Exceptional cases where acts justified or excused. Acts of Merryweather v. Nixan, the leading case on the subject is the same as that which prevents a man from recovering money paid in pursuance of an illegal contract. If contributions could be claimed by one tort feasor from another, the community of wrong between the plaintiff and defendant would be the very foundation of the action; and it is as contrary to policy to allow a man to recover that which he has paid in consequence of his illegal act, as to allow him to recover that which he has paid in consequence of his illegal contract. It must, however, be borne in mind that this rule is subject to an important qualification. Every man who employs another to do an act which the employer appears to have a right to authorise him to do, undertakes to indemnify him for all such acts as would be lawful if the employer had the authority he pretends to have. In short, the proposition that there is no contribution between wrongdoers must be understood to affect only those who are wrongdoers in the common sense of the word as well as in law. "The law," as was stated in a case on the subject, "will not imply an indemnity between wrong-doers. But the case is altered where the matter is indifferent in itself, and when it turns upon circumstances whether the act be wrong or not " (1). On the other hand, if action is brought against one of several joint tort feasors and judgment recovered, this will be a bar to an action against the others, even though the judgment remains unsatisfied (2). Again, the release of one joint feasor releases all (2). An extremely important principle has now to be considered. There are certain classes of cases which would fall within the category of torts and would render the doer liable to an action for damages were it not that they are treated by the law as exceptional cases in which the act done is regarded as justified or excused. The following are some of the chief classes of cases to which this principle applies. 1. An action is not maintainable in respect of what have been called "acts of State." An act of State may be defined in this connection as "an act injurious to the person or to the property of some person who is not at the time of that act (1) Betts v. Gibbons, 2 A. & E. 57; Dugdale v. Lovering, L. R. 10 C. P. 196; Dixon v. Fawens, 30 L. J. (Q.B.) 137. (2) Brown v. Wooton, Cro. Jac. 73; King v. Hoare, 13 M. & W. 504; Brinsmead v. Harrison, L. R. 7 C. P. 547. (3) Cooke v. Jener, 15 C. B. 145. a subject of Her Majesty: which act is done by any representative of Her Majesty's authority, civil or military, and is either previously sanctioned or subsequently ratified by Her Majesty" (1). State. The exception with regard to acts of State is well illustrated Acts of by the celebrated case of Buron v. Denman (2), where an action was brought against the defendant, a captain in the navy, for burning certain barracoons belonging to the plaintiff, a Spanish subject, and releasing the slaves contained in them. The defendant's action was approved by the British Government. It was held that the action was not maintainable. In this case Baron Parke pointed out the essential distinction between ratification by a private individual and ratification by the Crown, where, he said, an individual ratifies an act done on his behalf, the nature of the act remains unchanged, and the party injured may sue either party. Where, on the other hand, the Crown ratifies an act the character of the act becomes altered, and the effect of the ratification is to leave a remedy, such as it is, against the Crown only, and actually to exempt from all liability the person who commits the trespass. Whether the remedy against the Crown is to be pursued by petition of right, or whether the injury is an act of State without remedy, except by appeal to the justice of the State which inflicts it, or by application of the individual suffering to the government of his country, to insist upon compensation from the government of this-in either view, the wrong is no longer actionable (3). 2. Judicial acts form another exception, the rule being that Judicial "no action will lie against a judge for any acts done, or words acts. spoken, in his judicial capacity in a court of justice" (*). In a well-known case in which the action was against a county court judge in respect of words spoken by him in his capacity as judge whilst sitting in the court, in which he had said of the person who was then before him as defendant, but who subsequently became plaintiff in the action against the judge, “You are a harpy preying upon the vitals of the poor." The law on this subject and the reasons for it were admirably summed up as follows: "A series of decisions uniformly to the same effect, extending from the time of Lord Coke to the present time, establish the general proposition that no action will lie (1) Stephens Hist. Crim. Law, vol. ii. p. 61. (2) 2 Ex. Rep. 167. (3) Buron v. Denman, 2 Exc. Rep. 167. (4) Doswell v. Impey, 1 B. & C. 163, and see Clerk and Lindsell on Torts, p. 576 et seq. Judges. 454 against a judge for any acts done or words spoken in his judicial capacity in a court of justice. This doctrine has been applied not only to the superior courts, but to the court of a coroner and to a court-martial, which is not a court of record. It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law independently and freely, without favour and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. How could a judge so exercise his office if he were in daily and hourly fear of an action being brought against him, and of having the question submitted to a jury whether a matter on which he had commented judicially was or was not relevant to the case before him? Again, if a question arose as to the bona fides of the judge it would have, if the analogy of similar cases is to be followed, to be submitted to the jury. Thus, if we were to hold that an action is maintainable against a judge for words spoken by him in his judicial capacity, under such circumstances as those appearing on these pleadings, we should expose him to constant danger of having questions such as that of good faith or relevancy raised against him before a jury, and of having the mode in which he might administer justice in his court submitted to their determination. It is impossible to overestimate the inconvenience of such a result. For these reasons I am most strongly of opinion that no such action as this can, under any circumstances, be maintainable" (1). The law, however, appears to draw a distinction between judges of the superior and of the inferior Courts in this respect. In the case of a judge of a superior Court it is presumed that he has jurisdiction until the contrary is proved. The judge of an inferior Court must, on the other hand, prove that the alleged wrongful act complained of was within his jurisdiction (2). 3. Executive Acts.-Acts done by naval or military officers in the execution of their duty form also an exception. An action will not lie against the serjeant-at-arms of the House of Commons for excluding a member from the House in obedience to a resolution of the House itself (3). (1) Per Kelly, C.B., in Scott v. Stansfield, L. R. 3 Ex 220. (2) Houlden v. Smith, 14 Q. B. 841. (3) Bradlaugh v. Gossett, 12 Q. B. D. 271, 4. Acts authorized by Statute.-"I take it," said Lord Blackburn in the case of Geddis v. Proprietors of Bann Reservoir (1), "without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature ha authorized, if it be done without negligence, although it does occasion damage to any one, but an action does lie for doing that which the legislature has authorized if it be done negligently." On a somewhat similar principle the law confers the privilege of immunity from actions upon private persons for quasi-judicial acts. For instance, universities, club committees (2), parents, and persons in loco parentis, are allowed by the law to exercise disciplinary powers, subject, however, to the restriction that they must be exercised bona fide and in a reasonable manner. (1) 3 App. Cas. 435; 29 Ch. Div. p. 108. (2) Dawkins v. Antrobus, 17 Ch. D. 615; see further on this subject, Pollock on Torts, p. 92, et seq.; Frazer on Torts, p. 8. CHAPTER III. DIVISION OF TORTS. Torts may conveniently be considered under the following heads : Torts to the person and reputation; Torts to property, whether real or personal; Torts not directly affecting persons or property. PERSONAL WRONGS. Under this head are comprised assault, battery, and false imprisonment. ASSAULT AND BATTERY. The wrong called assault is committed when any one puts another in instant fear of unlawful force, though no force be actually applied. The following are examples of acts which would each be held to amount to an assault. Striking at a person with, or without a weapon, or presenting a gun at him at a distance to which the gun will carry, or pointing a pitchfork at him standing within the reach of it, or holding up one's fist at him, or drawing a sword and waving it in a menacing manner. There must be an act fitted to put a reasonable person in present fear of violence in order to constitute an assault. Where a man put his hand upon his sword and said, "If it were not assize time I would not take such language from you," such action was held not to be an assault as the words used showed that there was no present intention of striking (1). In the case of Stephens v. Myers (2), Tindal, C.J., in his charge to the jury laid down very carefully the law on this subject. In that case the plaintiff was the chairman of a parish meeting, and the defendant a person whose conduct at the meeting was such that a motion was made and carried by a large majority that he (1) Tuberville v. Savage, 1 Mod. 3. (2) 4 C. & P. 349. |