must by necessary implication have the occasional posses- CHAP. IV. sion for the purpose of milking (f). Another defence Stoppage in which may be set up is, that the defendant, being the un- transitu. paid vendor of the goods, has stopped them in transitu, the vendee being insolvent (g). Trespass.]-Trespass (h), lies when a trespass has been Trespass. committed by the defendant or his agent, or by his cattle, on plaintiff's land. The plaintiff must show an immediate possession in the land. The general owner of land may, however, maintain trespass for injury to the subsoil, though he has let the herbage to another (i). The ownership of To land. wastes, rivers, walls, ditches, &c. is proved either by documentary evidence of title or acts of ownership. The plaintiff must prove that the trespass was committed by the defendant or his agent duly authorized, either by previous command or subsequent assent; in the latter case the agent at the time of the trespass must have assumed to act for defendant (k). Evidence should be adduced of the extent and amount of damage done. The defendant may disprove the commission of the Defence. trespass, either by denying the fact, or showing that it occurred by plaintiff's fault, as by defect of fences; or may show that the plaintiff was not possessed of the place in question at the time when the trespass was committed; or he may dispute the plaintiff's title, or set up any title in himself which would limit the plaintiff's (7). He may show leave and licence from the plaintiff, express or implied from previous circumstances. He may also show satisfaction to the plaintiff by payment or otherwise, or a release, or may rely on the Statute of Limitations. Trespass is the proper form of action where the plain- To goods. tiff's goods are taken away, or injured by the wilful or immediate act of the defendant. If the injury is only consequential (m), or committed by a servant of the defen (f) Jackson v. Cummins, 5 M. & W. 342. (g) Lickbarrow v. Mason, 2 T. R. 63; 1 Smith's L. C. 669 (6th edit.); sce notes. (h) Although these actions in the county court are of tort generally, whether trespass or case, it is thought best to arrange them under the forms as they existed in the superior courts before the Common Law Procedure (i) Cox v. Glue, 5 C. B. 533; (k) Wilson v. Tumman, 6 S. N. R. 894. (1) As to the jurisdiction of the court to try the case where such a defence is raised, see ante, p. 56. (m) Leame v. Bray, 3 East, 593. PART II. Assault. Defence. Case. Injuries to incorporeal dant not expressly authorized to do the wrongful act, case, not trespass, is the proper remedy (n). Trespass also lies for an assault, or any other direct personal injury committed by the defendant on the plaintiff, as false imprisonment or obstruction of his personal liberty (o). The plaintiff must prove the commission of the acts complained of by the defendant, and the damage resulting therefrom. He may recover not only for the damage that has actually occurred, but for such as probably will be the immediate result of the wrongful act (p). The defendant may show that the act complained of was done under process or authority of law. In assault he may prove that the plaintiff assaulted him first, and that he, the defendant, only acted in self-defence, or that he acted in defence of his possession of a house or goods. He may also show that the damage sustained by the plaintiff is not as great as he alleges. If the defendant relies on self-defence, the plaintiff may show in reply that the violence used was excessive, and more than the accasion would justify. Case.]-An action on the case lies for injuries and obstructions to incorporeal hereditaments, as disturbance of common or right of way; diversion of watercourses; hereditaments. nuisances, as by building a roof so as to throw water on plaintiff's premises (q), or carrying on an offensive trade, so as to render enjoyment of life or property uncomfortable; so by building or otherwise obstructing the light and air around plaintiff's house. In all these cases the plaintiff must prove the existence of the right on his part, the obstruction thereof by the defendant, and the amount of damage he has sustained. The defendant may give in evidence the same defences which have been mentioned under trespass to land. Case is also the proper remedy against carriers for not carrying or delivering goods safely. They are, at common law, insurers, and liable for all accidents except by the act of God or the king's enemies (r); but by the 1 Will. 4, s. 68, they may, by affixing notices in their offices, restrict (n) Wheatley v. Patrick, 2 M. & (0) Bird v. Jones, 7 Q. B. 742. Exch. 259. (q) Fay v. Prentice, 1 C. B. 828. (r) Forward v. Pittard, 1 T. R. 33, per Lord Mansfield. their liabilities in the case of gold, trinkets, silks or other valuables, where the package exceeds 107. in value. If the notice is given, they are protected, though guilty of gross negligence (s), but not against the felonious acts of their servants (t). In actions against carriers, it is not necessary to prove any contract; therefore a railway company is liable to a servant for loss of his baggage, though his fare is paid by his master (u). The liability of railway companies as carriers is further regulated by the "Railway and Canal Traffic Act, 1854," 17 & 18 Vict. c. 31 (x). CHAP. IV. Case lies also for negligent acts committed by the de- To person or fendant or his servants, by which the plaintiff or his property. property is injured, as by the negligent driving of a carriage, or sailing of a ship; so, if the plaintiff were a passenger in a public carriage, although the injury in part arose from the unskilful management of the carriage in which he was (y). But he cannot recover if such injury could have been avoided by the exercise of reasonable care on his part, or on the part of the person having the management of the carriage or vessel in which he is (z). Case lies also for neglecting properly to enclose dangerous premises. In all these cases the plaintiff must prove negligence upon the part of the defendant, or if the act be committed by a servant, prove the service and negligence on his part. A master is not liable for the wanton or malicious acts of his servant done to carry out the servant's own purposes (a), nor for unauthorized acts committed by him beyond the scope of his employment (b). But for any act of the servant in the course of his employment, and done to effect the purpose for which he is engaged, the master is liable, even though the act be wilful and malicious and contrary to express orders (c). A master is not liable (s) Hinton v. Dibbin, 2 Q. B. 646. (t) 1 Will. 4, c. 68, s. 8. (u) Marshall v. York and Newcastle Railway Company, 21 L. J., C. P. 34. (x) M'Manus v. Lancashire and Yorkshire Railway Company, 4 H. & N. 327; Peek v. North Staffordshire Railway Company, E., B. & E. 986; S. C., 27 L. J., Q. B. 465; 32 L. J., Q. B. 241; Garton v. Bristol and Exeter Railway Company, 30 L. J., Q. B. 273; M'Cance v. London and North-Western Railway Company, 7 H. & N. 477; (y) Rigbey v. Hewitt, 5 Exch. (a) M'Manus v. Crickett, 1 East, (b) Joel v. Morrison, 6 C. & P. PART II. to his servant for the negligent acts of his fellow Defence. Action by executors of persons killed. Actions for secution. servant (d). The owner of a wild animal, or of a tame one if he knows of its ferocity or habit of doing injury, is answerable for all damage ensuing by its acts (e). The defendant may disprove any of the facts which the plaintiff is bound to prove, or show that the act complained of arose from such negligence on the part of the plaintiff that the defendant could not by the exercise of ordinary care have avoided it (f), or that the damage is not so great as the plaintiff alleges. Actions by Executors of Persons killed.]-When a person is killed by the wrongful act, neglect or default of another, an action may be brought in the name of the deceased's executor or administrator, for the benefit of the deceased's wife, husband, parent or child, amongst whom the damages are to be divided as the jury direct (g). Actions for Malicious Prosecution.]-In an action for malicious pro- malicious prosecution, the plaintiff must prove the prosecution. And this should be proved in the same way as other proceedings of court are proved (h). He must show that the prosecution has terminated in his acquittal (i); that the defendant was the prosecutor (k), and that the proceedings were both malicious (7) and also without reasonable and probable cause (m). Malice means any indirect motive, any object other than the bonâ fide furtherance of justice; and malice or no malice is a question for the jury. The absence of reasonable and probable cause (d) Wigmore v. Jay, 5 Exch. 354; S. C., 19 L. J., Exch. 300; Hutchinson v. The York, Newcastle and Berwick Railway Company, 5 Exch. 343; 19 L. J., Exch. 296; Wiggett v. Fox, 11 Exch. 832; S. C., 20 Jur. 995; Southcote v. Stanley, 1 H. & N. 247; Griffiths v. Gidlow, 3 H. & N. 648; Abraham v. Reynolds, 5 H. & N. 143; Riley v. Baxendale, 6 H. & N. 445; Mellors v. Shaw, 1 B. & S. 437. (e) May v. Burdett, 9 Q. B. 101; Cox v. Burbage, 32 L. J., C. P. 89. (f) Davies v. Mann, 10 M. & W. 546. (g) 9 & 10 Vict. c. 93; Vose v. may be evidence of malice, but it is not necessarily so (n). Whether there has been an absence of reasonable and probable cause is a question for the judge (0). The defendant may give evidence in disproof of any of the allegations which the plaintiff has to prove, and in particular may bring forward any facts tending to show the absence of malice or the existence of reasonable and probable cause. These observations apply also to actions for malicious arrest. For Defamation.]-The plaintiff in an action of libel For defamamust prove the publication by the defendant of the matter tion. complained of in print or writing, or by a picture or other fixed mode of representing ideas. Special provisions were formerly made by the 6 & 7 Will. 4, c. 76, to facilitate the proof of publication in the case of libels contained in newspapers. But these are all repealed by the 32 & 33 Vict. c. 24, except sect. 19 of the earlier act, which is reenacted by the latter. By that section, a suit in equity will lie to discover the name of the printer, publisher or proprietor of a newspaper, or any matter relative to the printing or publishing of a newspaper, in order to assist an action of libel. And the defendant cannot plead or demur to the bill, but must make the discovery asked for; though the evidence so obtained cannot be used against the defendant except in the proceeding for which the discovery is made. In other cases the publication may be proved by showing that the defendant has written the words in question or caused them to be printed, and shown or given or sent them to any person, or that a copy has been sold at his shop, or that he has otherwise given currency to the document by himself or his agent. But a publication to the plaintiff himself only is not actionable (p). In an action of slander the plaintiff must prove the speaking of the words complained of by the defendant in the presence of some person other than the plaintiff. He must further prove that the words impute to him a criminal offence, or an infectious disease, or misconduct in a public office, or misconduct, negligence, or want of skill in the way of his profession, trade or business, or else that he has (n) Mitchell v. Jenkins, 5 B. & Ad. 588. 169. (p) Phillips v. Jansen, 2 Esp. (0) Panton v. Williams, 2 Q. B. 624. |