boys from going to school, that schoolmaster might have an action for the loss of his scholars" (v).

23 Interference with a man's trade by fair competition is never actionable. The loss in such a case is not, in fact, caused by wrong, but by another's exercise of his undoubted right; and in every complicated society the exercise, however legitimate, by each member of his particular rights, or the discharge, however legitimate, by each member of his particular duties, can hardly fail to cause conflicts of interest which will be detrimental to some. It is essential, therefore, to the maintenance of an action of tort, that the action complained of should be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will do him harm is not enough(x).

If a fisherman fits out a boat with lines and nets, and goes to fish in the high seas, and another fisherman comes and fishes beside him, and with tempting baits, or other contrivances, draws away the fish from the lines and nets of the first comer, with a view of catching them himself, an injury may be done; but there is no tort or wrong, for the one had as much right to fish, and use fair and reasonable means to catch fish, as the other; but if the rival fisherman lays hold of the nets of the first comer, or violently disturbs the water and drives away the fish, and prevents the latter, by force or violence, from exercising his occupation and calling, there is then a wrong done to him, and he is entitled to compensation in damages(y). 24 Disturbance of a ferry.-The owner of a ferry has a cause of action against every intruder who carries in the line of the ferry, whether it be done directly or indirectly. He has a right to the transport of the passengers using the way, and whoever makes a landing-place near the ferry so as to be in substance the same as the ferry landing-place, making no material difference to travellers, is guilty of a tort. And this is on the ground that the owner of the ferry is bound to maintain proper boats, boatmen, and all other things necessary to maintain the ferry in an efficient state for the use of the public. It does not, therefore, necessarily apply to a monopoly of passage created by a statute(z).

(v) Per Holt, C.J., Keeble v. Hickeringill, 11 East, 576, n.

(z) Rogers v. Ragendro Dutt, 13 Moore, P. C. C. 241. If one person intentionally makes false statements in regard to goods manufactured by another, for the purpose of preventing sales by the latter, and does, in fact, prevent such sales, the person making such statements will be liable to the manufacturer for the resulting damages. Snow v. Judson, 38 Barb. (N. Y.) 210.

(y) Young v. Hichens, 6 Q. B. 606.

(z) Letton v. Goodden, L. R., 2 Eq. Ca. 123. See p. 14, supra. A ferry franchise will not be construed as exclusive by mere implication. An exclusive privilege can be claimed and pro

However, if the public convenience requires a new passage at such a distance from the old ferry as makes such new passage a real convenience to the public, the proximity seems not to be actionable. The area for the monopoly of a ferry, therefore, depends on the need of the public for a new passage(a). In an action for the disturbance of a ferry, it is sufficient for the plaintiff to prove that he was in possession of the ferry at the time the cause of action accrued. The right is an incorporeal right, unaccompanied in general with any property in the soil(b). Being an hereditament, however, it comes within the term "lands" in the Lands Clauses Act, and statutory compensation, therefore, is claimable from a railway company, who in pursuance of their Act, erect a bridge for foot passengers so near the ferry as to disturb it(c).

25 Disturbance of a market.-If people come to a market to sell their wares, they are subject to toll, which is payable to the owner of the market(d); and if they come near the boundary of the market, and avail themselves of the concourse of persons coming to and fro, to find customers, and sell without the boundary of the market, so as to avoid the payment of the toll, an action is maintainable against them by the owner of the market for a disturbance of the market(e). But it must be proved that the thing was done wilfully and intentionally(f). It is not necessary that the defendant should actually have sold any thing; any active interference by him in the conduct of the new market, or participation in its profits or risk, is sufficient(g). And a new

tected only under the express terms of the ferry charter or license. McEwen v. Taylor, 4 Greene (Iowa), 532. Perrin v. Oliver, 1 Minn. 202. Shorter v. Smith, 9 Ga. 517. See Mills v. St. Clair Co., 8 How. (U. S.) 569.

(a) Newton v. Cubitt, 12 C. B., N. S. 32. 31 Law J., C. P. 246. Bush v. Peru Bridge Co., 3 Ind. 21. A ferry franchise can be conferred only by the State government, and must be founded on grant, license or prescription. Cason v. Stone, 1 Oregon, 39. Prosser v. Wapello Co., 18 Iowa, 327. McRoberts v. Washburne, 10 Minn. 23. Newport v. Taylor, 16 B. Mon. (Ky.) 699. Either State lying along a boundary river may grant an exclusive right to ferry from its own shore. Conway ♥. Taylor, 1 Black (U. S.) 603. But neither State can grant an exclusive license to ferry from the shore of the other. Weld v. Chapman, 2 Clarke (Iowa) 524. Newport v. Taylor, 16 B. Mon. (Ky.) 699. As to the jurisdiction of determining whether the public convenience requires additional ferries, see Fall v. Paine, 23 Cal. 302. Norris v. Farmers' & Teamsters' Co., 6 Cal. 590. Cason v. Stone, 1 Oregon, 39.

(b) Peter v. Kendal, 6 B. & C. 710. Ownership of the soil on both sides of a river does not give the owner a right to maintain a public ferry. Prosser v. Wapello Co., 18 Iowa, 327. McRoberts v. Washburne, 10 Minn. 23. Richmond, etc., Co. v. Rogers, 1 Duval (Ky.) 135. Gant v. Drew, 1 Oregon, 35.

(c) Reg. v. Cambrian Railway, L. R. 6 Q. B. 422. See Taylor v. Wilmington & Manchester R. R. Co., 4 Jones Law (N. C.), 277. Aikin v. Western R. R. Co., 20 N. Y. 370.

(d) Great Yarmouth (Mayor, &c.) v. Groom, 32 Law J., Exch. 74.

(e) Bridgland v. Shapter, 5 M. & W. 375.

(f) Brecon (Mayor, &c., of) v. Edwards, 31 Law J., Exch. 368.

(g) Mayor, &c., of Dorchester, v. Ensor, L. R., 4 Exch. 335.

market held on the same day as the old is a disturbance by inteudment of law(h).

According to Fleta, a new market, opened within seven miles of an existing legally established market, is actionable(i). Such a limit might be suited to the simple wants of a rude life, where inhabitants are few, but is unfitted for large towns, where daily wants are greatly multiplied. Under the latter circumstances, it seems that the area within which a new market would become actionable would be diminished, and would now depend upon the public need for it(k).

26 Market tolls.-A toll imposed on the occupier of every stall erected for the sale of articles is a toll on the stall itself, and not on the articles sold at the stall, for the occupier is to pay the toll, whether he brings the article to the market or not, and he pays in respect of the space his stall occupies, and not on the articles he sells(). But when the toll is placed on the specific article, such as a toll on every horse sold within the limits of the market, then the article cannot be lawfully sold without the payment of the toll(m). An immemorial toll may be sustained as a claim to a reasonable toll, varying in amount from time to time with the value of money, and its lawful origin may be presumed within legal memory, by means of a dedication of the streets to the public, and a contemporaneous reservation of the toll on the part of the crown between the time of Henry III. and Charles I.(n). 27 Torts founded on contract.-A tort may be dependent upon, or independent of, contract. If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded on contract; so that an action ex contractu for the breach of contract, or an action ex delicto for the breach of duty, may be brought at the option of the plaintiff. When there is a violation of a legal right existing independent of any contract between the parties, such as an invasion of a right of property or of the right of personal security, or an injury to character and reputation, then the tort is not founded on contract and an action is alone maintainable. Whenever an action of

(h) Yard v. Ford, 2 Wms. Saund. 174.

(i) Fleta, lib. 4, c. 28, s. 13.

(k) Willes, J., 31 Law J., C. P. 254.

(1) Caswell v. Cook, 11 C. B., N. S. 637; 31 L. J., M. C. 185.

(m) Llandaff, etc., Market Co. v. Lyndon, 30 Law J., M. C. 105, as to sale of horses by a licensed auctioneer. See also as to stock sales, Fearon v. Mitchell, L. R., 7 Q. B 690. And as to penalties for carrying things for sale from house to house within the boundaries of a market, Caswell v. Cook, supra. As to the right to a stall in an ancient market, and the righ of shopkeepers to place stalls in the street in front of their houses on market days, Ellis v. Mayor, &c., of Bridgnorth, 15 C. B., N. S. 52. Ashworth v. Heyworth, L. R., 4 Q. B. 316; 38 L. J., M. C. 91.

(n) Lawrence v. Hitch, L. R., 3 Q. B. 521.

AD. VOL. I.-2

tort is founded on contract, an action is maintainable for nominal damages, although no actual damage can be proved(o); but the plaintiff who brings the action must be a party to the contract, for no person can in general sue in respect of a tort founded on contract who was not party, or privy to, and could not have been sued upon, the contract(p); and the cause of action cannot be transferred to one to whom the contract itself is not transferable(q). Thus an electric telegraph company, though it would be answerable to a person transmitting messages to a third person by its line for delay or mistakes in the transmission of the message, is not liable for any mistakes made in transmitting the answer to such message, unless the person so answering can be considered as the agent of the original sender(r).

28 Breach of duty.-Wherever facts and circumstances can be shown to exist which create a duty on the part of the defendant towards the plaintiff, and there has been a breach of that duty, and a consequent damage to the plaintiff, an action for damages is maintainable. "If several are jointly bound to perform the duty, they are liable jointly and severally for the failure or refusal to perform it; and if it is a duty which the majority of the number is bound to perform, those who by their refusal prevent the greater number

(0) Marzetti v. Williams, 1 B. & Ad. 423.

(p) Winterbottom v. Wright, 10 M. & W. 109, explained in Blackmore v. Brist. & Ex. Rail. Co., 8 Ell. & Bl. 1049. Robertson v. Fleming, 4 Macq. H. L. C. 167. Gray v. Ottolengui, 12 Rich. Law. (S. C.) 101. Thus the manufacturer and vendor of a steam boiler is liable to the purchaser only for defective iron or want of care or skill in its construction; and if after its delivery to and acceptance by the vendee and while in use by him, a third person is injured in person or property by an explosion resulting from such defects, the injury will give such person no cause of action against the manufacturer. Losee v. Clute, 51 N. Y. 494. So an architect or builder of a public work is liable only to his employer for want of care and skill, and any accident or injury to third persons occurring after the completion of the work will not give such persons a cause of action against him. Mayor, etc. of Albany v. Cunliff, 2 N. Y. 165, So the manufacturer and vendor of an article containing defects pointed out to the purchaser is not liable to a third person for injuries resulting from such defects while using the same with the consent of the purchaser, unless the article is in its nature imminently dangerous. Loop v. Litchfield, 42 N. Y. 351. But where a druggist carelessly lables a deadly poison as a harmless medicine and sends it into the market, he is liable to all per. sons injured by using the same, notwithstanding that it may have passed through the hands of many dealers before reaching the hands of the person injured. The liability of the druggist in such case arises out of the duty which the law imposes upon him to avoid acts in their nature imminently dangerous to the lives of others, and not out of any privity of contract between him and the person injured. Thomas v. Winchester, 6 N Y. 397.

(q) Howard v. Shepherd, 9 C. B. 321. An agent who falsely represents his authority to contract in behalf of another, is not liable in contract or in tort unless the principal would have been bound by the contract made, if the agent had such authority. Dung v. Parker, 52 N. Y. 494.

(r) Playford v. United Kingdom Telegraph Co., L. R., 4 Q. B. 706. See Henkel v. Pape, LR., 6 Exch. 7. As to electric telegraph companies in England, see 31 & 32 Vict. c. 110; 32 & 33 Vict. c. 75; post, D. 20.

But

from concurring are answerable to the party injured "(s). before an action can be maintained, it must of course be clearly proved that the law imposes upon the defendant the duty which he is charged with neglecting(t). Thus, where the declaration alleged that the defendant wrongfully and negligently hung a chandelier in a public house, knowing that the plaintiff and others were likely to be under the chandelier, and that if not properly hung it would probably fall upon them, and that the chandelier fell upon the plaintiff, it was held that the declaration did not disclose any duty by the defendant to the plaintiff for the breach of which an action could be maintained(u).

If facts are proved showing it to be the duty of a joint-stock company to register the plaintiff as a shareholder, and grant him a certificate of proprietorship of shares in the company, the company will be responsible in damages for neglecting their duty in that behalf, though no actual pecuniary damage is proved to have been sustained by the plaintiff(e). So it is the duty of the shareholder who has sold shares to execute a transfer of them, although the company is winding up, and he will be liable to his broker, who has been obliged by the rules of the Stock Exchange to buy other shares for the purpose of delivery to the purchaser accordingly(w).

29 Breach of duty on the part of assignees of leases.-Where a party accepts an assignment of a lease subject to the payment of the rent and the performance of the covenants, but enters into no express contract that he will pay the rent and perform the covenants, the law, nevertheless, imposes that duty upon him as incident to the position he has chosen to occupy, and if by neglecting that duty a burthen is cast upon the person from whom he took the estate, an action on the case is maintainable against him by the latter(x). A similar duty towards the original lesse is, it seems, imposed upon each successive assignee, so far as regards any breaches of covenant during the continuance of his term(y).

30 Breach of duty on the part of public officers.-Public functionaries

(8) Ld. Brougham, Ferguson v. Earl Kinnoul, 9 Cl. & Fin. 305.

(t) Curlewis v. Broad, 31 Law J., Exch. 473. Mayor, etc. of Albany v. Cunliff, 2 N. Y. 165; Losee v. Clute, 51 N. Y. 494.

(u) Collis v. Selden, L. R., 3 C. P. 495.

(v) Catchpole v. Ambergate, etc. Rail. Co., 1 Ell. & Bl. 120 ; 22 Law J., Q. B. 35.

(w) Biederman v. Stone, L. R., 2 C. P. 504.

(x) Burnett v. Lynch, 5 B. & C. 589. As to the lessee's duty to obtain his landlord's consent to an assignment, see Lehmann v. M'Arthur, L. R., 3 Ch. App. 496; Bain v. Fothergill, L. R., 6 Exch. 59.

(y) Moule v. Garret, L. R., 5 Exch. 132; 7 Ibid. 101.