Chap. I. The doctrine as in case of felony. or vis major; e. g., by an extraordinary rainfall, which could not reasonably have been anticipated, although if it had been anticipated, the effect might have been prevented (s). The doctrine which is laid down in the text-books, that it is a to suspension of condition precedent to enforcing a civil remedy that the felon right of action should be first prosecuted (t), is now considerably shaken, if not entirely exploded, by the recent decisions of the Courts (u). Bramwell, L.J., in the course of his judgment in Ex parte Ball (x), says, "The law on this subject is in a remarkable state. For three hundred years it has been said in various ways by judges, many of the greatest eminence, without intimating a doubt, except in one instance, that there is some impediment to the maintenance of an action for a debt arising in this way. The doubt is that which was not so much expressed by Mr. Justice Blackburn in Wells v. Abrahams, as to be inferred from what he said. But, though such an opinion has been entertained and expressed for all this time, there are but two cases in which it has operated to prevent the debt being enforced. These two cases are Wellock v. Constantine, and Ex parte Elliott." The learned Lord Justice then, referring to Wellock v. Constantine, says, "Though I concurred in the judgment, I must have done so in the faintest way," and finally suggests that there is a great deal to justify the doubts expressed by Mr. Justice Blackburn in Wells v. Abrahams (y). Where an insurance company granted a fire policy to S. and during the currency of the policy S.'s wife feloniously burnt the property insured, it was held that an action was maintainable by the company against S. and his wife for the damage caused, without showing that the felon was prosecuted (z). A clerk in a firm of bankers embezzled their moneys. The firm did not prosecute. The clerk was made bankrupt, and shortly afterwards the firm of bankers became See (s) Nichols v. Marsland, supra. (t) Markham v. Cobb, Sir W. Jones, (u) Wells v. Abrahams, L. R. 7 Q. B. 554. Ex parte Ball in re Shepherd, 10 (y) James, L. J., at the conclusion of the judgment in Ex parte Ball, intimated that, as a grave principle was involved, it would be desirable that the case should be taken on appeal to the House of Lords. No appeal, however, was brought. (z) Midland Insurance Co. v. Smith, supra. bankrupt also. The trustee of the bankrupt firm brought in a proof under the clerk's bankruptcy for the money which had been embezzled. The proof was admitted, though the clerk had not been prosecuted (a). A man cannot plead his felony, as a bar to the redress of a person who sues him in an action (b). Where stolen property has been innocently taken in pledge by a pawnbroker or purchased out of market overt, an action will lie against the pawnbroker or purchaser without any previous prosecution for the felony (c). Chap. I. An action may be maintained in England for a tort committed Torts com mitted by by a British subject abroad (d), subject to the two following British subjects conditions: First, the wrong must be of such a character that it abroad. would have been actionable if committed in England. Secondly, the act must not have been justifiable by the law of the place. where it was done (e). An English Court will not entertain an action in respect of an act which by the English law imposes no liability on the person from whom the damage is claimed, although such act does impose a liability according to the laws of the country where the damage was suffered (ƒ). ambassadors. No action for a tort can be maintained against the accredited Non-liability ambassador or minister of a foreign power, as they are not amenable to the jurisdiction of the British Courts (g). master for A master is responsible for the wrongful act of his servant, Liability of when the act is done by his authority, express or implied (h), servant's act. even though the servant act recklessly or improperly (i), and a servant has an implied authority to do all those things that are necessary for the protection of the property entrusted to him, or for fulfilling the duty which he has to perform (k). Thus, the conductor of the defendant's omnibus had, as part of his general employment, authority from his master to remove (a) Ex parte Ball, supra. (b) Lutterell v. Reynell, 1 Mod. 282. (c) White v. Spettigue, 13 M. & W. 608; Lee v. Bayes, 18 C. B. 599. (d) Mostyn v. Fabrigas, 1 Cowp. 175. (e) Phillips v. Eyre, L. R. 6 Q. B. 1 (Ex. Ch.); Judgment of Willes, J., at p. 28. Dobree v. Napier, 2 Bing. N. C. 81. Scott v. Lord Seymour, 1 H. & C. 219; 31 L. J. Ex. 457. (f) The Halley, L. R. 2 P. C. 193. (g) The Magdalena Steam_ Navigation Co. v. Martin 28 L. J. Q. B. 310. See also 7 Ann. c. 12, passed on account of (i) Limpus v. L. G. Omnibus Co., 32 (k) See Allen v. L. & S. W. Rail. Co., L. R. 6 Q. B., judgment of Blackburn J., at p. 69. from it passengers who misconducted themselves. The plaintiff, who had been drinking, having got into the omnibus, the conductor, deeming him an improper person to remain in it, dragged him out with unnecessary violence, whereby he was injured. It was held, in an action against the defendant, the master, that he was liable for the act of his servant, the conductor (. If one member of a partnership is guilty of an act of negligence, and it occurs in a matter within the scope of the common undertaking of the partnership, all the partners will be liable for the injury caused by such act (m). An infant is liable for a tort (n). Thus the defendant, an infant, hired a horse, the owner expressly refusing to allow the horse to be used for jumping. The defendant lent the horse to a friend, who rode it, with the defendant's permission, across country. In trying at a fence the horse was injured. It was held, in an action by the owner, that this was a tort independent of contract, and that therefore the defendant, notwithstanding his infancy, was liable for the injury which had been done the horse (0). Where a minor was sued at law for a false and fraudulent representation that he was of full age, whereby the plaintiff was induced to lend him money, it was held that no action would lie (p). In equity, however, an infant was held liable to have a debt proved against him where he had represented himself to be of full age (q). Since the passing of the Supreme Court of Judicature Act, 1873, 36 & 37 Vict. c. 66, s. 25, (11), which enacts that "where there is any conflict between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail," the decisions in Johnson v. Pye, and Bartlett v. Wells, would perhaps no longer be upheld. Before the passing of the Married Women's Property Act, 1882, a husband was liable for his wife's torts committed by her during coverture (r), but the action had to be brought against them jointly. Where it was a mixed question of contract and tort, the (1) Seymour v. Greenwood, 29 L. J. Ex. 327. (m) Moreton v. Harden, 4 B. & C. 223; Ashworth v. Stanwix, 30 L. J. Q. B. 183. (n) Jennings v. Rundall, 8 T. R. 335; Bristow v. Eastman, 1 Esp. 172. (0) Burnard v. Haggis, 32 L. J. C. P. 189. (p) Johnson v. Pye, 1 Sid. 258. Bart lett v. Wells, 31 L. J. Q. B. 57. (q) Ex parte The Unity Banking As sociation, 27 L. J. Bank. 33; 3 De Gex & J. 63. (r) Head v. Briscoe and Wife, 5 C. & P. 484. husband was held not to be liable for his wife's fraudulent representation. Thus, an application was made to the plaintiffs for a loan to be secured by a promissory note signed by three persons, and the defendant, Jane-the defendant, Jane, at the same time representing herself as a feme sole, whereas she was the wife of the male defendant. The loan not being repaid, an action was brought against the defendant Jane and her husband. The Court of Exchequer gave judgment in favour of the defendants, on the ground that "where the Act consists of fraud and covin, which is part and parcel of a contract, the wife cannot be responsible and cannot be sued," and that the husband cannot be bound by any such contract (s). In a subsequent case (t), in the Court of Common Pleas, the judges were equally divided as to whether an action would lie against a husband and wife on a fraudulent representation by the wife that her husband had accepted a bill of exchange, whereby the plaintiffs were induced to discount it, Erle, C. J., and Byles, J., holding that the representation partook so much of the nature of a contract, as not to constitute a cause of action against husband and wife, whilst Williams and Willes, J.J., held that an action would lie, as the fraudulent representation was not shown to have been connected with any contract with the wife (u). Though the husband may be still liable for his wife's torts, yet since the passing of the Married Women's Property Act, 1882 (x), a married woman is capable of suing and being sued either in contract or tort in all respects as if she were a feme sole, and is liable in damages to the extent of her separate property. To that extent therefore she would now be liable for any fraudulent misrepresentation. The Married Women's Property Act, 1882 (r), enacts that a wife may sue or be sued alone in respect of any tort committed by her, in all respects as if she were a feme sole, in which case any damages or costs recovered against her will be payable out of her separate property and not otherwise. The act does not specifically abolish the liability of a husband for torts committed by his wife during coverture, but it has been supposed to imply (s) Liverpool Adelphi Loan Association v. Fairhurst, 9 Ex. 430, 23 L. J. Ex. 163. (t) Wright v. Leonard, 11 C. B. N. S. 258, 30 L. J. C. P. 365. (u) By the Married Women's Property Act, 1882, the wife would now be held personally liable for the misrepresenta tion, see Macqueen on Rights and Lia- 321. (x) 45 & 46 Vict. c. 75, s. 1, subs. 2; see Weldon v. Winslow, 13 Q. B. D. 784 (C. A.). Chap. I. Wife liable for her tort, to the extent of her separate property. Chap. I. Liability of that the husband is no longer liable for his wife's torts, unless authorized by him (xx). Where there has been a decree of divorce or judicial separation or a protection order has been granted to the wife, the wife is in the same position as a feme sole, with respect to any tort committed by her, and the husband incurs no liability (y). Public officers are liable for a breach of duty while acting in public officers. their public capacity, for "when a person has an important public duty to perform, he is bound to perform that duty; and if he neglects or refuses so to do, and an individual in consequence sustains injury, that lays the foundation for an action to recover damages by way of compensation for the injury that he has so sustained (). Thus an action will lie against a bishop for arbitrarily refusing to admit a clerk (a), and damages can be recovered by the Statute of Westminster the Second (b). Joint liability of tort-feasors. Damages for tort. If several persons are jointly bound to perform a duty, they are liable jointly and severally for the failure and refusal (c). Although in the case of joint tort-feasors the plaintiff may proceed against any of the wrong-doers separately, a recovery against one will be a bar to an action against any other whom he might have joined in the same action (d). Whenever an injury is done to a right, actual perceptible damage is not indispensable as the foundation of an action, but it is sufficient to show the violation of the right, and the law will presume damage (e). Thus, in an action against a banker for refusing to pay a customer's cheque, he having at the time of refusal sufficient assets of the customer, the latter may recover substantial damages without proof of actual damage (f). Where the wrongful act is accompanied by special matter of aggravation, as where the tort is committed under peculiarly malicious circum (xx) See Macqueen on Husband and Wife (3rd ed.), p. 92. Thicknesse on Husband and Wife, p. 208. Lush on Husband and Wife, p 252. This view as to the interpretation of the Statute may be correct, but hitherto there have been no judicial decisions to support it. Where a slander has been uttered by the wife (without separate estate), might not the husband be liable to the same extent as he was before the passing of the Act? (y) Capell v. Powell, 17 C. B. N. S. 743, 34 L. J. C. P. 168. See 20 & 21 Vict. c. 85, ss. 21, 26 (Divorce Act, 1857). (z) Ferguson v. Earl of Kinnoul, 9 Cl. & Fin. 251; see judgment of Lord Lyndhurst, L.-C., at p. 279. (a) Ferguson v. Earl of Kinnoul, supra ; judgment of Lord Brougham, at p. 298. (b) 13 Edw. I., c. 18. (c) Ferguson v. Earl of Kinnoul, supra. (d) Brinsmead v. Harrison, L. R. 6 C. P. 584; Ex parte Duke, 5 Ch. D. 866. Buckland v. Johnson, 15 C. B. 145; 23 L. J. C. P. 204. (c) Embrey v. Owen, 6 Ex. 353; 20 L. J. Ex. 212. (1) Rolin v. Steward, 14 C. B. 595; 23 L. J. C. P. 148. |
