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cised against her by any of the employes of the the very grossness of the act itself malice may be defendant.

inferred. Here, without the slightest evidence It seems to us, when we consider the situation that this plaintiff was in any way connected with of the plaintiff, that she was in the store of the the disappearance of the watch in question, it is defendant surrounded by persons who were em- proclaimed to her that she must be searched; in ployed by the defendant to detect crime, substan- other words, she will have to submit to a search; tially accused of being a thief and with the and surrounded as she was by the servants of the statement made to her, “ You will have to be defendant, possessing authority to act, she subsearched,” that this was the exercise of such a mits. It is clear that from an act of this kind the dominion over her as that the jury might very jury might infer legal malice. properly find that restraint was exercised, and that There is also an exception to that part of the the subsequent proceedings were simply carrying charge in which the court said that the deíendant out the threat that they would search her. Under might be liable for acts of injury or insult if they such circumstances the plaintiff certainly was not occurred in the course of the employment. It required to offer physical resistance to this un- seems to be hardly necessary to discuss an excepjustifiable proceeding against her. The jury hav- tion of this character. ing resolved this question in her favor, there We now come to the requests to charge. There seems to be no ground whatever for this court to are a large number of these requests, which the interfere. The authority of the employes of the court refused to charge further than he had already defendant is established beyond peradvanture by charged. Upon an examination of these requests the testimony of the defendant himself. These it will be seen that they are all embraced within were the agencies employed by him for the pro- one proposition, namely, that the plaintiff cannot tection of his property; and these people in the recover unless she proves that she was detained. proceedings taken by them were acting clearly Various requests were made, among them “ that within the scope of the authority which had been the plaintiff had sworn that she went willingly to conferred upon them.

the room where she claims she was searched." The next question we are called upon to deter- In regard to this proposition, it is apparent from mine is whether the learned judge in his charge the evidence that it was a question for the jury to gave any erroneous directions to the jury or re- determine whether the plaintiff was detained or fused any request to which the defendant was enti- not. The jury were not bound to find that she

went willingly to the room to be searched, simply The exception of the defendant to that portion because she did not actually resist. She was surof the charge wherein it is stated that the plain- rounded by superior force, to contend against tiff inust prove that there was an absence of prob- which was beyond her physical powers, and she able cause for arrest, is clearly no ground for a had been told what she had to do, and she surrennew trial, because, if the court was in error, as it dered unconditionally; and that is all there is as to probably was, in the proposition enunciated, it was her submission and willingness to be searched. placing an additional burden upon the plaintiff, The jury found such to be the facts, as they proband in no way operated injuriously to the defend-ably were. Under these circumstances the court ant.

was justified in refusing to charge such a request. Equally immaterial was the exception to that | The court had expressly charged that the claim part of the charge which stated that false impris- against the defendant was for false arrest and imonment is the unlawful restraint of a person con- prisonment, and that the first question to be detrary to his will either with or without process of cided by the jury was whether there was an arrest. law; and that it comprises two elements first, Then the court defines what false imprisonment is, the detention of the person, and second, the un- namely, unlawful restraint of a person contrary to lawfulness of such detention. There was no ques- his will; and further charges the jury that if a tion of process in this case. It was a question of person insists upon proving her innocence of an detention and of the unlawfulness of the detention, accusation expressed or implied, by exhibiting the and that only; and the proposition excepted to contents of her pockets or her satchel, and goes was entirely immaterial and had no relation to the voluntarily to a room for that purpose, the mere facts of the case.

act of accompanying her there for such purpose There was also an exception to the submission by one or more persons would not constitute to the jury of any question of malice in the case. either arrest or imprisonment. Here was clearly The proposition of the court in that regard was placed before the jury the fact that there must be entirely correct. The law imputes malice to an a detention against the will of the plaintiff in unlawful act. There is undoubtedly a difference order that there might be a recovery. Under these between malice which the law iniers from the act circumstances it seems to me the court was enitself and malice which is the product of a proved tirely justified in refusing to charge further upon mental operation. The court had the right to such proposition. submit the question of malice in this case. From The exception to the refusal to charge that if



the jury believed as testified to by Miss Cantwell, ful user by the plaintiff of his adjoining land. by Mr. Carpenter, the officer Hannon and the Lord Justice Collins said that the public's right of other witnesses for the defendant, that she was at user is to pass and repass, with legitimate and periect liberty to leave the store at any moment reasonable extensions; as an example of which they must find a verdict for the defendant is clearly Lord Justice Smith instanced sketching on the untenable. The other witnesses of the defendant side of the road. “Then,” said Lord Justice Coldid not swear to that effect; and it is a little lins, “if we find a person using the highway outdoubtful whether the construction of the evidence side the purpose for which it was dedicated to the given by all the witnesses named is of the character public, that throws us back on the intent with described in the proposition.

which he entered,” referring to the Six Carpenters' It is further urged that there was no ground for case. Both Lords Justices Smith and Romer held awarding punitive damages; in other words, that the case before them to be covered by Harrison there was no express malice proved, and therefore v. Duke of Rutland (41 W. R. 322; 1893, 1 Q. B. no foundation for punitive damages. It will be 142). seen, when we consider the nature of punitive dam- In Harrison v. Duke of Rutland the trespass ages, that the case falls within the rule permitting consisted in being on the highway for the purthem to be awarded. Punitive damages are given pose of preventing the owner from lawfully using not only as a punishment to the defendant for a it and his adjoining land for sporting. Lord wrongiul act, but also as a warning to others. Justice Kay in his judgment reviews many of the Although there was no evidence of any express The language of Crompton, J., in Reg. v. malice against this plaintiff individually, the act Pratt (4 E. & B. 860) is: “If a man use the land was done in pursuance of a system which had been over which there is a right of way for any puradopted in that store; and if this system was such pose, lawful or unlawful, other than that of passas to place an innocent customer in the position ing and repassing, he is a trespasser." This, said in which the plaintiff's evidence shows that she was Kay, L.J., must be read with the obvious qualifiplaced, the jury had the right to say that the cation that the trespass referred to must be a purresults of this system were of such a character as pose of using the soil of the highway itself to require rebuke by way of punitive damages, in otherwise than by merely passing and repassing. order that innocent people should not be placed He meant, we take it, that the ulterior reason for in the position which this plaintiff was placed which the man wants to get over the ground is without any fault upon her part.

immaterial. That he is traveling in order to comJudgment and order should be affirmed, with mit a burglary does not make him a trespasser. costs. All concur.

But that he is on the highway to use it as a resting place, or a gazing place (lawful things in them

selves), or for depasturing cattle (unlawful as TRESPASS ON HIGHWAY.

against the owner of the soil), would make him a

trespasser. N owner of land crossed by a highway, and of It is easy to appreciate such law if the highway

the soil of the highway, used part of the land is used for some collateral purpose which interfor training horses. A racing tout walked to and feres with the owner's rights or property on or fro on the highway observing the horses exercise, over the way itself, as in Harrison v. Duke of and published notes of his observations. The Rutland, beyond the extent to which passing and landowner sued the tout for trespass to the high- repassing would interfere with them. The duke, way (Hichman v. Maisey, 48 W. R. 385). The in the case referred to, was sporting and driving jury were directed by Mr. Justice Day that if the his game across his own freehold of the highway, defendant had frequented the highway, not for and the trespasser went on the road solely to prethe purpose of passing and repassing along it as vent this being done. When, however, there is an ordinary wayfarer, but for the purpose of carry- 110 such interference, curious refinements arise. ing on his business there by watching race horses, In the case of the racing tout, the owner's property it was a trespass; but that is the defendant had in the highway was not disturbed; the soil or only used the highway for the purpose for which growth of the road was not injured; the owner's it was dedicated to the public — that it, as a way- use and enjoyment of his freehold was not interfarer, to pass and repass along it - it was not a fered with. The offense was the bare one of trespass. The jury found that the defendant did using the way for gazing or observation; as if a not use the highway as an ordinary wayfarer, and man were on the road for the purpose of loitering judgment was entered for the plaintiff.

or lying down, or of standing to observe stars, This direction to the jury was affirmed on ap- or listen to a nightingale, or look at a waterfall. peal by A. L. Smith, Collins and Romer, L.JJ. It is true that Romer, L.J., says that the tout Lords Justices Smith and Romer held that it was came on the highway for the purpose of interfera trespass to use the highway (the plaintiff's freeing with the lawful user by the landowner of his hold) for the purpose of interfering with the law- own land, and the other lords justices seem to



mean the same thing. But, with unfeigned re- of the license to enter because it was not an absospect, we fail to see in what may the landowner's lute license, but only a license to enter for the use of his land was interfered with. Assuming purpose of being a customer. The right of passMr. Justice Crompton's dictum to be sound, the ing on the king's highway is a right irrespective, law appears to be that any use of a highway be- we should submit, of purpose or object. To say yond passing and repassing, and what is incidental that the right to use the road for the purpose of to passing and repassing, is unauthorized and a passing and repassing excludes any uther purpose trespass. A right of footway may, as has been or object appears to be mere juggling with words. held, justify a nursemaid wheeling a perambu- To use for the purpose of passing means to pass lator along a footpath, as an ordinary appendage and means nothing else. - Solicitors' Journal. to nurses out walking. So a man passing on a highway may pause, or rest, or look about him, incidentally to the main pursuit of journeying.

WHAT IS AN ACCIDENT? But he could not justify going on the road for the purpose of resting, gazing, or the like. As Lord THE word “accident ” holds a very important Esher (quoted by Collins, L.J.) said in Harrison place in legal phraseology. An important v. Duke of Rutland: “ Things are done upon high-branch of the common law of torts deals with the ways by everybody which are recognized as being liability for injury caused by accident." Then rightly done, and as constituting a reasonable and the growth of accident insurance has given rise to usual mode of using a highway as such. If a per- many cases in which the word “accident" has son on a highway does not transgress such rea- been judicially considered and interpreted. Fursonable and usual mode of using it, I do not think ther, recent legislation relating to the liability of he will be a trespasser. But if he goes on the employers for injuries to their workmen by accihighway, not for the purpose of using it as a high-dent has introduced it in a new connection in way, but for some other purpose, lawful or unlaw- which it is capable of receiving yet another disful, he is committing a trespass against the owner tinctive interpretation. It will, therefore, tend to of the soil.”

clear up some doubtsul points to trace the word to If there is a highway adjoining a racecourse, or its origin, and to try and classify its different legal a football field, or a nurseryman's flower garden, significations, with special reference to its use in and people go there to view the races, or the that difficult piece of legislation, the Workmen's match, or the flowers, from the road, and stand Compensation Act. 1897. on the road for that purpose, they are trespassers. The primary meaning of the word "accident " Supposing the owner of the soil of the road to is, according to Murray's Oxford English Dictionown also the racecourse, football field, or garden, ary, anything that happens," an occurrence, and that a profit by gate-money or charge foi incident, event.” In this sense it is used by admission to view is made on the racecourse, or Shakespeare in Othello” (I, iii, 135): field, or grounds, the case would be hard to distin-Oi moving accidents by flood and field.” But in guish from Hickman v. Maisey.

its secondary and popular sense it means, accordPractically, where the element of nuisance, an- ing to the same authority, "anything that hapnoyance, or damage is wanting, the law of tres- pens without foresight or expectation," and more pass with regard to highways seldom comes into particularly an unfortunate event, a mishap, and question. It is indeed quite possible that the sys- | hence more abstractedly implying an element of tem of watching pursued by a tout may be an chance, something fortuitous. Further, when used annoyance in the nature of a nuisance. If pursued popularly, the word accident usually imports an by a number of persons it might amount to an injury, however caused, and without special referactionable nuisance. Where this element of nuis- ence to legal liability. ance is absent, we confess to doubting the sound- At common law, however, the word accident " ness of the law which says that the public has a is used in a much narrower sense. It connotes right to pass and repass, but no more, and no negligence and only includes such events as result right to interfere with the soil or the owner's in injury caused by negligence. The common law rights therein, beyond such interference as is inci- term “accident" therefore implying legal liability, dental to passing and repassing; that passing and excludes “accidents” used in the true sense of the repassing along the road for the purpose of look word, and this is what is meant by saying that no ing at some view or spectacle in the adjoining one is liable at common law for injury caused by country is an unauthorized extension of the user. " inevitable accident.” By “inevitable accidents The difficulty is, why should the right to pass be are meant accidents which cannot be avoided by affected by the motive or object which the way- the exercise of reasonable human care and forefarer has in passing, or the incidental advantages sight, and this very definition negatives negligence. he gets by passing, so long as he does nothing It is only, then, for "avoidable” accidents (acciwith regard to the way itself except pass over it? dents, that is, which would not have occurred had In the Six Carpenters' case, there was an abuse reasonable care and foresight been exercised) that



a person is liable at common law. Strictly speak- used, it must be remembered that the injury must ing, however, to speak of avoidable accidents" be the result of an accident. The event which is a contradiction in terms, since, as we have seen, causes the injury must have the attributes of an the word “accident” imports something that hap- | accident. Although the injury arise out of and in pens without foresight or expectation that is, the course of the employment, the employer will could not be avoided.

not be liable unless it results from an accident -The numerous cases decided upon the construc- that is, have an element of the fortuitous and unextion of policies of insurance against injury and pected. This point is well illustrated on both sides death by accident throw considerable light upon by the recent group of cases, Hensey v. White, the meaning of the word accident. For although Lloyd v. Sugg, and Walker v. Lilleshall Coal Co. the actual decision has often turned upon the par-|(1900, 1 Q. B. 481). ticular form of the policy, yet the word accident In Hensey v. White a man died from injuries has frequently been judicially interpreted. In caused by a strain arising out of and in the ordiHamilton, Fraser & Co. v. Pandorf (12 App. Cas. pary course of his employment. The court refused 518) Lord. Halsbury said that something “fortui- compensation on the ground that the primary tous and unexpected " is involved in the word. cause of death was his weak state of health, iind Again, in many

cases the question has arisen that there was no fortuitous or unexpected element whether death was the result of disease or of an which had caused the injury. In other words, the accident. In such cases the decisive factor has injury had not been caused by an accident. A still been the answer to the question, Was the imme- more heroic attempt was made in Walker v. Lillediate cause of death the disease or was it the intro-shall Coal Co. to include in the word acciderit a duction of some fortuitous, unexpected element? case in which a man had suffered injury while The case of Laurence v. Accidental Insurance Co. working in the ordinary way of his trade. It was (7 Q. B. D. 216) well illustrates this distinction. argued that “accident” was used in its primary A man, who was insured under a policy excluding sense of “ anything that happens," so that the forfits, had a fit on a railway platform and fell off tuitous element, necessary to the secondary and under a passing engine. It was held that the acci- popular sense of the word, need not be presunt. dent of being run over by the engine was the But the court adhered to its decision in Hensey v. cause of death and not the fit. The engine was the W’lite. In Lloyd v. Sugg, however, where a workextraneous, fortuitous element.

mar. was injured on his hand by a mishit from the The liability of employers for accidents to their hammer of a fellow-workman, the court held that workmen was in the first instance governed by the

the injury was caused by an accident, although it ordinary common-law rule — that is, the employer

was aggravated by the fact that the workman sufwas only liable for his personal negligence (Tar- feied from gout. Thus it is clear that the act does rant v. Webb, 18 C. B. 787). Even this liability

not include cases in which the workman suffers was curtailed by the doctrine of common employ-injury owing to the dangerous character of his ment. The Employers' Liability Act, 1880, did trade,

trade, apart from any extraneous cause. It canno: not make any change in principle, but merely

be said that such injury is “ without foresighi or abolished in certain cases the operation of the

expectation.” It is not an accident. It is somedoctrine of common employment. The word acci

what curious that this defense — namely, that the dent is not used throughout the act. Up to this injury was not caused by an accident,” has not point, then, the employer was not liable to com

been more frequently invoked. It might often pensate his workmen for accidents in the true succeed in cases which approximate, but do not sense of the word at all. It was left for the Work- amount to, serious and wilsul misconduct. men's Compensation Act, 1897, to give the word If a man is guilty of gross negligence or reck'accident' a legal signification far wider than it lessness, he must be presumed to know the probhad ever had before. That act, in the employments able consequences of his acts, and, if injury is to which it applies, makes an employer liable to caused by such negligence or recklessness, it cancompensate his workman for every injury by not be called the result of an accident. Again, in accident arising out of and in the course of his several cases it has been held that disobedience io employment, unless caused by the serious and orders does not amount to serious and wilful miswiliul misconduct of the workman. The act does conduct so as to exempt the employer from lianot define the word accident, which is used in its bility under section 1 (2) (c) of the act. But if a widest sense, and must therefore include accidents man knows that the orders were given to avoid an in the true sense of the word, that is, inevitable obvious danger, and yet disobeys them and gets accidents, and accidents in the common-law sense injured, his injury is certainly not the result of an of the word, that is, accidents arising from negli accident. There is no element of the unexpected gence, even though that negligence be the work- al out such an accident. The man could probably man's negligence.

have foretold exactly why and how the accident But wide as is the sense in which the word is would happen.

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The act is a very sweeping one, and affords very à place of origin cannot become a valid tradefew cielenses to the employer. More attentior. riark of goods and products, and that “Oxford ” might probably profitably be given to this line of here is merely the name of the city of the plaintiff, delense, which arises out of a consideration of the and could not be exclusively used to distinguish true meaning of the word “accident." -- Solicitors' the plaintiff's Bibles. But this word is a part of Journal

the plaintiff's name, and as such has given name

10 the plaintiff's Bibles, and has to be a means of UNFAIR COMPETITION.

showing their origin. The defendant has no con

rection with the place or name, and this use of PROTECTION OF USE OF ADJECTIVE OF LOCALITY

the name by the defendant can be for no purpose AS PORTION OF TRADE NAME.

but to represent the defendant's Bibles as coming

from the plaintiff. The plaintiff has no copyright UNITED STATES CIRCUIT COURT - SOUTHERN of this work, and any one would, of course, have DISTRICT OF NEW YORK.

a clear right to print and publish it, but no one

would have a right in any false manner to repreApril, 1900.

sent such a product as the work of tire plaintiff. THE CHANCELLOR, MASTERS AND SCHOLARS OF The use of the name upon the defendant's Bibles

THE UNIVERSITY OF OXFORD WILMORE- had a tendency to so represent, and to confuse the ANDREWS PUBLISHING Co.

plaintiff's use of its name in its business. In equity.

That the plaintiff prints and publishes this work

in America as well as at the university makes it Rowland Cox for plaintiff; Louis F. Doyle for

rone the less the plaintiff's product, and confers defendant.

no right upon others to publish it in the name of WHEELER, J. — The University of Oxford, the plaintiff, or to use the plaintiff's name in pubEngland, is a body corporate known by the name

lishing it in America or elsewhere. and style by which this suit is brought. Books

The evidence does not show acquiescence of appear to have been printed by it as early as the

the plaintiff in use by others amounting to an fifteenth century, and letters patent for printing abandonment of right by the plaintiff, nor estabbooks of all kinds, including Bibles, to have been

lish that the name has thereby or otherwise begranted to it by King Charles I in the seventeenth

come merely descriptive of the Bibles instead of century. It has printed Bibles of many kinds representing their origin; nor that an Oxford prepared by its officers and scholars with great

Bible is merely the “ Divinity Circuit." care, which are generally known as Oxford Bibles;

The case shows sufficient interierence by the nc other Bibles are published at Oxford, and

deiendant to furnish ground for commencing the these are ordered, sold and bought by that name.

suit, and the ceasing of the interference by the Among the kinds is the Teachers' Bible, first pub- deíendant does not take away the right of the lished in 1876, which contains, besides the text, a

plaintiff to a decree, withi costs; sufficient percepManual of Helps to the Study of the Bible, full of

tion of profits does not, however, appear to warreliable information respecting the authors and

rant an accounting (Rahtjen v. Holzapfel, C. C. books of the Bible and Palestine, a concordance, A., Second Circ., April 11, 1900). indices, tables and maps. This, with new editions,

Decree for a perpetual injunction, with costs. has since been published and sold by that name continuously in this country and throughout the world. The defendant has printed and published

JOHN MARSHALL DAY. a Bible specified on the title page as an “Oxford Bible, the S. S. Teachers' Edition," and on the

To the Bench, Bar and Students of Law of the State back as a

of New York: Holy Bible, Oxford, S. S. Teachers' Edition." This suit is brought against this use of The time seems appropriate for calling your that name. The defendant denies any right of the attention to the action of the American Bar Assoplaintiff to the exclusive use of the word “Ox- ciation looking to the celebration of John Marshall ford ” upon Bibles and alleges that this name as Day, February 4, 1901. The occasion is the one applied to Bibles is used to designate and describe hundredth anniversary of the accession of John a style of Bible otherwise known as the “ Divinity Marshall to the position of chief justice of the Circuit," bound in soft flexible leather with over- United States. lapping edges; that the plaintiff has lost any right The chairman of the committee appointed for it may have had to the use of this word by permit- this celebration is Judge William Wirt Howe, of ting others to use it; that the Bible with which New Orleans. With him are associated one memthe defendant's is claimed to interfere was printed ber from every State. I have the honor to reprein this country; and that the defendant has alto- sent the State of New York on that committee. gether ceased using it.

The general plan for the national celebration at It is insisted for the defendant that the name of Washington is to hold a meeting on the day

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