems to be a departure from well-established principles, applicable to this species of action. Morris v. Langdale, 2 Bos. & P. 284, was cited on the argument as supporting the doc- trine laid down by Lord Ellenborough. The plaintiff in that case stated that he was a dealer in the funds, and as such had been ac- customed to contract ; that the defendant said of him, as such dealer, "He is a lame duck," in consequence of which divers persons refused to fulfill their contracts with him, and he was prevented from fulfill- ing his contracts with other persons. It was held that it did not sufficiently appear either that the words were spoken of lawful con- tracts, or that the plaintiff was a lawful dealer in the funds, and that the declaration was therefore bad. Part of the gravamen was that divers persons refused to fulfill their contracts. If the test is that the special damage must be the legal and natural consequence of the words spoken, and that the plaintiff is not entitled to recover be- cause he had a right of action on his contract, it is surprising that this ground had not been taken by the counsel who argued. But it is not even suggested. The opinion of the court also seems to be placed on other grounds. It is true, Lord Eldon observed that a, doubt had arisen in the mind of the court whether the special damage had been so laid as to support the action, and that, if the plaintiff had sustained any damage in consequence of the refusal of any per- sons to perform their lawful contracts with him, it is damage which may be compensated in actions brought by the plaintiff against those persons. These remarks were not necessary to the decision of the cause. Admitting them, however, to be correct, the case was not like the present. If persons had refused to fulfill their contracts with the plaintiff, he was entitled to recover damages. The court GENERAL PRINCIPLES. Ill probably considered it substantially a contract for the payment of money, in which case the refusal to pay by the debtor in consequence of the speaking of slanderous words would not be a ground of special damage. Most, if not all, the cases for loss of marriage, to be met with in the books, allege a communication or treaty of marriage only, and that the marriage was lost by reason of speaking the words. Davis v. Gardiner, 4 Coke, 17; Southold v. Daunston, Cro. Car. 269; Brian v. Cockman, Id. 322 ; Holwood v. Hopkins, Cro. Eliz. 787. By a communication or treaty of marriage must, I think, be under- stood, that the parties had contracted to marry each other. If this had not taken place, how can it be said, correctly, that a marriage was lost? In this case a valid contract of marriage is set out in the dec- laration. That the action can be maintained will not be questioned, if it be shown that the law has given this remedy in cases analogous and similar in principle. It is a general rule that, where a man has a temporal loss or damage by the wrong of another, he may have an action on the case, to be repaired in damages. I Com. Dig. tit. "Action on the Case," A, p. 178. If a party has several remedies for the same thing, he has an election to pursue either. Co. Litt. 145, a. But, after having recovered satisfaction for the injury from one person, he cannot afterwards proceed against any other person for a further satisfaction. Bird v. Randall, 3 Burrows, 1345. The case of Bird v. Randall was twice argued, and decided after great consideration. The principles recognized and acted upon by the court, if sound, are, in my mind, decisive of the present question. It appeared that one Burford, by articles of agreement, covenanted to serve the plaintiff for five years as a journeyman, and bound himself in the penalty of 100. After continuing a part of the time, the defendant procured and enticed him to depart, which he accordingly did. The plaintiff sued Burford for the penalty, and re- covered judgment against him, but the money was not actually paid until after the commencement of the action against the defendant. The question was whether it was maintainable. It is remarkable that the point whether the action could be sustained (inasmuch as the plaintiff had a remedy on the contract) was not even hinted at by the court or counsel. It is manifest that no such notion of the law was then entertained ; for Lord Mansfield, who delivered the opinion of the court, observed that the case turned upon two points : (i) Whether the plaintiff could maintain the action if the 100 recovered against the servant had been actually received before the commence- ment of the action ; and, (2) if it could not, whether the receipt of the money subsequently would vary the case. I cannot well conceive of a more perfect recognition that the fact of an existing remedy on the contract formed no objection. All the reasoning of his lordship goes clearly to prove this. The ground upon which he places the decision is that satisfaction had already been received, which implies that, if it had not, there was no obstacle in the way. This case is very 1 12 LAW OF TORTS. analogous to the one before us. In each there was a contract between the plaintiff and another person, and in each the attempt was to re cover damages by proof of an injury sustained by the tortious act of a third person. If, then, the principle recognized in Bird v. Randall would authorize a recovery, when there was a contract of service, upon which damages might be recovered, I think it will apply with greater force when there has been a contract of marriage, and per- formance of it refused in consequence of the slander of the defendant. A contract of marriage looks principally to a specific execution. It. is of a very different nature and character from the preventing of the fulfillment of a contract to pay a sum of money. In the latter case, the non-fulfillment of the contract by means of a third person would have no effect on the ability of the contracting party ; whereas, in a case of the specific execution of a contract to marry, its value does not depend on the ability of a person to pay damages. It is, indeed, a temporal loss, but of a character not capable of being wholly re- paired by the payment of money, the only substitute the law has devised. But there are other cases which rest on the same principle. If one slanders my title, whereby I am wrongfully disturbed in my possession, though I have a remedy against the disturber, yet I may have an action against him that caused the disturbance, i Bac. Abr. tit. "Action on the Case," p. 98 ; Newman v. Zachary, Aleyn, 3. This is equally against the doctrine of Lord Ellenborough, for here dam- ages are given which were caused by the tortious act of a third per- son. Again, in the action for enticing away another's servant, the servant is always liable, and yet the law is well settled that the se- ducer is also liable. Regina v. Callingwood, 2, Ld. Raym. 1116; Hart v. Aldridge, Cowp. 54 ; Reeve, Dom. Rel. 376 ; 4 Bac. Abr. 593. The doctrine contended for strikes at the root of society, and, in my view, overturns some of the well-settled and revered principles of the common law. I cannot, therefore, doubt that the declaration con- tains a good cause of action, and that the motion in arrest of judg- ment should be denied. Motion denied. (See Knight v. Gibbs, 1 Ad. & El. 43; Moore v. Stevenson, 27 Conn. 14; Paull v. Halferty, 63 Pa. 46, 50, 3 Am. Rep. 518; Lvmiley v. Gye, 2 E. & B. 216 ; Walker v. Cronin, 107 Mass., at page 567.) GENERAL PRINCIPLES. 113 (6 Q. B. Div. 333.) BOWEN v. HALL et al. (In part). (Court of Appeal. February 5, 1881.) INDUCING BREACH OF CONTRACT PROXIMATE CONSEQUENCES. A person who maliciously induces another to break a contract made by the latter with an employer for the employees exclusive personal serv- ices, where such breach would naturally cause, and does in fact cause, in- jury to the employer, is liable to the employer therefor, even though the relation between the employer and employed may not be, strictly and for all purposes, that of master and servant. The injury in such case is, in law as well as in fact, a natural and probable consequence of the wrongful act Decision of the majority of the judges in Lumley v. Gye, 2 El. & Bl. 216, approved. Appeals from Queen's Bench Division, Action by Edward Bowen as against defendants Hall and Fletcher, for wrongfully enticing away and keeping the other defendant, Pear- son, from the plaintiff's employment, and for wrongfully receiving and harboring him after notice of his being the servant of plaintiff; and, as against defendant Pearson, for unlawfully, and against the will of plaintiff, departing from the service of plaintiff. It appeared that plaintiff carried on the business of a brick-maker, and that in June, 1877, defendant Pearson entered into a written contract with plaintiff, whereby defendant agreed, for the consideration of certain prices named, "to find all labor for the whole manufacture, in a workmanlike manner, of best quality white-glazed bricks and baths, (with exception of hooping the baths and preparing the clay mass), in such quantities as you require and when you require," and deliver anywhere they might be required on plaintiff's premises; and also agreed not to engage himself "to any one else for a term of five years ;" and plaintiff agreed to the foregoing conditions, and to sup- ply clay for the manufacture of said goods, and also to find all ma- terials (with the exception of body and glaze, which defendant Pear- son agreed to find) and tools, "and not engage any one else for the same work for a ferm of five years." Plaintiff alleged that the manu- facture of white-glazed bricks and baths according to said samples was a secret known to defendant Pearson and only a few others, and that defendant Hall, who was a manufacturer of white-glazed bricks and baths in the neighborhood of plaintiff, did not know of the method of manufacture which Pearson used, and that therefore the bricks and baths he manufactured were inferior to those manufactured by Pear- son on account of plaintiff. The complaint of plaintiff, for which this action was brought, was that in May, 1878, defendants Hall and Fletcher (the latter being Hall's manager) wrongfully induced Pear- son, contrary to his said agreement with plaintiff, to depart from CHASE (2o ED.) 8 114 LAW OF TORTS. the exclusive service of plaintiff, and to manufacture on account oi the defendant Hall glazed bricks and baths such as he had contracted to manufacture for plaintiff. Plaintiff claimed damages, not against all the defendants, but against only the two defendants, Hall and Fletcher. He also claimed an injunction to restrain these defendants from employing defendant Pearson to do work for them at brick making or glazing, and he claimed an injunction to restrain defend- ant Pearson from engaging himself to defendants Hall and Fletcher until the expiration of his said contract of service with plaintiff. An interim injunction in the terms claimed was granted by Field, J., as against all the defendants. The action was tried before Manisty, J., who held that there was no evidence to enable plaintiff to maintain his action against defendants Hall and Fletcher, and he therefore directed a verdict to be entered for those defendants; and, as re- garded defendant Pearson, the learned judge was of opinion that, as that defendant had not acted or threatened to act contrary to the interim injunction, there was nothing to justify making such injunc- tion perpetual. Plaintiff afterwards applied for and obtained a rule nisi against all the defendants for a new trial. The queen's bench division made such rule absolute as against defendants Hall and Fletcher, but it discharged the rule as to defendant Pearson. De- fendants Hall and Fletcher appealed to the court of appeal against the order for a new trial, and there was a cross-appeal by plaintiff against the order discharging the rule as to defendant Pearson. Argued before Lord SELBORNE, L. C, Lord COLERIDGE, C. J., and BRETT, L. J. BRETT, L. J. The lord chancellor agrees with me in the judg- ment I am about to read, and it is to be taken, therefore, as the judg- ment of the lord chancellor as well as of myself. In this case, we were of opinion at the hearing that the contract was one for personal service, though not one which established strict- ly, for all purposes, the relation of master and servant between the plaintiff and Pearson. We were of opinion that there was evidence to justify a finding that Pearson had been induced by the defendants to break his contract of service ; that he had broken it, and had there- by, in fact, caused some injury to the plaintiff. We were of opinion that the act of the defendants was done with knowledge of the con- tract between the plaintiff and Pearson ; was done in order to obtain an advantage for one of the defendants at the expense of the plaintiff ; was done from a wrong motive, and would therefore justify a finding that it was done in that sense maliciously. There remained, never- theless, the question whether there was any evidence to be left to the jury against the defendants Hall and Fletcher, it being objected that Pearson was not a servant of the plaintiff. The case was ac- curately within the authority of the case of Lumley v. Gye, 2 El- & GENERAL PRINCIPLES. 115 Bl. 216, 22 Law J. Q. B. 463. 1 If that case was rightly decided, the objection in this case failed. The only question, then, which we took time to consider, was whether the decision of the majority of the judges in that case should be supported in a court of error. The decision of the majority will be seen, on a careful consideration of their judgments, to have been founded upon two chains of reason- ing. First, that wherever a man does an act which in law and in fact is a wrongful act, and such an act as may, as a natural and probable consequence of it, produce injury to another, and which in the par- ticular case does produce such an injury, an action on the case will lie. This is the proposition to be deduced from the case of Ashby v. White, I Smith Lead. Cas. (8th Ed.) 264. If these conditions are satisfied, the action does not the less lie because the natural and probable consequence of the act complained of is an act done by a third person; or because such act so done by the third person is a breach of duty or contract by him, or an act illegal on his part, or an act otherwise imposing an actionable liability ( on him. It has been said that the law implies that the act of the third party, being one which he has free will and power to do or not to do, is his own will- ful act, and therefore is not the natural or probable result of the defendant's act. In many cases that may be so, but, if the law is so to imply in every case, it will be an implication contrary to manifest truth and fact. It has been said that if the act of the third person is a breach of duty or contract by him, or is an act which it is illegal for him to do, the law will not recognize that it is a natural or prob- able consequence of the defendant's act. Again, if that were so held in all cases, the law would in some refuse to recognize what is manifestly true in fact. The act complained of in such a case as Lumley v. Gye, and which is complained of in the present case, is a persuasion by the defendant of a third person to break a con- tract existing between such third person and the plaintiff. It can- not be maintained that it is not a natural and probable consequence of that act of persuasion that the third person will break his con- tract. It is not only the natural and probable consequence, but, by the terms of the proposition which involves the success of the persuasion, it is the actual consequence. Unless there be some tech- nical doctrine to oblige one to say so, it seems impossible to say correctly, in point of, fact, that the breach of contract is too remote a consequence of the act of the defendants. The injury is in such a case, in law as well as in fact, a natural and probable conse- quence of the cause, because it is in fact the consequence of the cause, and there is no technical rule against the truth being recognized. It follows that in Lumley v. Gye, and in the present case, all the con- iln this case the plaintiff, a theatrical manager, had engaged Miss Wagner as a singer for a certain time, and defendant maliciously induced her to break her contract and refuse to sing. The defendant was held liable. LAW OF TORTS. ditions necessary to maintain an action on the case are fulfilled. We are therefore of opinion that the judgment of the queen's bench division was correct, and that the principal appeal must be dismissed. SELBORNE, L. C., added the judgment of the court that the cross-appeal of plaintiff against the order discharging as to the de- fendant Pearson the rule for a new trial should be allowed, and that there should be a new trial as to all the defendants. COLERIDGE, C. J., dissented, holding that Lumley v. Gye, 2 El. & Bl. 216, Law J. 22 Q. B. 463, should be overruled, and that the action against the defendants Hall and Fletcher was not maintainable ; but as to defendant Pearson agreeing with the rest of the court. Appeal of defendants Hall and Fletcher dismissed; cross-appeal of plaintiff as to defendant Pearson allowed. (Some dicta in this decision have been omitted, because their soundness has been denied in later English cases. Allen v. Flood [1898] A. C., at pages 107, 119, 120, 127, 153, 179; Quinn v. Leathern [1901] A. C., at page 509. But the decision itself, upon the question that was at issue, as well as the decision in Lumley v. Gye, 2 E. & B. 216, which it followed, has been upheld. Allen v. Flood [1898] A. C.. at pages 106, 107, 121, 126, 171 ; Quinn v. Leathern [1901] A. C., at pages 510, 535 ; Read v. Friendly Society of Stonemasons, etc., [1902] 2 K. B., at page 738. There has, however, been considerable discussion in these recent English cases as to whether "malice" is an essential element of the cause of action, and in fact as to what "malice" means in this connection. See Allen v. Flood, passim ; Quinn v. Leathern, at page 510 ; Read v. Friend- ly Society, at page 739. The present statements of English law on this gen- eral subject are as follows : "A violation of legal right committed knowingly Is a cause of action, and it is a violation of legal right to interfere with con- tractual relations recognized by law, if there be no sufficient justification for the interference." Quinn v. Leathern, at page 510; Glamorgan Coal Co. v. So. Wales Miners' Federation [1903] 2 K. B. 545, 573, 576. "The intentional procurement of a violation of individual rights, contractual or other, assum- ing always that there is no just cause for it," gives a right of action. Mogul Steamship Co. v. McGregor, 23 Q. B. D. at p. 614. Hence actions have been sustained in the following cases : Where a society of workmen gave notice to the employers of A as an apprentice that, if the engagement of A were continued, they would call out the workmen who were working for said em- ployers, and who were all members of the society ; the employers for this rea- son discharged A, and he sued the society [Read v. Friendly Society, etc. (1902) 2 K. B. 732] ; where persons induced the customers of a man to break their contracts with him, and not to deal with him, and thereby caused him damage. Quinn v. Leathern, supra; S. P. Glamorgan Coal Co. v. So. Wales Miners' Federation, supra. What will constitute "sufficient justification" for procuring a breach of contract cannot, it is said, be generally defined, but must depend on the facts of each case [Id.]. In this country the great weight of authority supports Lumley v. Gye and Bowen v. Hall, ante 113. Thus, the United States Supreme Court holds that "if one maliciously interferes in a contract between two parties, and induces one of them to break that contract to the injury of the other, the party injured can maintain an action against the wrongdoer." Angle v. Chicago, etc., R. Co., 151 U. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55. To the same effect are Moran GENERAL PRINCIPLES. 117 y. Dunphy, 177 Mass. 485, 59 N. E. 125, 52 L. R. A. 115, 83 Am. St. Rep. 289; Jones v. Stanly, 76 N. C. 355; Bixby v. Dunlap, 50 N. H. 456, 22 Am. Rep. 475; Perkins v. Pendleton, 90 Me. 166, 38 Atl. 96, 60 Am. St. Rep. 252; Lucke v. Clothing Cutters', etc., 77 Md. 396, 26 Atl. 505, 19 L. R. A. 408, 39 Am. St Rep. 421: Cliipley v. Atkinson, 23 Fla. 218, 1 South. 934, 11 Am. St. Rep. 867 ; Raymond v. Yarrington, 96 Tex. 443, 73 S. W. 800, 62 L. R. A. 962 ; Ray- croft v. Tayntor, 68 Vt. 219, 223, 35 Atl. 53, 33 L. R. A. 225, 54 Am. St. Rep. 882; Morgan v. Andrews, 107 Mich. 33, 64 N.. W. 869; Frank v. Herold, 63 N. J. Eq. 443, 52 Atl. 152 ; Barr v. Essex Trades Council, 53 N. J. Eq. 101, 117 r 30 Atl. 881. "Malice'' has been said to exist when defendant's acts were done "without right or justifiable cause" on his part, "with the unlawful purpose to cause damage or loss" to the plaintiff. Walker v. Cronin, 107 Mass., at page 5G2. Wrongful interference of any kind, even if not malicious, has also been said to be sufficient to afford a cause of action. Lucke v. Clothing Cutters', etc., 77 Md., at page 405, 26 Atl. 507, 19 L. R. A. 408, 39 Am. St. Rep. 421. "We see no sound distinction between persuading by malevolent advice or accomplishing the same result by falsehood or putting in fear." Moran v. Dunphy. 177 Mass. 485, 59 N. E. 125, 52 L. R. A. 115, 83 Am. St. Rep. 289; but see Perkins v. Pendleton, 90 Me. 166, 38 Atl. 96, 60 Am. St. Rep. 252 ; cf. Frank v. Herold, 63 N- J- Eq. 443, 52 Atl. 152. In some states it is held that the action lies, even though the contract would not have been enforceable against the party who was induced to break it [Perkins v. Pendleton, 90 Me. 166, 38 Atl. 96, 60 Am. St. Rep. 252, citing the cases] ; as, e. g., where a servant whose discharge was wrongfully induced by defendant was only hired at will. Id. ; Noice v. Brown, 39 N. J. Law, 569 ; Moran v. Dunphy, 177 Mass., at page 487, 59 N. E. 125, 52 L. R. A. 115, 83 Am. St. Rep. 289. Again, in some jurisdictions it is actionable, not only to wrongfully induce the breaking of an actual contract with A, but to wrongfully deter others from entering into contracts or business dealings with A. Rice v. Albee, 164 Mass. 88, 41 N. E. 122 ; May v. Wood, 172 Mass. 11, 14, 51 N. E. 191 ; Temperton v. Russell [1893] 1 Q. B. 715 ; Quinn v. Leathern [1901] A. C. 495 ; contra, Gueth- ler v. Altman, 26 Ind. App. 587, 60 N. E. 355, 84 Am. St. Rep. 313. Some decisions in this country do not agree with the above authorities. They concede that an action lies [a] for enticing a servant away from his master ; [b] for procuring, by fraud, threats, or violence, the breach of a contract by a party thereto, to the damage of the other party ; but they decline to go far- ther. Thus no action was held to lie, where a theatrical manager maliciously induced an actress to break her engagement at another theater and to perform at his own [Boulier v. Macauley, 91 Ky. 135, 15 S. W. GO, 11 L. R. A. 550, 34 Am. St. Rep. 171] ; or where a person maliciously induced a vendor of goods to sell and deliver them to him, and thus violate his contract with the original purchaser [Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57, 11 L. R. A. 545, 34 Am. St. Rep. 1<>5] ; or where a person maliciously induced an innkeeper to break his contract with a lodger and his family [Boyson v. Thorn,' 98 Cal. u78, 33 Pac. 492, 21 L. R. A. 233; Glencoe Gravel Co. v. Hudson Bros. Co., 138 Mo. 439. 40 S. W. 93, 36 L. R. A. 804, 60 Am. St. Rep. 560 ; cf. Kline v. Eubanks, 109 La. 241, 33 South. 211]. In some states there are statutes making it a criminal offense to entice away or knowingly employ laborers or tenants of another. Streater v. State, 137 Ala. 93, 34 South. 395 ; Caldwell v. O'Neal, 117 Ga. 775, 45 S. E. 41.) 118 LAW OF TORTS. Torts, as distinguished from crimes, do not, in general, involve a "wrongful intent. (T. Raym. 467.) BESSET v. OLL1OT et al. (in part). (Court of King's Bench, Trinity Term, 1682.) TRESPASS INTENT. An action may be maintained for a trespass although there was no wrongful intent on the part of defendant, the ground of recovery being compensation for the loss or damage suffered. Error to Common Pleas. Action by Bessey against Olliot and Lambert for assault and false imprisonment. The following is an extract from the report of the de- cision : In all civil acts the law doth not so much regard the intent of the actor as the loss and damage of the party suffering; and therefore Mich., 6 E. 4, 7, pi. 18. Trespass quare vi et armis clausum fregit and herbam suam pedibus conculcando consumpsit in six acres. The defendant pleads that he hath an acre lying next the said six acres, and upon it a hedge of thorns, and he cut the thorns, and they ipso invito fell upon the plaintiff's land, and the defendant took them off as soon as he could, which is the same trespass ; and the plaintiff demurred; and adjudged for the plaintiff; for, though a man doth a lawful thing, yet, if any damage do thereby befall another, he shall answer for it, if he could have avoided it. As if a man lop a tree, and the boughs fall upon another ipso invito, yet an action lies. And the reason is because he that is damaged ought to be recompensed. But otherwise it is in criminal cases, for there actus non facit reum nisi mens sit rea. (In- Read v. Friendly Society, etc. [1902] 2 K. B. 732, It Is said by Stirling, J.: "If an action is brought for trespass to land, and the defendant justifies under an alleged right of way, judgment must go against him if he fails to establish the right, however honestly he may have believed in its existence. If an action is brought for the publication of defamatory matter, and the de- fendant sets up that it was published on a privileged occasion, he will fail in his defense unless the privilege is established, however clear his good faith may be." Where defendant was engaged in blasting rocks, and fragments were thrown against and Injured the plaintiff's dwelling upon lands adjoining, defendant was held liable on the ground of trespass, though no negligence or want of still in executing the work was alleged or proved against him. Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; Tremain v. Cohoes Co., 2 N. Y. 163, 51 Am. Dec. 284. And the same rule has been applied where the blasting cast a piece of wood upon a person lawfully traveling along the public highway. Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274. But see Holmes v. Mather, L. R. 10 Ex. 261; Stanley v. Powell [1891] 1 Q. B. 86. But where the result of blasting is to injure adjacent property by concus- sion and vibration only, without casting any material on the premises, negl\- GENERAL PRINCIPLES. 119 gence In blasting must be proved, to afford a cause of action. Benner v. At- lantic Dredging Co., 134 N. Y. 156, 31 N. B. 328, 17 L. R. A. 220, 30 Am. St Rep. 649; Booth v. Rome, W. & O. T. R. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552, reported supra, at p. 51. The doctrine laid down in Bessey v. Olliot, and asserted in other early decisions, that "in civil acts the law doth not so much regard the intent of the actor as the loss and damage of the party suffering," is discussed in Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372, and Stanley ?. Powell, supra, aiid its accordance with modern law considered.) (19 Johns. 381, 10 Am. Dec. 234.) GUILLE v. SWAN. (Supreme Court of New York. January, 1822.) TBESPASS TO LAND INTENT. A balloon in which defendant had ascended near plaintiff's garden de- scended into the garden, with defendant's body hanging out of the car, so that he was In much danger. He called for help, and a crowd of persons broke into the garden, and plaintiff's vegetables and flowers were beaten down by the balloon and by the people. Held, that defendant was liable for all the damage so sustained by plaintiff, although the injury done by himself was involuntary, and although his ascending In the balloon was not an unlawful act. Certiorari to review a judgment of a justice of the peace. Action of trespass by Swan against Guille. Defendant had ascended in a balloon in the vicinity of plaintiff's garden, but the bal- loon descended into the garden, and defendant, whose body was hanging out of the car in a very perilous position, called for help to a person working in plaintiff's field. More than 200 people broke through plaintiff's fences into his garden, and his vegetables and flowers were trodden and beaten down by them, and by the balloon, which dragged over them about 30 feet, when defendant was taken out. The damage done by defendant and his balloon amounted to about $15, but the crowd did much more, and the total damage to plaintiff was $90. At the trial before a justice of the peace, he in- structed the jury that defendant was liable for the damage done to plaintiff by the crowd as well as that done by defendant himself. The jury found a verdict for plaintiff for $90, and judgment for plain- tiff was entered thereon. To review the judgment plaintiff brought certiorari. SPENCER, C. J. The counsel for the plaintiff in error supposes that the injury committed by his client was involuntary, and that done by the crowd was voluntary, and that, therefore, there was no union of intent ; and that, upon the same principle which would ren- der Guille answerable for the acts of the crowd, in treading down and 120 LAW OP TORTS. destroying the vegetables and flowers of S., he would be responsible for a battery or a murder committed on the owner of the premises. The intent with which an act is done is by no means the test of the liability of a party to an action of trespass. If the act cause the im- mediate injury, whether it was intentional or unintentional, trespass is the proper action to redress the wrong. It was so decided, upon a review of all the cases, in Percival v. Hickey, 18 Johns. 257, 9 Am. Dec. 210. Where an immediate act is done by the co-operation or the joint act of several persons, they are all trespassers, and may be sued jointly or severally ; and any one of them is liable for the injury done by all. To render one man liable in trespass for the acts of others, it must appear, either that they acted in concert, or that the act of the individual sought to be charged ordinarily and naturally pro- duced the acts of the others. The case of Scott v. Shepherd, 2 W. Bl. 892, is a strong instance of the responsibility of an individual who was the first, though not the immediate, agent in producing an injury. Shepherd threw a lighted squib, composed of gunpowder, into a market-house where a large concourse of people were assembled. It fell on the standing of Y., and, to prevent injury, it was thrown off his standing, across the market, where it fell on another standing. From thence, to save the goods of the owner, it was thrown to an- other part of the market-house, and, in so throwing it, it struck the plaintiff in the face, and, bursting, put out one of his eyes. It was decided, by the opinion of three judges against one, that Shepherd was answerable in an action of trespass and assault and battery. De Grey, C. J., held that throwing the squib was an unlawful act, and that, whatever mischief followed, the person throwing it was the au- thor of the mischief. All that was done subsequent to the original throwing was a continuation of the first force and first act. Any in- nocent person removing the danger from himself was justifiable ; the blame lights on the first thrower; the new direction and new force flow out of the first force. He laid it down as a principle that every one who does an unlawful act is considered as the doer of all that fol- lows. A person breaking a horse in Lincolns-Inn-Fields hurt a man, and it was held that trespass would lie. In Learne v. Bray, 3 East, 595, Lord Ellenborough said : "If I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue, I am answerable in trespass; and if one," he says, "put an animal or carriage in motion, which causes an immediate injury to another, he is the actor, the causa causans." I will not say that ascending in a balloon is an unlawful act, for it is not so ; but it is certain that the aeronaut has no control over its mo- tion horizontally. He is at the sport of the winds, and is to descend when and how he can. His reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below, at a short dis- tance from the place where he ascended. Now, if his descent, under GENERAL PRINCIPLES. 121 such circumstances, would ordinarily and naturally draw a crowd of people about him, either from curiosity, or for the purpose of rescu- ing him from a perilous situation, all this he ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help or not is immaterial. He had put himself in a situation to -in- vite help, and they rushed forward, impelled, perhaps, by the double motive of rendering aid, and gratifying a curiosity which he had ex- cited. Can it be doubted that, if the plaintiff in error had beckoned to the crowd to come to his assistance, he would be liable for their trespass in entering the inclosure? I think not. In that case they would have been co-trespassers, and we must consider the situation in which he placed himself, voluntarily and designedly, as equivalent to a direct request to the crowd to follow him. In the present case, he did call for help, and may have been heard by the crowd. He is therefore undoubtedly liable for all the injury sustained. Judgment affirmed. (For other cases holding that a wrong Intent is not a necessary element to constitute a tort, see Striegel v. Moore, 55 Iowa, 88, 7 N. W. 413 [trespass to lands]; Carltou v. Henry, 129 Ala. 479, 29 South. 924; Morgan v. O'Daniel [Ky.] 53 S. W. 1040 [assault]; Anderson v. Arnold's Ex'r, 79 Ky. 370; Vosburg v. Putney, 80 Wis. 523, 50 N. W. 403, 14 L. R. A. 226, 27 Am. St. Rep. 47; Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42 [cases of assault and battery]. But in such torts as fraud, malicious prosecution, and other wrongs involving malice, a wrongful intent is necessary [see the cases hereinafter on these top- ics]. That a wrongful intent accompanying a lawful act does not give a cause of action, see supra, pp. 6, 71 ; but that malicious acts, under other circum- stances, will give a cause of action if they occasion damage, see supra, pp. 69, 71.) (61 N. Y. 477.) PEASE et al. v. SMITH et al. (in part). (Court of Appeals of New York. January Term, 1875.) CONVERSION NOTICE OF OWNER'S TITLE INTENT. Where goods were stolen from the owners and sold, the purchasers, by reselling them, were guilty of conversion, though no demand was made for the goods while in their possession, and though they had no knowledge of the title of the real owners. A wrongful intent is not an essential element in a conversion. Appeal from judgment of the General Term of the Supreme Court in the Third Judicial Department. Action for conversion of a quantity of law blanks. Defendants purchased from a junk dealer, Moses K. Perry, the law blanks which had been stolen from plaintiffs by a porter in their em- ploy. Defendants sold the blanks in good faith before any demand was made upon them. A demand was made of the defendants for the value of the blanks before the commencement of the action, but the d - J22 LAW OF TORTS. fendants refused to pay. From a judgment entered on a verdict for plaintiffs (5 Lans. 519), defendants appeal. Affirmed. D WIGHT, C. It is claimed that the judge erred at the trial in re- fusing to grant a nonsuit, because the defendants bought the goods in controversy in the course of trade, and had sold them before any claim was made by the owners. It is insisted by the appellants that it is a pre- requisite to a valid claim for conversion, in such a case, that a demand should have been made for the goods while they were in the defendants' possession, and before their sale, and that there can be no conversion, unless control over the property was exercised with knowledge of the plaintiffs' rights. This proposition is untenable. The assumed sale by the porter of the plaintiffs to Perry was wholly nugatory, and conveyed no title. Saltus v. Everett, 20 Wend. 267, 32 Am. Dec. 541 ; McGoldrick v. Willits, 52 N. Y. 612. On like grounds, the sale by Perry to the defendants was without effect. They were construct- ively in possession of the plaintiffs' property without the consent of the latter. They even sent their own carts to transfer the goods when sold to Allen Bros. This exercise of an act of ownership or dominion over the plaintiffs' property, assuming to sell and dispose of it as their own, was, within reason and the authorities, an act of conversion to their own use. The assumed act of ownership was in- consistent with the dominion of the plaintiffs, and this is of the es- sence of a conversion. Knowledge and intent on the part of the de- fendants are not material. So long as the defendants had exercised no act of ownership over the property, and had acted in good faith, a demand and refusal would be necessary to put them in the wrong and to constitute conversion. Until such demand there is no appar- ent inconsistency between their possession and the plaintiffs' owner- ship. After a sale has been made by the defendants, they have as- sumed to be the owners, and will be estopped to deny, in an action by the lawful owner, the natural consequences of their act, and to resist an action for the value of the goods. The principle is well stated by Alderson, B., in Fouldes v. Willoughby, 8 M. & W. 540: "Any asportation of a chattel for the use of the defendant or a third person amounts to a conversion, for this simple reason, that it is an act in- consistent with the general right of dominion which the owner of a chattel has in it, who is entitled to the use of it at all times and in all places." In the same spirit, "conversion" is defined, in a very recent case, to be an unauthorized act which deprives another of his prop- erty permanently or for an indefinite time. Hiort v. Bott, L. R. 9 Ex. 86 [A. D. 1874]. So, it is said in Boyce v. Brockway, 31 N. Y. 490, that a wrongful intent is not an essential element in a conver- sion. It is enough that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it. See Hollins v. Fowler (House of Lords, July 6, GENERAL PRINCIPLES. 123 1875). No manual taking on the defendant's part is necessary. Bristol v. Burt, 7 J. R. 254; Connah v. Hale, 23 Wend. 462. The case of Harris v. Saunders, 2 Strob. Eq. 370, resembles closely the case at bar. The defendant, having the property of the plaintiff in his own hands by purchase from one who had no title, sold it to an- other, who carried it beyond the plaintiff's reach, and received the purchase money. These acts were held to amount to a conversion, though the defendant was not aware of the plaintiff's title. As, ac- cording to these views, the conversion took place at the moment of the unauthorized sale by the present defendants, no demand was nec- essary, the sole object of a demand being to turn an otherwise lawful possession into an unlawful one, by reason of a refusal to comply with it, and thus to supply evidence of a conversion. Esmay v. Fan- ning, 9 Barb. 176; Vincent v. Conklin, I E. D. Smith, 203; Glassner v. Wheaton, 2 E. D. Smith, 352 ; Munger v. Hess, 28 Barb. 75. After a wrongful taking and carrying away of the property, the cause of action has become complete without further act on the plaintiff's part. Brewster v. Silliman, 38 N. Y. 423; Hanmer v. Wilsey, 17 Wend. 91 ; Otis v. Jones, 21 Wend. 394. On the whole, no error was committed at the trial, and the judg- ment of the court below should be affirmed. All concur. Judgment affirmed. (To the same effect as to conversion are Roe v. Campbell, 40 Hun, 49; Lovell v. Shea, 18 N. Y. Supp. 193 ; Lev! v. Booth, 58 Md. 305, 42 Am. Rep. 332 ; Gore v. Izer, 64 Neb. 843, 90 N. W. 758 ; Johnson v. Martin, 87 Minn. 370, 92 N. W. 221, 59 L. R. A. 733, 94 Am. St Rep. 706 ; Hollins v. Fowler, L. R. 7 H. L. 757.) Same principle; lunatics liable for torts. (121 111. 660, 13 N. E. 239, 2 Am. St. Rep. 140.) McINTYRE v. SHOLTY (in part). (Supreme Court of Illinois. September 27, 1887.) TOBTIOTTS ACTS OF LUNATIC LIABILITY. Though a lunatic is not punishable criminally, he is liable In a civil action for torts committed by him. Hence where a lunatic shot and killed a person, and very soon afterwards died himself, held, that an action was maintainable against his administrator under the statute al- lowing a recovery of damages for an injury causing death. Error to Appellate Court, Third District; Owen T. Reeves, Judge. MAGRUDER, J. This is an action of trespass, brought by de- fendant in error against plaintiff in error, in the circuit court of Me- 124 LAW OF TORTS. Lean county, under the "Act requiring compensation for causing death by wrongful act, neglect, or default ;" being chapter 70 of the Revised Statutes, entitled "Injuries." Kurd, Rev. St. 1885, p. 695. Jury was waived by agreement, and the case was tried without a jury before the judge of the circuit court, who gave judgment for the plaintiff for $2,500. This judgment has been affirmed by the appel- late court, and is brought before us for review by writ of error to the latter court. Hannah Sholty was the wife of Levi Sholty, a farmer living in Mc- Lean county, near Bloomington. About February 17, 1886, a work- ing-man upon Levi Sholty's farm discovered a man in the barn, who, to all appearances, had been concealing himself there for some time. The person so concealed is proven to have been defendant's intestate, Benjamin D. Sholty, a brother of Levi Sholty. Some efforts seem to have been made on February I7th or i8th to get the officers of the law in Bloomington to go out to the farm and arrest Benjamin D. Sholty, called by the witness David Sholty. This effort, however, failed. Accordingly, Levi Sholty and his hired man, and a number of his neighbors, gathered at his house on the afternoon of February 18, 1886, for the purpose of watching for the intruder, and getting him out of his hiding-place. The barn was 40 or 50 feet wide, and from 80 to 100 feet long. It was situated about 150 or 200 feet north- west from the house. The granary was in the western end of the barn, and in the end that was furthest from the house. About 6 o'clock in the evening, David Sholty was discovered in the granary by his brother Levi and one McCoy, who were on watch just outside of the granary door. He shot at them twice with a pistol, while they were trying to prevent, his escape, and to capture him. Others who were waiting in the house came to their assistance. A rope was ob- tained, with the intention of tying him, if captured. Presently there was a cry of fire, and the flames were seen to be breaking out at the eastern end of the barn, being the end nearest towards the house. At this time Mrs. Hannah Sholty, plaintiff's intestate, went from the house towards the barn, and had advanced about half of the distance between the two, when David Sholty appeared in the door at the east- ern end of the barn, with a shot-gun. He was plainly visible in the light made by the fire that had broken out. He called upon Mrs. Sholty and her daughter Mary, who was with her, to stop. They stopped, turned, and had advanced a few feet on their way back to- wards the house, when David Sholty fired at them with the gun in his hand. Both were shot. The daughter was wounded in the wrist, and the mother was killed. This action is brought by her husband, as administrator of her estate, to recover damages for her death, against the administrator of the estate of David Sholty, who is said to have perished in the flames of the burning barn. GENERAL PRINCIPLES. 125 The defendant introduced no testimony, except that the examina- tion of one witness was begun, and abandoned, after a few prelim- inary questions, on account of the ruling of the court as hereafter stated. The defense proposed to show by the witness on the stand, and by others there present in court, that defendant's intestate, Ben- jamin D. Sholty, was insane at the time Mrs. Sholty was killed. The court refused to receive evidence of his insanity, and exception was taken to the ruling. The question presented relates to the liability of an insane person for injuries committed by him. It is well settled that, though a lunatic is not punishable criminally, he is liable in a civil action for any tort he may commit. However justly this doctrine may have been originally subject to criticism, on the grounds of reason and principle, it is now too firmly supported by the weight of authority to be disturbed. It is the outcome of the principle that in trespass the intent is not conclusive. Mr. Sedgwick, in his work on Damages, (marg. page 456,) says that, on principle, a lunatic should not be held liable for his tortious acts. Opposed to his view, however, is a majority of the decisions and text writers. There certainly can be nothing wrong or unjust in a verdict which merely gives compensation for the actual loss resulting from an in- jury inflicted by a lunaHc. He has properly no will. His acts lack the element of intent, or intention. Hence it would seem to follow that the only proper measure of damages in an action against him for a wrong, is the mere compensation of the party injured. Punish- ment is not the object of the law when persons unsound in mind are the wrong-doers. There is, to be sure, an appearance of hardship in compelling one to respond for that which he is unable to avoid, for want of the control of reason. But the question of liability in these cases is one of public policy. If an insane person is not held liable for his torts, those interested in his estate, as relatives, or otherwise, might not have a sufficient motive to so take care of him as to de- prive him of opportunities for inflicting injuries upon others. There is more injustice in denying to the injured party the recovery of dam- ages for the wrong suffered by him, than there is in calling upon the relatives or friends of the lunatic to pay the expense of his confine- ment, if he has an estate ample enough for that purpose. The lia- bility of lunatics for their torts tends to secure a more efficient cus- tody and guardianship of their persons. Again, if parties can escape the consequences of their injurious acts upon the plea of lunacy, there \vill be a strong temptation to simulate insanity, with a view of masking the malice and revenge of an evil heart. The views here expressed are sustained by the following authorities : Cooley, Torts, 99-103: 2. Saund. PI. & Ev. 318; Shear. & R. Neg. 57; Weaver v. Ward, Hob. 134; Morse v. Crawford, 17 Vt. 499, 44 Am. Dec. 349; Behrens v. McKenzie, 23 Iowa, 333, 92 Am. Dec. 428; Krom v, Schoonmaker, 3 Barb. 647 ; also cases in note to said case, in Ewel! 126 LAW OF TORTS. Lead. Cas. 642. In the light of the principles thus announced we find no error in the ruling of the circuit court upon this subject. Judgment affirmed. (The same is held In the following cases: Williams v. Hays, 143 N. Y. 442, 38 N. B. 449, 26 L. R. A. 153, 42 Am. St. Rep. 743 [cf. S. C. 157 N. Y. 541, 52 N. E. 589, 43 L. R. A. 253, 68 Am. St. Rep. 797]; Jewell v. Colby, 66 N. H. 399, 24 Atl. 902; Holdom v. Ancient Order of United Workmen, 159 111. 619, 43 N. E. 772, 31 L. R. A. 67, 50 Am. St. Rep. 183. In Williams v. Hays, supra, it is said: "The general rule is that an insane person is just as responsible for his torts as a sane person, and the rule applies to all torts, except perhaps those In which malice, and therefore Intention, actual or imputed, is a necessary ingredient, like libel, slander, and malicious prosecution." Irvine v. Gibson [Ky ] 77 S. W. 1106, is a recent case holding that an insane person is not lia- ble for slander.) (132 Mass. 87, 42 Am. Rep. 423.) MORAIN v. DEVLIN. (Supreme Judicial Court of Massachusetts. January 3. 1882.) NEGLIGENCE DANGEROUS PBEMISES INSANITY OF OWNER. The owner of a building may be liable for personal injuries to another caused by the defective condition of the building, although such owner is insane, and although a guardian has been appointed for him and has the care and management of his estate. Exceptions from Superior Court. Action of tort by Sophia Morain against Margaret Devlin, for per- sonal injuries to plaintiff, alleged to have been caused by a defect in a door-step of a tenement building belonging to defendant. At the trial it was admitted that, since a time several years before the acci- dent to plaintiff, defendant had been insane, and had been confined in a hospital for lunatics ; and that, at that time, a guardian for defend- ant had been appointed, who had ever since held the appointment, and had had the care and management of all the property of defend- ant. Said guardian was also appointed guardian ad litem for defend- ant. A request was presented to the judge, on behalf of defendant, for an instruction to the jury that, on these facts, as a matter of law, the action could not be sustained, but the request was refused. The jury found a verdict for plaintiff. Defendant alleged exceptions to the refusal to give the instruction requested. GRAY, C. J. By the common law, as generally stated in the books, a lunatic is civilly liable to make compensation in damages to persons injured by his acts, although, being incapable of criminal in- tent, he is not liable to indictment and punishment. Bac. Max. reg. 7; Weaver v. Ward, Hob. 134; 2 Rolle, Abr. 547; I Hale, P. C. 15, 16; I Hawk, c. I, 5; Bac. Abr. "Idiots & Lunatics," E; Haycraft GENERAL PRINCIPLES. 127 v. Creasy, 2, East, 92, 104 ; I Chit. PL (2d Amer. Ed.) 65 ; Morse v. Crawford, 17 Vt. 499, 44 Am. Dec. 349; Cross v. Kent, 32 Md. 581 ; Ward v. Conatser, 4 Baxt. 64; Bullock v. Babcock, 3 Wend. 391, 393, 394 ; Behrens v. McKenzie, 23 Iowa, 333, 343, 92 Am. Dec. 428 ; Bank v. Moore, 78 Pa. 407, 412, 21 Am. Rep. 24. See, also, Dickinson v. Barber, 9 Mass. 225, 6 Am. Dec. 58; Brown v. Howe, 9 Gray, 84, 85, 69 Am. Dec. 276. But this case does not require the affirmance of so broad a proposition. This is not an action for a wrong done by the personal act or neglect of the lunatic, but for an injury suffered by reason of the defective condition of a place, not in the exclusive occupancy and control of a tenant, upon real estate of which the lunatic himself, and not his guardian, is the owner. Harding v. Larned, 4 Allen, 426; Harding v. Weld, 128 Mass. 587, 591. The owner of real estate is liable for such a defect, although not caused by his own neglect, but by that of persons acting in his behalf or un- der contract with him. Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295; Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 234; Bart- lett v. Gas-Light Co., 117 Mass. 533, 19 Am. Rep. 421. And there is no precedent and no reason for holding that a lunatic, having the benefits, is exempt from the responsibilities of ownership of real es- tate. The ruling requested was therefore rightly refused. Exceptions overruled. MORTON and ALLEN, JJ., absent. There is, however, no liability in tort for purely acci- dental injuries. (6 Cush. 292.) BROWN v. KENDALL (in part). (Supreme Judicial Court of Massachusetts. October Term, 1850.) ASSAULT AND BATTERY ACCIDENTAL INJURY. Defendant, while endeavoring to part fighting dogs, one of which was his own, by striking them with a stick, retreated backwards before them towards the place where plaintiff, the owner of the other dog, had been standing, plaintiff at the same time advancing a step or two towards them; and defendant, in raising his stick to strike the dogs, plaintiff being be- hind him, unintentionally struck plaintiff in the eye with the stick, causing a severe injury. Held, that defendant's act in attempting to part the dogs was lawful and proper, and if, in doing it, he used due care and all proper precautions to avoid hurt to others, the injury to plaintiff was the result of pure accident, or was involuntary and unavoidable, and defendant was not liable therefor. 128 LAW OF TORTS. Exceptions from Court of Common Pleas ; Wells, C. J. Action of trespass by George Brown against George K. Kendall for assault and battery. Pending the suit defendant died, and his executrix was substituted. At a trial it appeared from the evidence that while two dogs, belonging, respectively, to plaintiff and to de- fendant, were fighting, defendant, in order to separate them, took a stick and began beating them. Plaintiff was also present, and look- ing on, at the distance of about a rod from the dogs, and advanced a step or two towards them. The dogs, as they struggled together, also approached plaintiff, and defendant retreated backwards from them, striking them with the stick. As defendant thus approached plaintiff, having his back towards the latter, in raising his stick over his shoulder to strike the dogs the stick accidentally struck plaintiff in the eye, and injured it severely. Defendant requested the judge to instruct the jury that, "if both the plaintiff and defendant at the time of the blow were using ordinary care, or if at that time the defendant was using ordinary care and the plaintiff was not, or if at that time both plaintiff and defendant were not using ordinary care, then the plaintiff could not recover." The judge declined to give these instruc- tions. The jury found a verdict for plaintiff. Defendant alleged ex- ceptions. SHAW, C. J. This is an action of trespass vi et armis, brought by George Brown against George K. Kendall, for an assault and bat- tery; and, the original defendant having died pending the action, his executrix has been summoned in. The rule of the common law by which the action would abate by the death of either party is reversed in this commonwealth by statute, which provides that actions of tres- pass for assault and battery shall survive. Rev. St. c. 93, 7. The facts set forth in the bill of exceptions preclude the supposition that the blow inflicted by the hand of the defendant upon the person of the plaintiff was intentional. The whole case proceeds on the same assumption, that the damage sustained by the plaintiff from the stick held by the defendant was inadvertent and unintentional; and the case involves the question how far, and under what qualifications, the party by whose unconscious act the damage was done is responsible for it. We use the term "unintentional" rather than "involuntary," because, in some of the cases, it is stated that the act of holding and using a weapon or instrument, the movement of which is the immedi- ate cause of hurt to another, is a voluntary act, although its particu- lar effect in hitting and hurting another is not within the purpose or intention of the party doing the act. It appears to us that some of the confusion in the cases on this subject has grown out of the long-vexed question, under the rule of the common law, whether a party's remedy, where he has one, should be sought in an action of the case or of trespass. This is very dis- GENERAL PRINCIPLES. 129 tinguishable from the question whether in a given case any action will lie. The result of these cases is that, if the damage complained of is the immediate effect of the act of the defendant, trespass vi et armis lies; if consequential only, and not immediate, case is the proper remedy. Leame v. Bray, 3 East, 593 ; Huggett v. Montgom- ery, (Day's Ed.) 2. Bos. & P. (N. R.) 446, and notes. In these discus- sions, it is frequently stated by the judges that, when one receives in- jury from the direct act of another, trespass will lie. But we think this is said in reference to the question whether trespass and not case will lie, assuming that the facts are such that some action will lie. These dicta are no authority, we think, for holding that damage re- ceived by a direct act of force from another will be sufficient to main- tain an action of trespass, whether the act was lawful or unlawful, and ne : the- willful, intentional, nor careless. In the principal case cited. Leame v. Bray, the damage arose from the act of the defendant in driving on the wrong side of the road, in a dark night, which was clearly negligent, if not unlawful. In the course of the argument of that case, (page 595,) Lawrence, J., said: "There certainly are cases in the books where, the injury being direct and immediate, trespass has beea holden to lie, though the injury was not intentional." The term "injury" implies something more than damage; but, indepen- dently of that consideration, the proposition may be true, because, though the injury was unintentional, the act may have been unlawful or negligent ; and the cases cited by him are perfectly consistent with that supposition. So the same learned judge, in the same case, says (page 597) : "No doubt trespass lies against one who drives a car- riage against another, whether done willfully or not." But he imme- diately adds: "Suppose one who is driving a carriage is negligent, and heedlessly looking about him, without attending to the road when persons are passing, and thereby runs over a child and kills him, is it not manslaughter? And, if so, it must be trespass; for every manslaughter includes trespass ;" showing what he understood by a case not willful. We think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf that the plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the defendant was in fault ; for if the injury was unavoidable, and the con- duct of the defendant was free from blame, he will not be liable. 2. Greenl. Ev. 85-92; Wakeman v. Robinson, i Bing. 213. If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. Davis v. Saunders, 2 Chit. 639; Com. Dig. "Battery," A, (Day's Ed.,) and notes ; Vincent v. Stinehour, 7 Vt. 62. In applying these rules to the present case, we can perceive no reason why the instructions asked for by the defendant ought not to have been given, to this effect, that if both plaintiff and defendant at the time of the blow were using or- CHASE(2o ED.) 9 130 LAW OF TORTS. dinary care, or if at that time the defendant was using ordinary care, and the plaintiff was not, or if at that time both the plaintiff and de- fendant were not using ordinary care, then the plaintiff could not re- cover. In using this term "ordinary care," it may be proper to state that what constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care which pru- dent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable dan- ger. A man who should have occasion to discharge a gun, on an open and extensive marsh, or in a forest, would be required to use less circumspection and care than if he were to do the same thing in an inhabited town, village, or city. To make an accident, or casu- alty, or, as the law sometimes states it, inevitable accident, it must be such an accident as the defendant could not have avoided by tne use of the kind and degree of care necessary to the exigency, and in the circumstances in which he was placed. We can have no doubt that the act of the defendant in attempting to part the fighting dogs, one of which was his own, and for the injurious acts of which he might be responsible, was a lawful and proper act, which he might do by proper and safe means. If, then, in doing this act, using due care and all proper precautions necessary to the exigency of the case to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in his eye, and wounded him, this was the result of pure accident, or was involun- tary and unavoidable, and therefore the action would not lie. New trial ordered. (Other important cases holding that there Is no liability in tort for purely accidental injuries are Stanley v. Powell [1891] 1 Q. B. 86; Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372; Cleveland v. N. J. Steamboat Co., 125 N. Y. 299, 26 N. E. 327; Hollenbeck v. Johnson, 79 Hun, 499, 29 N. T. Supp. 945; Morris v. Platt, 32 Conn. 75 ; Ford v. Whiteman, 2 Pennewill (Del.) 355, 45 Atl. 543 ; Nitro-Glycerine Case, 15 Wall. 524, 21 L. Ed. 206 ; Brown v. Boom Co., 109 Pa. 57, 1 Atl. 156, 58 Am. Rep. 708; Wall v. Lit, 195 Pa. 375, 46 Atl. 4; Lan- sing v. Stone, 37 Barb. 15; Washington, C. & A. Turnpike r. Case, 80 Md. 36, 30 AtL 571.) (Hill & D. Supp. 193.) HARVEY v. DUNLOP. (Supreme Court of New York. 1843.) 1. INEVITABLE ACCIDENT. There is no liability at law for an injury arising from Inevitable acci- dent, or for an act which ordinary human care and foresight are unable to guard against GENERAL PRINCIPLES. 131 2. SAME PERSONAL INJURIES. Accordingly, in an action for throwing a stone at the plaintiff's daugh- ter and putting out her eye, where it did not appear that the injury was Inflicted by design or carelessness, but, on the contrary, that it was purely accidental, held, that the plaintiff could not recover. Action of trespass against defendant, a boy of six years, for throw- ing a stone at plaintiff's daughter (Clementine), who was about five years of age, and putting out her eye. Defendant admitted throwing the stone, but it did not appear whether this was done through accident or design. Verdict for defendant, and plaintiff moved for a new trial. Denied. NELSON, C. J. I am of opinion that the grounds upon which the learned judge placed the case before the jury were correct. No- case or principle can be found, or if found can be maintained, subject- ing an individual to liability for an act done without fault on his part, and this was substantially the doctrine of the charge. All the cases concede that an injury arising from inevitable accident, or, which in law or reason is the same thing, from an act that ordinary human care and foresight are unable to guard against, is but the misfortune of the sufferer, and lays no foundation for legal responsibility. Thus it is laid down that "if one man has received a corporal injury from the voluntary act of another an action of trespass lies, provided there was a neglect or want of due caution in the person who did the in- jury, although there was no design to injure." Bac. Abr. tit. "Tres- pass," D. But if not imputable to the neglect of the party by whom it was done, or to his want of caution, an action of trespass does not lie, although the consequences of a voluntary act. Weaver v. Ward, Hob. 134; Gibbons v. Pepper, 4 Mod. 405. It was said by Dallas, C. J., in Wakeman v. Robinson, I Bingh. 213, "if the accident happened entirely without default on the part of the defendant, or blame im- putable to him, the action does not lie"; and the same principle is recognized in Bullock v. Babcock, 3 Wend. 391. But it is said that, inasmuch as the defendant admitted the injury to have been inflicted by him, it should be presumed to have been done wrongfully or carelessly, and that the onus lay upon him to show the contrary. This is undoubtedly a sound general principle, and the plaintiff is entitled to the full benefit of it ; but it was for the jury to determine, upon the facts and circumstances before them, whether or not the defendant was in the wrong. In order to arrive at a decision upon this question, the jury had a right to take into con- sideration the childhood of the parties, the friendly relations existing between them, the conduct of both on their return home, but more especially the repeated admissions of the plaintiff that the defendant was not to blame. The latter fact was very material, and must and should have produced a strong impression upon the minds of the 132 I'AW OF TORTS. jury in the absence of the testimony of Clementine, because the nat- ural inference to be drawn from the declarations was that the plaintiff had received the information upon which they were based from his daughter's account of the transaction, and had frankly disclosed it though the admissions operated against his own interest. These ad- missions, taken in connection with the other facts and circumstances in the case, were undoubtedly decisive of the true character of the transaction, and they conduct us satisfactorily to the same conclusion arrived at by the jury, that the misfortune happened without fault on either side, and that it was one of those unhappy accidents to which children of the tender age of these parties are not infrequently ex- posed in their little innocent plays and amusements a result rather to be deplored than punished. New trial denied. An action upon tort lies for the breach of a right or duty created by law, even though the performance of such right or duty may have been assumed by contract. In such cases the plaintiff may either sue ex contractu or ex delicto. (61 Md. 619, 48 Am. Rep. 134.) BALTIMORE CITY PASS. RY. CO. v. KEMP et ux. (Court of Appeals of Maryland. July 3, 1884.) 1. NEGLIGENCE REMOTE CONSEQUENCES QUESTION FOB JURY. By the alleged negligence of a railway company, a woman, previously in good health, was injured, while a passenger on its railway, by a blow upon the breast, which thereafter continued to be sore, until, within two or three weeks, a cancer appeared there. There was evidence that such a blow might be sufficient to cause the development of cancer, although the origin of a cancer, in any particular case, cannot be certainly known. Held, that the question whether the cancer was the result of the injury was one for the jury, upon the facts. 2. SAME BREACH OF DUTY ARISING FROM CONTRACT ELECTION OF REMEDY. A common carrier of passengers owes, to a person accepted to be car- ried, a duty to be careful, irrespective of contract, the violation of which duty is a tort, giving a right of action; and while a passenger may sue for a breach of contract, where there is one, he may, at his election, pro- ceed as for a tort, where personal injury has been suffered by the negli- gence or wrongful act of the carrier or his agents. Motion for reargument of appeal from circuit court, Howard coun- ty. See 61 Md. 74. Action by Charles E. Kemp and Adaline Kemp, his wife, against the Baltimore City Passenger Railway Company, for personal inju- GENERAL PRINCIPLES. 133 ries to the wife, alleged to have been caused by the negligence of de- fendant. Evidence tending to show that a cancer, from which the wife suffered, was the result of the injury, was given at the trial, and its substance was stated, in the opinion of the court on the hearing of the appeal, as follows : "The evidence shows, clearly and without contradiction, that Mrs. Kemp was, at the time of the accident, and for many years prior thereto, apparently in good health and condi- tion. The accident occurred about the middle of May, 1880, and a very short time thereafter the cancer commenced its development on the injured part of her person. In her testimony, after describing the manner in which the accident occurred, and how she was thrown against the railing on the platform of the car, as she was about get- ting off, and the hurting of her right arm and left breast, she'states that the right arm was bruised and discolored ; and where the breast was struck it was sore, and remained so from that time out. Prior to that time she had no pain or soreness; and two or three weeks afterwards a small lump appeared in the left breast, which, upon be- ing shown to her physicians, was pronounced to be a cancer. Dr. Smith first operated for its removal on the 8th of November, 1880, when it was about the size of an orange, and he operated again about the I2th of January, 1881, when the entire breast was removed, but without success in extirpating the roots of the disease. The cancer still remains, and is pronounced to be incurable. The two daughters of Mrs. Kemp, in their testimony, fully corroborate the statement of their mother in regard to her previous good health, and apparent freedom from disease, and the subsequent appearance and growth of the cancer. And the professional witnesses, while they all testify that it is impossible to know and be certain as to the origin of cancer in any given case, yet they all agree in saying that the blow, such as that described by Mrs. Kemp, was sufficient and may have been the cause of the development of cancer in her case. In the opinion of two of the physicians, Dr. Latimer and Dr. Turner, the blow on the breast, as described by Mrs. Kemp, was not only sufficient cause for the pro- duction of the cancer, but they would attribute the cancer to that cause ; and, from the coincidences of the case, we must say that their opinion does not appear to be unreasonable." Defendant offered prayer for instructions to the jury, one of which was as follows : "That there is no legally sufficient evidence that the cancer, testified to by the witnesses in this case, was caused by the negligence of the defendant or its servants, and therefore the jury cannot take the same into consideration in estimating the damage done to the plaintiff, Mrs. Kemp, by the negligence of the defendant or its servants, even if they shall find that there was such negligence." This the court rejected, and granted the plaintiff's prayer for instruc- tions, and defendant excepted. The jury found a verdict for plaintiff for $10,000, and judgment for plaintiff was entered thereon. De- 134 LAW OF TORTS. fendant appealed from the judgment. On the hearing of the appeal, the court rendered an opinion affirming the judgment. Thereafter defendant moved for a reargument of the appeal. ALVEY, C. J. There has been a motion made in this case for re- argument, based largely upon authorities that were not brought to the attention of the court on the former hearing, and hence we depart from the general practice of disposing of such motions without the formal assignment of reasons for the action of the court thereon. Upon the question whether the jury should have been allowed to infer, upon the evidence before them, that cancer was the result of the injury received by the plaintiff, the defendant cites and relies upon the case of Jewell v. Railway Co., 55 N. H. 84, a case not referred to on the former argument. But the facts of that case are so entirely different from those of the case before us that the analogy between the two cases is but slight. In the first place, the party whose negli- gence caused the injury in that case was not, according to the deci- sion of the court, the servant or employee of the defendant, and there- fore the defendant was not liable for his acts. In the second place, there was a considerable length of time intervening between the time of the accident and the death of the party, the latter in the meantime being engaged in hard work, and subjected to much exposure, and all the circumstances of the case rendered it exceedingly doubtful whether there could be any connection between the injury received by a blow on the right shoulder, and a cancer that was found to ex- ist, by a post mortem examination, in the left lung of the party, a year and a half after the injury received. And the physicians all tes- tified that, in their opinion, neither the last sickness of the party nor the cancer was in any way attributable to the injury previously re- ceived. The court, moreover, considered and determined the case upon the weight of evidence, as upon motion for a new trial, and not as upon a demurrer to the legal sufficiency of the evidence to be sub- mitted to the jury, as in the case before us. The other cases cited upon this question have only a remote or indirect bearing, and we do not perceive that they are at all in conflict with the opinion that has been delivered in this case. Since the opinion in this case was delivered, 50 Mich, has been published, and that volume contains the case of Beauchamp v. Min- ing Co., at page 163, 15 N, W. 65, 45 Am. Rep. 30. In that case a boy, while passing on a highway, was injured by being struck on the side of his head by a stone from a blast fired by the mining company, and, having died some five or six months thereafter, an action was brought to recover damages for his death, caused, as it was alleged, by the negligence of the defendant. Among other defenses, it was alleged, and evidence was given to show, that death was not caused by the injury, but by specific or typical pneumonia ; and the case was GENERAL PRINCIPLES. 135 sought to be taken from the jury upon the ground that pneumonia, and not the injury received from the stone, was the direct and proxi- mate cause of the death. The physician who attended the boy in his sickness testified that he died of pneumonia, though he had been very seriously injured, and was paralyzed on one side, and the chances of recovery were against him. The doctor said in his testimony: "I am unprepared to say what caused pneumonia in this case. In my opinion, it was a specific or typical pneumonia ; the relation between it and the injured head was not close." It was contended, however, for the plaintiff, that, owing to the broken and shattered condition of the boy's system, caused by the injury received, and his increased susceptibility to cold, pneumonia was superinduced and developed as a natural result of the injury; and that question was submitted to the jury upon the evidence, and they found for the plaintiff. The case was taken to the supreme court of Michigan, and the error assigned was the submission of the question to and allowing the jury to con- clude as to whether pneumonia did in fact result from and was a con- sequence of the injury received by the boy. The supreme court af- firmed the ruling of the court below, and held that, "if the injury re- ceived and sickness following concurred in and contributed to the at- tack of pneumonia, the defendant must be held responsible therefor." And so in this case : If the injury received by Mrs. Kemp, by the negligence of the defendant, superinduced and contributed to the production or development of cancer, the defendant is responsible therefor ; and the cancer is not to be treated as an independent cause of injury or suffering, any more than pneumonia, resulting from an injury that rendered the system susceptible of and liable to the at- tack, as a natural consequence of such injury, is to be regarded as an independent cause of death. In both cases the original injury was the prime cause that opened the way to and set other causes in mo- tion, which led to the fatal results. And the wrong-doer cannot be allowed to apportion the measure of his responsibility to the initial cause. Whether the direct causal connections exist is a question, in all cases, for the jury, upon the facts in proof. There is another ground upon which reargument of the case is asked, and that is with respect to the nature of the action, and for what nature and extent of injury damages may be allowed to be re- covered therein. The defendant insists that, while the form of action is as for a tort, yet the real ground of the right to recover in this case is simply for breach of the contract to carry safely, and to put the party down safely. And that being so, according to the contention, it is insisted that, to entitle the plaintiff to damages by reason of a breach of the contract, the injury for which compensation is asked should be shown to be such that it may fairly be taken to have been contemplated by the parties as the possible result of the breach of the contract ; and that, in this case, no such consequence as the ?ro- 136 LA W OF TORTS. duction of cancer in the plaintiff could have been anticipated as the probable result of the negligent act of the defendant. But to this proposition we cannot agree, and, in our opinion, it is not supported by authority. A common carrier of passengers, who accepts a party to be car- ried, owes to that party a duty to be careful, irrespective of contract ; and the gravamen of an action like the present is the negligence of the defendant. The right to maintain the action does not depend upon contract, but the action is founded upon the common-law duty to carry safely ; and the negligent violation of that duty, to the dam- age of the plaintiff, is a tort or wrong which gives rise to the right of action. Bretherton v. Wood, 3 Brod. & B. 54. If this were not so, the passenger would occupy a more unfavorable position in refer- ence to the extent of his right to recover for injuries than a stranger; for the latter, for any negligent injury or wrong committed, can only sue as for a tort, and the measure of the recovery is not only for the actual suffering endured, but for all aggravation that may attend the commission of the wrong; whereas, in the case of a passenger, if the contention of the defendant be supported, for the same character of injury, the right of recovery would be more restricted. The principle of these actions against common carriers of passengers is well illus- trated by the case of a servant whose fare had been paid by the mas- ter, or the case of a child for whom no fare is charged. In both of the cases mentioned, though there is no contract as between the car- rier and the servant, or as between the carrier and the child, yet both servant and the child are passengers, and for any personal injuries suffered by them, through the negligence of the carrier, it is clear they could sue and recover; but they could only sue as for a tort. The authorities would seem to be clear upon the subject, and leave no room for doubt or question. In the case of Marshall v. Railroad Co., II C. B. 655, in discussing the ground of action against a common carrier, Jervis, C. J., said: "But upon what principle does the action lie at the suit of the servant for his personal suffering? Not by reason of any contract between him and the company, but by reason of a duty implied by law to carry him safely." And in the same case Mr. Justice Williams said: "The case was, I think, put upon the right footing by Mr. Hill, when he said that the question turned upon the inquiry whether it was nec- essary to show a contract between the plaintiff and the railroad com- pany. His proposition was that this declaration could only be sus- tained by proof of a contract to carry the plaintiff and his luggage for hire and reward to be paid by the plaintiff, and that the traverse of that part of the declaration involves a traverse of the payment by the plaintiff. I am of opinion that there is no foundation for that proposition. It seems to me that the whole current of authorities, beginning with Govett v. Radnidge, 3 East, 62, and ending with Pozzi GENERAL PRINCIPLES. 137 v. Shipton, 8 Adol. & E. 963, establishes that an action of this sort is, in substance, not an action of contract, but an action of tort against the company as carrier." And in the subsequent case of Austin v. Railway Co., L. R. 2 Q. B. 442, Mr. Justice Blackburn, now Lord Blackburn, in delivering his judgment in that case, said: "I think that what was said in the case of Marshall v. Railroad Co., II C. B. 655, was quite correct. It was there laid down that the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely." And to the same effect, and with full approval of the authorities just cited, are the cases of Foulkes v. Railway Co., 4 C. P. Div. 267, and the same case on appeal, 5 C. P. Div. 157, and Fleming v. Railway Co., 4 Q. B. Div. 81. The case of Bretherton v. Wood, 3 Brod. & B. 54, is a direct authority upon the question. A passenger may, without doubt, declare for a breach of contract, where there is one ; but it is at his election to proceed as for a tort, where there has been personal injury suffered by the negligence or wrongful act of the carrier, or the agents of the company; and, in such action, the plaintiff is entitled to recover according to the princi- ples pertaining to that class of actions, as distinguished from actions on contract. And this is the settled doctrine and practice in this state. Stockton v. Frey, 4 Gill, 406, 45 Am. Dec. 138; Railroad Co. v. Blocher, 27 Md. 277, 287 ; Turnpike Road v. Boone, 45 Md. 344 ; Stokes v. Saltonstall, 13 Pet. 181, 10 L. Ed. 115. The motion for re- argument must be overruled. (Both the propositions laid down in this case are well supported by author- ity. Thus, I. If a personal injury to plaintiff by defendant directly causes a diseased condition, as, e. g., cancer, or rheumatism, or hernia, or ulcers, or congestion, etc., and from this directly results another disease, naturally su- pervening, as pneumonia, or pleurisy, or paralysis, etc., or if death is a natu- ral result of the original or supervening disease, the defendant is liable for these consequences; and that, too, though the plaintiff was of delicate health or constitution, or infirm, or had a predisposition to the disease which resulted from the injury; as, however, the causes of disease are often obscure or diffi- cult to trace, the question whether the injury was the cause of the disease or death is ordinarily, as in the principal case, considered one for the jury. Crane Elevator Co. v. Lippert, 63 Fed. 942, 11 C. C. A. 521; Bishop v. St. Paul R. Co., 48 Minn. 26, 50 N. W. 927; Terre Haute & I. R. Co. v. Buck, 90 Ind. 346, 49 Am. Rep. 168; Louisville, N. A. & C. R. Co. v. Falvey, 104 Ind. 409, 3 N. E. 389, 4 N. E. 908; Brashear v. Traction Co., 180 Pa. 392, 36 Atl. 914; Tice v. Munn, 94 N. Y. 621; Lyons v. Second Ave. R. Co., 89 Hun, 374, 35 N. Y. Supp. 372, affirmed 152 N. Y. 654, 47 N. E. 1109; McNaruara v. Clinton ville, 62 Wis. 207, 22 N. W. 472, 51 Am. Rep. 722; Freeman v. Mercantile Mut Ace. Ass'n, 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753. So if the person injured employs a competent physician or surgeon, who, however, treats the case un- skillfully, whereby increased suffering, or even death, results, the party caus- ing the injury is responsible for these effects. Sauter v. N. Y. C. & H. R. Co., 66 N. Y. 50, 23 Am. Rep. 18; Tuttle v. Farmington, 58 N. H. 13; Stover v. Bluehill, 51 Me. 439; Loeser v. Humphrey, 41 Ohio St 378, 52 Am. Rep. 86; 138 LAW OF TORTS. Pullman Car Co. v. Bluhm, 109 111. 20, 50 Am. Rep. 601; Nagel v. Mo. Pac. R. Co., 75 Mo. 653, 42 Am. Rep. 418. But where a passenger was injured by a collision between railroad trains, and in consequence became insane, and eight months afterwards committed suicide, it was held that not the injury, but his own act, was the proximate cause of his death. Scheffer v. Railroad Co., 105 U. S. 249, 26 L. Ed. 1070; cf. Washington & G. R. Co. v. Hickey, 166 U. S. 521, 17 Sup. Ct 661, 41 L. Ed. 1101; Seifter v. Brooklyn Heights R. Co., 169 N. Y. 254, 62 N. E. 349 ; Sullivan v. Tioga R. Co., 112 N. Y. 643, 20 N. E. 569, 8 Am. St. Rep. 793. II. Though, in general, a liability arising in contract must be enforced by an action ex conlractu, and a liability arising in tort by an action ex delicto, yet there is an intermediate class of cases in which there may be a choice between these forms of remedy. Thus a certain relation between parties may be created by contract, as, e. g., of carrier and passenger, of attorney and client, of physician and patient, of master and servant, etc.; and then, as the law prescribes, upon the creation of such a relation, what the respective duties of the parties are, an action ex delicto is maintainable if any such duty be violated, since, in reality, the duty is created by the law, and not by the contract. The contract furnishes the occasion upon which the duty becomes operative, but does not really create the obligation. But, on the other hand, as the contract is made in contemplation of the legal duty, and with a view to its performance, an action ex contractu is, from this point of view, maintainable. These rules have been often applied to the relation of carrier and passenger [Atlantic & P. R. Co. v. Laird, 164 U. S. 395, 17 Sup. Ct. 120, 41 L. Ed. 485; Pouilin v. Canadian Pac. R. Co. (C. C.) 47 Fed. 858; Car- roll v. Staten Island R. Co., 58 N. Y. 126, 17 Am. Rep. 221; Delaware, L. & W. R. Co. v. Trautwein, 52 N. J. Law, 169, 19 Atl. 178, 7 L. R. A. 435, 19 Am. St. Rep. 442; Ames v. Union Railway, 117 Mass. 541, 19 Am. Rep. 426; Taylor v. Manchester, etc., R. Co. (1895) 1 Q. B. 134]; of carrier and shipper of goods [Merritt v. Earle, 29 N. Y. 115, 86 Am. Dec. 292; Bait & O. R. Co. v. Pum- phrey, 59 Md. 390] ; of physician and patient, skilled workmen and their em- ployers, etc. [Kuhn v. Brownfleld, 34 W. Va. 252, 12 S. E. 519, 11 L. R. A. 700; Pike v. Honsinger, 155 N. Y. 201, 49 N. E. 760, 63 Am. St Rep. 655]. That it is the law in such cases, and not the contract, that really creates the duty, is shown by the fact that when the service is rendered gratuitously, as, e. g., when a passenger is carried without payment of fare, the liability attaches, if the duty be violated [Carroll v. Staten Island R. Co., supra; Phila. & R. R. Co. v. Derby, 14 How. 468, 14 L. Ed. 502; Littlejohn v. Railroad Co., 148 Mass. 478, 20 N. E. 103, 2 L. R. A. 502; Nugent v. Boston, C. & M. R. Co., 80 Me. 62, 73, 12 Atl. 797, 6 Am. St Rep. 151] ; and so when lawyers or physicians render their services gratuitously. Wharton on Negligence (2d Ed.) 437. The distinction is said to be this : "If the cause of complaint be for an act of omission or nonfeasance which, without proof of a contract to do what has been left undone, would not give rise to any cause of action (because no duty apart from contract to do what is complained of exists), then the action is founded upon contract and not upon tort If, on the other hand, the relation of the plaintiff and the defendant be such that a duty arises from that rela- tionship, irrespective of contract, to take due care, and the defendant is neg- ligent then the action is one of tort." Kelly v. Metrop. R. Co. [1895] 1 Q. B. 944, 946; Atlantic & P. R. Co. v. Laird, 164 U. S. 393, 399, 17 Sup. Ct 120, 41 L. Ed. 485; cf. Nevin v. Pullman Car Co., 106 111. 222, 46 Am. Rep. 688.) GENERAL PRINCIPLES. 139 In some cases a plaintiff, instead of suing ex delicto for a tort, may waive the tort and sue ex contractu upon an implied contract. (121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216, 18 Am. St Rep. 803.) TERRY et al. v. HUNGER (in part). (Court of Appeals of New York. April 15, 1890.) L CONVERSION WAIVER OF TORT ACTION EX CONTRACTU. The owner of goods wrongfully taken, which still remain In the wrong- doers' possession, may waive the tort, and sue on an implied contract of sale, in which event title to the goods passes to the wrong-doers. 2. SAME ELECTION OF ACTION. The bringing of an ex contractu action by the owner against some of the wrong-doers is a final election to treat the transaction as a sale, and he cannot subsequently sue the others for conversion. Appeal from Supreme Court, General Term, Fifth Department PECKHAM, J. The plaintiffs commenced an action heretofore against two other persons, named, respectively, Kipp and Hunger, on account of the same transaction for which this action was brought against the above-named sole defendant. The character of the com- plaint in that action was before this court, and the case is reported in 88 N. Y. 629, [Goodwin v. Griffis.] The defendants in that case were charged with detaching and carrying away from the mill the machinery in question in that case, and also in this, and using it for themselves. It was there held, upon a perusal of the complaint, that the action was of a nature ex contractu, and not ex delicto, for the wrong done plaintiffs by the conversion of their property. As the defendants therein had not, after their conversion of it, themselves sold or otherwise disposed of the property which they acquired from the plaintiffs, the fiction of the receipt by defendants of money for the sale of the property, which ex aequo et bono they ought to pay back to plaintiffs, and which they therefore impliedly promised to pay back, could not be indulged in, and the position of the parties would have been at one time the subject of some doubt, whether there was any foundation for the doctrine of an implied promise in such case, or any possibility of the waiver of the tort committed by the defend- ants in the conversion of the property. In some of the states it has been denied, and such denial placed upon the ground that the prop- erty remained in the hands of the wrong-doer, and therefore, no money having been received by him in fact, an implied promise to pay over money had and received by defendant to the plaintiff's use did not and could not arise. Such was the case of Jones v. Hoar, 5 Pick. 285. But the great weight of authority in this country is in 140 LAW OF TORTS. favor of the right to waive the tort, even in such case. If the wrong- doer has not sold the property, but still retains it, the plaintiff has the right to waive the tort, and proceed upon an implied contract of sale to the wrong-doer himself, and in such event he is not charged as for money had and received by him to the use of the plaintiff. The contract implied is one to pay the value of the property as if it had been sold to the wrong-doer by the owner. If the transaction is thus held by the plaintiff as a sale, of course the title to the prop- erty passes to the wrong-doer, when the plaintiff elects to so treat it. See Pom. Rem. (2d Ed.) 567-569; Putnam v. Wise, I Hill, 234, 240, 37 Am. Dec. 309, and note by Mr. Hill ; Berly v. Taylor, 5 Hill, 577, 584; Norden v. Jones, 33 Wis. 600, 605, 14 Am. Rep. 782; Cum- mings v. Vorce, 3 Hill, 283 ; Spoor v. Newell, Id. 307; Abbott v. Blos- som, 66 Barb. 353. We think this rule should be regarded as settled in this state. The reasons for the contrary holding are as well stated as they can be in the case above cited from Massachusetts, (5 Pick.,) and some of the cases looking in that direction in this state are cited in the opinion of Talcott, J., in the case reported in 66 Barb., supra. We think the better rule is to permit the plaintiff to elect, and to re- cover for goods sold, even though the tort-feasor has not himself dis- posed of the goods. There is no doubt that the complaint in the former case, reported in 88 N. Y., proceeded upon the theory of a sale of the property to the defendants in that action, and it was so construed by this court, and we have no inclination to review the correctness of that decision. We have then, the fact that the defendants in that action were sued by the plaintiffs herein, upon an implied contract to pay the value of the property taken by them, as upon a sale thereof by plaintiffs to them. The plaintiffs having treated the title to the property as hav- ing passed to the defendants in that suit by such sale, can the plain- tiffs now maintain an action against another person, who was not a party to that action, to recover damages from him for his alleged conversion of the same property, which conversion is founded upon his participation in the same acts which plaintiffs in the old suit have already treated as constituting a sale of the property? We think not. The judgment roll in the former action was received in evidence up- on the trial of this case, against the objection of the plaintiffs, and notwithstanding the fact that the defendant herein was not a party to such action. It appears that all the facts surrounding the transaction as to the taking of the property were known to the plaintiffs at the time when they commenced their action on the implied contract of sale. The plaintiffs having, by their former action, in effect sold this very property, it must follow that at the time of the commencement of this one they had no cause of action for a conversion in existence against the defendant herein. The transfer of the title did not depend upon GENERAL, PRINCIPLES. 141 the plaintiffs recovering satisfaction in such action for the purchase price. It was their election to treat the transaction as a sale which accomplished that result, and that election was proved by the com- plaint already referred to. Judgment affirmed. (The authorities are agreed that if a person converting personal property disposes of it for money or its equivalent, he may be sued in tort for the con- version, or in contract for money had and received [Cooley 1 on Torts (2d Ed.) 109; 2 Greenl. Ev. 108; Whilden v. Merchants' & Planters' Bank, 64 Ala. 1, 38 Am. Rep. 1; St. John v. Antrim Co., 122 Mich. 68, 80 N. W. 998]; but in a number of the states the doctrine established in New York by Terry v. Mun- ger, ant'e, p. 139, that if the property is not disposed of, but retained, an ac- tion ex contractu will lie, upon an implied sale, is still denied [Quimby v. Lowell, 89 Me. 547, 36 Atl. 902; Smith v. Smith, 43 N. H. 536; Saville v. Welch, 58 Vt 683, 5 Atl. 491; Glass Co. v. Wolcott, 2 Allen, 227, 79 Am. Dec. 787; Sandeen v. Kansas City, St. J. & C. B. R. Co., 79 Mo. 278]. Many of the states, however, adopt the New York rule. Moore v. Richardson, 68 N. J. Law, 305, 53 Atl. 1032; Lehmann v. Schmidt, 87 Cal. 15, 25 Pac. 161; Challiss v. Wylie, 35 Kan. 506, 11 Pac. 438; Downs v. Finnegan, 58 Minn. 112, 59 N. W. 981, 49 Am. St. Rep. 488; Walker v. Duncan, 68 Wis. 624, 32 N. W. 689; Crown Cycle Co. v. Brown, 39 Or. 285, 64 Pac. 451, and cases cited ; cf. Evans v. Miller, 58 Miss. 120, 38 Am. Rep. 313 ; see 15 Am. & Eng. Enc. of Law [2d Ed.] 1116. In some states the general doctrine is pushed farther still, and an action on an implied contract will lie where a trespasser has severed trees from land in possession of the owner, or has quarried stone thereon, and has afterwards taken the trees or stone away. Downs v. Finnegan, supra; Phelps v. Church of Our Lady, 99 Fed. 683, 40 C. C. A. 72 ; Id., 115 Fed. 883, 53 C. C. A. 407. If, however, these acts of taking trees, stone, etc., are sufficient to create adverse possession of the land, so that a question of title is raised, an action ex con- tractu will not lie, for title to land cannot be tried in such an action. Id. So, if a trespass on land is committed, the landowner cannot waive the tres- pass and sue the trespasser on contract for use and occupation [Commonwealth Ins. & Trust Co. v. Dokko, 71 Minn. 533, 74 N. W. 891; Lockwood v. Thunder Bay Boom Co., 42 Mich. 536, 4 N. W. 292; Janouch v. Pence (Neb.) 93 N. W. 217; 15 Am. & Eng. Enc. of Law (2d Ed.) 1117, 1118] ; nor, in general, can an action ex contractu be brought for a mere naked trespass on land without benefit to the trespasser, unless a statute (as sometimes happens) otherwise prescribes [St. John v. Antrim Co., 122 Mich. 68, 80 N. W. 998; Downs v. Fin- negan, supra; Fanson v. Linsley, 20 Kan. 235]. As to choosing between an action in tort for deceit and an action in contract, see Hanrahau v. Nat Bldg. & Loan Ass'n, 67 N. J. Law, 526, 51 Atl. 480, affirmed 68 N. J. Law, 730, 54 Atl. 1124; Hallett v. Gordon, 128 Mich. 364, 87 N. W. 261; Crown Cycle Co. v. Brown, 39 Or. 285, 64 Pac. 451. As to the general doctrine of "waiving a tort," see Cooper v. Cooper, 147 Mass. 370, 373, 17 N. E. 892, 9 Am. St. Rep. 721 ; Bigby v. U. S., 188 U. S. 400, 409, 23 Sup. Ct 468, 47 L. Ed. 519.) 142 LAW OF TORTS. So a tort, as a violation of legal duty, may involve, as one of its elements, a breach of contract. (87 N. Y. 382.) RICH v. NEW YORK CENT. & H. R. R. CO. (in part). (Court of Appeals of New York. January 17, 1882.) 1. TORT INVOLVING BREACH OF CONTRACT. An omission to perform a contract obligation may constitute a tort, where that omission is also an omission of a legal duty; and such legai duty may arise, not merely out of relations of trust and confidence inher- ent in the nature of the contract itself, but may spring from extraneous circumstances, not constituting elements of the contract, as such, although connected with it and dependent upon it. The duty and the tort grow out of the entire range of facts, of which the breach of contract is but one. 2. SAME FRAUD EVIDENCE. The complaint, in an action against a railroad company, alleged, in sub- stance, that land owned by plaintiff, very valuable, but heavily mortgaged, had greatly depreciated in value in consequence of the removal of defend- ant's depot from the vicinity, and could only be restored to something like its former value, and saved from the sacrifice of a foreclosure in a time of depression, by the prompt return of the depot to its former site; that, to secure this result, plaintiff surrendered valuable riparian rights to defendant, upon its agreement to restore the depot as soon as practica- ble; but that, because of plaintiff's refusal to consent, without compensa- tion for damages, to the closing of a street, which would have greatly injured his property, defendant, fully understanding plaintiff's situation, maliciously and willfully broke its agreement, and delayed a restoration of the depot, for the express purpose of preventing plaintiff from being enabled to ward off a foreclosure, and instigated a sale by the mortgagee under the foreclosure decree, at which the property was bid off by the mortgagee for a comparatively small sum; and thereupon the street was closed, the mortgagee having been induced to waive all damages therefor, and the depot was restored. At the trial, it was conceded that a good cause of action, sounding in tort, was stated in the complaint. Held, that one separate and distinct unlawful act was alleged, being the unreason- able delay in restoring the depot to its original location, which was un- lawful, not inherently or in itself, but solely by force of the contract with plaintiff; but that, outside of and beyond this, there was an actual and affirmative fraud, a scheme to accomplish a lawful purpose by unlawful means, a fraudulent device to procure a ruinous foreclosure and thus remove the plaintiff as an obstacle, and that this scheme of oppression and fraud the breach of contract being only one of its elements con- stituted the tort ; and that it was error to exclude, as immaterial, evi- dence offered by plaintiff to prove the agreement to restore the depot and its breach, the situation of the parties in respect of their several prop- erties, the existence of the mortgage, and the instigation of the foreclosure by defendant, and statements by defendant's officers as to their reasons for refusing to restore the depot Appeal from Supreme Court, General Term, Second Department. Action by Josiah Rich against the New York Central & Hudson GENERAL PRINCIPLES. 143 River Railroad Company. The complaint alleged, in substance, that about the year 1850 plaintiff, with others who were the owners of cer- tain lands in the village of Yonkers, entered into an agreement with the Hudson River Railroad Company to convey to said corporation a site for its depot, and fill in the same, and lay out and grade their lands so as to give convenient communication between the depot and the business portion of said village, said company agreeing to pay the actual cost of filling in the depot site, and to erect and ever after maintain its depot thereon; that said agreement was carried out, the site conveyed, and the depot erected ; that defendant succeeded to the rights, franchises, and obligations of said Hudson River Railroad- Company, and plaintiff acquired the titles of the other owners of said remaining lands ; that there was a navigable inlet crossed by said rail- road, known as the "Nepperhan" or "Saw-Mill" river ; that said Hud- son River Railroad Company, having no right to cut off or obstruct the navigation in said inlet, had constructed and maintained- a draw- bridge over it ; that it subsequently procured the passage of an act of the legislature, authorizing it to bridge said inlet without an opening or draw, on making compensation to the riparian owners; that de- fendant, to avoid the payment of such compensation, "resolved to ac- complish the same object by artifice and strategy," and so threatened said riparian owners that, unless they would surrender their rights, and consent to the construction of such bridge, it would remove its depot, and, upon said owners refusing so to do, did remove its depot to a point above a third of a mile north ; that plaintiff, a short time previous to the threatened removal, had borrowed, on his bond se- cured by mortgage on his said lands, the sum of $35,000, most of which was expended in erecting stores on his said lands, directly op- posite and about 100 feet south of said depot, and, if the depot had not been removed, could have rented said stores and the adjacent lots for $5,000 per annum, and could have sold other lots for suffi- cient to pay off said mortgage, but that in consequence of such re- moval his premises became wholly unproductive and unsalable; that, in order to have the depot restored to its original site and to save his property from being sacrificed, he was induced and coerced into giv- ing his consent to the closing of said draw-bridge, and an agreement was entered into on March 7, 1877, by which defendant, in considera- tion of such consent, agreed that it would, "as soon as practicable, and within a reasonable time, build and forever thereafter maintain its principal passenger depot for Yonkers" upon said original site ; that defendant thereupon removed the drawbridge, and erected a per- manent bridge over the inlet ; that it also erected a new depot on the old site, and had the same ready for use about April 15, 1878, but ab- solutely refused to open or establish its depot there unless the com- mon council of Yonkers would pass an ordinance declaring and or- dering the closing of a portion of a street which crossed its tracks, 144 LAW OF TORTS. so that it could build a fence inclosing said tracks, which would so exclude the plaintiff and others from the right and privilege of cross- ing said tracks to the steam-boat docks on the Hudson river; that defendant procured the passage of an act of the legislature amending the charter of Yonkers, so as to provide for the assessment and pay- ment of damages claimed by the owners of land injuriously affected by the closing of a street; that the closing of said street would have damaged plaintiff's property to, at least, the sum of $50,000, and would have neutralized, in great measure, all the benefits derived from the restoration of the depot ; that plaintiff and others sent in re- jnonstrances to the common council against such discontinuance, and it refused to pass an ordinance to that effect, because of the large amount of damages the city would have to pay ; that, upon such re- fusal being made known, defendant's officers publicly asserted that it would never open said new depot until said ordinance was passed, and would tear down the new depot, or use it exclusively for freight, "in all of which the defendant was actuated by malice and vindictive- ness towards plaintiff, and a design to crush, ruin, and destroy him ;" that in consequence of the removal of the depot, and the consequent unproductiveness of plaintiff's property, he was unable to pay the in- terest on said bond and mortgage, and foreclosure was commenced, and a decree of foreclosure and sale was made, but that the mort- gagee had forborne selling to give plaintiff the benefit of the re-estab- lishment of the depot ; that defendant's officers and agents, after the refusal of the common council to pass the said ordinance, called up- on the mortgagee, and induced it "to withdraw the grace and favor" accorded to plaintiff and to advertise the property immediately for sale, so as to cut off plaintiff's claim for damages, the mortgagee having been induced to waive any such claim; that the "scheme or plan which had been so concocted and arranged by and in the inter- est and for the special benefit and advantage of the defendant, to ena- ble it to evade and violate with impunity its aforesaid covenant and obligation with the plaintiff, * * * and to escape the payment of its fair and just proportion of the plaintiff's damages on the closing of said street, was fully carried out and executed by the instigation and connivance of the defendant ;" that plaintiff's entire property was sold under said decree, and bid off by the mortgagee for $20,000, and thereupon the ordinance was passed closing said street, and defend- ant immediately opened the new depot; and that "defendant, by means of the wrongs, injuries, and grievances aforesaid, and its mali- cious and unlawful actions in doing as aforesaid, has inflicted pe- cuniary loss and damage upon the plaintiff to the amount of $150,000;" for which sum judgment was asked. At the trial plaintiff offered in evidence the agreement of 1877, which was objected to and excluded as irrelevant and incompetent. Plaintiff also offered to show the alleged breach of that contract, the GENERAL PRINCIPLES. 145 value of the property conveyed to defendant, and the establishment of the depot originally thereon ; that defendant caused and procured the sale of plaintiff's property under the foreclosure decree to deprive him of his claim for damages for closing the street ; that it was sold for less than one-fifth of its value ; that plaintiff was dispossessed at the instigation of defendant ; and that if the depot had been re-estab- lished the market value of the property would have been largely in- creased. Plaintiff also offered to prove an interview with defendant's officers in reference to the removal and re-establishment of the depot, and the reasons they assigned for the removal and refusal to restore it, and also the amount of damage sustained by plaintiff in conse- quence of defendant's omission and refusal to re-establish the depot under the agreement of 1877, all of which was objected to and ex- cluded on the same ground. Defendant moved for a dismissal of the complaint on the following grounds : "First. Because the plaintiff has not laid the foundation, by any of the several agreements in evidence, to sustain a cause of ac- tion for damages arising from any wrongful act of the defendant in respect to the property of the plaintiff. Second. Because the gist of this action is the malicious and unlawful acts of the defendant in pur- suing a scheme or plan to injure the plaintiff by depriving him of his property, based upon an alleged malicious violation of certain alleged contracts. The proof offered fails to make out any cause of action as set forth in the complaint, and would not sustain any verdict against the defendant for any damages in this action. Third. Be- cause the complaint sets forth but a single cause of action, and the plaintiff cannot legally found a claim for damages upon the alleged breach of any one of the several agreements or contracts referred to." The motion was granted, and judgment for defendant was entered on the dismissal of the complaint, which, on appeal therefrom by plaintiff, was affirmed by the general term. Plaintiff appealed from the judgment of the general term. FINCH, J. We have been unable to find any accurate and per- fect definition of a "tort." Between actions plainly ex contractu and those as clearly ex delicto there exists what has been termed a "bor- derland," where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other, and become so nearly coincident, as to make their practical separation somewhat difficult. Moak's Underh. Torts, 23. The text-writers either avoid a definition entirely, (Addison on Torts ;) or frame one plainly imper- fect, (2 Bouv. Law Diet. 600;) or depend upon one which they con- cede to be inaccurate, but hold sufficient for judicial purposes, (Cooley, Torts, 3, note i ; Moak's Underh. Torts, 4; I Hil. Torts, I.) By these last authors a tort is described in general as "a wrong inde- pendent of contract." And yet, it is conceded that a tort may grow CHASE (2o ED.) 10 146 LAW OB' TORTS. out of, or make part of, or be coincident with, a contract, (2 Bouvier, supra ;) and that precisely the same state of facts between the same parties may admit of an action either ex contractu or ex delicto, (Cooley, Torts, 90.) In such cases the tort is dependent upon, while at the same time independent of, the contract; for if the latter im- poses the legal duty upon a person, the neglect of that duty may con- stitute a tort founded upon a contract. I Add. Torts, 13. Ordinari- ly, the essence of a tort consists in the violation of some duty due to an individual, which duty is a thing different from the mere contract obligation. When such duty grows out of relations of trust and con- fidence, as that of the agent to his principal or the lawyer to his client, the ground of the duty is apparent, and the tort is, in general, easily separable from the mere breach of contract. But where no such re- lation flows from the constituted contract, and still a breach of its obligation is made the essential and principal means, in combination with other and perhaps innocent acts and conditions, of inflicting an- other and different injury, and accomplishing another and different purpose, the question whether such invasion of a right is actionable as a breach of contract only, or also as a tort, leads to a somewhat difficult search for a distinguishing test. In the present case, the learned counsel for the respondent seems to free himself from the difficulty by practically denying the existence of any relation between the parties except that constituted by the contract itself, and then, insisting that such relation was not of a character to originate any separate and distinct legal duty, argues that, therefore, the bare violation of the contract obligation created merely a breach of contract, and not a tort. He says that the several instruments put in evidence showed that there never had been any re- lation between the plaintiff and the railroad company, except that of parties contracting in reference to certain specific subjects, by plain and distinct agreements, for any breach of which the parties, respec- tively, would have a remedy, but none of which created any such rights as to lay the foundation for a charge of willful misconduct or any other tortious act. Upon this theory, the case was tried. Every offer to prove the contracts, and especially their breach, was resisted upon the ground that the complaint, through all its long history of plaintiff's grievances, alleged but a single cause of action, and that for a tort, and therefore something else, above and beyond and out- side of a mere breach of contract, must be shown, and proof of such breach was immaterial. And in the end the plaintiff was nonsuited because he had given no proof of a tort or a fraud. He now insists that he was first debarred from giving such proof, and then nonsuited because he had not given it. At the foundation of every tort must lie some violation of a legal duty, and therefore some unlawful act or omission. Cooley, Torts, 60. The one separate and distinct unlawful act or omission vJleged GENERAL PRINCIPLES. 147 in this complaint, or rather the only one so separable which we can see may have been unlawful, was the unreasonable delay in restoring the depot to its original location; and that was unlawful, not inher- ently or in itself, but solely by force of the contract with plaintiff. The instigation of the sale on foreclosure, as a separate fact, may have been unkind, or even malicious, but cannot be said to have been unlawful. The mortgagee had a perfect right to sell, judicially es- tablished, and what it might lawfully do it was not unlawful to ask it to do. The act of instigating the sale may be material, and have force, as one link in a chain of events, and as serving to explain and characterize an unlawful purpose, pursued by unlawful means ; but, in and of itself, it was not an unlawful act, and cannot serve as the foundation of a tort. Randall v. Hazelton, 12 Allen, 412. We are forced back, therefore, to the contract for re-establishing the depot, and its breach, as the basis or foundation of the tort pleaded. If that will not serve the purpose in some manner, by some connection with other acts and conditions, then there was no cause of action for a tort stated in the complaint. We are thus obliged to study the doctrine advanced by the respondent, and measure its range and extent. It rests upon the idea that, unless the contract creates a relation, out of which relation springs a duty, independent of the mere contract ob- ligation, though there may be a breach of the contract, there is no tort, since there is no duty to be violated. And the illustration given is the common case of a contract of affreightment, where, beyond the contract obligation to transport and deliver safely, there is a duty, born of the relation established, to do the same thing. In such a case, and in the kindred cases of principal and agent, of lawyer and client, of consignor and factor, the contract establishes a legal rela- tion of trust and confidence ; so that, upon a breach of the contract, there is not merely a broken promise, but, outside of and beyond that, there is trust betrayed and confidence abused. There is constructive fraud, or a negligence that operates as such ; and it is that fraud and that negligence which, at bottom, make the breach of contract action- able as a tort. Coggs v. Bernard, 2 Ld. Raym. 909; Orange Bank v. Brown, 3 Wend. 161, 162. So far we see no reason to disagree with the learned counsel for the respondent save in one respect, but that is a very important one. Ending the argument at this point leaves the problem of the case still unsolved. If a cause of action for a tort, as admitted, was stated in the complaint, it helps us but little to learn what it was not, and that it does not fall within a certain class of exceptional cases, and cannot be explained by them. We have yet to understand what it is, if it exists at all, as a necessary preliminary to any just appreciation of the relevancy or materiality of the rejected evidence. The general term, as we have remarked, described the tort pleaded as a "clear case of fraud." If that be true, it cannot depend upon a fiduciary or other 148 LAW OF TORTS. character of the relation constituted by the contract merely, for no such relations existed; and there must be some other relation not created by the contract alone, from which sprang the duty which was violated. Let us analyze the tort alleged somewhat more closely. At the date of the contract, the complaint shows the relative situa- tion and needs of the two parties. The railroad company desired to close the draw over the Nepperhan river, and substitute a solid bridge. With the growth of its business and the multitudes of its trains the draw had become a very great evil and a serious danger. The effort to dispense with it was in itself natural and entirely proper. On the other hand, the plaintiff was both a riparian owner above the draw, and likely to be injured in that ownership by a permanent bridge, and had suffered, and was still suffering, from a severe depre- ciation in the value of his property near Main street by the previous removal of the railroad station. The defendant was so far master of the situation that it could and did shut off the plaintiff to a choice of evils. He might insist upon the draw, and leave his mortgaged property to be lost from depreciation, and save his riparian rights, or he might surrender the latter to save the former. This last was the alternative which he selected, and the contract of 1877 was the result. In the making of this contract there was no deceit or fraud, and no legal or actionable wrong, on the part of the defendant. If it drove a hard bargain, and had the advantage in the negotiation, it at least invaded no legal right of the plaintiff, and he was free to contract or not, as he pleased. The complaint does not allege that at the execu- tion of this agreement there was any purpose or intention of not ful- filling its terms. The tort, if any, originated later. What remains then is this : the railroad company conceived the idea of closing Main street to any travel where it passed their tracks at grade; of substituting a bridge crossing in its stead ; and of fencing in its track along the street beneath, so as to compel access to the cars through its depot in such manner that the purchase of tickets could be com- pelled. This, in itself, was a perfectly lawful purpose. The grade crossing was a death trap, and the interest of the company and the safety of individuals alike made a change desirable, and the closing in of the depot was in no sense reprehensible. But there was a diffi- culty in the way. The plaintiff again stood as an obstacle in the path. The closing of Main street, though beneficial to the company, was to him and his adjoining property claimed to be a very serious injury. He declined to consent, except upon the condition of an award of heavy damages, and in dread of that peril the common council refused to pass the necessary ordinance. At this point, ac- cording to the allegations of the complaint, if at all or ever, arose the tort. It is alleged that the defendant, in order to reach a lawful re- sult, planned a fraudulent scheme for its accomplishment by unlawful means, and through an injury to the plaintiff, which would strip him GENERAL PRINCIPLES. 149 of his damages by a complete sacrifice of his property. That plan was executed in this manner : The company willfully and purposely refused to perform its contract. It had built its permanent bridge over the Nepperhan, and so received the full consideration of its promise ; its new depot was substantially finished and ready for occu- pation ; and no just reason remained why its contract should not be fulfilled. But the company refused. It did not merely neglect or delay; it openly and publicly refused. The purpose of that public refusal was apparent. It was to drive the plaintiff's mortgagee to a foreclosure ; it was to shut out from plaintiff that appreciation of his property which would enable him to save it ; it was to strip him of it, so as to extinguish the threatened damages, and thus procure the as- sent of the common council, and get Main street closed. This un- lawful refusal to perform the contract, this deliberate announcement of the purpose not to restore the depot, was well calculated to influ- ence the mortgagee towards a foreclosure. But the defendant's di- rect instigation was added. The foreclosure came; the mortgagee bid in the property at a sacrifice ; swiftly followed a release of dam- ages, an ordinance of the common council, the closing of Main street, and then the restoration of the depot. We are thus able to see what the tort pleaded was. It was not a constructive fraud, drawn from a violation of a duty imposed by law out of some specific relation of trust and confidence, but an ac- tual and affirmative fraud, an alleged scheme to accomplish a law- ful purpose by unlawful means. There was here, on the theory of the complaint, something more than a mere breach of contract. That breach was not the tort ; it was only one of the elements which constituted it. Beyond that, and outside of that, there was said to have existed a fraudulent scheme and device by means of that breach to procure the foreclosure of the mortgage at a particular time and under such circumstances as would make that foreclosure ruinous to the plaintiff's rights, and remove him as an obstacle by causing him to lose his property, and thereby his means of resistance to the pur- pose ultimately sought. In other words, the necessary theory of the complaint is that a breach of contract may be so intended and planned ; so purposely fitted to time and circumstances and condi- tions ; so interwoven into a scheme of oppression and fraud ; so made to set in motion innocent causes which otherwise would not operate, as to cease to be a mere breach of contract, and become, in its association with the attendant circumstances, a tortious and wrong- ful act or omission. It may be granted that an omission to perform a contract obliga- tion is never a tort, unless that omission is also an omission of a legal duty. But such legal duty may arise, not merely 'out of cer- tain relations of trust and confidence, inherent in the nature of the contract itself, as in the case referred to in the respondent's argu- 150 LAW OF TORTS. ment, but may spring from extraneous circumstances, not constitut- ing elements of the contract as such, although connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud. It is then doubtless true that a mere contract obligation may es- tablish no relation out of which a separate or specific legal duty arises, and yet extraneous circumstances and conditions, in connec- tion with it, may establish such a relation as to make its performance a legal duty, and its omission a wrong to be redressed. The duty and the tort grow out of the entire range of facts, of which the breach of the contract was but one. The whole doctrine is accurately and concisely stated in i Chit. PI. 135, that, "if a common-law duty re- sult from the facts, the party may be sued in tort for any negligence or misfeasance in the execution of the contract." Assuming, now, that we correctly understand what the tort pleaded was, and which was conceded to constitute a cause of action, it seems to us quite clear that the plaintiff was improperly barred from proving it. From the very nature of the case, a fraud can seldom be proved directly, and almost uniformly is an inference from the character of the whole transaction, and the surrounding and attend- ant circumstances. Proof of the contract, and its breach, of the de- lay in restoring of the depot, and the reasons therefor, were essen- tial links in the chain. If the proof should go no further, a non- suit would be proper, but without these elements the tort alleged could not be established at all. And so the situation of the parties as it respected their several properties, the existence of the mortgage, the agreement to postpone the sale, were elements of the transac- tion proper to be shown. The judgment should be reversed, and a new trial granted, costs to abide the event. All concur, except RAPALLO and MILLER, JJ., not voting. Judgment reversed. GENERAL PRINCIPLES. 151 In cases of contract, -where no legal duty arises independ- ent of contract, one not in privity with the defendant cannot recover against him in tort. (10 Mees. & W. 109.) WINTERBOTTOM v. WRIGHT. (Court of Exchequer. June 6, 1842.) CONTEACTOR'S LIABILITY FOB INJUBY TO THIBD PEBSON PBIVITT. Defendant contracted with the postmaster general to provide a mall- coach to convey the mail between two places, and other persons contracted to supply horses and coachmen for the same purpose, and hired plaintiff to drive the coach. Plaintiff, while driving the coach, was injured by its breaking down from latent defects in its construction. Held, that plain- tiff could not maintain an action against defendant for such injury, there being no privity of contract between them. Demurrer to pleas. Action on the case. The declaration stated that the defendant was a contractor for the supply of mail-coaches, and had in that character contracted for hire and reward, with the postmaster gen- eral, to provide the mail-coach for the purpose of conveying the mail-bags from Hartford, in the county of Chester, to Holyhead; that the defendant, under and by virtue of the said contract, had agreed with the said postmaster general that the said mail-coach should, during the said contract, be kept in a fit, proper, safe, and secure state and condition for the said purpose, and took upon himself, to-wit, under and by virtue of the said contract, the sole and exclusive duty, charge, care, and burden of the repairs, state, and condition of the said mail-coach ; and it had become and was the sole and exclusive duty of the defendant, to-wit, under and by vir- tue of his said contract, to keep and maintain the said mail-coach in a fit, proper, safe, and secure state and condition for the purpose aforesaid; that Nathaniel Atkinson and other persons, having no- tice of the said contract, were under contract with the postmaster general to convey the said mail-coach from Hartford to Holyhead, and to supply horses and coachmen for that purpose, and also not, on any pretense whatever, to use or employ any other coach or car- riage whatever than such as should be so provided, directed, and appointed by the postmaster general ; that the plaintiff, being a mail- coachman, and thereby obtaining his livelihood, and while the said several contracts were in force, having notice thereof, and trusting to and confiding in the contract made between the defendant and the postmaster general, and believing that the said coach was in a fit, safe, secure, and proper state and condition for the purpose aforesaid, and not knowing and having no means of knowing to the 152 LAW OF TORTS. contrary thereof, hired himself to the said Nathaniel Atkinson and his co-contractors as mail-coachman, to drive and take the conduct of the said mail-coach, which but for the said contract of the de- fendant he would not have done. The declaration then averred that the defendant so improperly and negligently conducted himself, and so utterly disregarded his aforesaid contract, and so wholly neglected and failed to perform his duty in this behalf, that hereto- fore, to-wit, on the 8th of August, 1840, while the plaintiff, as such mail-coachman, so hired, was driving the said mail-coach from Hart- ford to Holyhead, the same coach being a mail-coach, found and pro- vided by the defendant under his said contract, and the defendant then acting under his said contract, and having the means of know- ing and then well knowing all the aforesaid premises, the said mail- coach being then in a frail, weak, infirm, and dangerous state and condition, to-wit, by and through certain latent defects in the state and condition thereof, and unsafe and unfit for the use and purpose aforesaid, and from no other cause, circumstance, matter or thing whatsoever, gave way and broke down, whereby the plaintiff was thrown from his seat, and, in consequence of injuries then received, had become lamed for life. To this declaration the defendant pleaded several pleas, to two of which there were demurrers ; but, as the court gave no opinion as to their validity, it is not necessary to state them. Mr. Peacock, in support of the demurrers, argued against the suffi- ciency of the pleas. Mr. Byles, for the defendant, objected that the declaration was bad in substance. This is an action brought, not against Atkin- son and his co-contractors, who were the employers of the plaintiff, but against the person employed by the postmaster general, and totally unconnected with them or with the plaintiff. Now, it is a general rule that, wherever a wrong arises merely out of the breach of a contract, which is the case on the face of this declaration, whether the form in which the action is conceived be ex contractu or ex delicto, the party who made the contract alone can sue. Tol- lit v. Sherstone, 5 Mees. & W. 283. If the rule were otherwise, and privity of contract were not requisite, there would be no limit to such actions. If the plaintiff may, as in this case, run through the length of three contracts, he may run through any number or series of them, and the most alarming consequences would follow the adoption of such a principle. For example, every one of the sufferers by such an accident as that which recently happened on the Versailles Railway might have his action against the manufac- turer of the defective axle. So, if the chain cable of an East India- man were to break, and the vessel went aground, every person af- fected, either in person or property, by the accident, might have an action against the manufacturer, and perhaps against every seller GENERAL PRINCIPLES. 15S also of the iron. Again, suppose a gentleman's coachman were in- jured by the breaking down of his carriage, if this action be main- tainable, he might bring his action against the smith or the coach- maker, although he could not sue his master, who is the party con- tracting with him. Priestley v. Fowler, 3 Mees. & W. I. There is no precedent to be found of such a declaration, except one in 8 Wentworth, Pleading, 397, which has been deemed very questiona- ble. Rapson v. Cubitt, 9 Mees. & W. 710, is an .authority to show that the party injured by the negligence of another cannot go be- yond the party who did the injury, unless he can establish that the latter stood in the relation of a servant to the party sued. In Witte v. Hague, 2 Dowl. & R. 33, where the plaintiff sued for an injury produced by the explosion of a steam-engine boiler, the defendant was personally present managing the boiler at the time of the acci- dent. Levy v. Langridge, 4 Mees. & W. 337, will probably be re- ferred to on the other side. But that case was expressly decided on the ground that the defendant who sold the gun by which the plaintiff was injured, although he did not personally contract with the plaintiff, who was a minor, knew that it was bought to be used by him. Here there is no allegation that the defendant knew that the coach was to be driven by the plaintiff. There, moreover, fraud was alleged in the declaration, and found by the jury, and there, too, the cause of injury was a weapon of a dangerous nature, and the defendant was alleged to have had notice of the defect in its con- struction. Nothing of that sort appears upon this declaration. Mr. Peacock, contra. This case is within the principle of the decision in Levy v. Lang- ridge, 4 Mees. & W. 337. Here the defendant entered into a con- tract with a public officer to supply an article which, if imperfectly constructed, was necessarily dangerous, and which, from its nature and the use for which it was destined, was necessarily to be driven by a coachman. That is sufficient to bring the case within the rule established by Levy v. Langridge. In that case the contract made by the father of the plaintiff with the defendant was made on behalf of himself and his family generally, and there was nothing to show that the defendant was aware even of the existence of the particular son who was injured. Suppose a party made a contract with gov- ernment for a supply of muskets, one of which, from its miscon- struction, burst and injured a soldier. There it is clear that the use of the weapon by a soldier would have been contemplated, although not by the particular individual who received the injury; and could it be .said, since the decision in Levy v. Langridge, that he could not maintain an action against the contractor? So, if a coach- maker, employed to put on the wheels of a carriage, did it so neg- ligently that one of them flew off, and a child of the owner were thereby injured, the damage being the natural and immediate con- 154 LAW OF TORTS. sequence of his negligence, he would surely be responsible. So, if a party entered into a contract to repair a church, a work-house, or other public building, and did it so insufficiently that a person attending the former, or a pauper in the latter, was injured by the falling of a stone, he could not maintain action against any other person than the contractor, but against him he must surely have a remedy. It is like the case of a contractor who negligently leaves open a sewer, whereby a person passing along the street is injured. It is clear that no action could be maintained against the postmaster general. Hall v. Smith, 2 Bing. 156; Humphreys v. Mears, I Man. & R. 187; Priestley v. Fowler, 3 Mees. & W. i. But here the declaration alleges the accident to have happened through the de- fendant's negligence and want of care. The plaintiff had no oppor- tunity of seeing that the carriage was sound and secure. [Alder- son, B. : The decision in Levy v. Langridge proceeds upon the ground of the knowledge and fraud of the defendant.] Here also there was fraud: the defendant represented the coach to be in a proper state for use, and whether he represented that which is false within his knowledge, or a fact as true which he did not know to be so, it was equally a fraud in point of law, for which he is respon- sible. ABINGER, C. B. I am clearly of opinion that the defendant is entitled to our judgment. We ought not to permit a doubt to rest upon this subject, for our doing so might be the means of letting in upon us an infinity of actions. This is an action of the first im- pression, and it has been brought in spite of the precautions which were taken in the judgment of this court in the case of Levy v. Langridge, 4 Mees. & W. 337, to obviate any notion that such an action could be maintained. We ought not to attempt to extend the principle of that decision, which, although it has been cited in support of this action, wholly fails as an authority in its favor; for there the gun was bought for the use of the son, the plaintiff in that action, who could not make the bargain himself, but was really and substantially the party contracting. Here the action is brought simply because the defendant was a contractor with a third person, and it is contended that thereupon he became liable to everybody who might use the carriage. If there had been any ground for such action, there certainly would have been some prec- edent of it; but, with the exception of actions against innkeepers and some few other persons, no case of a similar nature has oc- curred in practice. That is a strong circumstance, and is of itself a great authority against its maintenance. It is, however, contended that, this contract being made on the behalf of the public by the postmaster general, no action could be maintained against him, and therefore the plaintiff must have a remedy against the defend- GENERAL PRINCIPLES. 155 ant. But that is by no means a necessary consequence, he may be remediless altogether. There is no privity of contract between these parties ; and if the plaintiff can sue, every passenger, even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue. Where a party becomes responsi- ble to the puhlic, by undertaking a public duty, he is liable, though the injury may have arisen from the negligence of his servant or agent. So, in cases of public nuisances, whether the act was done by the party as a servant, or in any other capacity, you are liable to an action at the suit of any person who suffers. These, however, are cases where the real ground of the liability is the public duty, or the commission of the public nuisance. There is also a class of cases in which the law permits a contract to be turned into a tort; but, unless there has been some public duty undertaken, or public nuisance committed, they are all cases in which an action might have been maintained upon the contract. Thus a carrier may be sued either in assumpsit or case ; but there is no instance in which a party, who was not privy to the contract entered into with him, can maintain any such action. The plaintiff in this case could not have brought an action on the contract. If he could have done so, what would have been his situation, supposing the postmaster gen- eral had released the defendant? That would, at all events, have defeated his claim altogether. By permitting this action, we should be working this injustice : that after the defendant had done every- thing to the satisfaction of his employer, and after all matters be- tween them had been adjusted, and all accounts settled on the foot- ing of their contract, we should subject them to be ripped open by this action of tort being brought against him. ALJDERSON, B. I am of the same opinion. The contract in this case was made with the postmaster general alone ; and the case is just the same as if he had come to the defendant, and ordered a carriage, and handed it at once over to Atkinson. If we were to hold that the plaintiff could sue in such a case, there is no point at which such actions would stop. The only safe rule is to confine the right to recover to those who enter into the contract; if we go one step beyond that, there is no reason why we should not go fifty. The only real argument in favor of the action is that this is a case of hardship; but that might have been obviated, if the plaintiff had made himself a party to the contract. Then it is urged that it falls within the principle of the case of Levy v. Langridge. But the prin- ciple of that case was simply this: that, the father having bought the gun for the very purpose of being used by the plaintiff, the de- 156 LAW OF TORTS. fendant made representations by which he was induced to use it. There a distinct fraud was committed on the plaintiff. The false- hood of the representation was also alleged to have been within the knowledge of the defendant who made it, and he was properly held liable for the consequences. How are the facts of that case applicable to those of the present? Where is the allegation of mis- representation or fraud in this declaration? It shows nothing of the kind. Our judgment must therefore be for the defendant. ROLFE, B. The breach of the defendant's duty, stated in this declaration, is his omission to keep the carriage in a safe condition ; and, when we examine the mode in which that duty is alleged to have arisen, we find a statement that the defendant took upon him- self, to-wit, under and by virtue of the said contract, the sole and exclusive duty, charge, care, and burden of the repairs, state, and condition of the said mail-coach, and during all the time aforesaid it had become and was the sole and exclusive duty of the defendant, to-wit, under and by virtue of his said contract, to keep and main- tain the said mail-coach in a fit, proper, safe, and secure state and condition. The duty, therefore, is shown to have arisen solely from the contract ; and the fallacy consists in the use of that word "duty." If a duty to the postmaster general be meant, that is true ; but if a duty to the plaintiff be intended, (and in that sense the word is evi- dently used,) there was none. This is one of those unfortunate cases in which there certainly has been damnum, but it is damnum absque injuria. It is, no doubt, a hardship upon the plaintiff to be without a remedy, but by that consideration we ought not to be influenced. Hard cases, it has been frequently observed, are apt to introduce bad law. Judgment for the defendant. (Supporting the same doctrine are Standard Oil Co. v. Murray, 119 Fed. 572, 57 C. C. A. 1; Carter v. Harden, 78 Me. 528, 7 Atl. 392; Marvin Safe Co. v. Ward, 4G N. J. Law, 19; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; Kuelling v. Roderick Mfg. Co., 88 App. Div. 309, 84 N. Y. Supp. 622; Curtin v. Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322. 23 Am. St. Rep. 220; Roddy v. Mo. Pac. R. Co., 104 Mo. 234, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333; Zieman v. Kieckhefer Elevator Co., 90 Wis. 497, 03 N. W. 1021; Davidson v. Nichols, 11 Allen, 514. The doctrine is fully considered and many illustrative cases cited in Huset v. Case Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303.) GENERAL PRINCIPLES. 157 But if; in cases of contract, the law imposes a duty towards third persons who are not parties to the contract, such persons may recover in an action of tort. (6 N. Y. 397, 57 Am. Dec. 455.) THOMAS et al. v. WINCHESTER. (Court of Appeals of New York. July, 1852.) BREACH OF CONTRACT INVOLVING VIOLATION OF LEGAL DUTY TO THIBD PER- SONSPRIVITY. Defendant, a manufacturer of and dealer in vegetable extracts for me- dicinal purposes, labeled and sold, as extract of dandelion, which is a harmless medicine, extract of belladonna, a poison, resembling in appear- ance the extract of dandelion; and, after it had passed through the hands of other dealers, a portion of it was sold and administered, as extract of dandelion, to a patient, who was seriously injured thereby. Held, that defendant was liable in damages to the person so injured, although there was no privity between them, on the ground of a breach of the duty aris- ing out of the nature of defendant's business and the danger to others incident to its mismanagement. Appeal from Supreme Court, General Term, Sixth District. Action by Samuel Thomas and Mary Ann Thomas, his wife, against the defendants, Winchester and Gilbert, for injuries to the plaintiff Mrs. Thomas, alleged to have been caused by the negli- gence of defendants. At the trial a verdict was rendered for plain- tiffs against the defendant Winchester only, the defendant Gilbert having been acquitted by direction of the judge. A motion by de- fendant Winchester for a new trial was denied, and judgment for plaintiffs was entered on the verdict. Defendant Winchester ap- pealed from the judgment. RUGGLES, C. J. This is an action brought to recover damages from the defendant for negligently putting up, labeling, and selling, as and for the extract of dandelion, which is a simple and harmless medicine, a jar of the extract of belladonna, which is a deadly poison ; by means of which the plaintiff Mary Ann Thomas, to whom, being sick, a dose of dandelion was prescribed by a physician, and a por- tion of the contents of the jar was administered as and for the ex- tract of dandelion, was greatly injured, etc. The facts proved were briefly these: Mrs. Thomas being in ill health, her physicians pre- scribed for her a dose of dandelion. Her husband purchased what was believed to be the medicine prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison county, where the plaintiffs reside. A small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it produced very alarming effects; such as coldness of the surface and extrem- 158 LAW OF TORTS. ities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and derangement of mind. She recovered, however, after some time, from its effects, although for a short time her life was thought to be in great dan- ger. The medicine administered was belladonna, and not dandelion. The jar from which it was taken was labeled, " l / 2 Ib. dandelion, pre- pared by A. Gilbert, No. 108 John street, N. Y. ; jar, 8 oz." It was sold for and believed by Dr. Foord to be the extract of dandelion as labeled. Dr. Foord purchased the article as the extract of dan- delion from James S. Aspinwall, a druggist at New York. Aspin- wall bought it of the defendant as extract of dandelion, believing it to be such. The defendant was engaged at No. 108 John street, New York, in the manufacture and sale of certain vegetable ex- tracts for medicinal purposes, and in the purchase and sale of oth- ers. The extracts manufactured by him were put up in jars for sale, and those which he purchased were put up by him in like man- ner. The jars containing extracts manufactured by himself and those containing extracts purchased by him from others were la- beled alike. Both were labeled like the jar in question, "as pre- pared by A. Gilbert." Gilbert was a person employed by the defend- ant at a salary as an assistant in his business. The jars were labeled in Gilbert's name, because he had been previously engaged in the same business on his own account at No. 108 John street, and prob- ably because 'Gilbert's labels rendered the articles more salable. The extract contained in the jar sold to Aspinwall, and by him to Foord, was not manufactured by the defendant, but was purchased by him from another manufacturer or dealer. The extract of dande- lion and the extract of belladonna resemble each other in color, consistence, smell, and taste; but may, on careful examination, be distinguished, the one from the other, by those who are well ac- quainted with those articles. Gilbert's labels were paid for by Win- chester, and used in his business, with his knowledge and assent. The defendant's counsel moved for a nonsuit on the following grounds : (i) That the action could not be sustained, as the defend- ant was the remote vendor of the article in question ; and there was no connection, transaction, or privity between him and the plaintiffs, or either of them. (2) That this action sought to charge the defend- ant with the consequences of the negligence of Aspinwall and Foord. (3) That the plaintiffs were liable to and chargeable with the neg- ligence of Aspinwall and Foord, and therefore could not maintain this action. (4) That, according to the testimony, Foord was charge- able with negligence, and that the plaintiffs, therefore, could not sustain this suit against the defendant; if they could sustain a suit at all, it would be against Foord only. (5) That this suit being brought for the benefit of the wife, and alleging her as the meritori- ous cause of action, cannot be sustained. (6) That there was not GENERAL PRINCIPLES. 159 sufficient evidence of negligence in the defendant to go to the jury The judge overruled the motion for a nonsuit, and the defendant's counsel excepted. The judge, among other things, charged the jury that if they should find from the evidence that either Aspinwall or Foord was guilty of negligence in vending, as and for dandelion, the extract taken by Mrs. Thomas, or that the plaintiff Thomas, or those who administered it to Mrs. Thomas, were chargeable with negligence in administering it, the plaintiffs were not entitled to recover; but if they were free from negligence, and if the defendant Winchester was guilty of negligence in putting up and vending the extracts in question, the plaintiffs were entitled to recover, provided the ex- tract administered to Mrs. Thomas was the same which was put up by the defendant, and sold by him to Aspinwall, and by Aspin- wall to Foord. That, if they should find the defendant liable, the plaintiffs in this action were entitled to recover damages only for the personal injury and suffering of the wife, and not for loss of service, medical treatment, or expense to the husband, and that the recovery should be confined to the actual damages suffered by the wife. The action was properly brought in the name of the husband and wife for the personal injury and suffering of the wife, and the case was left to the jury with the proper directions on that point, i Chit. PL (Ed. of 1828) 62. The case depends on the first point taken by the defendant on his motion for a nonsuit; and the question is whether, the defendant being a remote vendor of the medicine, and there being no privity or connection between him and the plaintiffs, the action can' be maintained. If, in labeling a poisonous drug with the name of a harmless medicine, for public market, no duty was violated by the defendant, excepting that which he owed to Aspinwall, his imme- diate vendee, in virtue of his contract of sale, this action cannot be maintained. If A build a wagon, and sell it to B, who sells it to C, and C hires it to D, who, in consequence of the gross negli- gence of A in building the wagon, is overturned and injured, D cannot recover damages against A, the builder. A's obligation to build the wagon faithfully arises solely out of his contract with B. The public have nothing to do with it. Misfortune to third persons, not parties to the contract, would not be a natural and necessary consequence of the builder's negligence ; and such negligence is not an act imminently dangerous to human life. So, for the same rea- son, if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith's negligence in shoeing, the smith is not liable for the in- jury. The smith's duty in such case grows exclusively out of his contract with the owner of the horse. It was a duty which the smith owed to him alone, and to no one else. And, although the 160 LAW OF TORTS. injury to the rider may have happened in consequence of the negli- gence of the smith, the latter was not bound, either by his contract or by any considerations of public policy or safety, to respond for his breach of duty to any one except the person he contracted with. This was the ground on which the case of Winterbottom v. Wright, 10 Mees. & W. 109, was decided. A contracted with the postmaster general to provide a coach to convey the mail-bags along a certain line of road, and B and others also contracted to horse the coach along the same line. B and his co-contractors hired C, who was the plaintiff, to drive the coach. The coach, in consequence of some latent defect, broke down. The plaintiff was thrown from his seat, and lamed. It was held that C could not maintain an action against A for the injury thus sustained. The reason of the decision is best stated by Baron Rolfe: A's duty to keep the coach in good condi- tion was a duty to the postmaster general, with whom he made his contract, and not a duty to the driver employed by the owners of the horses. But the case in hand stands on a different ground. The defend- ant was a dealer in poisonous drugs. Gilbert was his agent in pre- paring them for market. The death or great bodily harm of some person was the natural and inevitable consequence of the sale of belladonna by means of the false label. Gilbert, the defendant's agent, would have been punishable for manslaughter if Mrs. Thomas had died in consequence of taking the falsely labeled medicine. Every man who, by his culpable negligence, causes the death of another, although without intent to kill, is guilty of manslaughter. 2 Rev. St. p. 662, 19. A chemist who negligently sells laudanum in a phial labeled as paregoric, and thereby causes the death of a person to whom it was administered, is guilty of manslaughter. Tessymond's Case, I Lewin, Cr. Cas. 169. "So highly does the law value human life that it admits of no justification wherever life has been lost, and the carelessness or negligence of one person has contributed to the death of another." Regina v. Swindall, 2 Car. & K. 232, 233. And this rule applies, not only where the death of one is occasioned by the negligent act of another, but where it is caused by the negligent omission of a duty of that other. Regina v. Haines, Id. 368, 371. Although the defendant, Win- chester, may not be answerable criminally for the negligence of his agent, there can be no doubt of his liability in a civil action, in which the act of the agent is to be regarded as the act of the prin- cipal. In respect to the wrongful and criminal character of the negligence complained of, the case differs widely from those put by the defend- ant's counsel. No such imminent danger existed in those cases. In the present case the sale of the poisonous article was made to a dealer in drugs, and not to a consumer. The injury, therefore, was GENERAL PRINCIPLES. 161 not likely to fall on him, or on his vendee, who was also a dealer; but much more likely to be visited on a remote purchaser, as ac- tually happened. The defendant's negligence put human life in im- minent danger. Can it be said that there was no duty on the part of the defendant to avoid the creation of that danger by the exercise of greater caution, or that the exercise of that caution was a duty only to his immediate vendee, whose life was not endangered? The defendant's duty arose out of the nature of his business and the dan- ger to others incident to its mismanagement. Nothing but mis- chief like that which actually happened could have been expected from sending the poison falsely labeled into the market, and the de- fendant is justly responsible for the probable consequences of the act. The duty of exercising caution in this respect did not arise out of the defendant's contract of sale to Aspinwall. The wrong done by the defendant was in putting the poison, mislabeled, into the Jiands of Aspinwall, as an article of merchandise, to be sold and afterwards used as the extract of dandelion, by some person then unknown. The owner of a horse and cart who leaves them unat- tended in the street is liable for any damage which may result from his negligence. Lynch v. Nurdin, I Adol. & E. (N. S.) 29; Illidge v. Goodwin, 5 Car. & P. 190. The owner of a loaded gun who puts it into the hands of a child, by whose indiscretion it is discharged, is liable for the damage occasioned by the discharge. Dixon v. Bell, 5 Maule & S. 198. The defendant's contract of sale to Aspinwall does not excuse the wrong done to the plaintiffs. It was a part of the means by which the wrong was effected. The plaintiffs' injury and their remedy would have stood on the same principle if the defendant had given the belladonna to Dr. Foord without price, or if he had put it in his shop without his knowledge, under circumstances which would probably have led to its sale on the faith of the label. In Long- meid v. Holliday, 6 Law & Eq. Rep. 562, the distinction is recognized between an act of negligence imminently dangerous to the lives of others, and one that is not so. In the former case, the party guilty of the negligence is liable to the party injured, whether there be a contract between them or not; in the latter, the negligent party is liable only to the party with whom he contracted, and on the ground that negligence is a breach of the contract. The defendant on the trial insisted that Aspinwall and Foord were guilty of negligence in selling the article in question for what it was represented to be in the label, and that the suit, if it could be sus- tained at all, should have been brought against Foord. The judge charged the jury that if they, or either of them, were guilty of neg- ligence in selling the belladonna for dandelion, the verdict must be for the defendant, and left the question of their negligence to the jury, who found on that point for the plaintiffs. If the case really CHASE (2o ED.) 11 162 LAW OF TORTS. depended on the point thus raised, the question was properly left to the jury. But I think it did not. The defendant, by affixing the label to the jar, represented its contents to be dandelion, and to have been "prepared" by his agent, Gilbert. The word "prepared" on the label must be understood to mean that the article was manu- factured by him, or that it had passed through some process under his hands, which would give him personal knowledge of its true name and quality. Whether Foord was justified in selling the ar- ticle upon the faith of the defendant's label would have been an opeit question in an action by the plaintiffs against him, and I wish to be understood as giving no opinion on that point. But it seems to me to be clear that the defendant cannot, in this case, set up as a de- fense that Foord sold the contents of the jar as and for what the defendant represented it to be. The label conveyed the idea dis- tinctly to Foord that the contents of the jar was the extract of dan- delion, and that the defendant knew it to be such. So far as the de- fendant is concerned, Foord was under no obligation to test the truth of the representation. The charge of the judge in submitting to the jury the question in relation to the negligence of Foord and Aspinwall cannot be complained of by the defendant. GARDINER, J., concurred in affirming the judgment, on the ground that selling the belladonna, without a label indicating that it was a poison, was declared a misdemeanor by statute (2 Rev. St. p. 694, 25), but expressed no opinion upon the question whether, in- dependent of the statute, the defendant would have been liable to these plaintiffs. GRIDLEY, J., was hot present when the cause was decided. All the other members of the court concurred in the opinion delivered by RUGGLES, C. J. Judgment affirmed. (This case was followed in Devlin v. Smith, 89 N. T. 470, 42 Am. Rep. 311, which states the rule as follows: "The liability of a builder or manufacturer is, in general, only to the person with whom he contracted. But, notwith- standing this rule, liability to third parties has been held to exist when the defect is such as to render the article imminently dangerous, and serious in- jury to any person using it is a natural and probable consequence of its use." To the same effect are Huset v. Case Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303, citing many cases; Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298 ; Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715 ; Van Winkle v. Amer. Steam Boiler Co., 52 N. J. Law, 240, 19 Atl. 472; State v. Fox, 79 Md. 514, 29 Atl. 601, 24 L. R. A. 679, 47 Am. St. Rep. 424; Schubert v. Clark Co., 49 Minn. 331, 51 N. W. 1103, 15 L. R. A. 818, 32 Am. St Rep. 559; Peters v. Johnson, 50 W. Va. 644, 41 S. E. 190, 57 L. R. A, 428, 88 Am. St. Rep. 909; Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350, 4 Am. St Rep. 548; Bright v. Barnett Co., 88 Wis. 299, 60 N. W. 418, 26 L. R. A. 524; Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 31 L. R. A. 220, 52 Am. St Rep. 146; Ives v. GENERAL PRINCIPLES. 163 Welden, 114 Iowa, 47G, 87 N. W. 408, 54 L. R. A. 854, 89 Am. St. Rep. 379; cf. Heaven v. Fender, 11 Q. B. D. 503; Parry v. Smith, L. R. 4 C. P. D. 325; Bick- ford v. Richards, 154 Mass. 103, 27 N. E. 1014, 26 Am. St Rep. 224.) Liability of infants for torts. (17 Wis. 230.) HUCHTING v. ENGEL. (Supreme Court of Wisconsin. June Term, 1863.) TRESPASS LIABILITY OF INFANT. An infant, though only a little over six years old, is liable for a trespass committed by him in breaking and entering the premises of another, and breaking down and destroying shrubbery and flowers, but only compensa- tory damages are recoverable. Error to Circuit Court, Dane County. Huchting brought an action before a justice of the peace against Moirtz Engel for breaking and entering the plaintiff's premises, and breaking down and destroying his shrubbery and flowers therein standing and growing. The answer, after a general denial, stated that, if the defendant ever committed the alleged trespass, "he did so through the want of judgment and discretion, being an infant of about six years of age." On the trial before the justice the plaintiff proved the alleged trespass and damages; and on the part of the defense it was shown that the defendant, at the time of the tres- pass, was but little more than six years old. A motion to dismiss the action, on the ground that the defendant was "of such tender years that a suit at law could not be maintained against him, nor execution issued on a judgment against him," was overruled. The justice rendered judgment against the defendant for $3.00 damages, with costs. The circuit court, on appeal, reversed the judgment, and the plaintiff sued out his writ of error. DIXON, C. J. "Infants are liable in actions arising ex delicto, whether founded on positive wrongs, as trespass or assault, or con- structive torts or frauds." 2. Kent's Com. 241. "Where the minor has committed a tort with force, he is liable at any age, for in case of civil injuries with force the intention is not regarded ; for in such a case a lunatic is as liable to compensate in damages as a man in his right mind." Reeve's Dom. Rei. 258. "The privilege of infancy is purely protective, and infants are liable to actions for wrong done by them ; as to an action for slander, an action of trover for property embezzled, or an action grounded on fraud committed." Macpherson on Infants, 481 (41 Law Lib. 305). 164 LAW OF TORTS. "Infants are liable for torts and injuries of a private nature; as disseisins, trespass, slander, assault, etc." Bingham on Infancy, no. "All the cases agree that trespass lies against an infant." Hart- field v. Roper, 21 Wend. 620, 34 Am. Dec. 273. This is the language of a few of the many writers and courts who have spoken upon the subject. All agree, and all are supported by the authorities, with no single adjudged case to the contrary. Jen- nings vs. Randall, 8 Term, 335; Sikes v. Johnson, 16 Mass. 389; Homer v. Thwing, 3 Pick. 492; Campbell v. Stakes, 2 Wend. 137, 19 Am. Dec. 561 ; Bullock v. Babcock, 3 Wend. 391 ; Neal v. Gillett, 23 Conn. 437; Humphrey v. Douglass, 10 Vt. 71, 33 Am. Dec. 177. In the latter case the minor was held answerable for a trespass commit- ted by him, although he acted by command of his father. The authorities cited by the counsel for the defendant in error have no bearing upon the question. They relate to the criminal re- sponsibility of infants, to the question of negligence on their part, as whether it can be imputed to them so as to defeat actions brought by them to recover damages for personal injuries sustained in part in consequence of the negligence or unskillfulness of others ; and to the liability of parents and guardians for wrongs committed by in- fants under their charge by reason of the neglect or want of proper care of such parents or guardians. The case at bar is none of these. The defendant is not prosecuted criminally ; the action is not by him to recover damages for personal injury occasioned by the joint neg- ligence of himself or his parents and another; nor is the liability of the parents involved. The suit is brought to recover damages for a trespass committed by him, not vindictive or punitory damages, but compensation, and for that he is clearly liable. If damages by way of punishment were demanded, undoubtedly his extreme youth and consequent want of discretion would be a good answer. Judgment of the circuit reversed, and that of the justice of the peace affirmed. (To the same effect are Peterson v. Haffner, 59 Ind. 130, 26 Am. Rep. 81 [action for assault and battery committed by boy 13 years old] ; Conklin v. Thompson, 29 Barb. 218 [boy of 14 threw lighted firecracker under horse, and it exploded, causing the horse's death from fright] ; Neal v. Gillett, 23 Conn. 437 [negligence by boys of 13 and 16] ; Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189 [infant bailee of a horse willfully injuring the animal so that it dies] ; Lewis v. Littlefield, 15 Me. 233 [conversion by infant] ; Walker v. Davis, 1 Gray, 506 [conversion] ; McCabe v. O'Connor, 4 App. Div. 354, 38 N. Y. Supp, 572, affirmed 162 N. Y. 600, 57 N. E. 1116 [injury by fall upon plaintiff's ad- jacent premises of dangerous wall standing upon infant's land]). GENERAL PRINCIPLES. 165 (1 HUD, 578.) MOORE v. EASTMAN. (Supreme Court of New York, General Term, Fourth Department June Term, 1874.) INFANT TORT CONNECTED WITH CONTRACT. To render an infant, who has hired a horse to drive, liable in an action of tort for injury to the animal, he must do some willful and positive act which amounts to an election on his part to disaffirm the contract ; a bare neglect to protect the animal from injury and to return it at the time agreed upon is not sufficient.' If he willfully and intentionally injure the animal, an action will lie against him for the tort, but not if the injury complained of occur in the act of driving the animal, through his unskill- fulness, and want of knowledge, discretion, and judgment Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury. This action was brought to recover against the defendant in tres- pass for an injury to a horse of the plaintiff. The answer denies the complaint, and sets up a contract of bailment and infancy. Evidence was given on the part of the plaintiff to show that he let the horse to the defendant for two days ; that the horse was taken sick on the journey, and that such sickness was occasioned by overdriving; that the defendant, against the advice of the doctor and hotel keeper, drove the horse, while so sick, at a fast gait; and that shortly after the horse reached the plaintiff's stable he died from the effects of such overdriving. GILBERT, J. The complaint avers a wrongful taking of the horse by the defendant, and that in consequence of his malicious, wicked, and cruel treatment the horse died. The defense is infancy, and that at the time the alleged wrongful acts were committed the horse was in the possession of the defendant, by virtue of a con- tract of bailment for hire, and that said wrongful acts occurred solely through the unskillfulness and want of judgment of the defend- ant, and not from any intentional or malicious or willful act or wrong on his part. The question is, what proof is requisite to a recovery upon such an issue? Acts, however aggravated, which merely es- tablish a breach of the contract on the part of an infant, manifestly are insufficient. The plaintiff cannot convert anything that arises out of a contract with an infant into a tort, and then seek to enforce the contract through the medium of an action ex delicto. There must be a tort, independent of the contract. The authorities all agree on this principle. In Jennings v. Rundall, 8 T. R. 335, it was held that when a boy hired a horse, and injured it by immoderate driving, this was only a breach of contract, for which he was not liable. So, in Green v. Greenbank, 2 Marsh. 485, the court of com- 166 LAW OF TORTS. mon pleas, in England, held that an infant was not liable to an ac- tion for falsely and fraudulently deceiving the plaintiff in an ex- change of horses, because the deceit was practiced in the course of the contract. The principle of these cases was unanimously ap- proved by the late court for the correction of errors, in Campbell v. Stakes, 2 Wend. 137, 19 Am. Dec. 561, which was an action of trespass for misusing a mare hired by the defendant, who was an infant. It was held in that case that a bare neglect to protect the animal from injury, and to return it at the time agreed upon, would not subject an infant to an action of trespass, but that the infant must do some willful and positive act, which amounts to an election on his part to disaffirm the contract; that if the infant willfully and intentionally injured the animal, an action of trespass would lie against him for the tort ; but that if the injury complained of occur- red in the act of driving the animal, through the unskillfulness and want of knowledge, discretion, and judgment of the infant, he would not be liable. The rule thus established has not been changed in this state, to my knowledge, but, on the contrary, has been repeat- edly recognized and approved. The People v. Kendall, 25 Wend. 399, 37 Am. Dec. 240; Hunger v. Hess, 28 Barb. 75; Robbins v. Mount, 4 Rob. 553. What, then, is the willful and positive act which amounts to an election to disaffirm the contract? Certainly, such an act cannot be predicated of a use of the animal in the course of the bailment, however excessive, unless the excess was such as to indicate that it was resorted to for a purpose beyond that for which the horse was hired. Nothing of that kind appears in this case. Instances of the kind of wrong that will make an infant liable are not wanting in the adjudged cases. Burnard v. Haggis, 14 C. B. (N. S.) 45, where an infant hired a mare on the terms that it was to be ridden on the road, and not over fences in the fields, and the infant lent it to a friend, who took it off the highroad, and, in endeavor- ing to jump the animal over a fence, transfixed it on a stake and killed it; Towne v. Wiley, 23 Vt. 355, 56 Am. Dec. 85, Homer v. Thwing, 3 Pick. 492, Lucas v. Trumbull, 1^5 Gray, 307, and Fish v. Ferris, 5 Duer, 49, where the infant drove the horse further than- the stipulated journey, or on a different one; and cases where an infant obtains goods by fraud, and then refuses to deliver them up on the demand of the party who has been defrauded, or where he has been intrusted with them for a special purpose, and has perverted them to another purpose may be taken as examples. They are all con- sistent with, and at least furnish a negative confirmation of, the prin- ciple before alluded to, that a mere violation of a contract, though attended with tortious results, will not make the infant liable, but that to have that effect the act must be wholly tortious. In the case before us, taking the evidence on the part of the plain- tiff alone, the defendant is fairly chargeable with only two or three GENERAL PRINCIPLES. 167 acts of immoderate driving of the horse while performing the serv- ice for which he was hired, and with driving him when not in a fit condition to continue that service. There was no other basis for the inference that the injury to the horse was positive or willful. The question whether the injury was of that character, or was the result of indiscretion, or want of skill and judgment on the part of the defendant, was fairly submitted to the jury, and we think their verdict was correct. Several requests were made to the judge to modify his charge. One of them was that if the jury should find the horse was over- driven, and in a cruel and unusual manner, they might infer the in- tent from such cruel driving. This was properly refused, because there was no evidence of such cruelty. The other requests, though variant in form, presented merely the converse of the propositions embraced in the judge's charge, and, of course, were properly re- fused. The judgment must be affirmed. Judgment affirmed. (To the same effect is Young v. Muhling, 48 App. Div. 617, 63 N. T. Supp. 181.) (175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560, 78 Am. St Rep. 510.) SLAYTON v. BARRY. (Supreme Judicial Court of Massachusetts. Middlesex. March 3, 1900.) INFANT TOBT CONNECTED WITH CONTRACT FALSE STATEMENT AS TO AGE. Where an infant, by falsely representing himself to be of full age, in- duces another to sell him goods, he is not liable in an action of tort for so obtaining the goods any more than he would be in an action on contract Exceptions from Superior Court, Middlesex County; Caleb Blod- gett, Judge. Action by John C. F. Slayton against Philip A. Barry. From a ruling ordering a verdict for defendant, plaintiff excepts. Excep- tions overruled. MORTON, J. The declaration in this case is in two counts. The second count is in trover for the goods described in the first count. The first count alleges, in substance, that the defendant, intending to defraud the plaintiff, deceitfully and fraudulently represented to him that he was of full age, and thereby induced the plaintiff to sell and deliver to him the goods described, and, though often requested, had refused to pay for or return the goods, but had delivered them to persons unknown to the plaintiff. The case is here on exceptions to the refusal of the presiding judge to give certain instructions re- quested by the plaintiff, and to his ruling ordering a verdict for the 168 LAW OF TORTS. defendant. The question is whether the plaintiff can maintain his action. He could not bring an action of contract, and so has brought an action of tort. The precise question presented has never been passed upon by this court. Merriam v. Cunningham, n Cush. 40, 43. In other jurisdictions it has been decided differently by dif- ferent courts. We think that the weight of authority is against the right to maintain the action. Johnson v. Pie, I Lev. 169, I Sid. 258, i Keb. 905 ; Grove v. Nevill, I Keb. 778 ; Jennings v. Rundall, 8 Term R. 335 ; Green v. Greenbank, 2 Marsh. 485 ; Price v. Hew- ett, 8 Exch. 146; Wright v. Leonard, n C. B. (N. S.) 258; De Roo v. Foster, 12 C. B. (N. S.) 272; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659; Nash v. Jewett, 61 Vt. 501, 18 Atl. 47, 4 L. R. A. 561, 15 Am. St. Rep. 931 ; Ferguson v. Bobo, 54 Miss. 121 ; Brown v. Dun- ham, i Root, 272; Geer v. Hovey, Id. 179; Wilt v. Welsh, 6 Watts, 9; Burns v. Hill, 19 Ga. 22; Kilgore v. Jordan, 17 Tex. 341; Benj. Sales (6th Ed.) 23; Cooley, Torts (2d Ed.) 126; 2 Add. Torts, 1314. See, contra, Fitts v. Hall, 9 N. H. 441 ; Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189; Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53 ; Wallace v. Morss, 5 Hill, 391. The general rule is, of course, that infants are liable for their torts. Sikes v. Johnson, 16 Mass. 389; Homer v. Thwing, 3 Pick. 492; Shaw v. Coffin, 58 Me. 254, 4 Am. Rep. 290; Vasse v. Smith, 6 Cranch, 226, 3 L. Ed. 207. But the rule is not an unlimited one. It is to be applied with due regard to the other equally well settled rule, that, with certain exceptions, they are not liable on their con- tracts; and the dominant consideration is not that of liability for their torts, but of protection from their contracts. The true rule seems to us to be as stated in Association v. Fairhurst, 9 Exch. 422, 429, where it was sought to hold a married woman for a fraudulent misrepresentation, namely: If the fraud "is directly connected with the contract, * * * and is the means of effecting it, and parcel of the same transaction," then the infant will not be liable in tort. The rule is stated in 2 Kent, Comm. (8th Ed.) 241, as follows: "The fraudulent act, to charge him [the infant], must be wholly tortious; and a matter arising ex contractu, though injected with fraud, cannot be changed into a tort in order to charge the infant in trover or case by a change in the form of the action." In the pres- ent case it seems to us that the fraud on which the plaintiff relies was part and parcel of the contract, r.nd directly connected with it. The plaintiff cannot maintain his action without showing that there was a contract, which he was induced to enter into by the defendant's fraudulent representations in regard to his capacity to contract, and that pursuant to that contract there was a sale and delivery of the goods in question. Whether, as an original proposition, it would be better if the rule were as laid down in Fitts v. Hall, supra, and GENERAL PRINCIPLES. 169 Hall v. Butterfield, supra, in New Hampshire, and Rice v. Boyer, >upra, in Indiana, we need not consider. The plaintiff relies on Homer v. Thwing, supra; Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105, and Walker v. Davis, I Gray, 506. In Walker v. Davis, supra, there was no completed contract, and the title did not pass. The sale of the cow by the defendant operated, therefore, clearly, as a conversion. Badger v. Phinney, supra, was an action of replevin ; and it was held that the property had not passed, or if it had, that it had revested in the plaintiff in consequence of the defendant's fraud. The plaintiff maintained his action independently of the con- tract. In Homer v. Thwing, supra, the tort was only incidentally connected with the contract of hiring. We think that the exceptions should be overruled. So ordered. (See Hewitt v. Warren, 10 Hun, 560; N. T. Bldg. Loan Banking Co. v. Fisher, 23 App. Div. 363, 48 N. Y. Supp. 152. As to the liability of married women for fraud connected with contract, see Cooley on Torts [2d Ed.] 133, 134; for their torts generally, Id. 131, 132, 135. The common-law rules in regard to married women have been much changed by modern statutes, making them lia- ble for their torts pretty much as single women are.) Co-tort-feasors; how sued. (90 Hun, 588, 35 N. Y. Supp. 975.) KIRBY v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO. et al. (Supreme Court of New York, General Term, Third Department December 3, 1895.) JOINT WBONQDOEBS How SUED. In an action for negligence, the liability being joint and several, plain- tiff may proceed against any one, all, or such number of wrongdoers as he may choose, and where two or more are sued together, the jury may find in favor of one defendant and against the others. Appeal from Circuit Court, Rensselaer County. Action by Sarah Kirby against the president, managers, and com- pany of the Delaware & Hudson Canal Company and Dell Brown for personal injuries received in consequence of the explosion of a hot-water heating apparatus in. an hotel of which defendant Brown was owner and proprietor, and in which defendant railroad company, by permission of defendant Brown, had a ticket office; plaintiff be- ing at the time of the accident in the sitting room of the hotel, which was from time to time used by ladies waiting for trains ; she having gone there after taking a meal at the hotel, to wait for defendant's train, on which she was to proceed on her trip. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed. 170 LAW OF TORTS. Argued before MAYHAM, P. T-, and PUTNAM and HERRICK, JJ- HERRICK, J. The action against the defendant is one founded upon alleged negligence. In such cases the plaintiff may proceed against any one, all, or such number of the wrongdoers as he may choose. Roberts v. Johnson, 58 N. Y. 613. The liability is a joint and several liability. Kain v. Smith, 80 N. Y. 458-468. In action of tort, where two or more are sued together, a jury may find in favor of one defendant and against the other. Lansing v. Montgomery, 2 Johns. 382; Drake v. Barrymore, 14 Johns. 166; Lockwood v. Bull, i Cow. 322, 13 Am. Dec. 539; Beal v. Finch, n N. Y. 128-134. In this case the legal relations between the plaintiff and the defendant Brown, and between the plaintiff and the defendant railroad com- pany, were different ; and it seems to me, therefore, that this is pecul- iarly a case where the above-cited rules are applicable, and where it might well be held that the jury had the power, if they thought the evi- dence justified them, in holding one defendant responsible and the other not. Upon the trial, in charging the jury, the court said, "I think they cannot find against one and in favor of the other, under the testimony in this case," to which exception was taken. That, I think, was error, sufficient to call for a reversal of the judgment. That being so, there is no occasion at this time to examine the other questions argued upon this appeal. The judgment and order appealed from should be reversed, and a new trial granted ; costs to abide the event. All concur. (To the same effect are Atlantic & P. R. Co. v. Laird, 164 U. S. 393, 17 Sup. Ct 120, 41 L. Ed. 485; Gudger v. Western R. Co. [C. C.] 21 Fed. 81; Corey v. Havener, 182 Mass. 250, 65 N. E. 69; Dyett v. Hyman, 129 N. Y. 351. 29 N. E. 261, 26 Am. St Rep. 533; Wabash, St L. & P. R. Co. v. Shacklet, 105 111. 364, 44 Am. Rep. 791. The same rule applies to partners as regards torts commit- ted in the course of the partnership business. Wisconsin Cent R. Co. v. Ross, 142 111. 9, 31 N. E. 412, 34 Am. St Rep. 49; Roberts v. Johnson, 58 N. Y. 613; Howe v. Shaw, 56 Me. 291. Partners are liable for the torts of one of them, though done without the knowledge of the others, if done for the benefit of the partnership and within the scope of its business. Lothrop v. Adams, 133 Mass. 471, 481, 43 Am. Rep. 528; Strang v. Bradner, 114 U. S. 555, 5 Sup. Ct 1038, 29 L. Ed. 248; Chester v. Dickerson, 54 N. Y. 1, 13 Am. Rep. 550. , An analogous rule is thus stated: "While it is true that persons who act separately and independently, each causing a separate and distinct injury, can- not be sued jointly, even though the injuries may have been precisely similar in character and inflicted at the same moment [see Howard v. Union Traction Co., 195 Pa. 391, 45 Atl. 1076], yet if such persons, acting independently, by their several acts directly contribute to produce a single injury, each being sufficient to have caused the whole, and it is impossible to distinguish the por- tions of injury caused by each, they are then joint tort-feasors, and may be sued either jointly or severally, at the election of the plaintiff, and in such an action against one or more the whole damage may be recovered." Allison v. Hobbs, 96 Me. 26. 51 Atl. 245; Boston & A. R. Co. v. Shanly, 107 Mass. 568; Newman v. Fowler, 37 N. J. Law. 89; Economy Light Co. v. Hi Her, 203 III GENERAL PRINCIPLES. 171 518, G8 N. E. 72; Slater v. Mersereau, 64 N. Y. 138; cf. Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 56G. But where the dogs of different persons do dam- age together, each owner is only liable for the mischief done by his own dog. Nierenberg v. Wood, 59 N. J. Law, 112, 35 Atl. 654; Auchmuty v. Ham, 1 Denio, 495. It Is the generally accepted rule that a judgment against one of two or more co-tort-feasors will not bar an action against another of them, or against the others, but that judgment plus satisfaction will operate as a bar. Knapp v. Roche, 94 N. Y. 329; Luce v. Dexter, 135 Mass. 23; Maple v. Railroad Co., 40 Ohio St. 313, 48 Am. Rep. 685; City of Roodhouse v. Christian, 158 111. 137, 41 N. E. 748; Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881. If several actions are brought, the plaintiff may recover costs In all the actions. Lord ?. Tiffany, 98 N. Y. 412, 50 Am. Rep. 689.) The same: damages not apportioned among the co-tort- feasors. (14 R. I. 175.) KEEGAN v. HAYDEN et al. (Supreme Court of Rhode Island. May 31, 1883.) JOINT TRESPASSERS APPORTIONMENT OF DAMAGES. On a verdict for plaintiff, in an action for assault and battery and false imprisonment against several defendants, the damages are properly as- sessed jointly against all, without discrimination between the defendants. .Petition for a new trial. Action of trespass by Lawrence Keegan against William F. Hay- den and others. The jury found a verdict against all the defendants Defendants petitioned for a new trial. DURFEE, C. J. This is a petition for the new trial of an action of trespass against three several defendants for assault and battery and false imprisonment. The defendants pleaded jointly First, the general issue; and, second, a special plea in justification that they were police constables of the city of Providence, and as such arrested the plaintiff for intoxication in the public streets of said city, and de- tained him for trial, the said arrest and detention being the trespasses complained of. The jury on trial returned a verdict for the plaintiff against them all jointly for $500. One of the grounds assigned for new trial is that the jury did not discriminate between the defendants, but assessed them all jointly for the full amount of the damages. We do not find any error in this. The rule is that, in an action of tort against several who are jointly charged, the verdict ought to be rendered against all who are proved guilty as charged, without any apportionment of the damages, each and all of them being alike liable for the wrong to the fullest extent, in whatever different degrees they 172 LAW OF TORTS. may have contributed to it. Hill v. Goodchild, 5 Burrows, 2790; Hume v. Oldacre, I Starkie, 351 ; Berry v. Fletcher, I Dill. 67, 71, Fed. Cas. No. 1,357; Sprague v. Kneeland, 12 Wend. 161 ; Halsey v. Woodruff, 9 Pick. 555; Fuller v. Chamberlain, n Mete. (Mass.) 503; Currier v. Swan, 63 Me. 323; Clark v. Bales, 15 Ark. 452; Hair v. Little, 28 Ala. 236; Bell v. Morrison, 27 Miss. 68; Beal v. Finch, II N. Y. 128. The defendants also ask for a new trial because the verdict is against the evidence, and the weight thereof, and because the dam- ages are excessive. The evidence is conflicting, but we are not pre- pared to set the verdict aside for the first of these two reasons. We think, however, that the damages are excessive, for, according to the evidence, the peace of the street had been disturbed, and the plaintiff, if not indecently drunk, had been drinking enough to make him ex- citable and abusive. A new trial will therefore be granted, unless the verdict is reduced to $300. (Additional authorities are Post v. Stockwell, 34 Hun, 373; Huddleston v. West Bellevue, 111 Pa. 110, 2 Atl. 200 ; Everroad v. Gabbert, 83 Ind. 489.) The same: in general, no right of contribution exists be- tween co-tort-feasors; exceptions. (28 Conn. 455.) BAILEY v. BUSSING (in part). (Supreme Court of Errors of Connecticut October Term, 1859.) 1. CONTRIBUTION TORTS. The rule that there can be no contribution among wrong-doers applies properly only to cases where there has been an intentional violation of law, or where the wrong-doer is to be presumed to have known that the act was unlawful. 2. SAME. A judgment was recovered in tort against three defendants, jointly in- terested in the running of a stage, for an injury caused to a traveler upon the road by the negligence of one of the defendants, who was driving. One of the other defendants was compelled to pay the whole amount of the judgment, and brought an action against the defendant whose negli- gence had caused the injury for a contribution. Held, that he was clearly entitled to a contribution, if not to a full indemnity. Action by George F. Bailey and another in assumpsit, as executors of Aaron Turner, against Thomas Bussing to recover one-third of the amount of a judgment recovered against Turner and the defend- ant and one Whitlock for an injury by the negligent management of a public stage on the highway, in the running of which all the defend- GENERAL PRINCIPLES. 173 ants were alleged to be jointly interested. The defendant Bussing was the driver of the stage, and the injury was caused by his negligence. Judgment for plaintiffs. Defendant moves for a new trial. Denied. ELLSWORTH, J. This is an action of assumpsit, to compel a contribution for money paid on a judgment against three defendants, Whitlock, Aaron Turner the plaintiffs' testator, and Bussing the pres- ent defendant. That there was a judgment rendered by the superior court for Fairfield county at its February term in 1852, against Whit- lock, Turner and Bussing, and that Turner was compelled to pay, and did pay, on the execution, the whole amount of the judgment, or such a sum as was received in satisfaction of the judgment, is admit- ted or not denied. This evidence, it is said, would in law prima facie entitle the plaintiffs to recover one-third of the sum paid from the de- fendant, and that there must be such recovery unless there is some- thing peculiar to the present case which saves it from the application of the principle ordinarily applicable to such cases. If this judgment had been recovered on a joint contract or joint liability of any kind sounding in contract, the production of the judg- ment, and proof of payment by Turner of the whole sum, would of course show a good cause of action in the plaintiffs for the recovery from Bussing of one-third the amount paid. Is there anything on this record which, when taken in connection with the evidence re- ceived in the case, distinguishes this case from the one just sup- p'osed ? The defendant insists that that judgment was rendered in an action of tort, and that in that class of cases there is to be no contribution among wrong-doers; the maxim of law being, as he claims, that among tort-feasors there is no contribution. To meet this objection, the plaintiffs offered evidence, and we think with entire propriety, to prove that, while the maxim might be true as a general rule, the case on trial belonged to a class of cases to which it had no application, for that here there was no personal wrong, not even negligence in a culpable sense, on the part of Turner, and that he had been found guilty only by implication, or legal inference from a supposed rela- tion to Bussing, the actual wrong-doer, through whose neglect the other two defendants had been subjected by the jury. No objection was made to the reception of the evidence, and we think none could properly have been made. The court received it and found the fact to be as claimed by the plaintiffs, that Turner was not present, and had no participation in the negligent conduct of the driver of the stage which caused the injury to Mrs. Haight, notwith- standing that, under the particular charge of the court in that case, the jury found that Turner was, in a legal sense, implicated and liable, even though there was not any actual wrong on his part. What then is this case? And what is the true doctrine of the law 174 LAW OF TORTS. as to contribution, or, as it may be, full indemnity, where there has been no illegal act or conduct on the part of him who seeks for a con- tribution? The reason assigned in the books for denying contribution among trespassers is that no right of action can be based on a violation of law, that is, where the act is known to be such or is apparently of that character. A guilty trespasser it is said can not be allowed to ap- peal to the law for an indemnity, for he has placed himself without its pale by contemning it, and must ask in vain for its interposition in his behalf. If however he was innocent of an illegal purpose, igno- rant of the nature of the act, which was apparently correct and prop- er, the rule will change with its reason, and he may then have an in- demnity, or as the case may be a contribution, as a servant yielding obedience to the command of his master, or an agent to his principal, in what appears to be right, an assistant rendering aid to a sheriff in the execution of process, or common carriers, to whom is committed and who innocently carry away property which has been stolen from the owner. Indemnity, or contribution to the full amount, is allowa- ble here, and it can be enforced by action if refused, whether the per- son seeking it has been subjected in case or assumpsit to the damages of which he complains. And since in many instances the person in- jured has an election to sue in case or assumpsit, it is not possible that the form of action in which the party seeking for indemnity or contribution has been subjected, should be the criterion of his right to call for it. One partner or one joint proprietor may do that which will subject all the rest in case or assumpsit, as the fact may be, but there may be a right to contribution notwithstanding, and in some cases, if indeed the present is not one of them, a full indemnity may be justly demanded from the person doing the wrong, by the other partners whom he has involved in loss by his wrongful act. The form of action then is not the criterion. We must look further. We must look for personal participation, personal culpability, personal . knowledge. If we do not find these circumstances, but perceive only a liability in the eye of the law, growing out of a mere relation to the perpetrator of the wrong, the maxim of law that there is no contribu- tion among wrong doers is not to be applied. Indeed we think this maxim too much broken in upon at this day to be called with pro- priety a rule of law, so many are the exceptions to it, as in the cases of master and servant, principal and agent, partners, joint operators, carriers and the like. One of the earliest cases where the maxim is recognized is Merry- weather v. Nixan, 8 Term R. 186, where the plaintiff was the active wrong doer. Having paid the whole damage, he sought for a con- tribution. It was denied him, and rightfully so, upon the strength of the maxim referred to. But even here, lest a wrong inference should be drawn from the decision, Lord Kenyon, C. J., says : ' "This GENERAL PRINCIPLES. 175 decision will not affect cases of indemnity where one man employed another to do an act not unlawful in itself." The earlier case of Phil- ips v. Biggs, Hardr. 164, in which this point was raised, was never decided. In Wooley v. Batte, before Justice Park, 2 Car. & P. 417, one stage proprietor had been sued alone in case for an injury to a passenger through the neglect of the coachman, and, having paid the damages, he brought assumpsit for a contribution, and recovered on the ground that in him there was no personal fault. In Adamson v. Jarvis, 4 Bing. 66, suit was brought for indemnity by an auctioneer against his employer, he having sold goods which did not belong to his employer and for which he had been- compelled to pay upon a judgment recovered against him by the owner, being himself inno- cent. The court held that he could recover. Best, C. J., said: "From the inclination of the court in the case in Hardres and from the concluding part of Lord Kenyon's judgment in Merryweather v. Nixan, and from reason, justice and sound policy, the rule that wrong doers can not have redress or contribution against each other, is con- fined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act." In Betts v. Gib- bins, 2 Adol. & E. 57, Lord Denman, C. J., says : "The general rule is, that between wrong doers there is neither indemnity nor contribu- tion. The exception is where the act is not clearly illegal in itself. If they were acting bona fide, I can not conceive what rule there can be to hinder the defendant from being liable for the risk." Again, speaking of Battersey's Case, Winche, 48, he says that it shows that there may be an indemnity between wrong doers, unless it appears that they have been jointly concerned in doing what the party com- plaining knew to be illegal. In Story on Partnership (section 220) the learned commentator says, speaking of the maxim that there is no contribution among wrong doers, "but the rule is to be under- stood according to its true sense and meaning, which is where the tort is a known, meditated wrong, and not where the party is acting under the supposition of the innocence and propriety of the act, and the tort is one by construction or inference of law. In the latter case, although not in the former, there may be and properly is a con- tribution allowed by law for such payments and expenses between the constructive wrong doers, whether partners or not." The cases are all brought together in Chitty on Contracts (page 502), where the author most fully sustains by his own remarks the qualifications of the rule laid down by Lord Denman. I will here leave this topic, only repeating my remark that the maxim in question is scarcely worthy of being considered a general rule of law, for it is applicable only to a definite class of cases, and to that class the case before us does not belong. We conclude therefore that the objections we have been consider- ing ought not to defeat the right of the plaintiff to recover, and we 176 LAW OF TORTS. do not advise a new trial. In this opinion the other judges con- curred. New trial not advised. (To the same effect are Armstrong Co. v. Clarion Co., 66 Pa. 218, 5 Am. Rep. 3G8 ; Nichols v. Nowling, 82 Ind. 488 ; Herr v. Barber, 2 Macke'y, 545 ; Golds- borough v. Darst, 9 111. App. 205 ; Gregg v. Page Belting Co., 69 N. H. 247, 46 Atl. 26; Vandiver v. Pollak, 97 Ala. 467, 12 South. 473, 19 L. R. A. 628. In Palmer v. Wick, etc., Shipping Co. [1894] A. C. 318, it is said that the doctrine of Merryweather v. Nixan, 8 Term R. 186, ought not to be extended. In Kolb v. National Surety Co., 176 N. Y. 233, 68 N. E. 247, it is said: "The general proposition is true that there is no right of contribution as between wrong- doers which can be enforced, for a court of equity will refuse to lend its aid to those who have been guilty of illegal conduct, or who do not come before it with clean hands.") The same: indemnity between tort-feasors. (81 Hun, 147, 30 N. T. Supp. 686.) TRUSTEES OF VILLAGE OF CANANDAIGUA v. FOSTER (In part). (Supreme Court of New York, General Term. Fifth Department October 17, 1894.) TOBT-FEASOBS WHEN INDEMNITY RECOVEBABLE. Where a vault, covered by a grating in the sidewalk above, was con- structed by the owner of abutting premises with the consent of the village, and he afterwards reconstructed it without such consent, but this work was done improperly, and, by reason thereof, the grating came soon after- wards to be in an unsafe condition, held, that the village might recover from him the amount which it was compelled to pay in an action against it by a person who was injured by the defective condition of the sidewalk. Appeal from Circuit Court, Ontario County. Action by the trustees of the village of Canandaigua against Wil- liam L. Foster to recover the amount of a judgment recovered against and paid by said village in an action by one McSherry for per- sonal injuries sustained by falling on a defective sidewalk in front of defendant's premises. From an order denying a motion for a new trial on the minutes of the court after verdict in favor of plaintiffs, defendant appeals. Affirmed. * Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ. DWIGHT, P. J. One McSherry, in 1889, brought an action against the village of Canandaigua for injuries sustained by him in falling on a defective sidewalk, in front of premises of defendant, on one of the streets of that village. The plaintiffs gave the defendant notice to defend the action, and he undertook to do so. Judgment, GENERAL PRINCIPLES. 177 however, went against the village, which the plaintiffs paid, and now bring their action over, to recover of the defendant the amount so paid. The defect in the sidewalk was a loose grating, covering the opening into a vault beneath. The vault was excavated and the grat- ing set by the defendant many years before, with the acquiescence and consent, actual or implied, of the village authorities. Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132, 14 L. R. A. 398. It was there- fore out of the question that the plaintiffs should recover over, against the defendant, for the original construction, good or bad, of the vault and grating (Trustees of Geneva v. Brush Electric Co., 50 Hun, 581, 3 N. Y. Supp. 595, affirmed 130 N. Y. 670, 29 N. E. 1034); and so the court held at the circuit. But the defendant reconstructed the opening and reset the grating in the summer of 1888, and the evi- dence pn the part of the plaintiffs tends to show that this work was done in an improper manner, and that, in consequence of it, the grat- ing soon after came to be in an unsafe condition, and that the acci- dent to McSherry resulted therefrom. This evidence presented the main question which was submitted to the jury, and properly sub- mitted, as we think. There was no evidence of consent on the part of the village to the reconstruction, nor lapse of time from which ac- quiescence should be inferred. If, therefore, the reconstructed open- ing and grating were a nuisance, the defendant, and not the village, was primarily liable for injuries to third persons resulting therefrom. As we had occasion to say in the case of Village of Geneva, supra: "The general rule which denies indemnity or contribution to joint wrongdoers is elementary. The cases in which recovery over is per- mitted in favor of one who has been compelled to respond to the par- ty injured are exceptions to the general rule, and are based upon principles of equity. Such exceptions obtain in two classes of cases : First, where the party claiming indemnity has not been guilty of any fault except technically or constructively, as where an innocent mas- ter is held to respond for the tort of his servant, acting within the scope of his employment ; or, second, where both parties have been in fault, but not in the same fault, towards the person injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury." Illustrations of the second class were found in cases, like the pres- ent, "of recovery against municipalities for obstructions to the high- ways caused by private persons. The fault of the latter is the crea- tion of the nuisance ; that of the former, the failure to remove it, in the exercise of its duty to care for the safety of the public streets. The first was a positive tort, and the efficient cause of the injury com- plained of ; the latter, the negative tort of neglect to act upon notice, express or implied." The cases here cited of Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550, Village of Seneca Falls v. Zalinski, 8 Hun, 575, and City of Rochester v. Montgomery, 72 N. Y. 65, and CHASE (2o ED.) 12 178 LAW OP TORTS. many others of like character, are cases of the second class above described ; and they clearly support the submission of this case to the jury, with the instruction, in effect, that if they should find that, in the reconstruction of the grating, the defendant did the work improp- erly, and in such a manner as to make the use of the sidewalk dan- gerous, and that the accident in question resulted therefrom, then the plaintiffs might maintain their action over against the defendant. The order appealed from should be affirmed. All concur. (This case was affirmed on other grounds in 156 N. Y. 354, 50 N. E. 971, 41 L. R. A. 554, 66 Am. St. Rep. 575. Upon the question of "indemnity," see, also, Churchill v. Holt, 131 Mass. 67, 41 Am. Rep. 191 ; Minneapolis Mill Co. v. Wheeler, 31 Minn. 121, 16 N. W. 698 ; Gridley v. Bloomington, 68 111. 47 ; Smith v. Foran, 43 Conn. 244, 21 Am. Rep. 647 [master recovering indemnity from servant] ; Grand Trunk R. Co. v. Latham, 63 Me. 177 [Id.] ; Howe v. Buffalo, N. Y. & E. R. Co., 37 N. Y. 297 [agent recovering indemnity from principal]. In Oceanic Nav. Co. v. Companla, 134 N. Y. 461, 31 N. E. 987, 30 Am. St Rep. 685, it is held that "one who, without fault on his own part, has been held legally liable for the negligence of another, is entitled to indemnity from the latter." S. P., Chicago City v. Robbins, 2 Black, 418, 17 L. Ed. 298. But even an actual agreement or bond of indemnity will not be enforceable in favor of a person who has, in reliance upon it, committed an act which he knows to be unlawful, as where the bond is given to a sheriff to indemnify him in making a levy, and he levies upon goods which he knows do not belong to the judgment debtor ; but where the title to the goods is matter of doubt or controversy, and the sheriff acts in good faith upon the assurance given by the creditor that he may properly proceed to make the levy, the bond is en- forceable. Nelson v. Cook, 17 111. 443 ; Stanton v. McMullen, 7 111. App. 326 ; Griffiths v. Hardenbergh, 41 N. Y. 464 ; Prewitt v. Garrett, 6 Ala. 128, 41 Am. Dec. 40; Collier's Adm'r v. Windham, 27 Ala. 291, 62 Am. Dec. 767; Gower v. Emery, 18 Me. 79 ; S. P., Avery v. Halsey, 14 Pick. 174 ; Coventry v. Barton, 17 Johns. 142, 8 Am. Dec. 376. On like grounds, a contract of indemnity, given by the writer of a libel to the publisher of it, is void. Atkins v. Johnson, 43 Vt 78, 5 Am. Rep. 260 ; Shackell v. Rosier, 2 Bing. N. C. 634.) The same: effect of a release. (45 MdL 60, 24 Am. Rep. 504.) GUNTHER v. LEE et al. (Court of Appeals of Maryland. June 15, 1876.) 1. JOINT TOBT-FEASOBS RELEASE EFFECT. Where, pending a suit against three joint tort-feasors, a release was executed to one of them, which, in consideration of $500, released her from all claims for the wrong, the plaintiffs thereby acknowledging themselves "to be fully paid and satisfied for all and singular the tres- passes complained of," the release discharged all the joint tort-feasors from further liability. GENERAL PRINCIPLES. 179 2. SAME PROVISO VALIDITY. In said release, which expressed the consideration on Its face and was received in full satisfaction of the wrong, there was a proviso that the right to recover against the other two tort-feasors should not be affected. Held, that this proviso was void as being repugnant to the legal operation of the release itself. Appeal from Circuit Court, Howard County. Argued before BARTOL, C. J., and BOWIE, STEWART; and ALVEY, JJ. ALVEY, J. The three defendants in this action were sued as joint tort-feasors, and the single question presented is as to the effect and operation of the release executed by the plaintiffs to one of the de- fendants, Mrs. Lee, during the pendency of the suit. The terms of the release are exceedingly broad and comprehensive, though it was declared that it was not to prejudice or impair the plaintiffs' claim against the other two defendants. The release was executed in con- sideration of five hundred dollars, and in terms released and dis- charged Mrs. Lee from all claims of every description, for damages accruing or accrued by reason of the wrongs complained of; the plaintiffs thereby acknowledging themselves "to be fully paid and satisfied for all and singular the trespasses complained of" by them in the suit then pending against the three defendants jointly. The court below instructed the jury that the release inured to the benefit of all the defendants, and was therefore an answer to the action, which instruction we think was properly given. The law, as settled in England, is that a judgment in an action against one of two joint tort-feasors, of itself, without satisfaction or execution, is a sufficient bar to an action against the other for the same cause. The leading cases upon this subject are Brown v. Wootten, Yelv. 67; King v. Hoare, 13 M. & W. 494; Brinsmead v. Harrison, L. R. 6 C. P. 584; and same case in Ex. Ch. L. R. 7 C. P. 547- This rule, however, to the full extent stated, is not generally ac- cepted by the courts in this country. The opinion of Kent, C. J., in Livingston v. Bishop, I Johns. 290, 3 Am. Dec. 330, has been most generally adopted, which is to the effect that a recovery against one of several joint tort-feasors is not of itself, without satisfaction, a bar to the right to recover against the others, but fully conceding that satisfaction received of one is a complete bar to recovery against the others. The principle of Livingston v. Bishop has been fully sanctioned by the Supreme Court of the United States in the case of Lovejoy v. Murray, 3 Wall. I, 18 L. Ed. 129. But, without determin- ing which rule we should be disposed to adopt, if the precise ques- tion were presented, with respect to the question presented on the record before us, there is no conflict of authority whatever. All the 180 LAW OF TORTS. cases, both English and American, maintain the doctrine that sat- isfaction from one joint tort-feasor, whether received before or after recovery, extinguishes the right as against the others. The plaintiff is not entitled to receive more than one satisfaction for and in re- spect of the same injury. As was said by the court in Love joy v. Murray, when the plaintiff has accepted satisfaction in full for the in- jury done him, from whatever source it may come, he is so far affected, in equity and good conscience, that the law will not permit him to recover again for the same damages. And as a consideration is always implied in a release under seal, though not expressed on its face, the release by deed of one joint trespasser will discharge all ; and this has been the law from very early times. Littleton, 376; Co. Litt. 232 ; Cocke v. Jennor, Hob. 66 ; 7 Robinson's Prac. 206-208, and cases there referred to ; Ruble v. Turner, 2 Hen. & M. 38 ; Gil- patrick v. Hunter, 24 Me. 18, 41 Am. Dec. 370; Thurman v. Wild, n Ad. & El. 453. Here the release expresses the consideration on its face, which was received in full satisfaction of the wrong complained of. The proviso in the release, by which the right to recover for the same injury against the other two defendants was attempted to be reserved to the plaintiffs, is simply void, as being repugnant to the legal effect and operation of the release itself. Rubje v. Turner, 2 Hen. & M. 38. The judgment must therefore be affirmed. Judgment affirmed. (To the same effect are Belong v. Curtis, 35 Hun, 94; Barrett v. Third Ave. R. Co., 45 N. Y. 628; Rogers v. Cox, 66 N. J. Law, 432, 50 Atl. 143; Ayer v. Ashmead, 31 Conn. 447, 83 Am. Dec. 154; Brown v. City of Cam- bridge, 3 Allen, 474; Williams v. Le Bar, 141 Pa. 149, 21 Atl. 525. But a "covenant not to sue" one tort-feasor does not operate as a release of either the covenantee or the other tort-feasors, but the former must resort to his suit for breach of the covenant, and the latter cannot invoke the covenant as a bar to the action against them. City of Chicago v. Babcock, 143 111. 358, 32 N. E. 271 ; cf. Ellis v. Essau, 50 Wis. 138, 6 N. W. 518, 36 Am. Rep. 830 ; Tompkins v. Clay St R. Co., 66 Cal. 163, 4 Pac. 1165. A release given to one tort-feasor, but containing a reservation of a right to sue the others, has been held to be in effect a "covenant not to sue" the one released. Gilbert v. Finch, 173 N. Y. 455, 66 N. E. 133, 61 L. R. A. 807, 93 Am. St Rep. 623.) GENERAL PRINCIPLES. 181 Aiding and abetting the commission of a tort; ratification of a tort. (5 Ohio, 250.) BELL v. MILLER (In part). (Supreme Court of Ohio. December Term, 1831.) TRESPASS ASSAULT AND BATTERY LIABILITY OF PARTIES ADVISING OB AID- ING. A party advising or aiding in committing a trespass is liable, though not personally present at the time of committing it. This cause was adjourned from the county of Champaign, on a motion for a new trial made by the defendant. The action was for an assault and battery. Verdict for the plaintiff ; damages, sixty dol- lars. This reason was assigned for a new trial, viz., that the court charged the jury that if the defendant incited or in any degree promoted the commission of the assault and battery upon the plaintiff he was liable in this action, though not in a situation to afford any actual aid to the person who committed it. PER CURIAM. All concerned in the commission of a trespass are considered principals. An assault and battery may be committed by a party not present, if he be a principal actor in or adviser and promoter of making the attack. If one person employ another to commit an assault and battery or any other trespass, and the act is perpetrated, both are guilty, and both responsible in damages. It was not supposed that this was now a debatable question. There is no error in the charge of the court. New trial refused. (In Mack v. Kelsey, 61 Vt. 399, 17 Atl. 780, it is said: "The rule is that all who aid, advise, command, or countenance the commission of a tort by another, or who approve of it after it is done, are liable, if done for their benefit, in the same manner as if they had done the act with their own hands ; and proof that a person is present at the commission of a tres- pass, without disapproving or approving it, is evidence from which, in con- nection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance, and approved it, and was thereby aiding or abetting the same." To the same effect are the following cases: Brown v. Perkins, 1 Allen, 89; Cooney v. 'Burke, 11 Neb. 258, 9 N. W. 57 ; Sellman v. Wheeler, 95 Md. 751, 54 Atl. 512 [assault and battery] ; Heater v. Penrod [Neb.] 89 N. W. 7G2 [conversion] ; Shaver v. Edgell, 48 W. Va. 502, 37 S. E. 664 [trespass] ; Rhinehart v. Whitehead, 64 Wis. 42, 24. N. W. 401 ; Grossbart v. Samuel, 65 N. J. Law, 543, 47 Atl. 501 ; Southern Exp. Co. v. Couch, 133 Ala. 285, 32 South. 167 [malicious prosecution] ; Allred v. Bray, 41 Mo. 484, 97 Am. Dec. 283; Drake v. Kiely, 93 Pa. 492; cf. Miller 7. Fano, 134 Cal. 103, 66 Pac. 183.) 182 LAW OF TORTS. (154 Mass. 830, 28 N. B. 279, 13 L. R. A. 219, 26 Am. St Rep. 249.) DEMPSEY v. CHAMBERS (in part). (Supreme Judicial Court of Massachusetts. Essex. September 3, 1891.) RATIFICATION TORT OF PERSON ASSUMING TO ACT AS SERVANT. Plaintiff ordered coal of defendant, which a third person, without de- fendant's knowledge or authority, undertook to deliver, and in so doing negligently injured plaintiff's building. Afterwards, and with knowl- edge of the injury, defendant demanded payment for the coal. Held, that defendant was liable for the injury, since such demand was a ratifi- cation of the acts of the person delivering the coal. Exceptions from Superior Court, Essex County; Charles P. Thompson, Judge. HOLMES, J. This is an action of tort to recover damages tor the breaking of a plate-glass window. The glass was broken by the negligence of one McCullock while delivering some coal which had been ordered of the defendant by the plaintiff. It is found as a fact that McCullock was not the defendant's servant when he broke the window, but that the "delivery of the coal by [him] was ratified by the defendant, and that such ratification made McCullock in law the agent and servant of the defendant in the delivery of the coal." On this finding the court ruled "that the defendant, by his ratification of the delivery of the coal by McCullock, became responsible for his negligence in the delivery of the coal." The defendant excepted to this ruling, and to nothing else. Therefore the only question before us is as to the correctness of the ruling just stated. If we were contriving a new code to-day we might hesitate to say that a man could make himself a party to a bare tort in any case merely by assenting to it after it had been committed. But we are not at liberty to refuse to carry out to its consequences any principle which we believe to have been part of the common law simply be- cause the grounds of policy on which it must be justified seem to us to be hard to find, and probably to have belonged to a different state of society. The earliest instances of liability by way of ratification in the Eng- lish law, so far as we have noticed, were where a man retained prop- erty acquired through the wrongful act of another. Y. B. 30 Edw. I. 128 (Roll's Ed.); 38 Lib. Ass. 223, pi. 9; S. C. 38 Edw. III. 18; 12 Edw. IV. 9, pi. 23; Plowd. 8 ad fin. 27, 31. See Bract. I58b, 1593, I7ib. But in these cases the defendant's assent was treated as relat- ing back to the original act, and at an early date the doctrine of re- lation was carried so far as to hold that, where a trespass would have been justified if it had been done by the authority by which it pur- ported to have been done, a subsequent ratification might also justify GENERAL PRINCIPLES. 183 it. Y. B. 7 Hen. IV. 34, pi. I. This decision is qualified in Fitzh. Abr. "Bayllye," pi. 4, and doubted in Brooke, Abr. "Trespass," pi. 86, 'out it has been followed and approved so continuously and in so many later cases that it would be hard to deny that the common law was as there stated by Chief Justice Gascoigne. Godb. 109, no, pi. 129; 2 Leon. 196, pi. 246; Hull v. Pickersgill, I Brod. & B. 282; Muskett v. Drummond, 10 Barn. & C. 153, 157; Buron v. Denman, 2 Exch. 167, 178; Secretary of State v. Sahaba, 13 Moore, P. C. 22, 86; Cheetham v. Mayor, etc., L. R. 10 C. P. 249; Wiggins v. U. S., 3 Ct. Cl. 412. If we assume that an alleged principal, by adopting an act which was unlawful when done can make it lawful, it follows that he adopts it at his peril, and is liable if it should turn out that his previous com- mand would not have justified the act. It never has been doubted that a man's subsequent agreement to a trespass done in his name and for his benefit amounts to a command so far as to make him an- swerable. The ratihabitio mandato comparatur of the Roman law- yers and the earlier cases (D. 46, 3, 12, 4; D. 43, 1 6, i, 14; Y. B. 30 Edw. I. 128) has been changed to the dogma aequiparatur ever since the days of Lord Coke, 4 Inst. 317. See Brooke, Abr. "Tres- pass," pi. 113, Co. Litt. 207a; Wing. Max. 124; Com. Dig. "Tres- pass," C. i ; Railway Co. v. Broom, 6 Exch. 314, 326, 327, and cases hereafter cited. Doubts have been expressed, which we need not consider, whether this doctrine applied to a case of a bare personal tort. Adams v. Freeman, 9 Johns. 117, 118; Anderson and Warberton, JJ., in Bishop v. Montague, Cro. Eliz. 824. If a man assaulted another in the street out of his own head, it would seem .rather strong to say that if he merely called himself my servant, and I afterwards assented, without more, our mere words would make me a party to the assault, although in such cases the canon law excommunicated the principal if the assault was upon a clerk. Sext. Dec. 5, n, 23. Perhaps the application of the doctrine would be avoided on the ground that the facts did not show an act done for the defendant's benefit, (Wilson v. Barker, I Nev. & M. 409, 4 Barn. & Adol. 614; Smith v. Lozo, 42 Mich. 6, 3 N. W. 227;) as in other cases it has been on the ground that they did not amount to such a ratification as was necessary, (Tucker v. Jerris, 75 Me. 184; Hyde v. Cooper, 26 Vt. 552.) But the language generally used by judges and text-writers, and such decisions as we have been able to find, is broad enough to cover a case like the present, when the ratification is established. Perley v. Georgetown, 7 Gray, 464; Bishop v. Montague, Cro. Eliz. 824; Sanderson v. Baker, 2 W. Bl. 832, 3 Wils. 309; Barker v. Braham, 2 W. Bl. 866, 868, 3 Wils. 368; Badkin v. Powell, Cowp. 476, 479; Wilson v. Tumman, 6 Man. & G. 236, 242; Lewis v. Read, 13 Mees. & W. 834; Buron v. Denman, 2 Exch. 167, 188; Bird v. Brown, 4 184 LAW OF TORTS. Exch. 786, 799; Railway Co. v. Broom, 6 Exch. 314, 326, 327; Roe v. Railway Co., 7 Exch. 36, 42, 43 ; Ancona v. Marks, 7 Hurl. & N. 686, 695; Condit v. Baldwin, 21 N. Y. 219, 225, 78 Am. Dec. 137; Exum v. Brister, 35 Miss. 391 ; Railway Co. v. Donahoe, 56 Tex. 162; Murray v. Lovejoy, 2 Cliff. 191, 195, Fed. Cas. No. 9,963. See Lovejoy v. Murray, 3 Wall. I, 9, 18 L. Ed. 129; Story, Ag. 455, 456. The question remains whether the ratification is established. As we understand the bill of exceptions, McCullock took on himself to deliver the defendant's coal for his benefit, and as his servant, and the defendant afterwards assented to McCullock's assumption. The rat- ification was not directed specifically to McCullock's trespass, and that act was not for the defendant's benefit, if taken by itself, but it was so connected with McCullock's employment that the defendant would have been liable as master if McCullock really had been his servant when delivering the coal. We have found hardly anything in the books dealing with the precise case, but we are of opinion that consistency with the whole course of authority requires us to hold that the defendant's ratification of the employment established the re- lation of master and servant from the beginning, with all its inci- dents, including the anomalous liability for his negligent acts. See Coomes v. Houghton, 102 Mass. 211, 213, 214; Cooley, Torts, 128, 129. The ratification goes to the relation, and establishes it ab initio. Exceptions overruled. (See, also, the following cases in support of this doctrine: Nims v. Mt. Hermon School, 160 Mass. 177, 35 N. E. 776, 22 L. R. A. 364, 39 Am. St. Rep. 467 ; Grund v. Van Vleck, 69 111. 478 ; Dunn v. Hartford & W. Horse R. Co., 43 Conn. 434 ; Welsh v. Cochran, 63 N. Y. 181, 184, 20 Am. Rep. 519 ; Brown v. City of Webster City, 115 Iowa, 511, 88 N. W. 1070.) ASSAULT AND BATTERY. 185 ASSAULT AND BATTERY. Nature of an assault Difference between a civil and a criminal assault. (78 Ala. 463, 56 Am. Rep. 42.) CHAPMAN v. STATE. (Supreme Court of Alabama. December Term, 1884.) ASSAULT WHAT CONSTITUTES. Presenting an unloaded gun at one who supposes it to be loaded, although within the distance the gun would carry if loaded, is not, without more, such an assault as can be punished criminally, although it may sustain a civil suit for damages. Appeal from Circuit Court, Barbour County. Indictment for assault and battery. Defendant was convicted of assault, and appealed from the judgment. SOMERVILLE, J. The defendant was indicted for an assault and batter)' upon the person of one McLeod, and was convicted of a mere assault. The present conviction can be sustained only on the theory that it was an assault for the defendant to present or aim an unloaded gun at the person charged to be assaulted, in such, a men- acing: manner as to terrify him, and within such distance as to have been dangerous had the weapon been loaded and discharged. On this question, the adjudged cases, both in this country and in Eng- land, are not agreed, and a like difference of opinion prevails among the most learned commentators of the law. We have had occasion to examine these authorities with some care on more occasions than the present, and we are of the opinion that the better view is that presenting an unloaded gun at one who supposes it to be loaded, al- though within the distance the gun would carry if loaded, is not, without more, such an assault as can be punished criminally, al- though it may sustain a civil suit for damages. The conflict of au- thorities on the subject is greatly attributable to a failure to observe the distinction between these two classes of cases. A civil action would rest upon the invasion of a person's "right to live in society without being put in fear of personal harm," and can often be sus- tained by proof of a negligent act resulting in unintentional injury. Peterson v. Haffner, 59 Ind. 130, 26 Am. Rep. 81 ; Cooley, Torts, 161. An indictment for the same act could be sustained only upon satisfac- tory proof of criminal intention to do personal harm to another by 186 LAW OF TORTS. violence. State v. Davis, 23 N. C. 125, 35 Am. Dec. 735. The ap- proved definition of an "assault" involves the idea of an inchoate vio- lence to the person of another, with the present means of carrying the intent into effect. 2 Greenl. Ev. 82 ; Rose. Crim. Ev. (7th Ed.) 296; People v. Lilley, 43 Mich. 521, 5 N. W. 982. Most of our de- cisions recognize the old view of the text-books, that there can be no criminal assault without a present intention, as well as present ability, of using some violence against the person of another. I Russ. Crimes, (9th Ed.) 1019; State v. Blackwell, 9 Ala. 79; Tarver v. State, 43 Ala. 354. In Lawson v. State, 30 Ala. 14, it was said that, "to constitute an assault, there must be the commencement of an act which, if not prevented, would produce a battery." The case of Bal- kum v. State, 40 Ala. 671, which was decided by a divided court, probably does not harmonize with the foregoing decisions. It is true that some of the modern text-writers define an assault as an ap- parent attempt by violence to do corporal hurt to another, thus ig- noring entirely all question of any criminal intent on the part of the perpetrator. I Whart. Crim. Ev. 603; 2 Bish. Crim. Law, 32. The true test cannot be the mere tendency of an act to produce a breach of the peace ; for opprobrious language has this tendency, and no words, however violent or abusive, can, at common law, consti- tute an assault. It is unquestionably true that an apparent attempt to do corporal injury to another may often justify the latter in promptly resorting to measures of self-defense. But this is not be- cause such apparent attempt is itself a breach of the peace, for it may be an act entirely innocent. It is rather because the person who supposes himself to be assaulted has a right to act upon appearances, where they create reasonable grounds from which to apprehend im- minent peril. There can be no difference, in reason, between pre- senting an unloaded gun at an antagonist in an affray, and presenting a walking cane, as if to shoot, provided he honestly believes, and from the circumstances has reasonable ground to believe, that the cane was a loaded gun. Each act is a mere menace, the one equally with the other ; and mere menaces, whether by words or acts, without intent or ability to injure, are not punishable crimes, although they may often constitute sufficient ground for a civil action for damages. The test, moreover, in criminal cases, cannot be the mere fact of unlaw- fully putting one in fear, or creating alarm in the mind ; for one may obviously be assaulted, although in complete ignorance of the fact and therefore entirely free from alarm. People v. Lilley, 43 Mich. 5 2 5 5 N. W. 982. And one may be put in fear under pretense of begging, as in Taplin's Case, occurring during the riots in London, decided in 1780, and reported in 2 East, P. C. 712, and cited in many of the other old authorities. These views are sustained by the spirit of our own adjudged cases, cited above, as well as by the following authorities, which are directly in point: 2 Green, Crim. Law Rep.. ASSAULT AND BATTERY. 187 and note on pages 271-275, where all the cases are fully reviewed ; 2 Add. Torts, (Wood's Ed. 1881,) 788, note, pages 4-7; Rose. Crim. Ev. (7th Ed.) 296; i Russ. Crimes, (9th Ed.) 1020; Blake v. Barnard, 9 Car. & P. 626; Reg. v. James, I Car. & K. 530; Robinson v. State, 31 Tex. 170; McKay v. State, 44 Tex. 43 ; State v. Davis, 35 Am. Dec. 735. The opposite view is sustained by the following authors and adjudged cases: 7 Bish. Crim. Law, (7th Ed.) 32; I Whart. Crim. Law, (Qth Ed.) 182, 603 ; Reg. v. St. George, 9 Car. & P. 483 ; Com. v. White, no Mass. 407; State v. Shepard, 10 Iowa, 126; State v. Smith, 2 Humph. 457. See, also, 3 Greenl. Ev. (i4th Ed.) 59, note b; I Archb. Crim. Pr. & PI. (Pom. Ed.) 282, 283, 907; State v. Bene- dict, n Vt. 238, 34 Am. Dec. 688; State v. Neely, 74 N. C. 425, 21 Am. Rep. 496. The rulings of the court were opposed to these views, and the judgment must therefore be reversed, and the cause remanded. (Beach v. Hancock, 27 N. H. 223, 59 Am. Dec. 373. holds that a civil action will lie for aiming an unloaded pistol within shooting distance, with an apparent purpose of firing. Comm. v. White, 110 Mass. 407, holds such an act to be also a criminal assault; while State v. Sears, 86 Mo. 169; State v. Godfrey, 17 Or. 300, 20 Pac. 625, 11 Am. St. Rep. 830 are to the contrary. See, also, People v. Lilley, 43 Mich. 521, 5 N. W. 982 ; Bishop r. Ranney, 59 Vt 316, 7 Atl. 820.) (3 Carr. & P. 373.) MORTIN v. SHOPPEE. (Court of King's Bench. October 27, 1828.) ASSAULT WHAT CONSTITUTES. Riding after a person, so as to compel him to run to shelter to avoid being beaten, is, in law, an assault Action for assault. Plea, the general issue. The plaintiff was walking along a footpath, by the road-side, at Hillingdon, and the de- fendant, who was on horseback, rode after him at a quick pace. The plaintiff ran away, and got into his own garden, when the defendant rode up to the garden gate, (the plaintiff then being in the garden about three yards from him,) and, shaking his whip, said: "Come out, and I will lick you before your own servants." Mr. Denman, C. S., for defendant, objected that this did not amount to an assault. TENTERDEN, C. J. If the defendant rode after the plaintiff, so as to compel him to run into his garden for shelter, to avoid being beaten, that is in law an assault. Verdict for the plaintiff. Damages, 403. (See, also, State v. Sims, 3 Strob. 137.) 188 LAW OF TORTS. (4 Carr. & P. 349.) STEPHENS v. MYERS. (Court of Common Pleas. July 17, 1830.) ASSAULT WHAT CONSTITUTES. Advancing in a threatening attitude and with intent to strike another, so that the blow would almost immediately reach him, is, in law, an as- sault by the person advancing with such intent, although he is stopped before he is near enough to the other to strike him. Action for assault. The declaration stated that the defendant threatened and attempted to assault the plaintiff. Plea, not guilty. It appeared that the plaintiff was acting as chairman at a parish meet- ing, and sat at the head of a table, at which table the defendant also sat; there being about six or seven persons between him and the plaintiff. The defendant having, in the course of some angry discus- sion which took place, been very vociferous, and interrupted the pro- ceedings of the meeting, a motion was made that he should be turned out, which was carried by a very large majority. Upon this the de- fendant said he would rather pull the chairman out of the chair than be turned out of the room, and immediately advanced, with his fist clenched, towards the chairman, but was stopped by the church-war- den, who sat next but one to the chairman, at a time when he was not near enough for any blow he might have meditated to have reached the chairman ; but the witnesses said that it seemed to them that he was advancing with an intention to strike the chairman. Mr. Spankie, Serjt., for the defendant, upon this evidence, contend- ed that no assault had been committed, as there was no power in the defendant, from the situation of the parties, to execute his threat ; there was not a present ability; he had not the means of executing his intention at the time he was stopped. TINDAL, C. J., in his summing up, said it is not every threat, when there is no actual personal violence, that constitutes an assault ; there must, in all cases, be the means of carrying the threat into ef- fect. The question I shall leave to you will be whether the defend- ant was advancing at the time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman, if he had not been stopped. Then, though he was not near enough at the time to have struck him, yet if he was advancing with that intent I think it amounts to an assault in law. If he was so advancing that, within a second or two of time, he would have reached the plaintiff, it seems to me it is an assault in law. If you think he was not advancing to strike the plaintiff, then only can you find your verdict for the defendant; otherwise you must find it for ASSAULT AND BATTERY. 189 the plaintiff, and give him such damages as you think the nature of the case requires. Verdict for the plaintiff. Damages, is. (An American case on all fours with this is State v. Vannoy, 65 N. C. 532. For a good definition of an assault, see Hays v. People, 1 Hill, 351; Bishop v. Ranney, 59 Vt. 316, 7 Atl. 820; State v. Home, 92 N. C. 805, 53 Am. Rep. 442; People v. Lilley, 43 Mich. 521, 5 N. W. 982; Johnson v. State, 35 Ala. 363. Words alone, however threatening, violent, or opprobrious, will not constitute an assault Cooley on Torts [2d Ed.] 185, note, and cases cited.) Effect of accompanying words indicating that there is no intent to do actual violence. (23 N. C. 375.) STATE v. CROW. (Supreme Court of North Carolina. June Term, 1841.) ASSAULT WORDS INDICATING INTENT. At the trial of an indictment for assault, there was evidence that de fendant, in a quarrel with another, raised a whip and shook it at him. saying at the same time, "Were you not an old man, I would knock you down;" but he did not strike, although within striking distance, and not prevented by any one. Held, that the jury might consider such words, if used by defendant, as tending to qualify his acts; and that if at the time he raised his whip he had no present purpose to strike, it was not, in law, an assault. Appeal from Superior Court, Rutherford County ; Battle, Judge. Indictment against Abraham Crow for assault on William Gray- son. At the trial, a witness testified that he heard some words be- tween the parties, and then saw defendant raise his whip, and shake it at Grayson, and heard him swear that he had a great mind to kill Grayson, and that defendant was at the time within striking distance of Grayson, but did not strike him, although no one interfered. One or two others testified that they did not see defendant raise the whip, but heard him say to Grayson, "Were you not an old man, I would knock you down." On behalf of defendant, his counsel argued that these words, accompanying his acts, qualified them, and showed that he had no intention of striking, and that consequently there was no such offer or attempt to strike as would constitute an assault. The court charged the jury that, even though such words were used by defendant when he raised his whip and shook it at Grayson, yet if his conduct was such as would induce a man of ordinary firmness to sup- pose he was about to be stricken, and to strike his assailant in self- defense, the latter would be guilty. Otherwise there might be a fight, and the peace broken, and yet neither party be guilty. And, 1 the party obstructing, and, after some delay, to be compelled to re- 218 LAW OF TORTS. turn and take another and circuitous route to his place of destina- tion. I do not think that, during such detention, such person was under imprisonment, or could maintain an action for false imprison- ment, whatever other remedy might be open to him. I am de- sirous only to illustrate my meaning, and explain the reason why I consider the imprisonment in this case not to be complete. The reason, shortly, is that I am aware of no case, nor of any definition, which warrants the supposition of a man being imprisoned during the time that an escape is open to him, if he chooses to avail him- self of it. PATTESON, J. I have no doubt that, in general, if one man compels another to stay in any given place against his will, he im- prisons that other just as much as if he locked him up in a room ; and I agree that it is not necessary, in order to constitute an im- prisonment, that a man's person should be touched. I agree, also, that the compelling a man to go in a given direction against his will may amount to imprisonment. But I cannot bring my mind to the conclusion that, if one man merely obstructs the passage of another in a particular direction, whether by threat of personal violence or otherwise, leaving him at liberty to stay where he is or to go in any other direction if he pleases, he can be said thereby to im- prison him. He does him wrong, undoubtedly, if there was a right to pass in that direction, and would be liable to an action on the case for obstructing the passage, or of assault, if, on the party persisting in going in that direction, he touched his person, or so threatened him as to amount to an assault. But imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, what- ever inconvenience it may bring on him. The quality of the act cannot, however, depend on the right of the opposite party. If it be an imprisonment to prevent a man passing along the public highway, it must be equally so to prevent him passing further along a field into which he has broken by a clear act of trespass. A case was said to have been tried before Lord Chief Justice Tindal, involving this question; but it appears that the plaintiff in that case was compelled to stay and hear a letter read to him against his will, which was doubtless a total restraint of his liberty while the letter was read. I agree to the definition in Selwyn's Nisi Prius, title "Imprisonment :" "False imprisonment is a restraint on the liberty of the person without lawful cause; either by confinement in prison, stocks, house, etc., or even by forcibly detaining the party in the streets against his will." He cites 2.2, Book Ass. fol. 104, B, pi. 85, per Thorpe, C. J. The word there used is "arrest," which appears to me to include a "detaining," as Mr. Selwyn ex- presses it, and not to mean merely the preventing a person from FALSE IMPRISONMENT. 219 passing. I therefore think that the rule for a new trial ought to be made absolute. DENMAN, C. J. (dissenting). I have not drawn up a formal judgment in this case, because I hoped to the last that the arguments which my learned brothers would produce in support of their opin- ion might alter mine. We have freely discussed the matter, both orally and in written communications ; but, after hearing what they have advanced, I am compelled to say that my first impression re- mains. If, as I must believe, it is a wrong one, it may be in some measure accounted for by the circumstances attending the case. A company unlawfully obstructed a public way for their own profit, extorting money from passengers, and hiring policemen to effect this purpose. The plaintiff, wishing to exercise his right of way, is stopped by force, and ordered to move in a direction which he wished not to take. He is told at the same time that a force is at hand ready to compel his submission. That proceeding appears to me equivalent to being pulled by the collar out of one line into another. There is some difficulty, perhaps, in defining "imprison- ment" in the abstract, without reference to its illegality; nor is it necessary for me to do so, because I consider these acts as amount- ing to imprisonment. That word I understand to mean any re- straint of the person by force. In Buller's Nisi Prius (page 22} it is said: "Every restraint of a man's liberty under the custody of another, either in a jail, house, stocks, or in the street, is in law an imprisonment; and whenever it is done without a proper authority, is false imprisonment, for which the law gives an action; and this is commonly joined to assault and battery, for every imprisonment includes a battery, and every battery an assault." It appears, there- fore, that the technical language has received a very large construc- tion, and that there need not be any touching of the person. A lock- ing up would constitute an imprisonment without touching. From the language of Thorpe, C. J., which Mr. Selwyn cites from the Book of Assizes, (22 Book Ass. fol. 104, B, pi. 85,) it appears that, even in very early times, restraint of liberty by force was under- stood to be the reasonable definition of imprisonment. I had no idea that any person in these times supposed any particular bound- ary to be necessary to constitute imprisonment, or that the restraint of a man's person from doing what he desires ceases to be an im- prisonment because he may find some means of escape. It is said that the party here was at liberty to go in another direction. I am not sure that in fact he was, because the same unlawful power which prevented him from taking one course might, in case of acquiescence, have refused him any other. But this liberty to do something else does not appear to me to affect the question of imprisonment. As long as I am prevented from doing what I have a right to do, of 220 LAW OP TORTS. what importance is it that I am permitted to do something else? How does the imposition of an unlawful condition show that I am not restrained? If I am locked in a room, am I not imprisoned be- cause I might effect my escape through a window, or because I might find an exit dangerous or inconvenient to myself, as by wading through water, or by taking a route so circuitous that my necessary affairs would suffer by delay? It appears to me that this is a total deprivation of liberty with reference to the purpose for which he lawfully wished to employ his liberty; and, being effected by force, it is not the mere obstruction of a way, but a restraint of the per- son. The case cited as occurring before Lord Chief Justice Tindal, as I understand it, is much in point. He held it an imprisonment where the defendant stopped the plaintiff on his road till he had read a libel to him, yet he did not prevent his escaping in another direc- tion. It is said that, if any damage arises from such obstruction, a special action on the case may be brought. Must I then sue out a new writ, stating that the defendant employed direct force to prevent my going where my business called me, whereby I sustained loss? And, if I do, is it certain that I shall not be told that I have miscon- ceived my remedy, for all flows from the false imprisonment, and that should have been the subject of an action of trespass and as- sault? For the jury properly found that the whole of the defend- ant's conduct was continuous; it commenced in illegality; and the plaintiff did right to resist it as an outrageous violation of the liberty of the subject from the very first. Rule absolute. (See also Hildebrand v. McCrum, 101 Ind. 61 [locking a person in a room] ; Marshall v. Heller, 55 Wis. 392, 13 N. W. 236 [detaining a person by threats]; Sorenson v. Dundas, 50 Wis. 335, 7 N. W. 259 [keeping a man in his own house by fear]; McNay v. Stratton, 9 111. App. 215 [frightening a man with a revolv- er so that he does not dare to leave a certain place]; Mowry v. Chase, 100 Mass. 79.) (9 N. H. 491.) PIKE v. HANSON et al. (in part). (Superior Court of Judicature of New Hampshire. Strafford. December Term, 1838.) 1. FALSE IMPRISONMENT CONSTRUCTIVE FORCE SUFFICIENT. Words alone are not sufficient to constitute an imprisonment; there must be a touching of the body, or, what is equivalent, a power of taking immediate possession of the body, and the party's submission thereto. 2. SAME. Thus where a tax officer, being present in the same room with plaintiff, called upon her to pay a tax, which she declined doing until arrested, and be then told her he arrested her, whereupon she yielded and paid the tax, held, that this amounted to an arrest and imprisonment, though he FALSE IMPRISONMENT. 221 did not lay his hand upon her, and, as there was no lawful authority to collect the tax, that he was liable for assault and false imprisonment. Trespass for an assault and false imprisonment on the ist day of July, A. D. 1837. The action was commenced before a justice of the peace. The defendants pleaded severally the general issue. It appeared in evidence that the defendants were selectmen of the town of Madbury for the year 1836 ; that they assessed a list of taxes upon the inhabitants of said town, among whom was the plaintiff, and committed it to Nathan Brown, collector of said town, for col- lection. Brown, after having given due notice to the plaintiff, being in a room with her, called upon her to pay the tax, which she de- clined doing until arrested. He then told her that he arrested her, but did not lay his hand upon her, and thereupon she paid the tax. Upon this evidence the defendants objected that the action could not be maintained, because there was no assault. It did not appear that the defendants had been sworn, as directed by the statute of January 4, 1833. A verdict was taken for the plain- tiff, subject to the opinion of the court. WILCOX, J. As the appraisement was made in a manner not authorized by law [the assessors not having taken the oath pre- scribed by statute that they will make a just and true appraisement of all ratable estate], all the proceedings of the defendants are void, and they are liable as trespassers for the forcible collection of this tax. But it is contended that in the present case there has been no assault committed and no false imprisonment. Bare words will not make an arrest; there must be an actual touching of the body; or, what is tantamount, a power of taking immediate possession of the body, and the party's submission thereto. Genner v. Sparks, I Salk. 79; 2 Esp. N. P. 374. Where a bailiff, having a writ against a per- son, met him on horseback, and said to him, "You are my prisoner," upon which he turned back and submitted, this was held to be a good arrest, though the bailiff never laid hand on him. But if, on the bailiff's saying those words, he had fled, it had been no arrest, unless the bailiff had laid hold of him. Homer v. Battyn, Buller's N. P. 62. The same doctrine is held in other cases. Russen v. Lu- cas et al., i C. & P. 153; Chinn v. Morris, 2 C. & P. 361; Pocock v. Moore, Ryan & Moody, 321; Strout v. Gooch, 8 Greenl. 127; Bissell v. Gold, I Wend. 210, 19 Am. Dec. 480. Where, upon a magistrate's warrant being shown to the plain- tiff, the latter voluntarily and without compulsion attended the con- stable who had the warrant, to the magistrate, it was held there was no sufficient imprisonment to support an action. Arrowsmith v. Le Mesurier, 2 N. R. 211. But in this case there was no declaration 222 LAW OF TORTS. of any arrest, and the warrant was in fact used only as a summons. And if the decision cannot be sustained upon this distinction, it must be regarded as of doubtful authority. Starkie says that in ordinary practice words are sufficient to con- stitute an imprisonment, if they impose a restraint upon the person, and the plaintiff is accordingly restrained; for he is not obliged to incur the risk of personal violence and insult by resisting until actual violence be used. 3 Stark. Ev. 1448. This principle is reasonable in itself, and is fully sustained by the authorities above cited. Nor does it seem necessary that there should be any very formal declara- tion of an arrest. If the officer goes for the purpose of executing his warrant; has the party in his presence and power; if the party so understands it, and in consequence thereof submits ; and the offi- cer, in execution of the warrant, takes the party before a magistrate, or receives money or property in discharge of his person we think it is in law an arrest, although he did not touch any part of the body. In the case at bar it clearly appears that the plaintiff did not intend to pay the tax, unless compelled by an arrest of her person. The collector was so informed. He then proceeded to enforce the col- lection of the tax declared that he arrested her and she, under that restraint, paid the money. This is a sufficient arrest and im- prisonment to sustain the action, and there must therefore be, Judgment on the verdict. (See, to the same effect, Marshall v. Heller, 55 Wis. 392, 13 N. W. 236; Great- house v. Summerfield, 25 111. App. 296; Comer v. Knowles, 17 Kan. 436, 440; Oallahan v. Searles, 78 Hun, 238, 28 N. Y. Supp. 904; Searls v. Viets, 2 Thomp. & C. 224.) (90 N. Y. 77, 43 Am. Rep. 141.) LYNCH v. METROPOLITAN EL. RY. CO. (Court of Appeals of New York. October 10, 1882.) FALSE IMPRISONMENT DETENTION OF PASSENGER BY CARRIER. Plaintiff purchased a ticket for a passage upon defendant's railway, and entered one of its cars, but, before reaching his destination, he lost his ticket. On attempting to pass from the station platform through the gate into the street, he was prohibited by the gate-keeper, and told that he could not pass until he should produce a ticket or pay his fare. He explained that he had paid his fare and lost his ticket, and insisted on passing out, but was pushed back by the gate-keeper; and, on his further Insisting on his right to pass, the gate-keeper sent for a police officer, and ordered his arrest, whereupon he was arrested by the officer. Held, that the detention of plaintiff by the gate-keeper for the purpose of enforcing payment of fare was illegal; and that defendant, having instructed its gate-keepers not to let passengers pass out until they should either pay their fares or show tickets, was liable to plaintiff for the false imprison- ment by the gate-keeper. FALSE IMPRISONMENT. 223 Appeal from Supreme Court, General Term, First Department. . Action by Michael Lynch against the Metropolitan Elevated Rail- way Company for false imprisonment. At the trial the jury found a verdict for plaintiff, and judgment for plaintiff was entered thereon, which was affirmed on appeal to the general term. From the judg- ment of the general term defendant appealed. EARL, J. In September, 1878, the plaintiff purchased a ticket for a passage upon defendant's railway from its Forty-Second Street station to its Rector-Street station, and entered one of its cars. Be- fore reaching his destination he lost his ticket, and when he attempted to pass from the station platform through the gate into the street he was prohibited by the gate-keeper, and told that he could not pass until he produced a ticket or paid his fare. He explained that he had paid his fare and lost his ticket, and insisted upon passing out. He was pushed back by the gate-keeper, who refused to let him pass. He expostulated, and insisted upon his right to pass, when the gate-keeper sent for a police officer, and ordered his ar- rest. He was arrested, and taken to a police station by the police officer, the gate-keeper going along, and making complaint against him. He was locked up in the station-house over night. In the morning the gate-keeper appeared against him, and he was examined before a police magistrate, and discharged. This action was after- wards commenced to recover damages for the false arrest and im- prisonment. He recovered a judgment, which has, upon appeal, been affirmed. 24 Hun, 506. We are of opinion that the trial judge was right in holding, as matter of law, that the plaintiff's arrest and detention were illegal. The defendant had the right to make reasonable rules and regula- tions for the management of its business and the conduct of its pas- sengers. It could require every passenger before entering one of its cars to produce a ticket, and to produce and deliver up the ticket at the end of his passage, or again pay his fare. Railroad Co. v. Page, 22 Barb. 130; Hibbard v. Railroad Co., 15 N. Y. 455; Vedder v. Fellows, 20 N. Y. 126; Townsend v. Railroad Co., 56 N. Y. 295, 15 Am. Rep. 419. The defendant had such a regulation, and no com- plaint can be made of that. But it had no regulation, and could legally have none, that a passenger, before leaving its cars or its premises, should produce a ticket or pay his fare, and, if he did not, that he should then and there be detained and imprisoned until he did so. At most, the plaintiff was a debtor to the defendant for the amount of his fare, and that debt could be enforced against him by the same remedies which any creditor has against his debtor. If the defendant had the right to detain him to enforce payment of the fare for ten minutes, it could detain him for one hour, or a day, or a year, or for any other time, until compliance with its de-- 224 LAW OF TORTS. mands. That would be arbitrary imprisonment by a creditor with- out process or trial, to continue during his will, until his debt should be paid. Even if a reasonable detention may be justified to enable the carrier to inquire into the circumstances, it cannot be to com- pel payment of fare. The detention here was not to enable the gate- keeper to make any inquiry, but simply to compel payment. He was absolutely informed that he could not pass out without producing a ticket or paying his fare. This is not like the cases to which the learned counsel for defendant has called our attention, where rail- road conductors have been held justified in ejecting passengers from cars for refusing to produce tickets or pay their fares. A passenger has no right to ride in a car without payment of his fare, and, if he refuses to pay, the railroad company is not bound to carry him, and may, at a proper place and in a proper manner, remove him from the car ; but it could not imprison him in a car until he paid his fare, for the purpose of compelling payment. These views have the sanction of very high authority. In Sun- bolf v. Alford, 3 Mees. & W. 248, it was held that an innkeeper could nqt detain the person of his guest in order to secure payment of his bill. Lord Abinger said: "If an innkeeper has a right to detain the person of his guest for the non-payment of his bill, he has a right to detain him until the bill is paid, which may be for life ; so that this defense supposes that by the common law a man who owes a small debt, for which he could not be imprisoned by legal process, may yet be detained by an innkeeper for life. The proposition is monstrous. * * * Where is the law that says a man shall detain another for his debt without process of law?" In Chilton v. Railway Co., 16 Mees. & W. 212, the defendant was organized under an act con- ferring much broader powers than are possessed by the defendant in this case, and yet it was held that it could not arrest a passenger for refusing to pay a fare which it was entitled to demand. In Standish v. Steam-Ship Co., in Mass. 512, 15 Am. Rep. 66, the plaintiff pur- chased a ticket before going upon the defendant's steam-boat for a passage from Fall River to New York. The defendant's regulation was that the passenger should, upon leaving the boat at the end of his passage, deliver up his ticket or pay his fare. When the plaintiff reached New York he found he had lost his ticket, and when he at- tempted to leave the boat he was prohibited, and told that he could not pass until he produced a ticket or paid his fare. He was detained two hours, and then, under protest, paid his fare, and was permitted to leave the boat. He sued the company for false imprisonment, and recovered $50. The trial judge charged the jury that "the law gave the defendant a lien on the baggage of the plaintiff, but not on his person ; that they had no right to detain him until he did pay his fare or give up a ticket, or to compel him to pay his fare or give up a ticket, but that, if he knew that he was to give up his ticket before leaving FALSE IMPRISONMENT. 225 the boat, the defendant had a right, if he did not give it up or pay his fare, to detain him for a reasonable time to investigate on the spot the circumstances of the case ; and if the jury found that the defend- ant detained him for the purpose of compelling him to pay his fare or to give up his ticket, or detained him for the purpose of investigat- ing his case an unreasonable time, or in an unreasonable way, he was entitled to recover." The plaintiff appealed, alleging for error that the judge erred in charging the jury that the defendant had a right to detain him a reasonable time to investigate the circumstances of the case. No portion of the charge was condemned, and the portion ex- cepted to by the plaintiff was held to be correct. ' A municipal corporation authorized to make by-laws and pass ordi- nances, and inflict penalties for their violation, cannot enforce obedi- ence to them by imprisonment, unless expressly authorized so to do by statute. Potter, Corp. 81 ; Clark's Case, 5 Coke, 64. It was argued before us, on behalf of the defendant, that the ticket sold to the plaintiff was the property of the defendant, intrusted to him for a special purpose, and that it had the right to prevent him, at the end of the journey, from carrying away this property. I am not quite ready to assent that after the defendant sold the ticket to the plaintiff it retained any right of property therein. But, even if it did, it did not detain him on that ground, and he did not then have the ticket in his possession or under his control, and hence a detention to compel him to deliver it up could not, on that ground, be justified. There was no error in the charge of the judge in reference to the branch of the case we have thus far considered. The counsel of the defendant excepted to that portion of the charge of the judge where- in he said, in substance, that the defendant had no more right to de- tain plaintiff until he paid his fare than a lawyer would have to detain in his office a client who consulted him, and refused to pay his fee. There was no error in this illustration. The detention in either case is unlawful, and is condemned in the law upon precisely the same prin- ciples. There was no error in refusing to charge the request made by de- fendant's counsel that "the regulation of the defendant requiring pas- sengers to produce and surrender a ticket or pay the legal fare before leaving the station was a reasonable regulation." It is true that wheth- er a regulation is a reasonable one or not is a question of law for the court, but this request reached too far. It implied that the passenger was to remain in the station, and submit to indefinite detention there, until he paid his fare, and such a regulation would not be reasonable. It now remains only to be considered whether the defendant was responsible for the acts of the gate-keeper. When the plaintiff at- tempted to pass through the gate the gate-keeper told him that in re- sisting and detaining him he was simply doing his duty, and he testi- fied that in all he did he considered that he was acting in the line of CHASE (2o ED.) 15 226 LAW OF TORTS. his duty. The defendant's president testified that there was a rigid rule of the company that passengers were required to show at the gate that they had paid their fare in order to be able to pass out; that when they came to the gate the rule was that the gate-keeper was not to let them go out till they either paid their fare or showed a ticket; and that the instructions to the gate-keepers were to collect tickets or fare. From these facts, and all the circumstances of the case, if it is not entirely plain, the jury could at least find that the company expected the gate-keeper would detain a passenger who could not or would not produce a ticket or pay his fare at the gate, and the gate- keeper clearly understood that it was his duty so to do. In anything that he did, he did not act for any purpose of his own, but to discharge what he believed to be his duty to his principal. It matters not that he exceeded the powers conferred upon him by his principal, and that he did an act which the principal was not authorized to do, so long as he acted in the line of his duty, or, being engaged in the service of the defendant, attempted to perform a duty pertaining, or which he believed to pertain, to that service. He detained the plaintiff at the station, caused his arrest, went with the police officer to the police station, there made a complaint, and then, the next morning, appeared before the police magistrate, and renewed his complaint. These were successive steps taken by the gate-keeper to enforce the payment of the fare by the plaintiff, or to punish him for refusing to pay it, and for all that he did the defendant is responsible. The principles upon which the liability of a master rests in such a case have been so fully and plainly laid down in recent cases in this court that a restatement of them now would serve no useful purposes. Rounds v. Railroad Co., 64 N. Y. 129, 21 Am. Rep. 597; Mott v. Ice Co., 73 N. Y. 543 ; De- vine v. Mills, 90 N. Y. 637, mem. The judgment should be affirmed, with costs. All concur, except FINCH, J., dissenting, and RAPALLO, J., not voting. (Upon the question whether a master is liable for a wrongful imprisonment by his servant, see American Exp. Co. v. Patterson, 73 Ind. 430; Abrahams v. Deakin [1891] 1 Q. B. 516; Palmeri v. Manhattan R. Co., 133 N. Y. 261, 30 N. E. 1001, 16 L. R. A. 136, 28 Am. St. Rep. 632; Craven v. Bloomingdale, 171 N. Y. 439, 64 N. E. 169; Krulevitz v. Eastern R. Co., 143 Mass. 228, 9 X. E. 613; National Bank of Commerce v. Baker, 77 Md. 462, 26 Atl. 867; Clark v. Starin, 47 Hun, 345.) FALSE IMPRISONMENT. 227 Arrest upon void process. (1) Liability of magistrate. (18 Hun, 132.) BLODGETT v. RACE. (Supreme Court of New York, General Term, Third Department May Term, 1879.) FALSE IMPRISONMENT MAGISTBATE LACK OF JURISDICTION. A written complaint on oath that certain goods were stolen, and that the complainant "has probable cause to suspect and does suspect" that a certain person stole them, without any further proof, does not give the magistrate jurisdiction to issue a warrant for the arrest of the person charged. If a warrant be issued and the person accused be arrested, the warrant is without lawful authority, and the magistrate is liable for false imprisonment. Appeal from an order of the county court of Greene county deny- ing a motion of the plaintiff for a new trial, made upon a case and ex- ceptions. On the /th day of September, 1874, Luther Bailey presented his written complaint on oath to the defendant, wherein he alleged that certain goods of the value of more than $25 were, on or about the 1 4th day of April, 1874, at the town of Jewett, Greene county, N. Y., stolen from Division No. 209 of the Sons of Temperance, "and that the said Luther Bailey has probable cause to suspect and does suspect that Frederick Blodgett, of the town of Jewett, county of Greene aforesaid, did feloniously steal, take, and carry away the said goods, chattels, and property, in manner and form, and at the time and place, aforesaid." On the same day, at the request of said Bailey, the de- fendant issued his warrant for the arrest of said Blodgett, the plaintiff herein, upon the charge so made in the aforesaid complaint, without any further evidence. The defendant assumed to act in the premises as a justice of the peace. The warrant was delivered to a constable on the day of its issue, who on the same day arrested the plaintiff thereon, and brought him before the defendant. This action was subsequently commenced to recover damages for false imprisonment. The plaintiff was nonsuited on the trial. BOCKES, J. A complaint in writing, charging a criminal offense, although on information and belief only as to the person suspected of having committed it, is sufficient to authorize an investigation before a magistrate by the examination of witnesses. The magistrate on such complaint may issue subpoenas for witnesses, and has jurisdiction of 228 LAW OF TORTS. the subject-matter of the offense charged to have been committed, and may compel the attendance of witnesses by attachment in case of dis- obedience of the subpoena. People v. Hicks, 15 Barb. 153. But before a warrant can lawfully issue for the arrest of the offender the magis- trate must have some evidence of his guilt. Facts and circumstances, stated on information and belief only, without giving any sufficient grounds on which to base the belief, are insufficient to confer juris- diction as to the person. The magistrate must have evidence of prob- able cause, both as to the commission of the offense and the guilt of the offender, before he can have jurisdiction to cause the arrest. Com- fort v. Fulton, 39 Barb. 56; Vredenburgh v. Hendricks, 17 Barb. 179; Wilson v. Robinson, 6 How. Prac. no; Pratt v. Bogardus, 49 Barb. 89; The People v. Hicks, 15 Barb. 153; Wells v. Sisson, 14 Hun, 267 ; Carl v. Ayers, 53 N. Y. 14. It is laid down in Waterman's Notes to Archbold's Criminal Practice and Pleadings (volume I, 120, marg. p. 31) that a warrant cannot be issued against one if his guilt appears only from hearsay and mere rumor, but that a case of probable guilt on the part of the accused must be made out. If facts and circum- stances be stated sufficient to call for judicial determination, the mag- istrate will be protected in his action, and this although he might err in judgment. In such case he is to be fully protected, and the error can only be made available on writ of error or appeal in the action or proceeding in which the error occurred. As to the case in hand, it seems that the warrant was issued on less proof, even, than informa- tion or belief, as regards the plaintiff. It was issued on an allega- tion only of "suspicion and belief" as to the plaintiff's guilt. No fact or circumstance whatever was stated to support the suspicion, even much less to support a conclusion of probable cause against him. The warrant was without jurisdiction; hence afforded the defendant no protection against the charge of an illegal arrest. It is not necessary here to hold that the defendant had no ground for committing the plaintiff after the open public examination was had. It is quite possi- ble, and I think it must be assumed, that there was sufficient evidence given before him to uphold his conclusion to commit. But we do not pass upon that question here. The original arrest directed by the defendant was unauthorized, and the nonsuit herein was therefore improperly granted. This conclusion renders it unnecessary to ex- amine other questions raised in the case. Perhaps it should be further remarked that the case as presented on this appeal does not appear to be one of serious enormity. The good faith of the defendant in issuing the warrant is not denied. The plaintiff was in no way se- riously oppressed ; on the contrary, was allowed great liberty after his arrest, and during the examination, and finally submitted to be committed rather than give bail, which it seems was easily to be ob- tained. Whether or not the plaintiff may recover more than nominal FALSE IMPRISONMENT. 229 damages is for a jury to determine. The order appealed from de- nying a new trial must be reversed. LEARNED, P. J., and BOARDMAN, J., concurred. Order reversed ; new trial granted, costs to abide event (Leading decisions in support of this doctrine are Vaughn v. Congdon, 56 Vt. Ill, 48 Am. Rep. 758; Kelly v. Bemis, 4 Gray, 83, 64 Am. Dec. 50 [warrant issued under unconstitutional statute]; McKelvey v. Marsh, G3 App. Div. 396, 71 N. Y. Supp. 541; Lanpher v. Dewell, 56 Iowa, 153, 9 N. W. 101. The ratio decidendi of Blodgett v. Race, ante, p. 227, is explained in Swart v. Rickard, 148 N. Y. 264, 269, 42 N. E. 665.) (44 N. J. Law, 654, 43 Am. Rep. 412.) GROVE v. VAN DUYN et al. (Court of Errors and Appeals of New Jersey. November Term, 1882.) 1. FALSE IMPRISONMENT ACT OF JUDICIAL OFFICER LIABILITY. A judicial officer having general powers is responsible for unlawful im- prisonment in causing an arrest in a given case belonging to a class of cases over which he has cognizance, unless the case is, by complaint or other proceeding, put at least colorably under his jurisdiction. 2. SAME. Under the statute of New Jersey (Revision, p. 244, 99), making it an indictable offense to carry off any corn, a sworn complaint charging one with entering certain lands and carrying off a quantity of cornstalks placed the case colorably under the justice's jurisdiction, so that be was not liable for issuing a warrant thereon. 3. SAME LIABILITY OF PERSON MAKING COMPLAINT. One who merely made a sworn complaint, setting forth the facts truly, before a justice of the peace having general jurisdiction in such cases, was not liable for unlawful imprisonment, even if the acts of the justice, in issuing a warrant thereon and causing the arrest of the accused, were extrajudicial. On Error to the Middlesex Circuit. Action by William H. Grove, Jr., against Cornelius Van Duyn and Charles L. Stout for trespass for assault and false imprisonment Judgment of nonsuit, and plaintiff brings error. On a sworn complaint of Cornelius Van Duyn that William H. Grove and others had entered on the lands of Samuel Van Tilburgh, and with force and arms had unlawfully carried away a quantity of cornstalks, Charles L,. Stout, a justice of the peace, issued a warrant. They were arrested, and, having waived examination, were committed to jail. Having given bail the next day, Grove brought this suit in trespass for assault and unlawful imprisonment. 230 LAW OF TORTS. BEASLEY, C. J. Most of the general principles of law pertaining to that branch of this controversy which relates to the alleged liability of the defendant in this suit, who was a justice of the peace, are so :ompletely settled as not to be open to discussion. The doctrine that an action will not lie against a judge for a wrongful commitment, or for an erroneous judgment, or for any other act made or done by him in his judicial capacity, is as thoroughly established as are any other >f the primary maxims of the law. Such an exemption is absolutely essential to the very existence, in any valuable form, of the judicial office itself; for a judge could not be either respected or independent if his motives for his official actions or his conclusions, no matter how erroneous, could be put in question at the instance of every malig- nant or disappointed suitor. Hence we find this judicial immunity has been conferred by the laws of every civilized people. That it exists in this state in its fullest extent has been repeatedly declared by our own courts. Such was pronounced by the Supreme Court to be the admitted principle in the case of Little v. Moore, 4 N. J. Law, 75, 7 Am. Dec. 574; Taylor v. Doremus, 16 N. J. Law, 473; Mangold v. Thorpe, 33 N. J. Law, 134 ; and by this court in Loftus v. Fraz, 43 N. J. Law, 667. To this extent there is no uncertainty or difficulty whatever in the subject. But the embarrassment arises where an attempt is made to express with perfect definiteness when it is that acts done by a judge, and which purport to be judicial acts, are such within the meaning of the rule to which reference has just been made. It is said everywhere in the text-books and decisions that the officer, in order to entitle him- self to claim the immunity that belongs to judicial conduct, must re- strict his action within the bounds of his jurisdiction, and jurisdiction has been defined to be "the authority of the law to act officially in the particular matter in hand." Cooley on Torts, 417. But these maxims, although true in a general way, are not sufficiently broad to embrace the principle of immunity that appertains to a court or judge exer- cising a general authority. Their defect is that they leave out of the account all those cases in which the officer in the discharge of his pub- lic duty is bound to decide whether or not a particular case, under the circumstances as presented to him, is within his jurisdiction, and he falls into error in arriving at his conclusion. In such instance, the judge, in point of fact and law, has no jurisdiction, according to the definition just given, over "the particular matter in hand," and yet, in my opinion, very plainly he is not responsible for the results that wait upon his mistake. And it is upon this precise point that we find confusion in the decisions. There are certainly cases which hold that if a magistrate in the regular discharge of his functions causes an ar- rest to be made under his warrant on a complaint which does not con- tain the charge of a crime cognizable by him he is answerable in an ac- tion for the injury that has ensued. But I think these cases are de- FALSE IMPRISONMENT. 231 flections from the correct rule; they make no allowance for matters of doubt and difficulty. If the facts presented for the decision of the justice are of uncertain signification with respect to their legal effect, and he decides one way, and exercises a cognizance over the case ; if the superior court in which the question arises in a suit against the justice differs with him on this close legal question is he open, by rea- son of his error, to an attack by action? If the officer's exemption from liability is to depend on the question whether he had jurisdiction over the particular case, it is clear that such officer is often liable under such conditions, because the higher court, in deciding a doubtful point of law, may have declared that some element was wanting in the complaint which was essential to bring this case within the judicial competency of the magistrate. But there are many decisions which perhaps, without defining any very clear rule on the subject, have main- tained that the judicial officer was not liable under such conditions. The very copious brief of the counsel of the defendants abounds in such illustrations. As an example, we may refer to the old case of Gwinne v. Poole, 2 Lutw. 387, in which it was held that the justice was justified because he had reason to believe that he had jurisdiction, although there was an arrest in an action which arose out of the jus- tice's jurisdiction. This case has been since approved in Kemp v. Neville, 10 C. B. (N. S.) 550, Here, if the test of official liability had been the mere fact of the right to take cognizance over the particular matter in hand, considered in the light of strict legal rules, this de- cision would have been the opposite of what it is. In the same way the subject is elucidated in Brittain v. Kinnard, I B. & B. 432, the facts being a conviction by a justice of a person of having gunpowder in a certain boat, a special act authorizing the detention of any sus- pected boat; and when the magistrate was sued in trespass for an illegal conviction it was declared that the plaintiff, in order to show the defendants' want of cognizance over the proceedings leading to the conviction, could not give evidence that the craft in question was a vessel, and not a boat, because the justice had judicially determined that point. And in this case likewise the test of jurisdiction in the magistrate, in point of fact and of law, was rejected ; an inquiry into the authority by force of which the proceedings had been taken being disallowed for the reason that such question had been passed upon by the magistrate himself, the point being before him for adjudication. The same doctrine was promulged in explicit and forcible terms by Mr. Justice Field, delivering the opinion of the Supreme Court of the United States, in the case of Bradley v. Fisher, 13 Wall. 335, 20 L,. Ed. 646, this being his language: "If a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense which it is not, and proceed to the arrest and trial of a party charged with such act, * * * no personal liability to civil action 232 LAW OF TORTS. for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, when- ever this general jurisdiction over the subject matter is invoked." These decisions, in my estimation, stand upon a proper footing, and many others of the same kind might be referred to; but such course is not called for, as it must be admitted that there is much contrariety of results in this field, and the references above given are amply suffi- cient as illustrations for my present purposes. The assertion, I think, may be safely made that the great weight of judicial opinion is in op- position to the theory that if a judge, as a matter of law and fact, has not jurisdiction over the particular case, that thereby, in all cases, he incurs the liability to be sued by any one injuriously affected by his assumption of cognizance over it. The doctrine that an officer having general powers of judicature must, at his peril, pass upon the ques- tion, which is often one difficult of solution, whether the facts before him place the given case under his cognizance, is as unreasonable as it is impolitic. Such a regulation would be applicable alike to all courts and to all judicial officers acting under a general authority, and it would thus involve in its liabilities all tribunals except those of last resort. It would also subject to suit persons participating in the execution of orders and judgments rendered in the absence of a real ground of jurisdiction. By force of such a rule, if the Supreme Court of this state, upon a writ being served in a certain manner, should declare that it acquired jurisdiction over the defendant, and judgment should be entered by default against him, and if, upon error brought, this court should reverse such judgment on the ground that the service of the writ in question did not give the inferior court juris- diction in the case, no reason can be assigned why the justices of the Supreme Court should not be liable to suit for any injurious conse- quence to the defendant proceeding from their judgment. As I have said, in my judgment the jurisdictional test of the measure of judicial responsibility must be rejected. Nevertheless, it must be conceded that it is also plain that in many cases a transgression of the boundaries of his jurisdiction by a judge will impose upon him a liability to an action in favor of the person who has been injured by such excess. If a magistrate should, of his own motion, without oath or complaint being made to him, on mere hear- say, issue a warrant and cause an arrest for an alleged larceny, it can- not be doubted that the person so illegally imprisoned could seek re- dress by a suit against such officer. It would be no legal answer for the magistrate to assert that he had a general cognizance over crim- inal offenses, for the conclusive reply would be that this particular case was not, by any form of proceeding, put under his authority. From these legal conditions of the subject my inference is that the FALSE IMPRISONMENT. 233 true general rule with respect to the actionable responsibility of a judi- cial officer having the right to exercise general powers is that he is so responsible in any given case belonging to a class over which he has cognizance, unless such case is, by complaint or other proceeding, put at least colorably under his jurisdiction. Where the judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and such officer is not liable in a suit to the person affected by his decision, whether such decision be right or wrong. But when no facts are present, or only such facts as have neither legal value nor color of legal value in the affair, then, in that event, for the magistrate to take jurisdiction is not in any manner the performance of a judicial act, but simply the commission of an unofficial wrong. This criterion seems a reason- able one. It protects a judge against the consequences of every error of judgment, but it leaves him answerable for the commission of wrong that is practically willful. Such protection is necessary to the inde- pendence and usefulness of the judicial officer, and such responsibility is important to guard the citizen against official oppression. The application of the above-stated rule to this case must, obviously, result in a judgment affirming the decision of the circuit judge. There was a complaint, under oath, before this justice, presenting for his con- sideration a set of facts to which it became his duty to apply the law. The essential things there stated were that the plaintiff, in combina- tion with two other persons, "with force and arms," entered upon certain lands, and "with force and arms did unlawfully carry away about four hundred bundles of cornstalks, of the value," etc., and were engaged in carrying other cornstalks from said lands. By a stat- ute of this state (Revision, p. 244, 99) it is declared to be an indictable offense "if any person shall willfully, unlawfully, and maliciously" set fire to or burn, carry off, or destroy any barrack, cock, crib, rick, or stack of hay, corn, wheat, rye, barley, oats, or grain of any kind, or any trees, herbage, growing grass, hay, or other vegetables, etc. Now, although the misconduct described in the complaint is not the mis-, conduct described in this act, nevertheless the question of their identity was colorably before the magistrate, and it was his duty to decide it; and, under the rule above formulated, he is not answerable to the person injured for his erroneous application of the law to the case that was before him. As to the other defendant, all he did was to make his complaint on oath before the justice, setting forth the facts truly, and for such an act he could not be held liable for the judicial action which ensued, even if such action had been extra judicial. But as the case was, as we have seen, brought within the jurisdiction of the judicial officer, neither this defendant nor any other person could be treated as a tres- passer for his co-operation in procuring a decision and commitment 234 LAW OF TORTS. which were valid in law until they had been set aside by a superior tribunal. Let the judgment be affirmed. All concur. (This doctrine is sustained by the following leading cases: Booth v. Kurrus, 55 N. J. Law, 370, 26 Atl. 1013; Harrison v. Clark, 4 Hun, 685; Bocock v. Cochran, 32 Hun, 521; Austin v. Vrooman, 128 N. Y. 229, 28 N. E. 477, 14 L. R. A. 138; Doty T. Kurd, 124 Mich. 671, 83 N. W. 632; Murphy v. Walters, 34 Mich. 180.) (2) Liability of complainant or party suing out process. (7 Gray, 53, 66 Am. Dec. 457.) BARKER v. STETSON et al. (Supreme Judicial Court of Massachusetts. Middlesex. October Term, 1856.) TRESPASS LIABILITY OF COMPLAINANT FOB ACTS OF OFFICER TJNDEB VOID PROCESS. Making a complaint to a magistrate does not render the complainant liable in trespass for acts done under a warrant issued thereon by the magistrate, even if the magistrate has no jurisdiction to issue such process in the given case. Thus where the process was issued under an unconstitutional statute, and was therefore void, the complainant was held not liable. Action of tort for entering the plaintiff's shop, and taking and carry- ing away therefrom two casks of intoxicating liquors. The answer denied the entry and the taking. At the trial in the court of common pleas, before Sanger, J., the plaintiff introduced evidence that the defendants signed and made oath to a complaint to a justice of the peace, under St. 1852, c. 322, 14, praying him to issue his warrant for the seizure of the plaintiff's liquors, and a warrant was issued thereon by said justice, and served by a deputy sheriff by entering the shop and seizing the liquors. The defendants contended, and the court ruled, that upon this evi- dence the plaintiff could not maintain his action. The plaintiff be- came nonsuit, and alleged exceptions to the ruling. METCAL/F, J. The defendants made a complaint to a magistrate, under St. 1852, c. 322, 14, and therein prayed him to issue process for the seizure of the plaintiff's liquors; and they did nothing more. The magistrate issued the process, and an officer served it according to its precept. The section of the statute under which this process was issued being unconstitutional, the magistrate had no jurisdiction, the process was void, and the service of it was a trespass upon the plaintiff, for which the magistrate and the officer are answerable. Fisher v. McGirr, I Gray, I, 61 Am. Dec. 381 ; Kelly v. Bemis, 4 Gray, FALSE IMPRISONMENT. 235 83, 64 Am. Dec. 50. Are the defendants also answerable in the form of action which ihe plaintiff has adopted? It is quite clear that they are not. The authorities are conclusive that when a person does no more than to prefer a complaint to a magistrate, he is not liable in trespass for the acts done under the warrant which the magistrate thereupon issues, even though the magistrate has no jurisdiction. If the complaint is malicious and without probable cause, the complainant may be answerable in another form of action. Brown v. Chapman, 6 C. B. 365 ; Carratt v. Morley, I Gale & Dav. 275, and I Ad. & El. N. S. 18 ; Cooper v. Harding, 7 Ad. & El. N. S. 928 ; West v. Smallwood, 3 M. & W. 418, and Horn & Hurlst. 117; Barber v. Rollinson, I Cr. & M. 330, and 3 Tyrwh. 266. See, also, a recognition of this doctrine by Lord Campbell in Chivers v. Savage, 5 El. & Bl. 701. Exceptions overruled. (This is not a case of false imprisonment, but the principle is the same in such a case also. All the cases cited in the decision, except the first, were cases of false imprisonment. See also Gifford v. Wiggins, 50 Minn. 401, 52 N. W. 904, 18 L. R. A. 356; Whaley v. Lawton, 62 S. C. 91, 40 S. E. 128, 56 L. R. A. 649; Tillman v. Beard, 121 Mich. 475, 80 N. W. 248, 46 L. R. A. 215; Dusy v. Helm, 59 Cal. 188; Teal v. Fissel [C. C.] 28 Fed. 351.) (7 Gray, 55, 66 Am. Dec. 459.) EMERY v. HAPGOOD. (Supreme Judicial Court of Massachusetts. Middlesex. October Term, 1856.) FALSE IMPRISONMENT WANT OF JURISDICTION VOID WARRANT LIABILITY OF PARTY INSTIGATING ARREST. A complainant who obtains a warrant from a magistrate who has no Jurisdiction of the cause, and instigates and induces an officer to arrest the defendant thereon, is liable in damages for false imprisonment to the party arrested, without regard to the fact whether the warrant is valid on its face or not Since the warrant is in reality void, and the com- plainant is under no duty to cause it to be executed, he is not entitled to the exemption of an officer, who is protected if a warrant be valid on its face and be issued by a court or magistrate apparently having juris- diction of the case or subject-matter. In action of tort for assault and false imprisonment defendant com- plained of plaintiff before a justice of the peace for the alleged viola- tion of the liquor law, on which plaintiff was adjudged guilty. On the hearing of said complaint the justice directed the commitment of plaintiff to jail for contempt. The justice had no jurisdiction, either of the original complaint or to enter the order of commitment for contempt. The warrant of commitment for contempt was served on plaintiff at the instigation and through the inducement of defend- ant. Judgment on verdict for plaintiff. 236 LAW OF TORTS. BIGELOW, J. The want of jurisdiction in the magistrate to try and determine the complaint originally made by the defendant against the plaintiff, and the invalidity of the commitment of the plaintiff for contempt, are fully settled in Piper v. Pearson, 2, Gray, 120, 61 Am. Dec. 438. In that case the proceedings before the magistrate were similar to those in the case at bar. The only question therefore arising in this case is whether, upon the facts proved, the defendant is liable as a trespasser. In deciding this question it is unnecessary to determine upon the regularity of the form of the warrant of commitment. This is not an action against an officer for serving the warrant, or against a person acting by or un- der his authority or sanction. If it were, it would be essential to con- sider whether the warrant was bad on its face, and disclosed the want of jurisdiction in the magistrate who issued it. For reasons founded on public policy, and in order to secure a prompt and effective service of legal process, the law protects its officers, and those acting under them, in the performance of their duties, if there is no defect or want of jurisdiction apparent on the face of the writ or warrant under which they act. The officer is not bound to look beyond his warrant. He is not to exercise his judgment touching the validity of the process in point of law ; but if it is in due form, and is issued by a court or magis- trate apparently having jurisdiction of the case or subject-matter, he is to obey its command. In such case he may justify under it, al- though in fact it may have been issued without authority, and therefore be wholly void. But such is not the rule applicable to strangers or third persons, who are not required, in the exercise of a public duty, to assume the responsi- bility of executing legal process. If they interfere of their own mo- tion, without authority or command from the officers of the law, to cause a writ or warrant to be enforced, they act at their peril ; and if the process, though regular on its face and apparently good, was un- authorized, or was issued by a tribunal having no jurisdiction, or act- ing beyond the scope of its power, they are liable for the consequences arising from the enforcement of unlawful process. It is upon this ground that a party is held responsible at whose suit execution is made when the officer serving it incurs no liability. The rule is that if a stranger voluntarily takes upon himself to direct or aid in the service of a bad warrant, or interposes and sets the officer to do execution, he must take care to find a record that will support the process, or he can- not set up and maintain a justification. Barker v. Braham, 3 Wils. 376; Parsons v. Loyd, 3 Wils. 341 ; Bryant v. Glutton, I M. & W. 408 ; West v. Sraallwood, 3 M. & W. 418; Codrington v. Lloyd, 8 Ad. & El. 449; Carratt v. Morley, i Ad. & El. N. S. 18; Green v. Elgie, 5 Ad. &E1. N. S. 114. In the present case the defendant was a volunteer in urging the officer to serve a void warrant upon the plaintiff ; and, under the instructions FALSE IMPRISONMENT. 237 given to the jury, it is found by their verdict that the plaintiff would not have been committed to jail but for his interference and instiga- tion. He was, in a legal sense, a stranger to the warrant. It was not his duty or within his province to cause it to be enforced. After hav- ing made and signed the original complaint, and testified in its sup- port before the magistrate, his duty and responsibility were at an end. Barker v. Stetson, ante, 234. He cannot, therefore, shelter himself under the authority of the officer, and claim immunity on the ground that the warrant was regular, and disclosed no want of jurisdiction in the magistrate. But it being apparent by the record that the warrant was illegally issued and void, the defendant is responsible for the trespass which he caused to be committed upon the plaintiff. Judgment on the verdict. (Other important cases sustaining this doctrine are Hewitt v. Newburger, 141 N. Y. 538, 36 N. E. 593; Loomis v. Render, 41 Hun, 268; Gelzenleuchter v. Niemeyer, 64 Wis. 316, 25 N. W. 442, 54 Am. Rep. 616; Frazier v. Turner, 76 Wis. 562, 45 N. W. 411. But one who has procured the imprisonment of another on a lawful warrant is not liable to an action for false imprisonment, though he obtained the warrant by misrepresentations [Coupal v. Ward, 106 Mass. 289 ; Langford v. Boston & A. R. Co., 144 Mass. 431, 11 N. E. 697] ; or though his object was to enforce payment of a debt [Mullen v. Brown, 138 Mass. 114]. If the proceeding was malicious and without probable cause, the remedy would be an action for malicious prosecution.) (94 N. Y. 268, 46 Am. Rep. 141.) GUILLEAUME v. ROWE et al. (Court of Appeals of New York. December 14, 1883.) L VOID EXECUTION ISSUANCE BY ATTORNEY LIABILITY OF JUDGMENT CBED- ITOB. Where the attorney whom creditors had employed to bring an action issued, upon the judgment recovered by them, a void execution against the person of the judgment debtor, and the debtor was arrested thereon, held, that the judgment creditors were liable for the attorney's act, being within the scope of his implied authority, and were therefore responsible for the wrongful imprisonment of the debtor. 2. FALSE IMPRISONMENT RELEASE VALIDITY. Where a judgment debtor, imprisoned under a void execution, was told that unless he signed a release of his right of action for the false impris- onment he would stay in jail a long time, the release then signed by him was void for duress. Action by Charles S. Guilleaume against Edward Rowe and others for false imprisonment. From a judgment of the superior court of the city of New York (48 N. Y. Super. Ct. 169) reversing a judgment in favor of defendants, they appeal. Affirmed. 238 LAW OF TORTS. The defendants employed an attorney to sue plaintiff, and obtained a judgment. An execution against property was returned unsatisfied, and the attorney then issued an execution against the person, and plain- tiff was arrested on the 2d of February and lodged in jail. Afterward the defendants, in their own person, under date of February 24th, no- tified the sheriff that they "countermanded" that execution ; and there- upon he informed the prisoner that he had an order to discharge him, if he would sign a stipulation not to sue the execution creditors or their attorney for damages on account of the arrest, and upon his refusing to do so assured him that if he "did not sign it he would have to stay in jail a long time." The prisoner signed the stipulation and was dis- charged. He then brought this action. Upon the trial it was con- ceded that the last execution was not authorized by the judgment, and was void. DANFORTH, J. Upon this appeal the defendants must be held to the point on which they succeeded at the trial term. They then conceded that the arrest of the plaintiff was by virtue of an execution for which there was no authority in law, but had, him turned out of court on the sole ground that there was no evidence showing that either of the defendants authorized the issuing of the execution or his arrest. The General Term were of opinion that a case was made out by the plaintiff, and we agree with that court. A party is bound by the acts of his attorney, although he does not give immediate direction as to the proceedings in an action, or is not with him at its successive stages. If he sets the attorney in motion he becomes liable as the cause pro- gresses, and if the result is in his favor is responsible for the methods resorted to for the enforcement of the judgment. This is well settled. Barker v. Braham, 3 Wils. 368 ; Poucher v. Blanchard, 86 N. Y. 256. Here the retainer of the attorney was by these defendants, the issuing of the execution was within the scope of his implied authority, and the arrest of the judgment debtor was for the purpose of compelling pay- ment. This was enough to make them liable. There was, however, evidence tending to show actual knowledge on the part of the defend- ants, and at any rate acquiescence by them in the course adopted by their attorney. The court erred in taking the question from the jury and in dismissing the case as one where no cause of action was made out. The learned counsel for the appellants now argues that by the stipula- tion the plaintiff released his right of action. But this proposition was decided against the defendant by the trial judge as well as the Gen- eral Term. It has no merit. The instrument on which he relies was executed by the plaintiff without consideration and while enduring an imprisonment, which was illegal. It was therefore void for duress (Foshay v. Ferguson, 5 Hill, 154; Evans v. Begleys, 2 Wend. 243), and the defendants could acquire no right under it. FALSE IMPRISONMENT. 239 The General Term properly reversed the judgment and directed a new trial. Its order should be affirmed, and, by reason of the defend- ant's stipulation, the plaintiff have judgment absolute. All concur. Order affirmed, and judgment accordingly. (To the same effect are Brooks v. Hodgkinson, 4 H. & N. 712; Sleight v. Leavenworth, 5 Duer, 122; cf. Foster v. Wiley, 27 Mich. 244, 15 Am. Rep. 185.) (3) Liability of officer making arrest. (76 Me. 128.) ELSEMORE v. LONGFELLOW. (Supreme Judicial Court of Maine. May 5, 1884.) 1. FALSE IMPRISONMENT OFFICER MAKING ARREST VOID PROCESS. An officer making an arrest under process issued by a magistrate hav- ing jurisdiction over the subject-matter of the case is liable for false im- prisonment, if the process is void for lack of jurisdiction over the person, and if he can see from its face that it is void. 2. SAME VALIDITY OF PROCESS. A complaint for the removal of a pauper to the town where she had her settlement did not allege, as statute required, that the overseers gave a written order to any person to remove the pauper, nor that such person requested the pauper to go with him and that she refused or resisted, nor that such person made the complaint. Held, that a warrant issued thereon was void on its face, as showing lack of jurisdiction over the person, so as not to justify an officer in making an arrest thereunder. Action by Annie D. Elsemore against Isaac P. Longfellow for false imprisonment. Heard on report. Action stands for trial. The complaint alleged that the plaintiff had been supported in the town of East Machias by th.e town of Wesley; that the overseers of the poor in Wesley, desiring her removal thither, went to the house of her mother, who refused to deliver her up or to inform them where she was; and that she utterly refused to return to the place of her settle- ment. A warrant was issued thereon, under which the defendant, a deputy sheriff, arrested her. By the terms of the report, if the warrant and return and other facts stated were a justification to the officer, the plaintiff should be nonsuit; otherwise the case to stand for trial. PETERS, J. This is an action against an officer for false arrest and imprisonment, the question involving the sufficiency and validity of the papers under which the officer acted. The theory of the law is to protect an officer in his acts of official duty so far as it reasonably can without injustice to others. The rule should be liberally interpret- ed in the officer's behalf. The proceedings in this case were instituted for the removal of a pauper from one town to another by force of the statutory provisions 240 LAW OF TORTS. contained in section 27, c. 24, Rev. St. 1871, and chapter 157, Laws 1879. The subject-matter was within the jurisdiction of the magis- trate who issued the process to the officer. The important question is whether a proper process was issued or not; whether the process disclosed a jurisdiction over the person of the plaintiff; in other words, whether the process under which the defendant acted was valid or void. The officer is protected unless the process is void, and unless he can see from the face of the process itself that it is void. If the process shows its want of validity, the officer is not justified in acting under it. Irregularities merely that are amendable do not vitiate it. An officer has a right to suppose that what may be amended will be amended. Amendable defects do not even justify an officer in refusing to serve the process. Although the cause of action may be ever so informally and imperfectly expressed, still, if a proper cause is indicated, the process may be legal on its face. The officer stands upon defensible ground unless the process be absolutely void. McGlinchy v. Barrows, 41 Me. 74; Thurston v. Adams, Id. 419; Gurney v. Tufts, 37 Me. 130, 58 Am. Dec. 777; Nowell v. Tripp, 61 Me. 426, 14 Am. Rep. 572, and cases; Big. Cas. Torts, 277; Bouv. Law Diet. "Arrest." Under those rules, and upon the doctrine of the cases most favorably interpreted for the officer, we are forced to the conclusion that neither the facts indicated upon the papers themselves, nor those adduced in evidence, show that the magistrate had any jurisdiction over the per- son of the plaintiff in the matters alleged. The proceedings were void. What facts would it have been necessary to allege in order to af- ford protection to the officer ? That the plaintiff was a pauper ; that is alleged. That the overseers gave a written order to some person to remove the pauper; that is not alleged. That such person requested the pauper to go with him, and that she refused or resisted ; that is not alleged. That such person makes the complaint; that is not alleged. No statutory cause is alleged. A naked order to arrest would not have been sufficient. Reason must be given. Illegal reasons are given. Legal reasons are omitted. If the illegal allegations be expunged, the complaint would be little more than blank paper. The act of 1879 allows the complaint to be amended at any time be- fore judgment according to the facts. It was not amended. It must be amended according to the facts, and not contrary to or beyond the facts. There is no evidence or suggestion of the existence of any facts to be incorporated into the complaint beyond those alleged. The officer had no reason to believe in the existence of any facts not alleged which could have made the proceedings valid or his own acts justifiable. Action stands for trial. WALTON, BARROWS, DANFORTH, and LIBBEY, JJ., con- curred. (The leading case is Savacool v. Boughton, 5 Wend. 170, 21 Am. Dec. 181, in which these conclusions are drawn: [1] "If a mere ministerial officer FALSE IMPRISONMENT. 241 executes any process, upon the face of which it appears that the court which issued it had not Jurisdiction of the subject-matter or of the person against whom it is directed, such process will afford him no protection for acts done under it. [2] If the subject-matter of a suit is within the jurisdiction of a court, but there is a want of jurisdiction as to the person or place, the officer who executes process issued in such suit is no trespasser, unless the want of jurisdiction appears by such process." To the same effect are Gurney v. Tufts, 37 Me. 130, 58 Am. Dec. 777; Jacques v. Parks, 96 Me. 268, 52 Atl. 763; Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151 ; Batchelder v. Currier, 45 N. H. 460 ; United Lines Tel. Co. v. Grant, 137 N. Y. 7, 32 N. E. 1005 ; Lewis v. Palmer, 6 Wend. 370; Sheldon v. Hill, 33 Mich. 171; McLendon v. State, 92 Tenn. 520, 22 S. W. 200, 21 L. R. A. 738. But if -the court has no juris- diction over the subject-matter, the process, though apparently regular, is not merely voidable, but void, and the officer executing the process has no authority, and is therefore liable to an action ; as, e. g., where the law under which the process is issued is unconstitutional. Warren v. Kelley, 80 Me. 512, 531, 15 Atl. 49 ; Fisher v. McGirr, 1 Gray, 1, 45, 61 Am. Dec. 381 ; Barker v. Stetson, 7 Gray, 53, 66 Am. Dec. 457 ; Campbell T. Sherman, 35 Wis. 103.) Arrest upon process voidable for "error" or "irregu- larity." (103 N. Y. 84, 8 N. E. 251.) FISCHER v. LANGBEIN et al. (in part). (Court of Appeals of New York. October 5, 1886.) 1. FALSE IMPRISONMENT ARREST UNDEE VOID OB IRREGULAR PROCESS. The liability of an attorney who causes the issue of void or irregular process, for loss or injury thereby occasioned to the party against whom it is enforced, attaches, in the case of void process, when the wrong is committed, no preliminary proceeding to vacate or set it aside being necessary to the maintenance of an action. Process, however, that a court has general jurisdiction to award, but which is irregular by reason of the non-performance by the party procuring it of some preliminary requisite, or of the existence of some fact not disclosed in his application therefor, must be regularly vacated or annulled by an order of the court before an action can be maintained for damages occasioned by its en- forcement 2. SAME ARREST ON PROCESS ISSUED ON ERRONEOUS JUDGMENT OB ORDER. When a court is called upon to adjudicate upon doubtful questions of law, or determine as to inferences to be drawn from circumstances reason- ably susceptible of different interpretations or meanings, and calling for the exercise of the judicial function in their determination, an order or process based on its decision, although afterwards vacated or set aside as erroneous, is not void, nor does it subject the party procuring it to an action for damages thereby inflicted. 3. SAME. The power of a court to entertain Jurisdiction of an action or pro- ceeding does not depend upon the existence of a substantial cause of action, but upon the performance by the party of the prerequisites au- thorizing it to determine whether one exists or not CHASE (2o ED.) 16 1M2 LAW OF TORTS. 4. SAME COMMITMENT FOB CONTEMPT. In proceedings by the defendants in an action to punish the plaintiff therein for contempt, all the facts constituting the alleged contempt were undisputed, and were presented to the court having jurisdiction of the proceedings for its consideration. On the hearing it was conceded that the plaintiff had disobeyed an order of 'the court, and the only question was whether such disobedience defeated, impaired, impeded, or preju- diced any right or remedy of the defendants. The court decided that plaintiff was guilty of contempt, and ordered him to be committed ; but its order was reversed on appeal as erroneous in respect of the question of law. Held, that such error did not affect the jurisdiction of the court, nor render the commitment void, and plaintiff could not maintain an action for false imprisonment for his arrest and imprisonment under the commitment. Appeal from Supreme Court, General Term, First Department. Action by John Fischer against George Langbein and J. C. Julius Langbein for false imprisonment. Defendants were the attorneys for the defendants in a previous action brought by the plaintiff, John Fischer, for the dissolution of an unincorporated association. In that action an order of reference was made, in which was inserted, with the consent of plaintiff, a provision that plaintiff should pay the costs of the reference if the referee should find in favor of defendants as to certain questions. The referee did so find, but plaintiff neglected to take up his report and pay the fees. Thereupon the defendants' attorneys, defendants in this action, procured an order that plaintiff pay such fees within three days, or show cause why he should not be committed for contempt; and, on a hearing upon the return of the order to show cause, the court decided that plaintiff was guilty of contempt, and or- dered that a commitment issue, which was done, and plaintiff was com- mitted to jail thereon. The order for the commitment was afterwards reversed, on appeal, and thereafter plaintiff brought this action against defendants for their participation as attorneys in said proceedings. Plaintiff's complaint was dismissed at the trial, and judgment for de- fendants was entered thereon, which was affirmed by the general term on appeal. From the judgment of the general term plaintiff appealed. RUGER, C. J. It cannot be disputed but that an attorney who causes void or irregular process to be issued in an action, which occasions loss or injury to a party against whom it is enforced, is liable for the damages thereby occasioned. In the case of void process the liability attaches when the wrong is committed, and no preliminary proceeding is necessary to vacate or set it aside as a condition to the maintenance of an action. Process, however, that a court has general jurisdiction to award, but which is irregular by reason of the non-performance, by the party procuring it of some preliminary requisite, or the existence of some fact not disclosed in his application therefor, must be regularly vacated or annulled by an order of the court before an action can be maintained for damages occasioned by its enforcement. Day v. Bach, FALSE IMPRISONMENT. 8/ N. Y. 56. In such cases the process is considered the act of the party, and not that of the court, and he is therefore made liable for the consequences of his act. Void process is such as the court has no power to award, or has not acquired jurisdiction to issue in the par- ticular case, or which does not, in some material respect, comply in form with the legal requisites of such process, or which loses its vitality in consequence of non-compliance with a condition subsequent, obedi- ence to which is rendered essential. Irregular process is such as a court has general jurisdiction to issue, but which is unauthorized in the particular case by reason of the existence or non-existence of some fact or circumstance rendering it improper in such a case. In all cases where a court has acquired jurisdiction in an action or proceeding, its order made or judgment rendered therein, is valid and enforceable, and affords protection to all persons acting under it, although it may be afterward set aside or reversed as erroneous. Simpson v. Hornbeck, 3 Lans. 53. Errors committed by a court upon the hearing of an action or proceeding which it is authorized to hear, but not affecting any jurisdictional fact, do not invalidate its orders, or authorize a party to treat them as void, but can be taken advantage of only by appeal or motion in the original action. Day v. Bach, supra. There is no claim made that the order and commitment under which the imprisonment complained of in this case was effected, was void, or even irregular, except for the alleged erroneous determination made by the special term upon the merits of the application. This determi- nation consisted in holding that a contempt had been committed by the plaintiff, while, upon appeal, this court held otherwise. All of the facts constituting the alleged contempt were undisputed, and were presented to the special term for its consideration upon the hearing. After hearing the parties it decided that a contempt had been com- mitted, and ordered the imprisonment complained of. It was con- ceded on that hearing that the plaintiff has disobeyed an order of the court, and the only question presented for its consideration was whether such disobedience "defeated, impaired, impeded, or prejudiced" a right or remedy of the defendants. 1 Upon the appeal to this court it was held that the case did not clearly show that any right or remedy of the defendants had been defeated, impaired, impeded, or prejudiced by the disobedience alleged, and the order adjudging the plaintiff guilty of a contempt was for that reason reversed as erroneous. Fischer v. Raab, 81 N. Y. 235. A simple question of law was thus presented to the court as to whether all of the elements constituting the offense of contempt appeared on the application for the commitment. Whether they did or did not in no sense constituted a jurisdictional question. 1 "Civil contempt" is defined by the statute law of New York 'as a "neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding may be defeated, impaired, im- peded, or prejudiced." Code Civ. Proc. 14. 244 LAW OF TORTS. The court concededly had jurisdiction of the parties and the subject- matter of the application, and we think authority to determine whether a contempt had been committed or not; and the question for its con- sideration was whether the facts of the case brought it within the statutory definition of a "contempt." An erroneous decision of that question in no sense affected the jurisdiction of the court over the sub- ject-matter of the application. In a similar case it was said by this court that the fact that a justice of the peace "had jurisdiction of the person of the plaintiff, and of the subject-matter then pending, did not give him judicial authority to adjudge her guilty of a contempt, and to imprison her therefor. To have that authority there must have arisen before him facts which gave him power to consider the ques- tion whether there had been a contempt committed by her. When facts arose which gave him that power, he had a right to adjudicate upon them, and is not liable to an action, though he may have held erro- neously as matter of law." Rutherford v. Holmes, 66 N. Y. 370. In the present case the court made an order, upon the application of the plaintiff, referring a certain disputed question of fact to a referee to hear and determine, and, in case such report was against the plaintiff, that he should pay the referee's fees incurred thereon. The plaintiff cannot question the validity of this order, for it was made at his request, and upon his stipulation to pay the fees in the event provided for. The order was therefore lawful, and such as the court had a right to make under the circumstances. The report of the referee being against the plaintiff, he was required to pay the fees, and take it up ; but this he neglected and refused to do. For this refusal he was adjudged guilty of contempt. The disobedience of its order by the plaintiff gave the court jurisdiction of the subject-matter, and called upon it to determine whether a contempt had been committed or not. The right to adjudi- cate upon this question did not depend upon the fact whether the plain- tiff was guilty of a contempt, but whether a case had been made call- ing for an adjudication upon that question. The power of the court to entertain jurisdiction of an action or proceeding does not depend upon the existence of a sustainable cause of action, but upon the per- formance by the party of the prerequisites authorizing it to determine whether one exists or not. In Harman v. Brotherson, I Denio, 537, the defendant, a judicial officer, had awarded a capias upon affidavits which did not disclose such a cause of action as subjected the defendant to arrest therefor. He was, however, arrested and imprisoned, and in an action against the judge for false imprisonment it was held that he was exempted from liability by reason of the judicial character of his determination. In Landt v. Hilts, 19 Barb. 283, a county judge was prosecuted for false imprisonment for granting an order of arrest which was after- wards vacated upon the ground that the affidavit upon which it was founded did not show a sufficient cause for arresting the party. It FALSE IMPRISONMENT. 245 was held, however, that the "decision and the order protect the party applying for it, and the attorney and all persons acting in obedience to the order;" that the affidavit presented "a state of facts which called upon the officer to pass judicially upon the question, and to determine whether a case for an order was made out or not." "It presents, to say the least, a colorable case, and that is enough to protect the officer who issued it." It was further said "that the doctrine that the judicial officer is protected whenever he has jurisdiction, and enough is shown to call upon him for a decision, even though he err grossly and even intentionally, has long been firmly established. Upon the same princi- ple of public policy, parties who in good faith institute the proceedings, and act under and in accordance with judicial determination, should be protected from accountability as trespassers whenever the officer is entitled to protection." This case is largely and approvingly quoted from in Marks v. Townsend, 97 N. Y. 590, 599. In Miller v. Adams, 7 Lans. 133, affirmed in this court, (52 N. Y. 409,) the defendant was prosecuted for false imprisonment in procur- ing an attachment for contempt against a third party for not appearing before the judge in supplemental proceedings, in obedience to an order requiring him to do so. The affidavit upon which the attachment was issued was held, upon appeal, to be defective, and not to show the ex- istence of the contempt alleged. It was held, however, that it consti- tuted a protection as well to the officer issuing it as to the party pro- curing it; that the officer issuing the attachment had "jurisdiction of the matter, and acted judicially in making the order, and it is entirely clear that lie cannot be made answerable as a trespasser for an error in judgment." It seems to us that the case of Williams v. Smith, 108 E. C. L. 596, is undistinguishable in principle from this. As concisely stated by Justice Erie, it was as follows : "The master of the rolls decided on the facts that Williams was guilty of contempt in not obeying the or- der. Such is the judgment of the master of the rolls on the very facts between the parties. The legal inference which that learned judge drew from the facts which were presented to him on the part of Wil- liams was that he was guilty of a contempt. Upon appeal the lords justices were of opinion that the master of the rolls came to an erro- neous conclusion, and they reversed his decision. That is a totally different thing from setting aside the attachment for irregularity in the proceedings." It was held that the decision of the master of the rolls was a judicial determination that protected the parties acting under it, as well as the officers making it. The rule to be deduced from these authorities seems to be that when a court is called upon to adjudicate upon doubtful questions of law, or determine as to inferences to be drawn from circumstances reasonably susceptible of different interpretations or meanings, and calling for the exercise of the judicial function in their determination, its deci- 246 LAW OF TORTS. sion thereon does not render an order or process based upon it, although afterwards vacated or set aside as erroneous, void, or subject the party procuring it to an action for damages thereby inflicted. Where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the premises ; and if it, nevertheless, proceeds and entertains jurisdiction of the proceeding, all of its acts are void, and afford no justification to the parties instituting them as against parties injuri- ously affected thereby. But if the facts presented to the court call upon it for the exercise of judgment and reason, upon evidence which might in its consideration affect different minds differently, a judicial question is presented, which, however decided, does not render either party or the court making it liable for the consequences of its action. The judgment of the court below should be affirmed, with costs. All concur. (Other good illustrations of "error" are Hallock v. Dominy, 69 N. Y. 238; Marks v. Townsend, 97 N. Y. 590 ; Swart v. Rickard, 148 N. Y. 264, 42 N. E. 665; Booth v. Kurrus, 55 N. J. Law, 370, 26 Atl. 1013; Johnson v. Morton, 94 Mich. 1, 53 N. W. 816; Gassier v. Fales, 139 Mass. 461, 1 N. B. 922. In such cases neither the judge, nor the party suing out the process, nor the officer serving the process is liable for false imprisonment. Id. "Irregular- ity" is explained in Marks v. Townsend, 97 N. Y. 590, 601, as generally mean- ing "some irregular action by the party or his attorney, such as the issuing of a ca. sa. before a ft. fa. has been issued and returned." Chapman v. Dyett, 11 Wend. 31, 25 Am. Dec. 598. In Everett v. Henderson, 146 Mass. 89, 92, 14 N. E. 932, 936, 4 Am. St. Rep. 284, this statement is made : "Processes good on their face may be absolutely void for want of jurisdiction in the court or magistrate that issues them, or they may be voidable for error, or they may be voidable for irregularity in obtaining them. Processes voidable for error do not subject the person who directs their use to any liability, even after they are set aside. But processes irregularly obtained may be set aside, and then, as against those who obtained them, acts done under them are deemed to have been done illegally." To the same effect is Winchester v. Everett, 80 Me. 535, 15 Atl. 596, 1 L. R. A. 425, 6 Am. St Rep. 228. Other examples of "irregularity" are these : Issuing an execution on a judgment which had be- come dormant by lapse of time, without reviving the judgment by scire facias [Blanchenay v. Burt, 4 AdL & El. (N. S.) 707] ; issuing an execution against an absent defendant, without filing a bond pursuant to statute [Gardiner Mfg. Co. v. Heald, 5 Me. 381, 17 Am. Dec. 248 ; see also Codrington v. Lloyd, 8 Ad. & El. 449 ; Prentice v. Harrison, 4 Ad. & El. (N. S.) 852 ; Ackroyd v. Ackroyd, 3 Daly, 38 ; Kerr v. Mount, 28 N. Y. 659 ; Simpson v. Hornbeck, 3 Lans. 53 ; McFadden v. Whitney, 51 N. J. Law, 391, 18 Atl. 62].) FALSE IMPRISONMENT. 247 Arrest upon a "warrant, where a warrant is by law necessary. (70 Me. 464.) HARWOOD v. SIPHERS (in part). (Supreme Judicial Court of Maine. January 5, 1880.) FALSE IMPRISONMENT JUSTIFICATION ARREST UNDER PROCESS. Under Const. Me. art. 1, 5, providing that no warrant to seize any per- son shall issue without a special designation of the person to be seized, a warrant which merely described the accused as "a person whose name is unknown, but whose person is well known, of V., in the county of K.," was insufficient to protect an officer making an arrest thereunder from liability for false imprisonment. Action of trespass for false imprisonment by Blake A. Harwood against Joseph Siphers. Verdict for plaintiff, and defendant excepts. Exceptions overruled. It was admitted that the defendant was a deputy sheriff of the county, duly qualified. In justification of the acts complained of the defendant read in evi- dence a certified copy of a warrant issued by the judge of the police court of the city of Gardiner, in said county of Kennebec, dated October 2, 1878, which, with the complaint therein referred to, the officer's re- turn thereon, and the doings of said police judge are parts of the case. The only description of the accused contained in the complaint (to which the warrant referred) or in the warrant is : "A person whose name is unknown, but whose person is well known, of Vassalboro, in the county of Kennebec." Defendant contended that said complaint and warrant were sufficient authority for him to do all that he did do, and relied upon the same as a complete justification for all acts proved to have been committed by him in the premises. The presiding judge ruled that said warrant was insufficient to au- thorize the arrest and detention of the plaintiff, and that the same did not contain any sufficient description of the person whom the officer was commanded by the magistrate to arrest. SYMONDS, J. The defendant is a deputy sheriff, who is sued in this action for an illegal arrest and false imprisonment of the plaintiff. He justifies under a warrant from the police court of the city of Gardiner, issued upon complaint made by himself against the present plaintiff for larceny. The only description of the accused in the com- plaint or warrant is in the following terms : "A person whose name is unknown, but whose person is well known, of Vassalboro, ui the county of Kennebec." 248 LAW OF TORTS. The presiding judge ruled that a warrant containing only this descrip- tion of the accused, although issuing from a court of competent juris- diction, failed upon its face to afford protection to an officer who ar- rested and detained a prisoner upon it We think the ruling was correct. The knowledge of the complainant of the person intended by the warrant does not aid a defect in it. The averment of such knowledge, therefore, cannot supply any deficiency otherwise existing. This is substantially a warrant against a resident of Vassalboro whose name is unknown, without further designation or description. "No warrant to search any place, or seize any person or thing, shall issue without a special designation of the place to be searched, and the person or thing to be seized." Const. Me. art. I, 5. The warrant in this case is in accordance neither with the require- ments of the Constitution nor with the precedents of the criminal law. "If the name of the party to be arrested be unknown, the warrant may be issued against him by the best description the nature of the case will allow." i Chit. Cr. L. 39 ; Com. v. Crotty, 10 Allen, 404, 87 Am. Dec. 669. The omission of the name, as a means of identification, is justified only on the ground of necessity ; and when this is not known the war- rant must indicate on whom it is to be served in some other way, by a specification of his personal appearance, his occupation, his precise place of residence or of labor, his recent history, or some facts which give the special designation that the Constitution requires. The conclusion from all the authorities, as given in Bishop on Crim- inal Procedure, 680, is "that, both at the common law and in con- formity with our constitutional guaranties, proceedings may be insti- tuted and carried on against an offender whose name cannot be ascer- tained; but in such a case such a description of him must be given as will point to his identity, while yet there is no exact form of the description required. It must be suggested by the particular circum- stances; and, of course, it must conform also to any statutory pro- visions which may exist in the individual state." The warrant in this case was so irregular and insufficient upon its face as to afford no protection to the officer who proceeded to make an arrest upon it. Exceptions overruled. Judgment on the verdict. APPLETON, C. J., and WALTON, BARROWS, DAXFORTH, jnd LIBBEY, JJ., concurred. (Where a warrant recited a complaint against John R. Miller for a felony, and commanded the officer to arrest the "said William Miller," (held, that the officer was not justified in arresting John R. Miller, though he was the person intended. Miller v. Foley, 28 Barh. 030. So where Vandy M. West, the man intended, was arrested on a warrant against "James West." West FALSE IMPRISONMENT. 249 T. Cabell, 153 U. 8. 78, 14 Sup. Ct 752, 38 L. Ed. 643. This case says [citing many decisions] : "By the common law, a warrant for the arrest of a person charged with crime must truly name him, or describe him sufficiently to identify him. If it does not, the officer making the arrest is liable to an action for false imprisonment." Where a statute prescribed that an arrest could not be made at night on a warrant for a misdemeanor unless by direction of the magistrate indorsed upon the warrant, and officers did make an arrest at night upon a warrant not having such indorsement, they were held liable for false imprisonment Murphy v. Kron, 20 Abb. N. C. 259.) Arrest -without -warrant. A. In cases of felony. (40 N. Y. 463.) BURNS v. ERBEN et al. (In part). (Court of Appeals of New York. June 12, 1869.) BY PBIVATS INDIVIDUAL WITHOUT WABBANT FOB FELONY. An arrest by a private individual without a warrant, for felony, Is ex- cused only where, a felony has in fact been committed, and there was reasonable ground to suspect the person arrested of its commission; but an officer is justified in making an arrest without warrant, though no felony has been actually committed, if he has reasonable ground to sus- pect that one has been, and that the person arrested committed it. 2. FALSE IMPBISONMENT PBOBABLE CAUSE QUESTION FOB COUBT. Where there is no conflict in the evidence as to the circumstances in an action for false imprisonment, the question of probable cause or rea- sonable ground of suspicion is one of law, and not for the jury. Action for false imprisonment of plaintiff. A larceny had been com- mitted in the house of defendant's father at a time when plaintiff, who had been visiting a servant, was the only person, not a member of the family,' present in that part of the house from which the property was taken. Defendant, a private person, entered a complaint against her for larceny, and assisted in her arrest by an officer without a warrant. She was taken to the police station, where she was detained for a few minutes, and was then permitted to return to her residence. The, officer, Frost, was sued with the defendant, but submitted to a default. From a judgment of nonsuit plaintiff appeals. Affirmed. WOODRUFF, J. By section 8 of the act to establish a metropolitan police district, passed April 15, 1857 (chapter 569, Laws 1857), the members of the police force of that district are given, "in every part of the state of New York, all the common law and statutory powers of constables, except for the service of civil process." And in the amendatory act passed April 10, 1860 (chapter 259, Laws 1860), it is declared, in the twenty-eighth section, that the members of the police 250 LAW OF TORTS. force of that district "shall possess in every part of the state all the common law and statutory powers of constables, except for the service of civil process." In pursuance of information given by the defendant Erben, the de- fendant Frost, accompanied by Erben, arrested the plaintiff without warrant, took her to the police station, where she was detained a few minutes, and after some conversation with the officer in charge she was permitted to return to her residence. For this she has brought the present action for false imprisonment. A felony had been committed that evening at the house of Mr. Henry Erben, the defendant's father. On that point there is no dispute or conflict. The plaintiff had visited the house that evening, and, accord- ing to the information upon which the defendant acted, was the only person not a member of the family who had been in the basement. Silver had been stolen from the basement. It was there when the plaintiff entered and until after 8 o'clock, and it was missed very shortly after she left the house. Of these facts the proof was distinct and without contradiction. Upon a report of these facts, Frost, accompanied by the defendant Erben, made the arrest as above stated. The inquiry is therefore whether, under the statutes above cited and the common-law rule in respect of arrests made or aided by private persons, the plaintiff was entitled to recover. There were no facts in dispute requiring the submission of any question to the jury, unless it be held that there was no justification. I have no doubt upon the subject. The writers upon criminal law and the reported cases, so far as I have examined them, hold uniform language. Lord Tenterden, C. J., in Beckwith v. Philby, 6 Barn. & Cres. 635, says: "The only question of law in this case is whether a constable, having a reasonable cause to suspect that a person has committed a felony, may detain such person until he can be brought before a justice of the peace to have his conduct investigated. There is this distinction between a private individual and a constable; in order to justify the former in causing the imprisonment of a person, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed; whereas a constable having reasonable ground to suspect that a felony has been committed is authorized to detain the party suspected until inquiry can be made by the proper au- thorities." See Hawk. P. C. book 2, cc. 12, 13; I Russell on Crime, 594, 595 ; Steph. Cr. L. 242, 243 ; I Chit. Cr. L. 15, 17; Samuel v. Payne, Doug. 358; Lawrence v. Hedger, 3 Taunt. 14; Regina v. Toohy, 2 Ld. Raymond, 130; Hobbs v. Brandscomb, 3 Camp. 420; Davis v. Russell, 5 Bing. 354 ; Cowles v. Dunbar, 2 Car. & P. 565. In Ledwith v. Catchpole, Cald. Cas.29i, I Burns, Justice, pp. 130, 131, Lord Mansfield says, in an action against the officer: "The question FALSE IMPRISONMENT. 251 is whether a felony has been committed or not. And then the funda- mental distinction is that if a felony has actually been committed a private person may, as well as a police officer, arrest ; if not, the ques- tion always turns upon this, was the arrest bona fide? Was the act done fairly and in pursuit of an offender, or by design, or malice, or ill will? * * * It would be a- terrible thing if, under probable cause, an arrest could not be made ; many an innocent man has and may be taken up upon suspicion; but the mischief and inconvenience to the public in this point of view is comparatively nothing ; it is of great consequence to the police of the country." The justification of an arrest by a private person was made in Allen v. Wright, 8 Carr. & Payne, 522, to depend on, first, the fact that a felony had been actually committed ; and, second, that the circumstan- ces were such that a reasonable person, acting without passion and prejudice, would have fairly suspected the plaintiff of being the person who did it. These principles are affirmed in this state in Holley v. Mix, 3 Wend. 350, 20 Am. Dec. 702, in very distinct terms: "If a felony has been committed by the person arrested, the arrest may be justified by any person without warrant. If an innocent person is arrested upon suspi- cion by a private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the person arrested. But if no felony was committed by any one, and a private individual arrest without warrant, such arrest is illegal, though an officer would be justified if he acted upon information from another which he had reason to believe." The fact being proved in this case that a felony had in fact been com- mitted, I have no hesitation in saying that, however unfortunate it was to the plaintiff, the circumstances fully justified the suspicion which led to her arrest. It is claimed that these circumstances should have been submitted to the jury. Not so; a verdict finding no reasonable ground of suspicion would have been against evidence. There was no conflict of testimony, and that the arrest was made without malice, in good faith, and upon reasonable grounds, is to my mind incontroverti- ble. The appeal appears to me to have been taken upon a misapprehension of the construction and effect of the statutes conferring power on the policeman. I think the power perfectly clear, and I notice that the rules and regulations of the board of police are in conformity therewith; and it is made the duty of the officer to take the arrested person imme- diately before the police court, or, if made at night or when the courts are not open, immediately to the station house, where the officer on duty is required to examine whether there is reasonable ground for the complaint, and, if so, to cause the party to be taken before the court the next morning. Under such a system, innocent parties may sometimes be subjected to inconvenience and mortification; but any 252 LAW OF TORTS. more lax rules would be greatly dangerous to the peace of the com- munity, and make the escape of criminals frequent and easy. The judgment should be affirmed. All the judges concurring. Judgment affirmed. (Leading cases as to the right of a private person to arrest for felony with- out a warrant are Reuck v. McGregor, 32 N. J. Law, 70 ; Spencer v. Anness, Id. 100; Mahaffey v. Byers, 151 Pa. 92, 25 Atl. 93; Malinieini v. Groiilund, 92 Mich. 222, 52 N. W. 627, 31 Am. St. Rep. 576 ; Morley v. Chase, 143 Mass. 396, 9 N. E. 767 ; Gamier v. Squires, 62 Kan. 321, 62 Pac. 1005 ; Howard v. Clarke, L. R. 20 Q. B. D. 558; Lister v. Ferryman, L. R. 4 E. & I. App. 521. If a private person communicates to an officer circumstances of suspicion, and leaves it to the officer to act on his own judgment as to making an arrest, he will not be liable if the officer does arrest the accused person, even if the arrest be unlawful ; but if the accuser directs the officer to take the alleged offender into custody he is liable for false imprisonment, unless he can justify by showing probable cause. Hopkins v. Crowe, 7 C. & P. 373 ; Veneman v. Jones, 118 Ind. 41, 20 N. E. 644, 10 Am. St. Rep. 100 ; Miller v. Fano, 134 Cal. 103, 66 Pac. 183.) (96 Mich. 249, 55 N. W. 843.) WHITE v. McQUEEN (in part). (Supreme Court of Michigan. June 30, 1893.) 1. FALSE IMPRISONMENT ABBEST BY OFFICER WITHOUT WARRANT FOB FELONY PROBABLE CAUSE. In an action against an officer for false imprisonment, for making an arrest without a warrant for felony, it is a defense that defendant had reasonable grounds to believe that a felony had been committed and that plaintiff was guilty thereof, and consequently arrested him. Where the facts are admitted, probable cause is a question of law for the court 2. SAKE. In an action for false Imprisonment, It appeared that a newspaper ar- ticle stated that plaintiff and some companions boarded a street car, when drunk, and refused to pay their fare; that the conductor and motorman attempted to put them off, when a fight ensued, and a lady passenger became frightened, jumped from the car, and was injured. Held, that there was nothing in the article to justify an arrest without a warrant on the ground that a felony had been committed under a statute which made it a felony willfully and maliciously by act or intimidation to impede or obstruct the regular operation of a railroad ; that the facts afforded no probable cause to believe that such a felony had been com- mitted; and that the judge should have instructed the jury that there was no probable cause. Error to Circuit Court, Kent County ; Allen C. Adsit, Judge. Action by Silas White against John McQueen for false imprisonment. Judgment for defendant, and plaintiff brings error. Reversed. GRANT, J. Defendant is the sheriff of Kent county. He caused the arrest of plaintiff August 2, 1891, which was Sunday, and impris- FALSE IMPRISONMENT. 253 oned him in the county jail until the following day, when he was brought before a justice of the peace, and charged with being disor- derly, under an ordinance of the city of Grand Rapids. He was tried upon August 4th, and acquitted. Defendant had no warrant for his arrest. Plaintiff then instituted this suit to recover damages for false imprisonment. The declaration is in the usual form. The plea was "not guilty." Defendant claimed to have arrested plaintiff upon suspi- cion that he was guilty of a felony. It appears from the evidence that on the Saturday evening previous an altercation had occurred upon a street car between the conductor and two motormen ; that during the fight a lady had jumped from the car, and was reported to be seriously injured; and that no arrests were made *hat night of any of the per- sons engaged in the fight. The defendant testified that between 8 and 9 o'clock Sunday morning the turnkey of the jail reported to him that there was a riot on East Fulton street by a lot of colored people, and that a lady was killed or nearly killed ; that some one had telephoned that there had been a row and a fight on a street car, and that this woman had received serious injuries in consequence of the fight, and thought the authorities ought to take these people in charge. Defend- ant then went to the office of the street-railway company, and saw Mr. Chapman, who had telephoned to the jail for him. Chapman gave him the names of six persons, including the plaintiff, who, he said, had been engaged in the fight, and wanted him to arrest them. Mr. Cb?pman told him that these persons had undertaken to run the car; had used profane language; that the conductor undertook to eject some of them from the car ; that they all pitched on the conductor, or two conductors, got one of them down, and hammered him; that this lady had gotten off of the car, or jumped off the car, in some way ; that she was in a critical condition, and presumed she would die; that he, Chapman, wanted these people taken that day, for if she died they would skip out, and there would be trouble in getting them. On the strength of this information defendant sent two deputies to arrest the plaintiff and the others who were reported to have been engaged in the affair. Defendant thought, but was not positive, that he saw an account of the affair in one of the Sunday morning papers. Plaintiff was a coachman for Dr. Barth. He was found by the officers at his customary work at the barn about I o'clock p. m., and promptly told them his name, whereupon he was immediately taken to jail. The case was submitted to the jury upon the theory that if the defendant had probable cause to believe, from the information which he received, that a felony had been committed by the plaintiff, he was justified in making the arrest without a warrant. The court instructed the jury that assault with intent to do great bodily harm, and manslaughter, were felonies. But the crime to which he specifically called their attention was obstruct- ing the operations and business of the street-railway company, under How. St. 9274, 9275. Under the first section it is made a crime 254 LAW OF TORTS. for any person to willfully and maliciously, by any act, or by means of intimidation, impede or obstruct the regular operation and conduct of the business of any railroad company, etc. The second section makes it a crime for two or more persons willfully and maliciously to combine, and conspire together for the like purpose. The punishment provided by the first section may be imprisonment in the state's prison for a period not exceeding one year ; and under the second section for a like imprisonment not exceeding two years. The court instructed the jury that if the facts conveyed to the defendant justified him in be- lieving that an offense under this statute had been committed, and that the plaintiff was guilty thereof, then he was justified in making the arrest. When an officer, in arresting fugitives from justice, and those whom he honestly believes have been guilty of a felony, has acted in good faith, and after such an investigation as the circumstances permitted him to make, he will be protected in his action, and will be relieved from the consequences of a false imprisonment. This is required for the protection of society, and to prevent the escape of criminals. So far as appears upon this record, the defendant acted mainly upon the in- formation conveyed to him by Chapman. If he read the newspaper article, (and the judge in his charge assumed that he did,) there was nothing in that to indicate that plaintiff and his companions had been guilty of a felony. The article stated that plaintiff and his companions were very drunk when they boarded the car ; that they refused to pay their fare ; that they used vile language, which annoyed the passengers ; that they refused to get off when asked ; that they showed fight when the conductor proceeded to put them off; that the motorman came to his rescue, and with his crank knocked one of the colored men from the car; that the conductor ejected the other; that one of the colored men jumped on again; that he was bleeding profusely, and using vile and filthy language ; that when he refused to get off the conductor knocked him from the car with a rock ; that the passengers then commenced to jump from the car; and that among those who jumped was a lady, but that she fortunately fell away from the car, and escaped death; and that the names of the colored men were not known to the police, but that they had a good description of them, and, unless they left the city, they would probably be identified. There was nothing in this statement to show that the plaintiff and his companions had been guilty of a violation of the statutes above quoted, or of any felony whatever. There was therefore nothing in it to justify the arrest without a war- rant. When the facts are conceded, probable cause is a question of law, which the court must determine. Pol. Torts, 192, 193 ; Perry v. Sulier, 92 Mich. 72, 52 N. W. 801 ; Huntington v. Gault, 81 Mich. 155, 45 N. W. 970. Under this record the court should have directed the jury that there was no probable cause for the belief on the part of the defendant that plaintiff had been guilty of a felony. For these rea- FALSE IMPRISONMENT. 255 sons the judgment must be set aside, and a new trial ordered. The other justices concurred. (Important cases to the same effect as to the right of officers to arrest with- out a warrant for felony are McCarthy v. De Armit 99 Pa. 63; Van v. Pa- cific Coast Co. [C. C.] 120 Fed. 699 ; Kirk v. Garrett, 84 Md. 383, 35 Atl. 1089 ; Rohan v. Sawin, 5 Cush. 281 ; Com. v. Carey, 12 Gush. 246 ; Wade v. Chaffee, 8 R. I. 224, 5 Am. Rep. 572; State v. Underwood, 75 Mo. 231; Cahill v. People, 106 111. 621 ; Miller v. Fano, 134 Cal. 103, 66 Pac. 183 ; Neal v. Joyner, 89 N. C. 287 ; Newman v. New York, L. E. & W. R. Co., 54 Hun, 335, 7 N. Y. Supp. 560 ; Snead v. Bonnoil, 166 N. Y. 325, 59 N. E. 899 ; Hogg v. Ward, 3 H. & N. 417. The burden of proving "probable cause" for the arrest [whether it be made by an officer or by a private person] is on the defendant Jackson v. Knowlton, 173 Mass. 94, 53 N. E. 134; Edger v. Burke, 96 Md. 715, 54 Atl. 986 ; McCarthy v. De Armit, 99 Pa. 63. When the facts are undisputed or settled, the question whether there was probable cause is one of law for the court, and not of fact for the jury. Filer v. Smith, 96 Mich. 347, 55 N. W. 999, 35 Am. St. Rep. 603; Id., 102 Mich. 98, 60 N. W. 297; McCarthy v. De Armit, 99 Pa. 63 ; Burns v. Erben, 40 N. Y. 463. Or, to put the rule other- wise: It is for the jury to find the facts which are supposed to constitute probable cause, and to draw their conclusions from these facts under the in- structions of the court. "It is wholly immaterial whether the suspicion arises out of information imparted to the officer by some one else or whether it is founded on the officer's own knowledge. In either event, what amounts to a sufficient ground of suspicion to justify an arrest without a warrant is for the court and not for the jury." Edger v. Burke, 96 Md. 715, 54 Atl. 986; cf. Lister v. Ferryman, L. R. 4 E. & I. App. 521. If the person arrested be detained longer than is reasonably necessary be- fore being taken before a magistrate, this also constitutes false imprisonment. Linnen v. Banfield, 114 Mich. 93, 72 N. W. 1 ; cf. Leger v. Warren, 62 Ohio St. 500, 57 N. E. 506, 51 L. R. A. 193, 78 Am. St Rep. 738 ; Bath v. Metcalf, 145 Mass. 274, 14 N. E. 133, 1 Am. St Rep. 455.) B. In cases of breach of the peace. (a) By officer. (40 Mich. 576.) QUINN v. HEISEL. (Supreme Court of Michigan. April 22, 1879.) FALSE IMPBISONMENT ABBEST BY OFFICES WITHOUT WABBANT FOB BBEACH OF THE PEACE. An officer may arrest without a warrant for a breach of the peace committed in his presence, but not for a past offense, not a felony, upon information or suspicion thereof. Nor will a threat or other indication of a breach of the peace justify an officer in making an arrest, unless the facts are such as would warrant him in believing an arrest necessary to prevent an immediate execution thereof ; and this without reference to any past similar offense of which the person may haye been guilty before the arrival of the officer. 250 LAW OF TORTS. Error to Circuit Court, Kent County. Action of trespass brought before a justice of the peace by John C. Heisel against John Quinn for an assault and battery. Quinn claimed that he was a policeman of the city of Grand Rapids, and gave evidence tending to show that the alleged assault consisted in forcibly arresting Heisel, under an ordinance of that city, for disorderly conduct; there being testimony that Heisel used profane and abusive language to men who were laying railway tracks in front of his house, swearing that he would kill some of them, and approached them with an axe, threat- ening to cut their heads off, and raised the axe as if about to strike one of them. He resisted arrest, and in the struggle was thrown down and handcuffed. At the trial in the justice's court judgment was ren- dered for defendant, but, on appeal to the circuit court, plaintiff recov- ered judgment. Defendant brought error to review the judgment of the circuit court MARSTON, J. A careful examination of the record fails to show that plaintiff in error has any cause of complaint. The court certainly charged the jury as to the right of an officer to make arrests without warrant for breaches of the peace, as favorably as common-law rules would warrant, and we are not at present prepared to say that an ordi- nance of the city of Grand Rapids could authorize arrests without pro- cess in cases not justified by common-law principles. The evidence on the part of the plaintiff tended to show that at the time of the arrest there was no disturbance, either actual or threatened, while that on the part of defendant tended to show, not merely a reasonable and probable apprehension of a violation of the ordinance, but an actual disturbance, and the jury was charged that under such circumstances, if a disturbance was found to exist, defendant was justified. The court was requested to charge that, if there had been a breach of the peace before defendant arrived, and plaintiff was about to renew his dis- orderly conduct, and continue the said breach in presence of the officer, then defendant would be justified in arresting him, even though the disturbance had temporarily ceased, before defendant came on the ground; also if the jury found, as a matter of fact, that plaintiff had been guilty of a breach of the peace before defendant came where he was, and defendant knew the fact, and had reasonable and probable cause to believe plaintiff was about to renew his offense, then he was justified in arresting; also that if the officer received information from the by-standers that there had been a tumult, and that plaintiff was the cause of it, of which fact plaintiff was afterwards found guilty, and plaintiff, in presence of defendant, made use of language indicating an intention on his part to continue the disturbance, then defendant had a right to arrest without process. These requests were refused, and, under the facts in the case, we think properly. There are many loose general statements in the books as to the right FALSE IMPRISONMENT. 257 of officers to make arrests without warrant. That they have a right to arrest for breaches of the peace committed in their presence is conceded by all. It is equally clear that they cannot arrest for a past offense, not a felony, upon information or suspicion thereof, although expressions may be found which would seem to assume such power. How far or when they may interfere by an arrest to prevent a threat- ened breach of the peace is not equally clear. We are of opinion that a threat or other indication of a breach of the peace will not justify an officer in making an arrest, unless the facts are such as would war- rant the officer in believing an arrest necessary to prevent an immedi- ate execution thereof, as where a threat is made, coupled with some overt act in attempted execution thereof. In such cases the officer need not wait until the offense is actually committed. To justify such arrest the party must have gone so far in. the commission of an of- fense that proceedings might thereafter be instituted against him there- for, and this without reference to any past similar offense of which the person may have been guilty before the arrival of the officer. The object of permitting an arrest, under such circumstances, is to prevent a breach of the peace, where the facts show danger of its being imme- diately committed. A reference to some of the authorities may not be inappropriate. In Reg. v. Mabel, 9 Car. & P. 474, the jury were charged that, under the circumstances stated by the policemen, they had no authority to lay hold of the defendant, unless they were satisfied that a breach of the peace was likely to be committed by the defendant on the person in the parlor. In Timothy v. Simpson, I Cromp., M. & R. 757, the plea justi- fying the imprisonment alleged that an affray had been committed, and it appeared that there was danger of its immediate renewal. In Grant v. Moser, 5 Man. & G. 123, it was said there should be a direct allega- tion either of a breach of the peace committing at the time, or that a breach had been committed, and that there was reasonable ground for % apprehending its renewal. In Baynes v. Brewster, 2 Q. B. 384, a plea to a declaration for false imprisonment was held bad which showed that the violent and illegal conduct was over, and it was not stated, nor did it appear, that it would have been repeated if the apprehension had not taken place. In this case Williams, J., said: "It is not a question, in this place, how far a constable is justified in interfering where an affray is going on in his presence ; but no principle is more generally assumed than that a warrant is necessary to entitle him to interfere after the affray is over. It is otherwise where the facts show that the affray is practically going on. That is on account of the obvious distinction, as to public danger, between a riot still raging and one no longer exist- ing." Wightman, J., in speaking of the right to arrest during the affray, and while there is a disposition shown to resist it, quotes from Timothy v. Simpson as follows: "Both cases fall within the same principle, which is that, for the sake of the preservation of the peace) CHASE (2o ED.) 17 258 LAW OF TORTS. any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shows that the public peace is likely to be endangered by his acts." In Wheeler v. Whiting, 9 Car. & P. 262, Patteson, J., said: "The defendant pleads that the plaintiff was making a disturbance in the house, and ready and desirous to commit a breach of the peace; whereupon he gave him in charge to the policeman, to be dealt with according to law. The policeman, however, was not justified in taking him, unless he saw some breach of the peace committed. On a charge of felony it would be different;" and the learned justice doubted whether a plea which stated that the plaintiff was intending to commit a breach of the peace was good. In Howell v. Jackson, 6 Car. & P. 723, Parke, B., distinctly and clearly in- structed the jury that to make out the defense they must be satisfied that plaintiff had committed a breach of the peace, and that the watch- man saw him do so. In Knot v. Gay, i Root, 66, it was said an arrest might be made to prevent a breach of the peace which was about to take place. In State v. Brown, 5 Har. (Del.) 507, it was said: "A peace-officer, such as a constable or sheriff, has the right to arrest, even without warrant, a person concerned in a breach of the peace, or other crime, or when he has reasonable ground to suspect the party of such offense." Clearly this last clause does not state the law correctly in not limiting the right to cases of felony. In McCullough v. Com., 67 Pa. 32, it was said: "A constable may justify an arrest for a reason- able cause of suspicion alone;" citing in support Russell v. Shuster, 8 Watts & S. 309, which was a case of suspicion of felony. In Com. v. Carey, 12 Cush. 252, Shaw, C. J., said "that a constable or other peace- officer could not arrest one without a warrant, for a crime proved or suspected, if such crime were not an offense amounting in law to felony." Other cases might be referred to. There is little danger of being misled by the cases in which it is held an officer may make ar- rests to prevent a threatened breach of the peace. The interposition in the case of merely threatened violence is not for the purpose of an ar- rest, in the ordinary sense, but as a peace-officer, to prevent a disturb- ance or breach of the peace, under a present menace of violence. The judgment must be affirmed, with costs. The other justices concurred. (Leading authorities are State v. Lewis. 50 Ohio St. 179, 33 N. E. 405, 10 L. R. A. 449 ; McLennon v. Richardson. 15 Gray, 74, 77 Am. Dec. 353 ; Scotl v. Eldridge, 154 Mass. 25, 27 N. E. 677, 12 L. R. A. 379; People v. Johnson. 80 Mich. 175, 48 N. W. 870, 13 L. R. A. 163, 24 Am. St. Rep. 116; Fleetwood v. Com., 80 Ky. 1 ; Wahl v. Walton, 30 Minn. 506, 16 N. W. 397. The Legis- lature may authorize an arrest without warrant for other misdemeanors than breach of the peace, committed in the presence or view of the officer, and this has been done in many states. Burroughs v. Eastman, 101 Mich. 419, 59 N. W. 817, 24 L. R. A. 859, 45 Am. St. Rep. 419 ; O'Connor v. Bucklin, 59 N. H. 589; Hennessy v. Connolly, 13 Hun, 173; Tobin v. Bell, 73 App. Div. 41, 76 N. Y. Supp. 425; Ballard v. State, 43 Ohio St. 340, 1 N. E. 76; Pluunner v. State, 135 Ind. 308, 34 N. E. 968 ; cf. Com. v. Wright, 158 Mass. 149, 33 N. E. 82, 19 L. R. A. 206, 35 Am. St Rep. 475.) FALSE IMPRISONMENT. 259 (b) By a private person* (11 Johns. 486.) PHILLIPS v. TRULL. (Supreme Court of New York. October, 1814.) FALSE IMPRISONMENT ARREST WITHOUT WARRANT BREACH OF THE PEACE. In an action for false imprisonment, it is no justification that plaintiff, having been engaged in an affray, was taken into custody by defendant, a private person, after the affray was ended, and held in custody until he could be brought before a magistrate, when defendant did not act under a warrant Demurrer to plea. Action for assault and battery and false imprisonment. The declara- tion contained three counts, of which the first and second charged an assault and battery and an imprisonment for six days, and the third charged only an assault and battery. Defendant pleaded (i) not guilty ; and, (2) as to the assaulting, etc., and imprisoning the plaintiff, and de- taining him in prison for the space of 10 hours, part of the time in the first count of the declaration mentioned, that the plaintiff and three other persons, being in a house occupied by one Fitch, made a great noise, affray, disturbance, and riot in the said house, in breach of the peace; and because the defendant, being a laborer and lodger in the said house, at the request of th said Fitch, in attempting to keep the peace and stop the noise, etc., was assaulted by the plaintiff, he gave charge of the said plaintiff to one Curtis to take him into his custody, and keep him until he could be carried before a justice of the peace, to answer for the said breaches of the peace ; and that, at the request and by the order of the defendant, the said Curtis gently laid his hands on the said plaintiff, and took him into custody for the purposes afore- said ; but because it was midnight, and the plaintiff could not be imme- diately carried before a justice of the peace, he was necessarily detained in the custody of Curtis until the next day, and that he was, as soon as he conveniently could be, carried before a justice; and the defendant avers that, by means of the premises, the plaintiff was necessarily im- prisoned for the space of 10 hours, part of the said time, which is the same, etc. To this second plea the plaintiff 'demurred specially, be- cause (i) it does not answer the first count of the declaration; (2) that it is no justification or bar to the action ; (3) that it is double and argu- mentative, and in other respects uncertain, informal, and insufficient. PLATT, J. All persons whatever, who are present when a felony is committed, or a dangerous wound is given, are bound to apprehend the offenders. 3 Hawk. P. C. 157, "Arrest," s. i. So any person whatever, if an affray be made, to the breach of the peace, may, without 260 LAW OF TORTS. a warrant from a magistrate, restrain any of the offenders, in order to preserve the peace ; but, after there is an end of the affray, they cannot be arrested without a warrant. 2 Inst. 52 ; Burns, J. P. 92. Hawkins (3 Hawk. P. C. 174, b. 2, s. 20) says : "It seems clear that, regularly, no private person can, of his own authority, arrest another for a bare breach of the peace, after it is over." We are of opinion that the spe- cial plea of justification is bad, and the plaintiff is therefore entitled to judgment on the demurrer. Judgment for plaintiff. (These statements of early English law In Hawkins* Pleas of the Crown have been modified to some extent by modern English decisions. Thus, in Timothy v. Simpson, 1 Cr. M. & R. 757, this summary of the law is given : "It is clear, therefore, that any person present may arrest the affrayer at the moment of the affray, and detain him till his passion has cooled, and his de- sire to break the peace has ceased, and then deliver him to a peace officer. And If this be so, what reason can there be why he may not arrest an af- frayer after the actual violence is over, but whilst he shows a disposition to renew it, by persisting in remaining on the spot where he has committed it. Both cases fall within the same principle, which is that, for the sake of the preservation of the peace, any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shows that the public peace is likely to be endangered by his acts. In truth, whilst those are assembled together who have committed acts of violence, and the danger of their renewal continues, the affray itself may 6e said to continue." This view has been upheld by the House of Lords, holding that a private person is justified in arresting, or giving in charge of a policeman, without a warrant, a party who has been engaged in an affray, ichile the affray is still continuing, or there is reasonable ground for apprehending that he in- tends to renew it. Price v. Seeley, 10 Cl. & F. 28. To the same effect is Bait. A O. R. Co. v. Cain, 81 Md. 87, 31 Atl. 801, 28 L. R. A. 688. See also Winn v. Hobson, 54 N. Y. Super. Ct. 330; People v. Adler, 3 Parker, Cr. R. 249; In re Powers, 25 Vt 261 ; State v. Campbell, 107 N. C. 948, 12 S. E. 441 ; Mc- Garrahan v. Lavers, 15 R. I. 302, 3 Atl. 592. These rules apply to officers and private persons alike. Id. They are sometimes changed by statute. Thus, in New York an officer or a private person may arrest for any crime com- mitted or attempted in his presence. Code Or. Proc. 177, 183; Tobin v. Bell, 73 App. Div. 41, 76 N. Y. Supp. 425.) MALICIOUS PROSECUTION. 261 MALICIOUS PROSECUTION. Elements of action. (48 Barb. 30.) MILLER v. MILLIGAN (in part). (Supreme Court of New York. March 5, 1866.) 1. MALICIOUS PBOSECUTION GROUNDS OF ACTION BURDEN OF PROOF. The essential elements of an action for malicious prosecution consist of a previous unfounded prosecution of the plaintiff by the defendant, commenced without probable cause, conducted with malice, and terminat- ing favorably to the party prosecuted. The burden of proof rests on the plaintiff to establish each of these several propositions or fail in his ac- tion. 2. SAME MALICE PROBABLE CAUSE. To sustain the action, want of probable cause for the former suit and malice must concur, arid the former cannot be inferred from any degree of malice which may be shown. 8. SAME WHEN NONSUIT GRANTED. Where plaintiff fails to show that defendant was the real prosecutor in the former suit, or, if so, that he was without evidence or circum- stances justifying a reasonable suspicion of the truth of the charge, the complaint may properly be dismissed. Exceptions from Circuit Court. Action for malicious prosecution, on the ground that a former pro- ceeding against plaintiff, in a district court of the United States, in which he was arrested and indicted for having induced a prisoner, in defendant's custody as a deserter from the army, to escape, and was tried and acquitted of the charge, was instigated by defendant mali- ciously, and was without probable cause. At the trial the court dis- missed the plaintiff's complaint, and ordered his exceptions to be heard in the first instance at the general terrru Argued before MILLER, INGALLS, and HOGEBOOM, JJ. HOGEBOOM, J. The essential elements of this action are well understood. They consist of a previous unfounded prosecution of the plaintiff by the defendant, commenced without probable cause, conducted with malice, and terminating favorably to the party prose- cuted. Vanderbilt v. Mathis, 5 Duer, 304; Foshay v. Ferguson, 2 Denio, 617; Besson v. Southard, 10 N. Y. 236; McKown v. Hunter, 30 N. Y. 627. In regard to these, the burden of proof rests on the plaintiff, and he must establish each of these several propositions or fail in his action. It is often said, in a general way, that malice and 262 LAW OF TORTS. the want of probable cause are the ingredients of the cause of action ; but it is plain that the other ingredients are implied or understood to exist. Vanduzor v. Linderman, 10 Johns. 106 ; McCormick v. Sisson, 7 Cow. 715; Bulkeley v. Smith, 2. Duer, 261 ; Von Latham v. Rowan, 17 Abb. Prac. 238, 248; McKown v. Hunter, 30 N. Y. 627. Thus, in general, very little is said about the defendant having been the pros- ecutor, because the question ordinarily is not the subject of dispute, and because, generally, the defendant was the adverse party in the action or proceeding which constituted the gravamen of the action for mali- cious prosecution. But it plainly lies at the very foundation of this action that the plaintiff must show that the defendant, and not some- body else, has prosecuted him, has been the real party, in fact, who has set on foot and conducted the proceedings against him. This pros- ecution may have been in the form of a civil action, or of a criminal proceeding; and, when not conducted in the name of the offending party, it would doubtless suffice to prove that he was the real party, the mover and manager and controller of the prosecution. If he were the mere clerk or agent of others, or a mere witness in the transac- tion, he would not hold the character nor be liable to the penalties of a malicious prosecutor. So the plaintiff must aver and prove that the prosecution claimed to be malicious is terminated in his favor. Gorton v De Angelis, 6 Wend. 418; Clark v. Cleveland, 6 Hill, 344; Hall v Fisher, 20 Barb. 441. Proof that the prosecution complained of was instituted through actual malice is not enough to sustain the action. Foshay v. Ferguson, 2 Denio, 17. In an action for malicious prose- cution, the plaintiff must allege and prove both malice and a want of probable cause for the former suit. If there was probable cause, the action cannot be maintained, even though the prosecution complained of was malicious. Want of probable cause and malice must concur, and the former cannot be inferred from any degree of malice \\Jiich may be shown. Besson v. Southard, 10 N. Y. 236 ; Bulkeley v. Smith, 2 Duer, 261. I allude to these familiar rules, not for the purpose of establishing their existence, but merely to bring to mind how strict and exacting the courts have been in enforcing them. In the present case I was of opinion at the trial that, in two at least of the particulars essential to constitute the cause of action, there was a lack of evidence to justify a recovery, and I am still of the same opinion. The defend- ant has, I think, shown probable cause for the prosecution if he is its author, and the plaintiff (which is the real question) has not shown the want of probable cause for the charge. On both of the grounds, the absence of proof to show that the defendant was the real prosecutor, and, if so, that he was without evidence or circumstances justifying a reasonable suspicion of the truth of the charge, I am of opinion that the plaintiff was properly nonsuited, and had no legal right to ask a submission of the facts to the jury. F think no legal error was com- MALICIOUS PROSECUTION. 263 mitted at the circuit, and that a new trial should be denied, and the defendant have judgment. MILLER, J., concurred. INGALLS, J., dissented. (See also as to the elements of this action, Crescent Live Stock Co. T. Butchers' Co., 120 U. S. 141, 7 Sup. Ct 472, 30 L. Ed. 614 ; Magowan v. Rickey, (54 N. J. Law, 402, 45 Atl. 804; Campbell v. Baltimore & O. R. Co., 97 Md. 341, 55 Atl. 532; Ripley v. McBarron, 125 Mass. 272; Ruth v. St Louis Transit Co., 98 Mo. App. 1, 71 S. W. 1055; Carbondale Co. v. Burdick [Kan.] 72 Pac. 781 [malicious civil action]. The burden of proof rests on the plaintiff to prove all these elements, unless defendant so pleads as to admit them or some of them. Abrath v. Northeastern R. Co., 11 Q. B. D. 440, affirmed L. R. 11 App. Cas. 247; Anderson v. How, 116 N. Y. 336, 22 N. E. 695; Good v. French, 115 Mass. 201. An action for malicious prosecution is maintainable against a corporation. Comford v. Carlton Bk. [1899] 1 Q. B. 392, [1900] 1 Q. B. 22: Williams v. Holmes, Booth & Haydens, 142 N. Y. 492, 37 N. E. 480; Ruth v. St. Louis Transit Co., supra. When a person, believing that a crime has been committed, sends for an of- ficer and tells him all he knows about the innocence or guilt of the person sus- pected, and leaves it to the officer to act on his own judgment as to whether there shall be a criminal prosecution, and does no more, he is not liable in an action for malicious prosecution, in case the officer comes to the wrong conclu- sion and prosecutes when he ought not to do so. Burnham T. Collateral Loan Co., 179 Mass. 268, 60 N. E. 617.) Difference between an action for false imprisonment and one for malicious prosecution. (18 R. I. 84, 25 Atl. 694.) HOBBS v. RAY. (Supreme Court of Rhode Island. November 26, 1892.) FALSE IMPRISONMENT No ACTION FOB ABREST UNDER LAWFUL, PROCESS. An action for false imprisonment will not lie for an arrest made under lawful process, though wrongfully obtained, the remedy being an action for malicious prosecution. The gravamen of the offense of false imprison- ment is the unlawful detention of another without his consent, and malice is not an essential element thereof; while, in an action for malicious prosecution, the essential elements are malice and want of probable cause in the proceeding complained of. Trespass on the case by Lemuel R. Hobbs against Frederick A. Ray for false imprisonment. On demurrer to the declaration, and also on demurrer to a plea in abatement. Demurrer to declaration sustained, and plea in abatement overruled. PER CURIAM. We think the defendant's demurrer to the plain- tiff's declaration should be sustained. The facts set out in the writ 264 LAW OF TORTS. and declaration show a case for malicious prosecution, and not for false imprisonment; and these actions are quite distinct and different from each other. An action of trespass for false imprisonment lies for an arrest, or some other similar act of the defendant, "which," as is said, "upon the stating of it, is manifestly illegal ;" while malicious prosecution, on the contrary, lies for a prosecution which, upon the stating of it, is manifestly legal. Johnstone v. Sutton, I Term R. 510, 544. The declaration in the case at bar shows that the arrest com- plained of was made under lawful process, although wrongfully ob- tained. There was, therefore, no false imprisonment, the imprison- ment being by lawful authority. Nebenzahl v. Townsend, 61 -How. Prac. 353, 356. Imprisonment caused by malicious prosecution is not false, unless without legal process or extra judicial. Murphy v. Mar- tin, 58 Wis. 276, 16 N. W. 603; Colter v. Lower, 35 Ind. 285, 9 Am. Rep. 735, 7 Amer. & Eng. Enc. Law, 663, 664, and cases cited. See, also, Turpen v. Remy, 3 Blackf. 210; Mitchell v. State, 12 Ark. 50, 44 Am. Dec. 253, and cases cited; I Chitty, PI. *I33, *i6?. The grava- men of the offense of false imprisonment is the unlawful detention of another without his consent, and malice is not an essential element thereof; while, in an action for malicious prosecution, the essential elements are malice and want of probable cause in the proceeding com- plained of. But while, for the reasons above given, we think the de- murrer should be sustained, yet, as the form of action employed by the plaintiff is case, which is the proper one in actions for malicious prose- cution, we see no sufficient reason for sustaining the defendant's plea in abatement to the writ and declaration. The demurrer is sustained, and the plea in abatement is overruled, with leave to the plaintiff to file a motion to amend his writ and declaration. (To the same effect are Diehl v. Friester, 37 Ohio St. 473; Herzog v. Gra- ham, 9 Lea, 152; Lisabelle v. Hubert, 23 R. I. 456, 50 Atl. 837; Gelzenleuchter v. Niemeyer, 64 Wis. 316, 25 N. W. 442, 54 Am. Rep. 616; Marks y. Townsend, 97 N. Y. 590.) Malice. (66 Me. 202.) PULLEN v. GLIDDEN. (Supreme Judicial Court of Maine. February 19, 1877.) MAXICIOTJS PBOSECUTION MALICE. To maintain an action for malicious prosecution, plaintiff must prove "malice in fact" on the part of defendant, as distinguished from "malice in law," which is inferred by law from the commission of an act, wrong- ful in itself, without justification or excuse. But the plaintiff is not re- quired to prove "express malice" in the popular signification of the term; as, that defendant was prompted by malevolence, or acted from motives of ill .will, resentment, or hatred towards plaintiff. It is sufficient if he MALICIOUS PROSECUTION. 265 prove "malice in fact" in its enlarged legal sense, in which an act done willfully and purposely, to the prejudice and injury of another, which is unlawful, is, as against that person, malicious. On exceptions. Action on the case brought by Willard W. Pullen against James S. Glidden for malicious prosecution. It appeared that defendant had made a complaint before a magistrate charging plaintiff with forgery, and that plaintiff was arrested, but, upon examination, was acquitted and discharged from arrest. Thereupon he brought this action. At the trial the jury found a verdict for defendant. Plaintiff alleged ex- ceptions. LIBBEY, J. This is an action for malicious prosecution. The presiding judge instructed the jury that there was not probable cause for the prosecution. Upon the question of malice he instructed the jury as follows: "In regard to the other branch of the case necessary to be established by the plaintiff, it is that there was malice; that the prosecution was malicious. Now, what is 'malice'? There are several kinds of malice; but the two kinds of malice that may per- haps be considered in this charge are malice in law and malice in fact. Now, what is malice in law? Malice in law is such malice as is in- ferred from the commission of an act wrongful in itself, without jus- tification or excuse. This is not the kind of malice required in this case. The malice required to be proved in this case is malice in fact. Malice in fact is where the wrongful act was committed with a bad intent, from motives of ill will, resentment, hatred, a desire to injure, or the like. Did such kind of malice exist in the mind of the defend- ant when he commenced the prosecution in question? Did he do it from bad intent, from evil motives, or did he not? Malice may be inferred from want of probable cause, or it may be inferred and proved by other evidence in the case." Again: "If you should find that there was no malice, such as I have described, the plaintiff could not maintain this action." The plaintiff complains that this instruction required the jury to find malice in its more restricted popular sense, when proof of malice in its enlarged legal sense was all that the law requires. To main- tain his case, it was necessary for the plaintiff to prove malice in fact, as distinguished from malice in law. Malice in law is where malice is established by legal presumption from proof of certain facts, as in actions for libel, where the law presumes malice from proof of the publication of the libelous matter. Malice in fact is to be found by the jury from the evidence in the case. They may infer it from want of probable cause. But it is well established that the plaintiff is not re- quired to prove "express malice," in the popular signification of the term, as that defendant was prompted by malevolence, or acted from motives of ill will, resentment, or hatred towards the plaintiff. It is 266 LAW OF TORTS. sufficient if he prove it in its enlarged legal sense. "In a legal sense, any act done willfully and purposely, to the prejudice and injury of another, which is unlawful, is, as against that person, malicious." Com. v. Snelling, 15 Pick. 337. "The malice necessary to be shown, in order to maintain this action, is not necessarily revenge, or other base and malignant passion. Whatever is done willfully and pur- posely, if it be at the same time wrong and unlawful, and that known to the party, is, in legal contemplation, malicious." Wills v. Noyes, 12 Pick. 324. See, also, Page v. Gushing, 38 Me. 523; Humphries v. Parker, 52 Me. 502 ; Mitchell v. Wall, 1 1 1 Mass. 492. We think, from a fair construction of the instruction upon this point, the jury must have understood that, in order to find for the plaintiff, they must find that the defendant, in prosecuting the plaintiff, was actuated by "ex- press malice," in the popular sense of the term. In this respect it was erroneous. Exceptions sustained. APPLETON, C. J., and DICKERSON, DANFORTH, VIRGIN, and PETERS, JJ., concurred. (The malice involved in malicious prosecution is called variously "malice in fact," "actual malice," "express malice," etc., but whatever name be used the meaning is always the same, viz., actual malice, not in the popular, but in the legal, sense of the expression. As the question is whether malice existed "in fact" when the prosecution was started, it is for the jury to determine, and not for the court. Cohn v. Saidel, 71 N. H. 558, 53 Atl. 800; Besson v. South- ard. 10 N. Y. 236; Wheeler v. Nesbitt, 24 How. 544, 16 L. Ed. 765; Small v. McGovern, 117 Wis. 608, 94 N. W. 651, and cases infra. An admirable defini- tion of the kind of malice meant is the following: "Any wrong or indirect motive. Some other motive than a desire to bring to justice a person whom the prosecutor honestly believes to be guilty." Brown v. Hawkes [1891] 2 Q. B. 718; Messman v. Ihlenfeldt, 89 Wis. 585, 62 N. W. 522; Vinal v. Core, 18 W. Va. 1; Ripley v. McBarron, 125 Mass. 272. It is "any evil or unlawful purpose as distinguished from that of promoting justice." Metropolitan Ins. Co. v. Miller [Ky.] 71 S. W. 921; cf. Campbell v. Bait & O. R. Co., 97 Md. 341, 55 Atl. 532. Thus, if the criminal law be put in motion for the purpose of col- lecting a debt or compelling the delivery of property, or to accomplish some other ulterior and unlawful purpose, it is begun maliciously as much as though inspired by hatred or revenge. Eggett v. Allen [Wis.] 96 N. W. 803. Malice may be inferred by the jury from evidence showing a want of probable cause, but it is not the' rule of law that it must be so inferred. McClafferty v. Philp, 151 Pa, 86, 24 Atl. 1042; Small v. McGovern, 117 Wis. 608, 94 N. W. 651; Stubbs v. Mulholland, 168 Mo. 47, .67 S. W. 650; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116.) MALICIOUS PROSECUTION. 267 Want of probable cause. (2 Denio, 617.) FOSHAY v. FERGUSON. (Supreme Court of New York. May, 1848.) 1. MALICIOUS PROSECUTION WANT OF PROBABLE CAUSE. To maintain an action for malicious prosecution, plaintiff must prove, not only express malice on the part of defendant, but absence of probable cause for the prosecution. 2. SAME. Probable cause is reasonable ground of suspicion, supported by circum- stances sufficient to warrant a cautious man in the belief that the person accused is guilty of the offense charged. 3. SAME. The next day after plaintiff had passed defendant's farm with a drove of cattle, it was discovered that some of defendant's cattle were missing, and defendant was informed that several cattle belonging to another per- son had been driven away, and that he had pursued the drove, and re- gained them from plaintiff. Defendant also pursued and overtook the drove, and found two of his cattle in it, which he charged plaintiff with stealing, and thereupon plaintiff paid defendant a large amount in cattle and money to settle the matter. Held, that there was probable cause for a subsequent charge, made by defendant against plaintiff, of stealing the two cattle, on which plaintiff was indicted; and that defendant was not liable to an action therefor, even though he acted maliciously, and al- though plaintiff was acquitted on trial of the indictment. Motion for new trial. Action for malicious prosecution in charging plaintiff with stealing cattle, for which he was indicted, but, on trial, was acquitted. It ap- peared that several of defendant's cattle, kept on his farm, under the charge of one Lambert, were discovered to be missing the next day after plaintiff had passed the farm with a drove of cattle; that some of the missing cattle were found in the route of the drove; that Lam- bert was told by one Gage that several of the latter's cattle had been driven away, and that he had pursued and overtaken the drove, and had regained his cattle, and the drover had settled with him ; that Lambert went to defendant with this information, and they pursued the drove a distance of about 70 miles, and overtook it, and found in it two of defendant's yearling cattle; that plaintiff owned and was with the drove, and defendant charged him with stealing the cattle, and said he had a warrant for him, and would take him back; that plaintiff said he would rather settle it, and that on the next morning, they set- tled the matter, plaintiff giving defendant cattle to the value of $200, and paying him in money the value of the two yearlings, which plaintiff kept. Soon afterwards defendant saw Gage, who told him of plain- tiff's having driven off his cattle, and both expressed the opinion that 268 LAW OF TORTS. all was not right with plaintiff. Plaintiff afterwards brought actions against defendant for slander in charging him with stealing the cattle, and to recover the value of the cattle which defendant had received on the settlement. Thereafter defendant went before the grand jury, and an indictment was found against plaintiff, but, on trial thereof, after hearing witnesses on both sides, plaintiff was acquitted. Subse- quently plaintiff brought this action. The judge found a verdict for plaintiff for $250. Defendant moved for a new trial. BRONSON, C. J. There was evidence enough in the case to war- rant the jury in finding that the defendant set the prosecution in mo- tion from a bad motive. But all the books agree that proof of express malice is not enough, without showing also the want of probable cause. "Probable cause" has been defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged. Munns v. Dupont de Nemours, 3 Wash. C. C. 37, Fed. Cas. No. 9,926. However innocent the plaintiff may have been of the crime laid to his charge, it is enough for the defendant to show that he had reasonable grounds for believing him guilty at the time the charge was made. In Swaim v. Stafford, 25 N. C. 289, and Id., 26 N. C. 392, the action was brought against the de- fendant, who was a merchant, for charging the plaintiff with stealing a piece of ribbon from his store. At the time the complaint was made the defendant had received such information as induced a belief of the plaintiff's guilt, and although it afterwards turned out that the property had not been taken by any one, and was never out of the de- fendant's possession, it was held that an action for malicious prosecu- tion could not be supported. The doctrine that probable cause de- pends on the knowledge or information which the prosecutor had at the time the charge was made has been carried to a great length. In Delegal v. Highley, 3 Bing. N. C. 950, which was an action for mali- ciously, and without probable cause, procuring a third person to charge the plaintiff with the criminal offense, the defendant pleaded specially, showing that the plaintiff was guilty of the offense which had been laid to his charge ; and the plea was held bad irf substance, because it did not show that the defendant, at the time the charge was made, had been informed or knew the facts on which the charge rested. The question of probable cause does not turn on the actual guilt or inno- cence of the accused, but upon the belief of the prosecutor concerning such guilt or innocence. Seibert v. Price, 5 Watts & S- 438, 40 Am. Dec. 525. Without going into particular examination of the evidence in this case, it is enough to say that the defendant, at the time he went before the grand jury, had strong grounds for believing that the plain- tiff had stolen the cattle, and, so far as appears, not a single fact had then come to his knowledge which was calculated to induce a different MALICIOUS PROSECUTION. 269 opinion. Although the plaintiff was in fact innocent, there would be no color for this action, if it were not for the fact that the defendant settled the matter with the plaintiff, instead of proceeding against him for the supposed offense. If the parties intended the settlement should extend so far as to cover up and prevent a criminal prosecution, the defendant was guilty of compounding a felony. And the fact that he made no complaint until the plaintiff commenced the two suits against him goes far to show that he was obnoxious to that charge, and that he was governed more by his own interest than by a proper regard to the cause of public justice. But, however culpable the defendant may have been for neglecting his duty to the public, that cannot be made the foundation of a private action by the plaintiff. Although the de- fendant may have agreed not to prosecute, and the complaint may have been afterwards made from a malicious feeling towards the plaintiff, still the fact of probable cause remains; and, so long as it exists, it is a complete defense. There is enough in the defendant's conduct to induce a rigid scrutiny of the defense. But if upon such scrutiny it appears that he had reasonable grounds for believing the plaintiff guilty, and there is nothing to show that he did not actually entertain that belief, there is no principle upon which the action can be supported. On a careful examination of the case, I am of opinion that the verdict was clearly wrong. But, as the charge of the judge is not given, we must presume that the case was properly submitted to the jury, and a new trial can therefore only be had on payment of costs. Ordered accordingly. (The definition of "probable cause," which this case gives as taken from Munns v. Dupont de Nemours, 3 Wash. C. C. 37, Fed. Gas. No. 9,926, has been often approved and reiterated in subsequent cases. Anderson v. How, 116 N. Y. 336. 22 N. E. 695; Mitchell v. Logan, 172 Pa. 349, 33 Atl. 554; Boyd v. Cross, 35 Md. 194; Miles v. Walker [Neb.] 92 N. W. 1014. Some decisions, how- ever, disapprove the use of the expression "cautious man" in the definition [since it may mean an overprudent or timorous man], and substitute for it "ordinarily prudent man." McClafferty v. Philp, 151 Pa. 86, 24 Atl. 1042; Eggett v. Allen, 106 Wis. 633, 82 N. W. 556. A definition often cited with ap- proval is this: "Probable cause is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person accused is guilty." Bacon v. Towne, 4 Cush. 217; Cohn v. Saidel, 71 N. H. 558, 53 Atl. 800; Eg- gett v. Allen, 106 Wis. 633, 82 N. W. 556; Vinal v. Core, 18 W. Va. 1. Other definitions say "ordinarily prudent and careful man" [Fox v. Smith (R. I.) 55 Atl. 698; Flam v. Lee, 116 Iowa, 289, 90 N. W. 70, 93 Am. St. Rep. 242]; "reasonable and cautious person" [Christian v. Hanna, 58 Mo. App. 37] ; "or- dinarily prudent and cautious man" [Hicks v. Faulkner, 8 Q. B. D. 167, affirmed in 46 L. T. (N. S.) 12], etc. "A person," it is said, "who suspects another of having committed an offense is bound to verify his suspicions by such inquiry as reasonable care and prudence would suggest, under the circumstances of the particular case, before making a complaint" Bechel v. Pacific Exp. Co. [Neb.] 91 N. W. 853 ; Miller v. Railroad Co. [C. C.] 41 Fed. 898. When the facts of the case are undisputed, either being admitted or other- wise established, the question whether there was probable cause is one of law 270 LAW OF TORTS. for the court Toth v. Greisen [N. J. Sup.] 51 Atl. 927; Crescent Live Stock Co. v. Butchers' Co., 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614; Huckestein v. N. Y. Life Ins. Co., 205 Pa. 27, 54 Atl. 461; Le Clear v. Perkins, 103 Mich. 131, 61 N. W. 357, 26 L. R. A. 627; Hazzard v. Flury, 120 N. Y. 223, 24 N. E. 194. But when the facts are controverted and the evidence is conflicting, it is for the jury to decide what the real facts of the case are, but for the court to determine whether they do or do not amount to probable cause. Mahaffey v. Byers, 151 Pa. 92, 25 Atl. 93; Boyd v. Cross, 35 Md. 194; Stubbs v. Mulhol- land, 168 Mo. 47, 67 S. W. 650; Bank of Miller v. Richmon, 64 Neb. Ill, 89 N. W. 627; Heyne v. Blair, 62 N. Y. 19; Van v. Pacific Coast Co. [C. C.] 120 Fed. 699. The jury may, in such cases, be instructed hypothetically, viz., that if they find the facts in a designated way, then such facts do or do not con- stitute probable cause. Erb v. German Am. Ins. Co., 112 Iowa, 357, 83 N. W. 1053; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Jones v. Wilmington & W. R. Co., 125 N. C. 227, "34 S. E. 398; Boush v. Fidelity & Deposit Co.. 100 Va. 735, 42 S. E. 877 ; Maynard v. Sigman [Neb.] 91 N. W. 576. The want of probable cause cannot be inferred from any degree of even express malice. Cohn v. Saidel, 71 N. H. 558, 53 Atl. 800; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116.) (53 N. Y. 14.) CARL v. AYERS. (Court of Appeals of New York. May 20. 1873.) MALICIOUS PROSECUTION ARREST ON MERE SUSPICION. Although a person is justified in procuring the arrest of another on a criminal charge, where the apparent facts are such as would lead a dis- creet and prudent person to the belief that a crime had been committed by the person charged, a groundless suspicion, unwarranted by the con- duct of the accused or by facts known to the accuser when the accusation is made, will not exempt the latter from liability to an innocent pers.m for causing his arrest. Appeal from Supreme Court, General Term, Second Department. Action by Joseph Carl against George L. Ayers for malicious prose- cution in causing the arrest and imprisonment of plaintiff on a charge of stealing or attempting to steal a diamond pin. The evidence given by plaintiff was in substance that, being on a steam-boat, on which were also defendant and his wife and children, and his attention being attracted by the severe coughing of one of the children, and intending to tell defendant of a remedy which he knew, he went to the place where they were sitting, and, being unable to approach defendant in front, stepped behind him, and touched him on the shoulder in order to attract his attention, and said he wished to speak with him ; that defendant answered, "If you have anything to say, say it here;" that plaintiff was about to walk away, but turned, and explained to defend- ant that he merely wished to speak to him in regard to his child's sick- ness, to which defendant answered, "You never mind about my child ; you mind your own business and I will mind mine;" that soon after- wards defendant pointed out plaintiff to a detective officer, and charged MALICIOUS PROSECUTION. 271 plaintiff with larceny or attempt to steal defendant's diamond pin, and insisted on plaintiff's arrest; that plaintiff was arrested thereupon, in the presence of the passengers, about half an hour before the boat landed, and was afterwards taken to a station-house by the officer in company with defendant, and a charge of larceny from the person was preferred against him, on which he was imprisoned all night and, the following day being Sunday, until Monday morning; and that the justice before whom he was then brought, after hearing the testimony of defendant and his wife, discharged plaintiff. Plaintiff's complaint was dismissed by the trial judge, and judgment for defendant was entered thereon, which was affirmed by the general term on appeal. From the judgment of the general term plaintiff appealed. ANDREWS, J. The court was not justified in nonsuiting the plain- tiff if there was any evidence of the want of probable cause for causing his arrest and imprisonment, or unless the case, upon the whole proof, was such that a verdict for the plaintiff upon the issue would have been set aside by the court as against evidence. Masten v. Deyo, 2 Wend. 424; Davis v. Hardy, 6 Barn. & C. 225. If the evidence on the part of the plaintiff would have justified the jury in finding that the defendant acted without probable cause, then, although the proof on the part of the defendant tended to the opposite conclusion, the nonsuit was erroneously granted. There was no independent or conceded fact shown on the part of the defendant which, admitting the case made by the plaintiff, established the existence of probable cause. In consider- ing the propriety of the nonsuit, the plaintiff is entitled to the concession that the facts existed as they appear in the evidence on his part; and upon these facts, aided by any fact favorable to the plaintiff proved by the defendant, the right of the court to nonsuit is to be determined. "Probable cause," which will justify a criminal accusation, is defined to be "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the be- lief that the person accused is guilty of the offense with which he is charged." Munns v. Dupont de Nemours, 3 Wash. C. C. 37, Fed. Cas. No. 9,926; Foshay v. Ferguson, 2 Denio, 617; Bacon v. Towne, 4 Cush. 218. It does not depend upon the guilt or innocence of the accused, or upon the fact whether a crime has been committed. Baldwin v. Weed, 17 Wend. 224; Bacon v. Towne, supra. A per- son making a criminal accusation may act upon appearances, and, if the apparent facts are such that a discreet and prudent person would oe led to the belief that crime had been committed by the person charged, he will be justified, although it turns out that he was deceived, and that the party accused was innocent. Public policy requires that a person shall be protected who in good faith, and upon reasonable grounds, causes an arrest upon a criminal charge, and the law will not subject him to liability therefor. But a groundless suspicion, unwarranted b) 'J<2 LAW OF TORTS. the conduct of the accused, or by facts known to the accuser, when the accusation is made, will not exempt the latter from liability to an inno- cent person for damages for causing his arrest. A man has no right to put the criminal law in motion against another, and deprive him of his liberty, upon mere conjecture that he has been guilty of a crime. He cannot be allowed to put a false and unreasonable construction upon the conduct of another, and then justify himself for causing the arrest, by claiming that he acted upon appearances. The application of these familiar principles to the facts in this case leads to a reversal of the judgment. It is not claimed that any larceny was committed, and there was not upon the plaintiff's narration of the circumstances any ground for charging the plaintiff with an attempt to commit a larceny. The case, as made by the plaintiff, is this: While upon the boat his attention was attracted to the defendant's child by her severe coughing, and he went to the place where the defendant was sitting with his wife and child, to inform him of a remedy, and, not being able to pass in front of the defendant, he went behind him, and touched him once or twice on the shoulder to attract his attention, saying he wished to speak with him. He was roughly answered, and turned to leave, but turned back, and stated to the defendant that he intended to speak with him about his child, and the defendant again replied with great in- civility, and soon afterwards caused the plaintiff to be arrested on the charge of an attempt to steal his diamond pin. The defendant wore a valuable pin in his shirt bosom, but it does not appear that the plaintiff saw it, nor had he touched the defendant's person, except when he put 'his hand upon his shoulder. Upon these facts, there was no rea- sonable ground to suspect that the plaintiff had a criminal motive. His conduct was neither unusual nor improper. There was no act of the plaintiff which could be construed as an attempt to commit a crime. If the defendant entertained a suspicion that the plaintiff designed to take his pin, it was not justified by the circumstances. The evidence on the part of the defendant materially conflicted with that of the plain- tiff, but we can consider only the case made by the plaintiff, and we are of opinion that the evidence on his part disclosed a want of prob- able cause for the arrest, and that the nonsuit was improperly granted. The judgment should be reversed, and a new trial ordered, with costs to abide the event. PECKHAM, RAPALLO, and FOLGER, JJ., concur. CHURCH, C. J., and GROVER and ALLEN, JJ., do not vote. (For other good illustrations of a prosecution without probable cause, see Wanser v. Wyckoff, 9 Hun, 178; Hazzard v. Flury, 120 N. Y. 223, 24 N. E. 104; Lacy v. Mitchell, 23 Ind. 67.) MALICIOUS PROSECUTION. 273 Effect of advice of counsel. (25 Pa. 275.) WALTER v. SAMPLE (In part). (Supreme Court of Pennsylvania. 1855.) MALICIOUS PROSECUTION PROBABLE CAUSE ADVICE OF COUNSEL. In an action for malicious prosecution, defendant, to avail himself of the defense that he acted under professional advice, must show that he submitted all the facts which he knew were capable of proof fairly to his counsel, and that he acted bona fide on the advice given. He thus nega- tives, if not the malice, the want of probable cause; and he is not liable, even though the facts did not warrant the advice and the prosecution. Error to District Court, Allegheny County. Action on the case for malicious prosecution. At the trial, a member of the bar testified, on behalf of defendant, that the latter stated to him the facts of the case, and acted under his advice in instituting the alleged malicious prosecution. The court instructed the jury that "the opinion of private counsel cannot amount to proof of probable cause, unless the facts clearly warrant it, and were cor- rectly stated." The jury found a verdict for plaintiff. Defendant assigned error in said instruction. WOODWARD, J. This was an action on the case for malicious prosecution, and the only question presented by the record is wheth- er the court were right in instructing the jury that "the opinion of private counsel cannot amount to proof of probable cause, unless the facts clearly warrant it, and were correctly stated." Ever since the case of Farmer v. Darling, 4 Burrows, 1971, it has been held that malice, either express or implied, and the want of probable cause, must both concur to support actions of this nature. The presumption of law is that every public prosecution is founded in probable cause, and the burden is therefore, in the first instance, on the plaintiff; but when he has submitted evidence of want of prob- able cause, or of .circumstances from which a violent presumption would arise that it was wanting, the burden of proof is shifted onto the defendant, and then it is competent for him to show that he acted under professional advice. To make this defense available he must show that he submitted all the facts which he knew were capa- ble of proof fairly to his counsel, and that he acted bona fide on the advice given. This proved, he negatives, if not the malice, the want of probable cause. I accede to the proposition, said Bayley, J., in Ravenga v. Mackintosh, 2. Barn. & C. 693, that if a party lays all the facts of his case fairly before counsel, and acts bona fide upon the opinion given by that counsel, (however erroneous that opinion may be,) he is not liable to an action of this description. See the CHASE (2o ED.) 18 274 LAW OF TORTS. cases cited 2 Saund. PI. & Ev. marg. pp. 659, 660. In Sommer v. Wilt, 4 Serg. & R. 24, Judge Duncan plainly intimated his opinion that such evidence would be a defense to the action, as negativing the imputation of malice ; and in the case of Hall v. Smith, reported in 7 Leg. Int. 7, the district court of Philadelphia treated such evi- dence as an answer to the imputation both of malice and want of probable cause, between which, it was said, there is no difference in the consideration of a matter of this kind. Professors of the law are the proper advisers of men in doubtful circumstances, and their advice, when fairly obtained, exempts the party who acts upon it from the imputation of proceeding maliciously and without prob- able cause. It may be erroneous, but the client is not responsible for the error. He is not the insurer of his lawyer. Whether the facts amount to probable cause is the very question submitted to counsel in such cases ; and, when the client is instructed that they do, he has taken all the precaution demanded of a good citizen. To manifest the good faith of the party, it is important that he should resort to a professional adviser of competency and integrity. He is not to make such a resort "a mere cover for the prosecution ;" but, when he has done his whole duty in the premises, he is not to be made liable because the facts did not clearly warrant the advice and prosecution. The testimony here was that Sample stated the facts of the case, and there is no suggestion on the record that they were not fairly stated. Suppression, evasion, or falsehood would make him liable; but if fairly submitted, and if the advice obtained was followed in good faith, he had a defense to the action, and the court should have given him the benefit of it. The judgment is reversed, and a venire de novo awarded. (This doctrine is well settled. McClafferty v. Philp, 151 Pa. 86, 24 Atl. 1042; Black v. Buckingham, 174 Mass. 102, 54 N. E. 494; Magowan v. Rickey, 64 N. J. Law, 402, 45 Atl. 804; Maynard v. Sigman [Neb.] 91 N. W. 576; Perry v. Sulier, 92 Mich. 72, 52 N. W. 788; Neufeld V. Rodeminski, 144 111. 83, 32 N. B. 913; Messman v. Ihlenfeldt, 89 Wis. 585, 62 N. W. 522; Hall v. Suydam, 6 Barb. 83; White v. Carr, 71 Me. 555, 36 Am. Rep. 533. Some of the cases, however, regard the advice of counsel as showing the ex- istence of probable cause, while others treat it as bearing on the question whether there was malice [Vinal v. Core, 18 W. Va. 1; Hazzard v. Flury, 120 N. Y. 223, 24 N. E. 194]; and others still regard it as relating to both questions [Folger v. Washburn, 137 Mass. 60; Le Clear v. Perkins, 103 Mich. 131, 61 N. W. 357, 26 L. R. A. 627]. This last view seems the better one. If the client makes false statements to the lawyer, or does not make a full, fair, and frank disclosure of the facts of the case, or does not act in good faith upon the ad- vice the lawyer gives him, such advice is no defense. Miles v. Walker [Neb.] 92 N. W. 1014 ; Bell v. Atlantic City R. Co., 202 Pa. 178, 51 Atl. 600 ; and the cases supra. Some cases say that the lawyer must be "reputable and in good standing," in order that his advice may be a protection. Roy v. Goings, 112 111. 656; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650; Williams v. Case- beer, 126 Cal. 77, 58 Pac. 380. Advice obtained from a justice of the peace, it is generally held, is no defense [Necker v. Bates, 118 Iowa, 545, 92 N. W. i'iil : MALICIOUS PROSECUTION. 275 Mauldln r. Ball, 104 Term. 597, 58 S. W. 248]; but the contrary rule Is now ap- plied in Massachusetts to her inferior magistraies, since they are now required to have a competent legal training [Monaghan v. Cox, 155 Mass. 487, 30 N. EL 467, 31 Am. St Rep. 555].) Termination of the proceeding. (109 Mass. 158, 12 Am. Rep. 682.) CARDIVAL v. SMITH. (Supreme Judicial Court of Massachusetts. January Term, 1872.) MALICIOUS PROSECUTION TERMINATION OF PROCEEDING. Where the plaintiff in a civil action, after maliciously and without prob- able cause procuring the arrest of the defendant on the writ therein, fails to have the writ returned into the office of the clerk of the court, or to appear at the court to which the writ was returnable, there is a final determination of the action, such that the defendant may maintain an ac- tion for malicious prosecution. Appeal from Superior Court. Action of tort by Peter Cardival against Joseph W. Smith, brought in the superior court by writ dated November 26, 1869. The declaration alleged that defendant maliciously, and without prob- able cause, procured the arrest of plaintiff on a writ returnable to the superior court at September term, 1869; that plaintiff "duly appeared at said court to which said writ was returnable, but that the defendant did not appear, well knowing that he had no probable cause to maintain the action against the plaintiff, nor was said writ ever returned into the office of the clerk of said court." Defendant demurred to the declaration on the ground that it appeared "that the said suit alleged to be malicious was not determined in favor of the defendant therein by a judgment of court." The superior court sustained the demurrer. Plaintiff appealed. GRAY, J. The general rules of law governing actions for ma- licious arrest and prosecution have long been well settled. In the words of Lord Camden, "this is an action for bringing a suit at law ; and courts will be cautious how they discourage men from suing. When a party has been maliciously sued, and held to bail, malice, and that it was without any probable cause, must be alleged and proved." Goslin v. Wilcock, 2 Wils. 302, 307. "The new action must not be brought before the first be determined, because till then it cannot appear that the first was unjust." Bull. N. P. 12. When the prosecution alleged to have been malicious is by complaint in behalf of the government for a crime, and in pursuance thereof an indictment has been found and presented to a court having ju- risdiction to try it, an acquittal by a jury must be shown, and a 276 LAW OF TORTS. nolle proseqtti entered by the attorney for the government is not sufficient ; for the finding of the grand jury is some evidence of probable cause, and another indictment may still be found on the same complaint. Bull. N. P. 14; Bacon v. Towne, 4 Cush. 217; Parker v. Farley, 10 Cush. 279; Bacon v. Waters, 2 Allen, 400. But if it is commenced by complaint to a magistrate who has juris- diction only to bind over or discharge, his record, stating that the complainant withdrew his prosecution, and it was thereupon ordered that the accused be discharged, is equivalent to an acquittal. Sayles v. Briggs, 4 Mete. 421, 426. If the accused, after being arrested, is discharged by the grand jury's finding no indictment, that shows a legal end to the prosecution. Jones v. Givin, Gilb. 185, 220; Bul- ler, J., in Morgan v. Hughes, 2 Term R. 225, 232 ; Freeman v. Arkell, 2 Barn. & C. 494, 3 Dowl. & R. 669; Michell v. Williams, II Mees. & W. 205; Bacon v. Waters, 2 Allen, 400. And if the prosecutor, after procuring the arrest, fails to enter any complaint, this, with the attending circumstances, is sufficient to be submitted to the jury as evidence of want of probable cause. Venafra v. John- son, 10 Bing. 301, 3 Moore & S. 847, and 6 Car. & P. 50; McDonald v. Rooke, 2 Bing. N. C. 217, 2 Scott, 359. When the suit complained of is a civil action, wholly under the control of the plaintiff therein, it would seem that a discharge there- of by him, without any judgment or verdict, is a sufficient termina- tion of the suit ; and that, for instance, if one maliciously causes an- other to be arrested and held to bail for a sum not due, or for more than is due, knowing that there is no probable cause, and, after en- tering his action, becomes nonsuit, or settles the case upon receiving part of the sum demanded, an action for a malicious prosecution may be maintained against him. Nicholson v. Coghill, 4 Barn. & C. 21, 6 Dowl. & R. 12; Watkins v. Lee, 5 Mees. & W. 270; Ross v. Norman, 5 Exch. 359; Bicknell v. Dorion, 16 Pick. 478, 487; Savage v. Brewer, Id. 453, 28 Am. Dec. 255. In Arundell v. White, 14 East, 216, it was held that an entry in the minute-book of the sheriff's court in London, opposite the entry of a suit in that court, that it was withdrawn by the plaintiff's order, was sufficient evidence of a termination of that suit to sustain an action for malicious prose- cution. In Pierce v. Street, 3 Barn. & Adol. 397, the declaration, after setting out the suing out of a writ in an ordinary action at law against the plaintiff, and an arrest and holding to bail thereon, and alleging that it was done maliciously and without probable cause, averred that no proceedings were thereupon had in that action, and that the plaintiff therein did not declare against the defendant nor prosecute his suit against him with effect, but voluntarily permitted the action to be discontinued for want of prosecution thereof; where- upon and whereby, and according to the practice of the court, the suit became determined. At the trial of the action for malicious MALICIOUS PROSECUTION. 277 arrest, it appeared that no declaration was delivered or filed in the former action, and that this action was not commenced until a year after the return-day of that. It was objected that, there being no judgment of court, there was no evidence of the determination of the suit to satisfy the averment in the declaration. But Lord Lynd- hurst, C. B., thought there was, and overruled the objection; and his ruling was confirmed by the court of queen's bench, Lord Ten- terden, C. J., saying, "The length of time which had elapsed shows that the suit was abandoned altogether;" and Parke, J., "When the cause is out of court, it must be considered as determined." Our own statutes expressly provide that, if no declaration is inserted in the writ, or filed before or at the return term, it shall be a discontinuance of the action. Gen. St. c. 129, 9. But the present case'does not require us to consider what disposition must be shown of a civil action which has once been entered in court, in order to constitute a final determina- tion thereof. A plaintiff cannot be compelled to enter his action, and, until he does, may judge for himself whether he will proceed with it or not. If he does not enter it, it never comes before the court, nor be- comes the subject of any judgment, nor appears on its records, unless the defendant, upon filing a complaint at the return term, obtains judg- ment for his costs. If the defendant does not make such a com- plaint, the action is not the less finally abandoned and determinec* by the neglect of the plaintiff to proceed with it. Clark v. Mon tague, I Gray, 446, 448 ; Lombard v. Oliver, 5 Gray, 8 ; Jewett v. Locke, 6 Gray, 233. The only cause assigned for the demurrer be- ing that the declaration shows no determination of the former suil in favor of the defendant therein by a judgment of court, it must be overruled. (In Clark v. Cleveland, 6 Hill, 344, the rule is laid down that it is a suf- ficient termination of the proceeding, if "the particular prosecution be disposed of in such a manner that this cannot be revived, and the prosecutor must be put to a new one." This rule is satisfied, says the same case, if a bill of indictment is returned "Not found," or if a person accused of crime is dis- charged by a committing magistrate, or if in the case of a civil action the ac- tion is discontinued. The same general rule is also stated in Robbins v. Rob- bins, 133 N. Y. 597, 30 N. E. 977 [discharge by magistrate], and in Apgar v. Woolston. 43 N. J. Law, 57. The rule has been applied in cases of a discharge by a magistrate [Jones v. Finch, 84 Va. 207, 4 S. E. 342; Waldron v. Sperry, 53 W. Va. 116, 44 S. E. 283; Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 35; Bank of Miller v. Richmon, 64 Neb. Ill, 89 N. W. 627; Rider v. Kite, 61 N. J. Law, 8, 38 Atl. 754; Moyle v. Drake, 141 Mass. 238, 6 N. E. 520; Mentel v. Hippely, 165 Pa. 558, 30 Atl. 1021]; and in cases of an abandonment of the prosecution [Page v. Citizens' Banking Co., Ill Ga. 73. 36 S. E. 418, 51 L. R. A. 463, 78 Am. St. Rep. 144; Fay v. O'Neill, 36 N. Y. 11]; and so where the grand jury refuses to find an indictment [Potter v. Casterline, 41 N. J. Law, 22]: but when a prosecution is ended by means of a compromise, this is not a suf- ficient termination to allow an action for malicious prosecution [Russell v. Morgan (R. I.) 52 Atl. 809; Craig v. Ginn, 3 Pennewill, 117, 48 Atl. 192, 53 L. R. A. 715. 94 Am. St. Rep. 77 (citing many cases); Gallagher Y. Stoddard, 47 Hun, 101].) 278 LAW OF TORTS. (66 N. H. 375, 22 Atl. 456.) WOODMAN v. PRESCOTT. (Supreme Court of New Hampshire. Rockingham. March 13, 1891.) ENTBY OF NOLLE PBOSEQUI EFFECT OF AS TEEMINATTON OF PBOSECTJTION. The entry of a nolle prosequi in a criminal case is a sufficient termina- tion of the proceeding to entitle the accused to maintain an action for malicious prosecution. Exceptions from Rockingham County; before Justice A. P. Car- penter. Action by James K. Woodman against Samuel Prescott for ma- licious prosecution. Judgment for plaintiff. Defendant brings ex- ceptions. Exceptions overruled. At the October term, 1885, the grand jury, on the complaint of the defendant, returned an indictment against the plaintiff for lar- ceny, (under Gen. Laws, c. 278, u,) alleged to have been commit- ted, and which was committed, if at all, in March, 1880. A nolle prosequi was entered at the October term, 1886. The plaintiff has always resided in this state. There was evidence tending to show that the defendant had no knowledge of the facts on which the prose- cution was founded until 1885, and that the nolle prosequi was en- tered because Prescott did not receive notice of the time fixed for the trial in season to procure the attendance of the witnesses for the state, but the plaintiff claimed the fact to be otherwise. At the close of the plaintiff's argument to the jury the defendant requested the court to rule that the entering of a nolle prosequi was not a suffi- cient termination of the prosecution to entitle the plaintiff to main- tain the action. The court denied .the request, and the defendant fixcepted CLARK, J. To maintain an action for malicious prosecution, the plaintiff must show that the proceeding complained of as malicious was instituted without probable cause, and is ended. "The new ac- tion must not be brought before the first be determined, because till then it cannot appear that the first was unjust." Bull. N. P. 12. If the first action is still pending, or if there has been a judgment against the plaintiff, or if he has terminated the suit by paying what was demanded, ("unless the payment was made under duress, Mor- ton v. Young, 55 Me. 24, 92 Am. Dec. 565,) or by compromise, he cannot be admitted to say that the action was commenced without probable cause, and consequently cannot have an action for malicious prosecution. If there has been a judgment in the plaintiff's favor, or the nature of the proceeding was such that he had no opportunity to make a contest and obtain a decision in his favor, as where one maliciously causes another to be arrested and held to bail in a civil MALICIOUS PROSECUTION. 279 action, and fails to enter the action, (Cardival v. Smith, 109 Mass. 158, 12 Am. Rep. 682,) he may bring an action for malicious prose- cution. Whether the entry of nolle prosequi is a sufficient termina- tion of a criminal suit to allow the party prosecuted to commence an action for malicious prosecution is a question upon which the authorities are not uniform. In Massachusetts it is held that such an entry is not necessarily sufficient, and it is said "that whether a prosecution has been so terminated as to authorize the party prose- cuted to commence an action for malicious prosecution is to be de- termined by the facts of the particular case, of which facts the entry of nolle prosequi may be one of several, may be the only fact, may be a controlling fact, or may be an entirely unimportant one." Graves v. Dawson, 130 Mass. 78, 39 Am. Rep. 429. In Langford v. Railroad Co., 144 Mass. 431, n N. E. 697, Morton, C. J., says: "The entry of a nolle prosequi by the district attorney of his own motion, followed by a discharge of the accused party by the court, may be such a termination of the prosecution as will enable the party to maintain an action for malicious prosecution." And it is held that a discharge by a magistrate having only authority to bind over is a sufficient termination of the proceedings. Moyle v. Drake, 141 Mass. 238, 242, 6 N. E. 520. In other jurisdictions the entry of a nolle prosequi is held to be sufficient. Stanton v. Hart, 27 Mich. 539; Hatch v. Cohen, 84 N. C. 602, 37 Am. Rep. 630; Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 35 ; Apgar v. Woolston, 43 N. J. Law, 57. In the latter case it is said: "No action for a malicious prosecution can be brought while the criminal proceedings are pend- ing. When the criminal prosecution is ended, if it terminates in favor of the accused, he may then maintain his action for a malicious prosecution. Except to confer on the accused the capacity to sue, the manner in which the prosecution terminated is immaterial. The law re- quires only that the particular prosecution complained of shall have been terminated, and not that the liability of the plaintiff to prosecution for the same offense shall have been extinguished, before the action for ma- licious prosecution is brought. Consequently the refusal of the grand jury to find an indictment, a nolle prosequi, or any proceeding by which the particular prosecution is disposed of, in such a manner that it cannot be revived, and that the prosecutor, if he intends to proceed further, must institute proceedings de novo, is a sufficient termina- tion of the prosecution to enable the plaintiff to bring his action." So, also, Judge Cooley says: "The reasonable rule seems to be that the technical prerequisite is only that the particular prosecution be disposed of in such a manner that this cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one." Cooley, Torts, 186, citing Clark v. Cleveland, 6 Hill, 344, 347; Cardival v. Smith. 109 Mass. 159, 12 Am. Rep. 682; Driggs v. Burton, 44 Vt. 124; Leever v. Hamill, 57 Ind. 423. The rule supported by reason 280 LAW OF TORTS. and authority seems to be that if the proceeding has been terminated in the plaintiff's favor, without procurement or compromise on his part, in such a manner that it cannot be revived, it is a sufficient termination to enable him to bring an action for a malicious prose- cution. Exceptions overruled. CARPENTER, J., did not sit. The others concurred. (The following cases hold that a nolle prosequi is not a sufficient termination: Garing v. Fraser, 76 Me. 37; Ward v. Reasor, 98 Va. 399, 36 S. E. 470. To the contrary are Murphy v. Moore [Pa.] 11 Atl. 665 ; Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728, 50 Am. Rep. 135; Moulton v. Beecher, 1 Abb. N. C. 193. In Lowe v. Wartman, 47 N. J. Law, 413, 1 Atl. 489, it is said that a criminal prosecution may be said to have terminated, [1] where there is a verdict of not guilty; [2] where the grand jury ignores a bill; [3] where a nolle prosequi is entered ; [4] where the accused has been discharged from bail or imprisonment. A final judgment for the defendant in the prosecution alleged to have been malicious is a sufficient termination, even though there may be a right of ap- peal. Luby v. Bennett, 111 Wis. 313, 87 N. W. 804, 56 L. R. A. 261, 87 Am. St Rep. 897. It seems, however, that an appeal from the judgment may furnish a reason for staying the trial of the action for malicious prosecution until the decision of the appeal. Marks v. Townsend, 97 N. Y. 590.) Malicious prosecution of a civil action Different doc- trines. (175 111. 619, 51 N. E. 569, 67 Am. St. Rep. 242.) SMITH v. MICHIGAN BUGGY CO. (in part). (Supreme Court of Illinois. Oct 24, 189&) MALICIOUS PBOSECUTION OF CIVIL ACTION. An action will not lie for the malicious prosecution of a civil action with- out probable cause, where the process in such suit was by summons only, and not accompanied by arrest of the person, or seizure of his property, or other special injury not necessarily resulting in all suits prosecuted to recover for like causes of action. Error to Appellate Court, First District. Trespass on the case by Alfred A. Smith against the Michigan Buggy Company to recover damages for the alleged malicious prose- cution of an ordinary civil action without probable cause by the de- fendant against the plaintiff. From a judgment of the appellate court (66 111. App. 516) affirming a judgment for defendant, plaintiff brings error. Affirmed. MAGRUDER, J. The suit which was begun by the defendant in error against the plaintiff in erroi in Michigan was an ordinary MALICIOUS PROSECUTION. 28] civil suit, and resulted in favor of plaintiff in error. It is alleged in the declaration in the case at bar that the suit in Michigan was a malicious prosecution, and without probable cause; but it is not alleged or claimed that in that suit the plaintiff in error was arrested, or that any of his property was seized, nor does it appear that the plaintiff in error therein suffered any special damage, over and above the ordinary expenses and trouble which are attendant upon the defense of an ordinary civil suit. The question, therefore, which is presented in this case, and the only question which we deem it neces- sary to consider, is whether damages can be recovered for the ma- licious prosecution without probable cause of an ordinary civil suit, begun by personal service of process, and unaccompanied either by an arrest of the person or by seizure of property. It is well settled that malicious prosecution is a proper action for the recovery of damages for the institution of a civil suit with malice and without probable cause, where the defendant is deprived of his personal lib- erty, or where there is an attachment or seizure of his property. But whether malicious prosecution will lie in such case in the ab- sence of any interference with personal liberty, and in the absence of any seizure of property, is a question upon which the authorities are very much divided. The question above indicated has never been squarely decided in any case that has come before this court. In Gorton v. Brown, 27 111. 489, 81 Am. Dec. 245, it was held that an action could not be maintained for maliciously suing out a writ of injunction. The conclusion reached in that case, however, was based mainly upon the ground that the party had a sufficient remedy upon the injunction bond given when the injunction was obtained, and that such bond was designed by the statute to cover the dam- ages suffered by the party enjoined. But the drift of the opinion in that case was against the maintenance of an action for malicious prosecution without probable cause of an ordinary civil suit, unac- companied by arrest or seizure of property. In Gorton v. Brown, supra, we said (page 493, 27 111., 81 Am. Dec. 245) : "We are well aware that elementary writers and respectable courts have held that an action on the case will lie for an abuse of the process of the courts, where special damages are alleged, and against a party for prose- cuting a causeless action, prompted by malice, by which the defend- ant has sustained some injury, for which he has no other recourse or remedy. Such actions, however, for the most part, are actions wherein arrests have been made, and bail demanded, or the party put to some other expense and inconvenience, which cannot be com- "pensated in any other mode than by an action. Such actions, ex- cept where a malicious arrest is charged, are not favored by the courts, and ought not to be; for, in a litigious community, every successful defendant would bring his action for a malicious prose- cution, and the dockets of the courts would be crowded with such 282 LAW OF TORTS. suits." The question here under consideration has been much dis- cussed of late years in legal periodicals and in text-books, as well as in judicial decisions rendered by the courts in many of the states. We have examined the discussions upon this subject with great care, and are inclined to hold in accordance with the intimation made in Gorton v. Brown, supra, that such actions ought not to be maintained. An able discussion of this. subject, and an extensive review of the authorities in relation thereto down to the year 1878, may be found in 21 Amer. Law Reg. pp. 281, 353. The articles there published were written by Mr. John B. Lawson. After his review of the cases, Mr. Lawson announces it as his own opinion "that, while the weight of authority denies the action, the weight of reason allows it." The conclusion announced by the author of these articles has been fol- lowed by courts of last resort in several of the western and newly- created states. But, as the weight of authority denies the action, we, as a court, feel it our duty to be governed by the weight of authority, rather than by the conclusion of any law writer, however able and ingenious his reasoning may be. The learned author of the article on "Malicious Prosecution" in 14 Am. & Eng. Enc. Law, beginning on page 32, also refers to and states the substance of the cases on both sides of the question. It is there said : "At common law the defendant in an action maliciously brought without probable cause has a right of action against the plaintiff in such action after its termination in favor of such defendant, and this regardless of whether the plaintiff had interfered with either the person or prop- erty of the defendant. But, after the enactment of the statute of Marlbridge, in the fifty-second year of Henry III., giving costs to successful defendants by way of damage against the plaintiff pro falso clamore, it came to be held that an action for malicious prose- cution would not lie in civil actions, unless in cases where there had been arrest of the person, or seizure of property, or other special injury, which would not necessarily result in all suits prosecuted to recover for like causes of action. And this is the rule adopted by some of the courts of this country. The contrary rule, adopted by courts equal in number and respectability, is that an action can be maintained, where neither the person nor the property was seized, for damages accruing in suits brought maliciously and without prob- able cause." We prefer to adopt, as the sounder rule, the rule first stated in the passage last above quoted. We are of the opinion, and so .hold, that an action for the malicious prosecution of a civil suit without probable cause will not lie where the process in the suit so prosecuted is by summons only, and is not accompanied by arrest of the person, or seizure of the property, or other special in- jury not necessarily resulting in all suits prosecuted to recover for like causes of action. This conclusion is sustained by the following authorities, to wit: Potts v. Imlay, 4 N. J. Law, 330, 7 Am. Dec. MALICIOUS PROSECUTION. 283 603 ; Bitz v. Meyer, 40 N. J. Law, 252, 29 Am. Rep. 233 ; Muldoon v. Rickey, 103 Pa. no, 49 Am. Rep. 117; Kramer v. Stock, 10 Watts, 115.; Eberly v. Rupp, 90 Pa. 259; Mayer v. Walter, 64 Pa. 283; Wetmore v. Mellinger, 64 Iowa, 741, 18 N. W. 870, 52 Am. Rep. 465; Smith v. Hintrager, 67 Iowa, 109, 24 N. W. 744; McNamee v. Minke, 49 Md. 122; Supreme Lodge v. Unverzagt, 76 Md. 104, 24 Atl. 323; Terry v. Davis, 114 N. C. 31, 18 S. E. 943; Ely v. Davis, in N. C. 24, 15 S. E. 878; Mitchell v. Railroad Co., 75 Ga. 398; Newell, Mai. Pros. 32. Those who favor the doctrine that the courts ought to permit suits of this character to be brought and prosecuted urge in support of it the common-law maxim that for every wrong the law furnishes a remedy. It is said that, when a civil suit is maliciously prosecuted without probable cause, the de- fendant undergoes expenses, and suffers injury from loss of time, and often from loss of credit, and that these wrongs he must endure without a remedy, if he cannot bring suit for damages for the prose- cution of such malicious action. On the other hand, it must be remembered that the courts are open to every citizen; and every man has a right to come into a court of justice, and claim what he deems to be his right, without fear of being prosecuted for heavy damages. If such actions are allowed, it might oftentimes happen that an honest suitor would be deterred from ascertaining his legal rights, through fear of being obliged to defend a subsequent suit charging him with malicious prosecution. It is urged that the costs which are awarded to the successful de- fendant in a civil suit, malicious in its character, and brought against him without probable cause, are inadequate compensation for the injury which he suffers. But the question of the amount of costs which are to be allowed the successful party is a question to be de- termined by the legislature, and not by the courts. As was said by Chief Justice Kirkpatrick in Potts v. Imlay, supra : "The courts of law are open to every citizen, and he may sue toties quoties upon the penalty of lawful costs only. These are considered as a suffi- cient compensation for the mere expenses of the defendant in his defense. They are given to him for this purpose, and he cannot rise up in a court of justice, and say the legislature has not given him enough. If we were legislators, indeed, perhaps we should be inclined to say that the costs, in all cases where costs are given, should completely indemnify the party for all his necessary expenses, both of time and money ; but those to whom this high trust is com- mitted in this state have thought, and, we will presume, have wisely thought, otherwise." Such ordinary trouble and expense as arise from the ordinary forms of legal controversy should be endured by the law-abiding citizen as one of the inevitable burdens which men must sustain under civil government. Muldoon v. Rickey, supra. 1>84 LAW OP TORTS. Those who favor this species of action also claim that, if the courts refuse to allow such actions to be maintained, litigation will be en- couraged, and causeless and unfounded civil suits will be apt to be brought. On the contrary, the danger is that litigation will be pro- moted and encouraged by permitting such suits as the present action to be brought. This is so, because the conclusion of one suit would be but the beginning of another. A defendant who had secured a favorable result in the suit against him would be tempted to bring another suit for the purpose of showing that there had been malice and want of probable cause in the prosecution of the first suit which he had won. Litigation would thus become interminable. Every unsuccessful action would be apt to be followed by another alleging malice in the prosecution of the former action. There would thus be substantially a trial of every lawsuit twice instead of once, be- cause, in order to show that the first suit was malicious and with- out probable cause, it would be necessary to go over again the ma- terial facts that had been developed by the proof in such suit. Again, if every successful defendant should be encouraged to bring an ac- tion against the defeated plaintiff for the malicious prosecution with- out probable cause of an ordinary civil suit, such defendant would be careless and extravagant in the matter of the cost of the defense made by him. It would be a matter of little importance to the successful defendant whether his contract with his attorney for the latter's professional services provided for extravagant or reasonable fees, if he could turn around at once and recover from the defeated plaintiff whatever he had expended. His expenses and trouble and loss of time and credit would assume larger proportions, and would be regarded as heavier burdens, if he knew that he was to be reim- bursed for such outlay from the property of his adversary. In ad- dition to this, there is no reason why a plaintiff may not bring an action against a defendant who has made a groundless and cause- less defense, if the defendant may sue for damages which he has suffered for an unfounded prosecution. For the reasons stated, we are of the opinion that the court below committed no error in in- structing the jury to find for the defendant below (the defendant in error here). Accordingly the judgment of the appellate court, af- firming the judgment of the circuit court, is affirmed. Judgment affirmed. (The states of this country are about equally divided on this question. Re- cent cases in accord with the above decision are Bonney v. King, 201 111. 47, 66 N. E. 377 ; Muldoon v. Rickey, 103 Pa. 110, 49 Am. Rep. 117 ; Paul v. Fargo, 84 App. Div. 9, 82 N. Y. Supp. 369; cf. Willard v. Holmes, 142 N. Y. 492, 37 N. E. 480. Numerous other decisions to the same effect are cited in the next case, post, p. 285.) MALICIOUS PROSECUTION. 285 (114 Fed. 377.) WADE v. NATIONAL BANK OF COMMERCE OF TACOMA et al. (Circuit Court, D. Washington, W. D. March 21, 1902.) MALICIOUS PROSECUTION OF CIVIL ACTION. Action will lie to recover for injuries to reputation and business caused by malicious prosecution of a civil action without probable cause, in which a complaint was filed containing false and defamatory matter, though there has been no arrest or detention of the plaintiff, nor seizure of or interference with his property by any form of process. At Law. Action to recover damages for alleged malicious prose- cution of a civil action, in which the pleadings contained slanderous accusations, injurious to the present plaintiff. Demurrer to com- plaint overruled. HANFORD, District Judge. The demurrer to the complaint in this case raises the question whether an action can be maintained to recover damages for injuries to the plaintiff's reputation and business caused by the malicious prosecution of a civil action without prob- able cause, in which a complaint was filed containing false and de- famatory matter; there having been in said action no arrest or de- tention of the plaintiff, nor seizure of or interference with his prop- erty by any form of process. Upon the argument the demurrer was well supported by citations from text-books and adjudged cases. Some of the authorities hold that it is contrary to public policy to permit litigants to reverse their positions, and consume the time of the courts in a mere prolongation of disputes which have been once adjudicated. Others maintain that the taxable costs recovered by a defendant in an action is the legal measure of compensation which he may claim for whatever injuries he may have suffered by being compelled to appear in court and defend an action prosecuted wrong- fully; and others 'hold that the courts of justice must be kept open and free to all who may invoke their protection, and that a plaintiff who submits his controversy for adjudication to a lawfully consti- tuted tribunal should not be subjected to the peril of being sued for damages if he fails to secure a judgment in his favor. By other authorities the rule is established that the allegations of a pleading which are relevant to the issue are privileged, in the sense that, al- though defamatory and false, an injured person cannot maintain an action to recover compensation for any injury caused thereby. On these several grounds, and upon the authorities referred to, the defendants contend that this action cannot be maintained. For the sake of brevity I will give only a list of authorities cited, without arranging them with reference to the several propositions supported, or commenting thereon: Wetmore v. Mellinger, 64 Iowa, 741, 18 N. 286 LAW OF TORTS. W. 870, 52 Am. Rep. 465; McNamee v. Minke, 49 Md. 133; Su- preme Lodge v. Unverzagt, 76 Md. 104, 24 Atl. 323 ; Smith v. Buggy Co., 175 111. 619, 51 N. E. 569, 67 Am. St. Rep. 242; Tribune Co. v. Bruck, 61 Ohio St. 489, 56 N. E. 198, 76 Am. St. Rep. 433 ; Terry v. Davis, 114 N. C. 31, 18 S. E. 943; Ely v. Davis, in N. C. 24, 15 S. E. 878; Mayer v. Walter, 64 Pa. 283; Mitchell v. Railroad Co., 75 Ga. 398 ; Bitz v. Meyer, 40 N. J. Law, 252, 29 Am. Rep. 233 ; Potts v. Imlay, 4 N. J. Law, 377, 7 Am. Dec. 603; Rice v. Day, 34 Neb. loo, 51 N. W. 464; Commerce Co. v. Levi, 21 Tex. Civ. App. 109, 50 S. W. 606; Biering v. Bank, 69 Tex. 599, 7 S. W. 90; John- son v. King, 64 Tex. 226; Tunstall v. Clifton (Tex. Civ. App.) 49 S. W. 244; Eberly v. Ruff, 90 Pa. 259, I Am. Lead. Cas. (4th Ed.) 210; Willard v. Holmes, Brook & Haydens Co., 142 N. Y. 492, 37 N. E. 480; Cooley, Torts (ist Ed.) 188, 189; Id. (2d Ed.) 217, 220; Crockery Co. v. Haley, 6 Wash. 302, 33 Pac. 650, 36 Am. St. Rep. 156; Abbott v. Bank, 20 Wash. 552, 56 Pac. 376; Id., 175 U. S. 409, 20 Sup. Ct. 153, 44 L. Ed. 217; Ray v. Law, Fed. Cas. No. 11,592; Luby v. Bennett, in Wis. 613, 87 N. W. 804, 56 L. R. A. 261, 87 Am. St. Rep. 897. The defendant also contended that, if the action can be maintained, the recovery must be limited to the amount of the actual pecuniary loss, in the way of expenses necessarily incurred in defending the former suit, over and above the taxable costs (Closson v. Staples, 42 Vt. 209, I Am. Rep. 316; Eastin v. Bank, 66 Cal. 123, 4 Pac. 1106, 56 Am. Rep. 77; Brown v. City of Cape Girardeau, 90 Mo. 377, 2 S. W. 302, 59 Am. Rep. 28; 19 Am. & Eng. Enc. Law [2d Ed.] 652^ and that as the complaint alleges expenditures amounting to only $500, and no greater sum can be recovered in any event, the amount involved is not sufficient to make a case cognizable in this court. On the main question, as to whether the action will lie to re- cover damages for injury to reputation and business prospects, there is a conflict of authorities; and, as the point has not been decided by an appellate court having jurisdiction to review the decisions of this court, it is necessary to consider the reasons as well as the authorities. The common law of England, so far as it is applicable to existing conditions in this country, furnishes the rule of decision for the courts in this state ; and by the ancient common law cases of this nature were controlled by the elementary principle that a wrongful act causing injury entitled the injured party to compen- sation in money, and there was no rule barring such an action as this on any theory that the rights of an individual may be sacrificed out of regard for public policy or convenience, or any notion that the prosecution of an action in bad faith, and for the mere purpose of inflicting an injury, is a matter of right or privilege. The first departure from this rule of the common law has been traced to an English statute, referred to in the books as the "Statute of Marl- MALICIOUS PROSECUTION. 287 bridge" (52 Hen. III.), which gave a successful defendant the right to recover damages as well as costs in the original action. 19 Am. & Eng. Enc. Law (2d Ed.) 652. There being no statute or rule of practice in this state "by which a defendant can claim damages for malicious prosecution without bringing an independent action, we are not required to blindly follow English decisions based upon the statute of Marlbridge. All the arguments which may be drawn from the public policy idea, and from consideration of the evil conse- quences which may result from making one lawsuit the foundation for another, are proper only for consideration of the legislature. The courts are not authorized to create rules changing the law and denying substantial rights for any such reasons. The gravamen of the wrong charged against the defendants is their bad faith, in mis- using judicial process, intentionally, to oppress and injure the plain- tiff; and I am unable to accept as a right principle the propositior that to employ the judicial power of the government as an instru- ment to inflict a wanton injury is any man's privilege. It is my opinion that the true doctrine is affirmed in the text-books and de- cisions denying that a case such as this must be excepted from the general rule making a wrongdoer liable for damages to a party suf- fering injury as a consequence of his wrongful act. See Cooper v. Armour (C. C.) 42 Fed. 215, 8 L. R. A. 47, and cases therein cited; Newell, Mai. Pros. 23, 24, 26, 28; Eastin v. Bank, 66 Cal. 123, 4 Pac. 1106; Machine Co. v. Willan, 63 Neb. 391, 88 N. W. 497, 56 L. R. A. 338, 93 Am. St. Rep. 449; Kolka v. Jones, 6 N. D. 461, 71 N. W. 558, 66 Am. St. Rep. 615. Demurrer overruled. (The following cases support this doctrine: McCardle v. McGinley, 86 Ind. 538, 44 Am. Rep. 343; Brand v Hinchman, 68 Mich. 590. 36 N. W. 664, 13 Am. St. Rep. 362; Eickhoff v. Fidelity Co., 74 Minn. 139, 76 N. W. 1030; Whipple v. Fuller, 11 Conn. 582, 29 Am. Dec. 330; Smith v. Burrus, 106 Mo. 94, 16 S. W. 881, 13 L. R. A. 59, 27 Am. St. Rep. 329.) Malicious attachment in civil action. (154 Mass. 1, 27 N. E. 772, 12 L. R. A. 288.) ZINN v. RICE. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1891.) WRONGFUL ATTACHMENT TEBMINATION OF ACTION NOT NECESSARY. An action for maliciously suing out an excessive attachment may be brought before the termination of the attachment suit, and even though the plaintiff in said suit has a good cause of action, and there is uo de- fense thereto, and the suit could not terminate in favor of defendant 288 LAW OF TORTS. therein. The grievance Is that said plaintiff, having a just cause of action, made an excessive attachment of property, not for the purpose of securing his debt, but for the purpose of injuring said defendant Exceptions from Superior Court, Suffolk County; John Lathrop, Judge. Action for maliciously suing out an excessive attachment. Plaintiff was nonsuited on the ground that his action was prematurely brought, and excepts. Exceptions sustained. W. ALLEN, J. It is not contended that the facts alleged in the declaration, and offered to be proved at the trial, are not sufficient to sustain an action by the plaintiff against the defendant. The de- fendant's contention is that the action is prematurely brought; that it is an action for malicious prosecution, and subject to the rule that a suit for malicious prosecution cannot be maintained until the prosecution has terminated in favor of the plaintiff. But the rule applies only to suits for maliciously instituting groundless prose- cutions, and does not apply to the injurious and malicious use of process in proceedings which were commenced with probable cause. The latter, being for the malicious use of legal process by acts au- thorized by its terms, may be called "actions for malicious prosecu- tion," to distinguish them from actions for the abuse of process by doing under color of legal process acts not authorized by it; but there is no rule of law that in such an action the termination of any former suit must be shown. The rule is founded on the necessity of proving that a prosecution which itself puts in issue the truth of the charge on which it is founded is without probable cause. A defendant in such an action cannot bring another action to try the issue tendered him in the first while that issue is pending. The rule is, by its terms and nature, limited to a prosecution to establish a charge or cause of action, and cannot include an ex parte use of process incidental and collateral to such a prosecution, and in de- fense to which falsity of the charge cannot be shown. Parker v. Langly, 10 Mod. 209; Fortman v. Rottier, 8 Ohio St. 548, 70 Am. Dec. 606; Bump v. Betts, 19 Wend. 421; Barnett v. Reed, 51 Pa. 190, 88 Am. Dec. 574; Jenings v. Florence, 2 C. B. (N. S.) 467; Churchill v. Siggers, 3 El. & Bl. 929 ; Wentworth v. ' Bullen, 9 Barn. & C. 840; Wood v. Graves, 144 Mass. 365, n N. E. 567, 59 Am. Rep. 95; Everett v. Henderson, 146 Mass. 89, 14 N. E. 932, 4 Am. St. Rep. 284; Savage v. Brewer, 16 Pick. 453, 28 Am. Dec. 255; Bicknell v. Dorion, 16 Pick. 478. In the case at bar the grievance of the plaintiff is not that the defendant maliciously commenced a groundless suit. He admits that the plaintiff had a good cause of action, and that there is no defense to the suit, and that its termina- tion cannot be in his favor. Nor is his grievance that the defendant abused the process in the former suit, and, under color of it, did MALICIOUS PROSECUTION. 289 things not authorized by its terms. His grievance is that the de- fendant, having a just cause of action, and a legal suit against this plaintiff, made an excessive attachment of property, which he knew was not needed for the security of his debt, not for the purpose of securing his debt, but for the purpose of injuring the plaintiff. If the plaintiff has any right of action, which is not controverted, it is idle to say that he must wait until the former action has terminated in his favor. The defendant contends that the amount of the debt must be fixed by the determination of the former suit, and that it cannot be shown in this suit. We know of no authority or reason for this. The amount of the debt cannot exceed the amount declared for in the suit, and that is admitted to be due, so far certainly as affects this suit. Beyond that there is no question in the former suit, and no issue, and the proceedings complained of were ex parte, and they were terminated by the reduction of the attachment. It is argued that the plaintiff in that suit may amend his declaration, and intro- duce a new cause of action. That case, as stated by the plaintiff himself, does not present any issue involved in the case at bar, and the possibility that a new cause of action may be added, if it existed, would not be sufficient to show that the issues presented in this case are pending in that, or to bring it within the terms or reason of the rule that the liability of this plaintiff to such possible cause of action can be tried only in that action. Exceptions sustained. (See also Alsop v. Lidden, 130 Ala. 548, 30 South. 401; Talbott v. Great Western Plaster Co., 86 Mo. App. 558; LeClear v. Perkins, 103 Mich. 131. 61 N. W. 357. 26 L. R. A. 627. The same rule applies in cases where an ex /xrrtf order or warrant of arrest is obtained. Mayer v. Walter, 64 Pa. 283; Hyde v. Greucli, 62 Md. 577; Steward v. Gromett, 7 C. B. [N. S.] 191.) Malicious abuse of process. (4 Bing. N. C. 212.) GRAINGER v. HILL et al. (Court of Common Pleas. January 20, 1838.) 1. ABUSE OF PBOCESS ARREST. Sheriff's officers, having a writ for the arrest of plaintiff in an action brought by defendants against him, came to plaintiff, who was ill in bed, and told him that, unless he would deliver up a certain document or find bail, they must either take him or leave a man with him. Held, that this was a sufficient restraint on plaintiff's person, without actual contact, to amount to an arrest, which would sustain an action by plaintiff for a ma- licious abuse of the process; and that defendants, having repaid to plain- tiff, on a settlement between them, the caption fee charged to him by the officers, thereby admitted the propriety of such charge. CHASE (2o ED.) 19 290 LAW OP TORTS. 2. SAME TERMINATION OF PROCEEDING WANT OF PROBABLE CAUSE. In an action for abusing the process of the court in order illegally to compel a party to give up his property, it is not necessary to prove that the action in which the process was improperly employed has been de- termined, or to aver that the process was sued out without reasonable or probable cause. Motions for entry of nonsuit instead of verdict for plaintiff, and in arrest of judgment. Action on the case by Grainger against Hill and another. De- fendants pleaded the general issue. At the trial it appeared that in September, 1836, plaintiff, by deed, mortgaged to defendants for 80, being money loaned by them to him, a vessel of which he was owner and master. The money was to be repaid in September, 1837; and plaintiff was to retain the register of the vessel in order to pursue his voyages. In November, 1836, defendants, under some apprehension as to the sufficiency of their security, resolved to pos- sess themselves of the ship's register; and for this purpose, after threatening to arrest the plaintiff unless he paid the money, they made an affidavit of debt, sued out a capias indorsed for bail in the sum of 95. 175. 6d. in an action of assumpsit, and sent two sheriff's officers with the writ to plaintiff, who was lying ill in bed from the effects of a wound. A surgeon present perceiving he could not be removed, one of the defendants said to the sheriff's officers, "Don't take him away; leave the young man with him." The officers then told plaintiff they had not come to take him, but to get the ship's register; but that if he failed to deliver the register, or to find bail, they must either take him or leave one of the officers with him. Plaintiff, being unable to procure bail, and being much alarmed, gave up the register. Plaintiff afterwards came to an arrangement with defendants ; was discharged from the arrest ; repaid the money bor- rowed on mortgage ; and received from defendants a release of the mortgage deed. No further steps were taken in the action of as- sumpsit. Upon this arrangement, a caption fee which had been charged and paid by plaintiff to the sheriff's officers was repaid by de- fendants to plaintiff. The jury found a verdict for plaintiff. Coun- sel for defendants, pursuant to leave, moved to enter a nonsuit in- stead of the verdict, and also moved in arrest of judgment, and obtained a rule to show cause. TINDAL, C. J. This is a special action on the case, in which the plaintiff declares that he was the master and owner of a vessel which, in September, 1836, he mortgaged to the defendants for the sum of 80, with a covenant for repayment in September, 1837, and under a stipulation that, in the meantime, the plaintiff should retain command of the vessel, and prosecute voyages therein for his own profit ; that the defendants, in order to compel the plaintiff, through MALICIOUS PROSECUTION. 291 duress, to give up the register of the vessel, without which he could not go to sea, before the money lent on mortgage became due, threatened to arrest him for the same unless he immediately paid the amount ; that, upon the plaintiff refusing to pay it, the defend- ants, knowing he could not provide bail, arrested him under a capias, indorsed to levy 95. 173. 6d., and kept him imprisoned until, by du- ress, he was compelled to give up the register, which the defendants then unlawfully detained, by means whereof the plaintiff lost four voyages from London to Caen. There is also a count in trover for the register. The defendants pleaded the general issue; and, after a verdict for the plaintiff, the case comes before us on a double ground, under an application for a nonsuit, and in arrest of judg- ment. The first ground urged for a nonsuit is that the facts proved with respect to the writ of capias do not amount to an arrest. It appears to me that the arrest was sufficiently established. The facts are that the sheriff's officer comes with a capias to the plaintiff, when he is ill in bed, and tells him that, unless he delivers the register or finds bail, he must either take him or leave a man with him. Without actual contact, the officer's insisting that the plaintiff should produce the register, or find bail, shows that the plaintiff was in a situation in which bail was to be procured. That was a sufficient restraint upon the plaintiff's person to amount to an arrest. The authority in Buller's Nisi Prius, p. 62, goes the full length: "If the bailiff, who has a process against one, says to him, when he is on horse- back or in a coach, 'You are my prisoner; I have a writ against you,' upon which he submits, turns back, or goes with him, though the bailiff never touched him, yet it is an arrest, because he sub- mitted to the process." But the matter does not rest there; for, upon the suit being arranged, a caption fee, which had been charged by the officer to the plaintiff, was repaid to him by the defendants, who thereby admit the propriety of the charge. The second ground urged for a nonsuit is that there was no proof of the suit commenced by the defendants having been terminated. But the answer to this, and to the objection urged in arrest of judg- ment, namely, the omission to allege want of reasonable and prob- able cause for the defendants' proceeding, is the same : that this is an action for abusing the process of the law by applying it to extort property from the plaintiff, and not an action for a malicious arrest or malicious prosecution, in order to support which action the termination of the previous proceeding must be proved, and the absence of reasonable and probable cause be alleged as well as proved. In the case of a malicious arrest, the sheriff, at least, is instructed to pursue the exigency of the writ. Here the directions given, to compel the plaintiff to yield up the register, were no part of the duty enjoined by the writ. If the course pursued by the de- 292 LAW OF TORTS. fendants is such that there is no precedent of a similar transaction, the plaintiff's remedy is by an action on the case, applicable to such new and special circumstances, and, his complaint being that the process of the law has been abused to effect an object not within the scope of the process, it is immaterial whether the suit which that process commenced has been determined or not, or whether or not it was founded on reasonable and probable cause. As to the count in trover, if the taking of the register was wrong- ful, that taking was of itself a conversion, and no demand and re- fusal were necessary as a preliminary to this action. It seems to me that taking the property of another without his consent, by an abuse of the process of the law, must be deemed a wrongful taking, and therefore this rule must be discharged. PARK, VAUGHAN, and BOSANQUET, JJ., concurred. (See also Wood v. Graves, 144 Mass. 365, 11 N. E. 5G7, 59 Am. Rep. 95; Page v. Gushing, 38 Me. 523; Bebinger v. Sweet, 1 Abb. N. C. 263; Foy v. Barry, 87 App. Div. 291, 84 N. Y. Supp. 335; Kline v. Hibbard. 80 Hun. 50, 29 N. Y. Supp. 807. affirmed 155 N. Y. 679, 49 N. E. 1099; Norcross v. Otis Bros., 152 Pa. 481, 25 Atl. 575, 34 Am. St. Rep. 669.) (181 Mass. 339, 63 N. E. 885.) WHITE v. APSLEY RUBBER CO. (Supreme Judicial Court of Massachusetts. Middlesex. May 20, 1902.) 1. ABUSE OF PROCESS TERMINATION OF PROSECUTION. That a criminal prosecution has not been terminated is no defense to an action for an abuse of process in such prosecution. 2. SAME. Where one is arrested under a criminal warrant upon a charge of ma- licious injury to personalty, and then the complainant makes use of the arrest to compel the person arrested to abandon a claim to the right to occupy a certain house and to withdraw from its occupation, this is an abuse of process for which an action will lie, though the prosecution in which the warrant was obtained has not been terminated. Exceptions from Superior Court ; Caleb Blodgett, Judge. BARKER, J. It is conceded that criminal proceedings were be- gun against the plaintiff by a sworn complaint, made to a trial jus- tice, charging that the plaintiff had willfully and maliciously injured the personal property of the defendant, and that a warrant for the plaintiff's arrest was issued upon the complaint, and placed in the hands of a police officer, who then went to the house where the plaintiff was. The evidence tended to show that the plaintiff was CONSPIRACY. 29S arrested upon this warrant at the house, and kept under arrest for some minutes, during which he went with the officer to the defend- ant's office, and then returned with him to the house, and that he was not released from the arrest until he had abandoned a claim to the right to occupy the house, and had left it, finally taking away with himself his wife and such goods of his own as were in the house when he was arrested. The evidence also tended to show that defendant caused the making of the complaint and the arrest, and made use of the arrest to compel the plaintiff, against his will, to abandon a claim to the right to occupy the house, and to compel him actually to withdraw from its occupation. The warrant has never been returned, and since it was issued there has been no ju- dicial action upon the complaint. The fact that the prosecution has not been terminated bars any recovery upon the counts for malicious- prosecution. Cardival v. Smith, 109 Mass. 158, 12 Am. Rep. 682; Wood v. Graves, 144 Mass. 365, 366, n N. E. 567, 59 Am. Rep. 95. But that fact is not a defense to the counts for abuse of process- Wood v. Graves, ubi supra. A misuse of the warrant and the arrest to compel him to quit the house and relinquish his claim to the right to its occupancy would give him a right of action. Exceptions sustained. CONSPIRACY. (52 N. J. Law, 284, 20 Atl. 485, 10 L. R. A. 184.) VAN HORN et al. v. VAN HORN et al. (in part). (Supreme Court of New Jersey. October 15, 1890.) 1. CONSPIBACT CIVIL ACTION FOB. An action will lie for a combination or conspiracy to drive a trader out of business, which is carried into effect by fraudulent and malicious acts which accomplish that result. 2. SAME. The gravamen in actions for conspiracy is not the conspiracy itself, but the wrongful acts and injury which are independent thereof. If the plain- tiff proves the conspiracy, he may recover against all the co-tort-feasors ; if he fails to prove it, he may still recover against such as are shown to be guilty of the tort without such agreement Case certified from circuit court, Essex county ; before Justice Depue, The defendants, Amos H. Van Horn and Casper Soer, Jr., were summoned to answer James Van Horn, and Emma D. Van Horn, 294 LAW OF TORTS. his wife, in tort, for a conspiracy or combination to break up the wife's separate business of selling fancy goods on consignment at Newark. Two firms of wholesale jobbers in fancy and millinery goods had agreed verbally to supply her on credit with a stock of such goods, to be sold by her on commission, limiting the total amount to $2,500. One of said firms had, in pursuance of the agree- ment with her, sent $500 worth of goods, which were received and placed in her store for sale, and she was daily expecting the balance. With this prefatory statement, the declaration charges that the de- fendants, maliciously intending to injure and drive the said Emma D. Van Horn out of business, and into public scandal, shame, and disgrace, and to injure her in her credit and business, and to prevent her from acquiring any profit or gain therefrom, or from continuing the same, did maliciously conspire, combine, and agree to prevent her from enjoying and continuing her business, and in pursuance of said conspiracy, etc., did entice into their store in Newark one of the plaintiff's employees, and by artful persuasion and threats induced her to tell where the plaintiff's stock of goods was purchased, telling her the stock would be taken from her, and the business closed up ; and, in pursuance and in further performance of their unlawful in- tent and combination, endeavored to prevent the customers and friends of the plaintiff from dealing with her, by falsely and fraudu- lently representing to them that she would not be able to carry on her business, but would have to close up, as she was selling goods that did not belong to her, and living off the proceeds, instead of accounting therefor, and by sending threatening notes and messages to them, designed to intimidate them from having any dealings with her, and did threaten to pursue her until she was ruined. That in further pursuance of such combination, and by means of fraud and deceit, they did persuade the said firm in New York to decline to complete their contract and did prevail on them, by means of cor- rupt, fraudulent, and deceitful representations and statements as to the personal and business character and standing of the plaintiff, to remove the stock already supplied her, and refuse to deliver her other goods as agreed for, leaving her entirely without any stock to sell, or customers to purchase from her, by means whereof she was left without stock and credit with the said firms, and could not obtain goods from other parties, and was driven out of her business and occupation, and deprived of the profit and livelihood which she was making and daily increasing. To this declaration a general de- murrer was filed, and joinder added. Argued at February term, 1890, before BEASLEY, C. J., and DEPUE and SCUDDER, JJ. SCUDDER, J. The merely formal parts of this declaration will not be considered on the general demurrer, but the whole will be CONSPIRACY. 295 examined to determine whether it sets forth in substance a legal cause of action. The distinction is now well established that in civil actions the conspiracy is not the gravamen of the charge, but may be both pleaded and proved as aggravating the wrong of which the plaintiff complains, and enabling him to recover against all as joint tort-feasors. If he fails in the proof of a conspiracy or con- certed design, he may still recover damages against such as are shown to be guilty of the tort without such agreement. Pollock on Torts, 267; Caring v. Fraser, 76 Me. 37; Hutchins v. Hutchins, 7 Hill, 104; Jones v. Baker, 7 Cow. 445; Parker v. Huntington, 2 Gray, 124. The declaration begins in this form, and is unexception- able in this particular. It is an action on the case setting forth a malicious conspiracy or confederation, with the means employed to effect its purpose, and the resulting damages to the plaintiff. No further specification is required than the general terms in which it is pleaded in the declaration. We have not presented for determination in this pleading the vexed question whether an action will lie against a third person for the malicious procurement of the breach of a contract, if by such procurement damage was intended to result and did result to the plaintiff. Lumley v. Gye, 2 El. & Bl. 216; Bowen v. Hall, 6 Q. B. Div. 333. Here the whole pleading is based on the malicious con- duct of the defendants in destroying the plaintiff's credit and patron- age, and breaking up her business and means of livelihood. The case is, however, further distinguished from the cases cited above, and separated from the questions of difficulty involved in some of them, because here no breach of contract is alleged. There was no binding contract between the New York firms and the plaintiff upon which they could be sued for a breach. Where there is a suable contract between a contractor and contractee, there is difficulty, in principle, in showing privity in another, or to make the person who procures a .breach of the contract the proximate cause of injury. The party who breaks the contract, for whatever cause, whether by procurement of others or of his own volition, is primarily responsible to the other party; and the procurer, it would seem, can only be held responsible for the breach where there is malice shown to the sufferer, giving a distinct cause of action for the malice which caused the breach of the contract resulting in damages to him. The plain- tiff Emma D. Van Horn, it is alleged, was selling goods on con- signment from others, with the expectation of greater consignments in the future. If the consignors refuse to send the goods to her, it does not appear that she could have any remedy against them. They could send or recall them at pleasure. The complaint here is that the goods in the plaintiff's possession were recalled, and her advan- tageous arrangement for credit with the consignors ended, by the fraudulent and malicious act of the defendants. If she hav no .'296 LAW OF TORTS. remedy against the defendants, she can have none against others for the wrong which she claims she has suffered. The difference between this action and slander is well stated in Riding v. Smith, I Exch. Div. 91, where a slander against the wife was charged as having injured the husband's business. Her name was stricken from the record as a joint plaintiff, and the action was allowed to proceed by the husband, as a trader carrying on business, founded on an act done by the defendant which led to the loss of trade and custom by the plaintiff. It was maintainable on the ground that the injury to the plaintiff's business was the natural consequence of the words spoken, which would prevent persons resorting to the plaintiff's shop. Upon the whole case presented in the declaration, Mogul Steam-Ship Co. v. McGregor, 21 Q. B. Div. 544, 23 Q. B. Div. 598, is important to aid in preserving the distinction between injuries caused by mere rivalries in business, without the intention of ruin- ing the trade of the plaintiff, and those where such intent is shown with personal malice towards him. In the first report, Lord Chief Justice Coleridge says: "It is too late to dispute, if I desired to do so, as I do not, that a wrongful and malicious combination to ruin a man in his trade may be ground for such an action as this." In the later report Lord Justice Fry, after a full statement of cases, says that no mere competition carried on fo'r the purpose of gain, and without actual malice, is actionable, even though intended to drive the rival in trade away from his place of business, and though that intention be actually carried into effect. Lord Esher, M. R., dissented. It was decided that the exclusion of the plaintiffs, rival freighters, from participation in a 5 per cent, rebate on freight on teas from China, not being through malice, but in competition to increase their own business, was not actionable. 1 The basis of action seems here to be, as stated in the declaration, the fraudulent and malicious acts of the defendants in driving the plaintiff Emma D. Van Horn out of her business. The statements of the means used to effect this purpose all combine to produce a single cause of action, and are not objectionable for duplicity. The demurrer should be overruled. (This decision was affirmed in Van Horn v. Van Horn, 56 N. J. Law, 318, 28 Atl. 669. See also Wildee v. McKee, 111 Pa. 335, 2 Atl. 108, 56 Am. Rep. 271; Findlay v. McAllister, 113 U. S. 104, 5 Sup. Ct. 401, 28 L. Ed. 930; Rundell v. Kalbfus, 125 Pa. 123, 17 Atl. 238 ; Brackett v. Griswold, 112 N. Y. 454, 20 N. B. 376 ; Train v. Taylor, 51 Hun, 215, 4 N. Y. Supp. 492 ; Verplanck v. Van Buren, 76 N. Y. 259; Jackson v. Stf,nfield, 137 Ind. 592, 36 N. E. 345, 37 N. E. 14, 23 L. R. A. 588 ; Randall v. Hazelton, 12 Allen, 412, 414 ; Huot v. Wise, 27 Minn. 68, 6 N. W. 425. Conspiring to commit a tort is not action- able, unless a wrong is done and damages ensue. Keit v. Wyman, 67 Hun, 337, 22 N. Y. Supp. 133.) i This decision was affirmed by the House of Lords. Mogul Steamship Co. v. McGregor [1892] A. C. 25. CONSPIRACY. 297 ([1901] App. Cas. 495.) QUINN v. LEATHEM (in part). (Aug. 5, 1901.) CcmspiBACY INDUCING A PERSON TO BREAK His CONTRACT OB NOT TO DEAL WITH ANOTHER OB CONTINUE IN His EMPLOYMENT. A combination of two or more, without justification or excuse, to injure a man in his trade by inducing his customers or servants to break their contracts with him, or not to deal with him or continue in his employ- ment, is, if it results in damage to him, actionable. Action by Henry Leathern against Joseph Quinn and others, offi- cers and members of a butchers' association, to recover for inter- ference with plaintiff's business of a butcher. The members of the association adopted a rule that they would not work with non-union men, nor would they cut meat that came from a place where non- union hands were employed. Neither plaintiff nor his assistants. were members of the association. Defendants demanded that plain- tiff discharge his men, and employ union men in their stead. This having been refused, defendants induced a customer of plaintiff, named Munce, to cease dealing with plaintiff, on the threat that unless he did so defendants would instruct such customer's employees to cease work im- mediately, on the arrival of plaintiff's beef. This threat was afterwards carried into effect by the defendants, and plaintiff was thus deprived of this valuable customer, Munce, who had taken meat from him for 20 years. Defendants also induced plaintiff's assistants to leave his employ. Defendants further caused to be published "black lists" con- taining the names of plaintiff, and those dealing with him, holding them up to odium, and thus caused customers of plaintiff to cease dealing with him. The jury found for plaintiff. From a judgment of the Irish Court of Appeals, affirming a decision denying a motion to set aside the verdict and judgment, or in the alternative for a new trial, defendant Quinn appealed. Appeal dismissed. EARL OF HALSBURY, L. C. My Lords, in this case the plaintiff has by a properly framed statement of claim complained of the defendants, and proved to the satisfaction of a jury that the defendants have wrongfully and maliciously induced customers and servants to cease to deal with the plaintiff, that the defendants did this in pursuance of a conspiracy framed among them, that in pur- suance of the same conspiracy they induced servants of the plaintiff not to continue in the plaintiff's employment, and that all this was done with malice, in order to injure the plaintiff, and that it did in- jure the plaintiff. If upon these facts so found the plaintiff could have no remedy against those who had thus injured him, it could hardly be said that our jurisprudence was that of a civilized com- munity, nor, indeed, do I understand that any one has doubted that J98 LAW OF TORTS. before the decision in Allen v. Flood [1898] A. C. I, in this house, such facts would have established a cause of action against the de- fendants. Now, the hypothesis of fact upon which Allen v. Flood was de- cided by a majority in this house was that the defendant there neither uttered nor carried into effect any threat at all ; he simply warned the plaintiff's employers of what the men themselves, without his persuasion or influence, had determined to do, and it was certainly proved that no resolution of the trade union had been arrived at at all, and that the trade union official had no au- thority himself to call out the men, which in that case was argued to be the threat which coerced the employers to discharge the plain- tiff. It was further an element in the decision that there was no case of conspiracy, or even combination. What was alleged to be done was only the independent and single action of the defendant, actuated in what he did by the desire to express his own views in favor of his fellow members. Now, in this case it cannot be denied that, if the verdict stands, there was conspiracy, threats, and threats carried into execution, so- that loss of business and interference with the plaintiff's legal rights are abundantly proved. This case is distinguished in its facts from those which were the essentially important facts in Allen v. Flood. Rightly or wrongly, the theory upon which judgment was pronounced in that case is one whereby the present is shewn to be one which the majority of your Lordships would have held to be a case of actionable injury inflicted without any excuse whatever. My Lords, for these reasons I am of opinion that there is no difficulty whatever in this case, and I move that this appeal be dis- missed, with costs. LORD MACNAGHTEN. My Lords, notwithstanding the strong language of the late O'Brien, J., and the arguments of the Lord Chief Baron, I cannot help thinking that the case of Allen v. Flood [1898] A. C. i, has very little to do with the question now under consideration. The head-note to Allen v. Flood might well have run in words used by Parke, B., in giving the judgment of an exceptionally strong court, nearly half a century ago (Stevenson v. Newnham [1853] 13 C. B. 297) "an act which does not amount to a legal injury cannot be actionable because it is done with a bad intent." That, in my opinion, is the sum and substance of Allen v. Flood, if you eliminate all matters of merely passing interest. The case really brought under review on this appeal is Temperton v. Russell [1893] i Q- B. 715. I cannot distinguish that case from the present. So far from being impugned in Allen v. Flood, it had, I think, the approval of Lord Watson, whose opinion seems CONSPIRACY. 299 to me to represent the views of the majority better far than any other single judgment delivered in the case. Lord Watson says, [1898] A. C. 108, that he did not think it necessary to notice at length Temperton v. Russell [1893] i Q. B. 715, because it was to his mind "very doubtful whether in that case there was any ques- tion before^ the court with regard to the effect of the animus of the actor in making that unlawful which would otherwise have been lawful." Then he goes on to say: "The only findings of the jury which the court had to consider were (i.) that the defendants had maliciously induced certain persons to break their contracts with the plaintiffs, and (2.) that the defendants had maliciously conspired to induce, and had thereby induced, certain persons not to make contracts with the plaintiffs. There having been undisputed breaches of contract by the persons found to have been induced, the first of these findings raised the same question which had been disposed of in Lumley v. Gye, 2 E. & B. 216. According to the second finding the persons induced merely refused to make contracts, which was not a legal wrong on their part, but the defendants who induced were found to have accomplished their object to the injury of the plaintiffs by means of unlawful conspiracy a clear ground of lia- bility, according to Lumley v. Gye, 2 E. & B. 216, if, as the court held, there was evidence to prove it" Obviously, Lord Watson was convinced in his own mind that a conspiracy to injure might give rise to civil liability, even though the end were brought about by conduct and acts which by them- selves, and apart from the element of combination or concerted ac- tion, could not be regarded as a legal wrong. Precisely the same questions arise in this case as arose in Temper- ton v. Russell [1893] i Q. B. 715. The answers, I think, must de- pend on precisely the same considerations. Was Lumley v. Gye, 2 E. & B. 216, rightly decided? Speaking for myself, I have no hesitation in saying that I think the decision was right, not on the ground of malicious intention that was not, I think, the gist of the action but on the ground that a violation of legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference. The only other question is this: Does a conspiracy to injure, resulting in damage, give rise to civil liability? It seems to me that there is authority for that proposition, and that it is founded in good sense. Gregory v. Duke of Brunswick, 6 M. & G. 205, 953, is one authority, and there are others. There are valuable observations on tHe subject in Erie, J.'s, charge to the jury in Duffield's Case (1851) 5 Cox C. C. 404, and Rowland's Case (1851) 5 Cox C. C. 436. Those were cases of trade union outrages; but the observations to which I refer are not confined to cases depending on exploded doctrines 300 LAW OF TORTS. in regard to restraint of trade. There are also weighty observations to be found in the charge delivered by Lord FitzGerald, then Fitz- Gerald, J., in Reg. v. Parnell and others (1881) 14 Cox C. C. 508. That a conspiracy to injure an oppressive combination differs widely from an invasion of civil rights by a single individual cannot be doubted. I agree in substance with the remarks of Bowen, L. J., and Lords Bramwell and Hannen, in the Mogul Case, 23 Q. B. D. 598, [1892] A. C. 25. A man may resist without much difficulty the wrongful act of an individual. He would probably have at least the moral support of his friends and neighbors ; but it is a very different thing (as Lord FitzGerald observes) when one man has to defend himself against many combined to do him wrong. I do not think that the acts done by the defendants were done "in contemplation or furtherance of a trade dispute between employers and workmen." So far as I can see, there was no trade dispute at all. Leathern had no difference with his men. They had no quarrel with him. For his part he was quite willing that all his men should join the union. He offered to pay their fines and entrance moneys. What he objected to was a cruel punishment proposed to be in- flicted on some of his men for not having joined the union sooner. There was certainly no trade dispute in the case of Munce. But the defendants conspired to do harm to Munce in order to compel him to do harm to Leathern, and so enable them to wreak their vengeance on Leathem's servants who were not members of the union. Lord SHAND, Lord BRAMPTON, and Lord LINDLEY wrote concurring opinions. Appeal dismissed, with costs. (See Read v. Friendly Society, etc. [1902] 2 K. B. 732 ; Glamorgan Coal Co. v. So. Wales Miners' Federation [1903] 2 K. B. 545. It is generally held in this country that a "boycott" by a combination of men is an actionable conspiracy. Gray v. Building Trades Council [Minn.] 97 N. W. 663 [citing many cases]; Barr v. Essex Trades Council, 53 N. J. Eq. 101. 30 Atl. 881; Webb v. Drake, 52 La. Ann. 290, 26 South. 791; Hopkins v. Oxley Stave Co., 83 Fed. 912, 28 C. C. A. 99. The same has been held of a combination of men, having no legiti- mate interests to protect, to ruin the business of another by maliciously induc- ing his patrons and third parties not to deal with him [Ertz v. Produce Ex- change Co., 79 Minn. 140, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St Rep. 433; Delz v. Winfree, 80 Tex. 400, 16 S. W. 111. 26 Am. St. Rep. 755; Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230 ; on this subject see note ante, on page 116, and cases cited] ; so of a combination of working men to coerce others by threats or intimidation to join their union, or to deprive them of work, etc. [Erdman v. Mitchell, 2~07 Pa. 79, 56 Atl. 327 ; Curran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 9 Am. St. Rep. 330; cf. National Protective Ass'n v. Cumming. 170 N. T. 315. and cases cited on page 348, 63 N. B. 369, 379, 58 L. R. A. 135, 88 Am. St Rep. 648].) SLANDER AND LIBEL. 301 SLANDER AND LIBEL. I. SLANDER. A. SLANDER PER Sa. I. Charge of crime. (3 Hill, 21.) YOUNG v. MILLER. (Supreme Court of New York. May Term, 1842.) 1. SLANDEB WORDS IMPUTING CRIME THE GENERAL AMERICAN RULE. Words imputing a charge which, if true, would subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, are in themselves actionable. 2. SAME CHARGE OF REMOVING LANDMARK. The removal of a landmark being made by statute (2 Rev. St N. Y. pp. 695, 697, 32, 40) indictable as a misdemeanor and punishable by fine and imprisonment in the county jail, and also involving moral turpitude, words charging a person with that offense are actionable per se. Demurrer to declaration. Action for slander. The defamatory words alleged in the decla- ration to have been spoken by defendant of and concerning plaintiff were as follows : "You [the said plaintiff meaning] have removed my landmark, [meaning the monument to designate the corner or boundary of defendant's land.]" "You [the said plaintiff meaning] have removed my landmark, [meaning the monument of said de- fendant's land,] and I [the said defendant meaning] can prove it." Also the latter words, with the addition, "by George Wilkins." Also the same words, with the addition, "and cursed is he that removeth his neighbor's landmark." Also, "Cursed is he that removeth his neighbor's landmark, and you [the said plaintiff meaning] have done it;" meaning that plaintiff had removed the monument of defend-- ant's land, and thereby then and there meaning to charge plaintiff with the offense of willfully and maliciously removing the monument designating the corner or other point in the boundary of defendant's land. Defendant demurred to the declaration on the ground that the words were not actionable in themselves, and that there was no allega- tion of special damage. Plaintiff joined in demurrer. BRONSON, J There has been much discussion in the books upon the question, what words are actionable in themselves, when 302 LAW OP TORTS. not spoken of the plaintiff in his office, profession, or calling? But it will be unnecessary to examine the cases at large, for the reason that a rule has been laid down and acted upon in this state, which, although not entirely satisfactory to my mind, I feel bound to follow. In Brooker v. Coffin, 5 Johns. 188, 4 Am. Dec. 337, the court, "upon the fullest consideration," laid down the following rule: "In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable." In Widrig v. Oyer, 13 Johns. 124, the counsel proposed to modify the rule by changing "or" into "and," but the court did not yield to the suggestion. The rule was repeated and followed in Martin v. Still- well, 13 Johns. 275, 7 Am. Dec. 374, where words were held action- able which charged the plaintiff with keeping a bawdy-house. Such a house is a common nuisance, and the person keeping it may be punished by indictment. In Gibbs v. Dewey, 5 Cow. 503, the charge was that the plaintiff had handed papers to a juror to influence or bribe the jury, and the words were held actionable. In Alexander v. Alexander, 9 Wend. 141, the charge was that the plaintiff had forged the defendant's name to a petition to the legislature; and, although the imputed offense was only a misdemeanor, and not a felonious forgery, the words were held actionable. In all of these cases the court went upon the ground that the words imputed "a crime involving moral turpitude," and for which the offender might be proceeded against by indictment. Removing a landmark seems not to have been an offense at the common law, nor was it made so by statute until 1830, when it was enacted that "every person who shall willfully or maliciously remove any monuments of stone, wood, or other durable material, erected for the purpose of designating the corner or any other point in the boundary of any lot or tract of land, shall, upon conviction, be ad- judged guilty of a misdemeanor." The punishment is fine and im- prisonment in the county jail. 2 Rev. St. pp. 695, 697, 32, 40. And, as in most other cases of crime, the prosecution is by indict- ment. The charge which has been made against the plaintiff, if true, will subject him to punishment by indictment; and the next inquiry is whether the imputed crime is one "involving moral tur- pitude." Removing landmarks was forbidden among the Jews, and a curse was denounced upon the offender. Deut. xix. 14, and xxvii. 17) Job, xxiv. 2 ; Prov. xxii. 28, and xxiii. 10. The learned and vener- able Doctor Scott, in his commentary upon the first-mentioned pas- sage, says : "As landmarks constituted the customary method of distinguishing landed property in those days, removing them would be a crime among the Israelites similar to forging, altering, destroy- ing, or canceling the title-deeds of estates at this day; and would SLANDER AND LIBEL. 303 occasion atrocious injustice, and make way for dispute and lawsuits." And in his remarks upon Prov. xxii. 28, he calls the offenders "rob- bers." Mr. Henry, in his commentary upon Deut. xix. 14, says : "Though the landmarks were set by the hands of men, yet he was a thief and a robber, by the law of God, that removed them." And in his comments upon Job, xxiv. 2, he says the offense is equivalent to that of "forging or destroying deeds." Doctor Adam Clark, in his commentary upon these passages, has taken nearly the same view of the question, though he has not been quite so severe upon the offenders. But this is a subject upon which it cannot be necessary to multiply authorities. There is evidently no great difference, in a moral point of view, between altering the courses and distances in a deed, for the purpose of depriving the owner of a part of his land, and producing the same result by changing the visible bounds of his estate. The one is a forgery on paper, and the other upon the face of the earth, and when either of these wrongs is done for the purpose of acquiring the property of another, the offender may justly be re- garded as a thief as well as a forger. All men must agree that the crime of removing landmarks is one involving a high degree of moral turpitude; and, as it is an indictable offense, the case falls plainly within a rule from which we are not at liberty to depart. The demurrer does not point out any defect in the form of the declaration, and I am inclined to think it sufficient. The defendant must have intended to charge the plaintiff with a criminal offense. Miller v. Miller, 8 Johns. 74, 77; Niven v. Munn, 13 Johns. 48; Goodrich v. Woolcott, 3 Cow. 231 ; Woolcott v. Goodrich, 5 Cow. 714; Gibbs v. Dewey, Id. 503. The plaintiff is entitled to judgment. COWEN, J. I concur in the views expressed by Mr. Justice Bronson on the question raised by the demurrer. It was contended on the argument that the cases in this court which sanction an action of slander for words imputing a misdemeanor intend those misde- meanors only to which the common or statute law now, or the com- mon law heretofore, attached legal, as contradistinguished from moral, infamy. I understand those cases as laying down a rule of much greater compass, one which comprehends every indictable offense, which is at the same time infamous or disgraceful in a gen- eral sense; any offense which detracts from the character of the offender as a man of good morals. I admit that this principle covers a wide field of litigation. Perhaps it extends beyond what was once understood to be the true boundary. But the objection that the law will not tolerate the uncertainty thus introduced is weakened by the manner in which the same law deals with actions like the present in kindred cases. Fluctuating as the rules of conduct prescribed by the moral code may be, they are every day judicially recognized as 304 LAW OF TORTS. the test of actions for printed slander, without the technical limit required by the rule now in question. There the offense imputed need not be even indictable or legally punishable in any way; and a writing or picture alluding to a mere foible may be the subject of an action, if intended to bring the party into contempt or ridicule. NELSON, C. J., also concurred. Judgment for the plaintiff. (The same decision was made in Todd v. Rough, 10 Serg. & R. 18. In Davis v. Carey, 141 Pa. 314, 21 Atl. 633, the rule laid down in Young v. Miller, ante, p. 301, as to what charges of crime are actionable per se, is approved, but it is said that the word "infamous" is to be understood in its popular and not in its technical legal sense. "In the American cases," says this decision, "im- portance is attached to the inherent nature of the indictable act, and also to the punishment which the law assigns to it, upon the principle that social degradation may result from either." "There is a variety of misdemeanors" [as nuisance, assault and battery, and the like] "to the commission of which uot even the shadow of disgrace is attached by the world," and hence a false charge of committing these is not slanderous per se. Id.; Andres v. Koppen- heafer, 3 Serg. & R. 255, 8 Am. Dec. 647 ; see Geary v. Bennett, 53 Wis. 444, 10 N. W. 602; Rutherford v. Paddock, 180 Mass. 289, 293, 62 N. E. 381, 91 Am. St. Rep. 282. A charge of committing an act involving moral turpitude is not actionable per se, if the act is not an indictable offense. Pollard v. Lyon, 91 U. S. 225, 23 L. Ed. 308; Anonymous, 60 N. Y. 262, 19 Am. Rep. 174. Language which charges a man with intending at some future time to commit an offense is not actionable. Fanning v. Chace, 17 R. I. 388, 22 AU. 275, 13 L. R. A. 134, 33 Am. St Rep. 878.) (11 Q. B. Div. 609.) WEBB v. BEAVAN. (Queen's Bench Division. May 30, 1883.) SLANDEB WORDS IMPUTING CBIME THE ENGLISH RULE. Words imputing a criminal offense punishable corporally are actionable per se, even though such offense be not punishable by indictment. Demurrer to statement of claim. Action for slander. The statement of claim alleged that defend- ant maliciously and falsely spoke and published of plaintiff the words following: "I will lock you [meaning the plaintiff] up in Gloucester gaol next week. I know enough to put you [meaning 'the plaintiff] there, [meaning thereby that the plaintiff had been and was guilty of having committed some criminal offense or offenses.]" Plaintiff claimed 500 damages. Defendant demurred, on the ground that the statement of claim did not allege circumstances showing that the defendant had spoken or published of the plaintiff any actionable SLANDER AND LIBEL. 305 language, and that no cause of action was disclosed. Plaintiff joined in demurrer. W. H. Nash, in support of the demurrer. To make the words actionable, the innuendo should have alleged that they imputed an offense for which plaintiff could hav^ been in- dicted. It was not sufficient to allege that they imputed a criminal offense merely. Odger, Sland. & Lib. p. 54. Hammond Chambers, opposed. According to the earlier authorities, the test, in ascertaining wheth- er words were actionable per se, was whether the offense was pun- ishable corporally or by fine. It was not necessary to allege that the words imputed an indictable offense. Com. Dig. tit. "Action on the Case for Defamation," 05,9; Curtis v. Curtis, 10 Bing. 477. POLLOCK, B. I am of opinion that the demurrer should be overruled. The expression "indictable offense" seems to have crept into the text-books, but I think the passages in Comyns' Digest are conclusive to show that words which impute any criminal offense are actionable per se. The distinction seems a natural one, that words imputing that the plaintiff has gendered himself liable to the mere infliction of a fine are not slanderous, but that it is slanderous to say that he has done something for which he can be made to suffer corporally. LOPES, J. I am of the same opinion. I think it is enough to allege that the words complained of impute a criminal offense. A great number of offenses which were dealt with by indictment 20 years ago are now disposed of summarily, but the effect cannot be to alter the law with respect to actions for slander. Demurrer overruled. (3 Hill, 139.) CHASE v. WHITLOCK. (Supreme Court of New York. July Term, 1842.) SLANDEB WORDS IMPUTING CHARGE OF SWINDLING. To say that a person is a "swindler" Is not actionable per se; the word being merely equivalent to "cheat," and not necessarily implying the crime of obtaining goods under false pretenses. Demurrer to declaration. Action for slander. The declaration alleged, in its first count, the speaking by defendant of the words, "Chase is a blackleg and swin- CHASE (2o ED.) 20 306 LAW OF TORTS. dler ; here is Stephen Potter's letter to confirm it ;" with the innuen- do that plaintiff had been guilty of the crime of swindling ; and in the second count the words, "Chase is a black-legged swindler ; his agent refused to do his business ; here is Potter's letter, which I will show you, confirming the fact;" with the innuendo that plaintiff had been guilty of the crime of swindling; and defendant was so understood by the people who heard the words. Defendant demurred to the declaration. Plaintiff joined in demurrer. BRONSON, J. There is no colloquium of obtaining goods by false pretenses, nor is there anything else to show that the words were used in any other than their ordinary sense. Swindling is not a crime known to our law. The word "swindler" is an exotic, which came from Germany, and has but recently become naturalized in our language. In Todd's Johnson, "swindler" is defined to be "a sharp- er ; a cheat ;" and to swindle, "to cheat ; to impose upon the credulity of mankind, and thereby to defraud the unwary by false pretense? and fictitious assumptions." Webster defines "swindler" as "a cheat : a rogue; one who defrauds grossly, or one who makes a practice of defrauding others by imposition or deliberate artifice." And in Tomlin's Law Dictionary (Ed. 1836) the word is defined, "a cheat; one who lives by cheating." To call one a "swindler" is about equiv- alent to saying he is a "cheat," which has never been held actionable. Either of those charges may, under certain circumstances, imply that the accused is guilty of the crime of obtaining goods by false pre- tenses. But they do not necessarily mean so much. There are many ways in which a man may wrong another in such a manner as to earn the title of "swindler" or "cheat," without subjecting him- self to an indictment for a criminal offense. This question has been considered as settled ever since the decision in Savile v. Jardine, 2 H. Bl. 532. It was there held that words charging the plaintiff with being a swindler were not actionable. Eyre, C. J., said the word was "only equivalent to 'cheat;' it cannot be carried further; and that is not actionable." He added, " 'thief always implies felony, but 'cheat' not always." Buller, J., said "swindler" means no more than "cheat ;" "when a man is said to be 'swindled,' it means 'tricked' or 'outwitted.' " That case was followed by the supreme court of Massachusetts in Stevenson v. Hayden, 2 Mass. 406 ; and see Carter v. Andrews, 16 Pick. I, 9. In Neal v. Lewis, 2 Bay, 204, the word "swindler" was applied to a merchant ; and, besides, the plaintiff was also charged with being a thief. The court had no occasion to say whether the first charge was actionable or not. I am not a\vare that words charging the plaintiff with being a swindler have ever been held actionable, and, upon principle, I think they are not. They SLANDER AND LIBEL. 307 do not necessarily import a criminal offense involving moral turpi- tude, and punishable by indictment. Judgment for defendant. (So held also In Pollock v. Hastings, 88 Ind. 248; Weil v. Altenhofen, 26 Wis. 708. But to call a man "swindler and thief" is actionable per se [Stern v. Katz, 38 Wis. 13(5] ; so to call a man a "thief" [Krup v. Corley, 95 Mo. App. 040, U9 S. W. 609; Smith v. Moore, 74 Vt. 81, 52 Atl. 320].) (14 Johns. 233.) VAN ANKIN v. WESTFALL (In part). (Supreme Court of New York. August Term, 1817.) SLANDER WORDS IMPUTING CBTME IN ANOTHER STATE. An action may be maintained for words charging a crime, although the transaction referred to took place in a State other than that in which the words were spoken and the action brought, so that there could be no prose- cution for the crime in the latter State, even if it had been committed. Motion for new trial. Action for slander, in speaking of plaintiff the words, as alleged in the declaration and proved on the trial, "He is a thief, and has stolen fifty dollars in cash from Jacob De Witt." These words were spoken in the state of New York, but referred to a transaction which took place in the state of Pennsylvania, where Jacob De Witt resided. Defendant moved for a nonsuit, on the ground that the words as proved were not actionable, as they did not charge plaintiff with the commission of any crime or misdemeanor for which he was liable to be indicted and punished in the state of New York. The motion was denied. The case was submitted to the court without argument. PER CURIAM. This is an action of slander, charging the de- fendant with saying of the plaintiff, "He is a thief, and has stolen fifty dollars in cash from Jacob De Witt." It appeared in proof that Jacob De Witt resided in the state of Pennsylvania, and that the transaction referred to by the defendant took place in that state. The plaintiff's right to sustain the action was objected to, because no crime was alleged against him for which he could be punished here. This objection was properly overruled. Although the plaintiff might not be amenable to our law, had the charge against him been true, yet, from anything that appears, he might have been demanded as a fugitive from justice, and have been punished, if guilty, in the state of Pennsylvania. But -the right of the plaintiff to sustain the action does not depend upon the question whether he was liable to be prosecuted and punished for the crime charged against him; as, when the statute of limitations has run against the criminal prosecu- 308 LAW OF TORTS. tion, it is still slander to charge the party with the offense ; and the party making the charge would have a right to justify, and show the truth of his allegation, notwithstanding the criminal prosecution might be barred. The motion for a new trial must accordingly be denied. Motion denied. (So held also in Klumph v. Dunn, 66 Pa. 141, 5 Am. Rep. 355.) (2 Moody & R. 119.) FOWLER v. DOWDNEY. (Court of Queen's Bench. March 2, 1838.) SliANDEB WORDS IMPUTINO CRIME FOR WHICH PUNISHMENT HAS BEEN SUF- FERED. To say falsely that a person is a "returned convict" is actionable per se ; the obloquy remaining, even though the words import that the punishment has been suffered. At nisi prius, before DENMAN, C. J. Action for slander for saying of plaintiff, "He is a returned con- vict." The declaration averred, as special damage, the loss of a customer to whom the words were spoken, plaintiff being a trades- man ; but the proof of the special damage failed. DENMAN, C. J. My opinion is that these words are actionable, because they impute to the plaintiff that he has been guilty of some offense for which parties are liable to be transported. That is, I think, the plain meaning of the words, as set out in the declaration. They import, to be sure, that the punishment has been suffered, but still the obloquy remains. Verdict for plaintiff ; damages, one shilling. (To the same effect are Smith v. Stewart, 5 Pa. 372; Krebs v. Oliver, 12 Gray, 242.) (2 Wend. 534.) GORHAM v. IVES. (Supreme Court of New York. May Term, 1829.) SLANDER WORDS IMPUTING CRIME BY INTERROGATION. An action may be maintained for speaking words imputing crime, al- though not in direct and positive terms, but by way of interrogation only, if, according to the natural and fair construction of the language used, in connection with the circumstances, the hearers had a right to believe that defendant intended to charge plaintiff with the commission of a criminal offense. SLANDER AND LIBEL. 309 Demurrer to declaration. Action for slander. The declaration alleged that defendant had become possessed of a promissory note dated August 27, 1825, made by William Erwin and James Erwin, payable to William McMurray or order, for $51.84, payable four months after date, "with interest from date," (the words quoted being interlined in the note,) which had been indorsed to plaintiff, who had collected the amount. The second count of the declaration alleged that defendant, in a discourse with one Parmelee and others, after showing the note, spoke these words : "The note is in Edward A. Cook's handwriting, and the words at the end of the note, 'with interest from date,' are in a dif- ferent handwriting. The note has only passed through the hands of Cook, McMurray, and Gorham, and these words must have been put there by one of them. The signers of the note say the words were put there since they signed, and I have shown the note to a number of persons, Reid and others ;" and then, addressing Parme- lee, proceeded: "Do not you think it is Gorham's handwriting?" and that, Parmelee having asked defendant to explain himself and what he meant, defendant replied, "Time will show." The third count of the declaration alleged that defendant, in a certain other discourse, after showing the note to sundry persons, spoke these words, "This note has been altered after it was signed ;" and, on be- ing asked by one of the by-standers if he knew by whom it had been done, he replied, "I do not, but I have shown it to some persons, and they said that the addition at the end of the note was in Shubael Gorham's handwriting;" and added that "one of the signers would swear that the note that he signed was not written payable with in- terest, for he refused to sign such an one ;" and, on being asked by one of the persons present "if Gorham would commit forgery," de- fendant, holding out the note, replied, "You can see for yourselves." Defendant demurred to the second and third counts of the declara- tion. SUTHERLAND, J. I am of opinion that both counts are good. The words used by the defendant necessarily imply, when taken in connection with the colloquium, that the words "with interest from date" had been forged and added to the note after its signature ; and the inquiry by the defendant in the second count of Parmelee, "if he did not think the addition was in Gorham's handwriting," and hi= declaration in the third count that he had showed it to some persons who said "the addition was in Shubael Gorham's handwriting," leave no reasonable doubt that it was the intention of the defendant to impress upon the minds of the persons whom he addressed the be- lief that the forgery had been committed by Gorham. The charge need not be couched in direct and positive terms. The imputation of crime may be as effectually made by way of interrogation as by an 310 LAW OF TORTS. affirmative allegation. The only inquiry is whether, according to the natural and fair construction of the language used by the de- fendant, (taken in connection with the preliminary circumstances stated by way of colloquium,) the persons in whose presence and hearing the language was used had a right to believe that it was the intention of the defendant to charge the plaintiff with the commis- sion of a criminal offense. Such was obviously the intention of the defendant in this case. Judgment for plaintiff on demurrer, with leave to defendant to plead on payment of costs. (So held also in Hotchkiss v. Oliphant, 2 Hill, 510. So the charge may be made by ironical words [Boydell v. Jones, 4 M. & W. 446], or by other indirect modes of speech which are effectual to convey the defamatory meaning [Comm. v. Kneeland, 20 Pick. 20G; Sanderson v. Caldwell, 45 N. Y. 398, 6 Am. Rep. 105; Ruble v. Bunting (Ind. App.) 68 N. E. 1041].) (1 Johns. Cas. 279.) VAN RENSSELAER v. DOLE. (Supreme Court of New York. April Term, 1800.) SLANDER WORDS IMPUTING CRIME ON FACTS NOT CONSTITUTING THE OFFENSE. To say that certain persons are "highwaymen, robbers, and murderers," the words being spoken and understood with reference to transactions which were known not to amount to the charge the words import, is not actionable. Motion for new trial. Action for slander. The declaration charged defendant with speak- ing of plaintiff and others the following words : "John Keating is as damned a rascal as ever lived, and all who joined his party and the procession on the 4th day of July [meaning the said John Van Rensselaer and the party and procession in which said John Keating acted as captain on said 4th day of July] are a set of black-hearted highwaymen, robbers, and murderers." In other counts, the words were differently charged, with some additional expressions, but in substance the same. Defendant pleaded the general issue. At the trial the words charged were proved to have been spoken by defend- ant. On behalf of defendant it was shown that, on the day preceding the speaking of the words, there had been a public procession to a church in the place where the parties resided ; that Keating com- manded an artillery company, which formed part of the procession, attended with music; that one Bird claimed one of the instruments of music, a bass-viol, and went to the church to demand or take it, but it was refused and retained by force; that upon this an affray SLANDER AND LIBEL. 311 ensued, in which Bird received a dangerous wound. There was evi- dence that the conversation in which these words were spoken was understood by the witnesses to relate to the transactions of the pre- ceding day, and that the terms "highwaymen, robbers, and murder- ers" were used in reference to the treatment of Bird in withholding the bass-viol, and in wounding him. The judge was of opinion that the words being spoken in relation to the transactions of the preced- ing day, and so understood, were thereby explained, and on that ac- count not actionable. The jury found a verdict for plaintiff for $50 damages and 6 cents costs. Defendant moved for a new trial, on the ground that the verdict was contrary to law and the evidence. PER CURIAM. We agree in opinion with the judge at the trial. The words spoken by the defendant were clearly understood to ap- ply to the transactions of the preceding day, and these were known not to amount to the charge which the words would otherwise im- port. 1 Let the verdict, therefore, be set aside ; and, there being no question upon the evidence, the finding of the jury must be consid- i NOTE BY EDITOB OF SECOND EDITION OF JOHNSON'S CASES. In Cristie v. Cowell, Peake, 4, the words proved were, "He is a thief, for he has stolen my beer." It appeared in evidence that the defendant was a brewer, and that the plaintiff had lived with him as a servant; in the course of which service he had sold beer to different customers of the defendant, and received money for the same which he had not duly accounted for. Lord Kenyon directed the jury to consider whether these words were spoken in reference to the money received and unaccounted for by the plaintiff, or whether the defendant meant that the plaintiff had actually stolen beer; for, if they referred to the money not accounted for, that, being a mere breach of contract, so far explained the word "thief" as to make it not actionable. Thus, if a man says to another, "You are a thief, for you stole my tree," it is not actionable, (Minors v. Lee- ford, Cro. Jac. 114; Bull. N. P. p. 5;) for it shows he had a trespass, and not a felony, in his contemplation. Words may import a charge of felony, yet, if it appear from the subject-matter that the fact charged could not have hap- pened, an action cannot be maintained. Jackson v. Adams, 2 Bing. N. C. 402, 2 Scott, 599 ; Snag v. Gee, 4 Coke, 16a ; Steph. N. P. 2252, 2253. "Words ap- parently actionable may be explained by circumstances to have been intended and understood in an innocent sense. Thus, though the defendant should say, 'Thou art a murderer,' the words would not be actionable, if the defendant could make it appear that he was conversing with the plaintiff concerning un- lawful hunting, when the plaintiff confessed that he killed several hares with certain engines, upon which the defendant said, 'Thou art a murderer;' mean- ing a murderer of hares so killed. Lord Cromwell's Case, 4 Coke, 13. But the words, 'I think the business ought to have the most rigid inquiry, for he murdered his first wife, that is, he administered improperly medicines to her for a certain complaint, which was the cause of her death,' were held to be actionable, as importing, at least, a charge of manslaughter; and, though the words were doubtful, the doubt would be cured by the finding of a jury that they were meant in that sense. Ford v. Primrose, 5 DowL & R. 288." 1 Star- kie, Sland. & L. (Wend. Ed.) 99 et seq. 312 LAW OF TORTS. ered as contrary to law, and it is therefore ordered that the costs abide the event of the suit. Rule granted. (The rule is that the language employed Is to be given Its ordinary Import and meaning, unless an explanation accompanies the words, which gives them a different meaning, or unless all the hearers understand that they refer to a transaction which cannot constitute the crime which the words imply. Hayes v. Ball, 72 N. Y. 418. "To charge one with having murdered a person who is alive to the knowledge of all cannot be understood to charge the crime of mur- der"; but the rule is otherwise if any one of the hearers does not know that such person is still alive. Hamlin v. Fautl (Wis.) 95 N. W. 955; Egan v. Sem- rad, 113 Wis. 84, 88 N. W. 906; Kidd v. Ward, 91 Iowa, 371, 59 N. W. 279.) 2. Charge of certain contagious diseases. (7 Gray, 181.) GOLDERMAN v. STEARNS et ux. (Supreme Judicial Court of Massachusetts. Oct Term, 1856.) L SLANDEB WORDS IMPUTING CONTAGIOUS DISEASE. To say of a man that he has the venereal disease Is actionable, as tend- inf to exclude him from society; but if, when the charge was made, he had such disease, the truth of the charge is a justification. 2. SAME. Defendant asserted that plaintiff had the venereal disease, and, having married, communicated it to his wife, and that he was "the guilty one." Held, that no action could be maintained therefor if plaintiff in fact had such disease; and that evidence that it was communicated to him by his wife, whom he had married not knowing that she had the disease, was immaterial. 3. SAME IMPLIED CHARGE OF CRIME. Such words are not actionable as Imputing to plaintiff a punishable offense: they do not necessarily import the commission of adultery or for- nication. On exceptions. Action by Caspar Golderman against Charles Stearns and wife for slander. The declaration alleged that the female defendant accused plaintiff of "having had a loathsome venereal disease, and with that disease upon him having contracted marriage, and given the disease to his wife, by words spoken of the plaintiff, who was then and there lately married to his wife, substantially as follows : 'Golderman has the venereal disease. It is an old affair, and being married has brought it on again. He is the guilty one. He has given it to his wife.' " At the trial plaintiff introduced evidence tending to prove the words and colloquium set forth, and rested his case. Defendants then introduced evidence that, immediately after his marriage, plain- tiff had such disease, and claimed that this made out a justification. BLANDER AND LIBEL. 313 Plaintiff then offered to prove that, being a widower, and the father of adult children, he married a woman who had the disease, of which fact he was then ignorant, and, immediately after the marriage, took the disease from his wife, and thereupon sent her away from his house, and had not lived with her since. The judge ruled that if the jury were satisfied that plaintiff, at the time of the speaking of the words set forth in the declaration, had the disease in fact, it would be a sufficient justification, and the evidence offered by plaintiff was immaterial. A verdict was taken for defendants. Plaintiff alleged exceptions. METCALF, J. The charge against the plaintiff of his having the venereal disease is held to be actionable for the same reason that a charge of his having the leprosy or the plague would be; not be- cause the charge imputes any legal or moral offense, but solely be- cause it tends to exclude him from society as a person having a dis- gusting and contagious disease. Hence it is that to charge one with having had the disease is not actionable; such charge not tending to exclude him from society as a person with whom it is unsafe to associate. March, Sland. (Ed. 1674,) 77, 78 ; Crittal v. Homer, Hob. 219; Bloodworth v. Gray, 8 Scott, N. R. n; Carslake v. Mapledo- ram, 2 Term R. 473 ; 3 Bl. Comm. 123, note by Christian ; 2 Dane, Abr. 568. The jury having found that the plaintiff, when the charge against him was made, had the venereal disease, there remains no ground on which this action can be maintained; for the truth of the charge is a justification. Doubtless such a charge as the plaintiff complains of may be accompanied with words that necessarily impute adultery or fornication, either of which is an offense punishable by the laws of this commonwealth. In such a case the charge would be action- able. But, in the present case, the words which were added to the charge of the plaintiff's having the disease did not impute any pun- ishable offense. They only asserted that the plaintiff, while a wid- ower, was diseased, and, after his marriage to his present wife, com- municated the disease to her. The allegation that he was "the guilty one" means that the disease was communicated by him to her, and not by her to him. It does not import that he contracted the disease guiltily; that is, by committing adultery or fornication. Nor does the plaintiff's declaration aver that any punishable offense is imputed to him by the words spoken. Judgment on the verdict. (See also Williams v. Holdredge, 22 Barb. 396; Hewit v. Mason, 24 How. Prac. 366 ; Kaucher v. Blinn, 29 Ohio St 62, 23 Am. Rep. 727.) 314 LAW OF TORTS. 3. Charge affecting a man in his office, profession, trade, employment, etc. (7 Wend. 204) FORWARD v. ADAMS (in part). (Supreme Court of New York. May, 1831.) 1. SLANDEB WORDS AFFECTING PLAINTIFF IN His OFFICE OB VOCATION. Words which are not actionable in themselves, but could be so only In consequence of the special character of the person of whom they are spok- en, are not actionable when spoken after such person has ceased to sus- tain that special character; the ground of action is that the party is dis- graced or injured in his profession or trade, or exposed to the hazard of losing his office, in consequence of the slanderous words, not that his gen- eral reputation is affected by them. 2. SAME CHARGE AFFECTING PUBLIC OFFICER AFTER TERMINATION OF His OFFICE. To say, of a person formerly appointed to negotiate a treaty with In- dians, that he bribed them to sign the treaty, not being actionable except as affecting him in such office, is not actionable where the office had ex- pired before the words were spoken. Demurrer to declaration. Action for slander. The declaration set forth by way of induce- ment that, on May 23, 1826, plaintiff was appointed by the president of the United States a commissioner on the part and behalf of the United States, as the general protector of Indian tribes, to attend a treaty to be held between the proprietors of the pre-emption right to certain lands held by Indians in the state of New York, and those Indians, under the sanction of the government of the United States, for the extinguishment of the right of the Indians to the occupancy of such lands, with instructions to exercise a sound discretion in the business, and, if satisfied of the fairness of the propositions of the proprietors, to afford them such co-operation in effecting the object of the treaty as he might judge proper ; and that, having accepted the appointment, plaintiff, on August 31, 1826, attended a treaty at Buffalo, and, being satisfied of the fairness of the propositions of the proprietors, he sanctioned, approved, and recommended a treaty there made between the Indians and proprietors for the extinguish- ment of the right of the Indians to the occupancy of the lands, the subject of the treaty; and it charged that defendant, in a discourse had on June I, 1828, of and concerning the plaintiff, and of and con- cerning his conduct as such commissioner, and in relation to the treaty which had been concluded, uttered the following words, al- leged to be false, scandalous, and defamatory, viz. : "He bribed some of the Indians to sign the treaty. He hired some of the In- dians to sign the treaty. He was guilty of hiring or bribing some of the Indians to sign the treaty. He was dishonest with the In- SLAISTDER AND LIBEL. 315 dians." Innuendo, that plaintiff had misdemeaned himself in his ap- pointment, had perverted his office, and corruptly exercised his in- fluence with the Indians by means of bribery and corruption. De- fendant demurred to the declaration. SUTHERLAND, J. The demurrer is well taken. It is conceded that the words do not impute an indictable offense. If true, the plaintiff would not be subjected by them to a criminal prosecution. The offense, if any, was an offense against the United States, and it is not shown that they have any statute applicable to the case ; and the better opinion seems to be that the court of the United States have no general common-law criminal jurisdiction. U. S. v. Hud- son, 7 Cranch, 32, 3 L. Ed. 259 ; U. S. v. Worrall, 2 Dall. 384, Fed. Cas. No. 16,766, 1 L. Ed. 426 ; opinion of Chief Justice Marshall in Burr's Trial; U. S. v. Coolidge, I Gall. 488, Fed. Cas. No. 14,857, Id., I Wheat. 415, 4 L. Ed. 124; Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, by Mr. Du Ponceau; I Kent, Comm. 311, 320; Serg. Const. Law, 262, 265. The action is put distinctly on the ground that the words were spoken of the plaintiff as a public officer, and tended to his injury and disparagement in that character^ The fatal objection to the ac- tion on this ground is that it appears on the face of the declaration that the plaintiff was not in office when the words were spoken, but that the office itself, being a special trust, and temporary in its na- ture, had expired about two years before the uttering of the slander- ous words. Where an action is brought for words (not actionable in themselves) spoken of a person in a particular calling or profes- sion or employment, it must appear that he followed such profession or employment when the words were spoken. In Gibs v. Price, Style, 231, the judgment was arrested because it was not averred that the plaintiff was a barrister at the time of the bringing of his action, the words having been spoken of him in his professional character. And in Gary's Case, Poph. 207, the words were spoken of the plaintiff as a counselor at law ; and it was said by Jones, J., that it was not sufficient for the plaintiff to aver that he was eruditus in lege, but he ought to say that he was homo conciliarius. He must show that he sustained the special character in relation to which the words were uttered. In King v. Lake, 2 Vent. 28, (which was also a case of words spoken of the plaintiff as a lawyer,) it was expressly stated that the plaintiff was bred up to the law, and practiced it, and had many persons for his clients, and thereby got money and maintained his family. Kerle v. Osgood, I Vent. 50. Upon the strength of these and other cases, it is laid down in treatises upon this subject that, where an action is brought for words spoken of a barrister or physician, it must appear that he practiced as such at the time the words were spoken; for otherwise the words could not have af- 316 LAW OF TORTS. fected him professionally. Starkie, SlancJ. & L. 105; Bac. Abr. tit. "Slander," 212-215. So, if an action be brought for publishing words of a tradesman, concerning his trade, it must be averred that at the time of publishing them he was in trade; for, if he were not at that time in trade, his credit could not be hurt by the words. Col- lins v. Malin, Cro. Car. 382; Jordan v. Lyster, Cro. Eliz. 273; Tut- hill v. Milton, Cro. Jac. 222. These cases all admit this principle, for, although the court in some of them refused to arrest the judg- ment, it was upon the ground that, after verdict, they would intend, from the general averment, (that the plaintiff had, for a long time preceding the day on which the words were laid, exercised the trade,) that he continued to exercise it on the day the words were published. The ground of action in these cases is that the party is disgraced or injured in his profession or trade, or exposed to the hazard of losing his office in consequence of the slanderous words, not that his general reputation and standing in the community are affected by them. It will be recollected that the words spoken, in this class of cases, are not actionable of themselves, but that they become so in consequence of the special character of the party of whom they are spoken. The fact of his sustaining that special character, therefore, lies at the very foundation of the action. On this ground, therefore, the declaration is bad. Judgment for defendant. (To the same effect are Allen v. Hillman, 12 Pick. 101; Harris T. Burley, 8 N. H. 216; Dicken v. Shepherd, 22 Md. 399.) (1 Sandf. 155.) IRELAND v. McGARVISH. (Superior Court of New York City, General Term. December. 1847.) SLANDER WORDS AFFECTING PLAINTIFF IN His BUSINESS. To say of the keeper of a house of public entertainment, "He is a dan- gerous man;" "He is a desperate man;" "I am afraid to go to his house alone;" "I am afraid of my life," is not actionable, as affecting his busi- ness, since the words do not relate to his business character, or charge any delinquency in his business. Motion to set aside nonsuit and for a new trial. Action of slander. The declaration alleged that plaintiff was the proprietor of a certain garden and house of refreshment and enter- tainment, by keeping which he obtained large gains and profits ; and that defendant spoke and uttered to one Taggart and to others the following defamatory words of and concerning the plaintiff, and of and concerning his trade and business : "I [the said defendant mean- ing] am afraid to go to his [the said plaintiff meaning] house alone, [referring to the said plaintiff, and thereby and then and there mean- SLANDER AND LIBEL. 317 ing that the said plaintiff was a dangerous man, whom the said de- fendant had good cause to be afraid of, and that the said defendant, for the preservation of his life, had to have some one to protect him.]" "I [the said defendant meaning] am afraid of my life, [there- by and then and there meaning that the said plaintiff was seeking his, the said defendant's, life.]" "He [the said plaintiff meaning] is a dangerous man, [thereby and then and there meaning that the said plaintiff was a dangerous and disreputable man, whom he, the said Taggart, and others should shun as unworthy of his esteem, and that the said plaintiff was a man whom it would be dangerous to trust.]" "He [the said plaintiff meaning] is a desperate man, [there- by and then meaning as last aforesaid.]" "Look out, for it is more than likely he [the said plaintiff meaning] will take advantage of you, [thereby and then and there meaning that the said plaintiff was a dishonest and disreputable person, who would take advantage of those who should confide in him, or repose confidence in him, the said plaintiff, and that the said plaintiff was one who should be treat- ed and looked upon as a disreputable man, likely, if an opportunity presented, to cheat and defraud.]" "He [the said plaintiff meaning] is a thief, [thereby and then and there meaning that the said plain- tiff had been guilty of a crime of stealing, which rendered him amena- ble to the laws of the state, as and for a felony.]" At the trial, in October, 1846, a witness for plaintiff, one Robert Sears, testified that plaintiff for six years past owned and kept the Washington House and gardens at Hoboken; that in the summer of 1845, about the month of June, defendant called at a public house in Elm street, in the city of New York, where witness was employed as a bar-keeper, and commenced a conversation about plaintiff. He said he had left plaintiff's employment. He said : "He is a dangerous man." "He is a desperate man." "I am afraid to go to his house alone." "I am afraid of my life." Witness stated that, previous to this, he was in the habit of going to plaintiff's house at Hoboken, with his friends, for refreshments and entertainment, and had been in such habit for about four years. After this conversation with defendant the wit- ness did not go to plaintiff's for some time, and made up his mind that he would not go again until he had seen plaintiff; and it was not until he had called on the witness, and satisfied him of the falsity of the assertions made by defendant, that the witness renewed his visits. Upon this testimony plaintiff rested. A motion was made for a nonsuit, which was granted. Plaintiff moved to set aside the nonsuit. VANDERPOEL, J. It cannot be pretended that the words proved to have been spoken by the defendant are actionable per se ; but it is contended that they convey an imputation affecting the busi- ness of the plaintiff, and are therefore actionable. It is a well-establish- 318 LAW OF TORTS. ed rule that words are actionable which directly tend to the prejudice of any one, in his office, trade, business, or means of getting a livelihood. Onslow v. Home, 3 Wils. 186; Starkie, Sland. & L. 180. The words, to be actionable, because they injure one in his business, must have a direct tendency to produce this effect. They must relate to his business character. In Doyley v. Roberts, 3 Bing. N. C. 835, it was said of an attorney, "He has defrauded his creditors, and has been horsewhipped off the course at Doncaster." The jury found that the words tended to injure the plaintiff morally and professionally, but they also found they were not spoken of him in his business of an attorney, and for that reason the court ordered a nonsuit. Tindal, C. J., said the words, though spoken of an attorney, do not touch him in his profession, any more than they would touch a person in any other trade or profession. So here, though the words were spoken of a man who happened to keep a public garden and house of entertainment, they did not touch or affect him more than they would have touched or affected a person in any oth- er business or profession. In Southam v. Allen, 3 Salk. 326, T. Raym. 231, the plaintiff declared that he was a keeper of a livery stable, and of the Bell Savage Inn, and that the defendant had other stables there, and that W. R., coming thither with a wagon, inquired of the defendant which was the Bell Savage Inn, who replied, "This is Bell Savage Inn ; deal not with Southam, [the plaintiff,] for he is broke, and there is nei- ther entertainment for man or horse." After verdict for the plaintiff, the judgment was affirmed. This was a charge that came directly home to the business of the plaintiff. But to say of a man, "I am afraid to go to his house alone;" "He is a desperate man;" "He is a dangerous man ;" "I am afraid of my life," is no more calculated directly to af- fect his business as keeper of a house of entertainment than to preju- dice his business as a merchant, a baker, or a blacksmith. All general imputations upon the morality or integrity of men, if believed by those who hear them, may possibly prejudice the business interests of those of whom they are spoken ; but the law has not yet been so prolific of slander suits as to say that such general ebullitions, charging no crime, and pointing to no profession or means of livelihood, shall form the legitimate foundation of an action for defamation. Words, to be ac- tionable, as affecting the plaintiff's business, must charge some delin- quency in connection with such business. ' In the late case of Van Tassel v. Capron, I Denio, 250, 43 Am. Dec. 667, it was expressly held that, where words are actionable only on account of the official or pro- fessional character of the plaintiff, it is not enough that they tend to in- jure him in his office or calling, but they must relate to his official or business character, and impute misconduct to him in that character. As the words here are not actionable in themselves, and do not relate to the business of the plaintiff, the nonsuit was properly granted. (See Dauncey v. Holloway L1901] 2 K. B. 441; Morasse v. Brochu, 151 Mass. 567, 575, 25 N. B. 74, 8 L. R. A. 524, 21 Am. St. Rep. 474; Kinney v. Nash, BLANDER AND LIBEL. 319 3 N. Y. 177; Lovejoy v. Whitcomb, 174 Mass. 586, 55 N. E. 322; Sanderson v. Caldwell, 45 N. Y. 398, 6 Am. Rep. 105. A charge against an innkeeper that "he kept no accommodations, and a person could not get a decent meal or de- cent bed if he tried," has been held actionable per se. Trimmer Y. Hiscock, 27 Hun, 364.) (18 Barb. 425.) SECOR v. HARRIS (in part). (Supreme Court of New York, General Term. September 12, 1854.) 1. SLANDER WORDS IMPUTING WANT OF PROFESSIONAL SKILL. To charge a physician with gross ignorance and unskillfulness in his profession, though in but a single act, is actionable per se. In such a case the law presumes damage from the very nature of the charge. 2. SAME. To say of a physician in regard to his treatment of children not over three years of age, "He killed my children. He gave them tea-spoonful doses of calomel, and it killed them. They died the same day," is action- able. Motion for new trial. Argued before CRIPPEN, SHANKLAND, and MASON, JJ. MASON, J. This is an action for slander. Upon trial of the cause, the plaintiff proved the following words, which were also alleged in the complaint: "Dr. Secor killed my children." "He gave them tea- spoonful closes of calomel, and they died. Dr. Secor gave them tea- spoonful doses of calomel, and it killed them. They did not live long after they took it. They died right off, the same day." The plaintiff was proved to be a practicing physician, and the evidence shows that he had practiced in the defendant's family, and had prescribed for the defendant's children, and that the words were spoken of him in his char- acter of a physician. The plaintiff claimed that the words were ac- tionable, and that he was entitled to have this branch of the case, upon the words, submitted to the jury. The judge at the circuit held that the words were not actionable, and took them from the consideration of the jury. These words spoken of the plaintiff as a physician are actionable per se, whatever may be said upon the question whether they impute a criminal offense. They do not impute a criminal offense, unless there is evidence, arising from the quantity of calomel which the defendant alleged that the plaintiff gave these children, from which a jury would be justified in finding an intention to kill them. One of them was three years of age, and the other one year and a half. If the natural result, which should reasonably be expected from feeding children of tender years full tea spoon doses of calomel, would be certain death, then it is not a forced construction of the words to say that the defendant intended to charge the plaintiff with an intention to kill these children in giving 320 LAW OP TORTS. them such doses. It is not necessary, however, to place the case upon this ground ; for it is certainly slanderous to say of a physician that he killed these children of such tender years, by giving them tea-spoonful doses of calomel. The charge, to say the least, imports such a total ig- norance of his profession as to destroy all confidence in the physician. It is a disgrace to a physician to have it believed that he is so ignorant of this most familiar and common medicine as to give such quantities thereof to such young children. The law is well settled that words published of a physician, falsely 'imputing to him general ignorance or want of skill in his profession, are actionable, in themselves, on the ground of presumed damage. Starkie, Sland. & L. 100, no, 115, 120, 122; Martyn v. Burlings, Cro. Eliz. 589; Bac. Abr. tit. "Slander," B; Watson v. Vanderlash, Het. 69; Tutty v. Alewin, n Mod. 221 ; Smith v. Taylor, I Bos. & P. (N. R.) 196 ; Sumner v. Utley, 7 Conn. 257. I am aware that it was held in the case of Poe v. Mondford, Cro. Eliz. 620, that it is not actionable to say of a physician, "He hath killed a patient with physic :" and that, upon the strength of the authority of that case, it was decided in this court in Foot v. Brown, 8 Johns. 64, that it was not actionable to say of an attorney or counselor, when speaking of a particular suit, "He knows nothing about the suit; he will lead you on until he has undone you." These cases are not sound. The case of Poe v. Mondford is repudiated in Bacon's Abridgement as authority, and cases are referred to as holding a contrary doctrine. Volume 9, pp. 49, 50. The cases of Poe v. Mondford and of Foot v. Brown were re- viewed by the supreme court of Connecticut in the case of Sumner v. Utley, 7 Conn. 257, with most distinguished ability, and the doctrine of those cases repudiated. In the latter case it is distinctly held that words are actionable in themselves which charge a physician with ignorance or want of skill in his treatment of a particular patient, if the charge be such as imports gross ignorance or unskillfulness. To the same ef- fect is the case of Johnson v. Robertson, 8 Port. 486, where it was held that the following words, spoken of a physician in regard to his treat- ment of a particular case, "He killed the child by giving it too much cal- omel," are actionable in themselves; and such is the case of Tutty v. Alewin, n Mod. 221, where it was held to be actionable to say of an apothecary that "he killed a patient with physic." See, also, Onslow v. Home, 3 Wils. 186; Bac. Abr. tit. "Slander," B 2, vol. 9, p. 49, (Bouv. Ed.) The cases of Poe v. Mondford and Foot v. Brown have been repudiated by the highest judicial tribunal in two of the American states, while the case of Poe v. Mondford seems to have been repudiated in England ; and I agree with Clinch, J., that the reason upon which the case is decided is not apparent. I do not go the length to say that false- hood may not be spoken of a physician's practice, in a particular case, without subjecting the party to this action. A physician may mistake the symptoms of a patient, or may misjudge as to the nature of his dis- ease, and even as to the powers of medicine, and yet his error may be SLANDER AND LIBEL. 321 of that pardonable kind that will do him no essential prejudice, because it is rather a proof of human imperfection that of culpable ignorance or unskillfulness ; and, where charges are made against a physician that fall within this class of cases, they are not actionable without proof of special damages. 7 Conn. 257. It is equally true that a single act of a physician may evince gross ignorance, and such a total want of skill as will not fail to injure his reputation, and deprive him of general con- fidence. When such a charge is made against a physician, the words are actionable per se. Id. The rule may be laid down as a general one that, when the charge implies gross ignorance and unskillfulness in his profession, the words are actionable per se. This is upon the ground that the law presumes damage to result from the very nature of the charge. The law in such a case lays aside its usual strictness ; for when the presumption of damage is violent, and the difficulty of proving it is considerable, the law supplies the defect, and, by converting presump- tion into proof, secures the character of the sufferer from the misery of delay, and enables him at once to face the calumny in open court. Starkie, Sland. & L. 581. It was well said by the learned Chief Justice Hosmer in Sumner v. Utley, 7 Conn. 257, that, "as a general prin- ciple, it can never be admitted that the practice of a physician or sur- geon in a particular case may be calumniated with impunity, unless special damage is shown. By confining the slander to particulars, a man may thus be ruined in detail. A calumniator might follow the track of the plaintiff, and begin by falsely ascribing to a physician the killing of three persons by mismanagement, and then the mistaking an artery for a vein, and thus might proceed to misrepresent every single case of his practice, until his reputation should be blasted beyond rem- edy. Instead of murdering character by one stroke, the victim Would be cut successively in pieces, and the only difference would consist in the manner of effecting the same result." It is true, as was said by the learned Chief Justice Hosmer in that case, the redress proposed, on the proof of special damage, is inadequate to such a case. Much time may elapse before the fact of damage admits of any evidence, and then the proof will always fall short of the mischief. In the meantime the reputation of the calumniated person languishes and dies, and hence, as we have before said, the presumption of damage being violent, and the difficulty of proving it considerable, the law supplies the defect by con- verting presumption of damage into proof, (Starkie, Sland. & L. 581 ;) in other words, the law presumes that damages result from the speak- ing of the words. In the case under consideration, the words proved impute to the plaintiff such gross ignorance of his profession, if nothing more, as would be calculated to destroy his character wherever the charge should be credited. It would be calculated to make all men speak out and say, as did the witness Richard Morris, "that it was outrageous, and the plaintiff ought not to be permitted to practice." The law will CHASE (2o ED.) 21 322 LAW OF TORTS. therefore presume damages to result from the speaking of the words, and consequently hold the words actionable in themselves. The judge at the circuit erred in taking this branch of the case from the consid- eration of the jury, and a new trial must be granted, costs to abide the event of the action. New trial granted. CRIPPEN, J., concurred. SHANKLAND, J., dissented. (See also Cruikshank v. Gordon, 118 N. Y. 178, 23 N. B. 457; Mattice v. Wil- cox, 147 N. T. 624, 42 N. E. 270 [charge against attorney] ; De Pew v. Robin- son, 95 Ind. 109; Fitzgerald v. Redfleld, 51 Barb. 484 [charge against a mason]; Lumby v. Allday, 1 Cromp. & J. 301. In Gauvreau v. Superior Pub. Co., 62 Wis. 403, 22 N. W. 726, the rule is stated as follows, as regards physicians: "A physician is only required to possess the ordinary knowledge and skill of his profession. He may possess these, and much more, and yet be unable to ac- curately diagnose every disease presented, or always foretell the exact power and effect of medicine or treatment prescribed. So long, therefore, as the words employed in stating the conduct of the physician in a particular case only impute to him such ignorance or want of skill as is compatible with the ordinary or general knowledge and skill in the same profession, they are not actionable per se. But where the words so employed in detailing the action of the physician in a particular case, taken together, are such as fairly impute to him gross ignorance and unskillfulness in such matters as men of ordinary knowledge and skill in the profession should know and do, then they are ac- tionable per ae." Cf. Crane v. Darling, 71 Vt. 295, 44 Atl. 359.) B. SLANDER WITH SPECIAL DAMAGE. (17 N. Y. 54, 72 Am. Dec. 420.) TERWILLIGER v. WANDS (in part). (Court of Appeals of New York. March, 1858.) 1. SLANDER SPECIAL DAMAGE REPETITION BY OTHER PERSONS. Damages caused by the repetition of defamatory words by the person to whom they were spoken, without proper occasion for repeating them, are not the natural and legal consequence of the first speaking of them, and the person so repeating them is alone liable for such damages. 2. SAME. Illness and inability to labor, caused by the effect on one's mind of de- famatory words reported to him to have been spoken of him, are not spe- cial damages for which he can maintain an action of slander. Only in- juries affecting the reputation are the subject of the action. The words must in fact disparage the character, and this disparagement must be evidenced by some positive loss arising therefrom, directly and legitimate- ly, as a fair and natural result SLANDER AND LIBEL. 323 Appeal from Supreme Court, General Term, Fifth District Action for slander. The complaint alleged the speaking by defend- ant of words charging plaintiff with lewd and unchaste conduct, and also alleged special damage therefrom. At the trial, several witnesses for plaintiff, among them La Fayette Wands and John S. Neiper, testi- fied to the speaking of such words by defendant, charging plaintiff with continued unlawful intercourse with a Mrs. Fuller at her house. The only evidence that what defendant said was communicated to plaintiff was that given by the witness Neiper, who, having testified to the speaking of such words by defendant to him in the beginning of May, 1852, further testified that he had married the sister of Mrs. Fuller, and that he was an intimate friend of plaintiff; that in May, 1852, he communicated to plaintiff what defendant had said to him, and in June of the same year, while hoeing corn with plaintiff, talked over what La Fayette Wands had said defendant had told him ; that the story of what La Fayette Wands had said defendant told him was all over the country; that the witness told plaintiff what the report was, that he went to Mrs. Fuller's for the purpose of having connection with her; that plaintiff felt bad, threw down his hoe, and left the field ; that plain- tiff had always worked with the witness before that, and he had been in middling good health ; that plaintiff after that appeared melancholy, and looked bad, pale, and sick ; his appetite was poor, and he had to hire more help. Nancy Harpburn, a daughter of the plaintiff, testified that she heard the report that La Fayette Wands had circulated the ist of May, 1852; that she remembered, when Neiper hoed corn there, of plaintiff's getting worse, going into the house, and to bed ; that she re- marked a great difference in his appearance, not resting at night ; did not discover any other difference; he did not pursue his work as for- merly; this debility commenced in June; heard of Wands' report in May or June ; first heard of its coming through La Fayette Wands, in June, about the middle of hoeing time, and then remarked a difference in his appearance ; he grew worse all through the summer. On cross- examination she testified that she heard some slight reports through the winter that he was very intimate, and more than was proper, with Mrs. Fuller, and had frequent conversations with her father about it; that she knew that Mr. Fuller made such charges during the v/inter and summer, and that she talked with her father about what Fuller had said ; that a lady told her in May it was reported Fuller had caught her fa- ther there, and she told her father in June ; that Dr. Price prescribed for the plaintiff in June and July. Dr. Price testified that he called to see plaintiff as a patient in May or June, 1852 ; that plaintiff was de- bilitated with what appeared to be mental difficulty; that he judged, from what plaintiff's friends said, that plaintiff's health was impaired so that he could not labor on his farm ; that plaintiff was out of health through the summer. George Terwilliger, a son of plaintiff, testified that he saw plaintiff frequently along in May and June, 1852 ; that his- 324 LAW OF TORT&. health in the winter was good, and began to decline about the 1st of May, and became worse after that, and during the summer he was en- tirely prostrated; that he became worse, and unable to attend to his business, and neglected it ; his crops were neglected and fences down ; his corn suffered for want of hoeing; that the plaintiff appeared like a person worn down by sickness in May, June, and July ; he was a farm- er, and his business required his personal attention every day. Plaintiff having rested, defendant moved for a nonsuit on the grounds: (i) That the words were not spoken by defendant to the plaintiff, nor authorized by him to be communicated to plaintiff; (2) that there was no evidence that the damages, if any, proved, were occa- sioned by the speaking of the words by the defendant. The court grant- ed the motion, and judgment was entered against plaintiff, and was af- firmed on appeal to the general term. Plaintiff appealed from the judg- ment of affirmance by the general term. STRONG, J. The words spoken by the defendant not being ac- tionable of themselves, it was necessary, in order to maintain the action, to prove that they occasioned special damages to the plaintiff. The special damages must have been the natural, immediate, and legal con- sequence of the words. Starkie, Sland. & L. (Wend. 2d Ed.) 203; 2 Starkie, Sland. & L. 62, 64; Beach v. Ranney, 2 Hill, 309; Grain v. Petrie, 6 Hill, 523, 41 Am. Dec. 765; Kendall v. Stone, 5 N. Y. 14. Where words are spoken to one person, and he repeats them to an- other, in consequence of which the party to whom they are spoken sustains damages, the repetition is, as a general rule, a wrongful act, rendering the person repeating them liable in like manner as if he alone had uttered them. The special damages in such a case are not a nat- ural, legal consequence of the first speaking of the words, but of the wrongful act of repeating them, and would not have occurred but for the repetition, and the party who repeats them is alone liable for the damages. Ward v. Weeks, 7 Bing. 211; Hastings v. Palmer, 20 Wend. 226 ; Keenholts v. Becker, 3 Denio, 346 ; Stevens v. Hartwell, 1 1 Mete. (Mass.) 542. These views dispose of this case as to the right of action in respect to all the words but those spoken to the witness Neiper, as there is no proof as to the circumstances under which they were re- peated. In the absence of evidence of those circumstances, the general rule, that a repetition of slanderous words is wrongful, applies ; hence any damages which resulted from repeating them are a consequence of that wrong, and not a natural, immediate, and legal effect of the original speaking of the words by the defendant. Assuming that illness and inability to labor constitute such spe- cial damages as will support an action, the evidence in this case wholly fails to show that the damages were a consequence of the words spoken by the defendant to Neiper. The proof is that they were mainly the result of the repetition of the words spoken to the wit- SLANDER AND LIBEL. 325 ness Wands, and reports of other persons. It was not until a consider- able time after the plaintiff was informed by Neiper what the de- fendant had said to the latter that he began to be ill, and his illness commenced immediately after the communication to him of what had been said by La Fayette Wands. At that time, the plaintiff had been informed of charges made by Fuller to the same effect, and it is a fair conclusion upon the proof that he then knew what the witness Wands says was a fact, that "the story was all over the country." Under these circumstances, it is impossible to conclude that what the defendant stated to Neiper produced the damages, i Starkie, Sland. & L,. 205 ; Vicars v. Wilcocks, 8 East, I ; Grain v. Petrie, 6 Hill, 522, 41 Am. Dec. But there is another ground upon which the judgment must be af- firmed. The special damages relied upon are not of such a nature as will support the action. The action for slander is given by the law as a remedy for "injuries affecting a man's reputation or good name by ma- licious, scandalous, and slanderous words, tending to his damage and derogation." 3 Bl. Comm. 123 ; Starkie, Sland. & L. Prelim. Obs. 22- 29;- i Starkie, Sland. & L. 17, 18. It is injuries affecting the reputation only which are the subject of the action. In the case of slanderous words actionable per Se, the law, from their natural and immediate tend- ency to produce injury, adjudges them to be injurious, though no special loss or damage can be proved. "But with regard to words that do not apparently and upon the face of them import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened." 3 Bl. Comm. 124. As to what constitutes special damages, Starkie mentions the loss of a marriage ; loss of hospitable gratuitous entertainment; preventing a servant or bailiff from getting a place ; the loss of customers by a tradesman ; and says that, in general, 'whenever a person is prevented by the slander from receiving that which would otherwise be conferred upon him, though gratuitously, it is sufficient, i Starkie, Sland. & L. 195, 202 ; Cooke, Defam. 22-24. I" Olmsted v. Miller, i Wend. 506, it was held that the refusal of civil entertainment at a public house was sufficient special damage. So in Williams v. Hill, 19 Wend. 305, was the fact that the plaintiff was turned away from the house of her uncle, and charged not to return until she had cleared up -her character. So, in Beach v. Ranney, supra, was the circumstance that persons who had been in the habit of doing so, refused longer to provide fuel, clothing, etc. 2 Starkie, Ev. 872, 873. These instances are sufficient to illustrate the kind of special damage that must result from defamatory words not otherwise actionable to make them so; they are damages produced by or through impairing the reputation. It would be highly impolitic to hold all language, wounding the feel- ings, and affecting unfavorably the health and ability to labor, of an- c'her, a ground of action ; for that would be to make the right of action 326 LAW OF TORTS. depend often upon whether the sensibilities of a person spoken of are easily excited or otherwise ; his strength of mind to disregard abusive, insulting remarks concerning him ; and his physical strength and ability to bear them. Words which would make hardly an impression on most persons, and would be thought by them, and should be by all, unde- serving of notice, might be exceedingly painful to some, occasioning sickness and an interruption of ability to attend to their ordinary avo- cations. There must be some limit to liability for words not actionable per se, both as to the words and the kind of damages ; and a clear and wise one has been fixed by the law. The words must be defamatory in their nature; and must in fact disparage the character; and this dis- paragement must be evidenced by some positive loss arising therefrom, directly and legitimately, as a fair and natural result. In the present case the words were defamatory,, and the illness and physical prostration of the plaintiff may be assumed, so far as this part of the case is concerned, to have been actually produced by the slander ; but this consequence was not, in a legal view, a natural, ordinary one, as it does not prove that the plaintiff's character was injured. The slander may not have been credited by or had the slightest influence upon any one unfavorable to the plaintiff ; and it does not appear that anybody believed it or treated the plaintiff any different from what they would otherwise have done on account of it. The cause was not adapt- ed to produce the result which is claimed to be special damages. Such an effect may, and sometimes does, follow from such a cause, but not ordinarily ; and the rule of law was framed in reference to common and usual effects, and not those which are accidental and occasional. It is true that this element of the action for slander, in the case of words not actionable of themselves, that the special damages must flow from impaired reputation, has been overlooked in several modern cases, and loss of health, and consequent incapacity to attend to busi- ness, held sufficient special damage, (Bradt v. Towsley, 13 Wend. 253 ; Fuller v. Fenner, 16 Barb. 333 ;) but these cases are a departure from principle, and should not be followed. If such consequences were suf- ficient, it would not be necessary to allege in the complaint or prove that the words were spoken in the presence of a third person. If spo- ken directly to the plaintiff, in the presence of no one else, he might himself, under the recent law allowing parties to be witnesses, prove the words and the damages, and be permitted to recover. It has been regarded as necessary to an action that the words should be published by speaking them in the presence of some person other than the plaintiff, both in the case of words actionable and those not actionable, i Starkie, Sland. & L. 360; 2 Starkie, Sland. & L. 12; Cooke, Defam. 87- W r here there is no proof that the character has suffered from the words, if sickness results, it must be attributable to apprehension of loss of character ; and such fear of harm to character, with resulting sickness SLANDER AND LIBEL. 327 and bodily prostration, cannot be such special damage as the law re- quires for the action. ROOSEVELT, J., dissented. All the other judges concurring. Judgment affirmed. (The law in regard to liability for the repetition of defamatory words is well stated in Schoepflin v. Coffey, 162 N. Y. 12, 56 N. E. 502, as follows: "One who utters a slander, or prints and publishes a libel, is not responsible for its vol- untary and unjustifiable repetition, without his authority or request, by others over whom he has no control, and who thereby make themselves liable to the person injured, and such repetition cannot be considered in law a necessary, natural, and probable consequence of the original slander or libel. The rem- edy in such a case would be against the party who printed and published the words thus spoken, and not against the one speaking them, as a person is not liable for the independent illegal acts of third persons in publishing matters which may have been uttered by him, unless they are procured by him to be published, or he performed some act which induced their publication. Ward v. Weeks, 7 Bing. 211; Olmsted v. Brown, 12 Barb. 657. The repetition of de- famatory language by another than the first publisher is not a natural conse- quence of the first publication, and therefore the loss resulting from such repe- tition is not generally attributable to the first publisher. This rule is based upon the principle that every person who repeats a slander is responsible for the damage caused by such repetition, and that such damage is not the proxi- mate and natural consequence of the first publication of the slander." In this case the repetition was by a libel [publication in a newspaper], but the same principle would apply where the repetition was by spoken words. S. P. Hast- ings v. Stetson, 126 Mass. 329, 30 Am. Rep. 683 ; Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208, 5 L. R. A. 724 ; Davis v. Starrett, 97 Me. 568, 55 Atl. 516 ; Nicholson v. Rust [Ky.] 52 S. W. 933 ; Merchants' Ins. Co. v. Buckner, 98 Fed. 222, 39 C. C. A. 19. As to "slander with special damage," see also Roberts T. Roberts, 5 B. & S. 384, and Moody v. Baker, 5 Cow. 351, in the text, supra, pp. 60, 109. It is also not actionable per se to call a man a blackleg [Barnett v. Allen, 3 H. & N. 376]; a liar [Kimmis v. Stiles, 44 Vt 351]; a villain, a rascal, and a cheater [Nelson v. Borchenius, 52 111. 236] ; a rogue or a scoundrel [Quinn v. O'Gara, 2 E. D. Smith, 388; Winter v. Sumvalt, 3 H. & J. 38; Ward v. Weeks, 7 Bing. 211]. The "special damage" must be of a pecuniary nature. Pollard v. Lyon, 91 U. S. 225, 237, 23 L. Ed. 308 ; Chamberlain v. Boyd, 11 Q. B. D. 407. See Bas- sell v. Elmore, 48 N. Y. 561; Pettibone v. Simpson, 66 Barb. 492; Lynch v. Knight, 9 H. L. C. 577; Davies v. Solomon, L. R. 7 Q. B. 112; Allsop v. Allsop, 5 H. & N. 534; Shafer T. Ahalt, 48 Md. 171, 30 Am. Rep. 456.) 328 LAW OF TORTS. II. LIBEL. (68 Me. 295, 28 Am. Rep. 50.) TILLSON v. ROBBINS (in part). (Supreme Judicial Court of Maine. June 7, 1878.) 1. LIBEI^-WOBDS EXPOSING TO PUBLIC HATRED AND CONTEMPT. For the publication, by writing or printing, of a charge such as, If be- lieved, would naturally tend to expose a person to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse, an action may be maintained by him, without allegations of special damage, or of any fact to make such publication import a charge of crime. 2. DIFFERENCE BETWEEN LIBEL, AND SLANDER. There are many kinds of charges which would not be actionable per se If spoken, but are so if written or printed. Illustrations of such charges. On exceptions. Action by Davis Tillson against Levi M. Robbins for libel. The dec- laration alleged, in the first count, the publication by defendant in a certain newspaper, of and concerning plaintiff, of the following words : "The Hurricane Vote. Again we have to chronicle most atrocious cor- ruption, intimidation, and fraud in the Hurricane Island vote, for which Davis Tillson is without doubt responsible, as he was last year ;" and in the second count the publication by defendant of a libel of and con- cerning plaintiff in his business of merchant and contractor, in the same words, with the addition of the following: "Hurricane Island is all owned by Davis Tillson, an intense partisan and an unscrupulous poli- tician. It is leased to government, and contains quarries from which is taken granite for public buildings. This granite is bought by gov- ernment of Tillson, and is there cut by men who receive about $3.50 per day. On all expenditures Tillson has a gratuity of 15 per cent., for which he renders no equivalent, unless the lease of the island and its facilities be deemed such." Each count contained innuendoes, ex- plaining these words as meaning that plaintiff had been guilty of the crime of corruption, intimidation, and fraud at an election held on the island mentioned ; but there was no averment of the fact of such elec- tion, nor any colloquium that the words were used in reference thereto. Defendant demurred to the declaration. The demurrer was overruled, and defendant alleged exceptions. BARROWS. J. The defendant's criticisms upon the writ to which he has demurred would be pertinent if the case were one of mere verbal slander. But in respect to the supposed requirement that, in order to maintain an action for damages where no crime is imputed, special damage must be alleged and proved, a distinction has been long and uniformly maintained between mere words and written or printed slan- SLANDER AND LIBEL. 329 der. Holt, Libel, (ist Am. Ed.) 218-223. Much which, if only spoken, might be passed as idle blackguardism, doing no discredit save to' him who utters it, when invested with the dignity and malignity of print is capable, by reason of its permanent character and wide dissemination, of inflicting serious injury. The cases, ancient and modern, where this distinction has been re- garded, are numerous. A reference to a few of them will serve all the purposes of a more elaborate discussion. Lord Holt says: "Scan- dalous matter is not necessary to make a libel. It is enough if the de- fendant induce an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous." Cropp v. Tilney, 3 Salk. 226. To say of a man, "He is a dishonest man," is not actionable with- out special damage alleged and proved ; but to publish so, or to put it upon posts, is actionable. Austin v. Culpeper, Skin. 124. In Villers v. Monsley, 2 Wils. 403, the court say : "There is a distinc- tion between libels and words ; a libel is punishable both criminally and by action, when speaking the words would not be punishable either way. For speaking the words 'rogue' and 'rascal' of any one an action will not lie, but if those words were written and published of any one an action will lie. If one man should say of another that he has the itch, without more, an action would not lie; but if he should write those words of another, and publish them maliciously, as in the present case, no doubt but the action well lies." In another case, where the defendant had applied the epithet "vil- lain" to the plaintiff in a letter to a third person, and the plaintiff, though alleging, failed to prove, any special damage, the court ordered judgment for the plaintiff, expressing the opinion that "any words writ- ten and published, throwing contumely on the party, are actionable." Bell v. Stone, i Bos. & P. 331. In one of Christian's notes to Blackstone mention is made of a case where a young lady recovered 4,000 damages for reflections upon her chastity, published in a newspaper, though she could not, under English laws, without alleging special damages, such as loss of marriage or the like, have maintained an action for verbal slander containing the gross- est aspersions upon her honor. In J'Anson v. Stuart, I Term R. 748, it was held that to print of any person that he is a swindler is a libel and actionable ; for it is not nec- essary, in order to maintain an action for libel, that the imputation should be one which, if spoken, would be actionable as slander. In Thorley v. Kerry, 4 Taunt. 355, the words of the alleged libel, as declared on, were: "I pity the man [meaning the plaintiff] who can so far forget what is due to himself and others as, under the cloak of religion, to deal out envy, hatred, malice, uncharitableness, and false- hood." Mansfield, chief justice of the common pleas, pronouncing judg- ment for the plaintiff in the exchequer chamber at Easter term, 1812, while he declared himself personally disposed to repudiate the dis- 330 LAW OF TORTS. tinction between written and unwritten scandal, says: "I do not now recapitulate the cases, but we cannot, in opposition to them, venture to lay down at this day that no action can be maintained for any words written for which an action could not be maintained if spoken." For later English cases maintaining the same doctrine, see McGregor v. Thwaites, 3 Barn. & C. 24 ; Clement v. Chivis, 9 Barn. & C. 172 ; Wood- ard v. Dowsing, 2 Man. & R. 74; Shipley v. Todhunter, 7 Car. & P. 680 ; Parmiter v. Coupland, 6 Mees. & W. 105. The American cases on this point follow in the same line with the English. Runkle v. Meyer, 3 Yeates, 518, 2 Am. Dec. 393; McCorkle v. Binns, 5 Bin. 345, 6 Am. Rep. 420; McClurg v. Ross, 5 Bin. 218; Dexter v. Spear, 4 Mason, 115, Fed. Cas. No. 3,867; Dunn v. Winters, 2 Humph. 512; Clark v. Binney, 2 Pick. 113, 116; Stow v. Converse, 3 Conn. 325, 8 Am. Dec. 189; Hillhouse v. Dunning, 6 Conn. 391; Shelton v. Nance, 7 B. Mon. 128 ; Mayrant v. Richardson, I Nott & McC. 347, 9 Am. Dec. 707 ; Colby v. Reynolds, 6 Vt. 489, 27 Am. Dec. 574- % It is true that some able jurists agree with Mansfield, C. J., in doubt- ing whether this distinction between verbal and written or printed slan- der is well founded in principle, while they recognize the force of the authorities which sustain it. Others maintain it upon reason as well as authority. The subject is discussed with numerous references to cases, old and new, English and American, in a note to Steele v. South- wick, in i Hare & W. Lead. Cas. (5th Ed.) 123. Steele v. Southwick was an early case in New York, decided in 1812, and reported in 9 Johns. 214. It was there held that the published words complained of, if they did not import a charge of perjury in the legal sense, were nevertheless libelous, as holding the plaintiff up to con- tempt and ridicule, as regardless of his obligations as a witness and unworthy of credit, and that they were consequently actionable. We concur entirely in the remarks of the court that "to allow the press to be the vehicle of malicious ridicule of private character would soon de- prave the moral taste of the community, and render the state of society miserable and barbarous. It is true that such publications are also in- dictable as leading to a breach of the peace, but the civil remedy is equally fit and appropriate." We do not mean to say that every indict- able libel would be a good foundation for a civil action. It is sufficient to dispose of this demurrer to hold that, in an action for written or printed slander, though no special damage is alleged, and no averments of such extrinsic facts as might be requisite to make the publication in question import a charge of crime are made, the action is nevertheless maintainable if the published charge is such as, if be- lieved, would naturally tend to expose the plaintiff to public hatred, contempt, or ridicule, or deprive him of the benefits of public confidence and social intercourse. It cannot be successfully contended that the statements alleged in this writ to have been published by the defendant SLANDER AND LIBEL. 331 in his newspaper, of and concerning the plaintiff, would not, if be- lieved, tend strongly to deprive him of public confidence, and expose him to public hatred and contempt Exceptions overruled. APPLETON, C. J., and WALTON, DICKERSON, DANFORTH, and PETERS, JJ., concurred. (Valuable cases on the nature of a libel are Palmer v. Mahin, 120 Fed. 737, 57 C. C. A. 41; Mattice v. Wilcox, 147 N. Y. 624, 42 N. E. 270; Gates v. New York Recorder Co., 155 N. Y. 228, 49 N. E. 769; Krug v. Pitass, 162 N. Y. 154, 56 N. E. 526, 76 Am. St. Rep. 317; Williams v. Fuller [Neb.] 94 N. W. 118; Quinn v. Prudential Ins. Co., 116 Iowa, 522, 90 N. W. 349; Elmergreen v. Horn, 115 Wis. 385, 91 N. W. 973; Bradley v. Cramer, 59 Wis. 309, 18 N. W. 268, 48 Am. Rep. 511; Lindley v. Horton, 27 Conn. 58; Barr v. Moore, 87 Pa. 385, 30 Am. Rep. 367.) (121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810.) MOORE v. FRANCIS et al. (Court of Appeals of New York. April 15, 1890.) LIBEL WORDS AFFECTING PLAINTIFF IN His OCCUPATION IMPUTING INSANITY. The publication in a newspaper of a statement that plaintiff, employed as teller in a bank, became mentally deranged by reason of overwork, and that while in that condition he made injurious statements regarding the bank's affairs, which caused it trouble, is libelous per se, as tending to injure him in his employment. Appeal from Supreme Court, General Term, Third Department. Action by Amasa R. Moore against John M. Francis and others for libel. Verdict for defendants, and from a judgment of the general term affirming the judgment on the verdict, and an order denying a motion to set aside the same, and for a new trial, plaintiff now appeals. ANDREWS, J. The alleged libelous publication which is the subject of this action was contained in the Troy Times of September 15, 1882, in an article written on the occasion of rumors of trouble in the financial condition of the Manufacturers' National Bank of Troy, of which the plaintiff was at the time of the publication, and for 18 years prior there- to had been, teller. The rumors referred to had caused a "run" upon the bank ; and it is claimed by the defendants, and it is the fair conclusion from the evidence, that the primary motive of the article was to allay public excitement on the subject. That part of the publication charged to be libelous is as follows : "Several weeks ago it was rumored that Amasa Moore, the teller of the bank, had tendered his resignation. Ru- mors at once began to circulate. A reporter inquired of Cashier Wel- lington if it was true that the teller had resigned, and received in reply 332 LAW OF TORTS. the answer that Mr. Moore was on his vacation. More than this the cashier would not say. A rumor was circulated that Mr. Moore was suffering from overwork, and that his mental condition was not en- tirely good. Next came reports that Cashier Wellington was finan- cially involved, and that the bank was in trouble. A Times reporter at once sought an interview with President Weed of the bank, and found him and Directors Morrison, Cowee, Bardwell, and others in consulta- tion. They said that the bank was entirely sound, with a clear surplus of $100,000; that there had been a little trouble in its affairs, occasioned by the mental derangement of Teller Moore ; and that the latter's state- ments, when he was probably not responsible for what he said, had caused some bad rumors." The complaint is in the usual form, and charges that the publication was false and malicious, made with intent to injure the plaintiff in his good name and credit in his occupation as bank teller, and to cause it to be believed that, by reason of mental de- rangement, he had become incompetent to discharge his duties, and had caused injury to the bank, etc. The court on the trial was requested by the plaintiff's counsel to rule, as a question of law, that the publication was libelous. The court refused, but submitted the question to the jury. The jury found a verdict for the defendants, and, as the verdict may have proceeded upon the finding that the article was not libelous, the question is presented whether it was per se libelous. If it was, the court erred in leaving the question to the jury. It is the settled law of this state that, in a civil action for libel, where the publication is admitted, and the words are unambiguous and ad- mit of but one sense, the question of libel or no libel is one of law, which the court must decide. Snyder v. Andrews, 6 Barb. 43; Mat- thews v. Beach, 5 Sandf. 256; Hunt v. Bennett, 19 N. Y. 173; Lewis v. Chapman, 16 N. Y. 369; Kingsbury v. Bradstreet Co., 116 N. Y. 211, 22 N. E. 365. Of course, an error in submitting the question to the jury would be harmless if their finding that the publication was not libelous was in accordance with its legal character. The import of the article, so far as it bears upon the plaintiff, is plain and unequivocal. The words amount to a distinct affirmation First, that the plaintiff was teller of the bank; second, that while acting in this capacity he be- came mentally deranged ; third, that the derangement was caused by overwork; fourth, that while teller, and suffering from this mental alienation, he made injurious statements in respect to the bank's af- fairs which occasioned it trouble. The cases of actionable slander were defined by Chief Justice De Grey in the leading case of Onslow v. Home, 3 Wils. 177; and the classification made in that case has been generally followed in England and this country. According to this classification, slanderous words are those which (i) import a charge of some punishable crime; or (2) impute some offensive disease which would tend to deprive a person of society; or (3) which tend to injure a party in his trade, occupation, or business; or (4) which have produced SLANDER AND LIBEL. 333 some special damage. Defamatory words, in common parlance, are such as impute some moral delinquency or some disreputable conduct to the person of whom they are spoken. Actions of slander, for the most part, are founded upon such imputations. But the action lies in some cases where the words impute no criminal offense; where no attack is made upon the moral character, nor any charge of personal dishonor. The first and larger class of actions are those brought for the vindica- tion of reputation, in its strict sense, against damaging and calumnious aspersions. The other class fall, for the most part at least, within the third specification in the opinion of Chief Justice De Grey, of words which tend to injure one in his trade or occupation. The case of words affecting the credit of a trader, such as imputing bankruptcy or in- solvency, is an illustration. The action is maintainable in such a case, although no fraud or dishonesty is charged, and although the words were spoken without actual malice. The law allows this form of action not only to protect a man's character as such, but to protect him in his occupation, also, against injurious imputations. It recognizes the right of a man to live, and the necessity of labor, and will not permit one to assail by words the pecuniary credit of another, except at the peril, in case they are untrue, of answering in damages. The principle is clearly stated by Bayley, J., in Whittaker v. Bradley, 7 Dowl. & R. 649 ; "Whatever words have a tendency to hurt, or are calculated to preju- dice, a man who seeks his livelihood by any trade or business, are ac- tionable." Where proved to have been spoken in relation thereto, the action is supported ; and unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage, because both the falsity of the words and resulting damage are presumed. Craft v. Boite, I Saund. 243, note ; Steele v. Southwick, I Amer. Lead. Cas. 135. The authorities tend to support the 'proposition that spoken words imputing insanity are actionable per se when spoken of one in his trade or occupation, but not otherwise, without proof of special damage. Morgan v. Lingen, 8 Law T. (N. S.) 800 ; Joannes v. Burt, 6 Allen, 236, 83 Am. Dec. 625. The imputation of insanity in a written or printed publication is a fortiori libelous where it would constitute slander if the words were spoken. Written words are libelous in all cases where, if spoken, they would be actionable; but they may be libelous where they would not support an action for oral slander. There are many definitions of "libel." The one by Hamilton in his argument in People v. Croswell, 3 Johns. Cas. 354, viz., "a censorious or ridiculing writing, picture, or sign, made with mischievous and malicious intent towards government, magistrates, or individuals," has often been referred to with approval. But, unless the word "censorious" is given a much broader signification than strictly belongs to it, the definition would not seem to comprehend all cases of libelous words. The word "libel," as expounded in the cases, is not limited to written or printed words 334 LAW OF TORTS. which defame a man, in the ordinary sense, or which impute blame or moral turpitude, or which criticise or censure him. In the case before referred to, words affecting a man injuriously in his trade or occupa- tion may be libelous although they convey no imputation upon his char- acter. Words, says Starkie, are libelous if they affect a person in his profession, trade, or business, "by imputing to him any kind of fraud, dishonesty, misconduct, incapacity, unfitness, or want of any necessary qualification in the exercise thereof." Starkie, Sland. & L. 188. The cases of libel founded upon the imputation of insanity are few. The declaration in Morgan v. Lingen, supra, contained a count for libel, and also for verbal slander. The alleged libel was a letter written by the defendant in which he states that "he had no doubt that the plain- tiff's mind was affected, and that seriously," and also that "she had a de- lusion," etc. It appeared that the defendant had also orally stated, in substance, the same thing. It was claimed that the writing was justi- fied. The plaintiff was a governess. Martin, B., in summing up to the jury, said that "a statement in writing that a lady's mind is affected, and that seriously, is, without explanation, prima facie a libel." In respect to the slander, he said "he thought there was no evidence of any special damage. The jury must, therefore, consider whether the defendant ever intended to use the expressions he did with reference to the plaintiff's profession of governess." In Perkins v. Mitchell, 31 Barb. 465, it was held to be libelous to publish of another "that he is insane, and a fit per- son to be sent to the lunatic asylum ;" Emott, J., saying : "Upon this point the case is clear." Rex v. Harvey, 2 Barn. & C. 257, was an in- formation for libel for publishing in a newspaper that the king "labor- ed under mental insanity, and it stated that the writer communicated the fact from authority." The judge charged that the publication was a libel, and the charge was held to be correct. The foregoing are the only cases we have noticed upon the point whether a written imputation of insanity constitutes a libel. Several of the text-writers state that to charge in writing that a man is insane is libelous. Add. Torts, 168 ; Townsh. Sland. & L. 177; Starkie, Sland. & L. 164; Odgers, Sland. & L. p. 23. The publication now in question is not simply an assertion that the plaintiff is or has been affected with "mental derangement," disconnected with any special circumstances. The assertion was made to account for the trouble to which the bank had been subjected by reason of injurious statements made by the plaintiff while in its employment. Words, to be actionable on the ground that they affect a man in his trade or occupa- tion, must, as is said, touch him in such trade or occupation ; that is, they must be shown, directly or by inference, to have been spoken of him in relation thereto, and to be such as would tend to prejudice him therein. Sanderson v. Caldwell, 45 N. Y. 405, 6 Am. Rep. 105, and cases cited. The publication did, we think, touch the plaintiff in respect to his occupation as bank teller. It imputed mental derangement while en- SLANDER AND LIBEL. 335 gaged in his business as teller, which affected him in the discharge of his duties. The words conveyed no imputation upon the plaintiff's hon- esty, fidelity, or general capacity. They attributed to him a misfortune brought upon him by an overzealous application in his employment. While the statement was calculated to excite sympathy, and even re- spect, for the plaintiff, it nevertheless was calculated, also, to injure him in his character and employment as a teller. On common under- standing, mental derangement has usually a much more serious sig- nificance than mere physical disease. There can be no doubt that the imputation of insanity against a man employed in a position of trust and confidence, such as that of a bank teller, whether the insanity is tem- porary or not, although accompanied by the explanation that it was induced by overwork, is calculated to injure and prejudice him in that employment, and especially where the statement is added that, in con- sequence of his conduct in that condition, the bank has been involved in trouble. The directors of a bank would naturally hesitate to employ a person as teller whose mind had once given way under stress of sim- ilar duties, and run the risk of a recurrence of the malady. The pub- lication was, we think, defamatory, in a legal sense, although it imputed no crime, and subjected the plaintiff to no disgrace, reproach, or ob- loquy, for the reason that its tendency was to subject the plaintiff to temporal loss, and deprive him of those advantages and opportunities as a member of the community which are open to those who have both a sound mind and a sound body. The trial judge, therefore, erred in not ruling the question of libel as one of law. The evidence renders it clear that no actual injury to the plaintiff was intended by the defend- ants; but it is not a legal excuse that defamatory matter was pub- lished accidentally or inadvertently, or with good motives, and in an honest belief in its truth. The judgment should be reversed, and a new trial granted. All concur. ("To publish of a minister that he is immoral; of a lawyer that he is an ig- noramus, a drunkard, or a cheat; of an architect or a teller of a bank that he is crazy; of a physician that he is a humbug, or a quack, or a butcher, or a blockhead, or a quacksalver, or an empiric, or a mountebank, or that he is no scholar, or that his diploma is worthless, has been held actionable per se as touching his vocation." Bornmann v. Star Co., 174 N. Y. 212, 219, 66 N. E. 723. citing many cases.) 336 LAW OF TORTS. (117 Mass. 539.) HOMER v. ENGELHARDT. (Supreme Judicial Court of Massachusetts. May 8, 1875.) LIBEL WORDS AFFECTING PLAINTIFF IN His BUSINESS. The publication in a newspaper of a notice to the public that plaintiff, a saloon-keeper, to get rid of a just claim in court, set up as a defense .an existing prohibitory liquor law, under which no action for the price of liquors sold in violation thereof could be maintained, is not libelous, as he had a legal right to make such defense. Appeal from Superior Court. Action of tort by Valentine Homer against Michael Engelhardt for libel. The declaration alleged that defendant caused to be published in a certain newspaper, printed in the German language, published in Bos- ton, "a false and malicious libel concerning plaintiff, a copy of which is hereto annexed, as follows: 'Dem deutschen Publicum zur Nach- richt dass der Wirth Valentine Homer, 1863 Washington Str., um einer gerechten Forderung zu entgehen, als Vertheidigung vor Gericht das bestehende Liquor-Gesetz anfuhrte. Wir halten es fur unsere Pflicht solche Falle zu publiziren um Bierbrauer und Liquorhandler zu warnen. M. Engelhardt & Co,' which, translated into the English language, is as follows : 'Information to the German public. The saloon-keeper, Valentine Homer, No. 1863 Washington street, to get rid of a just claim in court, set up as a defense the existing prohibitory liquor law. We feel it our duty to make such conduct publicly known, in order to caution beer-brewers and liquor dealers. M. Engelhardt & Co.' " De- fendant demurred to the declaration, on the ground that it did not state a legal cause of action, inasmuch as it contained no actionable words or other cause of action. The demurrer was sustained, and judgment or- dered for defendant. Plaintiff appealed. ENDICOTT, J. No action can be maintained in this commonwealth for the price of liquor sold in violation of law. St. 1869, c. 415, 63. If such action is brought, it is the right of the defendant to set up in his answer this provision of the statute. It is a perfectly legitimate and legal defense, and stands as other defenses stand which the law inter- poses to defeat what, under other circumstances, would be a just de- mand. This publication does not charge that the plaintiff falsely, or even unsuccessfully, set up as a defense the existing prohibitory law. The gist of the damage is simply that he did set up such a defense. The plaintiff having the right to make this defense, it is not libelous to pub- lish the statement that he had done so. The demurrer was rightly sus- tained in the court below. Judgment affirmed. (It is not libelous to charge a man with doing that which he may do law- fully [Foot v. Pitt, 83 App. Div. 76, 82 N. Y. Supp. 4G4]; as, e. g., with pleading SLANDER AND LIBEL. 337 the statute of limitations [Bennett v. Williamson, 4 Sandf. 60]; or with being a hog, because he would not trade at home and build up his own town [Urban v. Helmick, 15 Wash. 155 45 Pac. 747; see Goldberger y. Philadelphia Grocer Pub. Co. (C. C.) 42 Fed. 42].) III. MALICE IN LIBEL AND SLANDER. (4 Barn. & C. 247.) BROMAGB et al. v. PROSSER (in part). (Court of King's Bench. Easter Term, 1825.) 1. SLANDER MALICE. In an ordinary case of libel or slander (i. e., one which Is not a case of privileged communication) the law implies such malice as is necessary to maintain the action, such legal malice being deemed to exist when a wrong- ful act is done intentionally, without just cause or excuse. It is, therefore, not proper to submit this question of malice in such cases to the jury. But where the defamatory words are published on a privileged occasion, and are therefore prima facie excusable, malice in fact must be proved by the plaintiff and found by the jury, in order to sustain the action. 2. SAME. In an action for slander in saying that plaintiff's bank had stopped, it appeared that in answer to a question whether such was the fact defend- ant had said it was true; that he was told so; that it was so reported. The judge instructed the jury that if they thought the words were not spoken maliciously the defendant ought to have their verdict The jury having found a verdict for the defendant, held, on a motion for a new trial, that this instruction, leaving the question of malice to the jury, was erroneous. Motion for a new trial. Action for slander for words spoken of plaintiffs in their trade and business as bankers. At the trial the jury found a verdict for defendant. A rule nisi for a new trial was obtained by plaintiffs on the ground that the judge at the trial improperly left to the jury the question of malice. BAYLEY, J. This was an action for slander. The plaintiffs were bankers at Monmouth, and the charge was that, in answer to a question from one Lewis Watkins, whether he, the defendant, had said that the plaintiffs' bank had stopped, the defendant's answer was, "It was true ; he had been told so." The evidence was that Watkins met defendant, and said, "I hear that you say the bank of Bromage and Snead, at Mon- mouth, has stopped. Is is true?" Defendant said, "Yes, it is; I was told so." He added, "It was so reported at Crickhowell, and nobody would take their bills, and that he had come to town in consequence of it himself." Watkins said, "You had better take care what you say; you first brought the news to town, and told Mr. John Thomas of it." CHASE (2o ED.) 22 338 LAW OF TORTS. Defendant replied, "I was told so." Defendant had been told at Crick- howell there was a run upon plaintiffs' bank, but not that it had stopped, or that nobody would take their bills, and what he said went greatly beyond what he had heard. The learned judge considered the words as proved, and he does not appear to have treated it as a case of privileged communication ; but, as the defendant- did not appear to be actuated by any ill will against the plaintiffs, he told the jury that, if they thought the words were not spoken maliciously, though they might unfortunately have produced injury to the plaintiffs, the defendant ought to have their verdict ; but if they thought them spoken malicious- ly, they should find for the plaintiff. The jury having found for the defendant, the question, upon a motion for a new trial, was upon the propriety of this direction. If, in an ordinary case of slander, (not a case of privileged communica- tion,) want of malice is a question of fact for the consideration of a jury, the direction was right; but if, in such a case, the law implies such malice as is necessary to maintain the action, it is the duty of the judge to withdraw the question of malice from the consideration of the jury ; and it appears to us that the direction in this case was wrong. That malice, in some sense, is the gist of the action, and that, therefore, the manner and occasion of speaking the words is admissible in evidence to show they were not spoken with malice, is said to have been agreed (either by all the judges, or, at least, by the four who thought the truth might be given in evidence on the general issue) in Smith v. Richardson, Willes, 24 ; and it is laid down i Com. Dig. tit. "Action upon the Case for Defamation," g 5, that the declaration must show a malicious intent in the defendant; and there are some other very useful elementary books in which it is said that malice is the gist of the action ; but in what sense the words "malice" or "malicious intent" are here to be under- stood, whether in the popular sense, or in the sense the law puts upon those expressions, none of these authorities state. "Malice," in common acceptation, means ill will against a person; but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally, and without just cause or excuse. If I maim cattle without knowing whose they are, if I poison a fishery without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. If I am arraigned for felony, and willfully stand mute, I am said to do it of malice, because it is intentional, and without just cause or excuse. Russ. Crimes, 614, note I. And if I tra- duce a man whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury whether! meant to produce an injury or not, and, if I had no legal ex- cuse for the slander, why is he not to have a remedy against me for the injury it produces? And I apprehend the law recognizes the distinction SLANDER AND LIBEL. 339 between these two descriptions of malice, malice in fact and malice in law, in actions of slander. In an ordinary action for words, it is suffi- cient to charge that the defendant spoke them falsely; it is not neces- sary to state that they were spoken maliciously. This is so laid down in Style, 392, and was adjudged upon error in Mercer v. Sparks, Noy, 35. The objection there was that the words were not charged to have been spoken maliciously, but the court answered that the words were themselves malicious and slanderous, and therefore the judgment was affirmed. But in actions for such slander as is prima facie excusable on account of speaking or writing it, as in the case of servants' charac- ters, confidential advice, or communications to persons who ask it, or have a right to expect it, malice in fact must be proved by the plaintiff ; and in Edmonson v. Stevenson, Bull. N. P. 8, Lord Mansfield takes a distinction between these and ordinary actions of slander. In Weathers- ton v. Hawkins, I Term R. no, where a master, who had given a serv- ant a character which prevented his being hired, gave his brother-in- law, who applied to him upon the subject, a detail by letter of certain instances in which the servant had defrauded him, Wood, who argued for the plaintiff, insisted that this case did not differ from the case of common libels; that it had the two essential ingredients, slander and falsehood ; that it was not necessary to prove express malice ; if the matter is slanderous, malice is implied, it is sufficient to prove publica- tion ; the motives of the party publishing are never gone into, and that the same doctrine held in action for words, no express malice need be proved. Lord Mansfield said the general rules are laid down as Mr. Wood has stated, but to every libel there may be an implied justifica- tion from the occasion; and Buller, J., said this is an exception to the general rule, on account of the occasion of writing. In actions of this kind, the plaintiff must prove the words "malicious" as well as "false." But in an ordinary action for a libel or for words, though evidence of malice may be given to increase the damages, it never is considered as essential, nor is there any instance of a verdict for a defendant on the ground of want of malice. Numberless occasions must have occurred, (particularly in cases where a defendant only repeated what he had heard before, but without naming the author,) upon which, if that were a tenable ground, verdicts would have been sought for and obtained, and the absence of any such instance is a proof of what has been the general and universal opinion upon the point. Had it been noticed to the jury how the defendant came to speak the words, and had it been left to them as a previous question, whether the defendant understood. Watkins as asking for information for his own guidance, and that the defendant spoke what he did to Watkins merely by way of honest ad- vice to regulate his conduct, the question of malice in fact would have been proper as a second question to the jury, if their minds were in favor of the defendant upon the first; but as the previous question I have mentioned was never put to the jury, but this was treated as an or- 340 LAW OF TORTS. dinary case of slander, we are of opinion that the question of malice ought not to have been left to the jury. We are therefore of opinion that the rule for a new trial must be absolute. Rule absolute. ("Malice in law" exists in cases of libel or slander, when there is an absence of any legal excuse for the false and defamatory publication. Holmes v. Jones, 147 N. Y. 59, 41 N. E. 409, 49 Am. St. Rep. G46; Krug v. Pitass, 162 N. Y. 154, 5G N. B. 52G, 76 Am. St Rep. 317; Barr v. Moore, 87 Pa. 385, 30 Am. Rep. 367; Benton v. State, 59 N. J. Law, 551, 36 Atl. 1041. Such excuse lacking, the words are actionable, although spoken or published accidentally or inadvertent- ly, or with an honest belief in their truth, or from commendable motives, as, e. g., to save a friend from harm. Id.; Byam v. Collins, 111 N. Y. 143, 19 N. B. 75, 2 L. R. A. 129, 7 Am. St Rep. 726. When one meditates publishing a defamatory charge, but cannot prove it to be true, and there is no "privileged occasion" for publishing it, "silence is golden.") IV. PUBLICATION. (13 Gray, 304, 74 Am. Dec. 632.) SHEFFILL et ux. v. VAN DEUSEN et ux. (Supreme Judicial Court of Massachusetts. September Term, 1859.) SLANDEB PUBLICATION OF DEFAMATORY WORDS. No action can be maintained for the speaking of defamatory words to the person of whom they are spoken only, no one else being present or within hearing. That they were spoken in a public place is immaterial. Exceptions from court of common pleas. Action of tort by Hiram Sheffill and wife against George J. Van Deusen and wife for slander. The judge before whom the case was tried signed a bill of exceptions, as follows : "The words claimed to have been slanderous were spoken, if at all, at the dwelling-house of the defendants, and in that part thereof called the 'bakery,' where bread and other articles were sold to customers ; and were spoken by Mrs. Van Deusen to Mrs. Sheffill. The defendants asked the court to in- struct the jury that if the words alleged in the plaintiffs' declaration were spoken to Mrs. Sheffill, and no other person but Mrs. Sheffill and Mrs. Van Deusen were present, there was no such publication of the words as would maintain the action. The court declined so to instruct, but did instruct the jury that, if the words were publicly uttered in the bakery of the defendants, there was a sufficient publication, though the plaintiff has not shown that any other person was present, at the time they were spoken, but Mrs. Sheffill and Mrs. Van Deusen. The jury returned a verdict for the plaintiffs, and the defendants expect." BIGELOW, J. Proof of the publication of the defamatory words alleged in the declaration was essential to the maintenance of this action. SLANDER AND LIBEL. 341 Slander consists in uttering words to the injury of a person's reputa- tion. No such injury is done when the words are uttered only to the person concerning whom they are spoken, no one else being present or within hearing. It is damage done to character in the opinion of other men, and not in a party's self-estimation, which constitutes the material element in an action for verbal slander. Even in a civil action for libel, evidence that the defendant wrote and sent a sealed letter to the plain- tiff, containing defamatory matter, was held insufficient proof of pub- lication ; although it would be otherwise in an indictment for libel, be- cause such writings tend directly to a breach of the peace. So, too, it must be shown that the words were spoken in the presence of some one who understood them. If spoken in a foreign language, which no one present understood, no action will lie therefor. Edwards v. Wooton, 12 Coke, 35 ; Hickes' Case, Poph. 139, and Hob. 215 ; Wheeler and Ap- pleton's Case, Godb. 340; Phillips v. Jansen, 2 Esp. 624; Lyle v. Cla- son, i Caines, 581 ; Ham. N. P. 287. It is quite immaterial, in the present case, that the words were spoken in a public place. The real question for the jury was, were they so spoken as to have been heard by a third person? The defendants were therefore entitled to the in- structions for which they asked. Exceptions sustained. (See Schmuck v. Hill [Neb.] 96 N. W. 158; Spaits v. Poundstone, 87 Ind. 522, 44 Am. Rep. 773; Seip v. Deshler, 170 Pa. 334, 32 Atl. 1032; Haase v. State, 53 N. J. Law, 34, 20 Atl. 751. It is a sufficient publication of a criminal libel to send it to the man himself who is defamed. Warnock v. Mitchell [C. C.] 43 Fed. 428.) ([1891] 1 Q. B. 524.) PULLMAN et al. v. WALTER HILL & CO.. Limited. (Court of Appeal. December 19, 1890.) LIB EL PUBLICATION . In an action for libel it appeared that the alleged libel was contained In a letter respecting plaintiffs, two of the members of a partnership, written on behalf of defendants, a limited company, by their managing director, and sent by mail in an envelope addressed to the firm; the writer not knowing that there were other partners in the firm. The letter was dic- tated by him to a clerk, who took down the words in short-hand and then wrote them out in full by means of a type-writing machine; and the let- ter thus written was copied by an office-boy in a copying-press. When it reached its destination, it was opened by a clerk of the firm, in the ordi- nary course of business, and was read by two other clerks of the firm. Held, that there was a publication of the letter, both to defendants' clerks and to plaintiffs' clerks, and that neither was on a privileged occasion. Motion for new trial. Action for libel. At the trial it appeared that plaintiffs were members of a partnership firm of R. & J. Pullman, in which there were three other 342 LAW OF TORTS. partners. The place of business of the firm was No. 17 Greek street, Soho. The plaintiffs were the owners of some property in the Borough road, which they had contracted, in 1887, to sell to Messrs. Day & Mar- tin. The plaintiffs remained in possession of the property for some time, and agreed to let a hoarding, which was erected upon the property, at a rent to the defendants, who were advertising agents, for the display of advertisements. In 1889 a dispute arose between the plaintiffs and Day & Martin, who were building upon the land, as to which of the two were entitled to the rent of the hoarding; and on September- 14, 1889, the defendants, after some prior correspondence, wrote the following let- ter: "Messrs. Pullman & Co., 17 Greek St., Soho. Re Boro' Road. Dear Sirs : We must call your serious attention to this matter. The builders state distinctly that you had no right to this money whatever ; consequently it has been obtained from us under false pretenses. We await your reply by return of post. Yours, faithfully, [Signed] Wal- ter Hill & Co., Limited." This letter was dictated by the defendants' managing director to a short-hand clerk, who transcribed it by a type- writing machine. The type-written letter was then signed by the man- aging director, and, having been press-copied by an office-boy, was sent by post in an envelope addressed to "Messrs. Pullman & Co., 17 Greek street, Soho." The defendants did not know that there were any other partners in the firm besides the plaintiffs. The letter was opened by a clerk of the firm, in the ordinary course of business, and was read by two other clerks. The plaintiffs brought this action for libel. The defendants contended that there was no publication, and that, if there were, the occasion was privileged. The learned judge held that there was no publication, that the occasion was privileged, and that there was no evidence of malice. He therefore nonsuited the plaintiffs, and they jnoved for a new trial. ESHER, M. R. Two points were decided by the learned judge: (i) That there had been no publication of the letter which is alleged to be a libel; (2) that, if there had been publication, the occasion was privi- leged. The question whether the letter is or is not a libel is for the jury, if it is capable of being considered an imputation on the character of the plaintiffs. If there is a new trial, it will be open to the jury to consider whether there is a libel, and what the damages are. The learned judge withdrew the case from the jury. The first question is whether, assuming the letter to contain defama- tory matter, there has been a publication of it. What is the meaning of "publication?" The making known the defamatory matter after it has been written to some person other than the person to whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication of it ; for you cannot publish a libel of a man to hirnseif. If there were no publication, the question whether the occasion was privileged does not arise. If a letter is not communicated to any SLANDER AND LIBEL. 343 one but the person to whom it is written, there is no publication of it. And if the writer of a letter locks it up in his own desk, and a thief comes and breaks open the desk and takes away the letter, I should say that would not be a publication. If the writer of a letter shows it to his own clerk in order that the clerk may copy it for him, is that a pub- lication of the letter? Certainly it is showing it to a third person. The writer cannot say, to the person to whom the letter is addressed, "I have shown it to you, and to no one else." I cannot, therefore, feel any doubt that, if the writer of a letter shows it to any person other than the person to whom it is written, he publishes it. If he wishes not to publish it, he must, so far as he possibly can, keep it to himself, or he must send it himself straight to the person to whom it is written. There was therefore in this case a publication to the type- writer. Then arises the question of privilege, and that is whether the occa- sion on which the letter was published was a privileged occasion. An occasion is privileged when the person who makes the communication has a moral duty to make it to the person to whom he does make it, and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged. An ordinary instance of a privileged occasion is in the giving the char- acter of a servant. It is not the legal duty of the master to give a character to the servant, but it is his moral duty to do so; and the person who receives the character has an interest in having it. There- fore the occasion is privileged, because the one person has a duty and the other has an interest. The privilege exists as against the person who is libeled ; it is not a question of privilege, as between the person who makes and the person who receives the communication. The priv- ilege is as against the person who is libeled. Can the communica- tion of the libel by the defendants in the present case to the type- writer be brought within the rule of privilege as against the plaintiffs, the persons libeled? What interest had the type-writer in hearing or seeing the communication? Clearly, she had none. Therefore the case does not fall within the rule. Then, again, as to the publication at the other end, I mean when the letter was delivered. The letter was not directed to the plaintiffs in their individual capacity; it was directed to a firm of which they were members. The senders of the letter no doubt believed that it would go to the plaintiffs, but it was directed to a firm. When the letter ar- rived it was opened by a clerk in the employment of the plaintiffs' firm, and was seen by three of the clerks in their office. If the letter had been directed to the plaintiffs in their private capacity, in all probability it would not have been opened by a clerk. But mercantile firms, and large tradesmen generally, depute some clerk to open business letters addressed to them, The sender of the letter had put it out of his own control, and he had directed it in such a manner that it might possibly be opened by a clerk of the firm to which it was addressed. I agree 344 LAW OF TORTS. that, under such circumstances, there was a publication of the letter by the sender of it, and in this case, also, the occasion was not priv- ileged, for the same reasons as in the former case. There were there- fore two publications of the letter, and neither of them was privileged. And there being no privilege, no evidence of express malice was re- quired; the publication of itself implied malice. I think the learned judge was misled. I do not think that the necessities or the luxuries of business can alter the law of England. If a merchant wishes to write a letter containing defamatory matter, and to keep a copy of the letter, he had better make the copy himself. If a company have deputed a person to write a letter containing libelous matter on their behalf, they will be liable for his acts. He ought to write such a letter himself, and to copy it himself, and, if he copies it into a book, he ought to keep the book in his own custody. I think there ought to be a new trial. LOPES, L. J., and KAY, L. J., concurred. Order for new trial. (This decision has been followed In this country In the case of Gambrill v. Schooley, 93 Md. 48, 48 Atl. 730, 52 L. R. A. 87, 86 Am. St. Rep. 414, and the cases of Boxsius v. Goblet FrSres [1894] 1 Q. B. 843, and Owen v. Ogilvie Pub. Co., 32 App. Div. 465, 53 N. Y. Supp. 1033, which are seemingly inconsistent, are distinguished. The doctrine is also asserted in Sun Life Assur. Co. v. Bailey [Va.] 44 S. E. 692. In Williamson v. Freer, L. R. 9 C. P. 393, the send- ing of a telegram containing libelous matter was held a publication, as being a disclosure to the clerks in the telegraph offices [S. P. Monson v. Lathrop, 96 Wis. 386, 71 N. W. 596, 65 Am. St Rep. 54 ; cf. Peterson v. West- ern Union Tel. Co., 72 Minn. 41, 74.N. W. 1022, 40 L. R. A. 661, 71 Am. St. Rep. 461]; so as to the sending through the mails of a postal card, unless its con- tents were so expressed that those -through whose hands it passed would not understand its application [Sadgrove v. Hole (1901) 2 K. B. 1; Robinson v. Jones, 4 L. R. Ir. 391 ; contra, Steele v. Edwards, 15 Ohio Cir. Ct B. 52] ; so a person has been held liable for sending through the mails letters having libelous matter printed upon the face of the envelopes [Muetze v. Tuteur, 77 Wis. 236, 46 N. W. 123, 9 L. R. A. 86, 20 Am. St Rep. 115]. A vendor of a newspaper containing a libel was held not to have published the libel upon his proving that he did not know the paper contained a libel, that his ignorance was not due to any negligence on his part, and that he did not know, and had no ground for supposing, that the newspaper was likely to contain libelous matter [Em- mens v. Pottle, 16 Q. B. D. 354]; but the proprietors of a circulating library, who failed to prove similar freedom from negligence on their part, were held liable for circulating copies of a book containing libelous matter, though they did not know the book had such contents [Vizetelly v. Mudie's Library (1900) 2 Q. B. 170.] A statement by a husband to his wife of a defamatory accusation against a third person is not deemed a publication, Wennbak v. Morgan, 20 Q. B. D. 635. For the general rule as to what constitutes a publication, see Marble v. Chapin, 132 Mass. 225; Youmans v. Smith, 153 N. Y. 214, 47 N. E. 265; Bacon v. Rail- road Co., 55 Mich. 224, 21 N. W. 324, 54 Am. Rep. 372; Young v. Clegg. 93 Ind. 371; Mielenz v. Quasdorf, 68 Iowa, 726, 28 N. W. 41; Sproul v. Pillsbury, 72 Me. 20.) SLANDER AND LIBEL. 345 V. DEFENSE OF "JUSTIFICATION." (19 Kan. 417, 27 Am. Rep. 127.) CASTLE v. HOUSTON (in part). (Supreme Court of Kansas. July Term, 1877.) 1. LIBEL JUSTIFICATION. In civil actions for libel, proof of the truth of the matter charged as defamatory is a complete justification, without showing that it was pub- lished with good motives and for justifiable ends. 2. SAME CONSTITUTIONAL PEOVISION. The constitution of Kansas provides (Bill of Rights, 11) that, "in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and, if it shall'appear that the alleged libelous matter was pub- lished for justifiable ends, the accused shall be acquitted." Held, in con- struction of this provision, in view of the former rule of law, that proof of the truth of the matter charged as defamatory was a complete justifi- cation in a civil action for libel; and that proof that the matter was pub- lished for justifiable ends in order that "the accused party shall be ac- quitted," was limited to criminal prosecutions. Error from District Court, Leavenworth County. Action for libel. A verdict for plaintiff, on trial in the district court, was set aside by that court on motion, and a new trial granted. From the order granting the new trial plaintiff appealed, and brought the case to the supreme court on error. HORTON, C. J. This was an action commenced in the district court of Leavenworth county to recover damages for libel. The peti- tion alleges, in substance, that the defendant was editor, proprietor, and publisher of the Leavenworth Daily Commercial, a newspaper printed in the city of Leavenworth, and that on the 2oth of January, 1875, there was published in said paper, of and concerning the plaintiff, a certain false and malicious libel, in words as follows, to-wit: "The insurance department of our state will in all probability be subject to a thorough investigation, as a bill has already been introduced into the senate to investigate. This is right. Every insurance company in the state is willing an investigation be h?d. Mr. Russell, ex-superintendent, in- vites it, and the present superintendent is anxious for the same. There is a cadaverous looking individual of Leavenworth loafing around here who seems exceedingly anxious for an investigation, in hopes that the superintendent will be done away with, and the department presided over by the auditor. A clerkship in the dim distance makes him en- thuse. I cannot blame Castle much, knowing that board and other bills too numerous to mention have been pressing him for some time, and then, doubtless, the Northwestern Life would be glad to hear from him, as he was published as a defaulter to that company. He is one of the most promising individuals (to his landlords) I know of, and 346 LAW OF TORTS. the cry of fraud from such a completely played-out insurance agent has but little bearing with an intelligent body of legislators. If his caliber was as large as his bore, he would be a success. Jack." In answer to the petition, defendant set up three defenses : First, an admission that the article complained of was published in defendant's paper of and concerning the plaintiff, but denied that the same was published with malice ; second, that defendant had no personal knowl- edge of the publication of the article at the time of its publication, with the further allegation that the several matters and things in the article complained of as defamatory were true, and published for justi- fiable ends and purposes ; and, third, a general denial. To the answer plaintiff filed a reply, denying generally, save and except what was admitted, all the allegations in the answer. When the case came on for trial, it was submitted to a jury, and plaintiff obtained a verdict of $1,250; whereupon defendant gave notice of motion for a new trial, which was filed, and, after being argued, was by the court sustained, upon the ground that the court had erred in its instructions to the jury. The plaintiff excepted, and has brought the case here for review. It appears from the record that the court below granted the motion for a new trial on the ground that the jury was misdirected by the fol- lowing instructions, viz. : "The fact of the language being true is not alone an answer to the charge, but can only be shown in mitigation of damages. It is not a defense simply to show the truth of the matter published, but the party must go further, and show that it was not only true, but that he acted from good motives and for a justifiable end, and that he had some purpose in view that was justifiable. If that be the case, if he acts honestly, for good purposes and justifiable ends, and what he says is true, then he is to be excused or acquitted." In this condition of the case, we must first inquire whether the in- structions above set forth were improperly given on the trial. If er- roneous as a statement of the law controlling the case, they certainly may have misled the jury. If correct in principle, and applicable undei the issues presented, the court erred in granting a new trial, for the reason given. An examination of this question will lead to a brief re- view of the law of libel in both criminal and civil prosecutions, so far as to consider and determine when a defendant may be permitted to give the truth in evidence as a full justification of alleged libelous mat- ter. It was at one time the rule of the common law that the truth of the charge, however honorable and praiseworthy the motives of the publisher, could not be given in evidence in a criminal prosecution. Hence originated the familiar maxim, "The greater the truth, the greater the libel." This doctrine was based upon the theory that, where it was honestly believed a particular person had committed a crime, it was the duty of him who so believed or so knew to cause the offender to be prosecuted and brought to justice, as in a settled state of government a party aggrieved ought to complain for an injury to SLANDER AND LIBEL. 347 the settled course of law; and to neglect this duty, and publish the of- fense to the world, thereby bringing the party published into disgrace or ridicule without an opportunity to show by the judgment of a court that he was innocent, was libelous ; and, if the matter charged was in fact true (thereby insuring social ostracism), the injury caused by the publication was much greater than where the publication was false. A false publication, it was contended, could be explained and exposed ; a true one was difficult to explain away. As an additional reason for this rule, it was also held that such publications, even if true, were pro- vocative of breaches of the peace, and the greater the truth contained therein the greater the liability of hostile meetings therefrom. That this was the true rule of the common law has been denied by many of the ablest jurists in both England and America, who maintained that the liberty of the press consisted in the right to publish, with impunity, truth with good motives and for justifiable ends, whether it respected government, magistracy, or individuals. It certainly was derived from the polluted source of the star chamber, and was considered at the time an innovation, but, like some other precedents, although arbi- trarily and unjustly established, it came to be followed generally by the courts, and sustained as the law of the land. In 1804, in the state of New York, this principle of law was recognized and asserted in the case of People v. Crosswell. In that case the defendant was prose- cuted for libel for having published in his newspaper at Hudson, in that state, called the "Wasp," the charge against Thomas Jefferson, then president, that he (Jefferson) paid Callender for calling Washing- ton a traitor, a robber, and a perjurer. The defendant, through his counsel, Alexander Hamilton, applied to the judge at the circuit to put off the trial to obtain the testimony of Callender to prove the pub- lication true. Lewis, C. J., presiding, denied the motion, because the testimony was inadmissible, as the truth of the facts charged as libel- ous did not amount to a complete justification. 3 Johns. Cas. 337. This case attracted so much attention that, after a verdict of guilty had been rendered, and while the case was in the courts of New York on a motion for a new trial, the legislature of that state passed a law providing that, in every prosecution for writing or publishing any libel, it should be lawful for the defendant upon the trial to give in evidence, in his defense, the truth of the matter contained in the pub- lication charged as libelous, and that such evidence should not be a justification, unless it should be further made satisfactorily to appear that the matter charged as libelous was published with good motives and for justifiable ends. Since the adoption of the New York statute declaratory of the law of libel in criminal actions, nearly every state in the Union has made the subject a matter of constitutional or statu- tory provision. The wise framers of our own constitution, peculiarly acquainted with the beneficial influences of free discussion and a free press, as participants in the historical incidents and conflicts surround- 348 LAW OF TORTS. ing the settlement of the territory of Kansas, modified the tyrannical and harsh rule of the common law as stated in the star chamber of England, and thereafter generally understood and interpreted, by pro- viding, in section n of our bill of rights, that "the liberty of the press shall be inviolate, and all persons may freely speak, write, or publish their sentiments on all subjects, being responsible for the abuse of such right ; and, in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and, if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted." Nevertheless these framers, in a spirit of wisdom, and to preserve order, were careful not to give, as against the inter- ests of the public, complete license even to the truth, when published for the gratification of the worst of passions, or to affect the peace and happiness of society. They prescribe that the accused should be ac- quitted, not on proof of the truth of the charge alone, but it should fur- ther appear the publication was made for justifiable ends. Following the intendment of the constitution, the legislature afterwards provided, in the act relating to crimes and punishments, that, "in all prosecu- tions or indictments for libel, the truth thereof may be given in evi- dence to the jury ; and if it appears to them that the matter charged as libelous was true, and was published with good motives and for justi- fiable ends, the defendant shall be acquitted." Section 272, Gen. St. P- 376. But the law-makers, jealous of the liberty of the press, and fearing the construction of the law by the courts in such prosecution, further provided, in a succeeding section of the same act, that, "in all indict- ments or prosecutions for libel, the jury, after having received the direction of the court, shall have the right to determine, at their dis- cretion, the law and the fact. n Section 275, Gen. St. p. 377. While the rule of the common law, as generally applied, was so ex- acting and rigorous to the defense of justification in criminal prosecu- tions for libel, a different doctrine was applicable in civil cases. In the case of King v. Root, 4 Wend. 114, 139, 21 Am. Dec. 102, Chancellor Walworth clearly states this difference as follows: "The difficulty which existed in England, previous to Mr. Fox's libel act, was that in criminal prosecutions the defendant was not permitted to give the truth in evidence ; and yet the jury were required to imply malice. But in civil cases the defendant was permitted to give the truth in evidence as a full justification." Such was declared to be the law by the judges at the time that bill was under discussion in parliament, and there has never been any alteration of the law in England on this subject in civil suits. The case of King v. Root, supra, was originally tried at one of the circuits in New York before Hon. Samuel R. Betts. The defendants, King and Verplanck, were editors of the New York American, printed in the city of New York in 1824. These editors published concerning one Root, lieutenant governor of that state, SLANDER AND LIBEL. 349 among other things, that in August of that year he addressed the state senate, then in session, "while blind with passion and rum, when he was unwashed, unshaven, haggard, with tobacco juice trickling from the corners of his mouth, and in a condition outraging all order, de- cency, and forbearance." Root brought a civil action to recover dam- ages for the alleged libel, and the defendants admitted the publication, and pleaded the truth as justification. The trial judge instructed the jury, "if the defendants had only published the truth, they had an un- questionable right to do that, and they must be acquitted." Blackstone, in his Commentaries, asserts that the truth could always be given in civil cases in justification of libel, and seems to consider the defendant's exemption in such instances as extended to him in consideration of his merit in having- warned the public against the evil practices of a delinquent. He says that it is a damnum absque injuria, intimating that the acts of the defendant who justifies a libelous pub- lication does not constitute a wrong, in its legal sense, and then pro- ceeds to observe that this is agreeable to the reasoning of the civil law. 3 Bl. Comm. 125. This is' illogical ; and Starkie bases this ex- emption on the better reason that, in such instances, the plaintiff has excluded himself from his right of action at law by his own miscon- duct, and not to any merit appertaining to the defendant. When a plaintiff is really guilty of the offense imputed, he does not offer him- self to the court as a blameless party, seeking a remedy for a malicious mischief. His original misbehavior taints the whole transaction with which it is connected, and precludes him from recovering that com- pensation to which all innocent persons would be entitled. Folk. Starkie, Sland. & L. (Amer. Ed.) 692. If it be contended that, within the provision of the constitution, the proof of the truth as a defense in a civil action is no justification, ex- cept it be also made to appear that the publication was had for justi- fiable ends, we answer that, in view of the rule of law applicable in such cases at the time of the adoption of the state constitution, we do not think such a construction proper. It is not in accordance with the spirit or the letter of that instrument. It provides that in civil and criminal actions the truth may be given in evidence to the jury, and, where an accused is on trial, that is, where a person charged with a crime for the publication of alleged libelous matter is being tried, he is not to be acquitted, except the publication is true, and the same was published for justifiable ends. In that event only is the accused party entitled to an acquittal. The word "accused" is used in the constitution, and, an "accused" being one who is charged with a crime or misdemeanor, it cannot well be said to apply to a defendant in a civil action. If the motive of the party publishing the truth is to be considered in civil suits, under the constitution, then this section quoted, instead of operating to the protection of individuals charged in personal actions for damages for the publication of alleged libelous 350 LAW OF TORTS. matter, as was doubtless intended by the framers of the constitution, would have the effect to hold parties responsible in cases where at the common law they would be entitled to a verdict. The constitution contains no grant of powers to the legislature. It is only a limitation on the exercise of its authority ; and the legislature, in its discretion, has the right to pass any act not violative of the state or federal con- stitutions. The object of section n of the bill of rights was to prevent the passage of any law in Kansas restraining or abridging the liberty of speech and of the press. By it the harsh rule of the common law, as generally recognized in libel prosecutions, was greatly modified; but we cannot seriously think that it was intended thereby to abro- gate that principle of the common law, sustained and upheld under the exacting and arbitrary construction of libels in England, that proof of the truth is a complete justification in all civil actions. Nor can we believe that thereby it was intended that the legislative power of the state was forever deprived of conferring the right upon a defendant in a civil action of libel to plead the truth of the words charged as a full and complete defense. To assert otherwise would be to assert that the constitution abridged and curtailed the liberty of the press in civil actions more than the common law, more than the provisions of the constitutions of other states. The modification of the common law by the constitution we construe in favor of the liberty of the press, not x against it. The constitution of Rhode Island provides, "in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged." And it was held in that state that the truth of the charge is a good defense in a civil action for libel. Perry v. Man, I R. I. 263. From our review of the authorities, the provision of our constitu- tion, the Civil and Criminal Codes, we deduce these important prin- ciples : First. In all criminal prosecutions the truth of the libel is no defense unless it was for public benefit that the matters charged should be published; or, in other words, that the alleged libelous matter was true in fact, and was published for justifiable ends ; but in all such proceedings the jury have the right to determine, at their discretion, the law and the fact. Second. In all civil actions of libel brought by the party claiming to have been defamed, where the de- fendant alleges and establishes the truth of the matter charged as de- famatory, such defendant is justified in law, and exempt from all civil responsibility. In such actions the jury must receive and accept the direction of the court as to the law. Under this view, the court below misdirected the jury in a very material point, and properly, on atten- tion being again called to the matter by a motion for a new trial, granted such motion, and set the case again for hearing. The instruc- tions given might have been applicable in a criminal proceeding, where the motive of the publication is important, and where the jury have a right to determine the law as well as the fact ; but were errone- SLANDER AND LIBEL. 351 ous in a civil action, where the facts charged were proven in justifica- tion. The instructions assumed that the truth is not a full and com- plete defense unless it was shown to have been published for good purposes and justifiable ends. This is not correct. If the charges made by the defendant are true, however malicious, no action lies. Root v. King, 7 Cow. 613, 632; Townsh. Sland. & L. 211 ; Foss v. Hildreth, 10 Allen, 76; Baum v. Clause, 5 Hill, 196; I Starkie, Sland. & L. 229; Rayne v. Taylor, 14 La. Ann. 406. The order of the district court setting aside the verdict of the jury in the case, and granting a new trial, is affirmed. All concurred. (In a number of the states it is now the law that in criminal cases of libel the truth is a sufficient defense if proved to have been published "with good motives and for justifiable ends." N. Y. Pen. Code, 244; Drake v. State, 53 N. J. Law, 23, 20 Atl. 747; State v. Hoskins, 109 Iowa, 656, 80 N. W. 1063, 47 L. R. A. 223, 77 Am. St Rep. 560; State v. Wait, 44 Kan. 310, 24 Pac. 354; State v. Shippman, 83 Minn. 441, 86 N. W. 431; cf. Perry v. Porter, 124 Mass. 338. But in civil actions for libel or slander the truth is at common law a complete defense, no matter what may have been the motive for its publica- tion. In some states, however, the above rule as to criminal libels is by stat- utory or constitutional provisions made applicable to civil libels also. Jones v. Townsend's Adm'x, 21 Fla. 431, 58 Am. Rep. 476; Delaware Ins. Co. v. Croasdale, 6 Houst. [Del.] 181; Sweeney v. Baker, 13 W. Va. 158, 31 Am. Rep. 757; Pokrok Pub. Co. v. Ziskovsky, 42 Neb. 64, 60 N. W. 358.) (113 Mich. 199, 71 N. W. 585.) YOUNGS v. ADAMS (in part). (Supreme Court of Michigan. May 28, 1897.) JUSTIFICATION IDENTICAL CHARGE MADE MUST BE PROVED. A charge of being a thief cannot be justified by showing that the person so accused was guilty of cheating, fraud, or false pretenses. Error to Circuit Court, Marquette County; John W. Stone, Judge. Action by Clark W. Youngs against Sidney Adams. Judgment for plaintiff. Defendant brings error. Affirmed. HOOKER, J. The defendant appeals from a verdict and judgment against him in a slander case. The slanderous words charged were : "You are a liar and thief, and I have the papers to prove it." The court instructed the jury that these words, taken in their ordinary and natural sense, charged the plaintiff with the offense of larceny, and the statement, if made without qualification, was actionable per se. With the plea of the general issue, the defendant filed a notice, in the nature of justification, in which he alleged that he would prove that the plaintiff, while in his employ, defrauded him in various ways, and fraudulently embezzled and converted to his own use the moneys of 352 LAW OF TORTS. the defendant, and obtained the property of others named by false pretenses. The court instructed the jury that proof of cheating, trickery, and fraud, unless it amounted to actual theft, would not amount to a jus- tification, and that no taking or conversion would amount to larceny or embezzlement which he said was' statutory larceny unless it in- cluded a felonious intent to convert the property taken or misappro- priated to his own use. It was thus left to the jury to find a justifica- tion by embezzlement, if the necessary elements to establish it were found. We think the court did not err in saying that a charge of being a thief could not be justified by showing the plaintiff guilty of cheat- ing, fraud, or false pretenses, and there was no error in refusing the numerous requests upon these subjects. The other justices concurred. (Saying that a person has stolen a certain article is not justified by showing that he stole a different article [Hilsden v. Mercer, Cro. Jac. 677; Ridley v. Perry, 16 Me. 21]; a charge of stealing a dollar from one person, by proof of stealing it from another person [Gardner v. Self, 15 Mo. 480]; a charge of one kind of misconduct, by proof of a different kind [Shepard v. Merrill, 13 Johns. 4T.j] ; a charge of one crime, by proving another or a different crime [Skinner ads. Powers, 1 Wend. 451 ; Coffin v. Brown. 94 Md. 190, 50 Atl. 567, 55 L. R. A. 732, 89 Am. St Rep. 422 ; Haddock v. Naughton, 74 Hun, 390, 26 N. Y. Supp. 455]. To the same effect are Pallet v. Sargent, 36 N. H. 496 ; Burford v. Wible, 32 Pa. 95 ; Downs v. Hawley, 112 Mass. 237 ; State v. Verry, 36 Kan. 416, 13 Pac. 838 ; Walters T. Smoot, 33 N. C. 315.) (19 Wend. 487.) STILWELL v. BARTER (in part). (Supreme Court of New York. May, 1838.) JUSTIFICATION MUST BE AS BROAD AS THE CHARGE. A charge of smuggling goods into the country is libelous. It Is no an- swer to a libel charging a party with having been actively and profitably engaged in smuggling during the period of the late war, that he had vio- lated the revenue laws in a single instance previous to the war and in a time of peace; the justification, to be efficient, must be as broad as the libel. Demurrer to plea. Action for a libel on the plaintiff, who, at and before the time of publication, was deputy collector of the port of Ogdensburgh, and inspector of the customs for the district of Os- wegatchie. BRONSON, J. On the most favorable construction that can be given to the libel, it charges the plaintiff with having been engaged in smuggling goods into the country from Canada during the period of the late war ; that he was so engaged, not in a single instance only, but as a business or pursuit. The language is, "He has been actively SLANDER AND LIBEL. 353 and profitably engaged in a particular kind of dry goods business," and thus acquired an "intimate knowledge of the old smuggling haunts and by-paths." It is also charged, in effect, that the plaintiff received his appointment to office on account of the intimate knowledge which he had acquired in that business of the old smuggling haunts and by- paths. The plea contains no answer whatever to the charge that the plain- tiff was engaged in smuggling during the period of the late war. It only alleges a single violation of the laws of the United States in Feb- ruary, 1812 several months before war was declared. There are several shades of difference between a mere transgression of the reve- nue laws of the country in time of peace, and an illicit intercourse with the public enemy in time of war; and the defendant must justify the charge which he has made. It is not enough to show that the plaintiff has been guilty of some improper conduct, other than that which is imputed to him. Andrews v. Vanduzer, II Johns. R. 38. Skinner ads. Powers, I Wendell, 451. The plea contains no answer to the charge that the plaintiff received his appointment to office on account of his intimate knowledge, ac- quired by smuggling, of the old smuggling haunts and by-paths. It professes to answer the whole libel, and is clearly bad for only an- swering a part. Judgment for the plaintiff. (In Fero v. Ruscoe, 4 N. Y. 162, 165, the following apt statement Is made: "The justification must be as broad as the charge. There is no such thing as a halfway justification. When several distinct things are charged, the defendant may justify as to one, though he may not be able to do so as to all; but as to any one charge, the justification will either be everything or nothing. If the charge be of stealing a horse, it is not half of a defense, nor any part of one, to show that the plaintiff took the horse by a mere trespass; or if the charge be perjury, proof that the plaintiff swore falsely through an innocent mistake amounts to nothing." To the same effect are O'Brien v. Bryant, 16 M. & W. 168; Wakley v. Healey, 4 Exch. 511; Christiansen v. O'Neil, 39 Misc. Rep. 11. 78 N. Y. Supp. 757, affirmed 82 App. Div. 636, 81 N. Y. Supp. 1120; Stock v. Keele, 86 App. Div. 136, 83 N. Y. Supp. 133; Rutherford v. Paddock, ISO Mass. 289, 62 N. E. 381, 91 Am. St. Rep. 282; Chapman v. Ordway, 5 Allen, 5ii3; 18 Arner. & Eng. Encyc. of Law [2d Ed.] 1070. A justification is not made out by proving that there are rumors that the charge is true. Stuart v. News Pub. Co., 67 N. J. Law, 317, 51 Atl. 709; Brewer v. Chase, 121 Mich. 526, 80 N. W. 575, 46 L. R. A. 397, 80 Am. St. Rep. 527. It is sufficient, however, to prove that the charge made is substantially true. Conner v. Standard Pub. Co., 183 Mass. 474, 67 N. E. 596; McLeod v. Crosby, 128 Mich. 641, 87 N. W. 883. When several separate and distinct things are charged, the defendant may justify as to one. though he fail as to the others. Lanpher v. Clark, 149 N. Y. 472, 44 N. E. 182; Clarkson v. Lawson, 6 Bing. 587. By statute in a number of the states, matter which, if pleaded as a justifica- tion, will not suffice for this purpose, may be proved in mitigation of damages. In some of these states, however, this is only allowable in case these facts are specially pleaded by way of mitigation, in addition to the plea of justification. Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360; Hathorn v. Congress Spring Co.. CHASE (2o ED.) 23 354 LAW OF TORTS. 44 Hun, 608; Times Pub. Co. v. Carlisle, 94 Fed. 702, 36 C. C. A. 475; Marker v. Dunn, 68 Iowa, 720, 28 N. W. 38; Wilson v. Noonan, 35 Wis. 321. The com- mon-law rule is otherwise, not allowing matter which tends to prove the truth of the charge complained of to be received in evidence by way of mitigation. Bisbey v. Shaw, 12 N. Y. 67. If the defamatory, charge Is prefaced % with such words as these, "It is re- yorted that," etc., or "There is a rumor," etc., or "A has said that," etc., It will not be a justification to prove that there was such a report or rumor, or that A did make the statement, but the truth of the charge itself must be established. Brewer v. Chase, 121 Mich. 520, 80 N. W. 575, 46 L. R. A. 397, 80 Am. St. Rep. 527; Watkin v. Hall, L. R. 3 Q. B. 396; Kenney v. McLaughlin, 5 Gray, 3, 66 Am. Dec. 345. It is now the general rule in this country [though in a few states it is other- wise] that the defense of justification, when it alleges the commission of a crime, may be established by a preponderance of evidence, and that proof be- yond a reasonable doubt is not required. Ellis v. Buzzell, 60 Me. 209, 11 Am. Rep. 204: Lewis v. Shull, 67 Hun, 543, 22 N. Y. Supp. 484; McBee v. Fulton, 47 Md. 403. 28 Am. Rep. 405: Bell v. McGuinness, 40 Ohio St. 204, 48 Am. Rep. 673; Peoples v. Evening News, 51 Mich. 11, 16 N. W. 185, 691.) VI. DEFENSE OF "PRIVILEGED COMMUNICATION." 1. Qualified privilege. (73 Md. 87, 20 Atl. 774, 10 L. R. A. 67. 25 Am. St Rep. 575.) FRESH v. CUTTER (in part). (Court of Appeals of Maryland. November 13, 1890.) 1. SLANDER PRIVILEGED COMMUNICATIONS CHARACTER OF SERVANT. Where the former master of one 'who is about to enter the service of another, voluntarily, in good faith, without malice, in the honest belief that he is discharging a duty to his neighbor, and with a full conviction of the truth of his words, tells the new master that the servant has stolen from him, the communication is privileged, 2. SAME. Damages cannot be recovered by the servant In such a case, in an action against the former master for slander, unless the plaintiff shows that actual malice prompted the utterance. 3. SAME. The speaking of such words to a person other than the new master would not be privileged, though made with a belief in their truth. Appeal from Circuit Court, Washington County. The pleas herein successfully demurred to were as follows: "And the defendant, for a second plea, says that he honestly and bona fide believed the words spoken by him were true, and that he spoke them to a neighbor who had employed the plaintiff, or was about to employ him, and that he spoke the words to said neighbor in the bona fide performance of a duty, and without malice; and for a third plea the SLANDER AND LIBEL. 355 defendant says that, when he spoke the alleged slanderous words set forth in the declaration, he honestly and bona fide believed them to be true, and that he spoke them only to a neighbor, Mr. Charles Allen, who had employed, or was about to employ, the plaintiff, and that he spoke the said words to said neighbor in the bona fide performance of a duty, and without malice." Argued before ALVEY, C. J., and BRYAN, MILLER, IRVING, FOWLER, BRISCOE, and McSHERRY, JJ. McSHERRY, J. Jacob Cutter sued George H. Fresh for defama- tory words alleged to have been spoken by the latter of and concern- ing the former. Cutter had at one time been an employee of Fresh, but after he ceased to occupy that relation, and had entered, or was about to enter, the service of one Allen, Fresh, of his own accord, and without solicitation or inquiry on the part of Allen, said to Allen, "He [meaning the plaintiff] stole as good as two hundred dollars from me, and I want the money." These are the alleged defamatory words. It was shown by the evidence that several persons had communicated information to Fresh which induced him to believe that Cutter had while in his employment stolen from him. It was also shown that when he learned that his neighbor Allen had employed Cutter, he, Fresh, honestly believed that it was his duty to inform Allen of what he knew concerning Cutter ; and that he told Allen these things vol- untarily, and without being requested, honestly believing it was a duty he owed to his neighbor, and for the sole purpose of putting Allen upon his guard. He testified that he had not been actuated by malice or ill will, and that he had never had any bad feeling against Cutter. There was some evidence that the words complained of had been spoken by Fresh to a person named Click, though the latter was un- able to state whether the language used by the defendant was "took" or "stole." This brief outline of the facts is sufficient to indicate that the prin- cipal question which we are called upon to decide on this appeal is whether the statement made by Fresh to Allen, under the circum- stances named, was a privileged communication or not. If privileged, all the authorities agree in holding that it is not absolutely or unquali- fiedly, but only conditionally, so. If falsely and maliciously made, it would be actionable. Malice is the foundation of the action, and in ordinary cases is implied from the slander; but there may be justifi- cation from the occasion, and when this appears, an exception to the general rule arises, and the words must be proved to be malicious as well as false. Beeler v. Jackson, 64 Md. 593, 2 Atl. 916. This justi- fication from the occasion arises, in the class of cases now being con- sidered, when a communication is "made bona fide upon any subject- matter in which the party communicating has an interest, or in refer- ence to which he has a duty, if made to a party having a corresponding 356 interest or duty," although the communication "contained criminating matter which, without this privilege, would be slanderous and ac- tionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation." Harrison v. Bush, 5 El. & Bl. 344. It seems to be generally conceded, as falling within this principle, that where a master' gives a character of a servant, unless the contrary be expressly proved, it will be presumed, that the character was given without malice, and the plaintiff, to support the action, must prove that the character was both falsely and mali- ciously given ; and, although the statement as to the character should be untrue in fact, the master will be held justified by the occasion, un- less it can be shown that in making the statement he was actuated by a malicious feeling, and knowingly stated what was untrue and injurious. Starkie, Sland. & L. 253. If, under the conditions just named, the statement be made in response to an inquiry, it would- undoubtedly be privileged. Weatherston v. Hawkins, I Term R. no; Child v. Affleck, 9 Barn. & C. 403. But in the case at bar it is con- ceded that the information was given by the appellant to Allen volun- tarily, and not in response to any inquiry whatever, and this is sup- posed to take the case out of the privilege. It is not perceived why this circumstance should make any difference if the party has acted honestly, fairly, and without malice, though, when the information has been voluntarily given, this fact, it has been said, may in some cases have a tendency to disclose the motive of the publisher in making the publication. Townsh. Sland. & L. 241. Without reviewing the de- cided cases, it may be said that the weight of authority is to the effect that the mere fact of the communication being voluntarily made does not necessarily exclude it as a non-privileged communication, for a publication warranted by an occasion apparently beneficial and honest is not actionable, in the absence of express malice. Starkie, Sland. & ~L,. 253. Or, as stated in Odgers, Sland. & L. 202 : "If it were found that I wrote systematically to every one to whom the plaintiff applied for work, the jury would probably give damages against me. On the other hand, if B. was an intimate friend or a relation of mine, and there was no other evidence of malice except that I volunteered the information, the occasion would still be privileged." Rogers v. Clif- ton, 3 Bos. & P. 587 ; Pattison v. Jones, 8 Barn. & C. 585. It is a question for the court whether the statement, if made in good faith, and without malice, is thus privileged. But the plaintiff has the right, notwithstanding the privileged character of the communication, to go :o the jury if there be evidence tending to show actual malice, as when the words unreasonably impute crime, or the occasion of their utter- ance is such as to indicate, by its necessary publicity, or otherwise, a purpose wrongfully to defame the plaintiff. Dale v. Harris, 109 Mass. 196; Brow v. Hathaway, 13 Allen, 239; Somerville v. Hawkins, to C. B. 583 ; Gassett v. Gilbert, 6 Gray, 94. Or malice may be estab- SLANDER AND LIBEL. 357 lished by showing that the publication contained matter not relevant to the occasion. Townsh. Sland. & L. 245. Expressions in excess of what the occasion warrants do not per se take away the privilege, but such excess may be evidence of malice. Ruckley v. Kiernan,* 7 Ir. C. L., 75 ; Hotchkiss v. Porter, 30 Conn. 414. It follows from these principles that if the communication made to Allen was made in good faith, without malice, in the honest belief of its truth, and under the conviction that it was a duty which Fresh owed to Allen to make it, the words complained of would not be actionable because privi- leged, though spoken voluntarily. It is equally clear that if the words spoken were known to be false and were maliciously spoken, or were voluntarily spoken to one to whom Fresh owed no duty, in the sense heretofore mentioned, the words would be actionable, because not within the privilege. In view of these conclusions, there was error in granting the ap- pellee's first and second instructions. Those instructions are as fol- lows, viz. : "The plaintiff prays the court to instruct the jury that if they shall believe from the evidence that the words charged in the declaration were spoken of and concerning the plaintiff by the de- fendant, in the presence and hearing of other persons than the plain- tiff, then the plaintiff is entitled to recover in this action." "That if the jury shall find for the plaintiff, they may award such damages as they in their judgment shall think justified by all the circumstances of the case, not only for the purpose of giving compensation for the in- jury done to the plaintiff, but also for the purpose of punishing the conduct of the defendant." The first instruction was wrong in omit- ting all reference to the defense of privilege. It directed the jury to find for the plaintiff if they believed the defendant spoke the words in the presence and hearing of other persons than the plaintiff. Un- der this instruction, the jury were required to return a verdict against the defendant, even though they were satisfied that the words were spoken to Allen alone, in good faith, without malice, in the full belief of their truth, and under the honest conviction that Fresh was only discharging a social duty to his neighbor in making the communica- tion. This entirely ignored the question of privilege, which was the only defense relied on by the appellant. The second instruction was also erroneous. It allowed punitive damages to be recovered even though the jury were not required to find the existence of actual mal- ice on the part of the appellant. In cases of this character, such is not the law. If the occasion brings the words within a qualified privilege, no damages can be recovered at all, unless the plaintiff shows that actual malice prompted the publication or utterance. The jury should have been so instructed ; but they were permitted, not merely to assess damages, but punitive damages, without any regard whatever to the question of malice. It is true these instructions were taken lit- erally from the case of Padgett v. Sweeting, 65 Md. 404, 4 Atl. 887, 358 LAW OF TORTS. where they were held by this court to be correct. But that case was widely different from the one at bar. In the former there was no question of privilege. The words, as here, were actionable per se, but were not, as in this case it is alleged, spoken on any occasion which justified their utterance. Under the conditions in Padgett's Case, the instructions were proper. But the same instructions could not be given in a case like the one before us now, without ignoring all the circumstances admitted in evidence respecting the occasion of the publication, the motive which inspired it, the belief of the de- fendant in its truth, and the honesty and good faith of its utterance. For the error indicated in granting the appellee's first and second prayers, the judgment must be reversed, and a new trial must be awarded. (See Fowles v. Bowen, 30 N. Y. 20. The general nature of "privileged com- munications" is well explained in White v. Nicholls, 3 How. 266, 11 L. Ed. 591; King v. Patterson, 49 N. J. Law, 417, 9 Atl. 705, 60 Am. Rep. 622; Van Wyck v. Aspinwall, 17 N. Y. 190.) (Ill N. Y. 143, 19 N. B. 75, 2 L. R. A. 129, 7 Am. St. Rep. 726.) BYAM v. COLLINS et al. (Court of Appeals of New York. November 27, 1888.) 1. LIBEL AND SLANDER PRIVILEGED COMMUNICATIONS CHARACTER OF SUITOR. A libelous letter to an unmarried woman concerning her suitor, not written at her request, but appearing to have been written at the instance of mutual friends, for the purpose of preventing her marriage to him, is not privileged by reason of previous friendship, nor by reason of a request made four years before, and before the acquaintance of the suitor was made, for information of anything known to the writer concerning any young man the person addressed "went with," or any young man in the place. 2. SAME CONFIDENTIAL COMMUNICATIONS. Defamatory words are not privileged because uttered in strictest con- fidence by one friend to another, nor because they are uttered after the most urgent solicitation, nor because the interview in which they are uttered is obtained at the instance of the person slandered. 3. SAME IMPLIED MALICE. Malice is implied as well from oral as from written defamation, where the communication is not privileged. Appeal from Supreme Court, General Term, Fifth Department. Action by William J. Byam against Jennie E. Collins, and Alfred H. Collins, her husband, for libel and slander. Judgment for defend- ants was affirmed at general term, and plaintiff appeals. EARL, J. The general rule is that in the case of a libelous pub- lication the law implies malice, and infers some damage. What are called "privileged communications" are exceptions to this rule. Such SLANDER AND LIBEL. 359 communications are divided into several classes, with one only of which we are concerned in this case, and that is generally formulated thus : "A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a pefson having a cor- responding interest or duty, although it contain criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation." The rule was thus stated in Harrison v. Bush, 5 El. & Bl. 344, and has been generally approved by judges and text-writers since. In Toogood v. Spyring, I Cromp. M. & R. 181, an earlier case, it was said that the law considered a libelous "publication as malicious unless it is fairly made by a person in the dis- charge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is con- cerned ;" and that statement of the rule was approved by Folger, J., in Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360, and in Hamilton v. Eno, 81 N. Y. 116. In White v. Nicholls, 3 How. 266, 291, n L. Ed. 591, it was said that the description of cases recognized as privi- leged communications must be understood as exceptions to the gen- eral rule, and "as being founded upon some apparently recognized obligation or motive, legal, moral, or social, which may fairly be pre- sumed to have led to the publication, and therefore prima facie relieves it from that just implication from which the general law is deduced." Whether within the rule as defined in these cases a libelous com- munication is privileged, is a question of law; and when upon any trial it has been held as matter of law to be privileged, then the bur- den rests upon the plaintiff to establish as matter of fact that it was maliciously made, and this matter of fact is for the determination of the jury. It has been found difficult to frame this rule in any language that will furnish a plain guide in all cases. It is easy enough to apply the rule in cases where both parties the one making and the one re- ceiving the communication are interested in it, or where the parties are related, or where it is made upon request to a party who has an interest in receiving it, or where the party making it has an interest to subserve, or where the party making it is under a legal duty to make it. But when the privilege rests simply upon the moral duty to make the communication, there has been much uncertainty and difficulty in applying the rule. The difficulty is to determine what is meant by the term "moral duty," and whether in any given case there is such a duty. In Whiteley v. Adams, 15 C. B. (N. S.) 393, Erie, C. J., said : "Judges who have had from time to time to deal with questions as to whether the occasion justified the speaking or the writing of defama- tory matter have all felt great difficulty in defining what kind of social or moral duty, or what amount of interest, will afford a justification ;" and in the same case Byles, J., said the application of the rule "to par- 360 LAW OF TORTS. ticular cases has always been attended with the greatest difficulty, the combinations of circumstances are so infinitely various." The rule as to privileged communications should not be so extended as to open wide the flood-gates of injurious gossip and defamation, by which private character may be overwhelmed, and' irreparable mis- chief done ; and yet it should be so administered as to give reasonable protection to those who make and receive communications in which they are interested, or in reference to which they have a real, not .imaginary, duty. Every one o\\es a moral duty not, as a volunteer in a matter in which he has no legal duty or personal interest, to de- fame another unless he can find a justification in some pressing emer- gency. In Coxhead v. Richards, 2 Man. G. & S. *S^9, *6oi, Coltman, J., said: "The duty of not slandering your neighbor on insufficient grounds is so clear that a violation of that duty ought not to be sanc- tioned in the case of voluntary communications, except under circum- stances of great urgency and gravity. It may be said that it is very hard on a defendant to be subject to heavy damages when he has act- ed honestly, and when nothing more can be imputed to him than an error in judgment. It may be hard, but it is very hard, on the other hand, to be falsely accused. It is to be borne in mind that people are but too apt rashly to think ill of others. The propensity to tale-bear- ing and slander is so strong among mankind, and when suspicions are infused men are so apt to entertain them without due examination, in cases where their interests are concerned, that it is necessary to hold the rule strictly as to any officious intermeddling by which the charac- ter of others is affected." And in the same case Cresswell, J., said : "If the property of the ship-owner on the one hand was at stake, the character of the captain was at stake on the other ; and I cannot but think that the moral duty not to publish of the latter defamatory mat- ter which he did not know to be true was quite as strong as the duty to communicate to the ship-owner that which he believed to be true." One may not go about in the community, and, acting upon mere rumors, proclaim to everybody the supposed frailties or bad character of his neighbor, however firmly he may believe such rumors, and be convinced that he owes a social duty to give them currency, that the victim of them may be avoided ; and ordinarily one cannot with safety, however free he may be from actual malice, as a volunteer, pour the poison of such rumors into the ears of one who might be affected if the rumors were true. I cite a few cases by way of illustration. In Godson v. Home, i Brod. & B. 7, one Noah solicited the plaintiff to be his attorney in an action. The defendant, apparently a total stran- ger, wrote to Noah, to deprecate his so employing the plaintiff, and this was held to be clearly not a confidential or privileged communica- tion. In Storey v. Challands, 8 Car. & P. 234, one Hersford was about to deal with the plaintiff, when he met the defendant, who said at once, without his opinion being asked at all, "If you have anything SLANDER AND LIBEL. 3d to do with Storey you will live to repent it. He is a most unprin- cipled man," etc. ; and Lord Denman directed a verdict for the plain- tiff, because the defendant began by making the statement without waiting to be asked. In York v. Johnson, 116 Mass. 482, the de- fendant, a member of a church, was appointed, with the plaintiff and other members of the church, on a committee to prepare a Christmas festival for the Sunday-school. He declined to serve, and, being asked his reason by Mrs. Newton, a member of the committee, said that a third member of the committee, a married man, had the venereal dis- ease, and. being asked where he got it said he did not know, but that "he had been with the plaintiff," who was a woman; and it was held that this was not a privileged communication. There was no question of the defendant's good faith and reasonable grounds of belief in mak- ing the communication, and yet Devens, J., in the opinion said: "The ruling requested by the defendant, that the communication made by him to Mrs. Newton was a privileged one, and not actionable except with proof of express malice, was properly refused. There was no duty which he owed to Mrs. Newton that authorized him to inform her of the defamatory charges against the plaintiff, and no interest of his own which required protection justified it. He had declined to serve upon the same committee with Mrs. York, but he was under no obligation to give any reason therefor, however persistently called upon to do so, and, even if Mrs. Newton had an interest in knowing the character of Mrs. York as a member of the same church, it was an interest of the same description which every member of the com- munity has in knowing the character of other members of the same community with whom they are necessarily brought in contact, and would not shield a person who uttered words otherwise slanderous." Having thus stated the general principles of law applicable to a case like this, I will now bring to mind the facts of this case so far as they pertain to the defamatory letter. The plaintiff was a lawyer, and had been engaged in the practice of his profession at Caledonia for several months, and resided there at the date of the letter. Miss Dora McNaughton and the defendant also resided there. The plaintiff was on terms of social intimacy with Dora, and was paying her attention with a view to matrimony, and some time subsequently married her. Mrs. Collins was about twenty-five years old, two years and a half younger than Dora, and was married November 2, 1875 ; and prior to that she had always resided within a mile and a half from the resi- dence of Dora, and they had been very intimate friends. Dora had a father, and no brother, and Mrs. Collins had a brother. During the time of this intimacy, and at some time before the marriage of Mrs. Collins, Dora repeatedly requested of her that if she "knew anything about any young man she went with, or in fact any young man in the place, to tell her, because her father did not go out a great deal, and had no means of knowing, and people would not be apt to tell him ; ' 362 LAW OP TORTS. that she, Mrs. Collins, had a brother, and would be more apt to hear what was said about young- men, and Dora wished her to tell what she knew. Their intimacy continued after the marriage of Mrs. Col- lins until January before the letter was written, when a coldness sprang up between them. They became somewhat estranged, and their intimacy ceased. Mrs. Collins testified that when she wrote the letter she thought just as much of Dora as if she had belonged to her family; that she had heard the defamatory rumors, and believed them, and therefore did not wish her to marry the plaintiff. It must be observed that the request of Dora to Mrs. Collins for information about young men was not made when she was contemplating mar- riage to any young man, and that the request was not for information about any particular young man, or about any young man in whom she had any interest, but it was for information about the young men generally with whom she associated. Nor, literally construing the language, did Dora wish for information as to the gossip and rumors afloat as to young men. What she asked for was such facts as Mrs. Collins knew, and not for her opinion about young men, or her esti- mation of them. But if we assume that the request was for informa- tion as to all the rumors about young men which came to the knowl- edge of Mrs. Collins, the case of the defendant is not improved. At that time the plaintiff was not within Dora's contemplation, as she did not know him until long after. The request was not for informa- tion as to any young man who might pay her attention with a view to matrimony, it was for information about all the young men in her circle. Mrs. Collins was not related to her, and was under no duty to give the information, and Dora had no sufficient interest to receive the information. Mrs. Collins was under no greater duty to give the information to Dora than to any of the other young ladies of her ac- quaintance in the same circle. She could properly tell what she knew about young men, but could not defame them even upon request by telling what she did not know, what nobody knew, but what she be- lieved upon mere rumors and hearsay to be true. The mere fact that she was requested or even urged to give the information did not make the defamatory communication privileged. York v. Johnson, supra. But there is no proof that this letter was written to Dora in pur- suance of any request made by her four years before its date, arid there was no evidence which authorized the jury to find so, if they did so find. On the contrary, it is clear that Dora would not at the time have gone to Mrs. Collins for any information as to the plaintiff if she had desired any, and that she did not wish for the information from her; and that this was known to Mrs. Collins the language oi the letter clearly shows. In the defendant's answer it is alleged that Mrs. Collins' letter was prompted by her friendship for Dora, and by the solicitations of "mutual friends to interfere in the matter and break SLANDER AND LIBEL. 363 ol? the relations which seemed to exist between the plaintiff and Dora," and there is no averment that it was written in pursuance of any request coming from Dora. The letter itself, as well as the evi- dence of Mrs. Collins, shows unmistakably that it was thus prompted. Mrs. Collins did not testify that she wrote the letter in pursuance of any request of Dora, and the action was not tried upon that theory, and no question as to the request was submitted to the jury. The trial judge charged the jury broadly that if the relations of Dora and Mrs. Collins were of such an intimate character as to warrant the lat- ter in warning the former "against a person whom she had reason to believe was not a fit person, and if Mrs. Collins acted fairly, in good faith, conscientiously, although mistakenly, there can be no recovery against her" upon the count in the complaint for libel ; and then the court said : "Did Mrs. Collins, in writing that letter, act fairly, act judiciously, not in the matter of good taste, but did she with the facts which had been brought to her mind act in a conscientious and proper manner? If she did, if she acted as an ordinarily prudent person would act under the same circumstances, if she had probable ground for her belief, she was justified in writing the letter." Mrs. Collins then appears as a mere volunteer, writing the letter to break up rela- tions which she feared might lead to the marriage of the plaintiff to Dora. If she had been the mother of Dora, or other near relative, or if she had been asked by Dora for information as to the plaintiff's character and standing, she could with propriety have given any in- formation she possessed affecting his character, provided she acted in good faith, and without malice. But a mere volunteer, having no duty to perform, no interest to subserve, interferes with the relations be- tween two such people at her peril. The rules of law should not be so administered as to encourage such intermeddling, which may not only blast reputation, but possibly wreck lives. In such a case the duty not to defame is more pressing than the duty to communicate mere defamatory rumors not known to be true. Some loose expressions may doubtless be found in text-books and judicial opinions supporting the contention of the defendant that this letter was in some sense a privileged communication. But after a very careful research I believe there is absolutely no reported de- cision to that effect. The case which is as favorable to the defendant as any, if not more favorable than any other, is that of Todd v. Hawk- ins, 8 Car. & P. 88. In that case a widow being about to marry the plaintiff, the defendant, who had married her daughter, wrote her a letter containing imputations on the plaintiff's character, and advising a diligent and extensive inquiry into his character; and it was held that the letter was written on a justifiable occasion, and that the de- fendant was justified in writing it, provided the jury were satisfied that in writing it he acted bona fide, although the imputations con- tained in the letter were false, or based upon the most erroneous in- 3G4 LAW OF TORTS. formation, and if he used expressions however harsh, hasty, or un- true, yet bona fide, and believing them to be true, he was justified in so doing. The letter was held privileged solely upon the ground of the near relationship existing between the widow and the defendant, her son-in-law, which justified his voluntary interference. But the judge expressly stated that if the widow and defendant had been stran- gers to each other there would have been a mere question of dam- age. A case nearer in point is that of Count Joannes v. Bennett, 5 Allen, 169, 81 Am. Dec. 738. There it was held that a letter to a woman containing libelous matter concerning her suitor cannot be justified on the ground that the writer was her friend and former pastor, and that the letter was written at the request of her parents, who assented to all its contents. The decision was put upon the ground that in writing the letter the defendant had no interest of his own to serve or protect ; that he was not in the exercise of any legal or moral duty; that the proposed marriage did not even involve any sacrifice of his feelings or injury to his affections, and did not in any way interfere with or disturb his personal or social relations ; that the person to whom the letter was addressed was not connected with him by the ties of consanguinity or kindred, and that he had no peculiar interest in her. Some years before, the same learned court decided the case of Krebs v. Oliver, 12 Gray, 239, wherein it was held that statements that a man has been imprisoned for .larceny, made to the family of a woman whom he is about to marry, by one who is no relation of either, and not in answer to an inquiry, are not privileged communications. In the opinion it is said: "A mere friendly ac- quaintance or regard does not impose a duty of communicating char- ges of a defamatory character concerning a third person, although they may be told to one who has a strong interest in knowing them. The duty of refraining from the utterance of slanderous words with- out knowing or ascertaining their truth far outweighs any claim of mere friendship." I am therefore of opinion that the letter was in no sense, upon the facts as they appear in the record, a privileged com- munication. There was also error in the court below as to the verbal slanders alleged in the second cause of action ; and what I have already said applies in part to these verbal slanders. There was no substantial denial of these slanders in the answer, and there is no dispute in the evidence that they were uttered, and there can be no claim upon the evidence that they were justified. The trial judge charged the jury that the words were slanderous. But he said to them that "there is not that presumption of malice in the case of oral slanders that there is in the case of a deliberate writing." This was excepted to by plain- tiff's counsel, and was clearly erroneous. In the case of oral defama- tion, as in the case of written, if the words uttered were not privileged the law implies malice. The judge further charged the jury, in sub- SLANDER AND LIBEL. 365 stance, that the words, if uttered under the circumstances testified to by Mrs. Collins, were privileged. She testified, in substance, that she uttered the words to Mr. Cameron in confidence, after the most ur- gent solicitation on his part that she should tell him what she knew about the plaintiff. But defamatory -words do not become privileged merely because uttered in the strictest confidence by one friend to another, nor because uttered upon the most urgent solicitation. She was under no duty to utter them to him, and she had no interest to subserve by uttering them. He had no interest or duty to hear the defamatory words, and had no right to demand that he might hear them ; and under such circumstances there is no authority holding that any privilege attaches to such communications. There was no evidence that would authorize a jury to find that Cameron sought the interview with Mrs. Collins as an emissary from or agent of the plaintiff, or that at the plaintiff's solicitation or instigation he obtained the slanderous communications from her; and he did not profess or assume to act for him on that occasion. He was the mutual friend of the parties, and seems to have sought the interview with her either to gratify his curiosity, or to prevent the impending litigation between the parties. But, even if he obtained the interview with her at the solicitation of the plaintiff and as his friend, she could not claim that her slanderous words uttered at such interview were privileged. The trial judge therefore erred in refusing to charge the jury that there was no question for them as to the second cause of action but one of damages. Therefore, without noticing other exceptions to rulings upon the trial, for the fundamental errors herein pointed out the judgment should be reversed, and a new trial granted. All concurred, except DANFORTH, J., who dissented. (46 N. Y. 188, 7 Am. Rep. 322.) SUNDERLIN et al. v. BRADSTREET et al. (Court of Appeals of New York. September 7, 1871.) LIBEL PBIVILEGED COMMUNICATIONS MERCANTILE AGENCY. Proprietors of a mercantile agency, whose business is collecting and communicating to subscribers information as to the character, credit, and pecuniary responsibility of merchants, are liable for a false and injurious report of the failure of certain merchants, published and circulated among all the subscribers ; as such a communication is privileged only when made in good faith, to one having an interest in the information. That the libelous statement was in cipher, understood by the subscribers only, is not material. Appeal from Supreme Court, General Term, Seventh Judicial Dis- trict. 366 LAW OF TORTS. Action by Lewis Sunderlin and others against Henry Bradstreet and others for libel. Defendants, proprietors of a mercantile agency, published and circulated among the subscribers to their agency a re- port that plaintiffs, who were merchants, had failed. The report was admitted to be false. At the trial, a verdict was rendered for plaintiffs, and defendants' exceptions were prdered to be heard in the first in- stance at the general term, which overruled the exceptions, and di- rected judgment for plaintiffs on the verdict. Defendants appealed from the judgment. ALLEN, J. The only question presented by the appeal has respect to the character and occasion of the publication of the alleged libel, and is, whether the circumstances and occasion of the publication were such as to absolve the defendants from liability, in the absence of proof of express malice ; that is, whether it is within the protection of privi- leged communications. We might properly decide this question upon the authority of Taylor v. Church, 8 N. Y. 452, in which this precise question was determined by a unanimous court, seven judges taking part in the decision, the other judge refraining from expressing in opinion, for the reason that he was not present at the argument. The point was made upon the trial of the action, and presented by counsel upon appeal in this court, and was material to be decided for the guidance of the court below, upon a retrial which this court ordered, inasmuch as, if the publication was privileged, it would probably be fatal to the plaintiff's cause of action, and the court, by a deliberate and formal resolve, adjudged that the alleged libel was not a privileged communication. The circumstances under which this judgment was given, as well as the method adopted by the judges in determining this precise question by a formal declaration, entitle the decision to peculiar weight as an authority. That case cannot be distinguished from this in any circumstance favorable to the defendant. The decision, as abstracted by the reporter, was that "one who un- dertakes, for an association of merchants in New York, to ascertain the pecuniary standing of merchants and traders residing in other places, who are customers of some of the members of the association, and who furnishes reports to all the members of the association, ir- respective of the question whether they have an interest in the ques- tion of the standing of such merchants and traders, is liable for any false report made by him prejudicial to the credit of the subject of it, although made honestly, and from information upon which he relied." In the case before us, the defendants were in no sense the agents of an association of merchants, or of their patrons. Of their own voli- tion, and for their own profit, they established a bureau for collecting and disseminating information as to the character, credit, and pecuni- ary responsibility of merchants and traders throughout the United States. The business is in the nature of an intelligence office ; and it SLANDER AND LIBEL. 3G7 is not intended by this to intimate that it is not an entirely lawful and reputable business ; or that it is not of general utility ; or perhaps a necessity to the commerce and business of the country. All may be conceded that is claimed for it by its friends ; but in its conduct and management it must be subjected to the ordinary rules of law, and its proprietors and managers held to the liability which the law at- taches to like acts by others. The information acquired by them was their own, and was communicated to others or made public in such form and upon such terms as the defendants dictated. In the estab- lished course of their business, they communicated with their patrons by means of semi-annual publications, with weekly corrections printed and furnished to each ; the number of copies of each publication being about 10,000, distributed to every part of the country, among mer- chants, bankers, and traders. The alleged libel was published in one of the weekly corrections of the regular semi-annual publications, and was thus extensively circulated. Its distribution was general among all the subscribers to the defendants' publications, irrespective of their interest in the question of the plaintiffs' credit and standing. Whether a libel or slander is within the protection accorded to privi- leged communications depends upon the occasion of the publication or utterance, as well as the character of the communication. The party must have a just occasion for speaking or publishing the defam- atory matter. A communication is privileged, within the rule, when made in good faith, in answer to one having an interest in the infor- mation sought; and it will be privileged if volunteered when the party to whom the communication is made has an interest in it, and the party by whom it is made stands in such relation to him as to make it a reasonable duty, or, at least, proper that he should give the information. Todd v. Hawkins, 8 Car. & P. 88 ; Cockayne v. Hodg- kisson, 5 Car. & P. 543; Washburn v. Cooke, 3 Denio, no; per Sel- den, J., Lewis v. Chapman, 16 N. Y. 369. It is not necessary to go further in this case ; and it may be assumed that, if any one having an interest in knowing the credit and standing of the plaintiffs, or whom the defendants supposed and believed had such interest, had made the inquiry of the defendants, and the statement in the alleged libel had been made in answer to the inquiry in good faith, and upon information upon which the defendants relied, it would have been priv- ileged. This was the case of Ormsby v. Douglass, 37 N. Y. 477. The business of the defendant in that action was of a similar character to that of the present defendants ; and the statement complained of was made orally, to one interested in the information, upon personal ap- plication at the office of the defendant, who refused to make a written statement. There was no other publication, and it was held that the occasion justified the defendant in giving such information as he pos- sessed to the applicant. Taylor v. Church was referred to as authority for the rule, and, so far from being overruled or questioned, was af- 368 LAW OF TORTS. firmed. The decision in Taylor v. Church was placed upon the ground that the alleged libel was printed by the procurement of the defend- ant, and distributed by him to persons having no special interest in being informed of the condition of the plaintiffs' firm. In the case at bar, it is not pretended but that few, if any, of the persons to whom the 10,000 copies of the libelous publication were transmitted had any interest in the character or pecuniary responsibility of the plaintiffs, and to those who had no such interest there was no just occasion or propriety in communicating the information. The defendants, in mak- ing the communication, assumed the legal responsibility which rests upon all who, without cause, publish defamatory matter of others ; that is, of proving the truth of the publication, or responding in dam- ages to the injured party. The communication of the libel to those not interested in the information was officious and unauthorized, and therefore not protected, although made in the belief of its truth, if it were, in point of fact, false. When a communication is made in the discharge of some public or private duty, the occasion prevents the inference of malice which the law draws from unauthorized communi- cations, and affords a qualified defense, depending on the absence of malice. Toogood v. Spyring, I Cromp. M. & R. 181 ; Fowles v. Bowen, 30 N. Y. 20. There has been no diversity in the utterances of judges and courts upon the subject, but all have spoken one lan- guage. See Beardsley v. Tappan, 5 Blatchf. 498, Fed. Cas. No. 1,189. In those cases in which the publication has been held privileged, the courts have held that there was a reasonable occasion or exigency, which, for the common convenience and welfare of society, fairly war- ranted the communication as made. But neither the welfare nor con- venience of society will be promoted by bringing a publication of mat- ters, false in fact, injuriously affecting the credit and standing of mer- chants and traders, broadcast through the land, within the protection of privileged communications. The principle of Taylor v. Church is recognized in all the cases. Harris v. Thompson, 13 C. B. 333 ; Van Wyck v. Aspinwall, 17 N. Y. 190; Harrison v. Bush, 5 El. & Bl. 344; Goldstein v. Foss, 6 Barn. & C. 158; Getting v. Foss, 3 Car. & P. 1 60. The fact that the libelous statement was in cipher is not ma- terial. It was in language understood by the numerous patrons of the defendants and all the subscribers to the publications. They had the key to the cipher, and the publication was equally significant and injurious as if made in the distinct terms, in the very words, indicat- ed by the numeral figures used. The judgment should be affirmed. All concur. Judgment affirmed. (To the same effect are Erber v. Dun [O. C.] 12 Fed. 526; Trussell v. Scarlett [C. C.] 18 Fed. 214; Locke v. Bradstreet Co. [C. C.] 22 Fed. 771; King v. Patterson, 49 N. J. Law, 417, 9 Atl. 705, 60 Am. Rep. 622 ; Pollasky v. Minchener, 81 Mich. 280, 46 N. W. 5, 9 L. R. A. 102, 21 Am. St Rep. 516; SLANDER AND LIBEL. 360 Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 724, 20 L. R. A. 138, 38 Am. St. Rep. 592. Where the agency had received from one of its agents the information about a merchant that he had made an assignment to secure the assignee for indorsing a note, but in communicating the information to subscribers it stated that the merchant had made a general assignment for the benefit of creditors, held, that this departure from the information r& ceived, if due to carelessness, destroyed the privilege. Douglass v. Daisle; 114 Fed. 628, 52 C. C. A. 324, 57 L. R. A. 475.) (59 Mich. 467, 26 N. W. 671, 60 Am. Rep. 307.) BRONSON v. BRUCE (in part). (Supreme Court of Michigan. February 3, 1886.) L LIBEL NEWSPAPER PUBLICATIONS CONCEBNING CANDIDATES FOB OFFICE MALICE PRIVILEGED COMMUNICATIONS DAMAGES. The qualifications and acts of public officers and candidates for offlc' may be freely commented upon and criticised by newspapers, or voters, or others having an interest, if the comment be bona flde and without malice ; but false charges of crime against officers or candidates, though made without malice and in an honest belief of their truth, are not priv- ileged communications. 2. SAME. A candidate for congress was accused, in a newspaper published in his congressional district, with forgery, with stealing the deposits of poor men, and with cheating laboring men of their hard earnings. Held, that these charges were not privileged, even if published with belief in their truth. Error to Mecosta. CHAMPLJN, J. At the general election in the year 1882, the 'plaintiff was a candidate for congress. The defendant was then editor and publisher of the Big Rapids Current, a newspaper published in the city of Big Rapids, in the county of Mecosta, and circulated in that and other counties in the congressional district which was sought to be represented in congress by the plaintiff, as well as in other coun- ties of the state outside of said district. The defendant, through the columns of his newspaper, opposed the election of the plaintiff to the office for which he was a candidate, and supported the election of the opposing candidates. After the plaintiff was placed in nomination for the office, and before the election to be held for representative in congress, the defendant published in his paper, and circulated through- out the district, and sent the same to exchanges in other parts of the state, certain articles concerning the plaintiff which the plaintiff claims to be libelous, and this action is brought to recover damages therefor. The defendant pleaded the general issue, and gave notice (i) that he would prove that he was justified in so doing, for the reason that the alleged defamatory matter, and the several statements in the articles CHASE (2o ED.) 24 370 LAW OF TORTS. so published by defendant, were each true in substance and in fact as published ; and (2) that the same was a privileged communication, and statements therein were bona fide comments upon the acts and statements of said plaintiff of the several matters referred to therein, and of the acts, statements, and conduct of the plaintiff in reference thereto, and of and concerning the plaintiff as a public man, and made for the public good, and were published as such comments without any malicious intent or motive whatever. At the trial the publication was not disputed, or that the article is libelous if not true. It charged him with the crime of forgery ; of the theft of deposits of poor men and women ; and of cheating laboring men of their hard earnings. The learned judge, after stating that privileged communications are of two kinds, and defining and illustrating what is absolute privilege, instructed the jury relative to qualified privilege as follows : "There is another kind of privilege which is not absolute, but which is condi- tioned, on the theory that there is no malice on the part of the person uttering the communication or publishing the libel. It is competent it is justifiable for the press to comment upon the character and standing intellectually, morally, physically, and otherwise of a man who offers himself as a candidate for office of trust. I say it is com- petent to do that, depending, of course, upon the circumstances of the case and the surroundings. When a man sees fit to take the stand before his constituency for a public position and public honors, he thereby, to a certain extent, makes himself public property, subjects himself to criticism by his constituency. And if it is made to appear that the criticism is just, is proper, is made in good faith, is made with- out malice and for the public good, for the purpose, as supposed by the person at the time, to prevent an incompetent and unfit and unsuit- able person from receiving the majority of the votes of the electors of, the district, or as the case may be, that article is prirna facie privileged, and the law will require of the party who complains of the article to show that the same was published with bad motives, and not for good ends and purposes. * * * When that is shown, that privilege' vanishes, and it is no longer a protection to the person apparently covered by it in the first instance. In this case, gentlemen, it appears beyond dispute that, at the time of the publication of these articles, Mr. Bronson was a candidate on a fusion ticket for congress from this congressional district, and was then before the people for that purpose. These articles were published of and concerning him, re- flecting upon his character and standing as a man, and his connection with the Exchange Bank, etc. And it is claimed by Mr. Bruce that he published these with good motives and justifiable ends, and with no malice whatever. That is his claim. If that is true; if he had no malice, no disposition to specially injure this man, Mr. Bronson, but published the same in good faith, honestly believing that the occasion required it, then the communication is privileged, and the plaintiff SLANDER AND LIBEL. 371 cannot recover in this suit, even though the communications them- selves were false; because if they were privileged by the occasion, that is a complete justification to the action. Right here is the start- ing point in the case: Were the articles privileged? They are prima facie privileged by the occasion, in my judgment, and I so charge you as matter of law. But it will be for you to determine whether this man Bruce, in the publication of the article, was actuated by private malice, or malice of any sort, at that time. If so, then that privilege ceased." The constitution of this state provides that "no law shall .ever be passed to restrain or abridge the liberty of speech or of the press; but every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of such right." Article 4, 42. The publisher of a newspaper possesses no immunity from liability in publishing a libel other or different than any other person. The law makes no distinction between the newspaper publisher and any private person who may _ publish an article in a newspaper or other printed form ; and if either of them abuses the right to publish his sentiments on any subject and upon any occasion, he must defend himself upon the same legal ground. As was said by the supreme court of West Virginia in Sweeney v. Baker, 13 W. Va. 183, 31 Am. Rep. 757: "The fact that one is a can- didate for office in the gift of the people affords, in many instances, a legal excuse for publishing language concerning him as sucli can- didate for which publication there would be no legal excuse if he did not occupy the position of such candidate, whether the publication is made by the proprietors of a newspaper, or by a voter or other per- son having an interest in the election. The conduct and actions of such candidate may be freely commented upon, his acts may be can- vassed, and his conduct boldly censured. Nor is it material that such criticism of conduct should, in the estimate of the jury, be just. The right to criticise the action or conduct of a candidate is a right, on the part of the party making the publication, to judge himself of the justness of the criticism. If he was liable for damages in an action for libel for a publication criticising the conduct or action of such a can- didate, if a jury should hold his criticism unjust, his right of criticism would be a delusion, a mere trap. The only limitation to the right of criticism of the acts or conduct of a candidate for an office in the gift of the people is that the criticism be bona fide. As this right of criticism is confined to the acts or conduct of such candidate, when- ever the facts which constitute the act or conduct criticised are not admitted, they must of course be proven. * * * His talents and qualification, mentally and physically, for the office he asks at the hands of the people may be freely commented on in publications in a newspaper, and, though such comments be harsh and unjust, no mal- ice will be implied; for these are matters of opinion of which the 372 LAW OF TORTS. voters are the only judges ; but no one has a right by a publication to impute to such candidate, falsely, crimes, or publish allegations affecting his character falsely." The authorities are numerous, and fully sustain the position that a publication in a newspaper concerning either a public officer, or a candidate for an elective office, which falsely imputes to him a crime, is not privileged by the occasion, either absolutely or qualifiedly, but such publication is actionable per se ; the law imputing malice to the publisher or author. Comm. v. Clap, 4 Mass. 165 ; Curtis v. Mussey, 6 Gray, 261 ; Aldrich v. Press Printing Co., 9 Minn. 133 (Gil. 123) ; Seely v. Blair, Wright (Ohio) 358, 683; Root v. King, 7 Cow. 613; King v. Root, 4 Wend. 113; Rearick v. Wilcox, 81 111. 77, 81 ; Com. v. Odell, 3 Pittsb. 449-459 ; Brewer v. Weakley, 2 Overt. 99. The electors of a congressional district are interested in knowing the truth, not falsehoods, concerning the qualifications and character of one who offers to represent them in congress ; and it is the right and privilege of any elector, or person also having an interest to be represented, to freely criticise the acts and conduct of such candidate, and show, if he can, why such person is unfit to be intrusted with the office, or why the suffrages of the electors should not be cast for him. But defamation is not a necessary and indispensable concomitant of an election contest. If public virtue is to prevail, and distinguish the execution of high public trusts, candidates for those positions must be men of virtue, as well as men of character and capability; and the stability of our institutions in a great measure depends upon the confidence and esteem in which those occupying such high positions are held by their fellow-citizens. This cannot be attained if charges of crime against them, which are falsely made or circulated in the community, are absolutely privileged, though made in good faith. I think the circuit judge erred in laying down such rule. The judgment must be reversed, and a new trial granted. The other justices concurred. (This is the generally established doctrine, both in England and this coun- try. See, for example, as to public officers, Davis v. Shepstone, L. R. 11 App. Cas. 187 ; Post Pub. Co. v. Hallam, 59 Fed. 530, 8 C. C. A. 201 ; Burt v. Ad- vertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1, 13 L. R. A. 97; Bee Pub. Co. v. Shields [Neb.] 94 N. W. 1029; Herringer v. Ingberg [Minn.] 97 N. W. 460; Hamilton v. Eno, 81 N. Y. 116; Benton v. State, 59 N. J. Law, 551, 36 Atl. 1041. As to candidates for office, see Donahoe v. Star Pub. Co. [Del.] 55 Atl. 337; Coffin v. Brown, 94 Md. 190, 50 Atl. 567, 55 L. R. A. 732, 89 Am. St. Rep. 422; Jarman v. Rea, 137 Cal. 339, 70 Pac. 216; Smurthwaite v. News Pub. Co., 124 Mich, 377, 83 N. W. 116; Smith v. Burrus, 106 Mo. 94, 16 S. W 881, 13 L. R. A. 59, 27 Am. St. Rep. 329. But the discrimina- tion between "comment" or "criticism" on the one hand, and "false accusa- tion" on the other, is sometimes found difficult. Eikhoff v. Gilbert, 124 Mich. 353, 83 N. W. 110, 51 L. R. A. 451 ; Evening Post Co. V. Richardson [Ky.J 68 S. W. 665. SLANDER AND LIBBL. 373 In a few states an action will not lie, even if false charges are made against public men, if they are made in good faith, with an honest belief in their truth, and solely for the purpose of informing the electors. State v. Balch, 31 Kan. 465, 2 Pac. 609 ; Bays v. Hunt, 60 Iowa, 251. 14 N. W. 785 ; State v. Keenan, 111 Iowa, 286, 82 N. W 792. It is sometimes added that the charges must be based on reasonable grounds. O'Rourke v. Publishing Co., 89 Me. 810, 36 Atl. 398. An analogous doctrine, now well settled, is that any one may comment upon matters of public interest, if the comment be fair and reasonable and without malice ; as, e. g., upon theatrical and other public performances [Cherry v. Des Moines Leader, 114 Iowa, 298, 86 N. W. 323, 54 L. R. A. 855, 89 Am. St. Rep. 365; McQuire v. Western Morning News Co. (1903) 2 K. B. 100] ; public exhibitions, and whatever is there exhibited, as paintings, stat- uary, etc. [Gott v. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322, also ante, p. 69 ; Thompson v. Shackell, M. & M. 187] ; published books'and articles [Campbell v. Spottiswoode, 3 B. & S. 769 ; Reade v. Sweetzer, 6 Abb. Pr. (N. S.) 9] ; the archi- tecture of public buildings [Bearce v. Bass, 88 Me. 540, 34 Atl. 411, 51 Am. St Rep. 446] ; the way in which public affairs are conducted, etc. [Wason v. Walter, L. R. 4 Q. B 73; Purcell v. Sowler, L. R. 2 C. P. D. 218; Wilcox v. Moore, 69 Minn. 49, 71 N. W. 917]. The publication of a fair and true report of legislative and judicial pro- ceedings is also privileged, even -though such proceedings contain defamatory matter. Garby v. Bennett, 166 N. Y. 392, 59 N. E. 1117 ; Conner v. Standard Pub. Co., 183 Mass. 474, 67 N. E. 596; Macdougall v. Knight, 17 Q. B. D. 636; Kimber v. Press Ass'n [1893] 1 Q. B. 65; Stuart v. Press Pub. Co., 83 App. Div. 467, 82 N. Y. Supp. 401 ; Beiser v Scripps-McRae Pub. Co. [Ky.] 68 S. W. 457.) (122 N. Y. 445, 25 N. E. 919.) WOODS v. WIMAN. (Court of Appeals of New York, Second Division. December 2, 1890.) LIBEL PETITION TO GOVERNOR OF STATE PRIVILEGE PUBLICATION. Information communicated to the governor of a state by citizens thereof for the purpose of influencing his action on a bill which has passed the legislature is prima facie privileged ; and, if a printed pamphlet contain- ing the information is given to the governor himself and to no one else, an action for libel will not lie in behalf of a person as to whom the pamphlet contains defamatory matter, there being no evidence of malice ; but if the communication is unnecessarily published to other persons, such publication is not privileged Appeal from a judgment of the general term of the second judicial department, affirming a judgment dismissing the complaint. When the bill which became chapter 672 of the Laws of 1886, re- lating to imprisonment for debt, was pending in the legislature, Mr. Edward P. Wilder, a lawyer, published a pamphlet in opposition to its passage. Mr. Gilbert R. Hawes, a lawyer, was retained by the debtors imprisoned in Ludlow-Street jail to advocate the passage of the measure, and, to advance this purpose, one McDonald, then im- prisoned in that jail on an execution against his person, took from his 374 LAW OF TORTS. fellow-prisoners statements of the causes and circumstances of their confinement, which he reduced to writing, and delivered to Mr. Hawes. A few copies of these statements were printed in a pamphlet bearing this title : "Prisoners now in Ludlow-Street jail. A true statement of the facts in each case where a party has been imprisoned for debt. In answer to the pamphlet issued by E. P. Wilder." The pamphlet contained the following, among other statements : "In re Terrence Monett. About nine years ago sued on breach of promise to marry, which he never made. An open secret that plaintiff had similar relations for money with five or six others ; but, being married men, their evidence unattainable at trial. Sympathy for her sex. Awarded $6,000 damages. His interest sold by sheriff at sale, and bought by plaintiff for $5,500. The matter then slept for eight years, when an attorney, a friend of plaintiff, dug it up. Both plaintiff and defendant had always lived in Brooklyn, and still so in December, 1884, and the suit and judgment had in Brooklyn court. Instead of issuing execution against him where they both lived, and where the court was that granted judgment, they had him decoyed from Brook- lyn to New York, whither they had brought over the execution against the person, thus cutting off from bail in place of domicile ; further embarrassing, as New York sheriff requires bondsmen within his limits. Also saved plaintiff expense of support in Brooklyn jail, and, to increase disadvantages of defendant, omitted to credit him, on judgment, with $5,500, bid for his interest in the property at sher- iff's sale by plaintiff eight years before, so he was thus arrested on full amount, $6,000, of judgment. Thus debarred from ability to give bail, has been eighteen months in jail. On trying to go out under Fourteen Day Act, could not produce written vouchers for expendi- ture of a few hundred dollars eight or nine years ago ; so judge said oral evidence was not sufficient, and denied application. His wife's friends offer to subscribe balance really due on judgment, but plain- tiff says that, as she cannot have him, his wife (now of nine years) shall not. So this kind of a woman actually separates man and wife to be gratified in her spiteful feelings ; but, worst of all, public law aids such." The bill excited much public interest and discussion, and a committee was appointed, of which the defendant was chairman, to advocate its passage and approval by the executive. After the bill had passed the legislature, the governor fixed a day for hearing a public discussion of its merits. For the purpose of influencing the executive action, and as an answer to the pamphlet put forth by Mr. Wilder, a few copies of the statements of the prisoners, as taken by Mr. McDonald, were carried to the capitol, and one of them was sub- mitted by the defendant to the executive with resolutions adopted by the chamber of commerce, and a memorial signed by several hun- dred of the citizens of New York and Brooklyn advocating the bill. It is alleged in behalf of the plaintiff that the defendant gave a copy SLANDER AND LIBEL. 375 of the pamphlet to the governor, and distributed several copies to persons in the executive chamber, for which alleged publications she seeks to recover damages. On the trial, the plaintiff was nonsuited, upon which a judgment was entered, which was affirmed at general term. FOLLETT, C. J* Whether the public statutes of the state shall be changed is a matter of general interest, and of common concern, and information given to the governor for the purpose of influencing his action on a bill which has passed the legislature is prima facie privileged; but, if the communication contains defamatory matter, and is unnecessarily published to others, such publication is not privi- leged. Coffin v. Coffin, 4 Mass. I, 3 Am. Dec. 189; Rex v. Creevey, i Maule & S. 273; Odgers, Sland. & L. (2d Ed.) 186; Folk. Starkie, Sland. & L. 202, 205 ; Newell, Defam. 471 ; Townsh. Sland. & L. (4th Ed.) 217. Had the pamphlet been given only to the executive, we should have no difficulty in sustaining the judgment, on the ground that there was no evidence of malice, without proof of which an ac- tion cannot be sustained for such a publication. But one witness testified that he saw the defendant give copies of the pamphlet to per- sons in the executive chamber, who did not appear to have any con- nection with the hearing, which was then being held; and, though he was strongly contradicted by persons who had every facility for observing what occurred, yet whether the defendant did distribute the pamphlet, as testified by this witness, was a question of fact, and the court erred in not submitting it to the jury with appropriate instruc- tions. For this error the judgment must be reversed, and a new trial granted, with costs to abide the event. All concur. Judgment reversed. (See also Proctor v. Webster, 16 Q. B. Div. 112 ; Jenoure v. Delmege [1891J App. Gas. 73; White v. Nicholls, 3 How. 266, 11 L. Ed. 591; Gray v. Pent- land, 2 Serg. & R. 23 ; Id., 4 Serg. & R. 420 ; Larkin v. Noonan, 19 Wis. 82.) 2. Absolute privilege. (123 N. Y. 420, 25 N. E. 1048, 11 L. R. A. 753.) MOORE v. MANUFACTURERS' NAT. BANK et al. (In part). (Court of Appeals of New York. December 2, 1890.) 1. LIBEL AND SLANDER ABSOLUTE PRIVILEGE JUDICIAL PROCEEDINGS. Defamatory statements made in the course of judicial proceedings are absolutely privileged. However malicious the intent, or however false the charge may have been, the law, on grounds of public policy and to secure the administration of justice, denies to the defamed party any remedy through an action for libel or slander, as, e. g., where slanderous 376 LAW OF TORTS. statements are made by parties, counsel, or witnesses, or llbelous charges are contained in pleadings, affidavits, and other papers used in the action. This privilege, however, does not extend to such matters as are irrelevant to the litigation. 2. SAME. A bank sued the sureties on the bond of its cashier for a misappropria- tion of its funds by the cashier, and served a bill of particulars of the de- falcation on defendants' attorney in that action, which charged the funds to have been misappropriated "by collusion with the teller." The bank also gave to a representative of the defendants, at his request, a similar statement of the defalcation. Held, that the statements in respect to the teller were not privileged, and were prima facie a libel upon him, for which he could maintain an action. Appeal from Supreme Court, General Term, Third Department. Action by Amasa R. Moore against the Manufacturers' National Bank of Troy, and Gleason, its cashier. A verdict for $200 damages was returned. On appeal by plaintiff the judgment entered on such verdict was affirmed by the general term (4 N. Y. Supp. 378), and plaintiff again appeals. ANDREWS, J. This is an action for libel. On the trial the plain- tiff recovered a small verdict. He appealed to the general term from the judgment in his own favor, on the ground that the trial judge admitted improper evidence offered by the defendants, and also that he erroneously submitted to the jury the question whether certain facts alleged in the answer of the defendants, in mitigation 'of dam- ages, existed, although there was an absence of any proof, to sustain such allegations. It is claimed that by reason of these errors the plaintiff was prejudiced in respect to the award of damages. There is, we think, no doubt that errors were committed by the trial judge in the respects mentioned. The plaintiff is therefore entitled to a new trial unless the defendant is right in his contention that the alleged libel was a privileged publication, and therefore no recovery what- ever was justified. It will be sufficient to state very briefly the facts upon which the action is based, in order to present the question to be determined. In 1883 the Manufacturers' National Bank of Troy, claiming that its cashier had misappropriated and embezzled the prop- erty and funds of the institution, brought an action on the cashier's bond against the Surviving surety and the representatives of a de- ceased surety to recover the amount of the alleged defalcation. The agent of some of the defendants in the action thereupon applied in writing to the attorneys of the bank for a statement of the claim. This was furnished, but not in detail, and the agent of the sureties, desiring fuller information, called at the banking-house of the bank, and there had an interview with the cashier, and requested him to furnish as particular and complete an account as he could "so that we could see how we stood." In compliance with the request, the bank, SLANDER AND LIBEL,. 377 by its cashier, prepared and delivered to the agent of the sureties a paper indorsed, "A partial statement in detail of the defalcations of A. B., late cashier of the Manufacturers' National Bank of Troy," which contained an itemized account, with dates and amounts con- stituting the claim. The account comprised a statement of alleged false charges made by the cashier in the accounts of depositors, items for drafts and securities of the bank abstracted, and, in addition, items amounting in the aggregate to $16,621.95, entered in the ac- count as "cash items drawn from the bank by collusion with the teller, without the knowledge or authority of the officers of the bank." The alleged libel for which this action is brought is founded on the words "by collusion with the teller," contained in this statement, and also on a repetition of the same words in a similar account subse- quently furnished as a bill of particulars in the action, on the demand of the attorneys for the sureties. The plaintiff in the present action was the teller of the bank during the period of the alleged defalca- tions by the cashier, and no question is made but that the words "by collusion with the teller," contained in the statement delivered to the agent of the sureties, and in the bill of particulars, referred to him. It cannot admit of question that the publication was libelous, and sustained the action, unless the publication was, as claimed, priv- ileged. It charged the plaintiff with complicity in the crime of em- bezzlement committed by the cashier. The words are susceptible of no other interpretation. There are many examples in the books of communications held to be privileged, where the same words, if used other than on a lawful occasion, would be libelous, but which, by reason of the occasion when they were published or spoken, will not sustain an action, al- though proved to be untrue, unless proved to have been spoken maliciously. The cases of charges made in giving the character of a servant, or in answering an authorized inquiry concerning the solvency of a tradesman, or where the communication was confiden- tial between parties having a common interest in the subject to which it relates, are illustrations. Bronson, C. J., Washburn v. Cooke, 3 Denio, 112. In these and like cases the privilege is not absolute, but conditional ; that is to say, the occasion being lawful, the communica- tion is prima facie privileged, and rebuts the inference of malice which would otherwise arise, and imposes on the plaintiff who prosecutes an action of slander or libel the burden of proving that the defendant was moved by actual malicious intent in making the communication, and, failing in that, he fails in the action. There is another class of privileged communications where the privilege is absolute. They are defined in Hastings v. Lusk, 22 Wend. 410, 34 Am. Dec. .330. In this class are included slanderous state- ments made by parties, counsel, or witnesses in the course of judicial proceedings, and also libelous charges in pleadings, affidavits, or other 378 LAW OF TORTS. papers used in the course of the prosecution or defense of an action. In questions falling within the absolute privilege the question of malice has no place. However malicious the intent, or however false the charge may have been, the law, from considerations of public policy, and to secure the unembarrassed and efficient administration of justice, denies to the defamed party any remedy through an action for libel or slander. This privilege, however, is not a license which protects every slanderous publication or statement made in the course of judicial proceedings. It extends only to such matters as are rele- vant or material to the litigation, or, at least, it does not protect slanderous publications plainly irrelevant and impertinent, voluntarily made, and which the party making them could not reasonably have supposed to be relevant. Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410, 34 Am. Dec. 330; Gilbert v. People, I Denio, 41, 43 Am. Dec. 646; Grover, J., Marsh v. Ellsworth, 50 N. Y. 309; Rice v. Coolidge, 121 Mass. 393, 23 Am. Rep. 279; McLaughlin v. Cowley, 127 Mass. 316. Where there are several distinct charges, some privileged and some not privileged, those not privileged are not jus- tified by the charges that are privileged. Clarke v. Roe, 4 Ir. C. L. 1 ; Tuson v. Evans, 12 Adol. & El. 733 ; Warren v. Warren, I Cromp. M. & R. 250. The policy upon which the doctrine of privilege rests does not call for an extension of the privilege to such cases. The public interests are sufficiently protected when the privilege is limited to com- munications which fairly ought to have been made, or, in case of judi- cial proceedings, to matters not wholly outside of the cause. But no strained or close construction will be indulged to exempt a case from the protection of privilege. Both occasions on which the publication in this case was made were privileged; that is to say, it was the right of the sureties to receive, and it was the reasonable duty of the defendants to give, all proper information bearing upon the claim made by the bank against the sureties. ' The occasion, therefore, justified the bank in disclosing the facts relating to the alleged defalcation of the cashier, and even if the bank was misinformed, and there had been no defalcation in fact, such information was privileged, and the cashier could have maintained no action, unless perhaps in respect to the first publication on proof of actual malice. But the incorporation into the publication of the statement that the teller acted in collusion with the cashier was, so far as appears, wholly irrelevant, and unnecessary. The teller was not a party to the bond or to the suit. There was no issue which called for an investigation of the teller's conduct. The information that the teller had been in complicity with the cashier was not in response to any inquiry made by the defendant. The in- formation did not on its face explain, or tend to explain, or estab- lish any fact relevant to the defendant's case against the sureties, nor can it be seen how knowledge of the fact communicated would be SLANDER AND LIBEL. 371) of advantage to the sureties. If, upon any ground, the information was relevant or material, as no such ground appears on the face of the publication, we are not at liberty to assume its existence. The burden of showing its relevancy, under the circumstances, was upon the defendants. It is not impossible that a narration on the trial of the facts as to the defalcation of the cashier might incidentally involve a disclosure of the acts of the teller, but this did not, we think, justify the defendants in the publication, in advance of the defamatory matter as to the teller, not, so far as appears, having any relevancy to the liability of the sureties on their bond. Prima facie the publication was not privileged. The ordinary consequence follows that / malice is presumed from the defamatory nature of the publication, and the defendants must rely for their defense upon a justification (which was not attempted) or upon proof in mitigation of damages. The cases of Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360, and Marsh v. Ells- worth, 50 N. Y. 309, are not inconsistent with the conclusion we have reached. Both cases recognize the rule that the question of privilege depends upon there being a lawful occasion for speaking and the use of words pertinent to that occasion. The conclusion reached re- quires a reversal of the judgments at the circuit and general term, and a direction for a new trial. Judgments reversed. RUGER, C. J., and FINCH, PECKHAM, and GRAY, JJ., con- curred. EARL and O'BRIEN, JJ., dissented. (For other valuable cases as to "judicial proceedings," see Wright v. Loth- rop, 149 Mass. 385, 21 N. E. 963 ; Blakeslee v. Carroll, 64 Conn. 223, 29 Atl. 473, 25 L. R. A. 106 ; Cooley v. Galyon, 109 Tenn. 1, 70 S. W. 607, 60 L. R. A. 139; Clemmons v. Danforth, 67 Vt. 617, 32 Atl. 626, 48 Am. St Rep. 836; McGehee v. Insurance Co., 112 Fed. 853, 50 C. C. A. 551 ; Jones v. Brownlee, 161 Mo. 258, 61 S. W. 795, 53 L. R. A. 445; Hollis v. Meux, 69 Cal. 625, 11 Pac. 248, 58 Am. Rep. 574 ; Barnes v. McCrate, 32 Me. 442 ; Liles v. Gaster, 42 Ohio St. 631 ; Dawkins v. Lord Rokeby, L. R. 7 H. L. 744. In England the privilege is broader than In America, and applies to defamatory matter which is not relevant to the issue. Munster v. Lamb, 11 Q. B. D. 588. The absolute privilege also applies to "legislative proceedings," and embraces words spoken by members of parliament, or of congress, or of the state legisla- tures, in the discharge of their official duties in the house, reports made by legislative committees, etc. Hastings v. Lusk, 22 Wend. 410, 417, 34 Am. Dec, 530 ; Coffin v. Coffin, 4 Mass. 1, 3 Am. Dec. 189.) 380 LAW OF TORTS. VII. CONSTRUCTION OF WORDS COLLOQUIUM IN- NUENDO. (59 Pa. 488.) STITZELL v. REYNOLDS et ux. (in part). (Supreme Court of Pennsylvania. January 5, 1869.) L SLANDER WORDS ACTIONABLE. Words spoken of plaintiff, that she had her hogs in another person's corn, and carried corn away, impute no indictable offense, and without special damage are not actionable. 2. SAME PLEADING. To show that such words were meant to impute larceny, extrinsic cir- cumstances must be alleged by proper averments, with a colloquium. Dis- tinctions stated and explained between "averment," "colloquium," and "innuendo." When the use of these in pleading is necessary in actions for libel or slander. Error to the Court of Common Pleas of Fayette County ; of Octo- ber and November term, 1868, No. 41. This was an action of slander by Patrick Reynolds and Elizabeth, his wife, against Frederick Stitzell, commenced August 23, 1866. The first count of the declaration charged that the defendant ut- tered the following defamatory words, to wit: "That he (the said Frederick Stitzell meaning) understood that Elizabeth Reynolds (the plaintiff meaning) had her hogs in his (the said George Dawson's meaning) corn, and that she (the said Elizabeth Reynolds meaning) had carried away corn, thereby meaning and intending the said Eliza- beth Reynolds to have been guilty of larceny." The court, denying a motion by the defendant in arrest of judg- ment on the ground that the words were not actionable, entered judgment for the plaintiff upon a verdict found by the jury for $320. The defendant took out a writ of error. SHARSWOOD, J. The words set out in the first count of the declaration impute no indictable offense of themselves, and, without special damage, are therefore not actionable. Words, indeed, are no longer construed in mitiori sensu, but if in their plain popular mean- ing they convey a criminal charge it is now sufficient. "Elizabeth Reynolds had her hogs in your corn and carried corn away," impute, in their worst sense, standing by themselves, a mere trespass. To show that they meant to impute larceny, there must be a reference to some extrinsic circumstances, and these extrinsic circumstances must be spread on the record by proper averments, with a colloquium. "A word," said Gibson, C. J., in Deford v. Miller, 3 Pen. & W. 105, "which does not necessarily import criminality is in pleading rendered actionable only by reference to extrinsic facts which show it to have SLANDER AXD LIBEL. 381 been used in an obnoxious sense. Thus the word 'forsworn' becomes actionable when shown to have been predicated of one who had given testimony under the sanction of a judicial oath ; and hence the neces- sity of a colloquium about the time, place, and circumstances." Perhaps the best illustration of the rule of pleading in these cases is to be found in Barham's Case, 4 Rep. 20. The words, as laid, were, "Barham burnt my barn ;" (innuendo) a barn with corn. The action was held not to lie, because burning a barn, unless it had corn in it, was not felony; but, remarked De Gray, C. J., on this case in Rex v. Home, Cowp. 684: "If in the introduction it had been averred that the defendant had a barn full of corn, and that in a discussion about that barn the defendant had spoken the words charged, an innuendo of its being the barn full of corn would have been good." Here the extrinsic fact that the defendant had a barn full of corn is the averment. The allegation that the words were uttered in a con- versation in reference to that barn is the colloquium, and the explana- tion given to the words thus spoken is the innuendo. Van Vechten v. Hopkins, 5 Johns. 221, 4 Am. Dec. 339. "Nothing can be more clear," said Lord Ellenborough in Hawkes v. Hawkey, 8 East, 431, "than the rule laid down in the books, and that which has been constantly adopted in practice, not only when the words spoken do not in themselves naturally convey the meaning imputed by the innuendo, but also where they are ambiguous and equivocal, and require explanation by reference to some extrinsic matter to make them actionable ; it must not only be predicated that such matter existed, but also that the words were spoken of and concerning that matter." An innuendo, as has been often decided, cannot add to or enlarge, extend, or change the sense of the previous words, and the matter to which it refers must always appear from the antecedent parts of the declaration. Thomas v. Croswell, 7 Johns. 271, 5 Am. Dec. 269. It cannot supply the place of a colloquium. Lindsey v. Smith, 7 Johns. 359. "It would not be easy," says Mr. Starkie, "or perhaps possible, to point out a more clear and con- venient process for technically stating a case upon the record than this, which has with great wisdom been adopted by the law from very early times. It combines simplicity with precision, separating the law from the facts, and exhibiting a statement of the cause of action on the face of the record, plain and distinct in all its parts." i Starkie on Slander, 431. The decisions of this court have heretofore been entirely in accord with these principles. Shultz v. Chambers, 8 Watts, 300 ; Thompson v. Lusk, 2 Watts, 17, 26 Am. Dec. 91. Where the words themselves may be taken in a double sense, the innuendo is used in order to at- tach such meaning to them as the plaintiff claims was intended, or may think necessary to fender the same actionable. But whenever in such case the actionable quality of the words arises from circum- 382 LAW OF TORTS. stances extrinsic of them, averments are essential to show of record that such circumstances existed, and connect the words used with these circumstances. Gosling v. Morgan, 32 Pa. 273. And in Luke- heart v. Byerly, 53 Pa. 418, it was expressly decided that words laid in a count for slander, which are not actionable in themselves and have no colloquium to connect them with extrinsic circumstances, are not helped by the innuendo of larceny. The only difficulty has been in applying the rule in determining when the words used do, in their popular sense, convey the imputa- tion of a criminal charg'e, either singly or in one of two senses ; for then an innuendo is all that is necessary to fix the meaning, or, if not absolutely necessary, may nevertheless be used without danger. In Bricker v. Potts, 12 Pa. 200, it was held that words which in their ordinary import imply a false oath in a judicial proceeding are actionable, although in fact there was no such proceeding, and there- fore no colloquium is necessary. Dottarer v. Bushey, 16 Pa. 204, belongs to the same class. "If the words charged in a narr. for slander do not imply a criminal charge subject to infamous punish- ment, neither an innuendo nor a verdict will help them." Vanderlip v. Roe, 23 Pa. 82. If the slanderous words alleged to have been spoken contain a charge of fornication, no colloquium is necessary. "If the words laid do not of themselves involve the charge, or express the meaning repeated in the innuendo, then the colloquium is the place to insert the other facts, which give the color to the words laid, and without it there would be no cause of action." These are decisions that I have found bearing on this question, and I think it will be admitted that they have steered skillfully and successfully through these narrows of pleading. Now, in the words as laid in the first count of the declaration before us, there was no fault or blame or concealment alleged merely carrying away, with- out even the ingredient invito domino. In the popular sense, and certainly in the legal sense, there was nothing imputed by the words themselves but a trespass, if even that. It follows that the first count of the declaration was bad. Judgment reversed. (Other interesting cases are Harrison v. Manship, 120 Ind. 43, 22 N. E. 81 [here the words were, "He took and drove off rny ducks and sold them"] ; Carter v. Andrews, 16 Pick. 1 ["the library has been plundered by C.," the plaintiff] ; Snell v. Snow, 13 Mete. 278, 46 Am. Dec. 730 [plaintiff was called a "bad girl"] ; Riddell v. Thayer, 127 Mass. 487 ; Brettun v. Anthony, 103 Mass. 37; Henmens v. Nelson, 138 N. Y. 517, 34 N. E. 342, 20 L. R. A. 440 ["she entertained gentlemen company at all hours of the night"] ; Kinney v. Nash, 3 N. Y. 177; Sturtevant v. Root, 27 N. H. 69; Patterson v. Wilkinson, 55 Me. 42, 92 Am. Dec. 568; McLaughlin v. Fisher, 136 111. Ill, 24 N. E. 60; Smedley v. Soule, 125 Mich. 192, 84 N. W. 63 ; State v. Elliot, 10 Kan. App. 69, 61 Pac. 981. "The purpose of an innuendo," it is said, "is to define the defamatory meaning which the plaintiff attaches to the words, to show how they come to have that meaning, and how they relate to the plaintiff. But it SLANDER AND LIBEL. 383 cannot be used to Introduce new matter, or to enlarge the natural meaning of the words, and thereby give to the language a construction which it will not bear." Naulty v. Bulletin Co., 206 Pa. 128, 55 Atl. 862; Mattice v. Wil- cox, 147 N. Y. 624, 42 N. E. 270; Benton v. State, 59 N. J. Law, 551, 36 Atl. 1041 ; Kilgour v. Eve. Star Newspaper Co., 96 Md. 16, 53 Atl. 716 ; Williams v. Fuller [Neb.] 94 N. W. 118 ; State v. Shipprnan, 83 Minn. 441, 86 N. W. 431. By statute, in New York and a number of the states, when defamatory matter is ambiguous as to who is defamed by it, it is not necessary to allege in the complaint any extrinsic fact, to show the application of such matter to the plaintiff, but the plaintiff may state generally that "it was published or spoken concerning him ; and if that allegation be controverted, the plaintiff must establish it on the trial." N. Y. Code Civ. Proc. 535; Corr v. Sun Printing Ass'n, 177 N. Y. 131, 69 N. E. 288 ; Petsch v. St. Paul Dispatch Print- ing Co., 40 Minn. 291, 41 N. W. 1034 ; 18 Am. & Eng. Encyc. of Law [2d Ed.] 994. By the common-law rule, the extrinsic facts must be alleged. Miller v. Maxwell, 16 Wend. 9; Croswell v. Weed, 25 Wend. 621; Hanna v. Singer, 97 Me. 128, 53 Atl. 991.) VIII. SLANDER OF TITLE ; SLANDER OF PROPERTY. (5 N. Y. 14.) KENDALL v. STONE (in part). (Court of Appeals of New York. July, 1851.) 1. SLANDER OF TITLE PECUNIARY INJURY. To maintain an action for slander of title, the words must not only be false, but must be uttered maliciously, and be followed as a natural and legal consequence by pecuniary damage to plaintiff, which must be spe- cially alleged and proved. 2. SAME. By statements made by defendant as to plaintiff's title to a lot of land, a third person, who had entered into a written contract with plaintiff for the purchase of it, was induced to desire to withdraw from his agreement, to which plaintiff assented, and the contract was rescinded. Held, that plaintiff's loss of the sale was not the legal consequence of the words spoken by defendant, and plaintiff could not recover damages from him therefor. Appeal from Superior Court of the City of New York, General Term. Action for slander of title. Defendant appealed from a judgment for plaintiff, and from an order denying a motion for a new trial made on a bill of exceptions. GARDINER, J. The cause of action in this case is denominated "slander of title" by a figure of speech, in which the title to land is personified, and made subject to many of the rules applicable to per- sonal slander, when the words in themselves are not actionable. To 384 LAW OF TORTS. maintain the action, the words must not only be false, but they must be uttered maliciously, (Smith v. Spooner, 3 Taunt. 254; Pater v. Baker, 3 Man. G. & S. 868,) and be followed, as a natural and legal consequence, by a pecuniary damage to the plaintiff, which must be specially alleged in the declaration, and substantially proved on the trial, (Beach v. Ranney, 2 Hill, 314; Grain v. Petrie, 6 Hill, 524, 41 Am. Dec. 765.) The declaration in this case alleges, in the only count to which the evidence applies, that by means of the grievances divers good citizens, and especially one Asa H. Wheeler, were deterred from purchasing the lands in question, and the plaintiff was prevented from disposing of the same, and thereby deprived of the advantages to be derived from the sale thereof, etc. The loss of a sale to Wheeler is therefore the only special damage incurred by the plaintiff alleged in the declaration and established by the evidence. The superior court places the recovery upon this ground, and it is obviously the only one on which it can be sustained. Before the words were spoken the plaintiff and Wheeler had entered into an agreement in writing for the sale of the lot in question, which was executed by the vendor, and accepted by the vendee, who upon its delivery paid $250 towards the purchase money. The agreement was obligatory upon both par- ties. Either could have enforced a specific performance in equity, and thereby attained the precise result contemplated by the contract. Under these circumstances, the representations charged were made by the defendant. The effect of them was not to prevent a sale of the land, for that had been secured by the existing contract. Wheeler was induced by the misrepresentation to desire a relinquishment of the agreement. This was assented to by the plaintiff, the agreement was rescinded, and the note of the vendor received for the amount of the money advanced by the purchaser. This suit was then instituted, and special damages claimed of the defendant, substantially for the non-fulfillment of a contract which had been surrendered by the con- sent and agreement of the plaintiff. This is a brief statement of the proceeding. The court charged "that it was pretty manifest, from the testimony of Wheeler, that the plaintiff had sustained damages ; that the former would have taken the title, if it had not been for the words spoken by the defendant." To this there was an exception, and the question is whether the special damage alleged by the plaintiff, which is the gist of the action, was established by this evidence. There is no case that holds that, where the special damage consists in the violation of a contract, the plaintiff may discharge the obliga- tion, and then recover damages in an action of tort for its non- performance. The right claimed to be affected by the slander orig- inated in and subsisted by virtue of the contract. When that was discharged, it fell with it. The vendor and vendee elected to consider the agreement as null from the beginning. When the suit was insti- SLANDER AND LIBBL. 385 tuted, therefore, there could be no injury, for there was no right to be affected. Yet, under these circumstances, the plaintiff has been permitted to recover a thousand dollars by way of damages, because Wheeler wished to be discharged from a purchase of a lot, the stipu- lated value of which was $900, and was discharged by the vendor ac- cordingly. In Bird v. Randall, 3 Burrows, 1345, the action was for enticing a servant from the employment of the plaintiff. The servant was bound to the master for five years, under a penalty of 100. The plaintiff sued the servant, and recovered judgment, which was paid after the suit against the defendant was at issue and noticed for trial. It was held that the defendant was discharged. The recovery against the servant by him, and payment, put an end to the contract, as Lord Mansfield remarks, and in his reasoning he puts a satisfac- tion upon the same ground as a release or discharge of the contract. The judgment must be reversed. Judgment reversed, and new trial ordered. (See also Like v. McKinstry, 3 Abb. Dec. 62; Andrew v. Deshler, 45 N. J. Law. 167 ; Wren v. Weild, L. R. 4 Q. B. 730. In Burkett v. Griffith, 90 Cal. 532, 27 Pac. 527, 13 L. R. A. 707, 25 Am. St. Rep. 151, the nature of this action Is thus explained : "Although the term 'slander' is more appropriate to the def- amation of the character of an individual, yet the term 'slander of title' has by use become a recognized phrase of the law ; and an action therefore is per- mitted against one who falsely and maliciously disparages the title of another to property, whether real or personal, and thereby causes him some special pe- cuniary loss or damage. In order to maintain the action, it is necessary to establish that the words spoken were false, and were maliciously spoken by the defendant, and also that the plaintiff has sustained some special pecuniary damage as the direct and natural result of their having been so spoken." This case was for slander of title to realty. Other similar cases are Malachy v. Soper, 3 Bing. N. C. 371 ; Linden v. Graham, 1 Duer, 670 ; Cornwell v. Parke, 52 Hun. 596, 5 N. Y. Supp. 905, affirmed in 123 N. Y. 657, 25 N. E. 955 ; Paull v. Halferty, 63 Pa. 46, 3 Am. Rep. 518 ; Chesebro v. Powers, 78 Mich. 472, 44 N. W. 290. Cases of slander of title to personalty are Stevenson v. Love [C. C.] 106 Fed. 466; Like v. McKinstry, 41 Barb. 186, 3 Abb. Dec. 62; Andrew v. Deshler, 45 N. J. Law, 167 [title to a patent]. The name "slander of title" ap- plies not only to oral statements, but also to those made in writing. Paull v. Halferty, Chesebro v. Powers, Andrew v. Deshler, supra.) (35 Minn. 471, 29 N. W. 68, 59 Am. Rep. 335.) WILSON v. DUBOIS. (Supreme Court of Minnesota. July 20, 1886.) 1. SLANDER OF PROPERTY MALICIOUS DISPARAGEMENT OF PROPERTY. False and malicious statements disparaging an article of property, when followed, as a natural, reasonable, and proximate result, by special damage to the owner, are actionable. 2. SAME SPECIAL DAMAGE Loss OF SALE. Special damage is of the gist of the action; and, where the special damage relied on is loss of sale of the thing disparaged, it is indispensable CIIASE (2o ED.) 25 386 LAW OF TORTS. to allege and show loss of sale to some particular person, and, In the ab- sence of such allegation, the complaint is demurrable for failure to state a cause of action. Appeal from an Order of the District Court, Hennepin County, Sustaining Defendant's Demurrer to Plaintiff's Complaint. BERRY, J. The complaint alleges that plaintiff, a horse-dealer, owned, January 30, 1886, and still owns, a race-horse, which then was and still is for sale ; that on that day defendant maliciously pub- lished in a newspaper, (of large circulation,) of which he was pro- prietor, a statement that the horse was 21 years old, when he was not more than 12 years old, as defendant well knew, thereby intending to hinder the sale of the horse by plaintiff, to his pecuniary loss and damage ; that at said time plaintiff had "a chance to sell, and was negotiating a sale," of said horse for $1,000, and but for said false publication would have sold him for that sum; and that, solely be- cause of said false publication, "plaintiff lost the chance to sell said horse; the negotiations * * * were broken up by said parties who contemplated purchasing ; no one will pay for it more than $500 ; and plaintiff cannot sell his said horse for more than $500 ;" and that plaintiff has accordingly suffered damages in the sum of $500. False and malicious statements, disparaging an article of property, when followed, as a natural, reasonable, and proximate result, by special damage to the owner, are actionable. Paull v. Halferty, 63 Pa. 46, 3 Am. Rep. 518; Gott v. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322; Starkie, Sland. (Wood's 'Ed.) 212; Manning v. Avery, 3 Keb. 153; Broom, Comm. (6th Ed.) 761, 762; Swan v. Tappan, 5 Cush. 104; Western Co. v. Lawes Co., L. R. 9 Exch. 218; Odgers, Sland. 145 ; Townsh. Sland. 204. Does the complaint state a case under this rule ? That the state- ment complained of was false and malicious, is distinctly averred. It was also prima facie disparaging, for prima facie, as a matter of common knowledge, a horse at 21 years of age is less valuable than he is at 12. The complaint also alleges, in effect, that the plaintiff's loss of sale of his horse was the result of the publication ; and there is no difficulty in conceiving of a state of facts showing that the in- tending purchaser was influenced, and led to decline or refuse to pur- chase, by the publication complained of, and hence no difficulty in conceiving that the failure to sell to him may have been a natural, reasonable, and proximate consequence of said publication. But the allegation of special damage is insufficient. The action is in the nature of one for slander of title, (Western C. M. Co. v. Lawes C. M. Co., L. R. 9 Exch. 218,) and hence it is not the ordinary action for slander, properly so called, "but an action on the case, for special dam- ages sustained by reason of the speaking" complained of. I Sauncl. 2436, note n ; Malachy v. Soper, 3 Bing. N. C. 371 ; Brook v. Rawl, SLANDER AND LIBEL. 387 4 Welsh., H. & G. 521. Special damages are therefore of the gist of the action. Wetherell v. Clerkson, 12 Mod. 597. Without them the action cannot be maintained, and therefore a complaint failing to allege them failed to allege a cause of action. Starkie, Sland. 212 ; Wetherell v. Clerkson, supra ; Cook v. Cook, 100 Mass. 194. Where loss of sale of a thing disparaged is claimed and relied on as special damages occasioned by the disparagement, it is indispensable to allege and show a loss of sale to some particular person, for the loss of a sale to some particular person is the special damage, and of the gist and substance of the action. I Roll. Abr. 58 ; Manning v. Avery, 3 Keb. 153; Tasburgh v. Day, Cro. Jac. 484; Evans v. Harlow, 5 Q. B. 624; Tobias v. Harland, 4 Wend. 537 ; Kendall v. Stone, 5 N. Y. 14; Swan v. Tappan, 5 Cush. 104; Linden v. Graham, I Duer, 670; Hartley v. Herring, 8 Term. R. 130; Hallock v. Miller, 2 Barb. 630; Malachy v. Soper, supra ; Ashford v. Choate, 20 U. C. C. P. 471 ; 3 Suth. Dam. 674; Stiebeling v. Lockhaus, 21 Hun, 457; Cramer v. Cullinane, 2 McArthur, 197; Bergmann v. Jones, 94 N. Y. 51 ; Bassell v. Elmore, 48 N. Y. 563 ; Cook v. Cook, 100 Mass. 194 ; Pollard v. Lyon, 91 U. S. 225 ; Odgers, Sland. 313 ; Folk. Starkie, Sland. (Wood's Ed.) 136; Wetherell v. Clerkson, supra; Swan v. Tappan, supra; Paull v. Halferty, supra ; Gott v. Pulsifer, supra ; and see declarations or complaints in many of the foregoing cases, especially the two last cited. The rule is not technical, but substantial. It imposes no hardship upon the plaintiff. If there is a person to whom a sale could have been made, in the absence of the disparagement, he can be named, so as to inform defendant of the particular charge of damage which he is required to meet. Wetherell v. Clerkson, supra. If there is no such person, there is no cause of action; and it follows that the failure to name the particular person or persons to whom a sale could have been effected, if it had not been prevented by the disparagement, does not present a case of mere indefiniteness, but of total absence of an allegation essential to the statement of a cause of action, ^-a lack oi substance, not of form, (Cook v. Cook, supra; Pollard v. Lyon, supra ;) and therefore a case for a demurrer, rather than for a motion to make more definite and certain. Pom. Rem. 549. Order sustaining demurrer approved, and case remanded for further proceedings. (For another case of disparagement of goods, see Gott v. Pulsifer, 122 Mass 235, 23 Am. Rep. 322, also ante, p. 69. See also Boynton v. Shaw Stocking Co. 146 Mass. 219, 15 N. E. 507 ; Tobias v. Harland, 4 Wend. 537 ; Le Massena v. Storm, 62 App. Div. 150, 70 N. Y. Supp. 882, and cases cited. The doctrin* applies to written statements as well as to those that are spoken. Id. No action will lie unless special damage is proved. Id. ; White v. Mellin [1895j A. C. 154 ; Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, 64 N. E. 163, 59 L. R. A. 310. If the disparagement of another dealer's wares be simply "putting" or declaring the superiority of one's own, this will not be actionable, 388 LAW OF TORTS. even though the statement be untrue and occasion damage. Hubbuck v. Wil- kinson [1899] 1 Q. B. 80; Nonpareil Cork Mfg. Co. v. Keasbey & Mattison Co. [C. C.] 108 Fed. 721. Similar rules apply to a libel or slander on one's business [Dudley v. Briggs, 141 Mass. 582, 6 N. E. 717, 55 Am. Rep. 494] ; or on his place of busi- ness [Kennedy v. Press Pub. Co., 41 Hun, 422] ; as, e. g., where a newspaper published that a man's boarding house and restaurant was a resort for an- archists [Bosl v. New York Herald Co., 33 Misc. Rep. 622, 68 N. Y. Supp. 898 ; Id., 58 App. Div. 619, 68 N. Y. Supp. 1134]. In Dooling v. Budget Pub. Co., 144 Mass. 258, 10 N. E. 809, 59 Am. Rep. 83, defendant published of a dinner furnished by a caterer that it was "wretched," that it was served "in such a way that hungry barbarians might justly object" and that "the cigars were simply vile, and the wines not much better." Held, not actionable without proof of special damage.) TRESPASS TO LAND. I. WHAT CONSTITUTES A TRESPASS. (74 Me. 163.) HATCH v. DONNELL. (Supreme Judicial Court of Maine. November 17, 1882.) TEESPASS TO LAND WHAT CONSTITUTES. An entry upon the land of another, without any permission, express or implied, constitutes a trespass, for which damages are recoverable, though merely nominal. On report. Action of trespass quare clausum fregit. The parties were adjoin- ing owners, the dividing line being in dispute. The declaration al- leged two acts of trespass, one in 1880, when defendant drove his horse and plow over plaintiff's lands, and one in 1881, when defendant cultivated the land in dispute. APPLETON, C. J. This is an action of trespass for breaking and entering the plaintiff's close. The lots of the plaintiff and defendant are adjacent. The defendant, when plowing his land, brought his horse and plow on the plaintiff's land, treading down her grass and knocking off bark from her trees. This is the trespass complained of. The defendant had no right of entry upon the plaintiff's land. His entry was a trespass. Permission was not asked, nor license given. The plaintiff in no way consented and the defendant never asked TRESPASS TO LAND. 389 consent. The parties rely on their strict legal rights, neither asking of nor giving any favor to the other. The relation of the parties the sedulous care of each to preserve existing rights negatives the idea of implied, equally as of express, permission or license. In Harmon v. Harmon, 61 Me. 222, and in Lakin v. Ames, 10 Cush. 198, there was the fact of relationship between the parties, from which, with the other circumstances, license was inferred. Here there was no such fact. No friendly relations were existing between the parties. Their attitude was mutually adverse. The damages are merely nom- inal. Judgment for plaintiff for one dollar. BARROWS, DANFORTH, VIRGIN. PETERS, and SY- MONDS, JJ., concurred. (The following acts have been held to be trespasses to land: Extending one's arm over a fence dividing his land from that of his neighbor [Hannabal- son v. Sessions, 116 Iowa, 457, 90 N. W. 93, 93 Am. St Rep. 250] ; projecting the eaves of one's barn over the neighbor's close [Smith v. Smith, 110 Mass. 302] ; setting up telegraph poles on one's land, without his consent [Board of Trade Telegraph Co. v. Barnett, 107 111. 507, 47 Am. Rep. 453] ; cutting down tele- graph poles standing in the highway [American Union Telegraph Co. v. Mid- dleton, 80 N. Y. 408] ; casting material on another's land, though without negligence [Mairs v. Real Estate Ass'n, 89 N. Y. 498] ; fox hunting over another's land without his consent [Paul v. Summerhays, 4 Q. B. D. 9]. All persons who encourago or incite, by words or deeds, the commission of a tres- pass, arc liable therefor. Brown v. Perkins, 1 Allen, 89.) (12 Wend. 98.) GIDNEY v. EARL (in part). (Supreme Court of New York. May, 1834.) TBESPASS APPROPRIATION OF SOIL OF HIGHWAY RIGHT OF ADJOINING LAND- OWNER. ' For an appropriation of the soil of a public highway, trespass lies by the owner of the land through which the highway passes. Error from the Saratoga common pleas. Gidney sued Earl in a justice's court in an action of trespass for digging up and removing the soil from a highway passing through the land of the plaintiff. It was admitted that the plaintiff owned and occupied the land opposite to which the soil was taken, on both sides of the road, except a burying ground on the south side of the road. The soil was taken from the north side of the road and deposited in the defendant's garden. It was objected by the defendant that the fact of the plaintiff owning the lands opposite the highway did not prove title in him to the high- way, nor possession, so as to enable him to maintain trespass against 390 LAW OF TORTS. the defendant. The objection was sustained by the justice, who rendered judgment against the plaintiff for costs. The plaintiff sued out a certiorari, and the common pleas of Saratoga affirmed the judg- ment of the justice. The plaintiff thereupon sued out a writ of error. NELSON, J. The public highways in this state were generally laid out and opened according to the provisions of some statute law existing at the time. Prescription or use of 20 years or more of a oad gives to the public a right to the enjoyment of it for that pur- pose in some cases. The right of way, public or private, is but an incorporeal hereditament an easement which, per se, does not divest the owner of the fee of the land ; and for every other purpose except the use or servitude as a public highway the soil belongs to him, and he is entitled to the same remedies for an injury to this residuary in- terest {hat he would be entitled to if it was entire and absolute. When, therefore, a road runs through a man's close, prima facie the fee of the land over which the road passes belongs to him as much as it does in any other part of the lot or tract. The law will not presume a grant of a greater interest or estate than is essential to the enjoyment of the public easement; the rest is parcel of the close. The fact that the highway is fenced on each side is for the convenience of the owner, and has no necessary connection with the road. It follows, from the above view, that the person in possession of the farm or lot through which the highway passes is, in contem- plation of law, in possession of the highway, subject to the public easement; for, being in possession of the .lot, he is prima facie in possession of every parcel of it. This principle is recognized by the court in Cortelyou v. Van Brunt, 2 Johns. R. 363, where it is said the general rule here is that the fee of the highway belongs to the owner of the adjoining ground, and that the sovereign has only a right of passage. It is but a servitude or easement, and trespass will lie for any exclusive appropriation of the soil. Judgment reversed. (It Is the general common law rule that the owners of land on each side of a public highway own to the centre of the road, subject to the public right of passage. "They may maintain an action of trespass against any person who digs up the soil of it, or cuts down any trees growing on the side of the road, and left there for shade or ornament. They may carry water in pipes under the highway, and have every use and remedy that is consistent with the servitude or easement of a way over it and with police regulations." 3 Kent's Comm. 432. See also Bloomfield & R. Gaslight Co. v. Calkins. 62 N. Y. 386 ; Hunt v. Rich, 38 Me. 195 ; Hickman v. Maisey [1900] 1 Q. B. 752 ; Harrison v. Duke of Rutland [1893] 1 Q. B. 142.) TRESPASS TO LAND. 891 (9 Barb. 652.) NEWKIRK v. SABLER. (Supreme Court of New York. December 2, 1850.) TRESPASS TO LAND ENTBT TO TAKE AWAY PROPERTY REPELLING BY FORCE. Plaintiff, having been forbidden to cross defendant's lands, sent his servant with a team across them. On the servant's return to the bars where he had entered, he found them nailed up ; whereupon he left the team on defendant's land, and went and informed plaintiff, who came and commenced tearing down the fence, in order to take away his team, and, persisting in his attempt, after being forbidden by defendant, a fight ensued, and plaintiff was injured. Held, that plaintiff had no right to enter upon defendant's land to take away his property without the express or implied consent of defendant, and that defendant had the right to protect his possession and property by force, and was not liable unless the force used was .greater than necessary for such purpose. f Appeal from Circuit Court, Ulster County. Action for assault and battery. At the trial it appeared that, after defendant had forbidden plaintiff crossing his farm lands, plaintiff sent his servant with a team across such lands. The servant entered by taking down bars, which, on his return, he found defendant had nailed up. After an ineffectual attempt to get through, he left the team on defendant's lands, and went after plaintiff, who came and commenced tearing down the fence to take away his team ; and, refusing to desist on defendant's demand, a fight ensued, but plaintiff succeeded in getting down the fence and taking his team away. For the injuries to plaintiff in the fight he brought this action. The judge charged the jury that plaintiff had the right to take his team away, even though wrongfully on the premises, and if he did no more dam- age than necessary for that purpose defendant was not justified in using force, and that the real question was as to whether plaintiff was at the time engaged in wanton and unnecessary destruction of the defendant's fences ; to which charge defendant excepted. The jury found a verdict for plaintiff for $50. From the judgment for plaintiff entered on the verdict, defendant appealed. PARKER, J. I think the learned justice erred in holding that the plaintiff had a right to enter upon the lands of the defendant for the purpose of regaining possession of his property. The right to land is exclusive ; and every entry thereon, without the owner's leave, or the license or authority of law, is a trespass. 3 Bl. Comm. 209; Percival v. Hickey, 18 Johns. 285, 9 Am. Dec. 210. There is a variety of cases where an authority to enter is given by law; as, to execute legal process ; to distrain for rent ; to a landlord or reversioner, to see that his tenant does not commit waste, and keeps the premises in repair according to his covenant or promise ; to a creditor, to demand money 392 LAW OF TORTS. payable there ; or to a person entering an inn, for the purpose of getting refreshment there. 3 Bl. Comm. 212; i Cow. Treat. 411. In some cases, a license will be implied ; as, if a man makes a lease, reserving the trees, he has a right to enter and show them to the purchaser. Lampet v. Starkey, 10 Coke, 46. Where the owner of the soil sells the chattels being on his land; as, if he sell a tree, a crop, a horse, or a fanning-mill, which remain within his close, he at the same time passes to the vendee, as incident to such sale, a right to go upon the premises, and take away the subject of his purchase, without being adjudged a trespasser. I Cow. Treat. 367 ; Bac. Abr. "Trespass," F; Winterbourne v. Morgan, n East, 396; 2 Rolle, Abr. 567, m. n. i. And if a man in virtue of his license erects a building on another's land, this license cannot be revoked so entirely as to make the person who erected it a trespasser for entering and remov- ing it after the revocation. In some cases the motive will excuse the entry. If J. S. goes into the close of J. N. to succor the beast of J. N., the life of which is in danger, an action of trespass will not lie ; because as the loss of J. N., if the beast had died, would have been irremediable, the doing of this is lawful. But if J. S. go into the close of J. N. to prevent the beast of J. N. from being stolen, or to .prevent his corn from being consumed by hogs, or spoiled, the action of trespass lies ; for the loss, if either of the ;e things had happened, would not have been irremediable. Bac. Abr. "Trespass,"' F. And if a stranger chase the beast of A, which is damage-feasant therein, out of the close of B, trespass will lie ; for by doing this, although it seems to be for his benefit, B is deprived of his right to distrain the beast. Brooke, Abr. "Trespass," pi. 421 ; Keilw. 46. In some cases, the entry will be excused by necessity; as, if a pub- lic highway is impassable, a traveler may go over the adjoining land. Absor v. French, 2 Show. 28; Asser v. Finch, 2 Lev. 234; Young v. , i Ld. Raym. 725. But this would not extend to a private way ; for it is the owner's fault if he does not keep it in repair. Taylor v. Whitehead, 2 Doug. 747; Pomfret v. Ricroft, 1 Saund. 321. So if a man who is assaulted, and in danger of his life, run through the close of another, trespass will not lie, because it is necessary for the preservation of his life. Y. B. 37 Hen. VI. 37, pi. 26. If my tree be blown down, and fall on the land of my neighbor, I may go on and take it away. Brooke, Abr. "Trespass," pi. 213. And the same rule prevails where fruit falls on the land of another. Miller v. Fawdry, Latch, 120. But if the owner of a tree cut the loppings so that they fall on another's land, he cannot be excused for entering to take them away, on the ground of necessity, because he might have prevented it. Bac. Abr. "Trespass," F. Sometimes the right of action depends on the question, which is the first wrongdoer? If J. S. have driven the beast of J. N. into the close of J. S., or if it have been driven therein by a stranger, with TRESPASS TO LAND. 393 the consent of J. S., and J. N. go thereinto and take it away, trespass will not lie, because J. S. was himself the first wrong-doer. 2 Rolle, Abr. 566, pi. 9; Chapman v. Thumblethorp, Cro. Eliz. 329. Tested by that rule, the plaintiff in this suit certainly has no right of action ; for he was the first wrong-doer. But it is well settled that where there is neither an express nor an implied license, nor any such legal excuse as is above stated, a man has no right to enter upon the land of another for the puipose of taking away a chattel being there, which belongs to the former. The mere fact that the plaintiff owns the chattel gives him no authority to go upon the land of another to get it. In Heermance v. Vernoy, 6 Johns. 5, where A has entered upon the land of B without his permission, to take a chattel belonging to A, it was held to be a trespass. So in Blake v. Jerome, 14 Johns. 406, a mare and colt were taken out of the plaintiff's field, by a person who acted under the orders and directions of the defendant, after they had been demanded by the defendant and refused to be delivered to him, and after he had been expressly forbidden to take them ; and the defendant was held to be guilty of a trespass. In this case, the plaintiff's horses and wagon were on the lands of the defendant, where they had been left by the servant of the plaintiff. They were not there by the defendant's permission. On the contrary, the plaintiff had been guilty of a trespass in sending his team across the lands of the defendant after he had been forbidden to do so. And 1 think the defendant had the right to detain them before they left the premises, and to distrain them damage-feasant. 2 Rev. St. p. 427. But it is not necessary to decide whether the defendant detained the property rightfully or wrongfully. The plaintiff attempted to enter upon the lands of the defendant and against his will, for the purpose of taking away his property. This he had no right to do, even though his property was unlawfully detained there. If the plaintiff could not regain the possession of his property peaceably, he should have resorted to his legal remedy, by which he could, after demand and refusal, have recovered the property itself or its value. He had no right to redress himself by force. 3 Bl. Comm. 4. In pursuing his object, the plaintiff tore down the defendant's fence after he had been forbidden to enter, and after he had been ordered by the defendant to desist. The defendant had a right to protect himself in the enjoyment of his possession and his property, by defending them against such aggression. Weaver v. Bush, 8 Term R. 78; Gregory v. Hill, Id. 299; Greene v. Jones, I Saund. 296, note I ; Green v. Goddard, 2 Salk. 641 ; Turner v. Mey- mott, I Bing. 158; 3 Bl. Comm. 5. The defendant cannot be held liable for the injuries inflicted upon the plaintiff on the occasion in question, unless he used more force than was necessary for the defense of his possession ; and it seems he did not use enough to prevent the plaintiff's effecting his forcible 394 LAW OF TORTS. entry and taking away the property. But that was a question propei to be submitted to the jury. The judgment of the circuit court must be reversed, and a new trial awarded, costs to abide the event. (See also Anthony v. Haney, 8 Bing. 186; Blades v. Higgs, 11 H. L. C. ';_>!: Smith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 Am. St. Rep. 485; Me- Leod v. Jones, 105 Mass. 403, 7 Am. Rep. 539 ; Crocker v. Carson, 33 Me. 436 ; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80.) (1 N. T. 515, 49 Am. Dec. 346.) VAN LEUVEN v. LYKE et al. (Court of Appeals of New York. November, 1848.) 1. TRESPASS TO LAND DOMESTIC ANIMALS. The owner of domestic animals, such as horses, oxen, sheep, swine, etc., is liable to an action of trespass quare clausum fregit if they escape from his premises and go upon the land of another, though he had no notice in fact of their having such propensity. There are other actions for injuries done by animals in which scienter must be proved, but this is not the case when the action is for a trespass. 2. SAME. Plaintiff's cow and calf were killed by being bitten by defendants' sow and pigs in plaintiff's close, while the cow was in the act of calving. Held, that plaintiff could not recover, as he did not allege in his declara- tion or prove at the trial that defendants knew of such vicious propensity on the part of the sow and pigs, or that the animals were trespassing on plaintiff's close. Error to Supreme Court. i Action of trespass brought in a justice's court. Plaintiff recovered judgment, which was affirmed on certiorari by the court of common pleas, but reversed by the supreme court on error. 4 Denio, 127. To review the judgment of the supreme court plaintiff brought error. JEWETT, C. J. It is alleged in the plaintiff's declaration "that on the 27th day of November, 1844, at" etc., "the defendants were the owners of a certain sow and pigs, which sow and pigs, to-wit, on the day and year aforesaid, to-wit, at the place aforesaid, bit, dam- aged, and mutilated and mangled a certain cow and calf of the plain- tiff, while the said cow was in the act of calving, so that said cow and calf both died, to the plaintiff's damage $50;" to which the de- fendants pleaded the general issue. There was evidence given on the trial sufficient to warrant the jury in finding that the plaintiff's cow and calf were destroyed by the defendants' sow and pigs in the manner set forth in the declaration, upon the land of the plaintiff, where the sow and pigs were at the time of committing the said in- TRESPASS TO LAND. 895 jury. But there is no allegation in the declaration, or evidence given on the trial, that swine possess natural propensities which lead them, instinctively,, to attack or destroy animals in the condition of plain- tiff's cow and calf. Nor is there any allegation or evidence that the defendants previously knew, or had notice, that their swine were accustomed to do such or similar mischief, or that the swine broke and entered the plaintiff's close, and there committed the mischief complained of. It is a well-settled principle that, in all cases where an action of trespass or case is brought for mischief done to the person or personal property of another by animals mansuetse naturae, such as horses, oxen, cows, sheep, swine, and the like, the owner must be shown to have had notice of their viciousness before he can be charged, because such animals are not by nature fierce or dangerous, and such notice must be alleged in the declaration; but as to animals ferae naturae, such as lions, tigers, and the like, the person who keeps them is liable for any damage they may do, without notice, on the ground that by nature such animals are fierce and dangerous. 9 Bac. Abr. tit. "Trespass," 1-505, 506; Jenkins v. Turner, I Ld. Raym. 109; Mason v. Keeling, Id. 606, 12 Mod. 332; Rex v. Huggins, 2 Ld. Raym. 1583, i Chit. PL (Ed. 1812,) 69, 70; Vrooman v. Lawyer, 13 Johns, 339; Hinckley v. Emerson, 4 Cow. 351, 15 Am. Dec. 383. But this rule does not apply where the mischief is done by such animals while committing a trespass upon the close of another. The common law holds a man answerable, not only for his own trespass, but also for that of his domestic animals; and as it is the natural and notorious propensity of many such animals, such as horses, oxen, sheep, swine, and the like to rove, the owner is bound, at his peril, to confine them on his own land ; and if they escape, and commit a trespass on the lands of another, unless through defect of fences which the latter ought to repair, the owner is liable to an action of trespass quare clausum fregit, though he had no notice in fact of such propensity. 3 Bl. Comm. 211 ; I Chit. PI. 70. And where the owner of such animals does not confine them on his own land, and they escape and commit a trespass on the lands of another, without the fault of the latter, the law deems the owner himself a trespasser for having permitted his animals to break into the inclosure of the former under such circumstances; and, in declaring against the de- fendant in an action for such trespass, it is competent for the plaintiff to allege the breaking and entering his close by such animals of the defendant, and there committing particular mischief or injury to the person or property of the plaintiff, and, upon proof of the allega- tion, to recover as well for the damage for the unlawful entry as for the other injuries so alleged, by way of aggravation of the trespass, without alleging or proving that the defendant had notice that his ani- 396 LAW OF TORTS. mals had been accustomed to do such or similar mischief. The break- ing and entering the close in such action is the substantive allegation, and the rest is laid as matter of aggravation only. This principle is recognized as sound by several adjudged cases. In the case of Beckwith v. Shordike, 4 Burrows, 2092, the action was trespass for entering the plaintiff's close with guns and dogs, and killing his deer. The evidence showed that the defendants en- tered with guns and dogs, into a close of the plaintiff adjoining to his paddock, and that their dog pulled down and killed one of the plaintiff's deer. It was held to be sufficient evidence to prove the defendants trespassers, and they were held liable for the injury done by their dog, although it was not shown that they had any knowledge or notice of the propensity of the dog to do such or similar injury. In Angus v. Radin, 5 N. J. Law, 815, 8 Am. Dec. 626, the action was trespass for the defendant's oxen breaking into the inclosure of the plaintiff, and there goring his cow, so as to kill her ; and upon the ground that the defendant had neglected to confine his oxen on his own land, and that they were trespassing on the land of the plaintiff, he was held liable for the injury done, although it was not alleged or proved that he knew or had notice of the propensity of his oxen to commit such an injury. And so in Dolph v. Ferris, 7 Watts & S. 367, 42 Am. Dec. 246, where the action was trespass before a jus- tice of the peace, and there tried without any declaration having been filed. Therefore the court held that the case must be considered as if the case had been tried on the most favorable declaration for the plaintiff which the evidence would have warranted. The evidence was that the bull of the defendant, which was running at large, broke and entered into the inclosure of the plaintiff, where his horse was feeding on the grass growing therein, and gored him so that he died by rea- son thereof in a few days. The court held it to be clear from the evidence that the defendant might have been declared against for having broken and entered the close of the plaintiff, and the grass and herbage of the plaintiff, there lately growing, with his bull eaten up, trod down, and consumed, and might also have been charged in the same declaration with having killed or destroyed the plaintiff's horse or colt with his bull. But in the case under consideration there is no allegation charging the defendants' swine with doing any act for which the law holds the defendants accountable to the plaintiff without alleging and proving a scienter. Had the plaintiff stated in his declaration such ground of liability, or had charged that the swine broke and entered his close, and there committed the mischief complained of, and sustained his declaration by evidence, I am of opinion that he would have been entitled to recover all the damages thus sustained; but, as he has not stated in his declaration either ground of liability, the defendants ought not to be deemed to have TRESPASS TO LAND. 397 waived the objection by not making it specifically before the justice. I think the judgment should be affirmed. Judgment affirmed. (See also Phillips v. Covell, 79 Hun, 210, 29 N. T. Supp. 613 [trespass by sheep]. Where a person's horse kicked and bit a mare on adjacent premises, this was held a trespass, as the horse's mouth and feet protruded through the fence over the land. Ellis v. Loftus Iron Co., L. R. 10 C. P. 10.) II. TRESPASS IS AN INJURY TO THE POSSESSION. (15 111. 558.) HALLIGAN v. CHICAGO & R. I. R. CO. (Supreme Court of Illinois. June Term, 1854.) 1. TRESPASS TO LANDS WHO MAY MAINTAIN. The gist of the action of trespass to lands is the injury to the posses- sion, and he only can maintain the action who either has or is entitled to the possession. Where the land is occupied by the owner's tenant, the owner cannot maintain the action. 2. SAME PLEADING DUPLICITY. A single trespass may be committed on several closes, and one action maintained therefor as one trespass. Appeal from Circuit Court, La Salle County. Action of trespass to land, brought by Patrick Halligan against the Chicago & Rock Island Railroad Company. Defendant's de- murrer to the declaration was sustained, and plaintiff appealed. TREAT, C. J. This was an action of trespass quare clausum fregit, brought by Halligan against the Chicago & Rock Island Railroad Company. The first three counts of the declaration alleged, in sub- stance, that the defendant, on the ist of January, 1853, broke and en- tered two closes, the property of the plaintiff, situated in the county of La Salle, and described as the west half of lot 10, in block 152, and lot 3, in block 16, in the city of Peru, and pulled down and de- stroyed two houses standing thereon. The fourth count alleged that the defendant, "on the day and year aforesaid, with force and v arms, broke and entered the aforesaid closes of the said Patrick Halligan, and then and there ejected, expelled, put out, and amoved the said Patrick Halligan and his family and servants, and divers other per- sons, to-wit, Michael Pendergast and Alexander Frinkler, tenants of the said Patrick Halligan, (said tenants then and there using and occupying said premises for hire, and paying unto the said Patrick Halligan therefor at the rate of $1,000 per annum,) from the posses- sion, use, occupation, and enjoyment of the said premises, and kept 398 LAW OF TORTS. and continued the said Patrick Halligan and his family and servants, and also his said tenants, so ejected, expelled, put out, and amoved, for a long space of time, to-wit, from thence hitherto; whereby the said Patrick Halligan, for and during all that time, lost and was de- prived of the use and benefit of the said premises, and of the rents, issues, and profits thereof, accruing to the said Patrick Halligan from said tenants, to-wit, at the county aforesaid, to the damage of the said Patrick Halligan." The defendant demurred to the declara- tion, and assigned, as special causes of demurrer to the fourth count, that it alleged two distinct causes of action, and showed the locus in quo to have been in the possession of other parties. The court overruled the demurrers to the three first counts, and sustained the demurrer to the fourth count. The plaintiff thereupon entered nolle prosequi as to the first three counts, and the defendant had judgment on the demurrer to the fourth count. The question in the case is whether the fourth count shows a cause of action in the plaintiff. The first objection to the count is not tenable. An allegation of a trespass to two or more closes is allowa- ble. A single trespass may be committed on several closes. If a party at the same time enters upon two closes belonging to another, he may be treated as guilty of but one trespass. The owner may, on a single count, recover damages commensurate with the injury. This count alleges an entry on both lots as one act, and is therefore not obnoxious to the charge of duplicity. See Tapley v. Wainwright, 5 Barn. & Adol. 395 ; Phythian v. White, I Mees. & W. 216. To maintain trespass quare clausum fregit, the plaintiff must have the actual or constructive possession of the premises. The gist of the action is the injury to the possession. If the premises are oc- cupied, the action must be brought by the party in possession ; if unoccupied, by the party having the title and the right to the pos- session. The owner cannot maintain the action, where the land is in the occupancy of his tenant. The trespass is a disturbance of the tenant's possession, and he alone can bring the action. Bac. Abr. "Trespass," c. 3; I Chit. PI. 202; Campbell v. Arnold, I Johns. 511; Holmes v. Seely, 19 Wend. 507; Bartlett v. Perkins, 13 Me. 87; Rous- sin v. Benton, 6 Mo. 592 ; Davis v. Clancy, 3 McCord, 422. If the trespass is prejudicial to the inheritance, the remedy of the owner is by an action on the case. He may, in that form of action, recover damages for any injury to the freehold. Bedingfield v. Onslow, 3 Lev. 209; Jesser v. Gifford, 4 Burrows, 2141; Lienow v. Ritchie, 8 Pick. 235 ; Brown v. Dinsmoor, 3 N. H. 103 ; Randall v. Cleaveland, 6 Conn. 328 ; Hall v. Snowhill, 14 N. J. Law, 8. If Pendergast and Frinkler were in the possession of the lots as the tenants of the plaintiff when the injury was committed, it is clear that they alone can maintain trespass. In such event, the entry was TRESPASS TO LAND. 399 an interference with their possession. The plaintiff had no possession to be invaded. For an injury to the reversion, he has an adequate remedy in another form of action. The count in question does not disclose a state of case that entitles the plaintiff to maintain the ac- tion of trespass. It shows that the lots were in the actual possession of his tenants. It alleges that his "tenants were then and there using and occupying said premises for hire, and paying unto him therefor at the rate of $1,000 per annum." This language clearly implies a leasing of the whole of the lots, and an exclusive possession thereof by the tenants. Nor is there anything in the count that is necessarily inconsistent with the truth of this averment. It indeed alleges an expulsion of the plaintiff and his family from the lots. It may, how- ever, be that they were temporarily on the premises as the guests of the tenants, or for some purpose consistent with an exclusive right in the tenants. If so, the injury complained of only amounted to a trespass to their persons. The count does not show such a possession in the plaintiff as authorizes him to maintain trespass quare clausum fregit. It ought clearly to show that he had the actual or constructive possession of the premises, or some part thereof. If the lease reserved a part of the lots, or if the plaintiff was at the time of the trespass in the exclusive possession of some portion thereof, the count should so have stated. As respects such portion, the action might be sustained. There was no occasion for the plain- tiff to refer to the lease ; but, having introduced it into the declaration, it was incumbent on him to show that it did not conclude him from maintaining the action. There are some cases which hold that trespass quare clausum fregit may be maintained by the owner for an injury to the freehold, though the land may be in the possession of his tenant at will. Starr v. Jack- son, II Mass. 519; Hingham v. Sprague, 15 Pick. 102; Curtiss v. Hoyt, 19 Conn. 154, 48 Am. Dec. 149; Davis v. Nash, 32 Me. 411. And it is insisted that this action may be sustained on the authority of these cases. But there is a conclusive answer to this position. It does not appear that the parties in possession were the tenants at will of the plaintiff. The precise character of the tenancy is not stated in the declaration. It is alleged that Pendergast and Frinkler were the lessees of the premises, paying rent therefor at the rate of $1,000 per annum. The inference from this statement is that the demise was for a definite period, as a month or a year, rather than at the mere will of the lessor. In order to sustain the case on the ground indi- cated, it should distinctly appear that Pendergast and Frinkler were tenants at the will of the plaintiff. Intendments are not indulged to sustain a pleading. If subject to the charge of uncertainty or am- biguity, -it is to be construed most strongly against the pleader. If an allegation is equivocal, and two meanings present themselves, 400 LAW OF TORTS. the one will be adopted that is most unfavorable to the party pleading, i Chit. PI. 272; Steph. PI. 379. The judgment is affirmed. (To the same effect are Gait v. Chicago & N. W. R. Co., 157 111. 125, 132, 41 N. E. 643; Gunsolus v. Lormer, 54 Wis. 630, 12 N. W. 62; Bascoui v. Dempsey, 143 Mass. 409, 9 N. E. 744; Percival v. Chase, 182 Mass. 371, Go N. E. 800; Alexander v. Hard, 64 N. Y. 228; Zorn v. Haake, 75 Hun, 235. 27 N. Y. Supp. 38 ; Chandler v. Walker, 21 N. H. 282, 53 Am. Dec. 202 ; Bur- gess of New Windsor v. Stocksdale, 95 Md. 196, 52 Atl. 596; More v. Perry, 61 Mo. 174.) III. TRESPASS AB INITIO. (8 Coke, 146a, 1 Smith, Lead. Gas. 62.) SIX CARPENTERS' CASE (in part). (Court of King's Bench. Michaelmas Term, 1610.) 1. TRESPASS TO LAND AB INITIO. The abuse of a license to enter premises given by law makes the party a trespasser ab initio ; but otherwise where the license to enter was given by the person in possession. 2. SAME WHAT CONSTITUTES. Defendants went into plaintiff's public tavern, ordered and drank wine, and then refused to pay for it Held, that they were not trespassers ab initio ; for the mere not doing is no trespass. In trespass brought by John Vaux against Thomas Newman, car- penter, and five other carpenters, for breaking his house, and for an assault and battery, ist September, 7 Jac., in London, in the par- ish of St. Giles extra Cripplegate, in the ward of Cripplegate, etc., and upon the new assignment, the plaintiff assigned the trespass in a house called the "Queen's Head." The defendants to all the tres- pass praeter fractionem domus pleaded not guilty, and as to the breaking of the house, said that the said house praed' tempore quo, etc., et diu antea et postea, was a common wine tavern, of the said John Vaux, with a common sign at the door of the said house fixed, etc., by force whereof the defendants, prsed' tempore quo, etc., viz., bora quarta post meridiem into the said house, the door thereof being open, did enter, and did there buy and drink a quart of wine, and there paid for the same, etc. The plaintiff, by way of replication, did confess that the said house was a common tavern, and that they entered into it, and bought and drank a quart of wine, and paid for it ; but further said that one John Ridding, servant of the said John Vaux, at the request of the said defendants, did there then deliver them another quart of wine, and a pennyworth of bread, amounting TRESPASS TO LAND. 401 to 8d., and then they there did drink the said wine, and eafthe bread, and upon request did refuse to pay for the same: upon which the defendants did demur in law : and the only point in this case was, if the denying to pay for the wine, or non-payment, which is all one 'for every non-payment upon request, is a denying in law) makes the entry into the tavern tortious. And, first, it was resolved when an entry, authority, or license is given to any one by the law, and he doth abuse it, he shall be a tres- passer ab initio; but where an entry, authority, or license, is given by the party, and he abuses it, there he must be punished for his abuse, but shall not be a trespasser ab initio. And the reason of this difference is that in the case of a general authority or license of law, the law adjudges by the subsequent act quo animo, or to what intent, he entered ; for acta exteriora indicant interiora secreta. But when the party gives an authority or license himself to do anything, he cannot, for any subsequent cause, punish that which is done by his own authority or license ; and therefore the law gives authority to enter into a common inn or tavern : so to the lord to distrain ; to the owner of the ground to distrain damage-feasant ; to him in reversion to see if waste be done ; to the commoner to enter upon the land to see his cattle, and such like. But if he who enters into the inn or tavern doth a trespass, as if he carries away anything; or if the lord who distrains for rent or the owner for damage-feasant, works or kills the distress; or if he who enters to see waste breaks the house, or stays there all night ; or if the commoner cuts down a tree ; in these and the like cases, the law adjudges that he entered for that purpose ; and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio. 2. It was resolved per totam curiam, that not doing cannot make the party who has authority or license by the law a trespasser ab initio, because not doing is no trespass ; and therefore, if the lessor distrains for his rent, and thereupon the lessee tenders him the rent and arrears, etc., and requires his beasts again, and he will not de- liver them, this not doing cannot make him a trespasser ab initio, and therewith agrees 33 Hen. VI. 473. So if a man takes cattle damage-feasant, and the other offers sufficient amends, and he re- fuses to redeliver them, now if he sues a replevin, he shall recover damages only for the detaining of them, and not for the taking, for that was lawful; and therewith agrees Fitzh. Nat. Brev. 6o,g, temp. Edw. I. "Replevin," 27 ; 27 Eliz. 3, 88 ; 45 Eliz. 3, 9. So in the case at bar, for not paying for the wine, the defendants shall not be tres- passers, for the denying to pay for it is no trespass, and therefore they cannot be trespassers ab initio. (This famous old case has been abundantly followed in later English and American decisions. Perry v. Bailey, 94 Me. 50, 46 Atl. 789; Jewell v. Ma- CHASE (2o ED.) 26 402 LAW OF TORTS. hood, 44 N. H. 474, 84 Am. Dec. 90 ; Ordway v. Ferrin, 3 N. H. 69 ; Anderson v. Cowles, 72 Conn. 335, 44 Atl. 477, 77 Am. St. Rep. 310; Dumont v. Smith, 4 Denio, 319; Leavitt v. Thompson, 52 N. Y. 62; Narehood v. Wilhelm, 69 Pa. 64 ; Six Carpenters' Case in Smith's Leading Cases, and note. A better reason for the distinction between a license given by law and a license given by a party is stated in Bacon's Abridgment, and approved in some American decisions. This is that "where the law has given an authority, it is reason- able that it should make void everything done by the abuse of that authority, and leave the abuser as if he had done everything without authority. But where a man who was under no necessity to give an authority, does so, and the person receiving the authority abuses it, there is no reason why the law should interpose to make void everything done by such abuse, because it was the man's folly to trust another with an authority who was not fit to be trusted therewith." Allen v. Crofoot, 5 Wend. 507 ; Adams v. Rivers, 11 Barb. 390. An even more satisfactory reason in regard to the license given by law Is this : "That an officer or other person acting by authority of law shall not be allowed to avail himself of it as an instrument of oppression. As the citizen is bound to submit to it without resistance, and has no op- portunity to make provisions or stipulations for his own security, the exer- cise of the legal power is made conditional upon pursuing it wholly within legal limits. The abuse is held to be a forfeiture of the whole protection which the law gives to the act which is allowed." Esty v. Wilmot, 15 Gray, 168. The rule is most commonly applied, it is said, in cases of trespass to real estate where the original entry could not be resisted, being Independent of the will or consent of the owner, and also in the case of officers serving legal process. Id. The third branch of the rule in the Six Carpenters' Case, viz., that "not doing cannot make a party who has authority or license by law a trespasser ab initio, because not doing is no trespass," is controverted by some Ameri- can decisions. Boston & M. R. Co. v. Small, 85 Me. 462, 27 Atl. 349, 35 Am. St Rep. 379, and cases cited ; cf. Wright v. Marvin, 59 Vt 437, 9 Atl. 601 ; Williams v. Ives, 25 Conn. 5G8. At all events, the rule must not be applied too broadly. Thus if a man who seizes the property or arrests the person of another by legal process fails to execute or return the process in strict accordance with its requirements, he is often called a trespasser 06 initio, for his whole justification fails, and he stands as if he had never had any au- thority to take the property or make the arrest. Brock v. Stimson, 10# Mass. 520, 11 Am. Rep. 390.) IV. TRESPASS BY JOINT TENANT. (7 Man. G. & S. 441.) MURRAY et al. v. HALL. (Court of Common Pleas. Feb. 14, 1849.) TRESPASS TO LAND OUSTER OF CO-TENANT. Trespass will lie by one tenant in common against another for an actual ouster of possession. Rule to show cause why nonsuit should not be entered. TRESPASS TO LAND. 403 Action of trespass brought by Murray, Ash & Kennedy for break- ing and entering the dwelling house of plaintiffs, and expelling them therefrom, and seizing and converting their goods. On the trial be- fore Maule, J., it appeared that the premises in question had been leased by defendant, Hall, to the three plaintiffs and one Hart for a coffee-room, and that Hart surrendered his interest to Hall, who subsequently, with Hart, forcibly expelled from the premises the per- son put in charge thereof by plaintiffs, and kept possession. A ver- dict was rendered for plaintiffs for 35 damages. Defendant, on leave reserved at the trial, obtained a rule nisi to enter a nonsuit. COLTMAN, J. This was an action for breaking and entering the plaintiffs' dwelling-house, and expelling them therefrom ; to which the defendant pleaded First, not guilty; secondly, leave and license; thirdly, a denial that the dwelling-house was the plaintiffs'. At the trial before Maule, J., one ground of defense was that the defendant was tenant in common of the house with the plaintiffs, and that, therefore, the action was not maintainable. The learned judge told the jury that, if the evidence satisfied them that there had been an actual expulsion of the plaintiffs from the house by the defendant, their verdict ought to be for the plaintiffs. The jury found for the plaintiffs damages 35. The defendant afterwards obtained a rule to show cause why a nonsuit should not be entered, (pursuant to leave given at the trial,) on the ground that one tenant in common cannot maintain trespass against another, even though there has been an actual expulsion. On showing cause, it was argued (before the Lord Chief Justice, and Justices Coltman, Cresswell, and V. Williams,) that this defense, even if sustainable, ought to have been specially pleaded. It is unnecessary to give any opinion orr this point, for we are of opinion that the defense is not sustainable. The court has felt some difficulty on the question, by reason only of the doubts expressed by Littledale, J., in his judgment in Cubitt v. Porter, 8 Barn. & C. 269. That learned judge there said that although, if there has been actual ouster by one tenant in common, ejectment will lie at the suit of the other, yet he was not aware that trespass would lie ; for that, in tres- pass, the breaking and entering is the gist of the action, and the expulsion or ouster is a mere aggravation of the trespass; and that, therefore, if the original trespass be lawful, trespass will not lie. It appears, however, to us difficult to understand why trespass should not lie, if ejectment (which includes trespass) may be maintained (as it confessedly may) on an actual ouster. And as it has been fur- ther established in the case of Goodtitle v. Tombs, 3 Wils. 118, that a tenant in common may maintain an action of trespass for mesne profits against his companion, it appears to us that there is no real foundation for the doubts suggested. We are therefore of the opin- 404 LAW OF TORTS. ion that the direction of Maule, J., at the trial was right, and conse- quently this rule must be discharged. Rule discharged. (See also Filbert v. Hoff, 42 Pa. 97, 82 Am. Dec. 493; Byam v. Blckford, 140 Mass. 31, 2 N. B. 687; Dubois v. Beaver, 25 N. Y. 123, 128, 82 Am. Dec. 326.) V. DEFENSES: LICENSE, NECESSITY, ETC. (15 Gray, 441, 77 Am. Dec. 373.) GILES v. SIMONDS. (Supreme Judicial Court of Massachusetts. June, 1860.) TRESPASS TO LAND SALE OF STANDING TBEES LICENSE TO ENTEB REVOCA- TION. A verbal contract for the sale of standing trees, to be cut and removed by the purchaser, gives an implied license to enter for the purpose of cutting and removing the same. But such license Is revocable at any time, even after full consideration paid, except as to an entry for the purpose of removing those trees cut before the revocation. Exceptions from Superior Court, Franklin County. Action of tort for breaking and entering plaintiff's close, and cut- ting trees standing thereon, which defendant justified under a verbal contract of sale of the trees. The consideration had been paid, and part of the trees had been felled and removed, when plaintiff revoked his license to go upon the land. The jury found a verdict for de- fendant. Plaintiff alleged exceptions. BIGELOW, J. If the plaintiff had a right to revoke the license to enter upon his land, under which the defendant seeks to justify the acts of trespass alleged in the declaration, it is entirely clear that the verdict rendered in favor of the defendant cannot stand. The de- cision of the case turns, therefore, on the question whether an owner of land, who has entered into a verbal contract for the sale of standing wood and timber to be cut and severed from the freehold by the vendee, can, at his pleasure, revoke the license which he thereby gives to the purchaser to enter on his land, and cut and carry away the wood or timber included in the contract. That such a contract is not valid as passing an interest in the land is too well settled to admit of doubt. It is only an executory contract of sale, to be construed as conveying an interest in the trees when they shall be severed from the freehold, and shall become converted into personal property. Nor does the permission to enter on the land, which such a contract expressly or by implication confers on the vendee, operate TRESPASS TO LAND. 405 to create or vest in him any estate or interest in the premises. It is only a license or authority to do certain acts on the land, which but for such license or -authority would be acts of trespass. If it were otherwise, if under such a contract a right were conferred on the Vendee to enter on the land, and then to exercise a right or privilege at his own pleasure, free from the control of the owner of the land, during the continuance of the contract, it would clearly confer on the vendee a right or interest in the premises, which would con- travene the statute of frauds. Rev. St. c. 74, I. There can be no doubt that a valid license to enter on land may be given by parol. But this rule rests on the distinction that a license is only an authority to do an act, or series of acts, on the land of another, and passes no estate or interest therein. The nature and extent of the right or authority conferred by a license, and how far it is within the power of the licensor to modify or revoke it, have given rise to much discussion and many nice and subtle distinctions in the books, as well as conflicting decisions in the courts of common law. Certain principles, however, seem now to be well settled. If the owner of land sells chattels or other personal property situated on his land, the vendee thereby obtains an implied license to enter on the premises, and take possession of and remove the property. In such case the license is coupled with and supported by a valid interest or title in the property sold, and cannot be re- voked. Wood v. Manley, u Adol. & E. 34; Heath v. Randall, 4 Cush. 195. So, too, if the owner of chattels or other personal property, by virtue of a contract with or the permission of the owner of land, places his property on the land, the license to enter upon it, for the purpose of taking and removing the property, is irrevocable. Patrick v. Colerick, 3 Mees. & W. 483 ; Russell v. Richards, 10 Me. 429, 25 Am. Dec. 254; and Id., 11 Me. 371, 26 Am. Dec. 532; Smith v. Ben- son, i Hill, 176. The right of property in the chattels draws after it the right of possession. The license to enter on land to obtain pos- session of them is subsidiary to this right of property, which cannot be enjoyed if the license be withdrawn or terminated. This right in the chattels is not derived from the license, but exists in the owner by virtue of a distinct and separate title, the validity of which in no way depends on any right or interest in the land. But, with the as- sent of the owner of the land, the property has been placed in a sit- uation where it cannot be used or enjoyed except by a license to enter upon his land. The continuance of this license is therefore essential to the enjoyment of the right. It would be a manifest breach of good faith to permit such a license to be revoked. No man should be permitted to keep the property of others by inducing them to place it upon his land, and then denying them the right to enter to regain its possession. A party is therefore not permitted to with- 400 LAW OF TORTS. draw his consent, by setting up his title to the land, after it has been acted on by others, and when their rights will be impaired or lost by its withdrawal. In like manner, and for similar reasons, a license to enter on land for the purpose of removing trees or timber there- from, which have been felled in pursuance of a contract of sale, can-- not be recalled. So far as it has been executed, the license is irrevoca- ble. By virtue of the contract, and with the express or implied con- sent of the owner of the soil, the vendee has been induced to expend his money and services. The trees, so far as they have been severed from the freehold, have been converted into personal property, and vested in the vendee. A revocation of the license would, to the ex- tent to which it had been executed, operate as a fraud on the ven- dee, and deprive him of property to which he had become legally en- titled. Besides, the owner of the land cannot, by a subsequent revocation of his license, render that unlawful which, with all its in- cidents and necessary consequences, was lawful at the time it was done, by virtue of his own authority and consent. The true distinc- tion between an executory verbal license to enter on land under a contract for the sale of timber or trees growing thereon, and a similar license executed, seems to be this : The former confers no vested interest or property, no money or labor is expended on the faith of it, and no right or title is impaired or lost by its revocation. If the party to whom it is granted is injured by its withdrawal, his remedy is by an action against the licensor for a breach of the contract. It cannot be held to extend further, so as to confer a right to use the land of another without his consent, because it would thus con- fer, ex proprio vigore, an interest in land, which cannot be created except by a writing. But such a license executed, to the extent to which it has been acted on, has operated to induce the vendee to ex- pend money and services on the property, and thereby to convert it into personal chattels which have become vested in him. The revoca- tion of the license in such case would deprive the vendee of his prop- erty. It has therefore been held that such a license, while it is ex- ecutory, may be countermanded, but that when executed it becomes irrevocable. Cook v. Stearns, u Mass. 533; Cheever v. Pearson, 16 Pick. 273 ; Ruggles v. Lesure, 24 Pick. 190 ; Claflin v. Carpenter, 4 Mete. (Mass.) 580, 38 Am. Dec. 381 ; Nettleton v. Sikes, 8 Mete. (Mass.) 34. Applying these principles to the case before us, it is clear that the defendant could not justify the acts of trespass charged in the decla- ration. Before his entry on the land for the purpose of cutting trees, the plaintiff revoked the license which he had given by the ver- bal contract of sale under which the defendant claimed to act. So far as the license was executory, it was revocable, and the entry of the defendant after its revocation was unlawful. The view which TRESPASS TO LAND. 401 we have taken of the case seems to render a decision of the other questions raised by the exceptions unnecessary. Exceptions sustained. (See also Blaisdell v. Railroad Co., 51 N. H. 485; Babcock v. Utter, 1 Abb. Dec. 27; Fargis v. Walton, 107 N. Y. 398, 14 N. E. 303; Lockbart v. Coir, 54 Wis. 133, 11 N. W. 254; Johnson v. Skillman, 29 Minn. 95, 12 N. W. 149, 43 Am. Rep. 192 ; Pursell v. Stover, 110 Pa. 43, 20 Atl. 403 ; Wood v. Leadbitter, 13 Mees. & W. 838.) (113 Mass. 376, 18 Am. Rep. 500.) PROCTOR v. ADAMS et al. (Supreme Judicial Court of Massachusetts. November Term, 1873.) TBESPASS TO LAND ENTRY TO SAVE PROPERTY. The entry upon the land of another, and removing a boat wrecked thereon, the property of third persons, is not a trespass, if the object was to prevent the loss or destruction of the boat by the elements, and restore it to the owner, and not to remove it under a claim of ownership. On Report from Superior Court. Action of tort in the nature of trespass quare clausum for entering plaintiff's close and carrying away a boat. The boat was a wreck cast upon plaintiff's beach between high and low water mark, found by defendants after a severe storm. They drew it up to high-water mark, but, not thinking it safe, subsequently took it away. They ad- vertised it, and it was claimed by the owners, who paid them for their services and expenses, and took possession of it. The court ruled that these facts did not constitute a defense, and, defendants refusing to go to the jury on the instructions proposed, the judge reported the case to the supreme court. GRAY, C. J. The boat, having been cast ashore by the sea, was a wreck, in the strictest legal sense. Bl. Comm. 106; Chase v. Cor- coran, 106 Mass. 286, 288. Neither the finders of the boat, nor the owners of the beach, nor the commonwealth, had any title to the boat as against its former owner. Body of Liberties, art. 90; Anc. Chart. 21 1 ; 2 Mass. Col. Rec. 143; St. 1814, c. 170; Rev. St. c. 57; Gen. St. c. 81 ; 3 Dane, Abr. 134, 136, 138, 144; 2 Kent, Comm. 322, 359. But the owner of the land on which the boat was cast was under no duty to save it for him. Sutton v. Buck, 2 Taunt. 302, 312. If the boat, being upon the land between high and low water mark owned or occupied by the plaintiff, was taken by the defendants, claiming it as their own, when it was not, the plaintiff had a sufficient right of possession to maintain an action against them. Barker v. Bates, 13 Pick. 255, 23 Am. Dec. 678; Dunwich v. Sterry, I Barn. 408 LAW OF TORTS. & Adol. 831. But if, as the evidence offered by them tended to show, the boat was in danger of being carried off by the sea, and they, be- fore the plaintiff had taken possession of it, removed it for the purpose of saving and restoring it to its lawful owner, they were riot tres- passers. In such a case, though they had no permission from the plaintiff or any other person, they had an implied license by law to enter on the beach to save the property. It is a very ancient rule of the common law that an entry upon land to save goods which are in jeopardy of being lost or destroyed by water, fire, or any like dan- ger, is not a trespass. 21 Hen. VII. 27, 28, pi. 5 ; Brooke, Abr. "Tres- pass," 213 ; Vin. Abr. "Trespass," (H, a, 4,) pi. 24 ad fin. ; Id. (K, a,) pi. 3. In Dunwich v. Sterry, I Barn. & Adol. 831, a case very like this, Mr. Justice Parke (afterwards Baron Parke and Lord Wens- leydale) left it to the jury to say whether the defendant took the property for the benefit of the owners, or under a claim of his own, and to put the plaintiffs to a proof of their title. In Barker v. Bates, 13 Pick. 255, 23 Am. Dec. 6/8, upon which the plaintiff mainly relies, the only right claimed by the defendants was as finders of the property and for their own benefit. The defendants are therefore entitled to a new trial. As the answer was not objected to, and the declaration may be amended in the court below, we have not considered the form of the pleadings. New trial ordered. (See also Print Works v. Lawrence, 23 N. J. Law, 9; Id., 23 N. J. Law, 590, 57 Am. Dec. 420 ; New York v. Lord, 18 Wend. 126.) (7 Gush. 408, 54 Am. Dec. 728.) CAMPBELL v. RACE (in part). (Supreme Judicial Court of Massachusetts. September Term, 1851.) TRESPASS TO LAND NECESSITY OBSTRUCTIONS TO HIGHWAY. Where a highway becomes obstructed and impassable from temporary causes, a traveler has the right to go upon adjoining lands and so pass by without being guilty of trespass. Exceptions from Court of Common Pleas. Action of trespass to land. Defendant justified going upon plain- tiff's land under a right of way of necessity resulting from the im- passable state of the adjoining highway by snow-drifts. The court ruled that such fact constituted no defense. A verdict was returned for plaintiff. Defendant alleged exceptions. BIGELOW, J. It is not controverted by the counsel for the plaintiff that the rule of law is well settled in England that, where a highway becomes obstructed and impassable from temporary causes, TRESPASS TO LAND. 409 a traveler has a right to go extra viam upon adjoining lands, with- out being guilty of trespass. The rule is so laid down in the ele- mentary books, (2 Bl. Comm. 36; Woolr. Ways, 50, 51; 3 Cruise, Dig. 89 ; Wellb. Ways, 38 ;) and it is fully supported by the adjudged cases, (Henn's Case, W. Jones, 296; Osborne v. Sture, 3 Salk. 182; Pomfret v. Ricroft, I Saund. 323, note 3 ; Absor v. French, 2 Show. 28 ; Young v. , I Ld. Raym. 725 ; Taylor v. Whitehead, 2 Doug. 745 ; Bullard v. Harrison, 4 Maule & S. 387, 393.) Such being the admitted rule of law, as settled by the English authorities, it was urged in behalf of the plaintiff, in the present case, that it had never been recognized or sustained by American au- thors or cases. But we do not find such to be the fact. On the con- trary, Mr. Dane, whose great learning and familiar acquaintance with the principles of common law, and their practical application at an early period in this commonwealth, entitle his opinion to very great weight, adopts the rule, as declared in the leading case of Taylor v. Whitehead, ubi supra, which he says "is the latest on the point, and settles the law." 3 Dane, Abr. 258. And so Chan- cellor Kent states the rule. 3 Kent, Comm. 324. We are not aware of any case in which the question has been distinctly raised and adjudicated in this country, but there are several decisions in New York in which the rule has been incidentally recognized and treated as well-settled law. Holmes v. Seely, 19 Wend. 507; Wil- liams v. Safford, 7 Barb. 309; Newkirk v. Sabler, 9 Barb. 652. These authorities would seem to be quite sufficient to justify us in the rec- ognition of the rule. But the rule itself is founded on the established principles of the common law, and is in accordance with the fixed and uniform usage of the community. Indeed, one of the strongest arguments in support of it is that it has always been practiced upon and acquiesced in, without objection, throughout the New England states. This accounts satisfactorily for the absence of any adjudica- tion upon the question in our courts, and is a sufficient answer to the objection upon this ground which- was urged upon us by the learned counsel for the plaintiff. When a right has long been claimed and exercised without denial or objection, a strong presumption is raised that the right is well founded. The plaintiff's counsel is under a misapprehension in supposing that the authorities in support of the rule rest upon any peculiar or exceptional principle of law. They are based upon the familiar and well-settled doctrine that to justify or excuse an alleged trespass in- evitable necessity or accident must be shown. If a traveler in a high- way, by unexpected and unforeseen occurrences, such as a sudden flood, heavy drifts of snow, or the falling of a tree, is shut out from the traveled paths, so that he cannot reach his destination without passing upon adjacent lands, he is certainly under a necessity to do so. It is essential to the act to be done, without which it cannot be accom- 410 LAW OF TORTS. plished. Serious inconveniences,, to say the least, would follow, es- pecially in a climate like our own, if this right were denied to those who have occasion to pass over the public ways. Not only would intercourse and business be sometimes suspended, but life itself would be endangered. In hilly and mountainous regions, as well as in exposed places near the sea-coast, severe and unforeseen storms not unfrequently overtake the traveler, and render highways suddenly im- passable, so that to advance or retreat by the ordinary path is alike impossible. In such cases the only escape is by turning out of the usually traveled way, and seeking an outlet over the fields adjoining the highway. If a necessity is not created, under such circumstances, sufficient to justify or excuse a traveler, it is difficult to imagine a case which would come within the admitted rule of law. To hold a party guilty of a wrongful invasion of another's rights for passing over land adjacent to the highway, under the pressure of such a necessity, would be pushing individual rights of property to an un- reasonable extent, and giving them a protection beyond that which finds a sanction in the rules of law. Such a temporary and unavoida- ble use of private property must be regarded as one of those incidental burdens to which all property in a civilized community is subject. In fact, the rule is sometimes justified upon the ground of public convenience and necessity. Highways being established for public service and for the use and benefit of the whole community, a due regard for the welfare of all requires that, when temporarily ob- structed, the right of travel should not be interrupted. In the words of Lord Mansfield, "it is for the general good that people should be entitled to pass in another line." It is a maxim of the common law that, where public convenience and necessity come in conflict with private right, the latter must yield to the former. A person traveling on a highway is in the exercise of a public, and not a private, right. If he is compelled, by impassable obstructions, to leave the way, and go upon adjoining lands, he is still in the exercise of the same right. The rule does not, therefore, violate the principle that individual con- venience must always be held subordinate to private rights, but clearly falls within that maxim which makes public convenience and neces- sity paramount. It was urged in argument that the effect of establishing this rule of law would be to appropriate private property to public use with- out providing any means of compensation to the owner. If such an accidental, occasional, and temporary use of land can be regarded as an appropriation of private property to public use, entitling the owner to compensation, which may well be doubted, still the decisive answer to this objection is quite obvious. The right to go extra viam, in case of temporary and impassable obstructions, being one of the legal incidents or consequences which attach to a highway through private property, it must be assumed that the right to the use of land adjoin- TRESPASS TO LAND. 411 ing the road was taken into consideration, and proper allowance made therefor, when the land was originally appropriated for the highway, and that the damages were then estimated and fixed for the private injury which might thereby be occasioned. From what has already been said, the limitations and restrictions of the right to go upon adjacent lands in case of obstructions in the highway can be readily inferred. Having its origin in necessity, it must be limited by that necessity, cessante ratione cessat ipsa lex. Such a right is not to be exercised from convenience merely, nor when by the exercise of due care, after notice of obstructions, other ways may be selected, and the obstructions avoided. But it is to be confined to those cases of inevitable necessity or unavoidable acci- dent, arising from sudden and recent causes, which have occasioned temporary and impassable obstructions in the highway. What shall constitute such inevitable necessity or unavoidable accident must de- pend upon the various circumstances attending each particular case. The nature of the obstruction in the road, the length of time during which it has existed, the vicinity or distance of other public ways, the exigencies of the traveler, are some of the many considerations which would enter into the inquiry, and upon which it is the exclusive prov- ince of the jury to pass, in order to determine whether any necessity really existed which would justify or excuse the traveler. In the case at bar this question was wholly withdrawn from the considera- tion of the jury by the ruling of the court. It will therefore be neces- sary to send the case to a new trial in the court of common pleas. Exceptions sustained. (See also Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811; Carey y. Rae, 58 CaL 159 ; Haley v. Colcord, 59 N. H. 7, 47 Am. Rep. 176.) (5 Johns. 352.) WILLIAMS v. SPENCER. (Supreme Court of New York. February Term, 1810.) TRESPASS TO LAND BREAKING OPEN DOOR TO SERVE PROCESS. The owner of a. house, renting the same, reserved an inner room, which he occupied. A constable, having a warrant against him, entered by the outer door, which was open, and broke open the door of such inner room and arrested him. Held, that the constable was not a trespasser. In error, on certiorari. Action of trespass quare clausum fregit brought by Spencer against Williams. It appeared at the trial before a justice of the peace that Spencer let out part of his house, and reserved an inner room for himself, which he occupied ; that Williams, who was a constable, having a warrant against Spencer, the outer door of the house being 412 LAW OF TORTS. open, broke open the door of the inner room, and arrested him. The justice gave judgment for plaintiff, and defendant brought up the case by certiorari and writ of error. PER CURIAM. There was no protection, in this case, to the door of the inner room, though occupied separately by the defendant in error. The constable had a right, therefore, to break the door. Lee v. Gansel, Cowp. I. The judgment must be reversed. (See also Hubbard v. Mace, 17 Johns. 127; Hager v. Danforth, 20 Barb. 16; Coinm. v. Tobin, 108 Mass. 426, 11 Am. Rep. 375. A sheriff, constable, or other peace officer has no right to break the outer door of a dwelling house in the execution of civil process, and it is deemed a breaking if he merely lifts the latch of a closed door and enters. Curtis v. Hubbard, 4 Hill, 437, 40 Am. Dec. 292.) (10 Q. B. Div. 17.) TILLETT V. WARD. (Court of Queen's Bench. November 27, 1882.) TRESPASS TO LAND CATTLE ESCAPING FROM HIGHWAY. Defendant's ox, while being driven along the highway in a town, with- out any negligence on defendant's part, escaped from him, and entered plaintiff's adjoining premises through an open door. Held, that an ac- tion would not lie for plaintiff's damages. Appeal by special case from the decision of the judge of the county court of Lincolnshire, holden at Stamford. Action for injuries to goods in plaintiff's shop, caused by defend- ant's ox, which came through the open doorway after escaping from defendant's servants, who were driving it along the public street in Stamford in the usual and customary manner. There was no evi- dence of negligence of defendant's servants, or that the ox was vicious, or that there was anything exceptional in its temper and character. The county court judge gave a verdict for the amount claimed, giv- ing the defendant leave to appeal. COLERIDGE, C. J. In this action the county court judge has found as a fact that there was no negligence on the part of the drivers of the ox, or, at all events, he has not found that there was negligence ; and, as it lies on the plaintiff to make out his case, the charge of negli- gence, so far as it has any bearing on the matter, must be taken to have failed. Now, it is clear, as a general rule, that the owner of cattle and sheep is bound to keep them from trespassing on his neighbor's land, and, if they so trespass, an action for damages may be brought against him, irrespective of whether the trespass was or was not the result TRESPASS TO LAND. 413 of his negligence. It is also tolerably clear that where both parties are upon the highway, where each of them has a right to be, and one of them is injured by the trespass of an animal belonging to the other, he must, in order to maintain his action, show that the tres- pass was owing to the negligence of the other or of his servant. It is also clear that, where a man is injured by a fierce or vicious animal belonging to another, prima facie no action can be brought without proof that the owner of the animal knew of its mischievous tendencies. In the present case, the trespass, if there was any, was committed off the highway upon the plaintiff's close, which immediately ad- joined the highway, by an animal belonging to the defendant, which was being driven on the highway. No negligence is proved, and it would seem to follow, from the law which I have previously stated, that the defendant is not responsible. We find it established, as an exception upon the general law of trespass, that, where cattle tres- pass upon unfenced land immediately adjoining a highway, the owner of the land must bear the loss. This is shown by the judgment of Bramwell, B., in Goodwyn v. Cheveley, 4 H. & N. 631. That learned judge goes into the question whether a reasonable time had or had not elapsed for the removal of cattle who had trespassed under similar circumstances, and this question would not have arisen if a mere momentary trespass had been by itself actionable. There is also the statement of Blackburn, J., in Fletcher v. Rylands, L. R. I Exch. 265, that persons who have property adjacent to a highway may be taken to hold it subject to the risk of injury from inevitable risk. I could not, therefore, if I were disposed, question law laid down by such eminent authorities ; but I quite concur in their view, and I see no distinction for this purpose between a field in the country and a street in a market town. The accident to the plaintiff was one of the necessary and inevitable risks which arise from driving cattle in the streets in or out of town. No cause of action is shown, and the judgment of the county court judge must be reversed. STEPHEN, J. I am of the same opinion. As I understand the law, when a man has placed his cattle in a field, it is his duty to keep them from trespassing on the land of his neighbors; but while he is driving them upon a highway he is not responsible, without proof of negligence on his part, for any injury they may do upon the high- way, for they cannot then be said to be trespassing. The case of Goodwyn v. Cheveley, 4 H. & N. 631, seems to me to establish a further exception, that the owner of the cattle is not responsible without negligence when the injury is done to property adjoining the highway, an exception which is absolutely necessary for the con- duct of the common affairs of life. We have been invited to limit this exception to the case of high roads adjoining fields in the country, but I am very unwilling to multiply exceptions, and I can see no solid 414 LAW OF' TORTS. distinction between the case of an animal straying into a field which is unfenced or into an open shop in a town. I think the rule to be gathered from Goodwyn v. Cheveley a very reasonable one, for other- wise I cannot see how we could limit the liability of the owner of cattle for any sort of injury which could be traced to them. Judgment for defendant. (Where cattle driven along a highway stray from it in sight of the person In charge of them, and pass, against his will, onto uninclosed land adjoining the highway, and he makes fresh pursuit to bring them back, the owner ought not to be chargeable for this involuntary trespass. Per Beardsley, J., in Tonawanda R. Co. v. Hunger, 5 Denio, 255, 49 Am. Dec. 239. To the same effect are Hartford v. Brady, 114 Mass. 466, 19 Am. Rep. 377; Cool v. Crommet, 13 Me. 250; Bush v. Brainard, 1 Cow. 78, 13 Am. Dec. 513, and note.) (37 N. H. 331, 72 Am. Dec. 332.) LAWRENCE v. COMBS. (Supreme Judicial Court of New Hampshire. July Term, 1858.) TRESPASS TO LAND ADJOINING TENANTS OBLIGATION TO FENCE. Trespass will not lie by the tenant of a close against an adjoining pro- prietor for damage done by cattle of a third person, which, straying upon the highway, enter defendant's lands, and from there pass upon plain- tiff's land, through a defect in that portion of the division fence which defendant was by law bound to keep in repair. Rev. St. N. H. c. 136, 1. On report of referee. Action on the case for negligence. It appeared on trial before a referee that cattle of a third person straying on the highway entered upon defendant's land, and therefrom passed upon plaintiff's adjoin- ing land through a defective fence at a point where defendant was by law bound to build and keep in repair the division fence. The referee. reported the facts for the judgment of the court. EASTMAN, J. At common law, a tenant or owner was not obliged to fence against an adjoining owner or occupier, except by prescription, but he was to keep his cattle on his own land at his peril ; and, if they escaped, they might be taken on whatever land they were found damage feasant, or the owner was liable to an action of tres- pass by the party injured. And where there was no prescription, but the tenant had made an agreement to fence, he could not be com- pelled to carry out his agreement and make the fence ; and the party injured by the breach of the agreement had no remedy but by an action on the agreement. Nowel v. Smith, Cro. Eliz. 709; Rust v. Low, 6 Mass. 94 ; Avery v. Maxwell, 4 N. H. 36 ; Deyo v. Stewart, 4 Denio, 101 ; 3 Kent, Comm. 438; Dean v. Railroad, 22 N. H. 317; Glidden v. Towle, 31 N. H. 168. TRESPASS TO LAND. 415 In case of a prescription to fence, the tenant could be compelled to fence by the writ of curia claudenda, sued out by the tenant of the adjoining close, who could also recover damages by that writ. Fitzh. Nat. Brev. "Curia Claudenda," 297 ; Rust v. Low, 6 Mass. 94 ; Glid- den v. Towle, 31 N. H. 168. But, by statute, the owners of adjoining lands, under improvement, are required to make and repair the par- tition fences between them. Rev. St. c. 136, I. And after the fence has been divided, the owner of a close can sustain no action for damages done by horses or cattle breaking into his close, through defects in the fence which he was bound to make and repair, if they were rightfully on the adjoining land. Avery v. Maxwell, 4 N. H. 36; York v. Davis, II N. H. 241; Page v. Olcott, 13 N. H. 399. Where there are adjoining closes, with an undivided partition fence, which each owner is bound to keep in repair, each is required to keep his cattle on his own land at his peril. Tewksbury v. Bucklin, 7 N. H. 518; Avery v. Maxwell, 4 N. H. 36; Thayer v. Arnold, 4 Mete. (Mass.) 589; Little v. Lathrop, 5 Greenl. 356. At common law the tenant of a close who was obliged by prescrip- tion to fence was not required to do it against any cattle except those which were rightfully in the adjoining close. Salkwell v. Milwarde, 26 Hen. VI. c. 23 ; 10 Edw. IV. c. 7 ; Fitzh. Nat. Brev. "Curia Claud- enda," 1,2; Rust v. Low, 6 Mass. 99, iod; 3 Kent, Comm. 438. And the same rule has been held to prevail where statutes have been adopted regulating the rights and duties of adjoining owners in re- gard to fences. In Rust v. Low, already cited, which is a leading American case upon the question, the point was distinctly decided that the tenant of a close is not obliged to fence except against cattle which are rightfully upon the adjoining land. In Avery v. Maxwell, 4 N. H. 37, Chief Justice Richardson says that "it is well settled that the owner of a close is only bound to fence against creatures which are right- fully on the adjoining land." And in Holladay v. Marsh, 3 Wend. 147, 20 Am. Dec. 678, Chief Justice Savage also says that "it is cer- tainly well settled that a man is not obliged to fence against any cat- tle but such as may be rightfully upon the adjoining close." This doctrine is sustained by many authorities, among which may be cited Wells v. Howell, 19 Johns. 385 ; Stackpole v. Healy, 16 Mass. 38, 8 Am. Dec. 121; Lord v. Wormwood, 29 Me. 282, i Am. Rep. 586; Hurd v. Railroad Co., 25 Vt. 122 ; Dovaston v. Payne, 2 H. Bl. 527 ; Cornwall v. Railroad, 28 N. H. 167. From the declaration of the plaintiff, it appears that he and the defendant were owners of adjoining closes ; that the fence between them had been divided ; and that the defendant's portion of the fence was out of repair. Upon this state of facts, and according to the principles stated, there can be no doubt that the defendant would be liable, had the cattle that committed the trespass upon the plaintiff's land been rightfully in the close of the defendant, for they went into 416 LAW OF TORTS. the plaintiff's close over that part of the fence which the defendant was bound to maintain. But the cattle that committed the trespass were not the property of the defendant, nor were they upon his land by his permission; but they belonged to third persons, and strayed from the highway where they do not appear to have been for any legitimate purpose into the defendant's close, and thence came upon the plaintiff's land and did the damage. Both the plaintiff and de- fendant could maintain their actions against the owners of the cattle for the trespasses committed; for, not being rightfully in the high- way, it is immaterial what the situation of their fences were. They were not obliged to fence against wrong-doers. The authorities cit- ed settled this position. [The opinion concludes with an examination of the provisions of the New Hampshire statute as to division fences, (Rev. St. c. 136,) which, however, it is held, do not change the result.] Our conclusion is that there should be, Judgment on the report for the defendant. (See also Tonawanda R. Co. v. Munger, 5 Denio, 255, 49 Am. Dec. 239 ; Thayer v. Arnold, 4 Mete. [Mass.] 589; Knox v. Tucker, 48 Me. 373, 77 Am. Dec. 233; Scott v. Grover, 56 Vt 499, 48 Am. Rep. 814. About half of the states of this country hold the common-law rule in regard to fences appli- cable, in the absence of any statute on the subject, while the other half hold that an owner who has not fenced his land cannot recover for a trespass by his neighbor's cattle. 12 Am. & Eng. Enc. of Law [2d Ed.] 1040-1044. It is a generally accepted doctrine that when an obligation to fence is cre- ated by statute, this obligation only applies to such cattle as are lawfully on the adjoining premises. Id. 1058, 1084. By some statutes, however, a different rule is established in regard to railroad fences. Dayton v. New York, L. E. & W. R. Co., 81 Hun, 284, 30 N. Y. Supp. 783.) NUISANCE. 417 NUISANCE. I. WHAT CONSTITUTES A NUISANCE PRESCRIPTIVE RIGHT TO MAINTAIN A NUISANCE INJUNC- TION TO RESTRAIN. t (63 N. Y. 568, 20 Am. Rep. 567.) CAMPBELL et al. v. SEAMAN (in part). (Court of Appeals of New York. Jan. 21, 1876.) 1. NUISANCE WHAT CONSTITUTES. The unreasonable, unwarrantable, or unlawful use of one's own prop- erty, producing material annoyance, inconvenience, discomfort, or hurt to his neighbor, constitutes a nuisance. 2. SAME BRICK-BUBNING. The burning of brick in a kiln, which produces noxious gases, injuring another's property, is a nuisance, though brick -burning is a useful and necessary industry. 3. INJUNCTION WHEN GRANTED. The writ of injunction is not a matter of grace, but of right, in a proper case, and will be granted to restrain irreparable injury, whether it be to the enjoyment of the necessities or the luxuries of life. 4. SAME. Tlie destruction of ornamental and useful trees and vines by the vapors and gases from a brick-kiln is such irreparable injury as a court of equity will enjoin. 5. NUISANCE PRESCRIPTIVE RIGHT TO MAINTAIN. A person cannot, by erecting a nuisance upon his land adjoining vacant land owned by another, control or lessen the latter's use of the laud, unless he can acquire such right by prescription. 6. SAME. Where the injury to shrubbery on plaintiff's premises is caused by the burning of anthracite coal in a brick-kiln on adjoining premises by de- fendant, a prescriptive right to continue the nuisance must be based upon 20 years' actual use of such coal, and not 20 years' use of the kiln. Appeal from Supreme Court, General Term, Third Department. Action by Samuel B. Campbell and others against Nathan N. Sea- man to recover damages from an alleged nuisance and to restrain the continuance thereof. The nuisance consisted in the burning of brick by anthracite coal on defendant's premises, which killed the foliage, trees, and shrubbery on plaintiffs' adjoining premises. The referee by whom the case was tried found for plaintiffs, and the general term affirmed the judgment entered upon his report. From the judg- ment of the general term defendant appealed. CHASE (2o ED.) 27 418 LAW OF TORTS. EARL, J. The plaintiffs owned about 40 acres of land, situate in the village of Castleton, on the east bank of the Hudson river, and had owned it since about 1849. During the years 1857, 1858, and 1859 they built upon it an expensive dwelling-house ; and during those years, and before and since, they improved the land by grading and terracing, building roads and walks through the same, and planting trees and shrubs, both ornamental and useful. The defendant had for some years owned adjoining .lands, which he had used as a brick- yard. The brick-yard is southerly of plaintiffs' dwelling-house about 1,320 feet, and southerly of their woods about 567 feet. In burning bricks defendant had made use of anthracite coal. During the burn- ing of a kiln sulphuric acid gas is generated, which is destructive to some kinds of trees and vines. The evidence shows, and the referee found, that gas coming from defendant's kilns had, during the years 1869 and 1870, killed the foliage on plaintiffs' white and yellow pines and Norway spruce, and had, after repeated attacks, killed and de- stroyed from loo to 150 valuable pine and spruce trees, and had in- jured their grape-vines and plum trees, and he estimated plaintiffs' damages from the gas during those years at $500. This gas did not continually escape during the burning of a kiln, but only during the last two days, and was carried into and over plaintiffs' land only when the wind was from the south. It is a general rule that every person may exercise exclusive do- minion over his own property, and subject it to such uses as will best subserve his private interests. Generally, no other person can say how he shall use or what he shall do with his property. But this general right of property has its exceptions and qualifications. Sic utere tuo ut alienum non laedas is an old maxim which has a broad application. It does not mean that one must never use his own so as to do any injury to his neighbor or his property. Such a rule could not be enforced in civilized society. Persons living in organized communities must suffer some damage, annoyance, and inconvenience from each other. For these they are compensated by all the ad- vantages of civilized society. If one lives in the city, he must expect to suffer the dirt, smoke, noisome odors, noise, and confusion incident to city life. As Lord Justice James beautifully said, in Salvin v. Coal Co., L. R. 9 Ch. App. 705 : "If some picturesque haven opens its arms to invite the commerce of the world, it is not for this court to forbid the embrace, although the fruit of it should be the sights and sounds and smells of a common seaport and ship-building town, which would drive the dryads and their masters from their ancieni solitudes." But every person is bound to make a reasonable use of his prop- erty, so as to occasion no unnecessary damage or annoyance to his neighbor. If he make an unreasonable, unwarrantable, or unlawful use of it, so as to produce material annoyance, inconvenience, dis- NUISANCE. 419 comfort, or hurt to his neighbor, he will be guilty of a nuisance to his neighbor, and the law will hold him responsible for the conse- quent damage. As to what is a reasonable use of one's own prop- erty cannot be defined by any certain general rules, but must de- pend upon the circumstances of each case. A use of property in one locality, and under some circumstances, may be lawful and reasonable, which, under other circumstances, would be unlawful, unreasonable, and a nuisance. To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable or incon- venient. Within the rules thus referred to, that defendant's brick-burning was a nuisance to plaintiffs cannot be doubted. Numerous cases might be cited, but it will be sufficient to cite mainly those where the precise question was involved in reference to brick-burning. The earliest case is that of Duke of Grafton v. Milliard, decided in 1736, not reported, but referred to in Attorney General v. Cleaver, 18 Ves. 211. Chancellor Eldon there says that the court held in that case that "the manufacture of bricks, though near the habitations of men, if carried on for the purpose of making habitations for them, is not a public nuisance." By looking at that case, as found in a note to Walter v. Selfe, 4 Eng. Law & Eq. 18, it will be seen that no such decision was made in that case, and that no such language was used therein. A temporary injunction had been granted in the first in- stance, restraining brick-burning, but it was dissolved upon the de- fendant's showing that it would really produce no annoyance or in- jury to the plaintiff. In Donald v. Humphrey, 14 F. (Sc.) 1206, the plaintiff brought an action to restrain brick-burning, and insisted that the business was per se a nuisance, and should be restrained without proof of actual in- jury, but the court held that the business of burning brick was a law- ful business, and not per se a nuisance, but that the question as to whether it was a nuisance or not was one of fact, to be determined by the circumstances of each case, and refused an injunction without proof that the business was so conducted as to be a nuisance to the plaintiff. In the case of Walter v. Selfe, supra, the defendants were enjoined from burning bricks in the vicinity of the plaintiffs' premises so as to occasion damage or annoyance to the plaintiffs, or injury or dam- age to the buildings thereon standing, or shrubberies or plantation, named in the bill. In Pollock v. Lester, n Hare, 266, the defendant was making prep- arations to burn bricks near a lunatic asylum of which plaintiff was proprietor, and plaintiff brought his bill praying an injunction to re- strain the defendant, alleging in his bill that the smoke and vapor arising from the brick-burning would be injurious to his patients, and 420 LAW OF TORTS. cause them to leave his asylum, and would also injure the trees, shrubs, and plants thereon growing ; and the injunction was granted. This was done, it will be seen, merely upon the apprehension of dam- age, and before any was actually suffered. After the decision of this case, Hole v. Barlow, 4 C. B. (N. S.) 336, was decided. That was an action for a nuisance arising from the burning of bricks on defendant's own land near to the plaintiff's dwelling-house, and the judge at the trial told the jury that no action lies for the reasonable use of a lawful trade in a convenient and prop- er place, even though some one may suffer inconvenience from its be- ing carried on, and he left two questions to the jury First, "Was the place in which the bricks were burned a proper and convenient place for the purpose?" Secondly, if they thought the place was not a proper place for the purpose, then "was the nuisance such as to make the enjoyment of life and property uncomfortable?" It was held that there was no misdirection. That case, which was in con- flict with prior authorities, has since been overruled in Beardmore v. Tredwell, 31 Law J. Ch. 892; Bamford v. Turnley, 31 Law J. Q. B. 286; Cavey v. Ledbitter, 13 C. B. (N. S.) 470; Bareham v. Hall, 22 Law T. (N. S.) 116; Roberts v. Clarke, 18 Law T. (N. S.) 49; Luscombe v. Steer, 17 Law T. (N. S.) 229. In Beardmore v. Tredwell the court granted an injunction re- straining the burning of bricks within 650 yards of the plaintiff's dwelling, holding that the burning of bricks within 350 yards of the plaintiff's residence was a nuisance, although the bricks were to be used in the erection of government fortifications. Vice-Chancellor Stuart says: "Upon the facts of the present case, notwithstanding the contradictory evidence, my mind is satisfied that there has been an actual and positive injury to the plaintiff; that the comfort and enjoyment of his mansion-house are injured ; that the trees planted and standing and growing for ornament have been, in some cases, entirely destroyed, and in many cases injured." In Bamford v. Turnley, Cockburn, C. J., before whom the case was tried, followed Hole v. Barlow, and charged the jury that if they thought the spot was convenient and proper, and that the use by the defendant of his premises was, under the circumstances, a rea- sonable use of his own land, he would be entitled to a verdict. The jury found for the defendant, but upon the hearing in the exchequer chamber it was held that the instructions were erroneous, and that it was no answer, in an action for nuisance creating actual annoyance and discomfort in the enjoyment of neighboring property, that the injury resulted from a reasonable use of the property, and that the act was done in a convenient place, nor that the same business had been carried on in the same locality for 17 years. The doctrine of Hole v. Barlow was distinctly repudiated, and that case was in terms overruled. NUISANCE. 421 In Cavey v. Ledbitter, an action for a nuisance caused by brick- burning, the judge at the trial left it to the jury, in substance, to say whether the acts of the defendant rendered the plaintiff's residence substantially uncomfortable, and whether his shrubs and fruit-trees had been thereby injured; and he refused to ask them whether the bricks had been burned in a convenient place, and it was held that there was no misdirection. In Bareham v. Hall a bill was filed for an injunction to restrain the defendant from using a brick-kiln in such a way as to be a nuisance to the property of plaintiff, or to plaintiff and his family. There, as here, the damage and annoyance were suffered only when the wind blew from the direction of the kiln; and Vice-Chancellor Stuart said "that, prima facie, a brick-kiln built within TOO yards in front of a mansion-house would be a nuisance, unless the process used for burn- ing the bricks was one of an unusual kind." In this country, so far as I can ascertain, the question of nuisance from brick-burning has rarely been before the courts. The only case to which our attention has been called is Huckenstine's Appeal, 70 Pa. 102, 10 Am. Rep. 669. In that case Agnew, J., says: "Brick- making is a useful and necessary employment, and must be pursued near to towns and cities where bricks are chiefly used. Brick- burning, an essential part of the business, is not a nuisance per se. Attorney General v. Cleaver, 18 Ves. 219. It, as many useful em- ployments do, may produce some discomfort, and even some injury, to those near by, but it does not follow that a chancellor would en- join therefor." He then goes on to say that the aid of an injunction is not matter of right, but of grace ; and concludes that there were so many similar nuisances in the locality that it was not clear that this nuisance increased the discomfort from them, and that it was doubt- ful whether the plaintiff had suffered any material damage from the acts, and therefore held that an injunction ought not to issue, and that the plaintiff should be left to his remedy at law. In the following analogous cases, useful industries, which produced smoke or noxious gases or vapors or odors, were declared nuisances : Catlin v. Val- entine, 9 Paige, 575, 38 Am. Dec. 567; Peck v. Elder, 3 Sandf. 129; Taylor v. People, 6 Parker, Cr. R. 352 ; Davis v. Lambertson, 56 Barb 480; Hutchins v. Smith, 63 Barb. 251; Whitney v. Bartholomew, 21 Conn. 213; Cooper v. Randall, 53 111. 24; Rex v. White, I Burrows, 337; Cooke v. Forbes, L. R. 5 Eq. 166; Sampson v. Smith, 8 Sim. 272 ; Tipping v. Smelting Co., 4 Best & S. 608 ; Crump v. Lambert, L. R. 3 Eq. 409 ; Pointer v. Gill, 2 Rolle, Abr. 140. Without further citation of authority, I think it may safely be said that no definition of nuisance can be found in any text-book or reported decision which will not embrace this case. But the claim is made that, although the brick-burning in this case is a nuisance, a court of equity will not and ought not to restrain it, 422 LAW OF TORTS. and the plaintiffs should be left to their remedy at law to recover damages, and this claim must now be examined. Prior to Lord El- don's time, injunctions were rarely issued by courts of equity. Dur- ing the many years he sat upon the woolsack this remedy was re- sorted to with increasing frequency, and, with the development of equity jurisprudence which has taken place since his time, it is well said that the writ of injunction has become the right arm of the court. It was formerly rarely issued in the case of a nuisance until plaintiff's right had been established at law, and the doctrine which seems now to prevail in Pennsylvania, that this writ is not matter of right, but of grace, to a large extent prevailed. But now a suit at law is no longer a necessary preliminary, and the right to an injunction, in a proper case, in England and most of the states, is just as fixed and certain as the right to any other provisional remedy. The writ can rightfully be demanded to prevent irreparable injury, interminable litigation, and a multiplicity of suits, and its refusal in a proper case would be error to be corrected by an appellate tribunal. It is mat- ter of grace in no sense, except that it rests in the sound discretion of the court, and that discretion is not an arbitrary one. If improp- erly exercised in any case, either in granting or refusing it, the error is one to be corrected upon appeal. Corning v. Nail Factory, 40 N. Y. 191 ; Reid v. Gifford, Hopk. Ch. 416; Pollitt v. Long, 58 Barb. 20] Railroad Co. v. Archer, 6 Paige, 83; Parker v. Woollen Co., 2 Black, 545, 551, 17 L. Ed. 333; Webber v. Gage, 39 N. H. 182; Dent v. Auction Mart Co., 35 Law J. Ch. 555 ; Attorney General v. Tele- graph Co., 30 Beav. 287; Wood v. Sutcliffe, 2 'Sim. (N. S.) 165, Clowes v. Potteries Co., L. R. 8 Ch. App. 125. Here the remedy at law was not adequate. The mischief was substantial, and, within the principle laid down in the cases above cited, and others to which our attention has been called, irreparable. The plaintiffs had built a costly mansion, and had laid out their grounds, and planted them with ornamental and useful trees and vines, for their comfort and enjoyment. How can one be compensated in damages for the destruction of his ornamental trees, and the flowers and vines which surrounded his home? How can a jury estimate their value in dollars and cents? The fact that trees and vines are for ornament or luxury entitles them no less to the protection of the law. Every one has the right to surround himself with articles of luxury, and he will be no less protected than one who provides himself only with articles of necessity. The law will protect a flower or a vine as well as an oak. Cooke v. Forbes, L. R. 5 Eq. 166 ; Broad- bent v. Gas Co., 7 De Gex, M. & G. 436. These damages are ir- reparable, too, because the trees and vines cannot be replaced, and the law will not compel a person to take money rather than the objects of beauty and utility which he places around his dwelling to gratify his taste or to promote his comfort and his health. NUISANCE. 423 Here the injunction also prevents a multiplicity of suits. The in- jury is a recurring one, and every time the poisonous breath from defendant's brick-kiln sweeps over plaintiffs' land they have a cause of action. Unless the nuisance be restrained, the litigation would be interminable. The policy of the law favors, and the peace and good order of society are best promoted by, the termination of such liti- gation by a single suit. The fact that this nuisance is not continual, and that the injury is only occasional, furnishes no answer to the claim for an injunction. The nuisance has occurred often enough within two years to do the plaintiffs large damage. Every time a kiln is burned some injury may be expected, unless the wind should blow the poisonous gas away from plaintiffs' lands. Nuisances caus- ing damage less frequently have been restrained. Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654; Meigs v. Lister, 23 N. J. Eq. 200; Clowes v. Potteries Co., supra; Mulligan v. Elias, 12 Abb. Prac. (N. S.) 259. It matters not that the brick-yard was used before plaintiffs bought their lands or built their houses. Taylor v. People, supra; Wier's Appeal, 74 Pa. 230; Brady v. Weeks, 3 Barb. 157; Barwell v. Brooks, I Law T. 454. One cannot erect a nuisance upon his land adjoining vacant lands owned by another, and thus meas- urably control the uses to which his neighbor's land may in the fu- ture be subjected. He may make a reasonable and lawful use of his land, and thus cause his neighbor some inconvenience, and prob- ably some damage which the law would regard as damnum absque injuria. But he cannot place upon his land anything which the law would pronounce a nuisance, and thus compel his neighbor to leave his land vacant, or to use it in such way only as the neighboring nuisance will allow. It is claimed that the plaintiffs so far acquiesced in this nuisance as to bar them from any equitable relief. I do not perceive how any acquiescence short of 20 years can bar one from complaining of a nuisance, unless his conduct has been such as to estop him. There is no proof that plaintiffs, when they brought their lands, knew that any one intended to burn any bricks upon the land now owned by defend- ant. From about 1840 to 1853 no bricks were burned there. Then, from 1853 to 1857, bricks were burned there, and then not again un- til 1867. From 1857 to 1867 the brick-yard was plowed and used for agricultural purposes. Before suit brought plaintiffs objected to the brick -burning. No act or omission of theirs induced the defendant to incur large expenses, or to take any action which could be the basis of an estoppel against them, and therefore there was no acquiescence or laches which should bar the plaintiffs, within any rule laid down in any reported case. It is true that if a party sleeps on his rights, and allows a nuisance to go on without remonstrance, or without taking measures, either by suit at law or in equity, to protect his rights, and allows one to go 424 LAW OF TORTS. on making large expenditures about the business which constitutes the nuisance, he will sometimes be regarded as guilty of such laches as to deprive him of equitable relief. But this is not such a case. Raden- hurst v. Coate, 6 Grant, Ch. 140; Heenan v. Dewar, 18 Grant, Ch. 438 ; Bankart v. Houghton, 27 Beav. 425. The defendant claims a prescriptive right to burn bricks' upon his land, and to cause the poisonous vapors to flow over plaintiffs' lands. Assuming that defendant could acquire, by lapse of time and continuous user, the prescriptive right which he claims, there has not here been a continuous use and exercise of the right for 20 con- secutive yeafs. Anthracite coal was first used for burning bricks in this yard in 1834, and after six years brick-burning was discontin- ued. It was not resumed again until about 1853, and after four years it was again discontinued, and it was not resumed again until 1867. So that anthracite coal, which caused plaintiffs' damage, had not been used in all for 20 years, and certainly not continuously in burning bricks upon the yard now owned by defendant. If he could acquire the right claimed by prescription, he, and those under whom he holds, must for 20 years have caused the poisonous gases to flow over plaintiffs' land whenever they burned bricks, and the wind blew from the direction of the kiln. Such a prescription neither the allegations in the answer, nor the proofs upon the trial, nor the findings of the referee, warrant. The referee finds that the premises of defendant have been known and used as -a brick-yard for over 25 years. This is not finding that they have been used as a brick-yard for 25 years continuously, or that they have caused the poisonous gases to flow over plaintiffs' land for that length of time continuously. Ball v. Ray, L. R. 8 Ch.' App. 467; Parker v. Mitchell, n Adol. & E. 788; Battishill v. Reed, 18 C. B. (N. S.) 696; Fish Co. v. Dudley, 37 Conn. 136. Where the damage to one complaining of a nuisance is small or trifling, and the damage to the one causing the nuisance will be large in case he be restrained, the courts will sometimes deny an in- junction. But such is not this case. Here the damage to the plain- tiffs, as found by the referee, is large and substantial. It does not appear how much damage the defendant will suffer from the restraint of the injunction. He does not own the only piece of ground where bricks can be made. We know that material for brick may exist in all parts of our state, and particularly at various points along the Hudson river. An injunction need not, therefore, destroy defend- ant's business, or interfere materially with the useful and necessary trade of brick-making. It does not appear how valuable defendant's land is for a brick-yard, nor how expensive are his erections for brick- making. I think we may infer that they are not expensive. For aught that appears, his land may be put to other use just as profitable to him. It does not appear that defendant's damage from an abate- NUISANCE. 425 ment of the nuisance will be as great as plaintiffs' damage from its continuance. Hence this is not a case within any authority to which our attention has been called where an injunction should be denied on account of the serious consequences to the defendant. We cannot apprehend that our decision in this case can improperly embarrass those engaged in the useful trade of brick-making. Similar decisions in England, where population and human habitations are more dense, do not appear to have produced any embarrassment. In this country there can be no trouble to find places where brick can be made without damage to persons living in the vicinity. It certainly cannot be necessary to make them in the heart of a village or in the midst of a thickly-settled community. It follows from these views that the judgment should be affirmed. All concur. Judgment affirmed. (For excellent definitions of a nuisance, see Bo'han v. Port Jervis Gaslight Co., 122 N. Y. 18, 25 N. E. 246, 9 L. R. A. 711 ; Laflin Powder Co. v. Tearney, 131 111. 322, 23 N. E. 389, 7 L. R. A. 262, 19 Am. St. Rep. 34. The rule that one "coming to a nuisance" cannot have relief against it is thoroughly ex- ploded. Thus, where manufacturing works were established at a place remote from habitation, and the neighboring city grew to this point, and the owners of adjoining lands built dwellings thereon, it was held that they were entitled to relief if the works were so conducted as to be a nuisance to them. People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L. R. A. 722 ; Wier's Appeal, 74 Pa. 230 ; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 20 Atl. 900, 9 L. R. A. 737, 25 Am. St. Rep. 595; Van Fossen v. Clark, 113 Iowa, 86. 84 N. W. 989, 52 L. R. A. 279 ; Ducktown Sul- phur Co. v. Barnes [Tenn.] 60 S. W. 593; Laflin Powder Co. v. Tearney, 131 111. 322, 23 N. E. 389, 7 L. R. A. 262, 19 Am. St. Rep. 34. No prescriptive right can be acquired to maintain a public nuisance. Driggs v. Phillips, 103 N. Y. 77, 8 N. E. 514 ; Cooley on Torts [2d Ed.] 730.) (11 H. L. Cas. *642.) ST. HELEN'S SMELTING CO. v. TIPPING. (House of Lords. July 5, 1865.) NUISANCE WHAT CONSTITUTES VAPORS FROM USEFUL INDUSTRIES. In an action to recover for a nuisance caused by vapors arising from the operation of defendant's smelting works on adjoining premises, the court charged the jury that every man is bound to use his own property In such a manner as not to injure the property of his neighbor, unless, by the lapse of a certain period of time, he has acquired a prescriptive right to do so ; that the law does not regard trifling inconveniences ; that everything must be looked at from a reasonable point of view ; and, therefore, in an action for nuisance to property by noxious vapors arising on the land of another, the injury, to be actionable, must be such as visibly to diminish the value of the property, and the comfort and enjoyment of it; that, in determining that question, the time, locality, 426 LAW OF TORTS. and all the circumstances should be taken into consideration; that, in countries where great works have been erected and carried on which are the means of developing the natural wealth, persons must not stand on extreme rights, and bring actions in respect of every matter of an- noyance, as, if that were so, business could not be carried on in these places. The court refused to hold that the questions which ought to be submitted to the jury were "whether it was a necessary trade, whether the place was a suitable place for such a trade, and whether it was carried on in a reasonable manner." Held, not erroneous. Appeal from Exchequer Chamber. Action by William Tipping against the St. Helen's Copper Smelting Company, Limited, for a nuisance to plaintiff's dwelling-house and premises caused by noxious vapors proceeding from smelting works owned and operated by defendant on adjoining lands, which destroyed plaintiff's trees and foliage, injured his cattle, and were detrimental to his health. At the trial in the court of queen's bench, before Melloi, J., defendant's counsel contended that the three questions which ought to be submitted to the jury were "whether it was a necessary trade, whether the place was a suitable place for such a trade, and whether it was carried on in a reasonable manner." The court refused so to hold, but charged the jury that every man is bound to use his own property in such a manner as not to injure the property of his neighbor, unless, by the lapse of a certain period of time, he has acquired a prescriptive right to do so; that the law does not regard trifling inconveniences; that everything must be looked at from a reasonable point of view ; and therefore, in an action for nuisance to property by noxious vapors arising on the land of another, the injury, to be actionable, must be such as visibly to diminish the value of the property and the comfort and enjoyment of it; that, in determining that question, the time, locality, and all the circumstances should be taken into consideration; that, in countries where great works have been erected and carried on which are the means of developing the natural wealth, persons must not stand on extreme rights, and bring actions in respect of every matter of an- noyance, as, if that were so, business could not be carried on in those places. The jury found specially that the enjoyment of plaintiff's property was sensibly diminished ; that the business carrie-d on by de- fendant was the ordinary business of smelting copper, and conducted in a proper manner, in as good a manner as possible ; and that it was carried on in a proper place; and found a verdict for plaintiff for 361 damages. Defendant moved for a new trial, which was refused. 4 Best & S. 608. The judgment of the queen's bench was affirmed by the exchequer chamber, and from that judgment defendant appealed. MARTIN, B. In answer to the questions proposed by your lord- ships to the judges, I have to state their unanimous opinion that the directions given by the learned judge to the jury are correct, and that a new trial ought not to be granted. As far as the experience of all of NUISANCE. 421 us goes, the directions are such as we have given in these cases for the last 20 years. THE LORD CHANCELLOR. My lords, I think your lordships will be satisfied with the answer we have received from the learned judges to the question put by this house. My lords, in matters of this description, it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal convenience, an interference 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 lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numer- ous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop ; but when an occupation is carried on by one person in the neighborhood of another, and the result of that trade or occupation or business is a material injury to property, then there unquestionably arises a very different consideration. I think, my lords, that, in a case of that description, the submission which is re- quired from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbors would not apply to circumstances the immediate re- sult of which is sensible injury to the value of the property. Now, in the present case, it appears that the plaintiff purchased a very valuable estate, which lies within a mile and a half from certain large smelting works. What the occupation of these copper smelting premises was anterior to the year 1860 does not clearly appear. The plaintiff became the proprietor of an estate of great value in the month of June, 1860. In the month of September, 1860, very extensive smelting operations began on the property of the present appellant, the works at St. Helen's. Of the effect of the vapors exhaling from those works upon the plaintiff's property, and the injury done to the trees and shrubs, there is abundance of evidence in the case. My lords, the action has been brought upon that; the jurors have found the existence of the injury ; and the only ground upon which your lordships are asked to set 428 LAW OF TORTS. aside that verdict, and to direct a new trial, is this : That the whole neighborhood where these copper smelting works were carried on is a neighborhood more or less devoted to manufacturing purposes, of a similar kind, and therefore it is said that, inasmuch as this copper smelting is carried on in what the appellant contends is a fit place, it may be carried on with impunity, although the result may be the utter destruction or the very considerable diminution of the value of the plaintiff's property. My lords, I apprehend that that is not the mean- ing of the word "suitable," or the meaning of the word "convenient," which has been used as applicable to the subject. The word "suitable" unquestionably cannot carry with it this consequence, that a trade may be carried on in a particular locality, the consequence of which trade may be the injury and destruction to the neighboring property. Of course, my lords, I except cases where any prescriptive right has been acquired by a lengthened user of the place. On these grounds, there- fore, shortly, without dilating further upon them, (and they are suf- ficiently unfolded by the judgment of .the learned judges in the court below,) I advise your lordships to affirm the decision of the court be- low, and to refuse the new trial, and to dismiss the appeal, with costs. LORD CRANWORTH. My lords, I entirely concur in opinion with my noble and learned friend on the woolsack, and also in the opinion expressed by the learned judges that this has been considered to be the proper mode of directing a jury, as Mr. Baron Martin said, for at least 20 years. I believe I should have carried it back rather further. In stating what I always understood the proper question to be, I cannot do better than adopt the language of Mr. Justice Mellor. He says : "It must be plain that persons using a lime-kiln or other works, which emit noxious vapors, may not do an actionable injury to another; and that any place, where such an operation is carried on so that it does occasion an actionable injury to another, is not, in the meaning of the law, a convenient place." I always understood that to be so; but in truth, as was observed in one of the cases by the learned judges, it is extremely difficult to lay down any actual definition of what constitutes an injury, because it is always a question of compound facts, which must be looked to, to see whether or not the mode of carrying on a busi- ness did or did not occasion so serious an injury as to interfere with the comforts of life and enjoyment of property. I perfectly well remem- ber, when I had the honor of being one of the barons of the court of exchequer, trying a case in the county of Durham, where there was an action for injury arising from smoke in the town of Shields. It was proved incontestably that smoke did come, and in some degree interfere with a certain person, but I said : "You must look at it, not with a view to the question whether, abstractedly, that quantity of smoke was a nuisance, but whether it was a nuisance to a person living in the town of Shields;" because, if it only added in an infinitesimal degree to NUISANCE. 429 the quantity of smoke, I thought that the state of the town rendered it altogether impossible to call that an actionable nuisance. There is nothing of that sort in the present case. It seems to me that the dis- tinction, in matter of fact, was most correctly pointed out by Mr. Justice Mellor, and I do not think he could possibly have stated the law, either abstractedly, or with reference to the facts, better than he has done in this case. LORD WENSLEYDALE. My lords, I entirely agree in opinion with both my noble and learned friends in this case. In these few sentences I think everything is included: The defendants say, "If you do not mind, you will stop the progress of works of this descrip- tion." I agree that that is so, because, no doubt, in the county of Lan- caster, above all other counties, where great works have been created and carried on, and are the means of developing the national wealth, you must not stand on extreme rights, and allow a person to say, "I will bring an action against you for this and that and so on." Busi- ness could not go on if that were so. Everything must be looked to from a reasonable point of view. Therefore the law does not regard trifling and small inconveniences, but only regards sensible inconven- iences, injuries which sensibly diminish the comfort, enjoyment, or value of the property which is affected. My lords, I do not think the question could have been more correctly laid down by any one to the jury, and I entirely concur in the propriety of dismissing this ap- peal. Appeal dismissed, with costs. (This case is followed in Hennessy v. Carmony, 50 N. J. Eq. 616, 25 Atl. 374; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 20 Atl. 900, 9 L. R. A. 737, 25 Am. St. Rep. 595 ; McKeon v. See, 51 N. Y. 300, 10 Am. Rep. 659 ; Ducktown Sulphur Co. v. Barnes [Tenn.] 60 S. W. 593. The location of an alleged nuisarce is always to be taken into consideration. What would be a nuisance in one place would be perfectly legitimate in another. Demurest v. Hardham, 34 N. J. Eq. 469; Eller v. Koehler [Ohio] 67 N. E. 89; Couiui. v. Miller, 139 Pa. 77, 21 Atl. 138, 23 Am. St. Rep. 170.) 430 LAW OF TORTS. II. EXAMPLES OF NUISANCES. L Drainage of surface waters. (86 N. Y. 140, 40 Am. Rep. 519.) BARKLEY v. WILCOX. (Court of Appeals of New York. Oct. 4, 1881.) SUBFACE WATERS OBSTRUCTING. The owner of land, which is so situated that the surface waters from the land above naturally descend upon and pass over it, may in good faith, and for the purpose of building upon and improving his land, fill and grade it, although thereby the water is prevented from reaching it, and is detained upon the land above. Appeal from Supreme Court, General Term, Second Department. Action by Alfred Barkley against Nelson Wilcox to recover damages for injuries alleged to have been sustained by the obstruction of the natural flow of surface water from plaintiff's lot over and across that of defendant. The case was submitted to a referee, who reported in favor of defendant, and the judgment entered thereon was affirmed by the general term. 19 Hun, 320. From the judgment of the general term plaintiff appealed. ANDREWS, J. This is not the case of a natural water-course. A natural water-course is a natural stream, flowing in a defined bed or channel, with banks and sides, having permanent sources of supply. It is not essential to constitute a water-course that the flow should be uniform or uninterrupted. The other elements existing, a stream does not lose the character of a natural water-course because, in times of drought, the flow may be diminished, or temporarily suspended. It is sufficient if it is usually a stream of running water. Ang. Water- Courses, 4; Luther v. Winnisimmet Co., 9 Cush. 171. The parties in this case own adjacent lots on a street near a village, but not within the corporate limits. The findings are that the natural formation of the land was such that surface water from rains and melt- ing snows would descend from different directions and accumulate in the street in front of the plaintiff's lot, in varying quantities according to the nature of the seasons, sometimes extending quite back upon plaintiff's lot; that in times of unusual amount of rain, or thawing snow, such accumulations, before the grading of the defendant's lot, were accustomed to run off over a natural depression in the surface of the land, across the defendant's lot, and thence over the lands of others, to the Neversink river; that when the amount of water was small, it would soak away in the ground; that in 1871 the defendant built a house on his lot, and used the earth excavated in digging the cellar to NUISANCE. 431 improve and better the condition of his lot, by grading and filling up the lot, and sidewalk in front of it, about 12 inches, and on a subsequent occasion he filled in several inches more; that in the spring of 1875 there was an unusually large accumulation of water from melting snow and rains in front of and about the plaintiff's premises, so that the water ran into the cellar of his house, and occasioned serious damage ; that the filling in of the defendant's lot had the effect to increase the accumulation of water on the plaintiff's lot, and contributed to the injury to his property. There was no natural water-course over the defendant's lot. The surface water, by reason of the natural features of the ground, and the force of gravity, when it accumulated beyond a certain amount in front of the plaintiff's lot, passed upofT and over the lot of the defendant. The discharge was not constant or usual, but occasional only. There was no "channel" or "stream," in the usual sense of those terms. In an undulating country, there must always be valleys and depressions, to which water, from rains or snow, will find its way from the hill-sides, and be finally discharged into some natural outlet. But this does not :onstitute such valleys or depressions water-courses. Whether, when the premises of adjoining owners are so situated that surface water fall- ing upon one tenement naturally descends to and passes over the other, the incidents of a water-course apply to and govern the rights of the respective parties, so that the owner of the lower tenement may not, even in good faith and for the purpose of improving or building upon his own land, obstruct the flow of such water to the injury of the owner above, is the question to be determined in this case. This question does not seem to have been authoritatively decided in this state. It was referred to by Denio, C. J., in Goodale v. Tuttle, 29 N. Y. 467, where he said : "And, in respect to the running off of surface water caused by rain or snow, I know of no principle which will prevent the owner of the land from filling up the wet and marshy places on his own soil, for its amelioration and his own advantage, because his neighbor's land is so situated as to be incommoded by it. Such a doctrine would militate against the well-settled rule that the owner of land has full dominion over the whole space above and below the surface." The case in which these observations were made did not call for the decision of the question, but they show the opinion of a great judge upon the point now in judgment. Similar views have been expressed in subse- quent cases in this court, although in none of them, it seems, was the question before the court for decision. Vanderwiele v. Taylor, 65 N. Y. 341 ; Lynch v. Mayor, etc., 76 N. Y. 60, 32 Am. Rep. 271. The question has been considered by courts in other states, and has been de- cided in different ways. In some the doctrine of the civil law has been adopted as a rule of decision. By that law, the right of drainage of surface water, as between owners of adjacent lands, of different ele- vations, is governed by the law of nature. The lower proprietor ii 432 LAW OF TORTS. bound to receive the waters which naturally flow from the estate above, provided the industry of man has not created or increased the servitude. Corp. Jur. Civ. 39, tit. 3, 2-5 ; Domat, (Cush. Ed.) 616 ; Code Nap. art. 640 ; Code La. art. 656. The courts of Pennsylvania, Illinois, Cali- fornia, and Louisiana have adopted this rule, and it has been referred to with approval by the courts of Ohio and Missouri. Martin v. Riddle, 26 Pa. 415 ; Kauffman v. Griesemer, Id. 407, 67 Am. Dec. 437 ; Gillham v. Railroad Co., 49 111. 484, 95 Am. Dec. 627 ; Gormley v. Sanford, 52 111. 158; Ogburn v. Connor, 46 Cal. 346, 13 Am. Rep. 213; Dela- houssaye v. Judice, 13 La. Ann. 587, 71 Am. Dec. 521 ; Hays v. Hays, 19 La. 351 ; Butler v. Peck, 16 Ohio St. 334, 88 Am. Dec. 452; Lau- mier v. Francis, 23 Mo. 181. On the other hand, the courts of Massa- chusetts, New Jersey, New Hampshire, and Wisconsin have rejected the doctrine of the civil law, and hold that the relation of dominant and servient tenements does not, by the common law, apply between ad- joining lands of different owners, so as to give the upper proprietor the legal right, as an incident of his estate, to have the surface water falling on his land discharged over the land of the lower proprietor, although it naturally finds its way there ; and that the lower proprietor may lawfully, for the improvement of his estate and in the course of good husbandry, or to make erections thereon, fill up the low places on his land, although by so doing he obstructs or prevents the surface water from passing thereon from the premises above to the injury of the up- per proprietor. Luther v. Winnisimmet Co., 9 Cush. 171 ; Parks v. Newburyport, 10 Gray, 28 ; Dickinson v. Worcester, 7 Allen, 19 ; Gan- non v. Hargadon, 10 Allen, 106, 87 Am. Dec. 625 ; Bowlsby v. Speer, 31 N. J. Law, 351, 86 Am. Dec. 216; Pettigrew v. Evansville, 25 Wis. 223, 3 Am. Rep. 50 ; Hoyt v. Hudson, 27 Wis. 656, 9 Am. Rep. 473 ; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276. It may be observed that in Pennsylvania house-lots in towns and cities seem to be regarded as not subject to the rule declared in the other cases in that state in re- spect to surface drainage. Bentz v. Armstrong, 8 Watts & S. 40, 42 Am. Dec. 265. And in Livingston v. McDonald, 21 Iowa, 160, 89 Am. Dec. 563, the court, in an opinion by Dillon, J., after stating the civil- law doctrine, say that it may be doubted whether it will be adopted by the common-law courts of this country, so far as to preclude the lower owner from making, in good faith, improvements which would have the effect to prevent the water of the upper estate from flowing or passing away. Professor Washburn states that the prevailing doctrine seems to be that if, for the purposes of improving and cultivating his land, a land-owner raises or fills it, so that the water which falls in rain or snow upon an adjacent owner's land, and which formerly flowed onto the first-mentioned parcel, is prevented from so doing, to the injury of the adjacent parcel, the owner of the latter is without remedy, since the other party has done no more than he had a legal right to do. Washb. Easem. (2d Ed.) 431. NUISANCE. 433 Upon this state of the authorities, we are at liberty to adopt such rule on the subject as we may deem most consonant with the demands of justice, having in view, on the one hand, individual rights, and on the other the interests of society at large. Upon consideration of the ques- tion, we are of opinion that the rule stated by Denio, C. J., in Goodale v. Tuttle, is the one best adapted to our condition, and accords with public policy ; while, at the same time, it does not deprive the owner of the upper tenement of any legal right of property. The maxim, aqua currit, et debet currere, ut currere solebat, expresses the general law which governs the rights of owners of property on water-courses. The owners of land on a water-course are not owners of the water which flows in it. But each owner is entitled, by virtue of his ownership of the soil, to the reasonable use of the water, as it passes his premises, for domestic and other uses, not inconsistent with a like reasonable use of the stream by owners above and below him. Such use is incident to his right of property in the soil. But he cannot divert, or unreasonably obstruct, the passage of the water, to the injury of other proprietors. These familiar principles are founded upon the most obvious dictates of natural justice and public policy. The existence of streams is a permanent provision of nature, open to observation by every purchaser of land through which they pass. The multiplied uses to which in civilized society the water of rivers and streams is applied, and the wide injury which may result from an unreasonable interference with the order of nature, forbid an exclusive appropriation by an individual of the water in a natural water-course, or any unreasonable interruption in the flow. It is said that the same principle of following the order of nature should be applied between coterminous proprietors, in determin- ing the right of mere surface drainage. But it is to be observed that the law has always recognized a wide distinction between the right of an owner to deal with surface water falling or collecting on his land and his right in the water of a natural water-course. In such water, before it leaves his land and becomes a part of a definite water-course, the owner of the land is deemed to have an absolute property, and he may appropriate it to his exclusive use, or get rid of it in any way he can, provided only that he does not cast it, by drains or ditches, upon the land of his neighbor ; and he may do this, although by so doing he prevents the water reaching a natural water-course, as it formerly did, thereby occasioning injury to mill-owners or other proprietors on the stream. So, also, he may, by digging on his own land, intercept the percolating waters which supply his neighbor's spring. Such conse- quential injury gives no right of action. Acton v. Blundell, 12 Mees. & W. 324 ; Rawstron v. Taylor, 1 1 Exch. 369 ; Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93. Now, in these cases there is an interference with natural laws. But those laws are to be construed in connection with social laws and the laws of property. The interference in these cases with natural laws is justified, because the general law of society CHASE (2o ED.) 28 434 LAW OF TORTS. is that the owner of land has full dominion over what is above, upon, or below the surface, and the owner, in doing the acts supposed, is exercising merely a legal right. The owner of wet and spongy land cannot, it is true, by draining or other artificial means, collect the sur- face water into channels, and discharge it upon the land of his neighbor, to his injury. This is alike the rule of the civil and common law. Corp. Jur. Civ. 39, tit. 3, 2, 3, 4, 5 ; Noonan v. City of Albany, 79 N. Y. 475, 35 Am. Rep. 540 ; Miller v. Laubach, 47 Pa. 154, 86 Am. Dec. 521. But it does not follow, we think, that the owner of land which is so situated that the surface water from the lands above natur- ally descends upon and passes over it may not, in good faith, and for the purpose of building upon or improving his land, fill or grade it, although thereby the water is prevented from reaching it, and is re- tained upon the lands above. There is a manifest distinction between casting water upon another's land and preventing the flow of surface water upon your own. Society has an interest in the cultivation and im- provement of lands, and in the reclamation of waste lands. It is also for the public interest that improvements shall be made, and that towns and cities shall be built. To adopt the principle that the law of na- ture must be observed, in respect to surface drainage, would, we think, place undue restriction upon industry and enterprise, and the control by an owner of his property. Of course, in some cases, the opposite principle may cause injury to the upper proprietor. But the question should, we think, be determined largely upon considerations of public policy and general utility. Which rule will, on the whole, best sub- serve the public interests, and is most reasonable in practice? For the reasons stated, we think the rule of the civil law should not be adopted in this state. The case before us is an illustration of the im- policy of following it. Several house-lots (substantially village lots) are crossed by the depression. They must remain unimproved if the right claimed by the plaintiff exists. It is better, we think, to establish a rule which will permit the reclamation and improvement of low and waste lands to one which will impose upon them a perpetual servitude, for the purpose of drainage, for the benefit of upper proprietors. We do not intend to say that there may not be cases which, owing to special conditions and circumstances, should be exceptions to the general rule declared. But this case is within it, and we think the judgment below should be affirmed. All concur. Judgment affirmed. (The common-law rule has been well expressed as follows : "Surface water is a common enemy which every proprietor may fight and get rid of as best he may ; but he must so do it as not unnecessarily or unreasonably to in- jure his neighbor." Jessup v. Bamford Bros. Co., 66 N. J. Law, 641, 51 Atl. 147, 58 L. R. A. 329, 88 Am. St. Rep. 502; Sheehan v. Flynn, 59 Minn. 430, 61 N. W. 462, 26 L. R. A. 632. For cases in support of this doctrine, in addition to those cited in the principal case, see Id. ; Morrison v. Bucksport & B. R. Co., 67 Me. 353; Franklin v. Durgee, 71 N. H. 186, 51 Atl. 911, 58 NUISANCE. 435 L. R. A. 112; Rathke v. Gardner, 134 Mass. 14; Byrne v. Farmlngton, 64 Conn. 367, 30 Atl. 138; Mo. Pac. R. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, i9 Am. St Rep. 249 ; Peck v. Goodberlett, 109 N. Y. 180, 16 N. E. 350. For the contrasted or so-called civil law rule, see Peck v. Herrington, 109 111. Gil, 50 Am. Rep. 627; Garland v. Aurin, 103 Tenn. 555, 53 S. W. 940, 48 L. R. A. 862, 76 Am. St. Rep. 69 where it was held that the party who erects the nuisance NUISANCE. continues liable so long as it exists, although a like liability may have attached to other parties by becoming purchasers. Without, therefore, laying any stress upon the reservations in the conveyances of these defendants to Leeds, as having the effect of making them partakers with him in the benefits of the nuisance, and partial procurers of the maintenance of it, we are bound, by the very reasonable and well-established doctrine of that case, to adjudge them liable in this action, as the original authors of the wrong. The defendants further insist that, having purchased the land with the dam upon it, they are entitled to notice from the plaintiff of the injurious nature of the structure, and to a request from the com- plaining party for its removal, before they can be charged in an action for maintaining it. In this they would be deemed to be per- fectly correct, if the thing complained of were the same which they found upon the land at the time of their purchase. But such is not the fact. The gravamen is that they maintained a dam whereby the plaintiff's land was flooded. Such was not the dam which their grantors erected or maintained, but the dam in its altered character, whether higher or tighter than the rightful structure which they purchased. As the authors of the nuisance, then, they have no right to any notice. They are liable upon the evidence, which charges them with having caused the nuisance, notice being required only to charge a purchaser by reason of having adopted it. Judgment on the verdict. ("The doctrine of the cases in this state and elsewhere Is that he who erects a nuisance does not, by conveying the land to another, transfer the liability for the erection to the grantee ; and the grantee is not liable until, upon request, he refuses to remove the nuisance, for the reason that he cannot know until such request but that the dam" [this was the nuisanco in this easel "was rightfully erected ; and there can be no Injury ia holding to this doctrine, as the original wrong-doer continues liable, notwithstanding his alienation." Eastman v. Amoskeag Mfg. Co., 44 N. H., at page 156, 82 Am. Dec. 201; Sloggy v. Dilworth, 38 Minn. 179, 36 N. W. 451, 8 Am. St. Rep. 656; Hyde Park Light Co. v. Porter, 167 111. 276, 47 N. E. 206. "The ground upon which the alienor is held liable for a nuisance created by him is that he is the author of the original wrong, and transferring the premises with the original wrong still existing is treated as affirming the continuance of it." East Jersey Water Co. v. Bigelow, 60 N. J. Law, at page 204, 38 Atl. 632. See also Johnson v. Lewis, 13 Conn. 303, 33 Am. Dec. 405 ; 21 Am. and Eng. Encyc. of Law (2d Ed.) 719, 720. In New York the rule as to the liability of the grantor is more qualified: "A party who has erected a nuisance will sometimes be answerable for its continuance after he has parted with the possession of the land ; but it is only when he continues to derive a benefit from the nuisance, as by demising the premises and receiving rent, or where he conveys the property with cov- enants for the continuance of the nuisance." Mayor of Albany v. Cunliff, 2 N. Y., at page 174 ; Covert v. Cranford, 141 N. Y. 521, 527, 36 N. E. 297, 38 Am. St Rep. 826; Hanse v. Cowing, 1 Lans. 288.) 460 LAW OF TORTS. (3 Allen, 264, 80 Am. Dec. 72.) McDONOUGH v. OILMAN. (Supreme Judicial Court of Massachusetts. Nov. Term, 1861.) 1. NUISANCE Wno LIABLE LANDLORD AND TENANT. A tenant for years, who restores a nuisance to a right of way after the same has been abated, is liable therefor, although the same existed before his tenancy ; but merely repairing it after it was injured, but not abated, will not make him liable, if it does not become more of a nuisance thereby. 2. SAME CONTINUING NUISANCE NOTICE TO REMOVE. A tenant for years is not liable for keeping a nuisance as It was used before his tenancy commenced, in the absence of a request to remove it, if he does no new act of itself amounting to a nuisance. 3. SAME. The notice to a tenant to remove a nuisance which is kept by him in the manner in which it existed when his tenancy commenced, without any act on his part amounting in itself to a nuisance, must be clear and unequivocal, to make him liable for the continuance. Exceptions from Superior Court, Suffolk County. Action of tort by Patrick McDonough against George W. Gilman for erecting and maintaining a nuisance on plaintiff's right of way. Verdict was rendered for plaintiff. Defendant alleged exceptions. CHAPMAN, J. The plaintiff's declaration in this case is very loose and inartificial ; but the amended count on which he relies states, in substance, that he has a right of way, as therein described, and that the defendant has obstructed it by erecting and maintaining on a part of it a staircase, privy, and vault. On the trial it appeared that these structures were placed there, not by the tenant, who is a lessee for years, but by his lessors ; and that his lease contains the following clause : "The passage-ways around the said buildings [the leased premises] are reserved by the lessors, who hereby lease only the right of such use thereof as may be necessary for the enjoyment of the building aforesaid." One of these passage-ways is the way in question; and the fee of the land is in the lessors, subject to the plaintiff's right of way. The privy and vault existed before the de- fendant became tenant, about 18 years ago. It does not appear when the staircase was built. The instruction to the jury that, if they found the privy was a nui- sance, and the plaintiff abated it, and the defendant restored it, he is liable, was correct; for in such case the existing nuisance would have been erected by him, and not by his lessor. But the instruction does not appear to be applicable to the facts as reported. It is stated that "on one occasion the plaintiff commenced beating down said staircase with his axe, when the defendant restrained him therefrom; NUISANCE. 461 and on one occasion the plaintiff beat off the boards from said privy, and the defendant refitted it." It is not stated that the plaintiff re- moved the frame of the privy. He merely knocked off the boards, which would make it none the less a nuisance, and the defendant merely refitted it, which did not make it any more a nuisance than before. The act would be merely keeping and maintaining it, not erecting it. It would be like the case of Beswick v. Cunden, Cro. Eliz. 520. In that case' the declaration alleged that the defendant kept and maintained a bank by which a brook was caused to flow around the plaintiff's land. The court said : "There is not here any offense committed by the defendant ; for he allegeth that he kept and maintained a bank, which is that he kept it as he found it ; and it is not any offense done by him, for he did not do anything; and, if it were a nuisance before his time, it is not any offense in him to keep it." And the case is distinguished from other cases where every using is a new nuisance, as the using of an aqueduct which takes water wrongfully from another. There every turning of the cock to let the water flow is a new nuisance. The act of refitting the privy must have been an act which rendered it more a nuisance to the pass- age-way than it would otherwise have been, to make the defendant liable as an erector of the nuisance. The act of the defendant in re- straining the plaintiff from beating down the staircase with an axe is not embraced in this ruling, and the character and circumstances of the act do not fully appear. The other instructions excepted to were as follows : "That, if the privy and staircase were an obstruction of the plaintiff's right of way, then the tenant is liable to an action, if the obstruction continued, and if he occupied the premises after notice was given to him by the plaintiff to remove the obstructions, although they were erected by his landlord ; and that the law does not prescribe the kind of notice which should thus be given by the plaintiff to the defendant to re- move said obstructions ;" and he submitted the question to the jury whether such notice had or had not been given. The report states all the evidence of notice that was offered, and it is as follows : "The plaintiff complained to the defendant of the erection of the staircase at the time when it was erected ; and on another occasion the plain- tiff asked the defendant how he thought he could drive a team with two tons of coal by said stairway to his house." His attempting to beat down the staircase with an axe, and knocking the boards off from the privy, are not a notice. The court are of opinion that this instruction was not quite correct. In Penruddock's Case, 5 Coke, loob, it was resolved that an action lies against one who erects a nuisance, without any request made to abate it, but not against the feoffee, unless he does not reform the nuisance after request made. In Winsmore v. Greenbank, Willes, 583, Penruddock's Case is referred to, with the remark that the law 462 . LAW OF TORTS. is certainly so. In 2 Chit. PI. (6th Amer. Ed.) 770, note, pleaders are advised to allege in the declaration a special request to remove the nuisance in actions against the grantee of the premises. In Pierson v. Glean, 14 N. J. Law, 37, 25' Am. Dec. 497, Hornblower, C. J., says : "The law, as settled in Penruddock's Case, has never, I believe, been seriously questioned since." This action was for maintaining a dam erected by a former owner, and it was held that it could not be main- tained without a request to reform the nuisance. In Woodman v. Tufts, 9 N. H. 92, the same doctrine is held, and the court proceed to say : "And the question arises, what that request must be. It un- doubtedly must be so distinctly and definitely stated as to convey clearly the ground of the complaint, with a notice that the plaintiff will not longer submit to the continuance of the cause of the injury." "No particular form of words is required." This does not quite come up to the law of Penruddock's Case. We think that there should be, in some unequivocal language, a request to the tenant to reform or remove a nuisance, before he can be held liable for its continuance. It is not unreasonable to hold the plaintiff who proceeds against the lessee to this strictness. The landlord or grantor himself is liable, notwithstanding his lease or grant, for the continuance of the nui- sance. This was settled in Roswell v. Prior, 12 Mod. 635. In that case the plaintiff had recovered against the defendant for erecting a building which stopped the plaintiff's ancient lights. The defendant had granted over the ground with the nuisance to another, and contended that he was no longer liable, but that the action should be against the lessee. But the court said : "Surely this action is well brought against the erector, for before his assignment over he was liable for all consequential damages, and it shall not be in his power to discharge himself by granting it over, and more especially here, where he grants over, reserving rent, whereby he agrees with the grantee that the nuisance should continue, and has a recompense, viz., the rent for the same; for surely when one erects a nuisance, and grants it over in that manner, he is a continuer with a witness." But the tenant, who merely enters upon the premises and occupies them under an obligation to pay rent for the whole and to commit no waste, cannot reasonably be regarded as a wrong-doer till the party injured distinctly and unequivocally complains to him of the injury, and informs him that he is expected to act in the matter, and remove it. In Ryppon v. Bowles, Cro. Jac. 373, it is said that Coke, C. J., inclined to the opinion that a tenant for years is not liable for the mere occupation of a building erected by his lessor, and which obstructs the plaintiff's lights, because his tearing down the building would be waste as to his landlord. In the present case the language proved does not amount to a request, and the jury should have been so instructed; for, though verbal communications are to be construed by the jury under instruc- NUISANCE. 403 tions from the court, yet when a communication cannot, by any fair interpretation, be regarded as a sufficient notice or request, the jury should be so instructed as to its meaning. Exceptions sustained. (This same rule as to the need of a request to abate applies to grantees or devisees as well as to lessees. Ahern v. Steele, 115 N. Y., at page 210, 22 N. B. 194, 5 L. R. A. 449, 12 Am. St Rep. 778; Nichols v. City of Boston, 98 Mass. 39, 93 Am. Dec. 132. See also Sandford v. Clarke, 21 Q. B. Div. 398; Dalay v. Savage, 145 Mass. 38, 12 N. E. 841, 1 Am. St. Rep. 429; Lufkin v. Zane, 157 Mass. 117, 31 N. E. 757, 77 L. R. A. 251, 34 Am. St. Rep. 262 ; Joyce v. Martin, 15 R. I. 558, 10 Atl. 620 ; Pope v. Boyle, 98 Mo. 527, 11 S. W. 1010 ; Clifford v. Cotton Mills, 146 Mass. 47, 15 N. E. 84, 4 Am. St. Rep. 279; Lee v. McLaughlin, 86 Me. 410, 30 Atl. 65, 26 L. R. A. 197 ; Nugent v. Boston, C & M. R. Co., 80 Me. 62, 12 Atl. 797, 6 Am. St. Rep. 151; Ingwersen v. Ran- kin, 47 N. J. Law, 18, 54 Am. Rep. 109 ; Lane v. Cox [1897] 1 Q. B. 415. The law of New York differs somewhat from that of the principal case. Thus it is held that where a person acquires title to land upon which there is a nuisance, the mere omission to abate or remove it does not render him liable; it is necessary to prove either a request to him to abate it, or that he had notice or knowledge of its existence. Conhocton Stone Road v. Buffalo, N. Y. & E. R. Co., 51 N. Y. 573, 10 Am. Rep. 646; Wenzlick v. McCotter, 87 N. Y. 122, 41 Am. Rep. 358; Timlin T. Standard Oil Co., 126 N. Y. 514, 27 N. E. 786, 22 Am. St Rep. 845.) IV. PRIVATE INJURY FROM PUBLIC NUISANCE. (13 Allen, 95, 90 Am. Dec. 181.) WESSON v. WASHBURN IRON CO. (Supreme Judicial Court of Massachusetts. Oct. Term, 1866.) L PUBLIC NUISANCE SPECIAL, DAMAGE TO INDIVIDUALS. Where the right invaded or impaired is a common and public one, which every subject of the state may exercise and enjoy, a mere depri- vation or obstruction of the use which hinders all persons alike, and does not cause any special or peculiar damage to any one, furnishes no yalid cause of action to an individual, although he may suffer incon- venience greater in degree than others from the alleged obstruction or hindrance. But when the alleged nuisance injures private property, or the health or comfort of an individual, it is in its nature special and peculiar, and cannot be said to cause a common or public damage; and it is actionable, though it is committed in a manner and under circum- stances which would render the guilty party liable to an indictment for a common nuisance. 2. SAME NOISE, SMOKE, AND Noxious VAPOBS. A person may recover for injuries to his premises caused by noise, smoke, and noxious vapors in the operation of another's rolling-mills, though many other persons in the same neighborhood are injured in the same way. 404 LAW OF TORTS. Exceptions from Superior Court, Worcester County. Action by Betsey Wesson against the Washburn Iron Company for injuries to plaintiff's premises caused by the operation of defend- ant's rolling-mill and foundry. It appeared at the trial that defend- ant's works were erected in a proper locality, and were properly constructed and managed, but that the jarring and noise from the machinery, and the smoke, cirders, dust, and gas from its operation, were so great as materially to injure plaintiff's premises. Plaintiff requested the court to instruct the jury that if her dwelling-house was injured by jarring and shaking, and rendered unfit for habitation by smoke, cinders, dust, and gas from defendant's works, it was no de- fense to the action that many other houses in the neighborhood were affected in a similar manner. But the judge declined so to rule, and instructed the jury, in accordance with defendant's request, that plaintiff could not maintain the action if it appeared that the damage which plaintiff had sustained in her estate was common to all others in the vicinity ; but it must appear that she had sustained some spe- cial damage, differing in kind and degree from that common to all others in the neighborhood. The jury found a verdict for defendant. Plaintiff alleged exceptions. BIGELOW, C. J. The interesting question is to be considered whether the instructions under which the case was submitted to the jury were correct, and appropriate to the facts in proof. There can be no doubt of the truth of the general principle stated by the court, that a nuisance may exist which occasions an injury to an individual, for which an action cannot be maintained in his favor, unless he can show some special damage in his person or property, differing in kind and degree from that which is sustained by other persons who are subjected to inconvenience and injury from the same cause. The difficulty lies in the application of this principle. The true limit, as we understand it, within which its operation is allowed, is to be found in the nature of the nuisance which is the subject of complaint. If the right invaded or impaired is a common and public one, which every subject of the state may exercise and enjoy, such as the use of a highway, or canal, or public landing place, or a common watering place on a stream or pond of water, in all such cases a mere depriva- tion or obstruction of the use which excludes or hinders all persons alike from the enjoyment of the common right, and which does not cause any special or peculiar damage to any one, furnishes no valid cause of action in favor of an individual, although he may suffer inconvenience or delay greater in degree than others from the al- leged obstruction or hindrance. The private injury, in this class of cases, is said to be merged in the common nuisance and injury to all citizens, and the right is to be vindicated and the wrong punished by a public prosecution, and not bv a multiplicity of separate actions NUISANCE. 465 in favor of private individuals. Several instances of the application of this rule are to be found in our own Reports. Stetson v. Faxon, 19 Pick. 147, 31 Am. Dec. 123; Thayer v. Boston, 19 Pick. 511, 514, 31 Am. Dec. 157; Quincy Canal v. Newcomb, 7 Mete. (Mass.) 276, 283, 39 Am. Dec. 778; Holman v. Townsend, 13 Mete. (Mass.) 297, 299; Smith v. Boston, 7 Cush. 254; Brainard v. Railroad Co., Id. 506, 511; Blood v. Railroad Corp., 2 Gray, 140, 61 Am. Dec. 444; Brightman v. Fairhaven, 7 Gray, 271 ; Harvard College v. Stearns, 15 Gray, I ; Willard v. Cambridge, 3 Allen, 574; Hartshorn v. South Reading, Id. 501 ; Fall River Iron-Works Co. v. Old Colony & F. R. R. Co., 5 Allen, 224. But it will be found that in all these cases, and in others in which the same principle has been laid down, it has been applied to that class of nuisances which have caused a hindrance or obstruction in the exercise of a right which is common to every person in the com- munity, and that it has never been extended to cases where the al- leged wrong is done to private property, or the health of individuals is injured, or their peace and comfort in their dwellings is impaired by the carrying on of offensive trades and occupations which create noisome smells or disturbing noises, or cause other annoyances and injuries to persons and property in the vicinity, however numerous or extensive may be the instances of discomfort, inconvenience, and injury to persons and property thereby occasioned. Where a public right or privilege, common to every person in the community, is interrupted or interfered with, a nuisance is created by the very act of interruption or interference, which subjects the party through whose agency it is done to a public prosecution, although no actual injury or damage may be thereby caused to any one. If, for ex- ample, a public way is obstructed, the existence of the obstruction is a nuisance, and punishable as such, even if no inconvenience or delay to public travel actually takes place. It would not be necessary, in a prosecution for such a nuisance, to show that any one had been delayed or turned aside. The offense would be complete, although during the continuance of the obstruction no one had had occasion to pass over the way. The wrong consists in doing an act inconsist- ent with and in derogation of the public or common right. It is in cases of this character that the law does not permit private actions to be maintained on proof merely of a disturbance in the enjoyment of the common right, unless special damage is also shown, distinct not only in degree, but in kind, from that which is done to the whole public by the nuisance. But there is another class of cases in which the essence of the wrong consists in an invasion of private right, and in which the public offense is committed, not merely by doing an act which causes in- jury, annoyance, and discomfort to one or several persons who may come within the sphere of its operation or influence, but by doing it CHASE (2o ED.) 30 466 LAW OF TORTS. m such place and in such manner that the aggregation of private injuries becomes so great and extensive as to constitute a public an- noyance and inconvenience, and a wrong against the community, which may be properly the subject of a public prosecution. But it has never been held, so far as we know, that in cases of this charac- ter the injury to private property, or to the health and comfort of individuals, becomes merged in the public wrong, so as to take away from the persons injured the right which they would otherwise have to maintain actions to recover damages which each may have sus- tained in his person or estate from the wrongful act. Nor would such a doctrine be consistent with sound principle. Carried out practically, it would deprive persons of all redress for injury to property or health, or for personal annoyance 'and discom- fort, in all cases where the nuisance was so general and extensive as to be a legitimate subject of a public prosecution ; so that, in ef- fect, a wrong-doer would escape all liability to make indemnity for private injuries by carrying on an offensive trade or occupation in such place and manner as to cause injury and annoyance to a suffi- cient number of persons to create a common nuisance. The real distinction would seem to be this : That, when the wrong- ful act is of itself a disturbance or obstruction only to the exercise of a common and public right, the sole remedy is by public prosecu- tion, unless special damage is caused to individuals. In such case, the act, of itself, does no wrong to individuals distinct from that done to the whole community. But when the alleged nuisance would constitute a private wrong, by injuring property or health, or creat- ing personal inconvenience and annoyance, for which an action, might be maintained in favor of a person injured, it is none the less actionable because the wrong is committed in a manner and under circumstances which would render the guilty party liable to indict- ment for a common nuisance. This, we think, is substantially the conclusion to be derived from a careful examination of the adjudged cases. The apparent conflict between them can be reconciled on the ground that an injury to private property, or to the health and com- fort of an individual, is in its nature special and peculiar, and does not cause a damage which can properly be said to be common or public, however numerous may be the cases of similar damage aris- ing from the same cause. Certainly, multiplicity of actions affords no good reason for denying a person all remedy for actual loss and injury which he may sustain in his person or property by the unlaw- ful acts of another, although it may be a valid ground for refusing redress to individuals for a mere invasion of a common and public right. The rule of law is well settled and familiar, that every man is bound to use his own property in such manner as not to injure the property of another, or the reasonable and proper enjoyment of it, NUISANCE. 467 and that the carrying on of an offensive trade or business, which creates noisome smells and noxious vapors, or causes great and disturbing noises, or which otherwise renders the occupation of property in the vicinity inconvenient and uncomfortable, is a nuisance for which any person whose property is damaged or whose health is injured, or whose reasonable enjoyment of his estate as a place of residence is impaired or destroyed, thereby may well maintain an action to recover compensation for the injury. The limitations prop- er to be made in the application of this rule are accurately stated in Bamford v. Turnley, 3 Best & S. 66, and in Tipping v. Smelting Co., 4 Best & S. 608-615, ii H. L,. Cas. 642, and cases there cited. See, also, in addition to cases cited by the counsel for the plaintiff, Spen- cer v. Railway Co., 8 Sim. 193 ; Soltau v. De Held, 2 Sim. (N. S.) 133. The instructions given to the jury were stated in such form as to lead them to infer that this action could not be maintained if it ap- peared that other owners of property in that neighborhood suffered injury and damage similar to that which was sustained by the plain- tiff in her estate by the acts of the defendants. This, as applied to the facts in proof, was an error, and renders it necessary that the case should be tried anew. Exceptions sustained. (See also Buchholz v. New York, L. E. & W. R. Co., 148 N. Y. 640, 43 N. E. 76, reported ante, on page 67. Additional cases of value are Francis v. Schoellkopf, 53 N. Y. 152; Kavanagh v. Barber, 131 N. Y. 211, 30 N. E. 235, 15 L. R. A. 689; Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514; Brayton v. Fall River, 113 Mass. 218, 18 Am. Rep. 470; Railroad Co. v. Jones, 111 Pa. 204, 2 Atl. 410, 56 Am. Rep. 200; Crook v. Pitcher, 61 Md. 510; Sohn v. Camberu, 106 Ind. 302, 6 N. E. 813; Clark v. Peckbam, 10 R. I. 35, 14 Am. Rep. 654; City of Chicago v. Building Ass'n, 102 111. 379, 40 Am. Rep. 598; Brown v. Watson, 47 Me. 161, 74 Am. Dec. 482; Holmes v. Corthell, 80 Me. 31, 12 Atl. 730 ; Mehrhof Bros. Brick Mfg. Co. v. Delaware, L. & W. R. Co., 51 N. J. Law, 56, 16 Atl. 12. As to what will be deemed sufficient special damage, resulting from the obstruction of a highway, to support a cause of action in tort, see Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341; Knowles v. Pennsylvania R. Co., 175 Pa. 623, 34 Atl. 974, 52 Am. St. Rep. 860: O'Brien v. Central Iron & Steel Co., 158 Ind. 218, 63 N. E. 302, 57 L. R. A. 508, 92 Am. St. Rep. 305; Flynn v. Taylor, 127 N. Y. 596, 28 N. E. 418, 14 L. R. A. 556.) 408 LAW OF TOBTS. V. LEGALIZED NUISANCE. (136 Mass. 239, 49 Am. Rep. 27.) SAWYER et al. v. DAVIS et al. (Supreme Judicial Court of Massachusetts. Jan. 9, 1884.) L NUISANCE LEGALIZED BY STATUTE. The legislature may, by virtue of its police power, pass an act providing that manufacturers and others employing workmen may, for the pur- pose of giving notice to such employees, ring bells and use whistles and gongs of such size and weight, in such manner, and at such hours, as the municipal authorities may designate, though their use of such beils, whistles, and gougs operates to the injury of individuals, which other- wise a court of equity would restrain. 2. SAME EFFECT OF PRIOR INJUNCTION. An injunction restraining the ringing of a factory bell, used to notify employees, before a certain hour in the morning, does not give a vested right which the legislature is powerless to take away by a statute legal- izing the ringing of such bell before that hour, and on a bill of review in such case the injunction will be dissolved. Case reserved. Bill of review. Plaintiffs, manufacturers of Plymouth, were, on October I, 1881, restrained by a decree of this court, on a bill in eq- uity by defendants, from ringing the bell on their mill before the hour of 6:30 a. m. Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519. March 28, 1883, the legislature passed an act providing that "manufacturers and others employing workmen are authorized, for the purpose of giving notice to such employees, to ring bells and use whistles and gongs of such size and weight, in such manner, and at such hours, as the board of aldermen of cities and the selectmen of towns may in writing designate." St. Mass. 1883, c. 84. Under such statute the selectmen of the town licensed plaintiffs to ring their bell at 5 a. m. The bill prayed a dissolution or modification of the injunction to enable plaintiffs to act under their license. Defend- ants demurred to the bill, claiming that the statute was unconstitu- tional so far as applicable to defendants. At the hearing before Col- burn, J., he reserved the case for the consideration of the full court. C. ALLEN, J. Nothing is better established than the power of the legislature to make what are called "police regulations," declar- ing in what manner property shall be used and enjoyed, and busi- ness carried on, with a view to the good order and benefit of the community, even although they may to some extent interfere with the full enjoyment of private property, and although no compensation is given to a person so inconvenienced. Bancroft v. Cambridge, 126 Mass. 438-441. In most instances, the illustrations of the proper NUISANCE. 469 exercise of this power are found in rules and regulations restraining the use of property by the owner in such manner as would cause dis- turbance and injury to others. But the privilege of continuing in the passive enjoyment of one's own property, in the same manner as formerly, is subject to a like limitation ; and with the increase of population in a neighborhood, and the advance and development of business, the quiet and seclusion and customary enjoyment of homes are necessarily interfered with, until it becomes a question how the right which each person has of prosecuting his lawful busi- ness, in a reasonable and proper manner, shall be made consistent with the other right which each person has to be free from unreason- able disturbance in the enjoyment of his property. Merrifield v, Worcester, no Mass. 216, 219, 14 Am. Rep. 592. In this conflict of rights, police regulations by the legislature find a proper office in 'determining how far, and under what circumstances, the individual must yield, with a view to general good. For example, if, in a neigh- borhood thickly occupied by dwelling-houses, any one, for his own entertainment or the gratification of a whim, were to cause bells to be rung and steam-whistles to be blown to the extent that is usual with the bells and steam-whistles of locomotive engines near rail- road stations in large cities, there can be no doubt that it would be an infringement of the rights of the residents, for which they would find ample remedy and vindication in the courts. But if the legis- lature, with a view to the safety of life, provides that bells shall be rung and whistles sounded, under those circumstances, persons liv- ing near by must necessarily submit to some annoyance from this source, which otherwise they would have a right to be relieved from. It is ordinarily a proper subject for legislative discretion to deter- mine by general rules the extent to which those who are engaged in customary and lawful necessary occupations shall be required or allowed to give signals or warnings by bells or whistles, or other- wise, with a view either to the public safety, as in the case of rail- roads, or to the necessary or convenient operation and management of their own works ; and ordinarily such determination is binding upon the courts, as well as upon citizens generally. And when the legislature directs or allows that to TDC done which would other- wise be a nuisance, it will be valid, upon the ground that the legis- lature is ordinarily the proper judge of what the public good requires, unless carried to such an extent that it can fairly be said to be an unwholesome and unreasonable law. Bancroft v. Cambridge, 126 Mass. 441. It is accordingly held in many cases, and is now a well- established rule of law, at least in this commonwealth, that the in- cidental injury which results to the owner of property situated near a railroad, caused by the necessary noise, vibration, dust, and smoke from the passing trains, which would clearly amount to an actionable nuisance if the operation of the railroad were not authorized by the 470 LAW OP TORTS. legislature, must, if the running of the trains is so authorized, be borne by the individual, without compensation or remedy in any form. The legislative sanction makes the business lawful, and defines what must be accepted as a reasonable use of property and exercise of rights on the part of the railroad company, subject always to the qualification that the business must be carried on without negligence or unnecessary disturbance of the rights of others. And the same rule extends to other causes of annoyance which are regulated and sanctioned by law. Presbrey v. Railway, 103 Mass, i, 6, 7; Walker v. Railway, Id. 10-14, 4 Am. Rep. 509; Bancroft v. Cambridge, 126 Mass. 441; Call v. Allen, I Allen, 137; Com. v. Chemical Works, 1 6 Gray, 231-233; Struthers v. Railway, 87 Pa. 282; Hatch v. Rail- road, 28 Vt. 142, 147; Brand v. Railway, L. R. i Q. B. 130, L. R. 2 Q. B. 223, L. R. 4 H. L. 171 ; Vaughan v. Railway, 5 Hurl. & N. 679, 685, 687 ; Rex v. Pease, 4 Barn. & Adol. 30 ; Sedg. St. & Const. Law, 435, 436. The recent case of Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739, is strongly relied on by the defendants as an authority in their favor. There are, however, two material and decisive grounds of distinction between that case and this. There the railroad company had only a general legislative authority to construct works necessary and expedient for the proper completion and maintenance of its railroad, under which authority it assumed to build an engine-house and machine-shop close by an existing church, and it was held that it was never intended to grant a license to select that particular place for such works, to the nui- sance of the church. Moreover, in that case, the disturbance was so great as not only to render the church uncomfortable, but almost unendurable, as a place of worship, and it virtually deprived the owners of the use and enjoyment of their property. We do not un- derstand that it was intended to lay down, as a general rule applica- ble to all cases of comparatively slight, though real, annoyance, naturally and necessarily resulting, in a greater or less degree, to all owners of property in the neighborhood, from a use of property, or a method of carrying on a lawful business which clearly falls with 1 in the terms and spirit of a legislative sanction, that such sanction will not affect the claim of such owner to relief, but, rather, that the court expressly waived the expression of an opinion upon the point. In this commonwealth, as well as in several of the United States and in England, the cases already cited show that the question is set- tled by authority, and we remain satisfied with the reasons upon which the doctrine was here established. Courts are compelled to recognize the distinction between such serious disturbances as ex- isted in the case referred to and comparatively slight ones, which differ in degree only, and not in the kind, from those suffered by oth- ers in the same vicinity. Slight infractions of the natural rights of NUISANCE. 471 the individual may be sanctioned by the legislature, under the proper exercise of the police power, with a view to the general good. Grave ones will fall within the constitutional limitation that the legislature is only authorized to pass reasonable laws. The line of distinction cannot be so laid down as to furnish a rule for settling all cases in advance. The difficulty of marking the boundaries of this legislative power, or of prescribing limits to its exercise, was declared in Com. v. Alger, 7 Cush. 53, 85, and is universally recognized. Courts, how- ever, must determine the rights of parties in particular cases as they arise ; always recognizing that the ownership of property does not of itself imply the right to use or enjoy it in every possible manner, without regard to corresponding rights of others as to the use and enjoyment of their property ; and also that the rules of the common law, which have from time to time been established, declaring or limiting such rights of use and enjoyment, may themselves be changed as occasion may require. Munn v. Illinois, 94 U. S. 113-134, 24 L. Ed. 77. In the case before us, looking at it for the present without regard to the decree of this court in the former case between these parties, we find nothing in the facts set forth which show that the statute re- lied on, as authorizing the plaintiffs to ring their bell (St. 1883, c. 84), should be declared unconstitutional. It is virtually a license to man- ufacturers, and others employing workmen, to carry on their busi- ness in a method deemed by the legislature to be convenient, if not necessary, for the purpose of giving notice, by ringing bells and us- ing whistles and gongs, in such manner and at such times as may be designated in writing by municipal officers. In character it is not unlike numerous other instances to be found in our statutes, where the legislature has itself fixed, or has authorized municipal or other boards or officers to fix, the places, times, and methods in which occupations may be carried on, or acts done, which would naturally be attended with annoyance to individuals. The example of bells and whistles on locomotive engines has already been mentioned. Reference may also be made to the statutes regulating the use of stationary steam-engines, the places and manner of manufacturing or keeping petroleum, of carrying on other offensive trades and oc- cupations, of storing gunpowder, and of establishing hospitals, sta- bles, and bowling-alleys. The defendants, however, contend that a different question arises in the present case, where the plaintiffs rely upon a legislative sanc- tion given to acts after it had been determined by this court that the doing of them was attended with a peculiar injury to the defendants, which entitled them to a remedy as for a nuisance. There can be no doubt that such sanction would be a good defense to an indict- ment for a nuisance ; or to a proceeding instituted by an individual, whose only grievance was that he had sustained special damage in 472 LAW OF TORTS. consequence of being disturbed in the enjoyment of some public right, such as a right to travel upon a highway or river. His public .right may clearly be regulated and controlled by the legislature after a decision by the court as well as before. Com. v. Essex Co., 13 Gray, 239, 247. But the argument is urged upon us with great force that in the present case there had been a judicial determination that the ringing of the bell, at the hours now authorized by the terms of the statute and the designation of the selectmen, was a private nuisance to the defendants, not growing out of any public right, and that the statute ought not, as a matter of construction, to be held applicable to this case ; or, if such is its necessary construction, that it is unconstitutional, as interfering with their vested rights. In the first place, we can have no doubt that the statute, by its just con- struction, is in its terms applicable to the present case. It is un- doubtedly true that neither a general authority nor a particular li- cense is to be so construed as to be held to sanction what was not intended to be sanctioned. A general authority is not necessarily to be treated as a particular license (Com. v. Kidder, 107 Mass. 188) ; and in some cases, even where a particular license or authority has been given, as to keep an inn, ale-house, or slaughter-house in a particular place, which is specified, this authority has not been deemed to sanction the keeping of it in an improper manner. Rex v. Cross, 2 Car. & P. 483; Com. v. McDonough, 13 Allen, 581, 584; State v. Mullikin, 8 Blackf. 260 ; U. S. v. Elder, 4 Cranch, C. C. 507, Fed. Cas. No. 15,039. And, ordinarily, a statute which authorizes a thing to be done, which can be done without creating a nuisance, will not be deemed to authorize a nuisance. In such cases it is not to be assumed that it was contemplated by the legislature that what was so authorized would have the necessary effect to create a nui- sance, or that it would be done in such a manner as to create a nui- sance; and, if a nuisance is created, there will in such cases ordi- narily be a remedy at law or in equity. Eames v. Worsted Co., II Mete. (Mass.) 570; Haskell v. New Bedford, 108 Mass. 208, 215; Com. v. Kidder, 107 Mass. 188. But, on the other hand, the author- ity to do an act must be held to carry with it whatever is naturally incidental to the ordinary and reasonable performance of that act. When the legislature authorized factory bells to be rung, it must have been contemplated that they would be heard in the neighborhood. That is a natural and inevitable consequence. The legislature must be deemed to have determined that the benefit is greater than the injury and annoyance, and to have intended to enact that the public must submit to the disturbance for the sake of the greater advantage that would result from this method of carrying on the business of manufacturing. It must be considered, therefore, in this case, that a legislative sanction has been given to the very act which this court found to create a private nuisance. It is then argued that the legis- NUISANCE. 473 lature cannot legalize a nuisance, and cannot take away the rights of the defendants as they have been ascertained and declared by this court ; and this is undoubtedly true, so far as such rights have be- come vested. For example, if the plaintiff, under an existing rule of law, has a right of action to recover damages for a past injury suf- fered by him, his remedy cannot be cut off by an act of the legisla- ture. So, also, if, in a suit in equity to restrain the continuance of a nuisance, damages have been awarded to him, or costs of suit, he would have an undoubted right to recover them, notwithstanding the statute. But, on the other hand, the legislature may define what in the future shall constitute a nuisance, such as will entitle a person injured thereby to a legal or equitable remedy, and may change the existing common-law rule upon the subject. It may declare, for the future, in what manner a man may use his property or carry on a lawful business without being liable to an action in consequence thereof; that is, it may define what shall be a lawful and reasonable mode of conduct. This legislative power is not wholly beyond the control of the courts, because it is restrained by the constitutional provision limiting it to wholesome and reasonable laws, of which the court is the final judge ; but, within this limitation, the exercise of the police power of the legislature will apply to all within the scope of its terms and spirit. The fact that the rights of citizens, as previously existing, are changed, is a result which always happens. It is, indeed, in order to change those rights that the police power is exercised. So far as regards the rights of parties accruing after the date of the statute, they are to be governed by the statute. Their rights existing prior to that date are not affected by it. To illustrate this view, let it be supposed that the case between the present parties in its original stage had been determined in favor of the manufac- turers, under which decision they would have had a right to ring their bell ; and that afterwards a statute had been passed providing that manufacturers should not ring bells, except at such hours as might be approved by the selectmen ; and that these manufacturers had then proceeded to ring their bell at other hours not included in such approval. It certainly could not be said that they had a vested right to do so, under the decision of the court. The injunction which was awarded by the court, upon the factr which appeared at the hearing, did not imply a vested right in the present defendants to have it continued permanently. Though a final determination of the case before the court, and though binding and imperative upon the present plaintiffs, and enforceable against them by all the powers vested in a court of equity, yet they were at liberty at any time, under new circumstances making it inequitable for it to be longer continued, to apply to the court for a review of the case and a dissolution of the injunction. In respect to such a state of facts, an injunction can never be said to be final, in the sense that i74 LAW OF TORTS. it is absolute for all time. Even without any new legislation affect- ing the rights of the parties, with an increase of their own business, and a general increase of manufacturing and other business in the vicinity, and of a general and pervading change in the character of the neighborhood, it might be very unreasonable to continue an in- junction which it was in the first instance entirely reasonable and proper to grant. The ears of the court could not, under such new circumstances, be absolutely shut to an application for its modifica- tion without any new statute declaring the policy of the_ common- wealth in respect to any branch of business or employment. But a declaration by the legislature that, in its judgment, it is reasonable and necessary for certain branches of business to be carried on in particular ways, notwithstanding the incidental disturbance and an- noyance to citizens, is certainly a change of circumstances which is entitled to the highest consideration of the court ; and in the present case we cannot doubt that it is sufficient to entitle the plaintiffs to relief from the operation of the injunction. The method of procedure to which the plaintiffs have resorted is the usual and proper one in such circumstances. 2 Daniell's Ch. PI. (4th Amer. Ed.) 1577, note 3; Story, Eq. PI. 404 et seq. ; Clapp v. Thaxter, 7 Gray, 384. And, for authorities tending to show that the plaintiffs are entitled to the relief which they seek in conse- quence of a subsequent statute changing the rights of the parties, see Pennsylvania v. Bridge Co., 18 How. 421, 15 L. Ed. 435; In re Clinton Bridge, 10 Wall. 454, 463, 19 L. Ed. 969; Oilman v. Phila- delphia, 3 Wall. 713, 732, 18 L. Ed. 96; South Carolina v. Georgia, 93 U. S. 4, 12, 23 L. Ed. 782 ; Bridge Co. v. U. S., 105 U. S. 470, 480, 26 L. Ed. 1143; Com. v. Railroad Co., 14 Gray, 93, 97; Bartholo- mew v. Harwinton, 33 Conn. 408. Demurrer overruled. (See also Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701 ; Miller v. Mayor, etc., 109 U. S. 385, 3 Sup. Ct 228, 27 L. Ed. 971 ; Bal- timore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739; Village of Pine City v. Munch, 42 Minn. 342, 44 N. W. 197, 6 L. R. A. 763; Railroad Co. v. Truman, L. R. 11 App. Cas. 45. When the power given by statute is exceeded and the excess causes the nuisance, the party injured has a remedy ; and so if the legislative authority could be ex- ercised without causing a nuisance, and yet it is so carried into effect that a nuisance is occasioned. Id., Morton v. Mayor of New York, 140 N. Y. 207, 35 N. E. 490, 22 L. R. A. 241 ; Delaware, L. & W. R. Co. v. Buffalo, 158 N. Y. 266, 53 N. E. 44; McAndrews v. Collerd, 42 N. J. Law, 189, 36 Am. Rep. 508. Sometimes the authority given practically necessitates a "taking" of another's property, and in such cases there must be compensa- tion paid under the doctrine of "eminent domain." Garvey v. Long Island R. Co., 159 N. Y. 323, 54 N. E. 57, 70 Am. St Rep. 550; Long Island R. Co. v. Garvey, 159 N. Y. 334, 54 N. E. 60; Pennsylvania R. Co. v. Angel, 41 N. J. Eq. 316, 7 Atl. 432, 56 Am. Rep. 1 ; cf. Beseman v. Pennsylvania R. Co., 50 N. J. Law, 235, 245, 13 Atl. 164, affirmed 52 N. J. Law, 221, 20 Atl. 169; Lincoln v. Com., 164 Mass. 368, 374, 41 N. E. 489.) NUISANCE. 475 VI. ABATEMENT OF NUISANCE. (11 Mees. & W. 176.) JONES v. WILLIAMS. (Court of Exchequer. January 28, 1843.) 1. NUISANCE ABATEMENT NOTICE TO REMOVE. A person has no right to enter upon the land of another to abate a nuisance of filth, without previous request or notice to the occupant to remove it, unless it appears that such occupant was the original wrong- doer by placing it there, or possibly that it arises from a default in the performance of some duty or obligation incumbent upon him, or that the nuisance is immediately dangerous to life or health, rendering it unsafe to wait 2. SAME. Such request or notice to the occupant Is necessary, if, when he acquired possession of the land, the nuisance already existed upon It, and he simply omitted to remove it. Rule to show cause why judgment should not be entered for plain- tiff non obstante veredicto. Action of trespass to land brought by Jones against Williams. Defendant by his plea justified the entry to abate a nuisance of filth permitted by plaintiff upon his adjoining lands. The verdict was for defendant. Plaintiff obtained a rule to show cause why judgment should not be entered in his favor non obstante veredicto. PARKE, B. A rule was obtained in this case by Mr. Erie for judgment non obstante veredicto on the fourth plea found for the defendant, and argued a few days ago. This plea, to an action of trespass quare clausum fregit, stated that the defendant, before and at the said time when, etc., was possessed of a dwelling-house near the locus in quo, and dwelt therein ; and that the plaintiff, before and at, etc., injuriously and wrongfully permitted and suffered large quantities of dirt, filth, manure, compost, and refuse to be, remain, and accumulate on the locus in quo, by reason whereof divers nox- ious, offensive, and unwholesome smells, etc., came from the close into the defendant's dwelling-house ; and then the defendant justifies the trespass by entering in order to abate the nuisance, and in so do- ing damaging the wall, and digging up the soil. The question for us to decide is whether this plea is bad after verdict, and we are of opinion that it is. The plea does not state in what the wrongful per- mission.of the plaintiff consisted; whether he was a wrong-doer him- self, by originally placing the noxious matter on his close, and aft- erwards permitting it to continue ; or whether it was placed by an- other, and he omitted to remove it; or whether he was under an obligation, by prescriptive usage or otherwise, to cleanse the place 476 LAW OF TORTS. where the nuisance was, and he omitted to discharge that obligation, whereby the nuisance was created. The proof of any of these three circumstances would have supported the plea ; and if in none of the three cases a notice to remove the nuisance was necessary before an entry could take place, the plea is good; but if notice was necessary in any one, the plea is bad, by reason of its neither containing an averment that such a notice was given, nor showing that the con- tinuance was of such a description as not to require one. It is clear that if the plaintiff himself was the original wrong-doer, by placing the filth upon the locus in quo, it might be removed by the party injured, without any notice to the plaintiff ; and so, possibly, if by his default in not performing some obligation incumbent on him, for that is his own wrong also; but if the nuisance was levied by another, and the defendant succeeded to the possession of the locus in quo afterwards, the authorities are in favor of the necessity of a notice being given to him to remove, before the party aggrieved can take the law into his own hands. We do not rely on the decision in Earl of Lonsdale v. Nelson, 2 Barn. & C. 302, 3 Dow. & R. 556, as establishing the necessity of notice in such a case, for there much more was claimed than a right to remove a nuisance, viz., a right to construct a work on the plain- tiff's soil, which no authority warranted ; but Lord Wynford's dictum is in favor of this objection, for he states that a notice is requisite in all cases of nuisance by omission, and the older authorities fully warrant that opinion, where the omission is the non-removal of a nuisance erected by another. Penruddock's Case, 5 Coke, loia, shows that an assize of quod permittat prosternere would not lie against the alienee of the party who levied it, without notice. The judgment in that case was affirmed on error ; and in the king's bench, on the argument, the judges of that court agreed that the nuisance might be abated, without suit, in the hands of the feoffee that is. as it should seem, with notice ; for in Jenkin's Sixth Century Case, 57 (no doubt referring to Penruddock's Case), the law is thus stated : "A builds a house so that it hangs over the house of B, and is a nui- sance to him. A makes a feoffment of his house to C, and B a feoffment of his house to D, and the nuisance continues. Now, D cannot abate the said nuisance, or have a quod permittat for it, be- fore he makes a request to C to* abate it, for C is a stranger to the wrong. It would be otherwise if A continued his estate, for he did the wrong. If nuisances are increased after several feoffments, these increases are new nuisances, and may be abated without request." "We think that a notice or request is necessary, upon these authori- ties, in the case of a nuisance continued by an alienee ; and there- fore the plea is bad, as it does not state that such a notice was given or request made, nor that the plaintiff was himself the wrong-doer, NUISANCE. 477 by having levied the nuisance, or neglected to perform some obliga- tion by the breach of which it was created. AB1NGER, C. B., observed that it might be necessary in some cases, where there was such immediate danger to life or health as to render it unsafe to wait, to remove without notice, but then it should be so pleaded ; in which the rest of the court concurred. Rule absolute. (The owner of land which is overhung by trees growing on his neighbor's land is entitled, without notice, if he does not trespass on his neighbor's land, to cut the branches so far as they overhang, though they have done so for more than twenty years. Lemmon v. Webb [1894] A. C. 1 ; cf. Hickey v. Michigan Cent. R. Co., 96 Mich. 498, 55 N. W. 989, 21 L. R. A. 729, 35 Am. St. Rep. 621; Countryman v. Lighthill, 24 Hun, 405. Whoever, in abating an alleged nuisance, destroys or injures private prop- erty, or interferes with private rights, acts at his peril, and will be held liable, unless, when his act is challenged in court, it appears that the thing abated was in fact a nuisance. People v. Board of Health, 140 N. Y. 1, 35 N. E. 320, 37 Am. St. Rep. 522; Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; Cole v. Kegler, 64 Iowa, 59, 19 N. W. 843; Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109.) (18 R. I. 473, 28 Atl. 968.) STATE v. WHITE et al. (in part). (Supreme' Court of Rhode Island. February 17, 1894.) PUBLIC NUISANCE SPECIAL INJURY ABATEMENT BY PRIVATE PERSON MUST BE NO BREACH OF THE PEACE. On trial on indictment for assault with intent to kill, it appeared that A maintained a gate across a highway leading to a beach where de- fendant W had a seaweed privilege, and tried to prevent defendants, who came there with the intention of forcing the gate in case of resistance, from going through on their way to the beach, whereupon defendant^ forced the gate and provoked a fight, resulting in injuries to A, for as- saulting whom defendants were indicted. Held, that although A was maintaining a public nuisance, which was a source of special injury to W, defendants were not justified in causing a breach of the peace to over- come his resistance. Prosecution against Isaac White and Emerson Ash. Defendants were convicted, and petitioned for a new trial. Petition denied. TILLJNGHAST, J. This is an indictment against the defendants, charging an assault on one Samuel E. Almy, with intent to kill and murder. At the trial of the case in the court of common pleas the defendants were found guilty of an assault with a dangerous weapon, and they now petition for a new trial on the ground that the verdict is against the evidence, and that the presiding justice erred in his rulings of law and in his instructions to the jury. 478 LAW OP TORTS. Briefly summarized, the evidence submitted shows that the de- fendants were lawfully on a public highway, going to the beach, to collect White's property, the seaweed which was there; that said Almy had illegally obstructed the highway by maintaining the gate across the same, which was a public nuisance, and which specially damnified the defendant White ; that Almy refused to allow the gate to be opened, and aggressively defended the same by holding it to prevent it from being opened, and attacking the vehicle and the oxen of the defendants, while the latter were striving to force their way through; and that during or immediately after the removal of said obstruction in the manner aforesaid, a personal encounter ensued between the defendants and Almy, in which the latter received the injuries complained of, and also in which, according to defendants' testimony, White was knocked down and rendered insensible by Almy, and Ash was also beaten by him with a stick. The first question which arises in view of this state of facts is whether the presiding justice erred in his refusal to instruct the jury as requested by the defendants' counsel : (i) "That if the jury finds that the defendants and their cart were on this highway intending to take the most direct track to the beach and salt water for their seaweed, and that Almy interrupted them, Almy, and not they, was the aggressor;" (2) "that if the jury find that these parties were attacked while upon a public highway of the state, Almy, and not they, was the aggressor." The answer to this question depends upon the correctness of the defendants' contention as to their legal right to remove said obstruction by force, while the complainant was present and actively defending the same. If they had this right, then Almy, and not they, was the aggressor, and said request to charge should have been granted; otherwise not. We think it is well settled, notwithstanding some decisions and dicta to the con- trary, that a private person may not, of his own motion, abate a strictly public nuisance. Dimes v. Petley, 15 Q. B. 276; Brown v. Perkins, 12 Gray, 89 ; Griffith v. McCullum, 46 Barb. 561 ; Wood, Nuis. 729-737, and cases cited; Bowden v. Lewis, 13 R. I. 189. It is also equally well settled that a private person may, of his own motion, abate a public nuisance, where the existence thereof is a source of special injury to him, provided he can do so without a breach of the peace. 3 Bl. Comm. 5 ; 16 Am. & Eng. Enc. Law, 990-994, and cases cited; State v. Keeran, 5 R. I. 497, 510; Clark v. Ice Co., 24 Mich. 508; Mayor of Colchester v. Brooke, 7 Q. B. 339; Rung v. Shoneberger, 2 Watts, 23, 26 Am. Dec. 95; 4 Wait, Act. & Del". 778, and cases cited ; Day v. Day, 4 Md. 262, 270 ; State v. Flannagan, 67 Ind. 140. In Cooley on Torts (2d Ed. pp. 48, 49) the law is well stated as follows: "The question who may abate a nuisance may depend upon whether the nuisance is public or pri- vate. If it is a private nuisance, he only can abate it who is injured NUISANCES. 479 by its continnance ; if it is a public nuisance, he only may abate it who suffers a special grievance, not felt by the public in general. Therefore, if one places an obstruction in a public street, an individual who is incommoded by it may remove it ; but unless he has occasion to make use of the highway, he must leave the public injury to be redressed by the public authorities. It is the existence of an emer- gency which justifies the interference of the individual. In permitting this redress, certain restrictions are imposed to prevent abuse or un- necessary injury. One of these is that the right must not be exer- cised to the prejudice of the public peace. Therefore, if the abate- ment is resisted, it becomes necessary to seek in the courts the ordi- nary legal remedies." This being the law, the question which naturally arises is, did the de- fendants commit a breach of the peace in the abatement of the "nuisance in question ? We think they did. They went with the evident intention of breaking open the gate by overcoming whatever force Almy might oppose to them. They were armed with a pitchfork, a hoe, and a pistol. They used violent and profane language in a public highway, in the presence of at least six persons. They backed their team against the gate while Almy and Hussey were on the opposite side thereof, the latter holding the gate, and the former striving to prevent the cart from going through. They provoked a quarrel, and brought on a personal encounter. In short, they went to the place in question prepared for, and evidently expecting, a fight in connection with the abatement of the nuisance, and they were not disappointed. They took the law into their own hands, and in doing so they acted at their peril. That Almy was in the wrong, and liable to indictment for maintaining the nuisance, as well as for the use of violence against the defendants, may be as- sumed; but this fact did not justify the defendants in committing a breach of the peace in abating it, the public peace being of more importance than the assertion of the defendants' right to use said highway. We are therefore of the opinion that the defendants, and not Almy, were the aggressors in the affray referred to, ana hence that the presiding justice properly refused to charge as requested. Petition for a new trial denied and dismissed. (As to causing a breach of the peace, see also Turner v. Holtzman, 54 Md. 148, 39 Am. Rep. 361 ; People v. Severance, 125 Mich. 556, 84 N. W. 1088, 51 L. R. A. 461, 84 Am. St. Rep. 584. "The general proposition has been asserted in text-books, and repeated in judicial opinions, that any person may abate a public nuisance. But the best considered authorities in this country and in England now hold that a public nuisance can only be abated by an individual where it obstructs his private right, or interferes at the time with his enjoyment of a right com- mon to many, as the right of passage upon the public highway, and h. thereby sustains a special injury." Lawton v. Steele, 119 N. Y., at page 237, 23 N. E. 880, 7 L. R. A. 134, 16 Am. St Rep. 813. See, to the same effect, Corthell v. Holmes, 87 Me. 24, 32 Atl. 715 ; Brown v. De Groff, 50 N. J. Law, 109, 14 Atl. 219, 7 Am. St Rep. 794; People v. Severance, supra; Wolfe T. 480 LAW OF TORTS, Pearson, 114 N. C. 621, 19 S. B. 264; Griffith v. Holman, 23 Wash. 347, 63 Pac. 239, 54 L. R. A. 178, 83 Am. St. Rep. 821 ; narrower v. Ritson, 37 Barb. 301 ; Godsell v. Fleming, 59 Wis. 52, 17 N. W. 679.) (65 Me. 426, 20 Am. Rep. 711.) BRIGHTMAN et al. v. INHABITANTS OF BRISTOL (In part). (Supreme Judicial Court of Maine. August 31, 1876.) L NUISANCE ABATEMENT. That a porgy oil factory, not in itself unlawful, becomes a nuisance on account of its location and the almost unbearable smells which it pro- duces, does not justify its destruction by a mob on their own responsi- bility, even though there is a statute in force which gives the power to abate such a nuisance, after conviction upon due process of law. 2. SAME REMEDY. Where a nuisance consists of the use of a building, the proper method to abate it is to stop that use, and not to destroy the building itself. APPLETON, C. J. This is an action on the case, under Rev. St. 1857, c. 123, 8, to recover three-fourths of the value of a porgy oil factory, alleged to have been burnt and destroyed by a mob on 29th April, 1868. A verdict was rendered in favor of the plaintiffs, and the case comes before us upon exceptions to the rulings of the pre- siding justice. The defendants' counsel offered to show that strong and offensive odors arose from the plaintiff's factory, and that it was a public nui- sance, and a nuisance to those residing in its vicinity, but all evidence to show the factory a nuisance was excluded. It may be conceded that the factory is a nuisance, within the pro- visions of Rev. St. 1857, c. 17, i, and that the noxious exhalations, offensive smells, and stench arising from its operations approximate to the unbearable. But the manufacture is not, in and of itself, un- lawful. It is not prohibited. It is sanctioned, if carried on in a place which has been duly assigned for such manufacture. The statute does not require the destruction of the buildings or of the machinery used in its operations, but that the business should not be carried on at a place where from its location it would be a nuisance. The statute, giving the power of abatement after conviction upon due process, does not in addition confer upon an irresponsible public the right to enforce the penalties it establishes without process of law. A lawful business may so be carried on as to become a nui- sance. Undoubtedly in certain cases and under certain limitations nuisances may be abated by those specially aggrieved thereby. But when the subject-matter of complaint is lawful per se, and the nui- sance consists not in the business itself, but in the unsuitable place in which it is carried on, its abatement must be by the judgment of NUISANCE. 481 the court, and by the officers of the law carrying into effect such judgment, and not by the blind fury of a tumultuous mob. Only so much must be abated as constitutes the nuisance. If it consists in the use of a building, such use must be prohibited and punished. If the location is what constitutes the nuisance, it must be removed. A smith's forge, in Bradley v. Gill, Lutw. [29] ; a tobacco mill, in Jones v. Powell, Hut. 136; a manufactory for spirits of sulphur, in White's Case, I Burr. 333 ; a distillery, in Smiths v. McConathy, 1 1 Mo. 517; a slaughter house, in Brady v. Weeks, 3 Barb. 157; a liv- ery stable, in Coker v. Birge, 10 Ga. 336; a melting house, in Peck v. Elder, 3 Sandf. 126; a gaming house or grog shop, in State v. Paul, 5 R. I. 185 ; a powder magazine, in Cheatham v. Shearon, I Swan, 213 ; a blacksmith shop, in Norcross v. Thorns, 51 Me. 503, 81 Am. Dec. 588 ; a tallow factory, in Allen v. State, 34 Tex. 230 ; a tannery, in Rex v. Pappineau, I Strange, 686 have been declared nuisances, because of their unsuitable location, but that will not justify a riotous mob in burning and destroying them. A tomb erect- ed upon one's own land is not necessarily a nuisance ; but it may become such from its location. Barnes v. Hathorn, 54 Me. 125. But it is not, therefore, to be destroyed. Its use may be prohibited. The plaintiffs' porgy oil factory stands upon the same ground. These views are sustained by an almost unbroken series of de- cisions. In Barclay v. Com., 25 Pa. 503, 64 Am. Dec. 715, the nui- sance for which the defendant was indicted was the maintenance and continuance of a barn near to and above a spring reserved for the inhabitants of Bedford for supplying their general pump with water ; and the indictment charged that by storing hay and feeding cattle the water of the spring was rendered impure, corrupted, and unfit for use. Upon the question whether the sheriff should abate the nuisance by removing the barn, Woodward, J., says: "The offense lay in the use made of the barn and yard in close proximity to the spring, and the nuisance would be effectually abated by discontinu- ing such use. When an erection or structure itself constitutes the nuisance, as when it is put up in a public street, its demolition or re- moval is necessary to the abatement of the nuisance; but when the offense consists in a wrongful use of a building, harmless in itself, the remedy is to stop such use, not to tear down or remove the building itself." In Gray v. Ayres, 7 Dana, 375, 32 Am. Dec. 107, it was held that what constitutes the nuisance should be abated, but not by the destruction of the house, the use of which and the practices therein constituted the nuisance, and not the house itself. "Al- though," remarks Marshall, J., "the destruction of the house might have been the most effectual mode of suppressing the nuisance, yet the house itself was not a nuisance, nor necessarily the cause of one, its destruction was not a necessary means of abating the nuisance, and as the right of abating is confined to that which is the nuisance. CHASE (2o ED.) 31 482 LAW OF TORTS. or which actually produces or must necessarily produce it, the right upon the case made out in the plea did not extend to the destruc- tion of the house." The same views are fully sustained in Massa- chusetts by the opinion of Shaw, C. J., in Brown v. Perkins, 12 Gray, 89, and in Rhode Island by that of Ames, C. J., in State v. Paul, 5 R. I. 185. When it is the use of the building which constitutes the nuisance, the abatement consists in putting a stop to such use. The law allows its officers, in execution of its sentence only, to do what is necessary to abate the nuisance and nothing more ; a fortiori, it will not sanc- tion destruction without limit by individuals. It would be absurd to hold that a manufactory lawful in itself, but producing "offensive smells," is at the mercy of every passer-by whose olfactory nerves are disagreeably affected by its necessary processes. Exceptions overruled. (See, to the same effect, Welch v. Stowell, 2 Doug. 332 ; Moody v. Supervisors of Niagara Co., 46 Barb. 650; Ely v. Supervisors of Niagara Co., 36 N. Y. 297; Health Dept. v. Dassori, 21 App. Div. 348, 47 N. Y. Supp. 641; Id., 159 N. Y. 245, 54 N. E. 13 ; Larson v. Furlong, 50 Wis. 681, 8 N. W. 1 ; Id., 63 Wis. 323, 23 N. W. 584. When one enters upon the land of another to abate a nuisance, he must do it in the way least injurious to the owner of the land entered. Roberts v. Rose, 4 H. & C. 103. When a person who is entitled to a limited right exercises it in excess, so as to produce a nuisance, it may be abated to the extent of the excess ; but if the nuisance cannot be abated without obstruct- ing the right altogether, the exercise of the right may be entirely stopped until means have been taken to reduce it within its proper limits. Crosland v. Borough of Pottsville, 126 Pa. 511, 18 Atl. 15, 12 Am. St. Rep. 891. "Thus, if a man has a right to send clean water through my drain, and chooses to send dirty water, every particle of the water may be stopped, because it is dirty." Charles v. Finchley Board, L. R. 23 Ch. Div. 767, 775; Beard v. Murphy, 37 Vt 99, 86 Am. Dec. 693.) INJURIES BT ANIMALS. 483 INJURIES BY ANIMALS. (73 N. Y. 195, 29 Am. Rep. 123.) MULLER v. McKESSON et al. (in part). (Court of Appeals of New York. April 2, 1878.) 1. Vicious ANIMATES LIABILITY FOB INJURIES. A person keeping a mischievous or vicious animal, with knowledge of its propensities, is bound to keep it secure at his peril. He cannot excuse himself from liability for injuries inflicted by it by proof of due care. 2. SAME NEGLIGENCE OF Co- SERVANT. The negligence of a servant in loosing his master's ferocious dog is no defense to an action for the injury caused by the dog to a fellow- servant, as the gravamen of the action is the keeping of a ferocious ani- mal with knowledge of its nature, and not the negligent care of it. 3. SAME NEGLIGENCE OF PERSON INJURED. If a person, with full knowledge of the evil propensities of an animal, wantonly excites it, or voluntarily and unnecessarily puts himself in the way of such animal, he cannot recover for the injuries thereby sus- tained by him, but the owner will not be excused by slight negligence or want of ordinary care of the person injured. 4. SAME. It was the duty of plaintiff, a watchman In defendants' employ at their factory, to open the gate of the yard every morning to admit the work- men. In such yard defendants kept a ferocious Siberian blood-hound, which was usually loosed at night to protect the premises, and chained during the day. Defendants' engineer had charge of the dog, and it was his custom to notify plaintiff when the dog was loose. Plaintiff, while proceeding across the yard in the customary manner to open the gate, and having no knowledge that the dog was loose, was attac'rod by it and severely injured. Held, that plaintiff was not bound to look and see that the dog was fastened before going into the yard, and that he was entitled to recover from defendants for his injuries. 5. MASTER AND SERVANT RISK OF EMPLOYMENT. A person in the employ of another, charged with specific duties, does not, while in the performance of such duties, assume the risk of injury from a vicious animal kept by the employer, which he is informed will be kept fastened. Appeal from Supreme Court, General Term, Second Department. Action by August Muller against John McKesson and others for damages sustained by the bite of a savage and ferocious dog owned and kept by defendants. The jury found a verdict for plaintiff, and judgment was entered thereon, and was affirmed upon appeal to the general term. 10 Hun, 44. From the judgment of the general term defendants appealed. i84 LAW OF TORTS. CHURCH, C. J. The defendants had a chemical factory in Brook- lyn, and owned a ferocious dog of the Siberian blood-hound species, which was kept in the inclosed yard surrounding the factory, and generally kept fastened up in the day-time and loosed at night as a pro- tection against thieves. The plaintiff was in the employ of the de- fendants as a night watchman. It was his duty to open the gate to the yard every morning to admit the workmen, and to do this he would pass from the door of the factory across a corner of the yard to the gate. On the morning in question, a's the plaintiff was return- ing from opening the gate, he was attacked from behind by the dog, thrown to the ground, and severely bitten ; and after freeing himself, and while endeavoring to reach the factory, was again attacked, and bitten and seriously injured. The points urged by the appellants in this case are First, that the plaintiff was guilty of contributory negligence, or at least that the evidence would have warranted the jury in so finding; second, that the plaintiff knew the vicious habits of the dog, and by volun- tarily entering upon and continuing in the employment of the de- fendants he assumed the risk of such accidents ; third, that if the in- jury was occasioned by the negligence of the engineer in not prop- erly fastening the dog, or in omitting to notify the plaintiff that he was loose, it was the negligence of a co-servant, for which the de- fendants are not liable. It may be that, in a certain sense, an action against the owner for an injury by a vicious dog or other animal is based upon negligence ; but such negligence consists, not in the manner of keeping or con- fining the animal, or the care exercised in respect to confining him, but in the fact that he is ferocious, and that the owner knows it, and proof that he is of a savage and ferocious nature is equivalent to ex- press notice. Earl v. Van Alstine, 8 Barb. 630. The negligence con- sists in keeping such an animal. In May v. Burdett, 9 Adol. & E. (N. S.) 101, Denman, C. J., said: "But the conclusion to be drawn from an examination of all the authorities appears to us to be this : that a person keeping a mischievous animal, with knowledge of its propensities, is bound to keep it secure, at his peril, and that, if he does mischief, negligence is presumed." When accustomed to bite persons, a dog is a public nuisance, and may be killed by any one when found running at large. Putnam v. Payne, 13 Johns. 312; Brown v. Carpenter, 26 Vt. 638, 62 Am. Dec. 603. And, when known to the owner, corresponding obligations are imposed upon him. Lord Hale says: "He [the owner] must, at his own peril, keep him safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm, the owner is liable in damages." In Kelly v. Tilton, 2 Abb. Dec. 495, Wright, J., said : "If a person will keep a vicious animal, with knowledge of its propensities, he is bound to keep it secure at his peril." In Wheeler v. Brant, 23 Barb. 324, INJURIES BY ANIMALS. 485 Judge Balcom said: "Defendant's dog was a nuisance, and so are all vicious dogs, and their owners must either kill them, or confine them as soon as they know their dangerous habits, or answer in damages for their injuries." In Card v. Case, 57 E. C. L. 622, Colt- man, J., said "that the circumstances of the defendants keeping the animal negligently is not essential ; but the gravamen is the keeping the ferocious animal, knowing its propensities." The cases are uni- form in this doctrine, although expressed in a variety of language by different judges. Smith v. Pelah, 2 Strange, 1264; Jones v. Perry, 2 Esp. 482; Greason v. Keteltas, 17 N. Y. 496; Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; Blackman v. Simmons, 3 Car. & P. 138; Rider v. White, 65 N. Y. 54, 22 Am. Rep. 600. In some of the cases it is said that from the vicious propensity, and knowledge of the owner, negligence will be presumed, and in others that the owner is prima facie liable. This language does not mean that the presumption or prima facie case may be rebutted by proof of any amount of care on the part of the owner in keeping or re- straining the animal, and, unless he can be relieved by some act or omission on the part of the person injured, his liability is abso- lute. "This presumption of negligence, if it can be said to arise at all, so as to be in any way material in a case where the owner is ab- solutely bound, at his own peril, to prevent mischief, is a presumptio juris et de jure, against which no averment or proof is receivable. It is not a 'presumption,' in the ordinary sense of the word, raising a prima facie case which may be rebutted." Card v. Case, supra, p. 623, note b. It follows that the doctrine of non-liability arising from the negligence of a co-servant in not properly fastening the animal, or in not giving notice of his being loose, cannot be invoked, for the reason that, the negligence of the master being immaterial, that of his servant must be also. The point as to contributory negligence presents the most diffi- culty. There are .expressions in some of the cases indicating that the liability of the owner is not affected by the negligence of the person injured. In Smith v. Pelah, 2 Strange, 1264, the owner was held liable, although the injury happened by reason of the person injured treading on the dog's toes, the chief justice saying: "For it was owing to his not hanging the dog on the first notice." It is not stated that the person injured knew of the dog's propensities or that it was done intentionally. In Woolf v. Chalker, 31 Conn. 130, 81 Am. Dec. 175, it is said that the owner is liable, "irrespective of any question of negligence of the plaintiff;" and citing May v. Bur- dett and Card v. Case, supra. In May v. Burdett the chief justice, after approving of the ruling in Smith v. Pelah, 2 Strange, supra, and a passage from Hale's Pleas of the Crown, (page 430,) said : "It may be that if the injury was solely occasioned by the willfulness of the plaintiff, after warning, 486 LAW OP TORTS. that may be a ground of defense, but it is unnecessary to give any opinion as to this." It is not intimated, as before stated, in Smith v. Pelah, that the treading on the toes of the dog was done inten- tionally, or with knowledge of his viciousness ; and I do not think that it can be claimed from authority, and certainly not from prin- ciple, that no act of the person injured would preclude him from recovering, however negligent or willful. The apparent conflict on this point arises, I think, mainly in not making a proper applica- tion of the language to the facts of the particular case. If a per- son, with full knowledge of the evil propensities of an animal, wanton- ly excites him, or voluntarily and unnecessarily puts himself in the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. In such a case it cannot be said, in a legal sense, that the keeping of the animal, which is the gravamen of the offense, produced the injury. Coggswell v. Baldwin, 15 Vt. 404, 40 Am. Dec. 686; Koney v. Ward, 36 How. Prac. 255; Wheeler v. Brant, 23 Barb. 324; Blackman v. Simmons, 3 Car. & P. 138; Brock v. Copeland, i Esp. 203; Bird v. Holbrook, 4 Bing. 628. But as the owner is held to a rigorous rule of liability on account of the danger to human life and limb, by harboring and keeping such animals, it follows that he ought not to be relieved from it by slight negligence or want of ordinary care. To enable an owner of such an animal to interpose this defense, acts should be proved, with no- tice of the character of the animal, which would establish that the person injured voluntarily brought the calamity upon himself. Brock v. Copeland, i Esp. 203, cited and' relied upon by the counsel for the appellant, is in some of its features like this ; and, while some of the language of Lord Kenyon is not in harmony with that used in other cases, yet from the facts stated it is fairly inferable that the fore- man voluntarily went into the yard at an unusual time, and, so far as appears, without business, knowing that the dog was loose, and knowing his ferocious nature. The question, then, recurs whether, from the facts appearing in this case, the jury would have been justified in finding that the plaintiff was guilty of that kind of negligence which would relieve the defend- ants ; in other words, could they have found that, in any proper sense, the plaintiff brought the injury upon himself? He was in discharge of his duty, at the proper time and in the right place. He passed from the factory to the gate in the direct path, and was returning when he was attacked by the dog. In Blackman v. Simmons, 3 Car. & P. 138, the injury was by a vicious bull, and the court laid stress upon the circum- stance that the plaintiff was traveling where he had a right- to go, and said : "If the plaintiff had gone where he had no right to go, that might have been an answer to the action." It was not shown that the plaintiff was out of his place ; nor, what was more important and indispensable, INJURIES BY ANIMALS. was it shown that the plaintiff had notice that the dog was loose, or that he had reason to suppose that he was loose. It was the cus- tom of Godfrey, the engineer, to loose the dog at night and fasten him in the morning, and to notify the plaintiff when the dog was loose. No such notice was given. The plaintiff testifies positively that he did not know or suppose the dog was loose; and from the evidence of Godfrey, called by the defendants, it is inferable that the dog had not been loosed for several days, and, if it had, the plaintiff had a right to suppose that Godfrey had fastened him that morning. It is sufficient to say that the evidence did not show that the plain- tiff had notice that the dog was loose, nor were the circumstance? such as to induce him to believe that such was the fact. If the negli- gence of the plaintiff is to prevail, it must be predicated upon not taking the precaution to look, examine, and ascertain whether the dog was fastened or not. The plaintiff might have ascertained by examination whether the dog was fastened in his kennel or not; but I do not think that he was bound to exercise that degree of care, or that the defendant can be relieved from liability because he did not. It does not appear that such had been his habit, or that his at- tention had been called to any circumstance to call for unusual pre- caution. The evidence must have been sufficient to warrant the jury in finding actual notice that the dog was loose, or, at least, that the plaintiff had reason to so believe. This rule is quite as liberal as ought to be adopted in favor of a person who keeps an animal of such savage ferocity as this was found to be. Ilott v. Wilkes, 3 Barn. & Aid. 308, and Bird v. Holbrook, 4 Bing. 628, were both cases of spring guns. In the former the person injured had notice, and in the latter, though a trespasser, he had not; and the action was held maintainable in the latter, and not in the former. In the former case Holroyd, J., expresses the principle of non-liability, when notice has been given, to be that the act which produced the injury to the plaintiff "must be considered wholly as his act, and not the act of the person who placed the gun there." As "negligence," in the ordinary sense, is not the ground of lia- bility, so contributory negligence, in its ordinary meaning, is not a defense. These terms are not used in a strictly legal sense in this class of actions, but for convenience. There is considerable reason in favor of the doctrine of absolute liability for injuries produced by a savage dog, whose propensities are known to the owner, on the ground of its being in the interest of humanity, and out of regard to the sanctity of human life; but as these animals have different degrees of ferocity, and the rule must be a general one, I think, in view of all the authorities, that the rule of liability before indicated is a reasonable one, and that the owner cannot be relieved from it by any act of the person injured, unless it be one from which it can 488 LAW OF TORTS. be affirmed that he caused the injury himself, with a full knowledge of its probable consequences. The evidence in this case falls far short of warranting a verdict that the plaintiff had committed any such act. As before stated, he had no notice that the dog was loose, but had every reason to suppose that he was fastened, and did in fact suppose so. He was in the discharge of his duty, and was not called upon to institute an inquiry whether the dog had broken his fastenings, or that Godfrey had been negligent in not giving him notice that the dog was loose. The remaining point, that the plaintiff assumed the risk of such accidents, is not tenable. The rule is that a servant assumes the ordinary risks incident to the business in which he engages. What were the risks of his employment here, as it respects the dog? He was informed, it is true, of the nature of the animal, but he was also told that the dog would be kept fastened, and the uniform habit was to notify him when the dog was loose. By the terms of his employ- ment, and the conduct of those who represented the defendants, the most that can be said is that he assumed the risks consequent upon the keeping of a ferocious dog, which was kept fastened except when he was otherwise notified. Beyond this the plaintiff is entitled to the same protection as other persons. This is not a case for relax- ing the rule of liability. The tfog was of immense size, and a brute as savage as a tiger or a lion, and should be more properly classed with such wild beasts than with the domestic dog, which, although useless, is generally comparatively harmless. He had no respect for persons. In the language of the person who sold him to defendants, "he bit everybody." There is no legal excuse for exposing human life to the ferocity of such an animal. The judgment must be af- firmed. All concur, except RAPALLO, J., absent. Judgment affirmed. (See also May v. Burdett, 9 Q. B. 101 ; Filburn v. People's Palace, etc., Co., 25 Q. B. Div. 258 ; Lynch v. McNally, 73 N. Y. 347 ; Perkins v. Mossman, 44 N. J. Law, 579; Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487 [injury by stag kept in park at Saratoga by the Congress Spring Company to child walk- ing in the park ; Spring Company held liable] ; Godeau v. Blood, 52 Vt. 251, 36 Am. Rep. 751 ; Twigg v. Ryland, 62 Md. 380, 50 Am. Rep. 226 ; Laherty v. Hogan, 13 Daly, 533 ; Woolf v. Chalker, 31 Conn. 127, 81 Am. Dec. 175.) TRESPASS TO PERSONAL PROPERTY. 489 TRESPASS TO PERSONAL PROPERTY. I. WHAT CONSTITUTES A TRESPASS. (37 Ala. 430.) WHITE v. BRANTLEY. (Supreme Court of Alabama. January Term, 1861.) TRESPASS TO PERSONAL PROPERTY WHEN BAILOR MAY SUE. An action of trespass lies by the owner of a dog for destroying it, though the dog is not at the time in his actual possession, but loaned to another. In this form of bailment the general property draws to it the possession. Appeal from Circuit Court, Dallas County. Action of trespass by White against Brantley for killing plaintiff's dog. Defendant pleaded that the dog, at the time of the alleged killing, was not in plaintiff's possession. Plaintiff replied that the dog was in the possession of a certain third person under a loan from plaintiff. Judgment was given for defendant upon the plead- ings, which plaintiff assigned as error. WALKER, C. J. Dogs are animals domitae naturae, and although they may not be, in the estimation of the common law, of such value as that the stealing of them amounts to larceny, yet an action at law lies for destroying them. There is no distinction between them and other chattels, as to the possession necessary to the maintenance of an action of trespass. There is a distinction as to animals ferae naturae; but dogs are not animals ferae naturae. 4 Bl. Comm. 236; Ireland v. Higgins, Cro. Eliz. 125 ; Wright v. Ramscot, I Saund. 85 ; Case of Swans, 7 Coke, 18 ; Parker v. Mise, 27 Ala. 480, 62 Am. Dec. 776. It follows that, to the maintenance of this action, it was not requisite that the plaintiff should have had actual possession of the dog. If he was the owner of the dog, and the dog was loaned out at the time, the general property, "prima facie, as to all civil purposes, draws to it the possession." Reversed and remanded. (In cases of what are called "simple bailment," 1. e., where the bailor has a right to restoration of possession whenever he demands it from the bailee, as in cases of depositum. mandatum, commodatum, etc., the bailor is said to have "constructive possession," the bailee "actual possession," and either can maintain trespass against a third person who wrongfully takes the chattel from the bailee, or destroys it Cooley on Torts [2d Ed.] 512.) 490 LAW OF TORTS. (12 Me. 67, 28 Am. Dec. 159.) HOBART v. HAGGET (in part.) (Supreme Judicial Court of Maine. April Term, 1835.) TRESPASS TO PERSONAL PROPERTY INTENT MISTAKE. A mistake will not excuse a trespass, nor is the intent material. Where there is a mistake between the seller and purchaser as to the article sold, the seller supposing he has sold one article while the purchaser supposes he has bought another, of which he takes possession, he will be liable in trespass. Exceptions from Court of Common Pleas. Action of trespass for taking and converting an ox, the property of plaintiff. It appeared at the trial that plaintiff sold defendant an ox, and told him to go to his place and take it, and that defend- ant went and took out of plaintiff's field an ox which he supposed was the one he purchased. Plaintiff claimed and testified that such ox was not the one he intended to sell, or supposed defendant con- sidered himself as buying. The court instructed the jury that if they were satisfied that there had been an 'innocent mistake between the parties, and that defendant had supposed he had purchased the ox in question when in fact plaintiff supposed he was not selling that ox, but another, they would find for plaintiff, to which defendant excepted. The verdict was for plaintiff for the value of the ox taken. Defendant alleged exceptions. PARRIS, J. The ox taken by defendant was the property of the plaintiff, and although the defendant attempted to prove that he purchased that ox, and consequently had a right to take it, the at- tempt wholly failed. He may have considered himself as the pur- chaser, but, unless the plaintiff assented to it, no property passed. The assent of both minds was necessary to make the contract. The court below charged the jury that if they were satisfied there had been an innocent mistake between the parties, and that the defend- ant had supposed he had purchased the ox in question 'when in fact the plaintiff supposed he was not selling that ox, but another, that they would find for the plaintiff. The jury, having found for the plaintiff, have virtually found that he did not sell the ox in contro- versy, and the question is raised whether the defendant is liable in trespass for having taken it by mistake. It is contended that, where the act complained of is involuntary and without fault, trespass will not lie, and sundry authorities have been referred to in support of that position. But the act complained of in this case was not involuntary. The taking the plaintiff's ox was the deliberate and voluntary act of the defendant. He might not have intended to commit a trespass in so TRESPASS TO PERSONAL PROPERTY. 491 doing. Neither does the officer, when on a precept against A he takes by mistake the property of B, intend to commit a trespass; nor does he intend to become a trespasser who, believing that he is cutting timber on his own land, by mistaking the line of division cuts on his neighbor's land; and yet, in both cases, the law would hold them as trespassers. The case of Higginson v. York, 5 Mass. 341, was still stronger than either of those above supposed. In that case, one Kenniston hired the defendant to take a cargo of wood from Burntcoat island to Boston. Kenniston went with the defend- ant to the island, where the latter took the wood on board his ves- sel, and transported it to Boston, and accounted for it to Kenniston. It turned out on trial that one Phinney had cut this wood on the plaintiff's land without right or authority, and sold it to Kenniston. York, the defendant, was held liable to the plaintiff for the value of the wood in an action of trespass, although it was argued that he was ignorant of the original trespass committed by Phinney. A mis- take will not excuse a trespass. Though the injury has proceeded from mistake, the action lies, for there is some fault from the neglect and want of proper care, and it must have been done voluntarily. Basely v. Clarkson, 3 Lev. 37. Nor is the intent or design of the wrong-doer the criterion as to the form of remedy, for there are many cases in the books where, the injury being direct and immedi- ate, trespass has been holden to lie, though the injury were not in- tentional, as in Guille v. Swan, 19 Johns. 381, 10 Am. Dec. 234, where the defendant ascended in a balloon, which descended into the plain- tiff's garden; and the defendant, being entangled and in a perilous situation, called for help, and a crowd of people broke though the fences into the plaintiff's garden, and beat and trod down his veg- etables, the defendant was held answerable in trespass for all the damages done to the garden. In this case Spencer, C. J., said : "The intent with which an act is done is by no means the test of the lia- bility of a party to an action of trespass. If the act cause the im- mediate injury, whether it was intentional or unintentional, trespass is the proper action to redress the wrong." See, also, I Poth. art. i, i ; i Sum. 219, 307. The exceptions are overruled, and there must be Judgment on the verdict. 492 kAW OP TORTS. (6 Wls. 320.) DEXTER v. COLE. (Supreme Court of Wisconsin. January Term, 1858.) L TBESPASS TO PERSONAL PEOPEBTT INTENT MISTAKE. To maintain trespass de bonis asportatis, actual forcible dispossession of property is not necessary ; any unlawful interference with or exercise of acts of ownership over property, to the exclusion of the owner, will constitute trespass, though there was no wrongful intent, and the prop- erty was taken accidentally or by mistake. 2. SAME. Plaintiff's sheep, running at large in the highway, became mixed with sheep which defendant was driving to market. Defendant separated all but four of them, which he drove to market with his flock. Held, that he was liable in trespass. Error to Circuit Court, Milwaukee County. Action of trespass by D. H. Dexter against James Cole for tak- ing and driving away 22 sheep, the property of plaintiff. On the trial before a justice of the peace and a jury, it appeared that plain- tiff's sheep, running at large in the highway, became mixed with a larger flock which defendant was driving to market ; whereupon de- fendant drove the whole flock into a yard to separate them, and threw out a number which he did not claim, and drove the rest to market and slaughtered them. The evidence tended to show (and it appeared from the verdict that the jury so found) that four of plaintiff's sheep remained in the flock, and were slaughtered with the rest. The judgment for plaintiff was reversed upon certiorari. Plaintiff sued out a writ of error. COLE, J. We have no doubt but that the action of trespass would lie in this case. In driving off the sheep the defendant in error, without doubt, unlawfully interfered with the property of Dexter; and it has been frequently decided that, to maintain trespass de bonis asportatis, it was not necessary to prove actual, forcible dis- possession of property; but that evidence of any unlawful interfer- ence with, or exercise of acts of ownership over, property, to the exclusion of the owner, would sustain the action. Gibbs v. Chase, 10 Mass. 128; Miller v. Baker, i Mete. (Mass.) 27; Phillips v. Hall, 8 Wend. 610, 24 Am. Dec. 108; Morgan v. Varick, 8 Wend. 587; Wintringham v. Lafoy, 7 Cow. 735 ; Reynolds v. Shuler, 5 Cow. 325 ; i Chitty, PL (nth Amer. Ed.) 170, and cases cited in the notes. Neither is it necessary to prove that the act was done with a wrong- ful intent, it being sufficient if it was without a justifiable cause or purpose, though it were done accidentally or by mistake. 2 Greenl. Ev, 622 ; Guille v. Swan, 19 Johns. 381, 10 Am. Dec. 234. There nothing inconsistent with these authorities in the case of Parker TRESPASS TO PERSONAL PROPERTY. 4.93 v. Walrod, 13 Wend. 296, cited upon the brief of the counsel for the defendant in error. Upon the other point in the case we think there was some evidence to support the verdict of the jury, and therefore the judgment of the justice should not be reversed because the proof was insufficient. It was the province of the jury to weigh the evidence, and determine what facts were established by it; and the county court ought not to reverse the judgment, because the proof was not sufficient in its opinion to justify the finding of the jury. The judgment of the county court is therefore reversed, and the judgment of the justice affirmed. (See also Ely v. Ehle, 3 N. Y. 507 ; Haythorn v. Rushforth, 19 N. J. Law, 160, 38 Am. Dec. 540 ; Kirk v. Gregory, 1 Exch. Div. 55 ; Fouldes v. Willough- by, 8 Mees. & W. 540; Oilman v. Emery, 54 Me. 400; Bruch v. Carter, 32 N. J. Law, 554; Burgess v. Graffam [C. C.] 18 Fed. 251; Welsh v. Bell, 32 Pa. 12; Stanley v. Gaylord, 1 Cush. 536, 48 Am. Dec. 643. Untying and re- moving a horse from a hitching post where its owner had a right to tie it has been held a trespass. Bruch v. Carter. 32 N. J. Law, 554.) (12 Wend. 39.) WALL et al. v. OSBORN. (Supreme Court of New York. May, 1834.) TBESPASS SALE OF ANOTHEB'S PROPERTY REMOVAL. Where a party sold a mill standing upon the lot of his neighbor, and appointed a day for the purchaser to take it away, promising to aid him in its removal if assistance was necessary, and the mill was subse- quently taken down and removed by the purchaser ; it was held that the vendor was liable in an action of trespass, although there was uo proof of his being present, or aiding in the removal of the building. Error from the superior court of the city of New York. The Messrs. Wall sued Osborn in trespass for taking down and carrying off a mill erected upon plaintiffs' lot of land. Osborn was in possession of a lot adjoining that of the plaintiffs, whose mill projected a few inches upon the lot of the defendant. The defendant sold the mill to one Carman, and told him that if he would send his men to take down the mill, at a specified time, he would have a man to assist him if he wanted help. The mill was subsequently taken down by Carman, but whether Osborn was present or furnished any assistance was not clearly shown. The chief justice of the superior court instructed the jury that the sale of the mill to Carman, and the appointment of a time for him to take possession of it, was not such a participation in the act of removal as to make the defendant a trespasser. The jury found for the defendant, and the plaintiffs, having excepted to the charge of the judge, sued out a writ of error. LAW OF TORTS. SAVAGE, C. J. In Guille v. Swan, 19 Johns. 382, 10 Am. Dec. 234, Ch. J. Spencer says : "To render one man liable in trespass for the acts of others, it must appear either that they acted in concert, or that the act of the individual sought to be charged ordinarily and naturally produced the acts of the others." In Scott v. Shepherd, 2 Black. R. 892, Chief Justice De Grey laid it down as a correct principle that one who does an unlawful act is considered as the doer of all that follows. In the language of Lord Ellenborough, in Leame v. Bray, 3 East, 595, he is the causa causans the prime mover of the damage to the plaintiff. By the act of selling the plaintiffs' property the defendant assumed a control over it, and by appointing the time for the re- moval of the mill he virtually directed the purchaser to take it away. In the case of Morgan v. Varick, 8 Wend. 594, the defendant sold the plaintiff's steam engine, and requested the purchaser to take it away; and he was held liable in trespass. The principle has been frequently recognized in this court that any unlawful interference with or assertion of control over the property of another is sufficient to subject the party to an action of trespass or trover. Phillips v. Hall, 8 Wend. 613, 24 Am. Dec. 108; Wintering-ham v. Lafoy, 7 Cow. 735; see also Gibbs v. Chase, 10 Mass. 125. If the law were otherwise, great injury might ensue without remedy to the aggrieved party* The defendant in this case, by undertaking to sell the plain- tiffs' property, was the moving cause of the injury sustained by the plaintiffs. On the supposition that the purchaser is perfectly respon- sible, the plaintiffs have been put to trouble and expense for which the defendant should be liable. If the law were otherwise, and if in such case a purchaser was irresponsible, the owner might lose his property altogether. The judgment below must be reversed, with costs ; venire de novo to issue in this court. II. IS AN INJURY TO THE RIGHT OF POSSESSION. (13 Me. 236.) LUNT et al. v. BROWN. (Supreme Judicial Court of Maine. May Term, 1836.) 1. TRESPASS TO PERSONAL PROPERTY POSSESSION OR RIGHT TO POSSESSION. A person cannot maintain trespass for taking personal property, unless at the time of the taking he had either actual or constructive possession, or a right to the immediate possession. 2. SAME. Where personal property is left in the possession of another under an agreement for a specified time, the owner cannot maintain trespass against a third person for taking such property during such time. TRESPASS TO PERSONAL PROPERTY. 495 Exceptions from Court of Common Pleas. Action of trespass by Johnson Lunt and S. Lunt against Royal Brown for taking plaintiffs' mare. Plaintiffs had purchased the mare of one Winn, and had agreed that Winn should keep her "until graz- ing time ;" and while she was in Winn's possession under such agree- ment she was taken by defendant, a deputy-sheriff, under an ex- ecution against Winn. The court instructed the jury that on such facts plaintiffs could not recover, and the verdict was for defendant. Plaintiffs alleged exceptions. WESTON, C. J. Regarding the right of property in the mare in controversy to have been in the plaintiffs, with a right of pre-emp- tion only in Winn, as whose property she was taken by the defendant, the officer, the case finds that, by the agreement between the plain- tiffs and Winn, the latter was to keep her until grazing time. She was taken by the officer in March, before the time of grazing. And this is the only proof of trespass upon which the plaintiffs rely to maintain their action. Trespass is a remedy afforded by law for an injury done to the plaintiffs' possession. They must show posses- sion, actual or constructive, or an immediate right of possession. In Ward v. Macauley, 4 Term R. 480, the plaintiff had let to Lord Montfort a ready furnished house, and the lease contained a schedule of the furniture. Pending the lease, the defendants, sheriffs of Mid- dlesex, seized part of the furniture on execution against Lord Mont- fort. Trespass was held not to lie against the defendants, because the plaintiff had neither possession nor a right of possession at the time. The same doctrine was recognized in Putnam v. Wyley, 8 Johns. 432, 5 Am. Dec. 346, and in Clark v. Carlton, I N. H. no. As the plaintiffs had neither possession nor the right of possession at the time of the alleged trespass, we are satisfied, on this ground, that the judge below was warranted in instructing the jury that the action was not maintained. We accordingly overrule the exceptions taken by the counsel for the plaintiffs. It has become unnecessary, therefore, to consider those taken for the defendant, as, if they are overruled, the plaintiffs cannot prevail. Judgment for defendant. (See also Billingsley v. White, 59 Pa. 469; Wheeler v. Lawson, 103 N. T. 40, 8 N. E. 360 ; Muggridge v. Eveleth, 9 Mete. [Mass.] 233 ; Dufour v. Ander son, 95 Ind. 302; Staples v. Smith, 48 Me. 470.) 496 LAW OF TOUTS. CONVERSION OF PERSONAL PROPERTY. I. WHAT CONSTITUTES CONVERSION. (68 N. Y. 522, 23 Am. Rep. 184.) LAVERTY v. SNETHEN (In part). (Court of Appeals of New York. February 20, 1877.) L CONVERSION DISPOSAL BY AGENT OF PROPEBTY OF PRINCIPAL. Where an agent parts with the property of his principal In a way or for a purpose not authorized, he is liable for a conversion; but if he parts with it in accordance with his authority, although at a less price, or if he misapplies the avails, or takes inadequate for sufficient security, he is not liable for a conversion. 2. SAME. Plaintiff, holding a promissory note payable to his order, indorsed the same, and delivered It to defendant to negotiate for him, with instruc- tions not to let the note go out of his hands without receiving the money for it; and defendant gave a receipt stating that the note was received for negotiation, and was to be returned the next day, or the avails thereof. Defendant delivered the note to a third person, who promised to nego- tiate it, and return the proceeds. The latter, after negotiating the note, appropriated the proceeds. Held, that the act of defendant was an un- lawful interference with the note, and amounted to a conversion thereof. Appeal from Court of Common Pleas of the City and County of New York, General Term. Action by William K. Laverty against Worthington G. Snethen for the conversion of a promissory note, the property of plaintiff, made by one Holly, payable to plaintiff's order. The action was brought in the marine court of the city of New York. Plaintiff ob- tained a verdict, and the judgment entered thereon was affirmed on appeal by the general term of the marine court, and, on a further ap- peal, by the general term of the court of common pleas. From the judgment of the common pleas, defendant appealed. CHURCH, C. J. The defendant received a promissory note from the plaintiff, made by a third person, and indorsed by the plaintiff, and gave a receipt therefor, stating that it was received for negotia- tion, and the note to be returned the next day, or the avails thereof. The plaintiff testified, in substance, that he told the defendant not to let the note go out of his reach without receiving the money. The de- fendant, after negotiating with one Foote about buying the note, de- livered the note to him under the promise that he would get it dis- counted, and return the money to defendant, and he took away the CONVERSION OF PERSONAL PROPERTY. 497 note for that purpose. Foot did procure the note to be discount- ed, but appropriated the avails to his own use. The court charged that, if the jury believed the evidence of the plaintiff in respect to instructing the defendant not to part with the possession of the note, the act of defendant in delivering the note and allowing Foote to take it away, was a conversion in law, and the plaintiff was entitled to recover. The question as to when an agent is liable in trover for conversion is sometimes difficult. The more usual liability of an agent to the principal is an action of assumpsit, or what was formerly termed an action on the case for neglect or mis- conduct, but there are cases when trover is the proper remedy. Con- version is defined to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the ex- clusion of the owner's rights. A constructive conversion takes place when a person does such acts in reference to the goods of another as amount in law to appropriation of the property to himself. Every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of the authority conferred, in case a limited au- thority has been given, with intent so to apply and dispose of it as to alter its condition or interfere with the owner's dominion, is a conversion. Bouv. Law Diet. tit. "Conversion." Savage, C. J., in Spencer v. Blackman, 9 Wend. 167, defines it concisely as follows : "A conversion seems to consist in any tortious act by which the de- fendant deprives the plaintiff of his goods." In this case the plain- tiff placed the note in the hands of the defendant for a special purpose not only, but with restricted authority (as we must assume from the verdict of the jury) not to part with the possession of the note with- out receiving the money. The delivery to Foote was unauthorized and wrongful, because contrary to the express directions of the owner. The plaintiff was entitled to the absolute dominion over this property as owner. He had a right to part with so much of that dominion as he pleased. He did part with so much of it as would justify the de- fendant in delivering it for the money in hand, but not otherwise. The act of permitting the note to go out of his possession and be- yond his reach was an act which he had no legal right to do. It was an unlawful interference with the plaintiff's property, which resulted in loss, and that interference and disposition constituted, within the general principles referred to, a conversion; and the authorities, I think, sustain this conclusion by a decided weight of adjudication. A leading case is Syeds v. Hay, 4 Term R. 260, where it was held that trover would lie against the master of a vessel who had landed goods of the plaintiff contrary to the plaintiff's orders, though the plaintiff might have had them by sending for them, and paying the wharfage. Butler, J., said: "If one man who is intrusted with the goods of another put them into the hands of a third person, contrary to orders, it is a conversion." This case has been repeatedly cited by the courts CHASE (2o ED.) 32 498 LAW OF TORTS. of this state as good law, and has never, to my knowledge, been dis- approved, although it has been distinguished from another class of cases upon which the defendant relies, and which will be hereafter noticed. In Spencer v. Blackman, 9 Wend. 167, a watch was delivered to the defendant to have its value appraised by a watchmaker. He put it into the possession of a watch-maker, when it was levied upon by virtue of an execution, not against the owner, and it was held to be a conversion. Savage, C. J., said : "The watch was intrusted to him for a special purpose, to ascertain its value. He had no orders or leave to deliver it to Johnson, the watch-maker, nor any other person." So, when one hires a horse to go an agreed distance, and goes be- yond that distance, he is liable in trover for a conversion. Wheelock v. Wheelwright, 5 Mass. 104. So when a factor in Buffalo was di- rected to sell wheat at a specified price, on a particular day, or ship it to New York, and did not sell or ship it that day, but sold it the next day at the price named, held that, in legal effect, it was a con- version. Scott v. Rogers, 31 N. Y. 676. See, also, Addison on Torts, 310, and cases there cited. The cases most strongly relied upon by the learned counsel for the appellant are Dufresne v. Hutchinson, 3 Taunt. 117, and Sarjeant v. Blunt, 16 Johns, 74, holding that a broker or agent is not liable in trover for selling property at a price below instructions. The dis- tinction in the two classes of cases, I apprehend, is that in the latter the agent or broker did nothing with the property but what he was authorized to do. He had. a right to sell and deliver the property. He disobeyed instructions as to price only, and was liable for miscon- duct, but not for conversion of the property, a distinction which, in a practical sense, may seem technical, but is founded probably upon the distinction between an unauthorized interference with the prop- erty itself, and the avails or terms of sale. At all events, the distinc- tion is fully recognized and settled by authority. In the last case, Spencer, J., distinguished it from Syeds v. Hay, supra. He said : "In the case of Syeds v. Hay, 4 Term R. 260, the captain disobeyed his orders in delivering the goods. He had no right to touch them for the purpose of delivering them on that wharf." The defendant had a right to sell the note, and if he had sold it at a less price than that stipulated, he would not have been liable in this action ; but he had no right to deliver the note to Foote to take away, any more than he had to pay his own debt with it. Morally there might be a difference, but in law both acts would be a conver- sion, each consisting in exercising an unauthorized dominion over the plaintiff's property. Palmer v. Jarmain, 2 Mees. & W. 282, is plainly distinguishable. There, the agent was authorized to get the note discounted, which he did, and appropriated the avails. Parke, B., said : "The defendant did nothing with the bill which he was not CONVERSION OF PERSONAL PROPERTY. 499 authorized to do." So in Cairnes v. Bleecker, 12 Johns. 300, where an agent was authorized to deliver goods on receiving sufficient se- curity, and delivered the goods on inadequate security, it was held that trover would not lie, for the reason that the question of the suffi- ciency of the security was a matter of judgment. In McMorris v. Simpson, 21 Wend. 610, Bronson, J., lays down the general rule that the action of trover "may be maintained when the agent has wrong- fully converted the property of his principal to his own use, and the fact of conversion may be made out by showing either a demand and refusal, or that the agent has without necessity sold or otherwise disposed of the property, contrary to his instructions. When an agent wrongfully refuses to surrender the goods of his principal, or wholly departs from his authority in disposing of them, he makes the property his own, and may be treated as a tort-feasor." The result of the authorities is that, if the agent parts with the property in a way or for a purpose not authorized, he is liable for a conversion; but if he parts with it in accordance with his authority, although at less price, or if he misapplies the avails, or takes inadequate for sufficient security, he is not liable for a conversion of the property, but only in an action on the case for misconduct. It follows that there was no error in the charge. The question of good faith is not involved. A wrong- ful intent is not an essential element of the conversion. It is suffi- cient if the owner has been deprived of his property by the act of an- other assuming an unauthorized dominion and control over it. Boyce v. Brockway, 31 N. Y. 490. In a moral sense, the defendant may have acted in good faith, and hence the judgment may operate harshly upon him, but the fact found by the jury renders him liable in this action. The judgment must be affirmed. All concur. Judgment affirmed. (Every act of control or dominion over property without the owner's au- thority, and in disregard of his rights, is, in contemplation of law, a conver- sion. Trover may be maintained for every species of personal property which is the subject of private ownership, including money, bankbills, notes, and bonds. State v. Omaha Nat. Bk. [Neb.] 81 N. W. 319; cf. Industrial, etc., Trust v. Tod, 170 N. Y. 233, 245, 63 N. E. 285 ; Mayer v. Springer [111.] 61 N. E. 348 ; Spooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514; Evans v. Mason, 64 N. H. 98, 5 Atl. 766 ; Erskine v. Savage, 96 Me. 57, 51 Atl. 242.) 500 LAW OV TORTS. (168 N. Y. 533, 61 N. E. 896, 85 Am. St. Rep. 699.) WAMSLEY v. ATLAS S. S. CO. (in part). (Court of Appeals of New York. November 26, 1901.) L CONVERSION LIABILITY OF CARRIER NEGLIGENCE. Where goods have been intrusted to a common carrier for transporta- tion, and are delivered by him, through mistake, or under a forged order, to the wrong person, such misdelivery constitutes conversion ; but it is not conversion if the property is stolen or lost through the negligence of the carrier, and so cannot be delivered to the owner. A refusal of the carrier to deliver the goods on demand does not alter the case, since, not having the goods in his possession, he cannot deliver them. 2. SAME. A box of negatives and prints, belonging to a passenger on a steamship, disappeared from the storeroom of the vessel, and could not be found when the vessel reached its destination and the owner then demanded its delivery to him. It was found some months afterwards in another part of the vessel, but who put it there, whether some servant of the car- rier or some passenger, was never discovered. Held that, though the carrier might possibly have been liable for negligence, he was not re- sponsible, in an action brought against him for conversion, on the fore- going state of facts merely, and the court's refusal to charge that "he could only be made liable in this action on proof of actual conversion of the box of negatives" was reversible error. Appeal from Supreme Court, Appellate Division, First Depart- ment. Action by William E. Wamsley against the Atlas Steamship Com- pany, Limited. From a judgment of the appellate division (63 N. Y. Supp. 761) affirming a judgment in favor of plaintiff, defendant ap- peals. Reversed. The defendant is the owner of a line of steamships running between South America, the West Indies, and New York. In May, 1895, one S. F. Massey took passage on one of defendant's vessels, named the "Alleghany," at Costa Rica, for New York. He took on board a box of negatives and photographic prints, which were placed in the store- room of the vessel. Upon arriving in New York this box could not be found. Thereafter Massey assigned to the plaintiff his interest in the negatives and prints, and this action was begun to recover the value thereof. The complaint is for conversion, and alleges that Massey delivered the said box to the defendant, to be returned to him on de- mand, and "thereafter, at the city of New York, said Massey de- manded from the defendant the return to him of said box of negatives and views ; but this defendant has refused and neglected to deliver the same, and has wrongfully converted the same to his own use and benefit." Upon the trial it was proved that the defendant endeavored to find the box in question, and that it was not discovered until Jan- uary, 1896, or about two months after the commencement of this action. It was then tendered to the plaintiff, who refused to receive it The CONVERSION OF PERSONAL PROPERTY. 501 box was found in the forepeak of the vessel among a lot of signal rockets. How it came there, does not appear. Other facts are stated in the opinion. The action has been twice tried. Upon the first trial the complaint was dismissed. The judgment entered upon this dis- missal was reversed by the appellate division. Upon the second trial the case was submitted to the jury, and a verdict rendered in favor of the plaintiff for $900. The judgment entered upon that verdict has been unanimously affirmed. WERNER, J. The action was brought and tried upon the the- ory that the defendant was liable as for a conversion. The ques- tion of defendant's liability as for a conversion must therefore be determined in the light of that relation. The general rule is that a common carrier is not liable in conversion for mere nonfeasance, although he may be liable for negligence. So, on the contrary, he may be held in trover when he is guilty of misfeasance, although the wrong may have been unintentional. The principle is thus stated in Hawkins v. Hoffman, 6 Hill, 588, 41 Am. Dec. 768. "Tro- ver will lie when goods have been lost to the owner by the act of the carrier, though there may have been no intentional wrong, as when goods are by mistake or under a forged order deliver- ed to the wrong person. But it will not lie for the mere omission of the carrier, as where the property has been stolen or lost through his negligence, and so cannot be delivered to the owner. Mere non- feasance does not work a conversion of the property, and, although the owner, may have another action, he cannot maintain trover." In that case a trunk was lost, and in referring to the fact the court con- tinued : "A demand and refusal would not alter the case, for, as the trunk was either stolen or lost, the defendant could not deliver it. Demand and refusal are only evidence of a conversion where the de- fendant was in such a condition that he might have delivered the prop- erty if he would." In Packard v. Getman, 4 Wend. 615, 21 Am. Dec. 168, the supreme court said : "Trover lies not against a carrier for negligence, as for losing a box, but it does for an actual wrong ; nor for goods lost or stolen from a carrier or wharfinger. There must be an injurious conversion ; something more than a bare omission. Where a carrier loses goods by accident, trover does not lie ; but where he is an actor, and delivers them to a third person, though by mis- take, the action lies. It also lies where the defendant refuses to de- liver the goods according to contract, he having the possession. But if lost or stolen, so that he cannot deliver them, and his inability does not arise from any act of his own, trover does not lie, though case does." To the same effect is Briggs v. Railroad Co., 28 Barb. 515, where it was held that "a mere delay in the delivery of goods by a com- mon carrier is not a conversion thereof, nor will it entitle the owner to recover the value thereof." Following these cases, and citing with 502 LAW OF TORTS. approval the authorities upon which they are based, this court, in Magnin v. Dinsmore, 70 N. Y. 417, 26 Am. Rep. 610, thus stated the law of conversion as applied to common carriers : "A conversion implies a wrongful act; a misdelivery; a wrongful disposition or withholding of property. A mere nondelivery will not constitute a conversion ; nor will a refusal to deliver on demand, if the goods have been lost through negligence or have been stolen." The case last cited was brought against the president of an express company to re- cover the value of certain watches delivered to that company by the plaintiff for transportation to a consignee in Memphis. The question was whether the plaintiff was limited to a recovery as for defendant's negligence by the conditions of the contract of carriage, or whether plaintiff could recover the full value of the goods in conversion. In referring to the decision of this court upon a former appeal in that case, the court said : "This court held that the nondelivery of the goods, with the other proofs in the case, was evidence of negligence to be submitted to the jury, and that the onus was upon the defend- ants to show that they were lost without the negligence of the carriers or their servants. But an action for a conversion will not be sustained upon such evidence alone." The facts in this case are practically undisputed. Although the complaint alleges a demand and refusal, and the answer admits the allegation .so far as it relates to the demand made by the plaintiff, the evidence shows that the refusal was merely technical, and not actual. The defendant, believing that the box of negatives had either been lost or stolen, simply expressed its inability to deliver the same. Al- though the box was subsequently found on board defendant's vessel Alleghany, under circumstances which raised the presumption that it had not been removed from the ship, there was no evidence showing the circumstances of its removal from the storeroom in which it had been originally deposited. It may have been stolen by a fellow passen- ger, or have been removed and misplaced by some one for whose acts the defendant was not responsible in an action for conversion, although liable for negligence. This brings us to the defendant's request to charge, which raises the serious question in the case. The court was asked to charge the jury, "In such case the defendant can only be made liable in this action upon proof of actual conversion of the box of negatives." The court declined to charge otherwise than it had already charged, and defendant's counsel excepted. Unless the court had the right to in- struct the jury, as a matter of law, that the defendant was guilty of conversion, this request should have been charged, if the instruction had not previously been given. A brief reference to the salient facts will suffice to show that the court would not have been authorized to hold, as a matter of law, that the defendant was guilty of conver- sion. The facts, although substantially undisputed, were such as to CONVERSION OP PERSONAL PROPERTY. 503 support conflicting inferences. The box of negatives was placed in the storeroom.of the vessel by one of the defendant's servants. When the owner disembarked, it could not be found. A camera belonging to him had been surreptitiously taken from his stateroom, and some jugs of water that had been placed in the storeroom with the box of negatives were also missing. The camera was recovered under cir- cumstances indicating that it had been stolen, but the record is silent as to the circumstances of the theft or the identity of the thief. The jugs of water were found the day after the loss was reported to the ship's officers. The box of negatives was not recovered until after the lapse of several months, when it was found in the forepeak of the vessel, among some signal rockets. How it came to be there is a matter of conjecture. Whether it was stolen by the same person who took the camera, or whether it was taken by one of the defendant's employees under the belief that it contained brandy, as indicated by the marks on the box, does not appear. Conceding that the defendant is liable in conversion for the misfeasance of its servants, we must al. c o admit that the evidence does not affirmatively disclose any such mis- feasance. As we have seen, the theft or loss of the goods through the mere nonfeasance of the carrier does not render him liable in conversion. The mere fact that the box was actually on board the defendant's ship is not necessarily inconsistent with the view that it may have been stolen or lost. If, for instance, the box had been stolen by one for whose acts the defendant was not responsible, it would be none the less a theft because it had been secreted in some inaccessible part of the vessel, instead of being hidden elsewhere. So, if by mistake the box had been taken by a passenger who, after discovering that it did not belong to him, had placed it where it could not be found, there might be a case of negligence against the de- fendant, when the facts would not support a charge of conversion. These suggestions sufficiently indicate the necessity, under the evi- dense herein, of a direct and explicit charge to the jury that the plain- tiff could not recover in this action unless he had made proof of ac- tual conversion. Let us now see whether the charge, as it stood prior to this request, had fairly and sufficiently instructed the jury upon this point. The following quotation contains all that was said on that subject : "If the said box was discharged from the ship, and passed by the custom-house inspectors, and thereupon left on the dock at pier 6, subject to Lieut. Massey's risk, and it was thereafter taken on board at Lieut. Massey's request and at his risk, the defendant is entitled to your verdict. But if these matters did not occur, if the box did not come out of the ship until after it was finally discovered, after repeated search, it will be for you to say whether the conduct of the defendant or its servants, by which the box became mixed up with a lot of other boxes, containing signals, was, under all the cir- cumstances disclosed, excusable or justifiable, so as not to make 504 LAW OF TORTS. defendant liable for its failure to deliver on demand." It will be seen that this charge not only fails to cover the point made by the request, but it assumes that the defendant or its servants removed this box and mixed it with the signals, and upon that assumption the jury was left to say whether such conduct was "excusable or justifiable." We think it was error for the court to decline to charge the substance of the request above referred to. The judgment of the court below should be reversed, and a new trial ordered, with costs to abide the event. (To the same effect is Price v. Oswego, etc., R. Co., 50 N. Y. 213, 10 Am. Rep. 475; Pacific Express Co. v. Shearer, 160 111. 215, 43 N. E. 816, 37 L. R. A. 177, 52 Am. St Rep. 324.) (45 N. J. Law, 515.) FROME v. DENNIS. (Supreme Court of New Jersey. November Term, 1883.) 1. CONVEBSION WHAT ACTS CONSTITUTE. To constitute a conversion, there must be acts amounting to a repudia- tion of the owner's right in the property, or an exercise of ownership over it inconsistent with such right, or some act done which destroys or changes the quality of the property. 2. SAME INTENT KNOWLEDGE OF OWNERSHIP. A person who, having no knowledge of the ownership of property, bor- rows it of the person having. possession thereof, and, after using it, re- turns it again to him, supposing him to be the owner, is not liable for a conversion, in an action by the true owner. 3. SAME DEMAND BY OWNER AND REFUSAL. Under such circumstances, the failure of the borrower to deliver the property to the owner, upon demand by him after it has been returned to the lender, is not evidence of a conversion. Certiorari to Court of Common Pleas, Warren County. Action of trover by Thomas P. Frome against Andrew J. Dennis for the alleged conversion of a certain plow. Argued before D1XON and PARKER, JJ. DIXON, J. In August, 1879, the plaintiff left his plow on the farm of one Cummins, with the latter's consent, until he, the plaintiff, should come and take it away. In April, 1880, the farm passed into the possession of one Hibler, the plow being still there. In June, 1880, the defendant, a neighboring farmer, borrowed the plow of Hibler to plow a field, supposing the plow to be Hibler's, and, having used it, in three or four days returned it to Hibler, still supposing it to be his property. In the summer of 1881 the plaintiff informed the defendant that it was his plow which he had used, and demanded of him pay for the use, and the return of the plow or its value; and, CONVERSION OF PERSONAL PROPERTY. 505 the defendant not complying, the plaintiff brought an action of trover for the plow. The justice before whom the suit was instituted, and the common pleas on appeal, each gave judgment for the plaintiff for the value of the plow. The judgment of the pleas is now before us on certiorari, and the defendant below contends that the foregoing facts proved on the trial did not justify the judgment. In this contention we agree with the defendant. In order to main- tain an action of trover, it is necessary to prove an act of conversion by the defendant of the plaintiff's property. What will constitute a conversion is, I think, well summed up by Mr. Justice Depue in Woodside v. Adams, 40 N. J. Law, 417, in these words: "To con- stitute a conversion of goods, there must be some repudiation by the defendant of the owner's right, or some exercise of dominion over them by him inconsistent with such right, or some act done which has the effect of destroying or changing the quality of the chattel." This subject has quite recently received considerable dis- cussion in the exchequer chamber and house of lords of England, in Fowler v. Hollins, L. R. 7 Q. B. 616, and L. R. 7 H. L. 757. The facts upon which the court finally settled as the basis of decision made the case a plain one of conversion. They were that one Bayley had fraudulently come into possession of 13 bales of cotton belonging to the plaintiff, and had sold and delivered them to the defendant, who bought in good faith, and who then sold and delivered them in good faith to Micholls & Co. Here was clearly an exercise of dominion over the goods by the defendant inconsistent with the plaintiff's right. But in the course of the cause some of the judges thought that, accord- ing to the case reserved, the defendant, in the transfer from Bayley to Micholls & Co., dealt only as broker and agent of the latter ; and in examining the goods, receiving them from Bayley, and forwarding them to Micholls & Co., acted without any actual intention with re- gard to, or any consideration of, the property in the goods being in one person more than another; and so the question was raised wheth- er such a possession of the goods and such an asportation amounted, in law, to a conversion. Many of the English cases were commented on at length by Mr. Justice Brett, in both tribunals, and he insisted, with great force and clearness, upon a negative response. Byles, J., and Kelly, C. B., expressly concurred in this opinion, and the other judges in the exchequer chamber seem not to have disagreed with it in point of law, but they rested their conclusion upon a different view of the facts. In the house of lords Mr. Justice Blackburn expressed his opinion that the defendant was liable, because he both entered into a contract with Bayley, and also assisted in changing the custody of the goods, and so knowingly and intentionally assisted in transferring the dominion in the property in the goods to Micholls & Co., that they might dispose of them as their own. This he deemed a conver- sion b> the defendant, no matter whether he acted as broker or not. 506 LAW OF TORTS. In the course of his remarks he lays down the principle that one who deals with goods at the request of the person who has the actual custody of them, in the bona fide belief that the custodier is the true owner, or has the authority of the true owner, should be excused from what he does, if the act is of such a nature as would be excused if done by the authority of the person in possession, if he was a finder of the goods or intrusted with their custody. He concedes, moreover, that this is not the extreme limit of the excuse, and doubts whether it would be a conversion for a miller to grind grain into flour, and re- turn the flour to the person who brought the grain, before he heard of the true owner. Under the definition of Mr. Justice Depue, above quoted, this act of the miller would be a conversion, because it changed the quality of the owner's goods. Mr. Baron Cleasby, while con- curring with those who looked upon the defendant as a principal, and therefore guilty, says with reference to this view that he was a broker merely: "How far the intermeddling with the goods themselves by delivering them would" involve a broker in responsibility to the own- er "admits of question, and was the subject of much argument at the bar, and might depend upon the extent to which the broker in such case could be regarded as having an independent possession of the goods and delivering them for the purpose of passing the property." Mr. Justice Grove advised the house in favor of the plaintiff, on the ground that the defendant intermeddled with goods which were not his own, and exercised a dominion over them inconsistent with the right of the true owner. Mr. Baron Amphlett concurred with Brett. Lord Chelmsford, Chancellor Cairns, and Lords Hatherley and O'Ha- gan advised for the plaintiff, in substance, because the defendant had exercised dominion over the plaintiff's property by disposing of it to Micholls & Co. It is apparent, I think, from a perusal of these judgments, that every judge based his opinion of the defendant's guilt on the ques- tion whether he had done any act which amounted to a repudiation of the plaintiff's title, or to an exercise of dominion, i. e., ownership, over the goods. Less than this would constitute a trespass, but not a conversion, so long as the character of the chattels remained un- changed. In a very late case in Massachusetts, (Spooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514,) a similar view is expressed. Field, J., there says : "Conversion is based upon the idea of an assumption of property or a right of dominion over the thing converted, * * * and it is therefore not every wrongful intermeddling with, or wrong- ful asportation or wrongful detention of, personal property that amounts to a conversion. Acts which themselves imply an assertion of title or of a right of dominion over personal property, such as a sale, letting, or destruction of it, amount to a conversion, even al- though the defendant may have honestly mistaken his rights ; but acts CONVERSION OP PERSONAL PROPERTY. 507 which do not, in themselves, imply an assertion of title or of a right of such dominion over such property will not sustain an action of trover, unless done with the intention to deprive the owner of it per- manently or temporarily, or unless there has been a demand for the property, and a neglect or refusal to deliver it, which are evidence of a conversion, because they are evidence that the defendant, in with- holding it, claims the right to withhold it, which is a claim of a right of dominion over it. * * * Whether an act involving the tem- porary use, control, or detention of property implies an assertion of a right of dominion over it may well depend upon the circumstances of the case and the intention of the person dealing with the property." To the same effect is Laverty v. Snethen, 68 N. Y. 522, 23 Am. Rep. 184. In the light of these authorities, the conduct of the defendant in the case at bar did not amount to a conversion of the plow. He re- ceived it for temporary use only, and without any claim of right or dominion over it, but having a mere license from the possessor, re- vocable at once by either the possessor or the true owner. He sur- rendered it to the possessor, from whom he had received it, without any intention of enlarging or changing his title, without any reference to anybody's title, and doubtless would have as readily surrendered to the plaintiff upon his ownership being shown. Neither in the use nor in the surrender by the defendant does there appear any repudia- tion of the owner's right, or any exercise of dominion inconsistent with such right. His acts may have constituted a trespass, but not a conversion. This being so, his subsequent failure to deliver the plow to the plaintiff on demand was not evidence of a conversion, for the reason that delivery was then impossible to him. He did not refuse to deliver, but could not. Ross v. Johnson, 5 Burrows, 2825 ; Bank v. Wheeler, 48 N. Y. 492, 8 Am. Rep. 564; Magnin v. Dinsmore, 70 N. Y. 410, 26 Am. Rep. 608. The plaintiff contends that the evidence on the part of the defend- ant as to his conversation with Hibler at the time of borrowing the plow was illegal. It was not, however. It being proper to show that the defendant came into possession of the plow, the declarations of himself and of the person from whom he received possession, con- temporaneous with the transfer and indicative of its character, were admissible as part of the res gestse. Luse v. Jones, 39 N. J. Law, 707 ; Hunter v. State, 40 N. J. Law, 495. The judgment below should be reversed. (The mere act of removal of another's goods from one place to another, Inde- pendent of any claim over them by the one so removing them, is not a con- version, but only a trespass. American Union Telegraph Co. v. Middleton, SO N. Y. 408; Falke v. Fletcher, 18 C. B. [N. S.] 403.) 508 I