quity "that no action will lie against the judge of a Court of record for any matter done by him in the exercise of his judicial functions. . . . In the imperfection of human nature it is better, even, that an individual should occasionally suffer a wrong, than that the general course of justice should be impeded and fettered by constant and perpetual restraints and apprehensions on the part of those who are to administer it. Corruption is quite another matter; so also are neglect of duty and misconduct. For these, I trust, there is and always will be some due course of punishment by public prosecution."1 Any arbitrator, or any person occupying the position of an arbitrator, if properly appointed, is not liable for negligence. But, where an individual acts in a judicial capacity under an invalid appointment or commission, he is not exempt from civil liability. Thus certain individuals, exercising the office of judges of a colonial Court, were held liable in an action for trespass and false imprisonment, because the commissions from the governor under which they were acting were informal and void.3 4 So with the judge of a Court not of record, such as a police magistrate or a justice of the peace, if he has jurisdiction in respect of the matter before him, the person charged and the place where the offence was committed, he cannot be made liable for any words spoken in the exercise of his judicial functions. Thus where a magistrate, while sitting in court and in the course of his judicial duties, said with respect to a prosecutor who had just withdrawn a criminal charge, "It is our opinion that this has been a gross attempt to blackmail, and it would have been well if the matter had come before the Public Prosecutor. From what we have heard of this man [the prosecutor], he has been in the habit of trying to extort money from persons by illegal means, and if he found himself in gaol for twelve months it would possibly do him a good deal of good," it was held that such words were not actionable, even though it was alleged that they were spoken falsely and maliciously and without reasonable cause." There are still further cases in which for one reason or another our law interferes to protect parties from civil 1 Garnett v. Ferrand (1827), 6 B. & C. at pp. 625, 626. 2 Pappa v. Rose (1871), L. R. 7 C. P. 32, 525; Tharsis Sulphur Co. v. Loftus (1872), L. R. 8 C. P. 1. 3 Gahan v. Lafitte (1841), 3 Moo. P. C. C. 382. 4 As to which Courts are "of record and which are "not of record," see post, pp. 1038-1043. Kemp v. Neville (1861), 10 C. B. N. S. 523, 517, 551. 6 Law v. Llewellyn, [1906] 1 K. B. 487. liability, e.g., for a breach of contract committed by an infant, or for personal injury caused by negligence where the party injured has, by want of ordinary care, himself contributed to cause the damage of which he complains, or again where the express words or general scope of a statute bar the remedy by action. But these are cases in which the circumstances afford the defendant a good defence to what was prima facie a good cause of action; whereas we are at present dealing with cases in which the plaintiff has no right of action, and therefore the defendant need call no evidence in answer to it. In the vast majority of cases, however, which are brought into Courts of justice, if both injuria and damnum be proved in support of the claim, the plaintiff has a good cause of action, and will be entitled to judgment for at least nominal damages. In actions for breach of contract the amount of the debt, or of the damages which ought to be awarded, can as a rule be ascertained beforehand; it was either agreed by the parties at the time of the contract or it is fixed by the charges which are regular and usual in the trade or profession. Such damages are said to be liquidated. But in most actions of tort the damages are unliquidated; the amount to be recovered depends upon all the circumstances of the case and on the conduct of the parties, so that one cannot say beforehand whether the jury will award the plaintiff a farthing, forty shillings or a hundred pounds. 1 Atkinson v. Newcastle Waterworks Co. (1877), 2 Ex. D. 441; Great Northern Fishing Co. v. Edgehill (1883), 11 Q. B. D. 225. CHAPTER II. TORTS GENERALLY. EVERY Wrongful act, whether criminal or not, which entitles the person injured by it to sue for compensation, is as we have seen a tort. A breach of contract, though in a sense wrongful, is not deemed in law a tort, although it is a tort for one man knowingly and without lawful justification to induce another to break his contract with a third person. And there are a few cases in which a person who is no party to a contract may bring an action of tort to recover compensation for the negligent performance of that contract, if it was entered into with reference to himself. But as a rule a tort is "a wrong independent of contract." From the above definition of a tort it follows that the same may be both a tort and a crime. Most criminal offences against either the property or the person of a private indi vidual are also torts. Every defamatory libel is both a tort and a crime. On the other hand, there are many crimes which are not torts, and many torts which are not crimes. To forge a cheque is a crime; but if the forgery is detected and no money is obtained by means of it, no action of tort will lie. Suicide is a crime, but not a tort. Slander, on the other hand, is a tort but not a crime. A breach of contract can very seldom be a crime.3 act Where an act is both a tort and a crime, the person injured has a civil remedy as well as a criminal one. If the wrongful act is a misdemeanour, he may pursue his civil remedy or not when and as he thinks fit, and whether the State prosecutes the offender or not. But if the wrongful act is a felony as well as a tort, the person injured by it must wait and let the State take action first, if it wishes. 1 See post, p. 431. He has a cause of 2 Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), Schedule B. 3 But see the Gasworks Clauses Act, 1871 (34 & 35 Vict. c. 41), s. 36, and ante, action, but his remedy is suspended so long as the wrongdoer has not been prosecuted or a reasonable excuse shown for his not having been prosecuted. If no such excuse can be shown, any action in which damages are claimed for a felonious act will be stayed until the defendant has been prosecuted.1 The civil and criminal proceedings are quite independent of each other. Whatever the person injured chooses to dowhether he sues for damages or not-the State will prosecute or not prosecute, as the interests of the community may demand. It will make no difference to the civil action whether in the criminal proceedings the defendant be acquitted or convicted, or whether he be pardoned; indeed, the result of the criminal proceedings cannot be given in evidence in the civil action. So on the other hand the fact that the plaintiff has abandoned his civil action or settled it out of court will in no way prevent the State from continuing the prosecution. 3 But no action of tort will lie unless the act which has occasioned injury to the plaintiff was a wrongful act. There must be an act of omission, which either violates the right of the plaintiff in a manner or to an extent not authorised by law, or the breach (causing damage to the plaintiff) of a duty, which the defendant owes to him. If the defendant's act be not unlawful, no action will lie, even though such act was done maliciously and has caused damage to the plaintiff. "An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent." 4 Thus, if A. maliciously publishes of B. defamatory words which ar literally true, B. cannot recover any damages, although he may in some cases take criminal proceedings for the publication of such words. If C. opens a grocer's shop next door to D.'s long-established grocery store, D. has no cause of action, unless C. was under a contract not to set up in opposition to him. Again, it has been held that where E. made a reservoir on his own land and collected the water which ran in underground channels through his 1 Smith and wife v. Selwyn, [1914] 3 K. B. 98; but see Carlisle v. Orr, [1918] 2 I. R. 442. There is an exception to this in the special case of assault, see ante, p. 324. 3 Castrique v. Imrie (1870), L. R. 4 H. L. 414. A Per Parke, B., in Stevenson v. Newnham (1853), 13 C. B. at p. 297, cited with approval by Lord Macnaghten in Quinn v. Leathem, [1901] A. C. at p. 508. land on to that of his neighbour F., no unlawful act was committed; and therefore F. had no cause of action against E., although E. had acted maliciously and had intentionally deprived F. of the use of the percolating water.1 So, too, where traders formed an association for protecting and extending their trade and employed no unlawful means in attaining that end, it was held that no action lay against them at the suit of a trader excluded from their association who was being ruined in his endeavour to compete against them. But where one trader, in order to prevent a rival trader from dealing with natives on the coast of Calabar, fired a cannon at the natives and frightened them away, it was held that this unlawful act gave rise to a good cause of action.3 A tort, then, is essentially a wrongful act; that is to say, it must be either some infringement of the right of another, or a neglect or breach of a legal duty. Hence in all cases of tort the right of action is founded on : or I. The violation of some legal right vested in the plaintiff, II. The failure to perform some private duty owed to the plaintiff, which causes him damage, or III. The failure to perform some public duty, which has caused to the plaintiff some special damage beyond that suffered by the public at large. It will be necessary to examine separately each of these three classes of cases. I. First, then, as to those cases in which the plaintiff complains of the invasion of some legal right, e.g., where wrong is done to the person or reputation, where goods are withheld from their rightful owner, or where a direct injury is done to real property. In such cases the plaintiff, in order to entitle himself to damages, must show two things-the existence of the right alleged and its violation. The right which he claims must be vested in the plaintiff, although it is not necessary that he should be in actual enjoyment of it at the moment. The burden of proving the facts 1 Mayor, &c., of Bradford v. Pickles. [1895] A. C. 587; and see Chasemore v Richards (1859), 7 H. L. Cas. at p. 749; Salt Union, Ltd. v. Brunner, Mond & Co., [1906] 2 K. B. 822; and ante, pp. 409, 410. 2 Mogul Steamship Co. v. McGregor, Gow & Co., [1892] A. C. 25. |