judgment in the action against the master are evidence of the amount of these damages, but not of the circumstances under which they were recovered(b). If the captain of a ship engage in smuggling transactions, and thereby causes the ship to be forfeited and condemned, he is responsible in damages to the shipowner for causing the latter to lose his property(c).

38 Fraud and falsehood are mala in se, and wrongful in the eye of the law, so that if damage results therefrom, there is the damage and wrong necessary to create a cause of action. "An action cannot be supported for telling a bare naked lie, where no loss or damage is caused by the lie, but if it be attended with damage, it then becomes the subject of an action "(d). Fraud may consist in the affirmance of something not true within the knowledge of the affirmant, or by the suppression of something which is true, and which it was his duty to make known(e). If A fraudulently makes a representation which is false, and which he knew to be false, to B, meaning that B shall act upon it, and B, believing it to be true, 'does act upon it, and thereby suffers damage, B may maintain an action against A for the deceit, there being here that conjunction of wrong and loss which entitles an injured and suffering person to compensation in damages(f). Where the father of the plaintiff went to the defendant, a gunmaker, and told him that he wanted a gun, safe and fit to use, for the plaintiff, his son, and the defendant gave the father a false and fraudulent warranty with a gun which he sold and delivered to him for the use of the plaintiff, and the plaintiff was injured by the bursting of the gun in his hand, it was held that, there being here both fraud and damage the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time as one of its results, the defendant was responsible to the plaintiff for the injury he had sustained(g).

(b) Green v. New River Co., 4 T. R. 590.

(c) Blewitt v. Hill, 13 East, 12.

(d) Kenyon, C.J., Pasley v. Freeman, 3 T. R. 65. Collins v. Cave, 6 H. & N. 131; 30 Law J., Exch. 55. Croke, J., Bailey v. Merrell, 3 Bulstr. 95. Nye v. Merriam, 35 Vt. 438. One who by falsely and fraudulently assuming to be authorized to make a contract in behalf of another draws a third party into a contract, is liable to such party for the injury sustained, provided such contract could have been enforced against the principal had the pretended agent the authority he assumed. Otherwise if the contract was void under the statute of frauds. Dung v. Parker, 52 N. Y. 494.

(e) Horsfall v. Thomas, 1 H. & C. 90; 31 Law J., Exch. 322. See Lee v. Jones, 34 Law J., C. P. 131; Devoe v. Brandt, 53 N. Y. 462; Grove v. Hodges, 55 Penn. St. 504; Wintz v. Morrison 17 Texas, 372; Belden v. Henriques, 8 Cal. 87; Marsh v. Webber, 13 Minn. 109.

(f) Com. Dig. Action on the Case for a Deceit (A 9), (A 10). Pasley v. Freeman, 3 T. R. 51. Garhard v. Bates, 2 Ell. & Bl. 489. Marsh v. Falker, 40 N. Y. 562; post, ch. 18.

(g) Langridge v. Levy, 2 M. & W. 529. Levy v. Langridge, 4 Ib. 338. See George v. Skivington, L. R., 5 Exch. 1.

Where the defendant wrongfully and maliciously caused certain persons to refuse to deliver goods to the plaintiff, by asserting that he had a lien upon them, and ordering those persons to retain the goods until further orders from him, he well knowing at the time that he had no lien, it was held that the action was maintainable, though the persons who had the goods were under no legal obligation to obey the orders of the defendant, and their refusal was their own spontaneous act(h).

39 A refusal to obey the lawful decree of a court of justice is wrong; and if a party is thereby prejudiced, or impeded, or hindered in the exercise of his legal rights, there is that conjunction of wrong and damage which will support an action(i).

40 Malicious injuries.-The foundation of every action of tort is a wrongful act, but it need not be malicious, for malice is not a necessary ingredient in a wrong. An imprisonment of the person, for example, a battery or a trespass on land may be committed without any express or implied malice, and yet an action for damages may be maintained(). But every malicious act is wrongful in itself in the eye of the law, and if it causes hurt or damage to another, it is a tort, and may be made the foundation of an action. Malice may be proved by evidence of personal hostility and spite entertained against the injured party, or of any other corrupt or improper motive(). If a free burgess of a corporation or any other person having an undoubted right at law to give his vote at an election of a burgess or knight to serve in parliament, be maliciously hindered or impeded in the exercise of his right, an action for damages is maintainable against the disturber(m). Any person has a right to stand for a place in parliament, or to offer himself as a candidate for a vacant office; and if an election takes place, and it becomes difficult to determine who has the majority, he is entitled to demand a poll; and if the public officer who ought to have granted the poll maliciously denies it, he is liable to an action for substantial damages(n); for if public officers will maliciously infringe men's rights, and "refuse to receive a vote which the party tendering has a right to give, and if an action for it comes. to be tried before me, observes Holt, C.J., "I will direct the jury to

(h) Green v. Button, 2 C. M. & R. 707. See Wren v. Weild, L. R., 4 Q. B., 730.

(i) Ferguson v. Earl of Kinnoul, 9 Cl. & Fin. 311.

(k) Rogers v. Ragendro Dutt, 13 Moore, P. C. C. 209. Prell v. McDonald, 7 Kansas, 426.

(1) Tozer v. Child, 7 Ell. & Bl. 381. Lyon v. Hancock, 35 Cal. 372.

(m) Holt, C.J., Ashby v. White, 2 Ld. Raym. 954.

(n) Starling v. Turner, 2 Lev. 50.

make them pay well for it"(o). In order to maintain the action, the plaintiff must show that the refusal was founded in malice; for "if the returning officer has acted honestly and uprightly, according to the best of his judgment, he is not amenable to an action "(p).

The functions of a returning officer are not wholly ministerial, but are partly judicial and partly ministerial; and a judicial officer cannot be made responsible for an erroneous or wrong judgment, where he has acted bona fide in a matter of which the law gives him cognizance(9). "It cannot be contended that he is to exercise no judgment, no discretion whatever, in the admission or rejection of votes, and he could not discharge his duty without great peril and apprehension if, in consequence of a mistake, he became liable to an action "().

In the celebrated case of Ashby v. White, where an action was brought against a returning officer for maliciously hindering an elector in the enjoyment of his electoral right, by refusing to receive. his vote at an election, Lord Holt observes, "I do not find that the defendants did by force of arms drive the plaintiff away from the election, nor by menaces deter him, but I find they did maliciously hinder him; and so it is charged by the plaintiff in his declaration, and so found by the jury, that they did it by fraud and malice. And so the defendant is an offender within the very words of the statute of Westminster "(s).

41 Malicious procurement of loss or damage to another, whether brought about by libel or slander (post, chap. 17), or by instigating servants to leave their service or desert their employment, to the injury of their masters, or by maliciously inducing a party to a contract to break his contract, to the injury of the person with whom the contract was made, creates that conjunction of wrong and damage which will support an action(t). If one person incites another to commit perjury, or forgery, or a nuisance, or to bring a false charge or accusation, and the accused party is acquitted of the charge, the instigator of the wrongful act is

(0) Ashby v. White, 2 Ld. Raym. 958. Herring v. Finch, Ib. 250.

(p) Abbot, C.J., Cullen v. Morris, 2 Stark. 587. In support of the English rule that malice must be shown to maintain the action, see Chrisman v. Bruce, 1 Duvall (Ky.) 63. Jenkins v. Waldron, 11 Johns. (N. Y.) 114. Caulfield v. Bullock, 18 B. Mon. (Ky.) 494. Rail v. Potts, 8 Humph. 225. Carter v. Harrison, 5 Blackf. 138. That proof of malice is not necessary to maintain the action, see Gillespie v. Palmer, 20 Wis. 544; Lincoln v. Hapgood, 11 Mass. 350; Blanchard v. Stearns, 5 Met. 298; Harris v. Whitcomb, 4 Gray, 433; Jeffries v. Ankeny, 11 Ohio, 373; Anderson v. Milliken, 9 Ohio St. 568.

(q) Post, ch. 15.

(r) Abbot, C.J., Cullen v. Morris, 2 Stark. 587.

(8) Lord Holt's judgment in Ashby v. White; cited in Tozer v. Child, 7 Ell. & Bl. 381.

(t) Lumley v. Gye, 2 Ell. & Bl. 228. Green v. Button, 2 C. M. & R. 707.

responsible for all its injurious consequences(u). Thus, where the mistress of a wine-shop brought an action against the defendant for procuring a soldier and others to come into her house with a man dressed in woman's clothes, and there conduct themselves with indecency, and collect a crowd, and raise a cry of "bawdy house," by reason whereof the mob threw stones and broke the plaintiff's windows, and damaged and destroyed her furniture, it was held that the defendant was responsible for all the damage sustained by the plaintiff, although he did not himself appear upon the scene, or join in the cry(x).

42 Abuse of authority by governors of colonies.-An officer representing his sovereign in all functions, civil and military, may be made to answer for an abuse of his authority, and for the exercise of arbitrary power, above and beyond the law. An act of authority, lawful in itself if rightly done, may become wholly unlawful and unjustifiable by the harsh, oppressive, and cruel manner in which it is executed; for, where the law authorizes an act to be done, it does not protect unnecessary violence or cruelty in the doing of it(y).

Every governor of a colony is responsible in damages for unlawfully spoiling, plundering, or imprisoning Her Majesty's subjects. But whatever is a justification in the place where the thing is done, may be pleaded as a justification in the place where the cause of action is tried(z); and if the colonial legislature pass an act of indemnity which is assented to by the crown before any action is commenced in this country, such act of indemnity is pleadable in bar to an action in the courts here, although the governor was a necessary party to the passing of the act and was himself interested in it(a). Where a carpenter, who followed a train of artillery, but who was not subject to martial law, brought an action against the Governor of Gibraltar for an assault and battery, and showed that he had been tried by courtmartial, and sentenced to be whipped, and that the governor confirmed the sentence, which was then carried into effect, it was held that the action was maintainable against the governor, by reason of his participation in the unlawful whipping, and the plaintiff recovered 7007. damages(b).

(u) Com. Dig. Action upon the Case, A. Coxe v. Smith, 1 Lev. 119. Fitzjohn v. Mackinder, 9 C. B., N. S. 516; 30 Law J., C. P. 257.

(2) Plunket v. Gilmore, Fortescue, 221.

(y) Sutherland v. Murray, 1 T. R. 538; post, ch. 5.

(z) Mostyn v. Fabrigas, Cowp. 161.

(a) Phillips v. Eyre, L. R., 4 Q. B. 225; 6 Ibid. 1; 38 L. J., Q. B. 113.

43 Abuse of authority on the part of naval and military officers.--An action is not maintainable by a subordinate officer against his superior officer for an act done in the course of discipline, and under powers incident to his position(c); but for a corrupt and malicious abuse of authority a commanding officer is responsible. Every superior officer has a right to imprison his subordinate officer for any military offence, and to bring him to a court-martial; but this gives him no right to act in an arbitrary and oppressive manner, and to inflict a prolonged, harsh, and cruel imprisonment, without bringing the person imprisoned to trial. If an officer has been guilty of a scandalous abuse of a public trust, he will not be allowed to shelter himself under the thin veil of legal forms, nor escape under the cover of a justification, the most technically regular, from the consequences of his wrong-doing(d). A naval or military officer is not responsible for acts done by him in obedience to the commands of his superior officer, or of the government he serves, unless the commands are manifestly illegal. The justification of an officer sued for acts of force and violence may be made to rest upon a subsequent ratification of his acts by his government, as well as upon a precedent authority(e).

Where two vessels were chartered by the government for a naval expedition, and the captains of the vessels were to pay implicit obedience to the orders of the officers commanding the expedition, and one of the vessels sustained damage from the other whilst acting in obedience to orders, it was held that the owner of the vessel doing damage could not be made responsible to the owner of the vessel to which the damage was done, if the damage was the natural result of the execution of the orders given, and was not caused by negligence or want of nautical skill in the execution of the orders(f).

in an

Where commissioners of public works, exercising powers given to them by statute, and acting within their jurisdiction, nevertheless act arbitrary, wanton, or negligent and oppressive manner, and inflict unnecessary injury upon private individuals, they are responsible for their wrong-doing of what might have been rightly done, and cannot protect themselves under cover of their statutory powers from the consequences of their negligence and misconduct(g).

44 Torts committed by British subjects in foreign countries.-Actions may

(c) Johnstone v. Sutton, 1 T. R. 544.

(d) Ld. Mansfield, Wall v. M'Namara, 1 T. R. 536.

(e) Buron v. Denman, 2 Exch. 167; Riggs v. State, 3 Cold. (Tenn.) 85.

(f) Hodgkinson v. Fernie, 2 C. B., N. S. 436.

(g) Leader v. Moxon, 2 W. Bl. 296; 3 Wils. 461; post, ch. 16, s. 1.