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Torts - Other - From: 1200 To: 1799

This page lists 89 cases, and was prepared on 02 April 2018.

 
Case XXXIII 8 H 6, 19, 20 33 H 8 Bro Cases, 8 E 4, 12 8 H 4, 37 H 6 [1220] EngR 629; 3 Littl Ch Villenage Hob 11; (1220-1623) Jenk 117; (1220) 145 ER 82 (D)
1220


Torts - Other

[ Commonlii ]

 
 Case XXII 10 Jac 10 Co 115 B, 117 B, Pitfold's Case Damages, Count; 1220 - [1220] EngR 57; (1220-1623) Jenk 288; (1220) 145 ER 208 (B)
 
Case LXII, 2 Cr 545, S C Hob 38, 233 1 Sid, 98, 249 17 Jac Hob 272, Lancaster v Sidley [1220] EngR 234; (1220-1623) Jenk 900; (1220) 145 ER 218 (E)
1220


Torts - Other
An action of trover and conversion was brought in the King's Bench ; after verdict for the plaintiff; he had judgment ; affirmed in error ; although neither the bill nor bail was entered : for he may be in custodia mareschalli, notwithstanding; and the want of a bill is aided by 18 El. cap. 14, for it is an original; and to be in custodia mareaschalli os only a fiction ; it is sufficient to declare that the defendant is in custodia mareschalli. This judgment was affirmed in the Exchequer chamber and both the records sent into the King's Bench.
[ Commonlii ]
 
CASE XLI 2 Cr 8, 302-3 Hob 6, Brock v Spencer [1220] EngR 236; (1220-1623) Jenk 294; (1220) 145 ER 214 (A)
1220


Land, Torts - Other
Trespass in Dale, the defendant pleads that the place alledged in the new assiginment is parcel of a manor or in parochia de Dale praedict. Upon not guilty pleaded, the visne shall be of Dale ; for the word preedict makes the vill and parish all one.
Judged in the Exchequer-chamber.
[ Commonlii ]

 
 CASE XXXVIII 2 H 7, 8 By The Judges of Both Benches Forms, Precedents; 1220 - [1220] EngR 268; (1220-1623) Jenk 172; (1220) 145 ER 112 (E)
 
Case LXX. 36 El 3 Cr 492, 493 Yel 167 Poph 109 2 Cr 594 Hob 16, 176 Trespass, Novel, Assignment, Evidence, Demurrer Dyer, 264 [1220] EngR 448; (1220-1623) Jenk 265; (1220) 145 ER 190 (C)
1220


Torts - Other
In trespass, the defendant pleads in bar; the plaintiff makes a new assignment in his replication ; tbe defendant rejoins that the places mentioned in the bar and in the new assignment are all one ; upon this the plaintifYf demurs ; the plaintiff has judgment; affirmed in error. For the plaintiff shall never be received to give evidence, that the trespass was done in the place named in the bar ; for he has denied that, by his new assignment ; and therefore the defendant's rejoinder is vain : the defendant ought to have pleaded to the new assignment.
[ Commonlii ]
 
Case LXXVI P 6 Jac 1 Brown1 211 5 Co 49 A B Co Lit 126 B, Strickland v Thorpe Cr 207 [1220] EngR 776; (1220-1623) Jenk 303; (1220) 145 ER 221 (B)
1220


Torts - Other
Trespass was brought the 25 Sept. I Jac. with a continuando to the 27th of Novemb, after ; upon not guilty pleaded hy the defendant, the plairitiff had judgment : the judgment was not quoacl capiatur ; for a genera1 pardon pardonecl all offences until 24 Sept. I Jzc. ad upon this, the force, which gives a firn to the King, was pardoned.
The force is the cause of the fine ; tbe force was upon the first entry, and that being pardoned, the King shall not have a fine ; the judgment shall be quod non capiatur quia perdonatur :and he shatl not be amerced in this case.
[ Commonlii ]
 
Case LXXI 29 Ass Pl 47 6 E 4, 9 7 H 4, 41 30 Ass Pl 20 [1220] EngR 373; (1220-1623) Jenk 37; (1220) 145 ER 28 (A)
1220


Torts - Other, Litigation Practice
Outlawry is a good plea in an audita querela, for the outlawry does not depend upon the audita querela ; and the judgment against which relief is prayed, is not to be reversed, but only the execution of it. In error, outlawry upon the judgment which is to be reversed by the writ of error, is not a plea,; for the said judgment being the foundation of the outlawry, the reversal of it reverses the outlawry: but a writ of error, to reverse any other judgment thn that upon which the outlawry depends, outlawry is a good plea. 'Tis so of an attaint, where the attaint is to annul the verdict ; and by consequence, the judgment upon which the outlawry depends, doth not disable the plaintiff in the said attaint ; for the foundation is to be taken away, and therefore the outlawry in this case is no plea.
Judged by both benches.
If a writ of error be brought to reverse an outlawry in any action, outlawry in another action shall not disable the plaintiff in error; for otherwise, if the outlawry was erroneous, it shall never be reversed.
Exceptio rei cujus dissolutio petitur, nulla est.
[ Commonlii ]
 
Beaulieu v Finglam (1401) B & M 557
1401


Torts - Other
Markham J considered the possibility of liability for the escape of fire to damage a neighbour's property and said: "A man is held to answer for the act of his servant or of his guest in such a case; for if my servant or my guest puts a candle by a wall and the candle falls into the straw and burns all my house and the house of my neighbour also, in this case I shall answer to my neighbour for his damage . . I shall answer to my neighbour for each person who enters my house by my leave or my knowledge, or is my guest through me or through my servant, if he does any act, as with a candle or aught else, whereby my neighbour's house is burnt. But if a man from outside my house and against my will starts a fire in the thatch of my house or elsewhere, whereby my house is burned and my neighbours' houses are burned as well, for this I shall not be held bound to them; for this cannot be said to be done by wrong on my part, but is against my will."
1 Citers



 
 William Seytoun v William Forbes; SCS 9-Jan-1566 - [1566] Mor 685

 
 Bulwer's Case; 1572 - [1572] EngR 58; (1572-1616) 7 Co Rep 1; (1572) 77 ER 411
 
Sharrock v Hannemer (1595) Cro Eliz 375; (1595) 78 ER 622
1595


Police, Torts - Other
A constable without a warrant may not arrest somebody for an affray which he did not himself witness, unless a felony is likely to follow.

 
Chandelor v Lopus (1603) Cro Jac 4
1603


Torts - Other
The plaintiff sued for an alleged misrepresentation as to the character of a precious stone sold to him. Held: The plaintiff must either declare on a contract, or if he declared in tort for a misrepresentation must aver a scienter.
1 Citers


 
The Six Carpenters' Case [1572] EngR 452; (1572-1616) 8 Co Rep 146; (1572) 77 ER 695
1610


Land, Torts - Other
Resolved - 1. When an entry, authority, or licence, is given to any one by the law, and he abuses it, he shall be a trespasser ab initio: but not where the entry, authority, or licence, is given by the party. 2. An act of omission cannot make a party a trespasser ab initio.
Note. * Tender upon the land before the distress, makes the distress tortious ; tender after the distress, and before the impounding, makes the detainer and not the taking wrongful ; tender after the impounding, makes neither the one nor the other wrongful.*
* If the plaintiff makes a sufficient tender after the avowant has return irreplevisable, he may have an action of detinue for the detainer after; or he may, upon satisfaction made in Court, have a writ for the re-delivery of the goods.
1 Citers

[ Commonlii ]
 
Garret v Taylor (1620) Cro Jac 567
1620


Torts - Other
The defendant was held liable under the tort of causing loss by unlawful means, after he drove away customers of Headington Quarry by threatening them with mayhem and vexatious suits.
1 Citers


 
Skevill v Avery (1628) Cro Car 138; [1628] 79 ER 722
1628


Torts - Other
Where a defendant to a charge of trespass of assault and battery raises as his defence that he was possessed of the house, and pleaded manus molliter imposuit, it was necessary for the defendant to prove his title if it had not been challenged.

 
Holyday v Oxenbridge [1631] Cro Car 234; (1631) W Jo 249; (1631) 70 ER 805
1631


Torts - Other
A private individual has the power to arrest a common gambler who is caught cheating with false dice.

 
Rex v Sandford (1647) 1 Hale PC 587; (1647) 2 Hale PC 122
1647


Torts - Other, Magistrates
A magistrate may arrest somebody committing an affray in his presence. He may be held pending a warrant which must be in writing and sent to the gaoler.

 
Drury v Waller [1650] EngR 65; (1650) Owen 151; (1650) 74 ER 967 (A)
1650


Torts - Other

[ Commonlii ]
 
Spittle v Davis [1650] EngR 15; (1650) Owen 55; (1650) 74 ER 895
1650


Torts - Other, Land
In a replevin, the case was; One Turk seised of lands in fee, devised parcell thereof to his eldest son in taile, arid the other parcell to his youngest son in fee. Provided, and his intent was, that if any of his sons or any of their issues, do alien or demise any of the said Iands, before any of them comes to the age of thirty years, that then the other shall have the estate, and does not limit what estate, and then one of the sons makes a Iease for years before such age, whereupon the other enters, and before he comes to the age of thirty years, he aiiens that part into which he made entry, and the other brother beirig the eldest enters and makes a lease to Spittle the plainiff for three years, and Davies by commandment of the younger brother enters, and takes a horse damage-feasant, and Spittle brought a replevini : and upon demur, it seemed to the Court, that this was a limitation, and by vertue of the will the estate devised to them untill they aliened, and upon the alienation to go to the other; and upon such alienation the land is clischarged of all limiitations, for otherwise the land upon one alienation shall go to one, and upon another alienation should go back again, arid so to and fro ad infinitum, vide Dyer 14. and 29. And afterwards all the Judges agreed, that after one brother had entred into the land by reason of the alienation that land was discharged forever of the limitation by the will ; and judgment was given accordingly.
[ Commonlii ]
 
Trin and Mich 3 and 4, P and M [1651] EngR 265; (1651) Benl 15; (1651) 73 ER 941 (F)
1651


Torts - Other

[ Commonlii ]
 
Sir Francis Willoughby and Ralph Sacheverel v Patrick Sacheverel, and Co [1653] EngR 1756; (1653) Cro Eliz 182; (1653) 78 ER 438 (B)
1653


Torts - Other
Trespass laid with a continuando is good, notwithstanding an intermediate entry by the plaintiff.
[ Commonlii ]

 
 Smith v Vanger Colgay; 1653 - [1653] EngR 1821; (1653) Cro Eliz 384; (1653) 78 ER 630 (C)
 
Sands v Drury [1653] EngR 1664; (1653) Cro Eliz 814; (1653) 78 ER 1041 (A)
1653


Torts - Other
Trover of twenty loads of hay.
[ Commonlii ]
 
Smith v Hancock, And Others [1658] EngR 593; (1658) Sty 137; (1658) 82 ER 592 (B)
1658


Torts - Other
For a new Tryal, because of a mistryal
[ Commonlii ]
 
Piggott v Canning [1660] EngR 199; (1660-1706) 2 Freem Chy 149; (1660) 22 ER 1121 (B)
1660


Torts - Other
The defendant pleads a decree, and that the plaintiff was purchaser pendente lite, and the defendant was ordered to answer, saving the benefit of his plea. Note : The bill was there exhibited, to be relieved against the said decree, (1) Piggot being a purchaser without notice of Canning's suit or trust, and said the decree was gotten by fraud.
[ Commonlii ]

 
 Waterer v Freeman; 1669 - [1669] EngR 575; (1669) Noy 23; (1669) 74 ER 994 (B)
 
Bushell's case (1670) 6 St Tr 999; [1729] EngR 49; (1729) T Jones 13; (1729) 84 ER 1123; (1670) Jones T 13; 84 ER 1123
1670


Constitutional, Torts - Other, Criminal Practice
The case was, that Bushel and other jurors in London (for the trial of a traverse on an indictment against several persons for conventicling against the form of the statute lately made) were fin’d and imprisoned at the sessions in the Old Baily, because they gave their verdict against full evidence and the direction of the court in matter of law and so acquitted the prisoners. In this case it was first debated at the Bar, and on the Bench, whether the Common Pleas could award an habeas corpus in this case. Wild, Archer and Tyre1 Justices. This Court may well award it, and for this cited Anderson part 1, 297, 298. 2 Inst 615. Moor Rep 839, 1132. Brownl. part 1, 33, Vaughan Chief Justice on the contrary, and he said, that some habeas corpora's are granted of course, others not without motion, and for tbis reason on motion, because it is not of necessity to be done of course, therefore there is no necessity for the granting it; for the Court ought to be satisfied that the party hath probably cause to be delivered. This Court has not power to grant it in general, but only in case of privilege, or excess of jurisdiction of an Inferior Court, in which case every one has the privilege of being discharged by the Courts of Westminster. This Court does not grant, because they have cognizance of the cause, but because it is a probable suggestion that this Court can deliver the party. If on the retorn the cause be expresly just, the party ought to be remanded, if expresly unjust, discharged, if doutbtful, bailed. The writ is ad subjiciend’ & recipiend‘ qd‘ Cur’ consideraverit & ut Cur’ nostr. visa causa illa; or qd' de jure & consuetudine regni nostr' fuerit faciend' &c. But this Court in criminal causes cannot do this. He urged that the want of precedents in this Court is a great argument that such writs are not grantable here. The writ moreover requires that the body una cum die caption’ habeat’, by which the Court ought to be certified how long the party has been in custody ; for if for a long a time and no procedure against him, the Court ought to bail the prisoner though committed for felony or treason, which is improper for this Court that has no cognizance of crimes; for this Court is for Common Pleas, between subject and subject, but in a criminal case the plea is between the King and his prisoner.
1 Citers

[ Commonlii ] - [ Bailii ]
 
Turner v Sterling (1671) 2 Vent 24
1671

Wylde J, Archer J, Tyrrel J, Vaughan CJ (dissenting)
Torts - Other
The plaintiff complained that his election as one of two custodians of London Bridge, a remunerated office, was thwarted by the malicious and unlawful action of the Lord Mayor. It was an action upon the case. Held: The action would lie. Wylde J: "Where an officer does any thing against the duty of his place and office, and a damage thereby accrues to the party, an action lies". Archer J: "for the particular damage an action lies". Tyrrel J: "this action is for damages for being prevented of having the office". As to the argument that every action upon the case supposes damnum & injuriam", since there had been no election it could not be known whether the plaintiff would have been elected, but it would be determined whether he would have been elected and "an action of the case lies for a possibility of damage".
Vaughan CJ said that no damage appeared. All the judges held damage to be an essential ingredient of the cause of action, as would normally (not always) be so of an action on the case; they differed only on whether damage was or could on the facts be sufficiently shown.
1 Citers


 
Pope v Butler [1675] EngR 1271; (1675) 1 Rolle 394; (1675) 81 ER 559 (B)
1675


Torts - Other
action sur le case pur breaking un fai
[ Commonlii ]

 
 Gray v Dight; 1677 - (1677) 2 Show KB 144; (1677) 89 ER 848

 
 Skinner v Gunton; 1685 - [1685] EngR 2937; (1685) 3 Keb 118; (1685) 84 ER 627 (B)

 
 Daw v Swayne, Attornies of C B; 1685 - [1685] EngR 900; (1685) 2 Keb 546; (1685) 84 ER 342 (D)
 
The King v Wagstaff, Corke, and Jurors of The Old-Bailey [1685] EngR 3557; (1685) 1 Keb 934; (1685) 83 ER 1328 (C)
1685


Torts - Other
Coleman excepted to the retorn on the habeas corpus, that it’s said they went against the direction of the Court in materia legis, not shewing what that materia general jurisdiction, therefore it need not be shewed why, or the particulars of it; as estreat to the Exchequer is only pro mala gestura.
[ Commonlii ]

 
 Bulwer And Smiths Case; 1687 - [1687] EngR 129; (1583) 4 Leo 52; (1687) 74 ER 724 (C)

 
 Povye's Case; 1687 - [1687] EngR 595; (1687) 2 Leo 41; (1687) 74 ER 342 (A)
 
Hall v Hall [1692] EngR 54; (1692) 2 Vern 277; (1692) 23 ER 779 (A)
11 Nov 1692


Torts - Other
If a freeman of London absolutely gives away his goods in his life-time to any of his children, this is good. But if he keeps the deed of gift in his own power, or continues in possession of the goods, then it is a fraud upon the custom.
[ Commonlii ]
 
Rex v Tabbart [1693] Skinner 387
1693


Torts - Other
The plaintiff desired the defendant who had come into his house to leave it and accordingly commanded that his wife put the defendant out, molliter manus imposuit - using the minimum force necessary.
1 Citers


 
Savill v Roberts (1698) 12 Mod Rep 208
1698

Holt CJ
Torts - Other
Damage is a necessary ingredient of the tort of malicious prosecution. Holt CJ described the interests protected by the tort: "there are three sorts of damages, any one of which is sufficient to support this action. First, damage to [the plaintiff's] fame, if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses."
1 Citers


 
Wright v Wilson [1699] EngR 2895; (1699) 1 Ld Raym 739; (1699) 91 ER 1394 (D)
1699


Torts - Other
An action for false imprisonment will not lie against a man for fastening one of two doors in a room in which A. is, though A. cannot go through the other without trespassing.
A. has a chamber adjoining to the chamber of B. and has a door that opens into it,by which there is a pasage to go out; and A. has another door, which C. stops, so that A. cannot go out by that. This is no imprisonment of A. by C. because A. may go out by the door in the chamber of B. though he be a trespasser by doing it. But A. may have s special action upon his case against C. Ruled by Holt Chief Justice, in evidence at a trial at the Summer Assizes at Lincoln 1699, in an action of false imprisonment. And the plaintiff was nonsuit.
[ Commonlii ]
 
Medina v Stoughton (1699) Salk 210
1699


Torts - Other

1 Citers


 
Ashby v White [1703] 92 ER 126; 1 Smith's Leading Cases (13th ed ) 253
1703
KB
Lord Holt CJ
Torts - Other, Elections
Mr Ashby a burgess of the borough of Aylesbury was deprived of his right to vote by the misfeasance of a returning officer. Held: The majority rejected the claim.
Lord Holt CJ (dissenting) An action would lie: "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy: for want of a right and want of remedy are reciprocal . . . My brother Powell thinks that an action on the case is not maintainable because there is no hurt or damage to the plaintiff but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary but an injury imports a damage, when a man is thereby hindered of his rights." The right to vote was "a thing of the highest importance" and on his ruling: "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal".
1 Citers


 
Cole v Turner (1704) 6 Mod 149
1704

Holt CJ
Torts - Other
For a touching of another's person to amount to a battery, it had to be a touching "in anger".
1 Citers


 
Anon (1708) 11 Mod Rep 181
1708

Holt CJ
Torts - Other
The court distinguished the torts of trespass and trover. Trespass is local, but trover is transitory. A claim in trover is made out for the removal of trees when cut down. When standing they are part of the land, and subject to the law of trespass. When cut down, they become chattels, and their removal then becomes the tort of trover.

 
John Crawfurd, An Infant, By Jane His Mother and Guardian v Archibald Crawfurd Esq [1712] UKHL Robertson_28; (1712) Robertson 28
5 Apr 1712
HL

Scotland, Trusts, Torts - Other
Minor non tenetur placitare - The maxim does not take place in a reduction upon the head of dole, or fraud in the minor's father.
Proof. - A deed found proved to be fraudulently altered upon ocular inspection of the different pieces, and a letter from one of the perpetrators of the fraud.
[ Bailii ]
 
William Forbes of Tolquhon v Alexander Forbes of Ballogie [1712] UKHL Robertson_41; (1712) Robertson 41
10 Apr 1712
HL

Scotland, Torts - Other
Fraud and Circumvention. - In a reduction of sundry deeds upon this ground, various circumstances found irrelevant or not proved.
[ Bailii ]

 
 Jones v Givin; 1713 - [1760] EngR 108; (1713) Gilb Cas 185; (1760) 93 ER 300

 
 Daw v Swaine; 1714 - [1714] EngR 169; (1714) 1 Sid 424; (1714) 82 ER 1195 (A)
 
George Booth v George, Earl of Warrington [1714] EngR 760; (1714) 4 Bro PC 163; (1714) 2 ER 111
29 Apr 1714
PC

Torts - Other, Limitation
A under a pretence that B was instrumental in procuring a beneficial marriage for C obtains a bond from C to B for 1000 guineas, as a reward for his services. The bond is paid when due; but in nine years afterwards C discovers the whole to be a gross imposition in A and that he received all the money. On a bill brought, A was decreed to repay C the whole money, with interest and costs. DECREES of the Court of Chancery AFFIRMED. Where there is fraud, and such fraud is concealed, no length of time can bar.
1 Citers

[ Commonlii ]
 
Armory v Delamirie (1722) 1 Stra 505; [1722] EWHC KB J94; [1722] 93 ER 664
1722
KBD
Pratt CJ
Torts - Other, Evidence
A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled "unless the defendant did produce the jewel, and shew it not to be of the finest water, they [the jury] should presume the strongest against him, and make the value of the best jewels the measure of their damages:" and "That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover?" The court applied the maxim "maxim omnia praesumuntur contra spoliatorem" All things are assumed against the interests of a spoliator.
If the negligence of the defendant has led to evidence being unavailable which might otherwise have assisted the victim of that negligence, he should not have the benefit of any consequent doubt.
1 Citers

[ Bailii ]
 
Kenneth Mackenzie, Brother of George Mackenzie of Balmuckie, Roderick Mackenzie Younger of Reidcastle, Lewis Mackenzie His Brother, Donald Mackenzie of Kilcowie, John Chisholm of Knockfin, and Archibald Chisholm His Brother v Mr Daniel Mackilligin [1723] UKHL Robertson_431; (1723) Robertson 431
6 Feb 1723
HL

Scotland, Torts - Other
Spuilzie - Art and Part - Certain persons who were present with the rebels, (under the command of Lord Seaforth,) when a spuilzie was committed, are found liable in damages, conjunctly and severally, for the damages committed by the said party.
The amount of the damages ascertained by the oaths of the pursuers.
Interest allowed from the day, after the party of rebels had left the premises spuilzie
Costs and Expences - The appellants having failed to appear, on the day appointed for hearing, the respondents' are heard, and the judgment affirmed with 100 l. costs.
[ Bailii ]
 
Everet v Williams (1893) 9 LQR 197
1725


Torts - Other, Contract
The Highwaymens Case - When the court was invited to take an account between two highwaymen, it not only dismissed the claim as "scandalous and impertinent" but ordered the arrest of the plaintiff's solicitor and fined him.
1 Citers


 
Reynolds v Clerk [1725] EngR 116; (1725) 8 Mod 272; (1725) 88 ER 193
16 Jun 1725


Torts - Other
If a man has a right to the use of a yard in common with the owner, he does not commit in trespass by entering into the yard in order to fix a water-spout to his house; but if any injury is done to the owner of the yard, in consequence of fixing such spout, he may recover dmages in an action on the case.
1 Citers

[ Commonlii ]
 
Barker v Reynolds And Westwood [1733] EngR 5; (1733) Kel W 134; (1733) 25 ER 531 (B)
1733


Torts - Other
Trespass and Assault, an ill Justification thereto.
[ Commonlii ]
 
Savill v Roberts [1738] EngR 679; (1688-1710, 1738) Holt KB 150; (1738) 90 ER 981 (A); Carthew 416; 5 Mod 394
1738
CCP
Holt CJ
Torts - Other
On a writ of error of a judgment in CB in an action on the case in nature of a conspiracy, brought by Roberts against Savill and others, for maliciously causing him the said Roberts to be indicted, with other persons, of a riot, of which he had been duly acquitted. The plaintiff in the action had a verdict ; and upon motion in the Court of Common Pleas in arrest of judgment, whether this action would lie or not, it was held that it would.
After several debates in this Court, the judgment was affirmed. And Holt CJ. said, Because the plaintiff hath suffered damage in his property, this action will lie. For no man who is indicted can be discharged or acquitted, without considerable expences laid out to defend himself, and therefore the action is maintainable for the reparation of that loss. There is a difference between action on the case, which is in nature of a conspiracy, and a writ of conspiracy at common law ; for in this case the damage sustained is the ground of the action, but in the other it is founded merely on the conspiracy. And if the defendants are convicted, a villainous judgment is given against them ; therefore the writ of conspiracy doth not properly lie in any case, but where it was to indict the person of treason or felony, by which his life was put in danger; and all other cases of conspiracy mentioned in the books, Were but actions on the case. Now here the jury having found that Roberts was indicted maliciously, and without cause ; tho’ the indictment was but for a trespass, yet ’tis reasonable the plaintiff should have judgment for the loss which the jurors find he hath sustained by the malicious prosecution, made by the defendant in the principal action. Tho’ withal the Chief Justice expressly declared, that these kind of actions ought not to be encouraged ; and that the Judge before whom any of them are tried, should hold the plaintiff to a proof of express malice in the defendant, in the prosecution by way of indictment ; for otherwise the plaintiff must be nonsuit. [151] 2. MURIELv e~st~TsR ACYJ, ENKKNANSD OTHERS. Pasch. 3 Ann,
1 Citers

[ Commonlii ]
 
Keeble v Hickeringall [1738] EngR 472; (1688-1710, 1738) Holt KB 17; (1738) 90 ER 907
1738


Torts - Other, Animals

1 Cites

1 Citers

[ Commonlii ]
 
Burdett's Case [1738] EngR 185; (1688-1710, 1738) Holt KB 316; (1738) 90 ER 1075 (B)
1738

Bolt CJ
Torts - Other
In trespass, the defendant justified as clerk of the market within the district of White-Chapel, for a distress for not using measures marked according to the standard of the Exchequer.
Bolt CJ held, that the clerk of the market could not have power to estreat fines and amerciaments, otherwise than as a franchise. And it is more reasonable the clerk should bring the standard with him, than that the people should follow him, or attend at a place out of the market.
[ Commonlii ]
 
Keeble v Hickeringall [1738] EngR 471; (1688-1710, 1738) Holt KB 19; (1738) 90 ER 908
1738

Holt CJ
Torts - Other
Holt CJ, delivered the opinion of the Court for the plaintiff, and said, that this is a new action, but is supported by the old reason and principles of law ; taking of wild-fowl is a lawful and profitable employment, it is as if it were his trade used upon his own ground, and surely it is lawful for a man to make the best advantage he can of his own ground; and there is the same reason for him to have this action, as for any tradesman for being damnified in his trade; and that is the reason why words, that are in themselves not actionable, will bear an action when they damnify a man in his trade.
1 Cites

1 Citers

[ Commonlii ]
 
Savill v Roberts [1741] EngR 302; (1741) Carth 416; (1741) 90 ER 841
1741

Holt CJ
Torts - Other
The plaintiff, Roberts, was entitled to recover £11 damages in proceedings for malicious prosecution, the defendant having maliciously caused Roberts to be indicted for causing a riot, and Roberts having been acquitted. The £11 was the cost incurred by Roberts in successfully defending himself on the indictment. Holt CJ set out three heads of damage capable of giving rise to a claim for malicious prosecution. The interest protected by the tort was:
"there are three sorts of damages, any one of which is sufficient to support this action. First, damage to [the plaintiff's] fame, if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses." He explained the right to recover "charges and expenses" as damages for malicious prosecution very briefly: "Thirdly, that a man put to answer an indictment is put to charges is notorious; and if so, it is an injury to his property; and if this injury be occasioned by a malicious prosecution, it is reason and justice he should have an action to repair him the injury."
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[ Commonlii ]
 
William, Earl of Sutherland v Ross, Anderson, Et Alii [1743] UKHL 1_Paton_351; (1743) 1 Paton 351
25 Mar 1743
HL

Land, Torts - Other
A vassal having incurred recognition by alienating part of his lands, and the superior, upon his subsequent forfeiture, having, in his exceptions taken before the Court of Session against the survey made by the trustees, founded his claim solely upon 1st Geo. I. c. 20, and obtained decree, it was found not competent for him thereafter to insist in a declarator of recognition on the ground of the alienation.
[ Bailii ]
 
Boulter v Clark (1747) Bull NP 16
1747


Torts - Other
A party to an illegal prize fight who is damaged in the conflict cannot sue for assault
1 Citers


 
Bridgeman v Green [1755] 2 Ves Sen 627
1755


Torts - Other
The court was asked whether certain money, which had been obtained by fraud, ought to be returned to the Plaintiff by a party who had received it, but who was not a party to the fraud.
1 Citers


 
Bridgeman v Green (1757) Wilm 58; [1757] 97 ER 22
1757

Wilmot LC
Undue Influence, Torts - Other
The question before the court was whether certain money, which had been obtained by fraud, ought to be returned to the Plaintiff by a party who had received it, but who was not a party to the fraud. Lord Commissioner Wilmot said, "Whoever receives it, must take it tainted and infected with the undue influence and imposition of the person procuring the gift; his partitioning and cantoning it out amongst his relations and friends will not purify the gift and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet, if it come through a corrupt, polluted channel, the obligation of restitution will follow it."
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Miller v Race (1758) 1 Burr 452
1758

Lord Mansfield
Torts - Other
A bank note made out to bearer and payable on demand was to be treated as currency. Conversion did not lie because there is no property in currency. Lord Mansfield said: "So, in the case of money stolen, the true owner cannot recover it, after it has been paid away fairly and honestly upon a valuable and bona fide consideration: but before money has passed in currency, an action may be brought for the money itself."
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 Entick v Carrington; KBD 1765 - (1765) 2 Wils 275; (1765) 19 St Tr 1030; [1765] EWHC KB J98; [1799] EngR 236; (1799) 2 Wils KB 275; (1799) 95 ER 807; 1558-1774 All ER Rep 45
 
Rex v Coate (1772) Lofft 73
1772

Lord Mansfield
Torts - other
There is a common law power to detain persons for their own protection for mental health reasons.
1 Citers



 
 Somerset's Case, Somerset v Stewart; 1772 - (1772) 20 StTr 1; [1772] EngR 57; (1772) Lofft 1; (1772) 98 ER 499; (1772) 20 How St Tr 1
 
Fabrigas v Mostyn [1773] 2 Wm Bl 929; (1773) 20 St Tr 82
1773

Lord de Grey
Commonwealth, Torts - Other
Minorca was a ceded colony of the British Crown. The Governor, General Mostyn, apparently fearing that Fabrigas would stir up danger for the garrison, committed him to the worst prison on the island, with no bed and only bread and water, and with no contact with his family. He then confined him "on board a ship, under the idea of a banishment to Carthagena." Fabrigas sued General Mostyn for damages in the King's Bench. Held. The damages award of £3,000 was upheld.
Lord De Grey said: "I do believe Mr Mostyn was led into this, under the old practice of the island of Minorca, by which it was usual to banish: I suppose the old Minorquins thought fit to advise him to this measure. But the governor knew that he could no more imprison him for a twelvemonth, than he could inflict the torture; yet the torture, as well as the banishment, was the old law of Minorca, which fell of course when it came into our possession. Every English governor knew he could not inflict the torture; the constitution of this country put an end to that idea. This man is then dragged on board a ship, with such circumstances of inhumanity and hardship, as I cannot believe of general Mostyn; and he is carried into a foreign country, and of all countries the worst; for I believe there are directions given, that no persons should go to Spain, or be permitted to quit the port of Carthagena."
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Clarke v Shee and Johnson (1774) Lofft 756; (1774) 1 Cowp 197
1774

Lord Mansfield
Torts - Other, Equity
A servant diverted money from customers of his employer and bought lottery tickets. Lotteries were illegal and void under the Lottery Act 1772. The master recovered from the defendants who were the holders of the lottery and had innocently received the stolen money. The defendants unsuccessfully argued that there was no contract between the master and the defendants and that the defendants had given consideration for the receipt of the money. It was argued that though the defendants were fortunate in that the lottery tickets issued for the stolen money were not winning tickets, the defendants ran the risk "and therefore performed their part of the agreement: consequently, there is no foundation for an action to recover back the money paid." Held: The plaintiff was entitled to recover the sum of £460 from the defendant as money had and received by him for the use of the plaintiff.
Lord Mansfield said: "This is a liberal action in the nature of a bill in equity; and if, under the circumstances of the case, it appears that the defendant cannot in conscience retain what is the subject matter of it, the plaintiff may well support this action . . . the plaintiff does not sue as standing in the place of Wood his clerk: for the money and notes which Wood paid to the defendants, are the identical notes and money of the plaintiff. Where money or notes are paid bona fide, and upon a valuable consideration, they never shall be brought back by the true owner; but where they come mala fide into a person's hands, they are in the nature of specific property; and if their identity can be traced and ascertained, the party has a right to recover. It is of public benefit and example that it should; but otherwise, if they cannot be followed and identified, because there it might be inconvenient and open a door to fraud. Miller v. Race, 1 Burr. 452: and in Golightly v. Reynolds (1772) Lofft. 88 the identity was traced through different hands and shops. Here the plaintiff sues for his identified property, which has come to the hands of the defendant iniquitously and illegally, in breach of the Act of Parliament, therefore they have no right to retain it: and consequently the plaintiff is well entitled to recover."
Lottery Act 1772
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Atcheson v Everitt [1775] EngR 14; (1775) 1 Cowp 382; (1775) 98 ER 1142
1 Feb 1775


Torts - Other
Allegation of bribery
[ Commonlii ]
 
Holman v Johnson (1775) 1 Cowp 341; [1775] EngR 58; (1775) 98 ER 1120
5 Jul 1775

Mansfield LCJ
Contract, Torts - Other
Mansfield LCJ set out the principle of ex turpi causa non oritur actio: "The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is on that ground the court goes: not for the sake of the Defendant, but because they will not lend their aid to such a Plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.
The question therefore is, "Whether, in this case, the plaintiff's demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country."
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[ Commonlii ] - [ Commonlii ]
 
Taylor v Whitehead [1781] EngR 77; (1781) 2 Doug 745; (1781) 99 ER 475
28 Jun 1781

Lord Mansfield
Land, Torts - Other
A motion may be made in arrest of judgment after a rule for a new trial has been discharged, and at any time before judgment is entered up. It is not a good justification in trespass, that the defendant has a right of way over part of the plaintiffs land, and that he had gone upon the adjoining land, because the way was impassable from being overflowed by a river.
The dominant owner of an easement of way (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost.
1 Citers

[ Commonlii ]

 
 Thomas Carnan v John Truman; PC 3-May-1788 - [1788] EngR 162; (1788) 1 Bro PC 101; (1788) 1 ER 444

 
 Pasley v Freeman; 1789 - (1789) 3 Durn & E 51; (1789) 3 Term Rep 5F; [1789] EngR 1703; (1789) 3 TR 51; (1789) 100 ER 450
 
Savill v Roberts [1790] EngR 1720; (1790) 3 Ld Raym 264; (1790) 92 ER 679
1790
CCP
Holt CJ
Torts - Other

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[ Commonlii ]
 
Presgrave v Saunders [1790] EngR 1412; (1790) 2 Ld Raym 984; (1790) 92 ER 156 (A)
1790


Torts - Other
In replevin the plea of property may be pleaded in bar. Whether the property may be alleged to be in the defendant, or in a third person, and ought to be so pleaded.
[ Commonlii ]

 
 Tarleton v M'Gawley; 1790 - (1790) 1 Peake NPC 270

 
 Boucher's Case; 1791 - [1791] EngR 132; (1791) Cro Jac 81; (1791) 79 ER 69 (A)
 
Ward v Macauley And Another [1791] EngR 1506; (1791) 4 TR 489; (1791) 100 ER 1135
25 Nov 1791

Lord Kenyon CJ
Torts - Other
A having let his house ready furnished to B. cannot maintain trespass against the sheriff for taking the furniture under an execution against B.; though notice were given that the goods belonged to A. The plaintiff was the landlord of a house, which he let to Lord Montfort ready furnished ; and the lease contained a schedule of the furniture. An execution was issued against Lord Montfort, under which the defendants, Sheriff of Middlesex, seized part of the furniture, notwithstanding the officer had notice that it was the property of the plaintiff. For this the plaintiff brought an action of trespass against the defendants. At the trial Lord Kenyon thought that trespass would not lie, and that the plaintiff should have brought trover: a verdict, however, was taken for the plaintiff for value of the goods, with liberty to the defendants to move to enter up a nonsuit, if this Court should be of opinion that the plaintiff could not recover in this form of action.
Lord Kenyon CJ said: "The distinction between actions of trespass and trover is well settled: the former is founded on possession: the latter on property. Here the plaintiff had no possession; his remedy was by an action of trover founded on his property in the goods taken."
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[ Commonlii ]

 
 Waterer v Freeman; 1792 - [1792] EngR 2759; (1792) Hob 205; (1792) 80 ER 352

 
 Savile v Roberts; 1792 - [1792] EngR 2096; (1792) 1 Ld Raym 374; (1792) 91 ER 1147
 
Turberville v Stamp In BR [1792] EngR 2683; (1792) 1 Com 32; (1792) 92 ER 944
1792


Torts - Other
An action on the case, founded upon the general custom of the realm, against the defendant, for negligently keeping his fire; and the plaintiff declared that the defendant in his close did light up a fire to burn the stubble, & ignem suum tam improvide & negligenter custodivit quod defectu debitae custodiae ignis sui pred’ the clothes of the plaintiff in the close adjoining were burnt. After a verdict for the plaintiff Gould Serjeant moved in arrest of judgment, for that this action lay not, neither for the matter of it, nor for the manner ; for an action lieth not on account of a fire lighted up iri a close, but only for fire in a house, for there a man must take care of his fire at his own peril, and it may properly be said to be his own fire, but out of his house it cannot be said to be his fire, and where it is not his fire an action will not lie, as it seems. 2 H. 4, 18 a, but if an action would lie for the matter, yet in the present case it is ill brought, for the plaintiff ought to have declared that the defendant exarsit vel ardebat his clothes, and not to have declared upon the general custom of the realm. Northey contra : An action lieth as well where the fire is lighted in the close as in the house of the defendant; an action was maintained lately for fire in the woodstack of the defendant; arid then the declaration is well enough, for the plaintiff says that by the improvident keeping of the fire the clothes of the plaintiff were burnt, which is now found by the verdict. Holt, C.J. The only qnestion is, whether the plaintiff ought not to have shewn a special negligence in the defendant.
The case was afterwards adjudged in favour of the plaintiff by the whole Court ; for the action is as well for a fire kindled in the fields of the defendant as in his house, for it is the defendant’s fire and kindled in his ground, and he ought to have the same care of a fire which he kindles iri his field as of that which is made in his house, for the duty to take care of both is founded upon this maxim, sic utere tuo ut non laedas alienum ; but if the fire of the defendant by inevitable accident, by impetuous and sudden winds, and without the negligence of the defendant or his servants, (for whom he ought to be answerable) did set fire to the clothes of the plaintiff in his ground adjoining; the defendant shall have the advantage of this in evidence, and ought to be found not guilty. But here the verdict hath found negligence in the defendant.
Therefore judgment for the plaintiff.
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[ Commonlii ]
 
Master v Miller [1793] EngR 709; (1793) 5 TR 367; (1793) 101 ER 205 (A)
1793

Buller J
Torts - Other
Buller J said: ‘It is a common saying in our law books, that fraud vitiates every thing. I do not quarrel with the phrase, or mean in the smallest degree to impeach the various cases which have been founded on the proof of fraud. But we must recollect, that the principle which I have mentioned is always applied ad hominem. He who is guilty of a fraud shall never be permitted to avail himself of it; and if a contract founded in fraud be questioned between the parties to that contract, I agree, that as against the person who has committed the fraud, and who endeavours to avail himself of it, the contract shall be considered as null and void . . Even as between the parties themselves we must not forget the figurative language of Lord Ch J Wilmot, who said [that]: “the statute law is like a tyrant; where he comes he makes all void: but the common law is like a nursing father, and makes void only that part where the fault is, and preserves the rest.”’
1 Citers

[ Commonlii ]

 
 Savile v Roberts; 1795 - [1795] EngR 3039; (1795) 3 Salk 16; (1795) 91 ER 664 (B)
 
Cole v Hindson (1795) 6 TR 234
1795


Torts - Other
A policeman could not justify taking a person by the name mentioned in the warrant, his real name being different. The plea averred that Aquila Cole and Richard Cole were the same person.
1 Citers


 
Keeble v Hickeringhall [1795] EngR 2265; (1795) 3 Salk 9; (1795) 91 ER 659 (A)
1795


Torts - Other
Case lies where the plaintiff had a possession without any property. Case in which the plaintiff declared, that he was possessed of a decoy pond frequented with ducks, of which he made great gains, and that the defendant knowing and maliciously intending to deprive him (the plaintiff) of the use arid benefit of his said decoy pond, did on such a day and place, at one time, discharge and shoot off six guns, and at another time four guns to fright away his ducks, &c. upon not guilty pleaded the plaintiff had, a verdict ; it was objected in arrest of judgment, that the defendant stood on his own ground, arid so could not be guilty of a trespass in the close of the plaintiff; besides the declaration is ill; for the plaintiff did not set forth how many ducks were frighted away, or if he had, it had been ill, because being wild ducks, he had no property in them.
Holt, Chief Justice. A decoy pond is a kind of trade, and of great profit to the owner, and by the same reason that an action will lie for malicious wmds spoken by one tradesman of another, it will lie for a malicious act done by one to another, for in both cases it is prejudicial to the plaintiff. If one man keeps a school in such a place, another may do so likewise in the same place, though he draw away the scholars from the other school, it is true, this is damnum, but it is absque injuria; but he must not shoot guns at the scholars of the other school, to fright them from coming there any more. And as to the other objection, the plaintiff needs not shew how many ducks were frighted, because it is impossible for him to do it, and though they were wild, yet they were flumineae volucres, and in the plaintiff’s decoy pond, and so in his possession, which is sufficient without shewing that he had any property in them.
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[ Commonlii ]
 
Dovaston v Payne [1795] EngR 4015; (1795) 2 H Bl 527; (1795) 126 ER 684
10 Jan 1795
CCP

Land, Torts - Other, Animals
A plea in bar of an avowry for taking cattle damage-feasant, that the cattle escaped from a public highway into the locus in quo, through the defect of fence, must show that they were passing on the highway when they escaped; it is not sufficient to state that being in the highway they escaped.
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[ Commonlii ]
 
Savill v Roberts [1796] EngR 1560; (1796) 12 Mod 208; (1796) 88 ER 1267
1796


Torts - Other

1 Cites

[ Commonlii ]
 
Keeble v Hickeringill [1796] EngR 1251; (1796) 11 Mod 130; (1796) 88 ER 945 (A)
1796


Torts - Other

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[ Commonlii ]
 
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