in his judgment in Lumley v. Gye (m), also says, "Courts of Justice should not allow themselves, in pursuit of perfectly complete remedies for all wrongful acts, to transgress the bounds which our law, in a wise consciousness, as I conceive, of its limited powers, has imposed on itself of redressing only the proximate and direct consequences of wrongful acts "(n). Thus, where a Water-works Company under their Act, laid down a main under a turnpike road, the soil of which was vested in K., and the Company permitted the main to leak, thereby causing damage to C. who was employed by K. to make a tunnel under the road, it was held that C. had no right of action against the Company (n). Where, however, the damage is the natural and probable consequence of the wrongful act of the defendant, it is actionable. The leading case of Scott v. Shepherd (o) affords a familiar illustration; there a squib having been thrown into a crowd, and having been hastily thrown away by two other persons and having ultimately injured the plaintiff, the wrong-doer, the original thrower, was held liable. In Sneesby v. Lancashire and Yorkshire Railway Co. (p), a herd of plaintiff's cattle were being driven at 11 p.m. along an occupation road to some fields. The road crossed a siding of the defendant's railway on a level, and while the cattle were crossing the siding, the defendant's servants negligently sent some trucks down an incline into the siding, which separated the cattle from the drovers and frightened them, and they rushed away. Some of them were ultimately found at between 3 and 4 a.m. lying dead or dying on another part of the railway. It appeared that they had gone along the occupation road up to a garden and orchard about a quarter of a mile from the level crossing, had got into the garden through defect in the fences, and so on to the line: Held, that as defendants had been guilty of negligence which caused the drovers to lose control over the cattle, and caused the cattle to become infuriated, it was no answer that if the fence of the garden had not been defective, the accident would not have happened, and that consequently the damages were not too remote. Where there is an element of fraud (q) or malice (r), remoteness will not be a good defence to an action by the party aggrieved. (m) 2 E. & B. at p. 252. (n) Cattle v. Stockton Waterworks Co., L. R. 10 Q. B. 453. (0) 2 Wm. Bl. 892. (p) 1 Q. B. D. 42 (C.A.). (q) Langridge v. Lery, 2 M. & W. 519; aff. 4 M. & W. 337. (r) Lumley v. Gye, 2 E. & R. 216; 22 L. J. Q. B. 463. Chap. I. Chap. I. Instances where no action will lie, though damage suffered. Waiver of tort. Where a person sells a house commanding a fine view or prospect and then builds on his own adjoining land, thereby shutting out the prospect from the land sold, the purchaser, though he has suffered damage, has suffered no tort, as the vendor has done nothing which restrains him from interference with his neighbour's prospect (s). Where commissioners of sewers acting bonâ fide erected certain defences against the inroads of the sea, thereby causing it to flow with greater violence against, and to injure the land belonging to an adjoining owner, it was held that they were not responsible for the damage caused to the adjoining owner, as cach landowner has a right to protect himself against the inroads of the sea, and to erect such works as are necessary for that purpose (t). Statements, even though defamatory, made by witnesses in a Court of Justice (u), or before a military Court of Inquiry (x), are not actionable, on the ground that public policy requires that witnesses should give their testimony free from any fear of being harassed by an allegation, whether true or false, that they acted from malice. Speeches of counsel are privileged for the same reason (y). Defamatory statements contained in an affidavit may be actionable (z). A tort may be discharged by waiver. Thus the trustee of a bankrupt's estate applied, under the 72nd sect. of the Bankruptcy Act, 1869, to the Court of Bankruptcy to declare a bill of sale, made by the bankrupt previously to his bankruptcy, fraudulent and void as against himself as trustee, and to order the assignee under the bill of sale, who had previously to the bankruptcy sold the goods comprised therein, to pay over the proceeds of the sale to himself as such trustee. The Court of Bankruptcy having made the order prayed for, and the assignee having accordingly paid over the proceeds of the sale, it was held that the trustee could not afterwards bring an action of trover against the assignee under the bill of sale to recover the difference be (s) Aldred's Case, 9 Co. 586; Knowles (t) Rex v. Pagham, 8 B. & C. 355. man v. Netherclift, 1 C. P. D. 540. (x) Dawkins v. Lord Rokeby, L. R. 7 H. L. 744. (y) Hodgson v. Scarlett, 1 B. & Ald. 232; Munster v. Lamb, 11 Q. B. D. 588 (C.A.) (z) See Judgment of Willes, J., in Revis v. Smith, 25 L. J., N. S. (C.P.), at p. 195; 18 C. B., at p. 142. tween the value of the goods and the amount realized by the sale, inasmuch as by the proceedings in bankruptcy to recover the proceeds of the sale he had affirmed such sale and waived the tort (a). Where goods have been sold by a wrongdoer, the owner may sue for the sum for which they were sold, on the footing that the wrong-doer was his agent for the sale of the goods (b). Chap. I. Holt, C. J., in his celebrated judgment in the leading case of Ashbyv. White. Ashby v. White (c), says, "every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. So, if a man gives another a cuff on the ear, though it cost him nothing, no, not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage, for it is an invasion of his property, and the other has no right to come there." Thus, in Ashby v. White, it was held that an action would lie against a returning officer for maliciously (d) refusing to receive a vote from a person who had a right to vote at an election of members of parliament, though the candidates for whom he offered to vote were elected. So an action will lie against a clergyman for refusing to marry (e), and against a custom-house officer for refusing to sign a bill of entry without payment of excessive duty (ƒ). A lawful act may, under certain circumstances, become the foundation of a tort; for "if a man doeth a lawful act, yet injury to another ariseth from it, the man who does the act shall be answerable" (g). This principle is well illustrated by the case of Fletcher v. Rylands (h), which was an action to recover damages for an injury caused to the plaintiff's mines by water overflowing into them from a reservoir which the defendants had constructed. A lawful act may become the foundation of a tort. (a) Smith v. Baker, L. R. 8 C. P. 350. See also Smith v. Hodson, 2 Sm. L. C., 6th ed. 119. Brewer v. Sparrow, 7 B. & C. 310. Buckland v. Johnson, 15 C. B. 145; 23 L. J. (C. P.) 204.. (b) Rodgers v. Maw, 15 M. & W. 448. (c) 2 Ld. Raym. 938, 1 Sm. L. C. (d) See note to Ashby v. White, 1 Sm. L. C., p. 258 (5th ed.). In Tozer v. Child, 7 E. & B. 377, which was an action against churchwardens for ma Chap. I. It was there held that if a person brings upon his land anything which would not naturally come upon it, and which is in itself dangerous, and may become mischievous, if not kept under proper control, though in so doing he may act without personal wilfulness or negligence, he will be liable in damages for any mischief thereby occasioned. Lord Cranworth, in the course of his judgment (i) observes, "where one person in managing his own affairs causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer. He is bound sic uti suo ut non lædat alienum.” The law on this subject is very clearly expounded in the unanimous judgment pronounced by the Court of Exchequer Chamber (j) in the same case. Blackburn, J., there says, "We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is primâ facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God * * * * The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property which was not naturally there, but which he knows to be mischievous if it gets on his neighbour's, shall be obliged to make good the damage which ensues, if he does not succeed in confining it to his own property. But for his act in bringing it there, no mischief could have accrued, and it seems but just that he should at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority this we think to be the law, whether the things so brought be beasts, or water, or filth, or stenches" (k). (i) At p. 341. (j) Fletcher v. Rylands, L. R. 1 Ex. 265 (Ex. Ch.). The judgment of the Court of Exchequer Chamber was affirmed by the House of Lords. (k) See Bonomi v. Backhouse, 9 H. L. C. 503. Hodgkinson v. Ennor, 4 B. & S. 229. Baird v. Wilkinson, 15 C. B. (N.S.) Chap. I. The maxim "Sic utere tuo ut alienum non lædas" is of universal application. Where a railway company had not express powers Sic utere tuo given them by statute to use locomotive steam engines, they ut alienum non were held liable at common law for damage caused to the plaintiff's haystack through sparks which fell from the locomotive, even though negligence on the part of the company was negatived (1). Where the defendants planted yew trees on their own land, and permitted the branches to overhang the plaintiff's meadow in which his horses were grazing, and the horses ate the branches and died; the defendants were held liable for the death of the horses (m). So where the defendant's wire-fencing decayed, and the pieces fell into the adjoining pasture belonging to the plaintiff and were eaten by his cow, which died from the effects, the plaintiff was held entitled to damages for the loss of his cow (n). A railway company artificially raised the surface of their land, whereby the rainwater falling on the land made its way to and damaged the plaintiff's house. This was held to disclose a good cause of action (0). There is a distinction in regard to the application of the maxim "Sic utere tuo ut alienum non lædas" where the plaintiff and defendant are adjacent owners, and where they are only occupiers of different floors of the same building. In the latter case an action will only lie where negligence can be proved (p). ladas. When the damage caused is the result of a vis major, or the act Vis major. of God, no action will lie in respect of it. The rule of law is thus laid down by the Court of Appeal in Nichols v. Marsland (q): "When the law creates a duty and the party is disabled from performing it, without any default of his own, by the act of God or the Queen's enemies, the law will excuse him; but where a party by his own contract creates a duty, he is bound to make it good, notwithstanding any accident by inevitable necessity." Thus, one who stores water on his own land, and uses all reasonable care to keep it safely there, is not liable for damage effected by an escape of the water, if the escape be caused by the act of God, 376. Dunn v. Birmingham Canal Co., L. R. 7 Q. B. 244. Tenant v. Goldwin, 1 Salk. 361. (1) Jones v. Festiniog Rail. Co., L. R. 3 Q. B. 733. (m) Crowhurst v. Amersham Burial Board, 4 Ex. D. 5. (n) Firth v. Bowling Iron Co., 3 C. P. D. 254. (0) Hurdman v. N. East. Rail. Co., L. R. C. P. 168 (C. A.). (p) Carstairs v. Taylor, L. R. 6 Ex. 217; Ross v. Fedden, L. R. 7 Q. B. 661, (q) 2 Ex. D. Judgment of Mellish, L. J., at p. 4. |
