Gambar halaman

Jones v. Yates, 9 B. & C. 538; Doe v. Roberts, 2 B. & Ald. 367), and where both parties are in the wrong, the court will decline to interfere. Holman v. Johnson, supra. The right to disaffirm a contract may, however, be lost by neglecting so to do after discovering the fraud (Selway v. Fogg, 5 M. & W. 85-6), and the right is not afterward called to life by the discovery of another incident in the fraud. Campbell v. Fleming, 1 A. & E. 40. When the person aggrieved elects to repudiate the contract, he must place the other party so far as possible in statu quo (Masson v. Boret, 1 Denio, 69; see Frost v. Lowry, 15 O. 200), and if he affirms the contract, he may sue for damages on account of the loss which he has sustained. Martin v. Roberts, 5 Cush. 126. In one case (Queen v. Saddlers' Co., 10 H. L. C. 420-1) the court held that if a party has acted under a contract without knowing of fraud, his only remedy upon finding it out is an action for damages.

(B) Our second general rule is as follows: An action on the case will lie against a person who suppresses the truth on the part of a person, not a party to a contract, who alleges special damage. Thus in Levy v. Langridge, 4 M. & W. 338, Lord Denman says, quoting Baron Parke: "As there is fraud, and damage, the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time as one of its results, the party guilty of the fraud is responsible to the party injured." Kidney v. Stoddard, 7 Metc. 252; see Longmeid v. Holliday, 6 Exch. 761, and Martin v. Morgan, 1 Brod. & B. 289; Corbett v. Brown, 8 Bing. 33. The rules and definitions which we have ascertained and examined under the former title (a) will apply to this branch of the subject so far as the nature of the cases included by it admits. All that has been said of concealments in this essay is a fortiori, true of assent signified by silence. Qui tacet consentire videtur. Pilmore v. Hood, 5 Bing. N. C. 97, 109; Wright v. Crookes, 1 Scott (N. R.), 685. It is also well settled that the suppressio veri of an agent is chargeable to his principal (Doe v. Martin, 4 T. R. 18; Hill v. Gray, Stark. 352; Fitzsimmons v. Joslin, 21 Vt. 129) as well as to the agent. Arnot v. Biscoe, 1 Ves., Sr., 95.

(C) With regard to evidence, it is never to be forgotten that the law will not imply fraud. It must be proved (Fleming v. Slocum, 18 Johns. 403), but this proof may be indirect. 2 Pars. on Cont. 784, 6. As fraud is naturally difficult to detect, evidence of all the circumstances may be produced in each case. Lincoln v. Claflin, 7 Wall. 132.

(D) According to the common law the statute of limitations runs from the time at which fraud is consummated. Troup v. Smith, 20 Johns. 33; Northrop v. Hill, 61 Barb. 136. In Massachusetts it has been held that the statute does not run until the fraud is discovered (Turnpike v. Field, 3 Mass. 201), while in New York the same result is partially gained by statute. Code of Civ. Proc., § 382.

(E) The measure of damages, in those cases of concealment in which damages are awarded, is easily fixed in principle, but is often uncertain in application. To sustain a claim for damages on the ground of fraud, actual injury must be shown (Ide v. Gray, 11 Vt. 615), but the fraud may only be the main and substantial cause of it. Patton v. Wade, 18 C. B. 370.

(F) All the foregoing remarks of a general character are applicable to suppressio veri, alike as a cause of action or a defense, at law or in equity, with certain exceptions which we will now proceed to consider.

(a) When concealment is made the basis of an action at law, moral fraud must always be alleged and proven. Vane v. Cobbold, 1 Exch. 798; Hamrick v. Hogg, 1 Dev. 350; Hanson v. Edgerly, 29 N. H. 343. This doctrine appears to be founded upon the maxim, potior est conditio defendentis.

(b) Courts of equity will always decline to interfere unless strong reasons are presented for their action. The reason is that when their jurisdiction was at first entirely discretionary, they refused to act unless some moral wrong was being perpetrated, and they are now guided in their decrees by ancient precedents. (1) Hence they are averse to the specific enforcement of contracts, when fraud is made a defense. The agreement ought to be "certain, fair and just in all its parts." Buxton v. Lister, 3 Atk. 385. In cases of this kind "the principles of ethics have a more extensive sway" (2 Kent's Com. 490), and it is, therefore, to be presumed that any kind of moral fraud would be a sufficient defense. (2) When the aid of a court of equity is sought to rescind a contract on the ground of fraud, we are again met by reluctance. It will not rescind without the clearest proof of fraud, and unless it is shown that the contract was based, at least, partially upon the fraud (Atwood v. Small, 6 C. & F. 232; Smith v. Kay, 7 H. L. 775), and this fraud must be moral (Lord Wensleydale in Smith v. Kay, supra), but circumstantial evidence may be successful even where it would not suffice at law. King v. Moon, 42 Mo. 555. Courts of equity will not generally set aside a contract unless the parties to it can be placed in the same situation which they occupied when they made the contract. Schaeffer v. Sleade, Blackf. 178; Judge Story in Veazie v. Williams, 3 Story, 631; Oakes v. Turquand, L. R., 2 H. L. 346. It has been held that simple suppression not accompanied by any thing further will not form ground for rescission in equity (Livingston v. Peru Iron Co., 2 Paige, 390), but the law is different in Tennessee (Perkins v. McGavock, Cooke, 415), and wherever the latter case is of authority the principles which we have examined will prevail. See Fry on Spec. Perf., § 461. The case in Paige does not apparently affect the rule when concealment is accompanied by aggravating circumstances. It is by no means true that courts of equity will rescind all contracts which they will not specifically enforce. There are many cases in which they will decline to interfere and the parties are then left to find justice at law. Willan v. Willan, 16 Ves. 83; Mortlock v. Buller, 10 id. 308.

The subject of suppressio veri is one which might well fill volumes. Many cases involving suggestio falsi are of equal authority in this branch of fraud which we have discussed. These subjects are not entirely separate and distinct. The principles which govern them are not precisely fixed, and the minor points have called forth the opposing arguments of leading jurists for centuries. The writer of a short paper upon such a topic labors under manifest disadvantages. It would be as unfair to form any conception of the law of concealment from a bare statement of its rules as to judge of the beauties of a country from an outline map. We have unfortunately been unable to consider the cases under this title which enrich the reports. It is in such explorations that the reader is struck with admiration for the grand system of the common law. Then at last he finds that the principles upon which this system is founded are endowed not only with enduring firmness, but also with inexhaust

ible adaptability, and that their remarkable universality is combined with marvelous particularity. Such rules are indeed the offspring of eternal justice, while they have been tempered by that practical wisdom which recognizes human exigencies.





The defendant had placed in a private road adjoining his ground a hurdle with a chevaux de frise on the top in order to prevent the public from looking over the barrier at athletic sports in his ground. Some one, not known, removed the hurdle to another spot without the defendant's authority, and the plaintiff, passing of right along the road, soon afterward, in the dark, and knowing the original position of the hurdle, but not that it was moved, ran his eye against the chevaux de frise, and lost his sight. The jury, in an action for negligence, held that the defendant's original erection of this hurdle was unauthorized and wrongful, that the chevaux de frise was dangerous to the safety of persons using the road, and that there was no contributory negligence. They gave the plaintiff a substantial verdict Held, that the plaintiff's injury was not an improbable consequence of the defendant's act; that it was the defendant's duty to take all necessary precautions under the circumstances to protect persons exercising their right of way; and that the action was maintainable. HIS was an action tried before Cockburn, C. J., in which the plaintiff obtained a verdict for £200. A rule had been obtained on behalf of the defendant for a new trial on the ground of misdirection.


The facts and the arguments upon the rule are sufficiently stated in the considered judgment of the court. Willis, Q. C., and Glyn, for the plaintiff, showed


Hannen (with A. L. Smith) supported the rule. COCKBURN, C. J., delivered the judgment of himself and MANISTY, J. This was a case of considerable nicety, and which, so far as the precise facts are concerned, presents itself for the first time. The defendant is in the occupation of premises which abut on a private road leading to certain other premises as well as to his. It consisted of a carriage road and a footway. The soil of both is the property of a different owner; the defendant has no interest in it beyond the right of way to and from his premises. The defendant uses his premises as a place where athletic sports are carried on by persons resorting thereto for that purpose, for their own amusement. His customers, finding themselves annoyed by persons coming along the road in question in carts and vehicles, and stationing themselves opposite to his grounds and overlooking the sports, the height of the carts and vehicles enabling them to see over the fence, the defendant erected a barrier across the road for the purpose of preventing vehicles from getting as far as his grounds. This barrier consisted of a hurdle set up lengthways, next to the footpath; then two wooden barriers, armed with spikes, commonly called chevaux de frise; then there was left an open space through which a vehicle could pass; then came another large hurdle set up lengthways, which blocked up the rest of the road. At ordinary times the space between the two divisions of the barrier was left open for vehicles to pass which might be going to any of the other premises to which the road in question led. But at the times when the sports were going on, a pole attached by a suitable apparatus was carried across from the one part of the

barrier to the other, and so the road was effectually blocked. Amongst the houses and grounds to which this private road led was that of a Mr. Bruen. On the evening on which the accident which gave rise to the present action occurred, the plaintiff, who occupied the premises in the immediate neighborhood, accompanied Mr. Bruen, by the invitation of the latter, to Bruen's house. It was extremely dark, but being aware of the barrier and the opening in it, they found the opening, the pole not being then set across it, and passed through it in safety. But on his return later in the evening, the plaintiff was not equally fortunate. It appears that in the course of that day or the day previous, some one had removed one of the chevaux de frise hurdles from the place where it had stood, and had placed it in an upright position across the footpath. Coming back along the middle of the road, the plaintiff, feeling his way, passed safely through the opening in the center of the barrier. Having done which, being wholly unaware - it being much too dark to see- - that there was any obstruction on the footpath, he turned on to the latter, intending to walk along it the rest of the way. He had advanced only two or three steps when his eye came into collision with one of the spikes, the effect of which was that the eye was forced out of its socket. It did not appear by whom the chevaux de frise hurdle had been thus removed; but it was expressly found by the jury that this was not done by the defendant or by his authority. The question is whether the defendant can be held liable for the injury thus occasioned. It is admitted that what the defendant did in erecting this barrier across the road was unauthorized and wrongful; and it is not disputed that the plaintiff was lawfully using the road. There is no ground for imputing to him any negligence contributing to the accident. The jury have expressly found, in answer to a question put to them by me, that the use of the chevaux de frise in the road was dangerous to the safety of persons using it. The ground of defense in point of law taken at the trial and on the argument on the rule was that, although if the injury had resulted from the use of the chevaux de frise hurdle, as placed by the defendant on the road, the defendant, on the facts as admitted or as found by the jury, might have been liable, yet as the immediate cause of the accident was not the act of the defendant, but that of the person, whoever he may have been, who removed the spiked hurdle from where the defendant had fixed it, and placed it across the footway, the defendant could not be held liable for an injury resulting from the act of another. On the part of the plaintiff it was contended that, as the act of the defendant in placing a dangerous instrument on the road had been the primary cause of the evil by affording the occasion for its being removed and placed on the footpath, and so causing the injury to the plaintiff, he was responsible in law for the consequences. Numerous authorities were cited in support of this position. The first is the case of Scott v. Shepherd, 3 Wils. 403; 2 W. Bl. 892. In that case the defendant threw a lighted squib into a market-house where several persons were assembled. It fell upon a standing, the owner of which in self-defense took it up and threw it across the market-house. It fell upon another standing, the owner of which in self-defense took it up and threw it to another part of the market-house, and in its course it struck the plaintiff and exploded, and put out his eye. The defendant was held liable, although without the inter

vention of a third person the squib would not have injured the plaintiff. In Dixon v. Bell, 5 M. & S. 198, the defendant, having left a loaded gun with another man, sent a young girl to fetch it, with a message to the man in whose custody it was to remove the priming, which the latter as he thought did, but, as it turned out, did not do effectually. The girl brought it home, and thinking that the priming having been removed the gun could not go off, pointed it at the plaintiff's son, a child, and pulled the trigger. The gun went off, and injured the child. The defendant was held liable. "As by this want of care," says Lord Ellenborough - that is, by leaving the gun without drawing the charge, or seeing the priming had been properly removed "the instrument was left in a state capable of doing mischief, the law will hold the plaintiff responsible. It is a hard case, undoubtedly, but I think the action is maintainable." In Ilott v. Wilkes, 3 B. & A. 304, the well-known case as to springguns, it became unnecessary to determine how far a person setting spring-guns would be liable to a person injured by such a gun going off, even though such person were a trespasser, inasmuch as the plaintiff, having had notice that spring-guns were set in a particular wood, had voluntarily exposed himself to the danger. But both Mr. Justice Bayley and Mr. Justice Holroyd appear to have thought that without such notice the action would have lain, the use of such instruments being unreasonably disproportioned to the end to be attained, and dangerous to the lives of persons who might be innocently trespassing. Looking to their language, it can scarcely be doubted that, if instead of injuring the plaintiff, the gun which he caused to go off had struck a person passing lawfully along a path leading through the wood, they would have held the defendant liable. In Jordin v. Crump, 8 M. & W. 782, the use of dog-spears was held not to be illegal, but there the injury done to the plaintiff's dog was alone in question. If the use of such an instrument had been productive of injury to a human being, the result might have been different. In Illidge v. Goodwin, 5 C. & P. 190, the defendant's cart and horse were left standing in the street without any one to attend to them. A person passing by whipped the horse which caused it to back the cart against the plaintiff's window. It was urged that the man who whipped the horse, and not the defendant, was liable. It was also contended that the bad management of the plaintiff's shopman had contributed to the accident. But Tindal, C. J., ruled that, even if this were believed, it would not avail as a defense. "If," he says, "a man chooses to leave a cart standing in the street he must take the risk of any mischief that may be done." Lynch v. Nurdin, 1 Q. B. 29, is a still more striking case. There, as in the former case, the defendant's cart and horse had been left standing unattended in the street. The plaintiff, a child of seven years of age, playing in the street with other boys, was getting into the cart when another boy made the horse move on; the plaintiff was thrown down and the wheel of the cart went over his leg and fractured it. A considered judgment was delivered by Lord Denman. He says: "It is urged that the mischief was not produced by the mere negligence of the servant as asserted in the declaration, but at most by that negligence in combination with two other active causes-the advance of the horse in consequence of his being excited by the other boy, and the plaintiff's improper conduct in mounting the cart, and so committing a

trespass on the defendant's chattel. On the former of these two causes no great stress was laid, and I do not apprehend that it can be necessary to dwell on it at any length. For, if I am guilty of negligence in leaving any thing dangerous where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first." And then, by way of illustration, the Chief Justice puts the case of a gamekeeper, leaving a loaded gun against the wall of playground where schoolboys were at play, and one of the boys, in play, letting it off and wounding another. "I think it will not be doubted," says Lord Denman, "that the gamekeeper must answer in damages to the wounded party. This," he adds, "might possibly be assumed as clear in principle, but there is also the authority of the present Chief Justice of the Common Pleas in its support in Illidge v. Goodwin. It is unnecessary to follow the judgment in the consideration of the second part of the case, namely, whether the plaintiff, having contributed to the accident by getting into the cart, was prevented from recovering in the action, as no such question arises here. In Daniels v. Potter, 4 C. & P. 262, the defendants had a cellar opening to the street. The flap of the cellar had been set back while defendant's men were lowering coals into it, as the plaintiff contended, without proper care having been taken to secure it; the flap fell and injured the plaintiff. The defendant maintained that the flap had been properly fastened, but also set up a defense that its fall had been caused by some children playing with it. But the only question left to the jury by Tindal, C. J., was whether the defendant's men had used reasonable care to secure the flap. His direction implies that in that case only would the intervention of a third party causing the injury be a defense. The cases of Hughes v. Macfie and others and Abbott v. Macfie and others, 2 H. & C. 744, two actions arising out of the same circumstances, and tried in the Passage Court at Liverpool, though at variance with some of the foregoing so far as relates to the effect of the plaintiff's right to recover where his own act as a trespasser has contributed to the injury of which he complains, is in accordance with them as respects the defendant's liability for his own act where that is the primary cause, though the act of another may have led to the immediate result. The defendants had a cellar opening to the street. Their men had taken up the flap of the cellar for the purpose of lowering casks into it, and, having reared it against the wall nearly upright with its lower face, on which there were cross-bars, toward the street, had gone away. The plaintiff in one of the actions, a child of five years old, got upou the crossbars of the flap, and, in jumping off them, brought down the flap on himself and another child (the plaintiff in the other action), and both were injured. It was held that while the plaintiff whose act had caused the flap to fall could not recover, the other plaintiff who had been injured could, provided he had not been playing with the other, so far as to be a joint actor with him. Bird v. Holbrook, 4 Bing. 628, is another striking case, as there the plaintiff was undoubtedly a trespasser. The defendant being the owner of a garden, which was at some distance from his dwellinghouse, and which was subject to depredations, had set

in it without notice a spring-cun for the protection of

his property. The plaintiff, who was not aware that a spring-gun was set in the garden, in order to catch a pea-fowl, the property of a neighbor which had escaped into the garden, got over the wall, and his foot coming, in his pursuit of the bird, into contact with the wire which communicated with the gun, the latter went off and injured him. It was held, though his own act had been the immediate cause of the gun going off, yet that the unlawful act of the defendant in setting it, rendered the latter liable for the consequences. In the course of the discussion a similar case of Jay v. Whitfield, at p. 644, was mentioned, tried before Richards, C.B., in which a plaintiff, who had trespassed upon premises in order to cut a stick, and had been similarly injured, had recovered substantial damages, and no attempt had been made to disturb the verdict. In Hill v. New River Company, 9 B. & S. 303, the defendants created a nuisance in a public highway by allowing a stream of water to spout up, open, and unfenced in the road. The plaintiff's horses, passing along the road with his carriage, took fright at the water thus spouting up, and swerved to the other side of the road. It so happened that there was in the road an open ditch or cutting which had been made by contractors who were constructing a sewer, and which had been left unfenced and unguarded, which it ought not to have been. Into this ditch or cutting, owing to its being unfenced, the horses fell and injured themselves and the carriage. It was contended that the remedy, if any, was against the contractors, but it was held that the plaintiff was entitled to recover against the company. In Burrows v. March Gas and Coke Company, L. Rep., 7 Ex. 96, in the Exchequer Chamber, affirming a judgment of the Court of Exchequer, where, through a breach of contract by the defendants in not serving the plaintiff with a proper pipe to convey gas from their main into his premises, an escape of gas had taken place, whereupon the servant of a gas-fitter, at work on the premises, having gone into the part of the premises where the escape had occurred with a lighted candle, and examining the pipe with the candle in his hand, an explosion took place, by which the premises were injured, the defendants were held liable, though the explosion had been immediately caused by the imprudence of the gas-fitter's man in examining the pipe with a lighted candle in his hand. In Collins v. The Middle Level Commissioners, L. Rep., 4 C. P. 279, the defendants were bound under an act of Parliament to construct a cutting with proper walls, gates, and sluices to keep out the waters of a tidal river, and also a culvert under the cut to carry off the drainage of the lands lying east of the cut, and to keep the same open at all times. In consequence of the defective construction of the gates and sluices, the waters of the river flowed into the cut, and, bursting its western bank, flooded the adjoining lands. The plaintiff and other proprietors on the eastern side closed the culvert, and so protected their lands; but the proprietors on the western side, to lessen the evils to themselves, reopened the culvert, and so increased the overflow on the plaintiff's land, and caused injury to it. The defendant sought to ascribe the injury to the act of the western proprietors in removing the obstruction which those on the other side had placed at the culvert. But it was held that the negligence of the defendants was the substantial cause of the mischief. "The defendants," says Montague Smith, J., "cannot excuse themselves from the natural consequences of their negligence by reason of the act,

whether rightful or wrongful, of those who removed the obstructions placed in the culvert under the circumstances found in this case." "The primary and substantial cause of the injury," says Brett, J., ** was the negligence of the defendants, and it is not competent to them to say that they are absolved from the consequence of their wrongful act by what the plaintiff or some one else did." "I do not see how the defendants can excuse themselves by urging that the plaintiff was prevented by other wrong-doers from preventing part of the injury." The case of Harrison v. The Great Northern Railway Company, 3 H. & C. 231, belongs to the same class. The defendants were bound under an act of Parliament to maintain a delph or drain with banks for carrying off water for the protection of the adjoining lands. At the same time certain commissioners appointed under an act of Parliament were bound to maintain the navigation of the River Witham with which the delph communicated. There having been an extraordinary fall of rain, the water in the delph rose nearly to the height of its banks, when one of them gave way, and caused the damage of which the plaintiff complained. It was found that the bank of the delph was not in a proper condition; but it was also found, and it was on this that the defendants relied as a defense, that the breaking of the bank had been caused by the water in it having been penned back owing to the neglect of the commissioners to maintain in a proper state certain works which it was their duty to keep up under their act. Nevertheless, the defendants were held liable. These authorities would appear to be sufficient to maintain the plaintiffs' right of action under the circumstances of this case. It must, however, be admitted that in one or two recent cases the courts have shown a disposition to confine the liability arising from unlawful acts, negligence, or omissions of duty within narrower limits by holding a defendant liable for those consequences only which in the ordinary course of things were likely to arise, and which might, therefore, reasonably be expected to arise, or which it was contemplated by the parties might arise from such acts, negligence, or omissious. In Greenland v. Chaplin, 5 Exch. 248, Pollock, C. B., says: "1 entertain considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated." Acting on this principle, the Court of Common Pleas, in a recent case of Sharp v. Powell, L. Rep., 7 C. P. 253, held that the action would not lie where the injury, though arising from the unlawful act of the defendant, could not have been reasonably expected to follow from it. The defendant had, contrary to the provisions of the Police Act, washed a van in the street, and suffered the water used for the purpose to flow down a gutter toward a sewer at some little distance. The weather being frosty, a grating through which water flowing down the gutter passed into the sewer had become frozen over, in consequence of which the water sent down by the defendant, instead of passing into the sewer, spread over the street, and became frozen, rendering the street slippery. The plaintiff's horse coming along fell in consequence, and was injured. It was held that, as there was nothing to show that the defendant was aware of the obstruction of the grating, and as the stoppage of the water was not the necessary or probable consequence of the

defendant's act, he was not responsible for what had
happened. Bovill, C. J., there says: No doubt one
who commits a wrongful act is responsible for the
ordinary consequences which are likely to result there-
from; but generally speaking he is not liable for dam-
age which is not the natural or ordinary consequence
of such an act, unless it be shown that he knows or
has reasonable means of knowing that consequences
not usually resulting from the act are by reason of
some existing cause likely to intervene so as to occa-
sion damage to a third person. Where there is no rea-
son to expect it, and no knowledge in the person do-
ing the wrongful act that such a state of things exists
as to render the damage probable, if injury does re-
sult to a third person it is generally considered that
the wrongful act is not the proximate cause of the in-
jury so as to render the wrong-doer liable to an ac-
tion." And Grove, J., said: "I am entirely of the
same opinion. I think the act of the defendant was
not the ordinary or proximate cause of the damage to
the plaintiff's horse, or within the ordinary conse-
quences which the defendant may be presumed to
have contemplated, or for which he is responsible.
The expression the natural consequence' which has
been used in so many cases, and which I myself have
no doubt often used, by no means conveys to the mind
an adequate notion of what is meaut; 'probable'
would perhaps be a better expression. If on the pres-
ent occasion the water had been allowed to accumu-
late round the spot where the washing of the van took
place and had there frozen obviously within the sight
of the defendant, and the plaintiff's horse had fallen
there, I should have been inclined to think that the
defendant would have been responsible for the conse-
quences which had resulted," and Keating, J., said:
"The damage did not immediately flow from the
wrongful act of the defendant, nor was such a proba-
ble or likely result as to make him responsible for it.
The natural consequence, if that be a correct expres-
sion, of the wrongful act of the defendant would
have been that the water would under ordinary cir-
cumstances have flowed along the gutter or channel,
and so down the grating to the sewer. The stoppage
and accumulation of the water was caused by ice or
other obstruction at the drain, not shown to have
been known to the defendant, and for which he was in
no degree responsible. That being so, it would obvi- |
ously be unreasonable to trace the damage indirectly
back to the defendant." We acquiesce in the doctrine
thus laid down as applicable to the circumstances of
the particular case; but we doubt its applicability to
the present, which appears to us to come within the
principle of Scott v. Shepherd, Dixon v. Bell, and other
cases to which we have referred. At the same time
it appears to us that the case before us will stand the
test thus said to be the true one. For a man who un-
lawfully places an obstruction across either a public or
private way may anticipate the removal of the ob-
struction by some one entitled to use the way as a
thing likely to happen; and if this should be done, the
probability is that the obstruction so removed will, in-
stead of being carried away altogether, be placed
somewhere near; thus, if the obstruction be to the
carriage-way, it will very likely be placed, as was the
case here, on the footpath. If the obstruction be a
dangerous one, wheresoever placed, it may, as was also
the case here, become a source of danger from which,
should injury to an innocent party occur, the original
author of the mischief should be held responsible.

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Moreover, we are of opinion that if a person places a dangerous obstruction in a highway or in a private road, over which persons have a right of way, he is bound to take all necessary precautions to protect persons exercising their right of way, and that if he neglects to do so he is liable for the consequences. It is unnecessary to consider how the matter would have stood had the plaintiff been a trespasser. The case of Mangan v. Atterton, 4 H. & C. 388; L. Rep., 1 Ex. 239, was cited before us as a strong authority in favor of the defendant. The defendant had there exposed in a public market-place a machine for crushing oil cake without its being thrown out of gear or the handle being fastened, or any person having the care of it; the plaintiff, a boy of four years of age, returning from school with his brother, a boy of seven, and some other boys, stopped at the machine. One of the boys began to turn the handle; the plaintiff, at the suggestion of his brother, placed his hand on the cogs of the wheels, and the machine being set in motion, three of his fingers were crushed. It was held by the Court of Exchequer that the defendant was not liable: first, because there was no negligence on the part of the defendant, or if there was such negligence, it was too remote; secondly, because the injury was caused by the act of the boy who turned the handle, and of the plaintiff himself, who was a trespasser. With the latter ground of the decision we have in the present case nothing to do, otherwise we should have to consider whether it should prevail against the cases cited with which it is obviously in conflict. If the decision as to negligence is in conflict with our judgment in this case, we can only say we do not acquiesce in it. It appears to us that a man who leaves in a public place along which persons, and among them children, have to pass a dangerous machine which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character, and not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful act or negligence of the defendant has given occasion. But be this as it may, the case caunot govern the present. For the decision proceeded expressly on the ground that there had been no default in the defendant; here it cannot be disputed that the act of the defendant was unlawful. On the whole, we are of opinion, both on principle and authority, that the plaintiff is entitled to our judg


Rule discharged.

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