Torts - Other - 1849- 1899

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This page lists 99 cases, and was prepared on 28 October 2012.

Holford -v- Bailey [1849] 13 QB 426
1849	Torts - Other	1 Citers

Duke of Athol -v- Torrie (1849) 12 D 328
1849	Torts - Other, Scotland	Casemap 1 Citers

Cobbett -v- Grey [1849] 4 Ex 729
1849	Torts - Other, Prisons	Casemap 1 Citers
	A prisoner complained that he had been falsely imprisoned in a part of a prison in which he could not lawfully be confined.

Embrey -v- Owen (1851) 6 Ex 353
1851 Parke B	Torts - Other	1 Cites 1 Citers
	''It was very ably argued before us by the learned counsel for the plaintiffs that the plaintiffs had a right to the full flow of the water in its natural course and abundance, as an incident to their property in the land through which it flowed; and that any abstraction of the water, however inconsiderable, by another riparian proprietor, and though productive of no actual damage, would be actionable, because it was an injury to a right and, if continued, would be the foundation of a claim of adverse right in that proprietor. We by no means dispute the truth of this proposition, with respect to every description of right. Actual perceptible damage is not indispensable as the foundation of an action; it is sufficient to show the violation of a right, in which case the law will presume damage; injuria sine damno is actionable . . . '

Longmeid -v- Holliday (1851) 6 Ex 761
1851 Parke B	Torts - Other	Casemap 1 Cites 1 Citers
	A defective lamp was sold to a man whose wife was injured by its explosion. The seller of the lamp, against whom the action was brought, was not the manufacturer. Held: "It would be going much too far to say, that so much care is required in the ordinary intercourse of life between one individual and another, that, if a machine not in its nature dangerous, . . but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage accruing by the use of it." The seller had made no fraudulent misstatement.

Shedden -v- Patrick (1852) 14 D 727
1852 Lord Fullerton	Scotland, Litigation Practice, Torts - Other	Casemap 1 Citers
	Pleaded allegations of fraud must be based on clear and specific averments of fact from which an inference of fraud may legitimately be drawn

Horsfall -v- Thomas (1852) 1 H & C 90
1852	Torts - Other	Casemap
	It is a necessary requirement for an action in misrepresentation, that the misrepresentation induced the other party to enter into the contract.

Lumley -v- Gye (1853) 2 E & B 216
1853 Erle J	Contract, Torts - Other	Casemap 1 Cites 1 Citers
	An opera singer (Miss Wagner) and the defendant theatre owner were joint wrongdoers. They had a common design that the opera singer should break her contract with the plaintiff theatre owner, refuse to sing in the plaintiff's theatre and instead sing in the defendant's theatre. The plaintiff's cause of action against the opera singer lay in contract, and the plaintiff's cause of action against the defendant lay in tort. Held: Tthe opera singer and the defendant were joint wrongdoers participating in an unlawful common design. An actionable wrong is committed by a person deliberately inducing a party to a contract to breach it. A person who procures another to commit a wrong incurs liability as an accessory. Erle J: "It is clear that the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong, as in violations of a right to property, whether real or personal, or to personal security: he who procures the wrong is a joint wrongdoer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong complained of. Where a right to the performance of a contract has been violated by a breach thereof, the remedy is upon the contract, against the contracting party; and, if he made to indemnify for such breach, no further recourse is allowed; and, as in a case of the procurement of a breach of contract, the action is for a wrong and cannot be joined with the action on the contract, and as the act itself is not likely to be of frequent occurrence nor easy of proof, therefore the action for this wrong, in respect of other contracts than those of hiring, are not numerous; but still they seem to me sufficient to show that the principle has been recognised." and "He who maliciously procures a damage to another by violation of his right ought to be made to indemnify; and that, whether he procures an actionable wrong or a breach of contract."

Pulsford -v- Richards [1853] EngR 417; (1853) 17 Beav 87; (1853) 51 ER 965
18 Apr 1853	Contract, Torts - Other
	Where a party, by misrepresentation, draws another into a contract, such party may be compelled to make good the representation, if that be possible, but if it be impossible, the person deceived may avoid the contract. The same principle applies, though the party at the time believed the statement to be true, if in the clue discharge of his duty, he ought to have then known otherwise. Third parties, who by false representations induce others to enter into contracts, are estopped from afterwards falsifying their statement, and, if necessary, may be compelled to make them good. But the false statement of one, not a party to the agreement entered into on the faith of it, is not a ground for avoiding it. Misrepresentations may be either by a suppression of the truth or an assertion of what is false ; but to be the ground for avoiding the contract, the representation must be one “dans locum contractiui", or such that it is reasonable to infer that in its absence the party deceived would not have entered into the contract.
	Link[s] omitted

Foxall -v- Barnett [1853] EngR 985; (1853) 2 El & Bl 928; (1853) 118 ER 1014
17 Nov 1853	Torts - Other
	Defendant, by a warrant of commitment on a coroner’s inquisition held without jurisdiction, caused plaintiff to be imprisoned. Plainitiff was bailed, and afterwards, while on bail, procured the inquisition to be quashed. Held that, in an action for such false imprisonment, plaintiff was entitled, under an allegation that he had incurred expense in procuring his discharge from custody, to recover damages for the expense of quashing the inquisition.
	Link[s] omitted

Taylor -v- Nesfield (1854) 3 El & Bl 724; (1854) 118 ER 1312
1854	Torts - Other	1 Citers
	Misuse of position by judge

Regina -v- Pratt (1855) 4 E & B 860
1855 Crompton J, Erle J	Land, Torts - Other	Casemap
	"I take it to be clear law that, if a man use the land over which there is a right of way for any purpose, lawful or unlawful, other than that of passing and repassing, he is a trespasser."

Jeffries -v- Great Western Railway RW. Co. (1856) :5:E and B 802
1856 Lord Campbell	Torts - Other	Casemap 1 Citers
	"I am of opinion that the law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him having no title in himself is a wrong-doer, and cannot defend himself by showing that there was title in some third person, for against a wrong-doer possession is title."

Tozer -v- Child (1857) 7 El & Bl 377; (1857) 119 ER 1286
1857	Elections, Torts - Other	Casemap 1 Citers

Wootton -v- Dawkins [1857] EngR 408; (1857) 2 CB NS 412; (1857) 140 ER 477
18 Apr 1857	Personal Injury, Torts - Other
	The plaintiff entered the defendant’s garden at night, and without his permission, to search for a stray fowl, and, whilst looking closely into some bushes, he came in contact with a wire, which caused something to explode with a loud noise, knocking him down and slightly injuring his face and eyes: Held, that the defendant was not liable for this injuryt common law, nor, in the absence of evidence that it was caused by a spring-gun or other engine “calculated to inflict grievous bodily harm,” under the statute 7 & 8 G. 4, c. 18, s. I.
	Link[s] omitted

Tear -v- Freebody (1858) 4 CBNS 228
1858	Torts - Other	Casemap 1 Citers
	The surveyor to a parish was found to have taken possession of the plaintiff's materials so as to obtain an unfounded lien over them.

Regina -v- Inhabitants of High Halden (1859) 1 F & F 678; 26 Digest (Repl) 383
1859 Blacknurn J	Negligence, Torts - Other, Road Traffic	Casemap 1 Citers
	The court considered the liability of the parish for injury arising from a failure to repair the road. The road was "an old soft road formed of Weald of Kent clay, and had never been repaired with hard substances". The evidence was that in wet weather and in the winter months it was "very bad, soft and in an impassable state" with deep ruts which "formed in fact the watercourses of the road". Blackburn J directed the jury that the parish was not bound to make the road hard ". . . but they were bound in some way, by stone or other hard substances, if necessary, to put the road in such repair so as to be reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year." A guilty verdict was returned.

Scholefield -v- Temper (1859) 4 De G & J 429; (1859) Johns 155; [1859] EngR 773
1859 Lord Campbell LC	Torts - Other, Contract	Casemap 1 Citers
	A surety had been released on the strength of a fraud practised by the debtor. Held: The creditor's rights against the surety were restored. Not only is a person who has committed the fraud precluded from deriving any benefit under it, but an innocent person is so likewise, unless there has been some consideration moving from himself. Lord Campbell LC said: "I consider it to be an established principle that a person cannot avail himself of what has been obtained by the fraud of another, unless he not only is innocent of the fraud, but has given some valuable consideration."

Grinham -v- Willey (1859) 4 H & N 496; (1859) 28 LJ 242; (1859) 33 LTOS 10; (1859) 23 JP 280; [1859] EngR 475; (1859) 157 ER 934
1859 Pollock CB	Torts - Other	Casemap 1 Citers
	A felony crime was reported to the police by the defendant. The police officer attended, and on the information supplied arrested the plaintiff who was taken to the police station and charged, signing the charge sheet. Held: The defendant was not liable to the plaintiff in an action for trespass. Pollock CB said: in the context of an arrest of a claimant by a constable following a complaint by a defendant, the defendant "ought not to be held responsible in trespass [to the claimant], unless he directly and immediately causes the imprisonment."
	Link[s] omitted

Rogers -v- Rajendro Dutt (1860) 13 Moo PC 209
1860 PC Dr Lushington	Torts - Other	Casemap 1 Citers
	The plaintiff's claim failed because the conduct complained of had not been wrongful. Dr Lushington, giving the judgment of the Board, said: "For if the act which he [the defendant] did was in itself wrongful, as against the Plaintiffs, and produced damage to them, they must have the same remedy by action against the doer, whether the act was his own, spontaneous and unauthorized, or whether it were done by the order of the superior power". The plaintiff had, at trial, proved damages of Rs 6624.

Gilding -v- Eyre And Another [1861] EngR 793; (1861) 10 CB NS 592; (1861) 142 ER 584
8 Jul 1861 CCP Williams, Byles and Keating JJ	Torts - Other	Casemap 1 Citers
	After getting judgment against the plaintiff for a debt, and substantial repayment of it by him, the defendant issued a writ of execution for the full amount of the debt, in consequence of which the plaintiff was arrested by the sheriff's officers. The plaintiff brought proceedings to recover the amount which he had over-paid on the basis of malicious arrest. Held. The defendant's argument that the claim was not sustainable because the original proceedings had not terminated in the plaintiff's favour was rejected. The court distinguished cases of malicious prosecution, emphasising that the proceedings had, subject to execution, actually terminated, and that the defendant "by means of a regular writ of execution extorted money which he knew had already been paid and was no longer due on the judgment."
	Link[s] omitted

Foster -v- Green (1862) 7 H & N 881
1862	Torts - Other	Casemap 1 Citers
	Cash may not be subject to a claim for conversion.

Scott -v- Wakem (1862) 3 F and F 328
1862 Baron Bramwell	Torts - Other, Health	Casemap
	If it could be shown to be necessary to protect him from harming himself, the common law gave power for a man to be detained.

Felthouse -v- Bindley [1862] EWHC QB J35
8 Jul 1862 QBD Willes J, Byles J, Keating J	Torts - Other
	(Court of Common Pleas)
	Link[s] omitted

Buckley -v- Gross (1863) 3B & S 556
1863 Blackburn J, Cockburn CJ, Crompton J	Police, Torts - Other	Casemap 1 Citers
	The court had to decide the ownership of of tallow which had been kept at warehouses. In a fire; it melted and flowed down the sewers into the river where part of it was collected by a man with no right to it; and he sold it to the claimant. The police stopped the claimant and took him before a magistrate. The magistrate discharged the claimant. Under the section the magistrate had power, where the real owner was known, to make an order for the detention and subsequent delivery of goods "charged to be stolen or fraudulently obtained" to the rightful owner, and where the owner was unknown to order delivery to the receiver of the Metropolitan Police Force who was authorised, in the absence of a claim made by the real owner within 12 months, to sell them. Pursuant to these statutory provisions the magistrate made an order for the detention of the goods. The tallow became a nuisance and the police sold the tallow to the defendant before the 12 month period expired. The claimant then sued the defendant to recover it. The court directed a verdict for the defendant with leave to the claimant to move to enter judgment if the Court of Queen's Bench should be of the opinion that he could maintain his action. The court held that he could not. Cockburn CJ said: "Under these circumstances it appears to me plain that, by virtue of the authority vested in him by the statute, an order was made by the justice, within the scope of his authority and jurisdiction, with respect to dealing with this tallow, and whether the police were or were not warranted in selling it within twelve months is immaterial. The plaintiff, who had nothing but bare naked possession (which would have been sufficient against a wrong doer) had it taken out of him by virtue of this enactment. As against the plaintiff, therefore, the defendant derives title, not from a wrong doer, but from a person selling under authority of the justice, whether rightly or not is of no consequence. I wholly disagree with the doctrine of the plaintiff's counsel, that if the policeman did anything ultra vires, that would revest the possession of this tallow in the plaintiff. He had no title beyond what mere possession gave, and, so soon as the goods were taken from him by force of law, there was a break in the chain of that possession." Crompton J said: "This action must be founded on possession; here the possession was divested out of the plaintiff, and he cannot revert to a right of property to re-establish it. I agree with my Lord Chief Justice that, where possession is lawfully divested out of a man, and the property is ultimately converted by a person who does not claim through an original wrong doer, the party whose possession was so divested had no property at the time of the conversion. Here, in my mind, the plaintiff's possession was gone. The goods were properly taken from him ...." Blackburn J: "I do not wish to question the doctrine laid down in several cases, that possession of personal property is sufficient title against a wrong doer; nor that it is no answer to the plaintiff in such a case to say that there is a third person who could lawfully take the chattel from him; and I do not know that it makes any difference whether the goods had been feloniously taken or not. But, assuming that to be the law, the plaintiff has not brought himself within it. ... I draw the inference of fact that the justice was satisfied that this tallow had come from the warehouses, and I hold that, as matter of law, the police were bound to keep it for the true owner, because they had ascertained that there was a true owner, and who he was. Their possession was the possession of the true owner and not of the wrong doer, whose possession was terminated by their taking possession. It is therefore not necessary to consider whether the sale of the tallow to the defendants by the police was right or wrong. If wrong, the true owner may complain against them; if not, no one else can, but at all events, not the plaintiff, who was himself a wrong doer."
	Metropolitan Police Act 1839 29

Symm -v- Fraser (1863) 3 F and F 859
1863 Cockburn CJ	Health, Torts - Other	Casemap 1 Citers
	The common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary.

Dawson -v- Vansandau (1863) 11 WR 516
1863 QBD Cockburn CJ, Crompton and Blackburn JJ	Torts - Other	Casemap 1 Citers
	The plaintiff, Dawson, a solicitor, had been charged by the defendant with conspiracy to defraud, in the form of collusion with a client and others to defraud the client’s creditors. When the charge was first laid, the only evidence available to the defendant was that of an accomplice which would require corroboration. Such other evidence only became available after he had been charged. Dawson was subsequently acquitted. The trial judge directed the jury that there was no evidence of reasonable and probable cause because the only evidence available at the time of charge was the uncorroborated evidence of the accomplice and the other material which supported the commission of the offence had only become available after Dawson was taken into custody. Held: Evidence sufficient to make out a prima facie case was sufficient to establish reasonable and probable cause even if it was not sufficient evidence to convict. The direction was wrong: "An accomplice, or a tainted witness, may give evidence sufficient to make out a prima facie case, and warrant the preferring of a criminal charge, though it might not be sufficient evidence upon which to convict."

Parton v Hill (1864) 10 LT 414
1864 Blackburn J	Torts - Other	Casemap 1 Citers
	The plaintiff asserted the malicious issue of an attachment of a debt owing from a third person to the plaintiff, without reasonable or probable cause. Held. The claim failed.

Leather Cloth Co Ltd -v- American Leather Cloth Co Ltd (1865) 11 HL Cas 523 HL(E)
1865 HL Lord Kingsdown	Intellectual Property, Torts - Other	Casemap 1 Citers
	"Nobody doubts that a trader may be guilty of such misrepresentations with regard to his goods, as to amount to a fraud upon the public, and to disentitle him on that ground, as against a rival trader, to the relief in a court of equity which he might otherwise claim. What would constitute a misrepresentation of this description, may in particular cases be a reasonable subject of doubt, and it was in the present case the ground of the difference between the two judgments under consideration. The general rule seems to be that the mis-statement of any material fact calculated to deceive the public, will be sufficient for this purpose."

Scott -v- The London and St Katherine Docks Co (1865) 3 H & C 596
1865 CEC Erle CJ	Torts - Other	1 Citers
	The maxim res ipsa loquitur applies only where circumstances are established which afford reasonable evidence, in the absence of explanation by the defenders, that the accident arose from their negligence. The doctrine of res ipsa loquitur is that: "There must be reasonable evidence of negligence, but, where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management of the machinery use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." As to the burden of proof: “So in an appropriate case the plaintiff establishes a prima facie case by relying upon the fact of the accident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintiff will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident. Loosely speaking this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case.” "But where the thing is shown to be under the management of the defendant or his servants, and the accident as such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident arose from want of care. . "

Ball -v- Axten (1866) 4 F & F 1019; 176 ER 890
1866 Lord Cockburn CJ	Torts - Other	Casemap 1 Citers
	A defendant who was aiming to hit a farmer's dog and by mistake hit the farmer's wife who was trying to protect it was liable in assault.

Ball Et Uxor -v- Axten [1866] EngR 2; (1866) 4 F & F 1019; (1866) 176 ER 890
1866	Torts - Other
	Link[s] omitted

Dawkins -v- Lord Rokeby [1866] EngR 5; (1866) 4 F & F 806; (1866) 176 ER 800
1866	Police, Torts - Other	Casemap 1 Citers
	[ Commonlii ]

Perionowsky -v- Freeman And Another [1866] EngR 13; (1866) 4 F & F 978; (1866) 176 ER 873
1866	Torts - Other
	[ Commonlii ]

Stewart -v- Beaumont [1866] EngR 40; (1866) 4 F & F 1034; (1866) B)
1866	Torts - Other
	Link[s] omitted

The Glamotgansgire Iron And Coal Companu -v- Irvine [1866] EngR 45; (1866) 4 F & F 947; (1866) 176 ER 861
1866	Company, Torts - Other
	Link[s] omitted

Woodhouse -v- Whiteley [1866] EngR 49; (1866) 4 F & F 1086; (1866) A)
1866	Torts - Other
	Link[s] omitted

Aldworth -v- Stewart [1866] EngR 1; (1866) 4 F & F 957; (1866) 176 ER 865
1866	Torts - Other
	[ Commonlii ]

In re Gomersall (1875) 1 ChD 137
1867 Brett J	Torts - Other	Casemap 1 Citers
	Bills with a face value of £1,700 were purchased for £200. Held: Proof that the goods were purchased at a much lower price than the ordinary trade price is not absolute proof of bad faith but is very strong evidence of fraudulent knowledge.

Harrop -v- Hirst (1868) LR 4 Ex 43
1868	Torts - Other	Casemap 1 Citers
	The claim was for diverting water. Held: An action for diverting water is maintainable without proof of any actual personal damage, inasmuch as the act of the defendant might, if repeated often enough without interruption, furnish evidence in derogation of the plaintiff's legal rights. If you have an infringement of a legal right there is a right of action without actual damage being proved.

Lister -v- Perryman (1870) LR 4 HL 521; (1870) 39 LJEx 177
1870 HL Lord Chelmsford	Torts - Other	Casemap 1 Citers
	In a case alleging malicious prosecution, the existence of reasonable and probable cause is a question for the judge and not for the jury. Lord Chelmsford said: "[T]here can be no doubt since the case of Panton v Williams, in which the question was solemnly decided in the Exchequer Chamber, that what is reasonable and probable cause in an action for malicious prosecution, or for false imprisonment, is to be determined by the Judge . . No definite rule can be laid down for the exercise of the Judge's judgment. Each case must depend upon its own circumstances, and the result is a conclusion drawn by each Judge for himself, whether the facts found by the jury, in his opinion, constitute a defence to the action."

Austin -v- Dowling (1870) LR 5 CP 534
1870	Torts - Other
	The defendant's wife falsely accused the plaintiff of a crime. He was arrested and taken to the police station where the police said they would not detain the plaintiff unless the defendant signed the charge sheet.

Johnson -v- Emerson (1871) Law Rep 6 Ex 329
1871 Cleasby, B	Torts - Other	Casemap 1 Citers
	Cleasby B recognised that the tort of malicious prosecution could be committed in the malicious presentation of a bankruptcy petition.

Fowler -v- Hollins (1872) LR 7 QB 616
1872 Cleasby J	Torts - Other	Casemap 1 Citers
	The plaintiff claimed in conversion of bales of cotton bought in good faith through a broker in Liverpool. Held: The purchasers were strictly liable. Cleasby J: "the liability under it is founded upon what has been regarded as a salutary rule for the protection of property, namely, that persons deal with the property in chattels or exercise acts of ownership over them at their peril."

Richardson -v- Silvester (1873) LR IX QB 34
1873 Blackburn J, Quain J, Archibald J	Torts - Other	Casemap 1 Citers
	An advertisement was placed in the press offering a farm house to let when the advertiser had no authority to let it. Held: The action gave rise to an action in deceit founded on the implied representation that he did have authority. Blackburn J: "I think, in the present case, on the face of the particulars, especially when amended as proposed, a cause of action was disclosed. It must be taken upon the statement of the plaintiff that the advertisement was issued some indirect motive, and that the farm was not to be let. This amounts to a false representation. It was a false statement knowingly made and published in order to be read by persons who would be likely to be tenants of farms, and the natural consequence would be that the person who was desirous of becoming a tenant would, upon reading the advertisement, incur expense in looking at the farm. This, it is alleged, is what the plaintiff did. It must also be taken that this was a representation made to the plaintiff." Quain J: "I think the particulars disclose a cause of action, which ought to have been heard on the merits. They in effect allege the plaintiff falsely, and well knowing he had no authority to sell the farm, represented that he had, and published an advertisement to that effect. It is quite clear that all persons who were likely to take a farm, or might be reasonably contemplating taking a farm, acting upon that advertisement, and incurring expense in consequence of that false representation, have a remedy by action for deceit. It appears to me that the particulars and the amendment do disclose a cause of action for deceit; and under such circumstances I think the judge ought to have heard the case, and the case should be sent back to him to be further heard."

Ellis -v- The Loftus Iron Company (1874) LR 10 CP 10
1874 Lord Coleridge CJ	Torts - Other	Casemap 1 Citers
	Lord Coleridge CJ said: "It is clear that, in determining the question of trespass or no trespass, the court cannot measure the amount of the alleged trespass; if the defendant places a part of his foot on the plaintiff's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it."

Ellis -v- Lotus Iron Co (1874) LR 10 CP 10
1874 Lord Coleridge CJ	Torts - Other, Nuisance	Casemap 1 Citers
	The pasturing of cattle must be one of the most ordinary uses of land, and strict liability for damage done by cattle enclosed on one man's land if they escape thence into the land of another, is one of the most ancient propositions of our law. It is in fact a case of pure trespass to property, and thus constitutes a wrong without any question of negligence.

Cattle -v- The Stockton Waterworks (1875) LR 10 QB 453
1875 Blackburn J	Land, Torts - Other	Casemap 1 Citers
	The owner of land had contracted with the plaintiff for him to build a tunnel under a road, along which there was a defective water pipe. The pipe leaked, and when the contractor started to dig, the water that had accumulated under the road flowed out, obstructing the works. This either reduced the contractor's profit or caused him to make a loss, and he claimed in Rylands v Fletcher. Held. The contractor had no title to claim. Blackburn J said: "In the present case the objection is technical and against the merits, and we should be glad to avoid giving it effect. But if we did so, we should establish an authority for saying that, in such a case as that of Fletcher v. Rylands … the defendant would be liable, not only to an action by the owner of the drowned mine, and by such of his workmen as had their tools or clothes destroyed, but also to an action by every workman and person employed in the mine, who in consequence of its stoppage made less wages than he would otherwise have done. And many similar cases to which this would apply might be suggested. It may be said that it is just that all such persons should have compensation for such a loss, and that, if the law does not give them redress, it is imperfect. Perhaps it may be so. But, as was pointed out by Coleridge, J., in Lumley v. Gye . . Courts of justice should not "allow themselves, in the 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." In this we quite agree."

Hollins -v- Fowler (1875) LR 7 HL 757
1875 HL Blackburn J, Brett J	Torts - Other, Agency	Casemap 1 Cites 1 Citers
	One who deals with goods at the request of the person who has the actual custody of them, in the bona fide belief that the custodier is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the person in possession if he was a finder of the goods or intrusted with their custody. Thus a warehouseman with whom goods had been deposited is guilty of no conversion by keeping them or restoring them to the person who deposited them with him, though that person turns out to have had no authority from the true owner. The same principle applies to persons "acting in a subsidiary character, like that of a person who has the goods of a person employing him to carry them, or a caretaker, such as a wharfinger". Blackburn J (Advising the House): "If, as is quite possible, the changes in the course of business since the principles of law were established make them cause great hardships or inconvenience, it is the province of the Legislature to alter the law."

Dugdale -v- Lovering [1875] LR 10 CP 196
1875	Torts - Other	1 Citers
	The court adopted the position proposed by Mr Cave, for the Plaintiff: "It is a general principle of law when an act is done by one person at the request of another which act is not in itself manifestly tortious to the knowledge of the person doing it, and such act turns out to be injurious to the rights of a third party, the person doing it is entitled to an indemnity from him who requested that it should be done".

Townsend -v- Haworth (1879) 48 LJ Ch 770
1875 CA Sir George Jessel MR, Mellish LJ	Intellectual Property, Torts - Other	Casemap 1 Citers
	The defendant sold chemicals to be used by the purchaser in infringement of patent and agreed to indemnify the purchaser if the patent should prove to be valid. Held: Only the person who actually manufactures or sells infringing goods is the infringer except where the direct infringer is the "mere cat's-paw" of someone else. Mellish LJ said: "Selling materials for the purpose of infringing a patent to the man who is going to infringe it, even although the party who sells it knows that he is going to infringe it and indemnifies him, does not by itself make the person who so sells an infringer. He must be a party with the man who so infringes and actually infringe."

Brasyer -v- Maclean (1875) LR 6 PC 398
1875 PC	Torts - Other	Casemap 1 Citers
	(New South Wales) A false return was made by a sheriff which led to the arrest of the plaintiff and his attachment for 24 hours. The court had non-suited the plaintiff since no malice had been shown. Held: The appeal succeeded. It was "impossible to say that no damage was sustained by the Plaintiff in consequence of that arrest." The sheriff was guilty of a misfeasance and the damage resulting from the misfeasance was "sufficient damage to enable the Plaintiff to maintain an action against the sheriff for that misfeasance".

Weir -v- Bell (1878) 3 Exch D 238
1878 Bramwell LJ	Contract, Torts - Other	Casemap 1 Citers
	"I think that every person who authorizes another to act for him in the making of any contract, undertakes for the absence of fraud in that person in the execution of the authority given, as much as he undertakes for its absence in himself when he makes the contract".

Hicks -v- Faulkner [1878] 8 QBD 167
1878 Judge Hawkins	Police, Torts - Other	Casemap 1 Citers
	Before charging a prisoner, a police officer must have "an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser to the conclusion that the person was probably guilty of the crime imputed."

Mitchell -v- Henry (1880) 15 Ch D 181
1880	Intellectual Property, Torts - Other	Casemap 1 Citers
	Passing off actions remained unaffected by the passing of the 1875 Act.
	Trade-Marks Registration Act 1875

Danby v Beardsley (1880) 43 LT 603
1880	Torts - Other	Casemap 1 Citers
	Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.

Livingstone -v- Rawyards Coal Co (1880) 5 App Cas 25
1880 HL Lord Blackburne	Damages, Torts - Other	Casemap 1 Citers
	User damages were awarded for the unauthorised removal of coal from beneath the appellant's land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the houses on the surface. If damages are to be awarded at all, the aim must be to put the injured parties into the same position as far as money will allow as if they had not sustained the wrong for which they are being compensated. Lord Blackburne said: "I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. That must be qualified by a great many things which may arise--such, for instance, as by the consideration whether the damage has been maliciously done, or whether it has been done with full knowledge that the person doing it was doing wrong. There could be no doubt that there you would say that everything would be taken into view that would go most against the wilful wrongdoer--many things which you would properly allow in favour of an innocent mistaken trespasser would be disallowed as against a wilful and intentional trespasser on the ground that he must not qualify his own wrong, and various things of that sort."

Burgess -v- Northwich Local Board (1880) 6 QBD 264; [1880] LJQB 219; [1880] 44 LT 154; [1880] JP 256; [1880] 26 Digest (Repl) 352
1880 Lindley J	Land, Torts - Other, Local Government	Casemap 1 Cites 1 Citers
	In the context of the duty of a local parish to maintain a highway: "An occasional flooding, even if it temporarily renders a highway impassable, is not sufficient to sustain an indictment for non-repair." Counsel accepted that: "There is no authority whatever for indicting a parish in respect of a road being impassable by reason of water, unless of course the water was a consequence of neglect to cleanse ditches or some such omission of duty."

Brownlie -v- Campbell (1880) 5 App Cas 925
1880 HL Lord Blackburn	Contract, Torts - Other	Casemap 1 Citers
	Silence, where there is a duty to speak, may amount to a misrepresentation: "where there is a duty or an obligation to speak, and a man in breach of that duty or obligation holds his tongue and does not speak, and does not say the thing he was bound to say, if that was done with the intention of inducing the other party to act upon the belief that the reason why he did not speak was because he had nothing to say, I should be inclined myself to hold that that was fraud also." Lord Blackburn said: "I further agree in this; that when a statement or representation has been made in the bona fide belief that it is true, and the party who has made it afterwards comes to find out it is untrue, and discovers what he should have said, he can no longer honestly keep up that silence on the subject after that has come to his knowledge, thereby allowing the other party to go on, and still more, inducing him to go on, upon a statement that was honestly made at the time when it was made, but which he has not now retracted when he has become aware that it can be no longer honestly persevered in. That would be fraud too, I should say, that at present advised. And I go on further still to say, what is perhaps not quite so clear, but certainly it is my opinion, where there is a duty or obligation to speak, and a man in breach of that duty or obligation will hold his tongue and will not speak, and does not say the thing he was bound to say, if that was done with the intention of inducing the other party to act upon the belief that the reason why he did not speak was that he had nothing to say, I should be inclined myself to hold that that was fraud also."

Arkwright -v- Newbold (1881) 17 ChD 301
1881 CA Cotton LJ	Damages, Torts - Other	Casemap 1 Citers
	Cotton LJ discussed the tort of deceit and said: "In my opinion, it would not be right in an action of deceit to give a plaintiff relief on the ground that a particular statement, according to the construction put on it by the court, is false, when the plaintiff does not venture to swear that he understood the statement in the sense which the court puts on it."

National Mercantile Bank Ltd -v- Rymill [1881] 44 LTNS 767
1881 CA Bramwell LJ, Brett and Cotton LJJ	Agency, Torts - Other	Casemap 1 Citers
	The plaintiff was the owner of horses the subject of a bill of sale. The grantor of the bill sold the horses privately in the defendant's auction yard and following the sale, on the grantor's instructions, the auctioneer delivered the horses to the buyer. It was held that there had been no conversion. Held: The auctioneer did not claim to transfer the title and did not purport to sell; all the dominion he exercised over the chattels was to redeliver them to the person to whom the man from whom he had received them had told him to redeliver them. On the evidence there had been no sale by the auctioneer. A bailee escapes liability for conversion, not only where he merely redelivers to his bailor, but where he delivers at the bailor's directions to a third party without knowledge of any adverse claim, though with knowledge that such delivery is in pursuance of a sale or other disposition.

Regina -v- Coney (1882) 8 QBD 534
1882 Cave J, Stephen J, Hawkins J, Lord Coleridge CJ	Crime, Torts - Other	Casemap 1 Citers
	A public prize-fight was unlawful. Held: Cave J: "The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial." Hawkins J said: "The cases in which it has been held that persons may lawfully engage in friendly encounters not calculated to produce real injury to or to rouse angry passions in either, do not in the least militate against the view I have expressed; for such encounters are neither breaches of the peace nor are they calculated to be productive thereof, but if, under colour of a friendly encounter, the parties enter upon it with, or in the course of it form, the intention to conquer each other by violence calculated to produce mischief, regardless whether hurt may be occasioned or not, as, for instance, if two men, pretending to engage in an amicable spar with gloves, really have for their object the intention to beat each other until one of them be exhausted and subdued by force, and so engage in a conflict likely to end in a breach of the peace, each is liable to be prosecuted for assault." and "whatever may be the effect of a consent in a suit between party and party, it is not in the power of any man to give an effectual consent to that which amounts to, or has a direct tendency to create, a breach of the peace; so as to bar a criminal prosecution. In other words, though a man may by consent debar himself from his right to maintain a civil action, he cannot thereby defeat proceedings instituted by the Crown in the interests of the public for the maintenance of good order; . . . He may compromise his own civil rights, but he cannot compromise the public interests." Lord Coleridge CJ: "I conceive it to be established, beyond the power of any argument however ingenious to raise a doubt, that as the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize-fight give consent to one another to commit that which the law has repeatedly held to be a breach of the peace. An individual cannot by such consent destroy the right of the Crown to protect the public and keep the peace." Stephen J: "The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults. In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances."

Quartz Hill Consolidated Gold Mining Co -v- Eyre (1883) 11 QBD 674
1883 CA Bowen LJ, Brett MR	Torts - Other, Insolvency	Casemap 1 Cites 1 Citers
	The court considered whether an action lay without proof of special damage for maliciously presenting a winding up petition. Held: There was. Though there was no general cause of action for maliciously bringing civil proceedings without reasonable and probable cause, an action for malicious prosecution could, however, be brought in specific cases. The absence of any reasonable cause or foundation of suspicion may be evidence of malice on the part of a prosecutor. Brett MR said: "It seems to me that an action can be maintained for maliciously procuring an adjudication under the Bankruptcy Act 1869, because by the petition, which is the first process, the credit of the person against whom it is presented is injured before he can shew that the accusation made against him is false; he is injured in his fair fame, even although he does not suffer a pecuniary loss . . he is openly charged with insolvency before he can defend himself. It is not like an action charging a merchant with fraud, where the evil done by bringing the action is remedied at the same time that the mischief is published, namely, at the trial. The present case, therefore, is reduced to this question, namely, is a petition to wind up a company more like an action charging fraud or more like a bankruptcy petition? In my opinion it is more like a bankruptcy petition, and the very touchstone of this point is that the petition to wind-up is by force of law made public before the company can defend itself against the imputations made against it; for the petitioner is bound to publicly advertise the petition seven days before it is to be heard and adjudicated upon." Bowen LJ said that: "the very institution of [insolvency] proceedings" "strike home at a man's credit". An action for malicious prosecution was available, but "No mere bringing of an action, although it is brought maliciously and without reasonable or probable cause, will give rise to an action for malicious prosecution. In no action, at all events in none of the ordinary kind, not even in those based on fraud where there are scandalous allegations in the pleadings, is damage to a man's fair fame the necessary and natural consequence of bringing the action." As to the costs incurred in defending a civil action, he said: "The bringing of an ordinary action does not as a natural or necessary consequence involve any injury to a man's property, for this reason, that the only costs which the law recognises, and for which it will compensate him, are the costs properly incurred in the action itself. For those the successful defendant will have been already compensated, so far as the law chooses to compensate him. If the judge refuses to give him costs, it is because he does not deserve them: if he deserves them, he will get them in the original action: if he does not deserve them, he ought not to get them in a subsequent action. Therefore the broad cannon is true that in the present day, and according to the present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution."

Arbroath -v- North Eastern Railway (1883) II QBD 440
1883	Evidence, Torts - Other	Casemap 1 Citers
	In a case alleging malicious prosecution, the burden of proving absence of reasonable and probable cause is on the Plaintiff, who thus takes on the notoriously difficult task of proving a negative

Wandsworth Board of Works -v- United Telephone Co (1884) 13 QBD 904
1884 CA	Land, Torts - Other	Casemap 1 Citers
	A land-owner had the right to cut a wire wrongfully placed over his property.

Edgington -v- Fitzmaurice (1885) 29 Ch D 459
1885 CA Cotton, Bowen, Fry LJJ	Contract, Torts - Other	1 Citers
	The directors of a company issued a prospectus falsely stating that the issue was to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off pressing liabilities. The company became insolvent. The plaintiff was also mistaken in thinking that the bond would be secured on the company's assets, but this mistake was not the fault of the defendant. Held: The directors were liable in deceit. A misrepresentation need not have been the only matter upon which a representee relied for sufficient reliance to be demonstrated. A misstatement of fact could be actionable at the suit of the plaintiffs. Fry LJ said: "The prospectus was intended to influence the mind of the reader. Then this question has been raised: the Plaintiff admits that he was induced to make the advance not merely by this false statement, but by the belief that the debentures would give him a charge on the company's property, and it is admitted that this was a mistake of the Plaintiff. Therefore it is said that the Plaintiff was the author of his own injury. It is quite true that the Plaintiff was influenced by his own mistake, but that does not benefit the Defendant's case. The Plaintiff says: I had two inducements, one my own mistake, the other the false statement of the Defendants. The two together induced me to advance the money. But in my opinion if the false statement of fact actually influenced the Plaintiff, the Defendants are liable, even though the Plaintiff may have been also influenced by other motives. I think, therefore, the Defendants must be held liable." A statement of a man's intentions may be a statement of fact. Bowen LJ said: "This is an action for deceit, in which the Plaintiff complains that he was induced to take certain debentures by the misrepresentations of the Defendants, and that he sustained damage thereby…In order to sustain his action he must first prove that there was a statement as to facts which was false; and secondly, that it was false to the knowledge of the Defendants, or that they made it not caring whether it was true or false. For it is immaterial whether they made the statement knowing it to be untrue, or recklessly, without caring whether it was true or not, because to make a statement recklessly for the purposes of influencing another person is dishonest. It is also clear that it is wholly immaterial with what object the lie is told. ... But, lastly, when you have proved that the statement was false, you must further shew that the plaintiff has acted upon it and has sustained damage by so doing: you must shew that the statement was either the sole cause of the plaintiff's act, or materially contributed to his so acting." and "there must be a misstatement of an existing fact: but the state of a man's mind is as much a fact as the state of his digestion" and "The real question is, what was the state of the plaintiff’s mind, and if his mind was disturbed by the misstatement of the defendants, and such disturbance was in part the cause of what he did, the mere fact of his also making a mistake himself could make no difference. It resolves itself into a mere question of fact." Cotton LJ said that in a case involving misrepresentation: "It is true that if he had not supposed he would have a charge he would not have taken the debentures; but if he also relied on the misstatement in the prospectus, his loss none the less resulted from that misstatement. It is not necessary to show that the misstatement was the sole cause of his acting as he did. If he acted on that misstatement, though he was also influenced by an erroneous supposition, the defendants will still be liable."

Smith -v- Land and House Property Corporation (1885) LR 28 Ch D 7
1885 CA Bowen LJ	Contract, Torts - Other	Casemap 1 Citers
	Bowen LJ said: "if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of material fact, for he impliedly states that he knows facts which justify his opinion".

Osborne -v- Milman (1886) 17 QBD 514
1886	Prisons, Torts - Other	Casemap 1 Citers
	The plaintiff sought damages, saying that though a prisoner he had been further unlawfully confined within the prison.

Hope -v- Evered (1886) 17 QBD 338
1886	Torts - Other, Police	Casemap 1 Citers
	It is an actionable wrong to procure the issue of a search warrant without reasonable cause and with malice.

Blackburn, Low & Co -v- Vigors (1886) 17 QBD 553
1886 CA Lord Esher MR, Lindley LJ,	Agency, Insurance, Torts - Other	Casemap 1 Cites 1 Citers
	Lord Esher MR: "This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance of the condition the assured cannot enforce the contract." Lindley LJ: "It is a condition of the contract that there is no misrepresentation or concealment either by the assured or by anyone who ought as a matter of business and fair dealing to have stated or disclosed the facts to him or to the underwriter for him." Lord Halsbury LC warned against "the somewhat vague use of the word 'agent'" which, he said, "leads to confusion" in insurance cases.

Turner -v- Hockey (1887) 56 LJQB 301
1887	Torts - Other	Casemap 1 Citers
	The owner of a cow gave a bill of sale over it (and others) but then asked the defendant auctioneer to sell it. He did not inform the auctioneer of the bill of sale. Held: An auctioneer who unknowingly but in the ordinary course of business sells the goods of one person having been told they are the goods of another, and pays the proceeds of sale to that other, is not guilty of conversion of the goods. The original purchaser was not able to pursue an action against the auctioneer.

MacPherson -v- Scottish Rights of Way and Recreation Society Ltd (1887) 13 App Cas 744
1887	Scotland, Torts - Other	Casemap 1 Citers

Peek -v- Derry (1887) 37 ChD 541; [1887] 57 LJ Ch 347; [1887] 59 LT 78; [1887] 9 Digest (Rep 1) 127
1887 CA Cotton LJ, Sir James Hannen P	Torts - Other	Casemap 1 Citers
	The court considered an action for damages for deceit: "As I understand the law, it is not necessary that the mis-statement should be the motive, in the sense of the only motive, the only inducement of a party who has acted to his prejudice so to act. It is quite sufficient if the statement is a material inducement to the party to act upon it." The question of damages is how much worse off is the plaintiff than if he had not entered into the transaction. If he had not done so he would have had the money in his pocket.

Mogul Steamship Company Limited -v- McGregor Gow & Co (1888) 20 QBD 544
1888 Lord Coleridge CJ	Torts - Other, Contract	Casemap 1 Citers
	Ship owners formed themselves into an association to protect their trading interests which then caused damage to rival ship owners. Held: There was no unlawful element in what they were then doing or planning to do. There was no predominant purpose to injure so that the defendants were not liable whether for conspiracy to injure or conspiracy to injure by unlawful means. The court distinguished between a criminal conspiracy which was indictable on proof of the conspiracy, without any acts done in furtherance of it or damage caused, on the one hand, and a civil conspiracy where "it is the damage which results from the unlawful combination itself with which the civil action is concerned" and "No man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction, and molestation are forbidden; so is the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it." and "And in this case it is clear that if the object were unlawful, or if the object were lawful but the means employed to effect it were unlawful, and if there were a combination either to effect the unlawful object or to use the unlawful means, then the combination was unlawful, then those who formed it were misdemeanants and a person injured by their misdemeanour has an action in respect of his injury."

The Queen -v- D'Eyncourt (1888) 21 QBD 109
1888 Wills J	Police, Torts - Other, Magistrates	1 Citers
	£108 was seized by plolice as money obtained by false pretences, but the charges were confined to £8 alone. The question arose whether the magistrate had jurisdiction under that Act to direct the delivery of goods which were seized by the police but were not the subject of any charge to the person (a Mary Ryan) from whom they were seized. The magistrate had directed that the balance of £100 be delivered up to her. Held: The court quashed the decision. The Act conferred no jurisdiction to make any order save in respect of goods the subject of a charge. Wills J "As to £8 odd, the defendant appears to have admitted that the sums of which it consisted were property to be returned to the [identified] persons from whom she concedes that she had received them. As to the rest of the sum [of £100 odd] now in the hands of the police authorities, it seems clear, upon the facts stated to us, that it ought to be given to Mary Ryan: and it is clear that the possession she once had would give her the right to recover the money from anyone who could not show a better title. This would be so, even if the money had been obtained by false pretences from persons who with knowledge of the facts advisedly abstained from making any claim or if nothing could be shown as to whom was really entitled. The possessory right may perhaps go further. It is not necessary to express any opinion upon this point. We have no reason to suppose that the police authorities will not do what is right in the matter."
	Metropolitan Police Act 1839 29

Ex parte Lewis (The Trafalgar Square Case) (1888) 21 QBD 191
1888 QBD Wills J	Land, Torts - Other, Magistrates	Casemap 1 Citers
	L sought to assert a right to hold public meetings in Trafalgar Square. Held: (obiter) There was no public right to occupy Trafalgar Square for the purpose of holding public meetings. The Commissioners of Works and Public Buildings (in whom the care, control, management and regulations of the Square was vested) had power to prohibit the holding of such meetings there. The Commissioners of Works and Public Buildings (in whom the care, control, management and regulations of Trafalgar Square is vested) have power to prohibit the holding of meetings on it, and there was no general right on the part of the public to occupy Trafalgar Square for the purpose of holding public meetings. Wills J said that an assembly "to the detriment of others having equal rights [is] in its nature irreconcilable with the right of free passage." and "The only 'dedication' in the legal sense that we are aware of is that of a public right of passage, of which the legal description is a 'right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance.' A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage, and there is, so far as we have been able to ascertain, no authority whatever in favour of it . . Things are done every day, in every part of the kingdom, without let or hindrance, which there is not and cannot be a legal right to do, and not unfrequently are submitted to with a good grace because they are in their nature incapable, by whatever amount of user, of growing into a right". As to the issue of a summons by the magistrates: "‘Nothing can be clearer or more settled than that if the justices have really and bona fide exercised their discretion, and brought their minds to bear upon the question whether they ought to grant the summons or not, this court is no court of appeal from the justices, and has no jurisdiction to compel them to exercise their judgment in a particular way."

Mogul Steamship Company Limited -v- McGregor Gow & Co (1889) 23 QBD 598
1889 CA Lord Esher MR, Bowen LJ, Fry LJ	Torts - Other	Casemap 1 Cites 1 Citers
	Ship-owners formed an association which in this action others claimed to be a tortious conspiracy. Held: There is a cause of action against the conspirators where there is an agreement which constitutes an indictable conspiracy and that agreement is carried into execution by the conspirators by means of an unlawful act or acts which produce private injury to the claimant. "[M]alicious" was not to be given its ordinary meaning (malice in fact), but rather a technical legal meaning (malice in law), meaning an intention to carry out an act that was wrongful in order to damage another or to the detriment of another, or to hurt another. Bowen LJ: "No man, whether trader or not, can however justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction and molestation are forbidden; so is the intentional procurement or violation of individual rights, contractual or other, assuming always that there is no just cause for it … but the defendants have been guilty of none of these acts. They have done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the context of their own trade. To the argument that a competition so pursued ceases to have a just cause or excuse when there is ill-will or a personal intention to harm it is sufficient to reply (as I have already pointed out) that there was here no personal intention to do any other than such as was necessarily involved in the desire to attract to the defendant's ships the entire tea freights of the ports."

Derry -v- Peek (1889) 14 App Cas 337; [1889] 58 LJ Ch 864; [1889] 61 LT 265; [1889] 54 JP 148; [1889] UKHL 1
1 Jul 1889 HL Lord Herschell	Damages, Torts - Other	Casemap 1 Citers
	The House heard an action for damages for deceit or fraudulent misrepresentation. Held: The court set out the requirements for fraud, saying that fraud is proved when it is shown that a false representation has been made knowingly or without belief in its truth or recklessly without caring whether it be true or false. Lord Herschell said: "First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made."
	Link[s] omitted

Marks -v- Beyfus (1890) 25 QBD 494
1890 Lord Esher	Criminal Practice, Torts - Other	Casemap 1 Citers
	The plaintiff claimed damages for malicious prosecution. He called the Director of Public Prosecutions as a witness, who refused to identify the name of the person who had given him the information on which he had acted against the plaintiff. Held: The judge's decision not to do so was upheld. Lord Esher said: "this rule as to public prosecutions was founded on grounds of public policy, and if this prosecution was a public prosecution the rule attaches . . I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion." The rule applied: "not only to the trial of the prisoner, but also to a subsequent civil action between the parties on the ground that the criminal prosecution was maliciously instituted or brought about."

Angus -v- Clifford [1891] 2 Ch 449
1891 Bowen LJ	Torts - Other	Casemap 1 Citers
	The court considered what would be required to be shown for proof of fraud where recklessness was relied on: 'Not caring, in that context, did not mean not taking care, it meant indifference to the truth, the moral obliquity of which consists in a wilful disregard of the importance of truth, and unless you keep it clear that that is the true meaning of the term, you are constantly in danger of confusing the evidence from which the inference of dishonesty in the mind is to be drawn-evidence which consists in a great many cases of gross want of caution-with the inference of fraud, or of dishonesty itself, which has to be drawn after you have weighed all the evidence.'

Brown -v- Hawkes [1891] 1 QB 718
1891 CA Kay LJ	Evidence, Torts - Other	Casemap 1 Citers
	The court considered the issue of malice as an element of malicious prosecution. It is a matter to be proved by the plaintiff or the case may be withdrawn, but in a proper case it may be inferred from want of reasonable and probable cause although the converse is not true. Kay LJ said: "As I understand the argument for the plaintiff, it was said that the evidence to prove malice was that the defendant did not make proper inquiry as to the facts of the case. If that is all, and if that evidence is sufficient, the result would be that the finding on the first question put to the jury, that the defendant did not take proper care to inquire into the facts of the case, would, without more, determine the action in favour of the plaintiff. That cannot be so . ."

Montgomery -v- Thompson [1891] AC 217
1891	Intellectual Property, Torts - Other	Casemap 1 Citers
	Thompson had registered Stone Ale as a trade mark. He had sued the plaintiff, his competitor and the mark was removed from the register. Nevertheless Thompson succeeded in an action to restrain Mr Montgomery from using the mark in relation to his beer. The cause of action in passing off was independent of the trade mark rights.

New Orleans and Northeastern Railroad Company -v- Jopes (1891) 142 US 18
1891 Justice Brewer	International, Torts - Other	Casemap
	(United States Supreme Court) The test of necessity as a defence to an accusation of assault is one of the actual presence of imminent danger and a reasonably apparent necessity of taking such action as was taken: "We hold, therefore, that the record shows that the exception to this instruction was duly taken, and pass to a consideration of the principal question, and that is, whether such instruction contains a correct statement of the law applicable. Its import is, that if the conductor shot when there was in fact no actual danger, although, from the manner, attitude and conduct of the plaintiff, the former had reasonable cause to believe, and did believe, that an assault upon him with a deadly weapon was intended, and only fired to protect himself from such apprehended assault, the company was liable for compensatory damages. In this view of the law we think the learned court erred. It will be scarcely doubted that if the conductor was prosecuted criminally, it would be sufficient defence that he honestly believed he was in imminent danger, and had reasonable ground for such belief. In other words, the law of self-defence justifies an act done in honest and reasonable belief of immediate danger. The familiar illustration is, that if one approaches another, pointing a pistol and indicating an intention to shoot, the latter is justified by the rule of self-defence in shooting, even to death; and that such justification is not avoided by proof that the party killed was only intending a joke, and that the pistol in his hand was unloaded. Such a defence does not rest on the actual, but on the apparent facts and the honesty of belief in danger. … And the same rule of immunity extends to civil as to criminal cases. If the injury was done by the defendant in justifiable self-defence, he can neither be punished criminally nor held responsible for damages in a civil action. Because the act was lawful, he is wholly relieved from responsibility for its consequences."

Barker -v- Furlong (1891) 2 CH 172
1891 Romer J	Agency, Torts - Other	1 Citers
	The executor plaintiffs were entitled to furniture which was sent to auction without their knowledge or consent. Some of the furniture was returned unsold to the would-be seller and no claim was made against the defendant auctioneer in respect of that furniture. But he was held liable for the furniture he sold. Held: Where, as here, the auctioneer receives the goods into his custody, and, on selling them, hands over the goods to the purchasers with a view to passing the property in them, then I think the auctioneer has converted the goods and is liable accordingly. The general rule is that where an agent takes part in transferring the property in a chattel and it turns out that his principal has no title, his ignorance of this fact affords him no protection. Cases of a carrier and packing agent might support the case of the auctioneers. But carrier and packing agents are generally held not to have converted, because by their acts they merely purport to change the position of the goods and not the property in them.

Mogul Steamship Co Ltd -v- McGregor, Gow & Co [1892] AC 25
1892 HL Lord Watson	Torts - Other	Casemap 1 Citers
	An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line. Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) the agreement would have been unenforceable as between the members of the association. Lord Watson said: "an agreement by traders to combine for a lawful purpose, and for a specified time, is not binding upon any of the parties to it if he chooses to withdraw, and consequently cannot be enforced in invitum."

Consolidated Co -v- Curtis & Son (1892) 1 QB 495
1892 QBD	Torts - Other, Agency	Casemap 1 Cites 1 Citers
	An auctioneer who sold and delivered goods the subject of a bill of sale. An auctioneer who sells and delivers is liable in conversion because he is acting as more than a mere broker or intermediary. Held: It is not easy to draw the line at the precise point where a dealing with goods by an intermediary becomes a conversion. The difficulty is diminished by remembering that in trover the original possession was by a fiction deemed to be lawful … and some act had therefore to be shown constituting a conversion by the defendant of the chattel to his own use, some act incompatible with a recognition on his part of the continuous right of the true owner to the dominion over it. All acts which are consistent with the duty of a mere finder such as the safeguarding by warehousing or asportation for the like purpose, may well be looked upon as entirely compatible with the right of the true owner, and, therefore, as not constituting a conversion by the defendant. The test may be whether there is an intent to interfere in any manner with the title of or ownership in the chattel, not merely with the possession. The difficulty is rather in drawing the true inference from facts in particular cases than in grasping the principle. There can be no conversion by a mere bargain and sale without a transfer of possession. The act, unless in market overt, is merely void, and does not change the property or the possession: Lancashire Wagon Co. v Fitzhugh A fortiori, mere intervention as broker or intermediary in a sale by others is not a conversion.

Morley -v- Loughnan [1893] Ch 736
1893 Wright J	Torts - Other, Undue Influence	Casemap 1 Citers
	Wright J in the context of this claim for undue influence, relied on a passage from an earlier case in which Wilmot CJ had said, "Let the hand receiving [a gift] be ever so chaste, yet, if it comes through a polluted channel, the obligation of restitution will follow it".

Lemmon -v- Webb [1894] 3 Ch 1
1894 CA Lindley, Lopes and Kay LJJ	Land, Torts - Other	Casemap 1 Citers
	A neighbour could lop boughs overhanging his property without notice to the owner of the tree, provided that he could do so without entering the owner's land. A similar right of abatement by cutting applied to encroaching roots. Lindley LJ said: "But to plant a tree on one’s own land infringes no rights, and, if the tree grows over the soil of another, I cannot discover that any action lies for the encroachment unless damage can be proved. I can find no authority for the proposition that an action of trespass would lie in such a case." Kay LJ: "The encroachment of the boughs and roots over and within the land of the adjoining owner is not a trespass or occupation of that land which by lapse of time could become a right. It is a nuisance. For any damage occasioned by this an action on the case would lie. Also, the person whose land is so affected may abate the nuisance if the owner of the tree after notice neglects to do so."

Lemmon -v- Webb [1895] AC 1; [1894] UKHL 1
27 Nov 1894 HL Lord Heschell LC	Nuisance, Torts - Other	Casemap 1 Cites 1 Citers
	A land-owner was free to lop off boughs from his neighbours trees to the extent that they reached over his land, and he could lop them without going on to the land. He was not required to give notice of his intention to do so.
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Anderson -v- Gorrie [1895] 1 QB 668
1895 CA Lord Esher MR	Torts - Other, Legal Professions	Casemap 1 Citers
	An action had been brought against a colonial judge, alleging malice. Held: Lord Esher MR said: "the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie." and "The ground alleged from the earliest times as that on which this rule rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of the judges is necessary for the administration of justice . . The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious actions."

Mayor of Bradford -v- Pickles [1895] AC 587; [1895] UKHL 1
29 Jul 1895 HL Lord Halsbury LC	Litigation Practice, Local Government, Torts - Other, Nuisance	Casemap 1 Citers
	The plaintiffs sought an injunction to prevent the defendant interfering with the supply of water to the city. He would have done so entirely by actions on his own land. Held. The plaintiffs could have no property in the water until it came on their land and they collected it, and "if the owner of the adjoining land is in a situation in which an act of his, lawfully done on his own land, may divert the water which would otherwise go into the possession of this trading company, I see no reason why he should not insist on their purchasing his interest from which this trading company desires to make profit." The exercise of a legal right is not an unlawful abuse of that right merely by reason of a predominant improper or ulterior purpose.
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Reddaway & Co Ltd -v- Banham & Co Ltd [1896] AC 199 HL(E); (1895) 1 QB 286; 13 RPC 218
1896 HL Lord Herschell, Lord Macnaughten	Intellectual Property, Torts - Other	Casemap 1 Citers
	The plaintiff manufactured and sold Camel Hair Belting. The defendant also began to sell belting made of camel's hair in the name of Camel Hair Belting. The trader claimed a right in the term 'Camel Hair'. Held: The term was descriptive. Where a trader uses a mark or a name which is descriptive of its products or services, the trader must show that the public understands that the products or services come from him when they see the mark so that the mark has in this way acquired a "secondary meaning" in order to found a claim for a trade mark. In this case the phrase had come to be associated with the plaintiff's business and the defendants must adopt some other device to distinguish his goods. Whether the words are descriptive of the goods or not, the true test in determining is whether, as it is commonly used, it is reasonably indicative and descriptive of the thing intended. In order to be descriptive, within the condemnation of the Rule, it is sufficient if information is afforded as to the general nature or character of the articles and it is not necessary that the words or marks used shall compromise a clear, completes and accurate description. Lord Macnaughten said that fraud is infinite in variety: sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be honesty itself if it could only afford it. If facts amounting to fraud are plainly alleged it is no defect in the pleading if the word ‘fraud’ is not used.

Fitzgerald -v- Firbank [1897] 2 Ch 96
1897 Lindley LJ, Rigby LJ	Torts - Other	Casemap 1 Cites 1 Citers
	The owner of a right of fishing asserted a cause of action without proof of special damage against someone who had polluted the river in which the right was exercised. Held: A right of fishing was of such a nature that a person who enjoyed it had such possessory rights that he could bring an action for trespass at common law for the infringement of those rights. Rigby LJ: "There was another point about several fishery which we do not need to deal with, because the decision of the Queen's Bench was overruled in that respect. But the important point was whether the grantee could sue in trespass, and in the Court of Exchequer Chamber it was held that he might. The Court of Exchequer Chamber said that it was not necessary for them to decide the question whether the count might not be a count in case, but that they saw no reason to doubt that the Queen's Bench were right on that point. But that does not mean that the plaintiff can only sue in trespass. I cannot doubt, on the construction of the grant, the right of the plaintiffs by virtue of that grant to sue for a wrongful act which operates as a disturbance of the rights granted by the deed. The argument was pushed with the greatest courage to this extent – that a wrongdoer, unless he tried to do the very thing that the grantees were authorised to do, might destroy the whole subject-matter of the grant and be liable to no action. I never met with any case which gave the slightest colour to such a doctrine. I hold that the grantees of the incorporeal hereditament have a right of action against any person who disturbs them either by trespass or by nuisance, or in any other substantial manner."

Wilkinson -v- Downton [1897] 2 QB 57
1897 RS Wright J	Torts - Other	Casemap 1 Cites 1 Citers
	Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and was seriously injured. Mr Wilkinson returned safely by train later that evening, but the effect on Mrs Wilkinson had been dramatic. Her hair had turned white, and she became so ill that for some time her life was thought in danger. The jury awarded her £100 for nervous shock, and the question for the judge on further consideration was whether she had a cause of action. Held: Distinguishing Coultas, Downton was not merely negligent but had intended to cause injury. As what he said could not fail to produce grave effects "upon any but an exceptionally indifferent person", an intention to cause such effects should be imputed to him. “The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff-that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant…..One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind.”

Manners -v- Whitehead (1898) 1 F 171; 36 Sc LR 94; 6 SLT 190
1898 SCS	Torts - Other, Scotland	Casemap 1 Citers
	An innocent misrepresentation does not give rise to damages. To be actionable it must be made fraudulently, but a person to whom a fraudulent representation of the profitability of a business, or a business opportunity, had been made might recover his loss of his subsequent investment in that business.

Allen -v- Flood [1898] AC 1
1898 HL Lord Watson, Lord Herschell, Lord Macnaghten	Torts - Other	1 Cites 1 Citers
	The defendant, on behalf of a group of ironworkers, persuaded their employers in Milwall to stop employing the plaintiff shipwrights. There was no breach of contract. The plaintiffs alleged that this conduct gave rise to liability in tort on the ground that the defendant had maliciously induced the employers to act as they did. Held: The action failed. The case did not fall within Lumley v Gye because no breach of contract or other unlawful act had been procured and did not fall within the unlawful means tort because no unlawful means had been used. Lord Watson: "There are in my opinion two grounds only upon which a person who procures the act of another can be made legally responsibly for its consequences. In the first place he will incur liability if he knowingly and for his own ends induces that other person to commit an actionable wrong. In the second place when the act induced is within the right of the immediate actor and is therefore not wrongful in so far as he is concerned, it may yet be to the detriment if a third party; and in that case according to the law laid down by the majority in Lumley v Gye the inducer may be held liable if he can be shown to have procured his object by the use of illegal means directed against that third party." He approved the judgment in the Queen's Bench as embodying "an intelligible and a salutary principle": "He who wilfully induces another to do an unlawful act which, but for his persuasion, would or might never have been committed, is rightly held to be responsible for the wrong he has procured." Lord Herschell: "the procuring [of] what was described as an unlawful act - namely, a breach of contract, was regarded as the gist of the action." Lord MacNaghten discussed the principle underlying Lumley v Gye: "[W]here the act itself to which the loss is traceable involves some breach of contract or some breach of duty, and amounts to an interference with legal rights…the immediate agent is liable, and it may well be that the person in the background who pulls the strings is liable too, though it is not necessary in the present case to express any opinion on that point." He emphasised the absence of a conspiracy: "the decision of this case can have no bearing on any case which involves the element of oppressive combination. The vice of that form of terrorism commonly known by the name of 'boycotting,' and other forms of oppressive combination, seem to me to depend on considerations which are, I think, in the present case conspicuously absent."

Innes -v- Short and Beal (1898) 15 RPC 449
1898 Bigham J	Torts - Other, Intellectual Property	Casemap 1 Citers
	The defendant Short sold powdered zinc and gave instructions to a purchaser to enable the purchaser to infringe a process patent. The plaintiff patent holder sought damages saying that he was a joint tortfeasor. Held; Bingham J said: "There is no reason whatever why Mr. Short should not sell powdered zinc, and he will not be in the wrong, though he may know or expect the people who buy it from him are going to use it in such a way it will amount to an infringement of Mr. Innes' patent rights. But he must not ask the people to use it in that way, and he must not ask the people to use it in that way in order to induce them to buy his powdered zinc from him."

The Bulli Coal Mining Company -v- Patrick Hill Osbourne and Another [1899] AC 351; [1899] UKPC 13
1899 PC	Torts - Other, Commonwealth	Casemap 1 Citers
	(New South Wales)
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Llandudno Urban District Council -v- Woods [1899] 2 Ch 705
1899	Torts - Other	Casemap 1 Citers
	A clergyman set up a pulpit and was holding services and delivering addresses on the seashore. Held: An injunction was refused. The court discouraged actions for trespass on public highways where the inteference was trivial. In this case, although he had no right to do what he was doing, it was harming nobody.