alike, however, it was said that there was a wrong done by direct physical force, therefore a trespass; and as the form of action was the same, it has been sometimes supposed that the principles of liability are also the same, and that a party may be liable without more for the unforeseen consequences of his act, provided they are sufficiently direct, Observations to that effect may be found in the reports, but little authority. Thus it is said, “If a man assault me, and I lift up my staff to defend myself, and in lifting it hit another, an action lies by that person, and yet I did a lawful thing" (a). In Leame v. Bray (b) Grose, J., says, "Looking into all the cases from the Year-Book in 21 Hen. VII. down to the latest decision on the subject, I find the principle to be that if the injury be done by the act of the party himself at the time or he be the immediate cause of it though it happen accidentally or by misfortune, yet he is answerable in trespass." The authority referred to in the Year-Book simply amounts to this, that he who shoots and wounds another unintentionally may be liable in trespass, though he commits no felony (c). However, in spite of the been allowed as a form of action, where the injury was clearly consequential, and was in fact averred with a per quod. Thus in Fitzherbert, N. B. p. 89, it is said if a man fill a ditch with mud and earth by which another man's land is overflowed he shall have a writ of trespass, wherewith force and arms he filled a certain ditch . . . insomuch that the water being hindered of its ancient course overflowed, &c." See, too, Preston 7. Mercer, (1656) Hardres, 60; Courtney 7. Collett, (1698) Lord Raym. 273. In the more recent case of Gregory v. Piper, (1829) 9 B. & C. 591, trespass was maintained, where only in a highly artifcial sense could it be said that force was directly applied. (a) Bessey v. Olliet, (1683) T. Raym. p. 463. (4) (1803) 3 East, p. 600. (c) In another case from the YearBooks (6 Ed. IV. 7, pl. 18) it was said to be a trespass where a man was cutting his hedge and the thorns se invito fell on his neighbour's land; but here there was clearly negligence. In Weaver v. Ward, (1616) Hob. 134, the defendant had wounded the plaintiff by a shot and pleaded that it was done casualiter et per infortunium et contra voluntatem suam, and the plea was adjudged ill because he ought to have set out the facts specially so that it might appear whether he had been negligent or not. This case appears an authority for the proposition that where the plaintiff proves a primâ facie case of trespass, the burden of proof is on the defendant to negative both intention and negligence. In Dickenson v. Watson, (1682) T. Jones, 205, and Underwood v. Hewson, (1724) Stra. 596, which were cases of trespass by gunshot wounds, there was, as far as can be gathered from the meagre reports, evidence of negligence. In Stanley v. Powell, (1891) 1 Q. B. 86, where the defendant whilst firing at a pheasant accidentally and without negligence wounded the plaintiff with a pellet from his gun, it was held that no action lay. And see the discussion on this subject in Holmes on the Common Law, pp. 87 sqq. The unauthorised taking of a chattel not always a trespass. scantiness of direct authority, the law may be thus summed up (a)" As to the cases cited, most of them are really decisions on the form of action whether case or trespass. The result of them is this, and it is intelligible enough; if the act that does an injury is an act of direct force, vi et armis, trespass is the proper remedy (if there is any remedy) where the act is wrongful, either as being wilful (b), or the result of negligence. Where the act is not wrongful for either of these reasons, no action is maintainable, though trespass would be the proper form of action if it were wrongful." If one man takes the chattel of another without authority, prima facie it is a trespass, but this is not a universally true proposition. "The finder of goods is justified in taking steps for their protection and safe custody till he finds the true owner" (c). So a stranger may in the absence of the executor do what is immediately necessary for the preservation of the goods of a deceased person (d). In these cases, therefore, the question of trespass depends not upon the act, but upon the motive. If the finder deals with the goods with the object of benefiting the owner, he does not commit a trespass, but if not, Conversion of he does. If a man not merely takes the chattel of another, but chattel. Straying cattle. also makes use of it in a manner inconsistent with the title of the real owner, he is guilty not merely of a trespass but of a conversion (e), and generally is liable for the total value of the article. Where an act is ambiguous in its nature, it must depend upon the motive of the doer whether it is a trespass or a conversion (f), and the motive again may depend upon his knowledge of the title of the true owner (g). Although it is customary to speak of an injury done by straying cattle as a trespass, and trespass in such a case was (a) Per Bramwell, B., Holmes v. Mather, (1875) L. R. 10 Ex. p. 268. (b)" Wilful" here clearly means not that it was intended to commit a trespass, but that it was intended to do the very thing which constitutes a trespass. (c) Per Blackburn, J., Fowler v. Hollins, (1872) L. R. 7 H. L. p. 766. As to what taking constitutes a trespass, see below, pp. 231–232. 55. (d) Kirk v. Gregory, (1876) 1 Ex. D. (e) See below, pp. 234-236. (f) Fouldes v. Willoughby, (1841) 8 M. & W. 540. (g) See per Blackburn, J., Foncler v. Hollins, (1872) L. R. 7 H. L. pp. 766–7. As to the question of title by mere possession, see South Staffordshire Water Co. v. Sharman, (1896) 2 Q. B. 44. formerly the appropriate form of action, yet the liability does not rest on the mere invasion of right but on the breach of duty. While a man's cattle are on his own land he is bound to insure that they do not stray (a); while they are passing on the high road he is only bound to take care that they do not stray (b). servants. A trespass to the person of a servant which has the effect of Injuries to depriving the master of his service is of itself an injury to the master, who is considered to have a property in the person of the servant. Hence, for an assault on the servant he could sue in trespass, though an allegation of per quod servitium amisit was also necessary, and the real gist of the action was the consequential injury. But apart from this historical anomaly, an interference with rights of service or rights of contract generally is not actionable unless malicious (c). An act which amounts to a direct invasion of a definite Injuries to incorporeal incorporeal right of property is of itself a tort, just as trespass rights. is in the case of corporeal property. In an action for the disturbance of an easement the sole questions are whether the plaintiff has the right he claims, and whether it has been in fact disturbed by what the defendant has done. So with regard to personal property: a copyright or a patent right confers a monopoly in the sale of a certain article. If the monopoly is infringed the possessor of the right has his action, however innocent the infringement may be. It has been said that a right in a trade mark or trade name is a right of property which will be protected in the same manner as a patent right. This is, however, apparently not absolutely certain (d) although the trend of recent legislation and notably of the Trade Marks Act, 1905, is to affirm the existence of such a right. At common law the ground of action for the infringement of a trade mark or name has always been said to be that the defendant has defrauded the plaintiff by palming off his own goods on the public as those of (a) Lee v. Riley, (1865) 18 C. B. N. S. 722. (b) Tillet v. Ward, (1882) 10 Q. B. D. 17. (e) Cuttle v. Stockton Waterworks Co., (1875) L. R. 10 Q. B. 453. The mere fact of interference, however, may raise a presumption of malice. Glamorgan Coal Co. v. South Wales (d) See the question discussed, Singer Absolute duties. Statutory authority. the plaintiff. Since, however, trade marks are now regulated by statute and registered, there may be some ground for regarding them as property in the strict sense. There are many duties which, subject to the exception of the act of God (a) and the King's enemies, are unqualified in their nature. Among the most important are those which arise out of the use and enjoyment of land. Here, subject to certain natural rights (b) of mining, quarrying, and cultivation, the maxim sic utere tuo ut alienum non lædas applies. Nothing must be done on the land to damage those outside it. Whatever the owner brings there he must keep in at his peril (c). A riparian proprietor may not bank his land against the flooding of a stream if the effect is to send more water on to his neighbour's (d); although where the sea encroaches or there is an inundation of land water, this is a common danger against which everybody may guard without regard to the effect on other proprietors (e). If water is on a man's land which he did not bring there, he is not bound to keep it in, but he may not artificially send it away (f). The duty of the occupant of land to keep cattle from straying is unqualified (g). So also is the duty to keep animals fere naturæ, or of known vice, from doing harm in accordance with their propensities (h). So, if a man light or maintain a fire he must see that it does not send out sparks, or otherwise spread and set light to the property of others (i). Where, however, an express statutory authority is given to make a certain use of property or to do a certain class of acts, such acts or such user, apart from specific legislation, cannot (a) For the explanation of this ex- (b) As to distinction between natural (d) Menzies v. Breadalbane, (1828) (e) Nield v. London & North Western R. Co., (1874) L. R. 10 Ex. 4; Rex v. Pagham Commissioners, (1828) 8 B. & C. 355. But it is unlawful for the owner of land to remove a natural bulwark against the sea, and he may be liable for the damage so caused, not on the ground that it is a breach of private duty but because it is a breach of public duty causing particular damage (Attorney-General v. Tomline, (1879–80) 12 Ch. D. 214; 14 Ch. D. 58). (f) Whalley v. Lancashire & Yorkshire R. Co., (1884) 13 Q. B. D. 131. (g) Lee v. Riley, (1865) 18 C. B. N. S. 722. (h) May v. Burdett, (1846) 9 Q. B. 101; Filburn v. People's Palace and Aquarium Co., (1890) 25 Q. B. D. 258. (i) Filliter v. Phippard, (1847) 11 Q. B. 347. of themselves constitute a wrong (a). The duty ceases to be unqualified, but there still remains a duty to act with proper care and skill. Thus, if a railway company use engines under statutory authority, and in spite of all precautions sparks escape and cause damage, no action lies (b). It is, however, provided by the Railway Fires Act, 1905 (c), that “when . . . damage" (not exceeding one hundred pounds) "is caused to agricultural land or to agricultural crops, as in this Act defined, by fire arising from sparks or cinders emitted from any locomotive engine used on a railway, the fact that the engine was used under statutory powers shall not affect liability in an action for such damage." Statutory authority is, moreover, no defence to an action based on negligence. Where, however, the negligent tort-feasor is a "public authority," the action must be brought within the period limited by statute, or it is altogether barred (d). ambiguous 2. The word negligence is used in law in a double sense, which Negligencemay be a source of fallacy. It is sometimes used to express a signification. breach of duty unqualified in its nature, as where we speak of the negligent keeping of fire, the negligent storage of water, or the negligent keeping of a dangerous animal. In these cases the conduct of the defendant may have been perfectly reasonable and careful throughout, and yet he may be liable. But when we speak of negligent driving along a highway, or the negligent use of a gun, we indicate a very different source of liability, arising not from the nature of the thing done, but from the want of proper care and forethought in the doing of it. It is in the latter sense that it is proposed to use the word negligence in the present work (e). "Negligence is an omission to do something Definition (a) London, Brighton & South Coast R. Co. v. Truman, (1885) 11 App. Cas. 45. Vaughan v. Taff Vale R. Co., (e) 5 Ed. VII. c. 11. (THIS ACT COMES INTO OPERATION ON JANUARY IST. 1908.) (d) 56 & 57 Vict. c 61, and see Williams v. Mersey Docks and Harbour (e) There is another fallacy lurking |