TIT. II. CAP. I. PART IV. corporate body itself derives no profit from the tolls. (Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93; 11 H. L. Cas. 686; Foreman v. Mayor of Canterbury, L. R. 6 Q. B. 214.) 1288. Liability of persons for Where persons receive tolls or money for unsafe state affording a standing place for cattle, they are of premises for care of which they are paid. Joint tortfeasors. Negligence of the plaintiff. primâ facie liable to the owners of the cattle, if that place is not a safe place for the purpose, as where there is a spiked railing round a statue, and a cow injures itself in attempting to jump over the fence. (Lax v. Corporation of Darlington, L. R. 5 Ex. D. (Ap.) 28.) 1288a. Where two or more persons are liable to be jointly sued for an injury resulting from their common act, each is responsible for the entire injury. (Ad Torts, 430.) 1289. A person cannot sue for an injury of which the negligence or the hazardous and needless or not absolutely needful act of himself or a person actually or constructively employed by him or acting for him has been the proximate cause. But although there may have been negligence on the part of the plaintiff, and that negligence may have contributed to the injury, yet that will not prevent his recovering in respect of the negligence of the defendant, if the defendant might by ordinary care have avoided the injury. (Ad. Torts, 95; Broom Com. 103, 667; Rosc. 521; Witherby v. Regent's Canal Co., 12 C. B. (N.S.)2; Skelton v. London & N. W. Ry. Co., L. R. 2 C. P. 631; Fordham v. London, Brighton, & S. C. Ry. Co., L. R. 3 C. P. 368; Adams v. Lancashire, &c., Ry. Co., L. R. 4 C. P. 739. See Burrows v. March Gas & Coke Co., L. R. 5 Ex. 67; 7 Ex. (Ex. Ch.) 96; Armstrong v. The Lancashire, &c., Ry. Co., L. R. 10 Ex. 47; Radley v. London & N. W. Ry. Co., L. R. 1 Ap. Cas. 754.) 1290. PART IV. TIT. II. CAP. I. person as way ser Where a person, with the assent of a Injury to a station master, assists the railway servants, sisting railin order to save delay in the delivery of his vant. own goods, and in doing so is injured by the negligence of the railway servants, the company are liable. (Wright v. London & N. W. Ry. Co., L. R. 1 Q. B. D. (Ap.) 252.) 1291. in case of service. Where a person performs a gratuitous Negligence service for another (as by driving him), such gratuitous person is only liable for gross negligence on his part. (Moffatt v. Bateman, L. R. 3 P. C. 115.) 1292. a public nuisance. The remedy for a public or common nui- Injury from sance is by indictment. And no one can have an action for an injury from a public nuisance, unless he has sustained some particular damage to himself, distinct in its TIT. II. CAP. I. PART IV. nature from the general injury to the public; otherwise there would be a danger of a multiplicity of actions. And the plaintiff in such a case sues for that damage, and not for the breach of duty. (Ad. Torts, 2nd ed. 144-5; Broom Com. 93-5, 638, 642, 694; Winterbottom v. Lord Derby, L. R. 2 Ex. 316; Benjamin v. Storr, L. R. 9 C. P. 400.) 1293. Action on an agreement at a future time. Where a person is under an agreement to do an act to do an act at a future time, and in the meantime he does an inconsistent act which renders him incapable of performing his agreement, he is liable to an action as soon as he does such inconsistent act. (Broom Com. 107; Chit. Con. 643.) 1294. Loss of a contractor Where a person enters into a contract to misled by a do a work, according to the specification of by being specifica tion. an engineer, showing the mode in which the work was to be done, and it turns out that the work cannot be done in the way indicated in the specification, and in consequence of this the contractor is a great loser, it has been held that he must bear the loss; for that there was no implied warranty on the part of the person for whom the work was done, that it could be done in the way indicated, and the contracting party ought to have satisfied himself, before he entered into the contract, that the work could be done in that way. (Thorn v. Mayor, &c., of London, L. R. 9 Ex. 163; 10 Ex. (Ex. Ch.) 112; 1 Ap. Cas. 120.) 1295. PART IV. TIT. II. CAP. I. judicial officers. If judges and judicial officers of Courts of Liability of limited jurisdiction exceed their authority, and thereby cause injury to another, they are amenable to an action for damages; unless they have a primâ facie jurisdiction in the matter, and had neither the knowledge of their want of actual jurisdiction, nor the means of knowledge of that fact of which they ought to have availed themselves. But if the act done is within their authority, though based on an erroneous judgment, they are not liable to an action. (Ad. Torts, 457-9; Broom Com. 99, 102, 702-3; Rosc. 599.) 1296. An infant is liable to an action for a tort Liabilty of unconnected with a contract by him. (2 Ste. Com. 314; Ad. Torts, 731-2; Chit. Con. 143; Ad. Con. 937; Burnard, app., Haggis, resp., 14 C. B. (N. S.) 45; Crompton, J., in Bartlett v. Wells, 1 Best & Sm. 842.) 1297. infants for torts. 550 CAP. II. Division of actions. CHAPTER II. OF THE DIFFERENT KINDS OF ACTIONS; OF I. The different kinds of Actions (a). PART IV. ACTIONS used to be divided into three classes TIT. II. real, personal, and mixed. Real actions, which relate to real property, were by the stat. 3 & 4 Will. IV. c. 27, reduced to three -writ of right of dower, dower unde nihil habet, and quare impedit; and by the Common Law Procedure Act, 1860, these writs were abolished, and the plaintiff who wished for the relief formerly sought by them might commence his action by writ of summons in (a) Although a new course of procedure has been framed under the Judicature Acts, it will be expedient (as a matter of historical explanation, if nothing more) to know something of the distinctions noticed under this head, as the books are full of them. At the same time it must be borne in mind that the present work is one on Jurisprudence, and not on Pleadings and Practice. How far the distinctions here noticed still subsist, the Author will not venture to state. He thought the best course was to put them in the past tense. |