Abuse of process of Court. Explanation. The plaintiff must prove both the absence of reasonable and probable cause, and the existence of an indirect and improper motive for the prosecution (g). 43. A person wrongs another who causes harm to that other by wilful abuse of any process of the law (h). Note.-There are other miscellaneous wrongs which may be generally described as malicious interference with rights. I think the doctrine of Lumley v. Gye and Bowen v. Hall really comes under this head, and does not (as has been suggested) establish a sort of right in rem not to have the fulfilment of contracts made with one interfered with. To the same class belongs Ashby v. White, as explained in Tozer v. Child, 7 E. & B. 377. But I submit that the law on these questions is neither settled enough to make immediate codification prudent, nor of sufficient practical importance to make it probable that delay will do any harm. The doctrine of Lumley v. Gye might be expressed in some such words as these: : "A person wrongs another who wilfully, and with the design of harming that other or gaining some advantage for himself over that other, procures a third person who has entered into a contract [qu. for exclusive personal services] with that other to break his contract, whereby that other loses the benefit of the contract." will have to be recast if the body of the clause is altered as suggested. The English authorities on malicious prosecution seem to be applicable in British India; see 11 B. L. R. 328. (h) That malicious abuse of civil process may be actionable, see Raj Chunder Roy v. Shama Soondari Debi, I. L. R. 4 Cal. 583. In this class of cases, as distinguished from malicious prosecution, special damage must always be shown. See Bigelow, L. C. 181, 206. I do not think it would be desirable to add illustrations to this clause; at all events not without intimate knowledge of Anglo-Indian judicial proceedings. The same remark applies to the clause on malicious prosecution. CHAPTER VI. WRONGS TO PROPERTY. defined. 44. Every one commits a wrong, and is said to commit Trespass a trespass and to be a trespasser, who, without the consent of the owner of such property as in this section mentioned or other lawful justification or excuse [and to the damage or annoyance of the owner (i)], (1) enters on any immoveable property, or causes any animal to go upon such property, or permits any animal in his possession or custody, being to his knowledge or by its kind accustomed to stray, to go upon such property, or puts, casts or impels anything in, upon or over such property; (2) assumes to exercise ownership over any moveable property, or does any act which deprives the owner of its use permanently or for an indefinite time (k); (3) destroys or damages any property; (4) does any other act which directly interferes with the lawful possession of any property, moveable or immoveable. of appa sion. 45. For the purposes of the last foregoing section every Protection one who is in lawful possession of any property, or who rent right peaceably and as of right is in actual occupation, or has the to possesactual custody or control (7), of any property, is deemed to be the owner thereof as against every one not having a better title. (i) See note at the end of this chapter. (k) Per Bramwell B. Hiort v. Bott (1874) L. R. 9 Ex. 86, 89; cf. the judgment of Thesiger L. J. in Jones v. Hough (1880) 5 Ex. D. 115, 128. () [This probably goes beyond settled English authority. But it is by no means certain that in England a servant having the custody of a chattel out of his master's presence or the protection of his house cannot sue a trespasser in his own name; see p. 292 above.] Trespass by pos limited purpose 46. A person who has lawful possession, custody or sessor for control of property under a contract with the owner of that property or otherwise may become a trespasser by dealing exceeding with the property in a manner inconsistent with the title by which he has that possession, custody or control or in excess of his rights under that title. his right. Mistake does not generally excuse trespass. Immunity of certain ministerial actions. Illustration. If a pledgee with power of sale sells the pledge without the conditions being satisfied on which the power of sale is exercisable, or a hirer of goods pledges them for his own debt, or a bailee without the bailor's consent lends the goods in his custody to a third person, these and the like acts are trespasses (m). 47. Interference with the property of another is not excused by mistake even in good faith as to the ownership or the right of possession, or by an intention to act for the true owner's benefit: Provided that a carrier or other person using the carriage or custody of goods as a public employment does not commit a trespass by dealing with goods in the ordinary way of that employment and solely by the direction and on behalf of a person who delivers those goods to him for that purpose and whom he in good faith believes to be entitled to deal with those goods: Provided also that a workman or servant does not commit a trespass by dealing with any property in the ordinary way of his employment and in a manner authorized as between himself and his employer and which he in good faith believes his employer to be entitled to authorize. Illustrations. 1. M. obtains goods from Z. by fraud and false pretences, and, being apparent owner of the goods, purports to sell them to A., who in good faith accepts them and pays M. for them. A. is, in fact, dealing on behalf of P., and forthwith delivers the goods to P. M. absconds with (m) Donald v. Suckling, L. R. 1 Q. B. 585, is the recent leading case. the price. A. has wronged Z., and is liable to Z. for the value of the goods (n). 2. A. is a tenant of land belonging to B. A. without authority, but intending to act for B.'s as well as A.'s benefit, converts part of this land into a tank. A. has wronged B., and B. need not prove that the value of the land is diminished (0). 3. A. obtains goods by fraud and false pretences from Z. at Bombay, and sends them by railway to B. at Allahabad. The railway company's servants deliver the goods at Allahabad to B.'s order according to the usual course of business. If the railway company has not before this delivery received any notice of an adverse claim on the part of Z., the railway company has not wronged Z. 4. Z. is the owner of 100 maunds of wheat. A. obtains this wheat from him by fraud and false pretences, and offers it for sale to B., a miller, who accepts it in good faith. B. causes the wheat to be ground in his mill together with other wheat bought by B. from the true owners. The men employed in the mill do not know from whom the wheat was bought. Here B. may have wronged Z., but the men employed in the mill have not (p). 48. The mere assertion of a right to deal with property Mere or to prevent another from dealing with it is not a trespass. right can claim of not be Licence 49. The consent of an owner to entry upon or inter- trespass. ference with his property is called a licence, and a person defined. to whom such consent is given is called a licensee. A licence, and the revocation of a licence, may be either express or tacit. Illustration. A man who keeps an open shop or office thereby gives to all persons who may wish to deal with him in the way of his business a licence to (n) Hollins v. Fowler, L. R. 7 H. L. 757. (0) Tarini Charan Bose v. Debnarayan Mistri, 8 B. L. R. App. 69. If the conversion were proved to be beneficial to the property, quære. (p) As to these exceptions, see the opinion of Blackburn J. in Hollins v. Fowler, L. R. 7 H. L. at pp. 766-8, which seems to favour making them wide enough to protect the miller or spinner, if acting in good faith and without purporting to acquire any interest in the corn or cotton beyond that of bailee for a special purpose without Effect of licence. Time of grace after re enter the shop or office during business hours. If he gives up the business and turns the shop or office into a private dwelling-house, this licence is revoked. 50 (q). A licence— (1) does not bind the successors in title of the licensor; (2) is not assignable by the licensee; (3) is limited to the purposes for which and subject to the conditions, if any, on which it is given; (4) is revocable at the will of the licensor, unless coupled with an interest. Explanation.-A licence is said to be coupled with an interest where it is given as part of the same transaction with the conveyance of a legal interest in some property by the licensor to the licensee, and that interest cannot be enjoyed without doing the act permitted by the licence. Illustration. A. sells to B. cattle which are pasturing on A.'s land, or trees growing on A.'s land. This implies a licence to B. to enter on A.'s land to take the cattle away, or to cut the trees, as the case may be, and A. cannot revoke the licence while the contract of sale is in force. 51. Notwithstanding the revocation of a licence, the licensee is entitled to the benefit of the licence for a vocation of reasonable time thereafter so far as may be necessary enable him to restore the former state of things (r). licence. (g) Chapter VI. of the Easements Act (V. of 1882) deals with licences as regards immoveable property only. It is submitted that, inasmuch as a licence does not create an interest in property, but merely excuses what would otherwise be a trespass, the subject belongs to the law of torts more properly than to the law of easements. This being so, and the local extent of the Easements Act being limited, I leave the matter to the consideration of the Government of India. The two sets of clauses are intended to declare the same law, and I do not to know that any great harm would come of having both in force over a limited extent of territory. (r) Great trouble has been caused in the United States by the untimely revocation of parol licences to erect dams, divert watercourses, and the like; Cooley on Torts, 307 -312; and in some cases the law has been strained to confer rights on the licensees under the doctrine of estoppel or part performance. I do not know whether similar difficulties are to be apprehended in British India. |