SUB-TITLE (II): PLAINTIFF'S CONSENT TO HARM (LEAVE AND LICENSE) Topic 1. In general 606. JUSTINIANUS. Digesta. (47, 10 de injuriis, 5.) Ulpianus. Si volentem filium quis vendiderit, patri suo quidem nomine competit injuriarum actio, filii vero nomine non competit, quia nulla injuria est qui in volentem fiat. 607. JOHN AYLIFFE. A New Pandect of the Roman Civil Law. (1734. Book IV, Tit. XXXIV, p. 594.) Properly speaking, an injury is not done to a person that consents thereunto. For it is one thing to damnify a person, or to do an unjust thing, and another to do an injury. For I may do a thing that is unjust, which I may think to be just. But an injury is not done without an intent of hurting. Hence a person may of his own accord suffer injustice; but no one can suffer an injury, unless it be against his will; an injury being only done to a person, when the act is contrary to his will and to that right which is due to him.1 608. JOSEPH CHITTY. A Treatise on Pleading. (1866, 13th Amer. ed., Vol. I, p. 1106.) And for a further plea in this behalf, the said defendant by leave, etc. says (actio non, as ante, 906, third form). Because he says, that he the said defendant at the said several times when etc., by the leave and license of the said plaintiff to him for that purpose first given and granted, to wit, at etc. (venue) aforesaid, committed the said several supposed trespasses in the said declaration mentioned; as he lawfully might for the cause aforesaid. - And this, etc. (Conclude with a verification, as ante, 907, sixth form). 609. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XX, p. 522.) "Trespass" (M, a). 2. In trespass it is a good plea that the place where is the common gaol of the sheriff of L. and that W. N. is gaoler, who licensed the defendant to enter to speak with a prisoner, by which he did it, which is the same trespass; and a good plea, per CHOKE, J. Brooke, Trespass, pl. 332, cites 14 E. 4, 8. 3. So where a parker licenses a man to drink with him in his lodge, though the license is derived by a servant, and not by the owner; per CHOKE, J. Brooke, Trespass, pl. 332, cites 14 E. 4, 8. 610. WINTER v. ROCKWELL KING'S BENCH. 1807 8 East 308 THIS was an action on the case for a nuisance, wherein the plaintiff complained that being lawfully possessed of a dwelling house with the 1 [CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS EXCUSE: A. J. Willard, "Principles of the Law: Personal Rights," c. XX, Individual Redress and Protection," pp. 174-177. Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. XIII, § 427, p. 425.] appurtenances in Long Acre, etc. (Westminster,) into which the light and air entered by means of a window from a certain open area between the said window and an adjoining house; by means of which open area also noisome smells, which came from the adjoining house, evaporated without occasioning any nuisance to the occupier of the plaintiff's house; the defendant wrongfully placed a sky-light over the area above the plaintiff's window, by means of which the light and air were prevented from entering the plaintiff's window into this house, and noisome smells arising from the adjoining house were prevented from evaporating, and entered the plaintiff's dwelling house, etc. Plea, the general issue. At the trial before Lord ELLENBOROUGH, C. J., at the last sittings at Westminster, the defence set up was that the area which belonged to the defendant's house had been inclosed and covered by a sky-light in the manner stated, with the express consent and approbation of the plaintiff, obtained before the inclosure was made, who also gave leave to have part of the frame-work nailed against his wall. But some time after it was finished, the plaintiff objected to it, and gave notice to have it removed. But his lordship was of opinion, that the licence given by the plaintiff to erect the sky-light, having been acted upon by the defendant, and the expence incurred, could not be recalled and the defendant made a wrong-doer; at least not without putting him in the same situation as before, by offering to pay all the expences which had been incurred in consequence of it; and under this direction the defendant obtained a verdict. Wigley (in the absence of the Attorney General) now moved for a new trial; but after stating the point, Lord ELLENBOROUGH, C. J., said: That he had afterwards looked into the books upon this point, and found himself justified by the case of Web v. Paternoster (best reported in Palmer 71, but reported also in other books), where HAUGHTON, J., lays down the rule, that a licence executed is not countermandable; but only when it is executory. And here the licence was executed. Wigley thereupon waived his motion. 611. DITCHAM v. BOND NISI PRIUS. 1814 3 Camp. 524 TRESPASS for breaking and entering the plaintiff's dwelling-house, and making a great noise and disturbance therein, etc. and for assaulting and beating him and his servant. The defendant pleaded to breaking and entering the house a licence, with other pleas to the rest of the declaration. Replication to all the pleas, de injuria, etc. It appeared that the plaintiff keeps several billiard tables in his house, at which all persons may play, paying certain regulated prices by the game or hour. There is no board or sign on the outside of his house, stating that billiard tables are kept there; but the outer door always remains open, and gentlemen walk up stairs to the billiard rooms, if any happen to be disengaged, or if not, they wait in a parlour below. On the 18th of May the defendant entered the house, and insisted on walking up stairs to the billiard rooms, although they were all engaged; struck the plaintiff, who wished to prevent him, and made a great disturbance in the house for a considerable while after. It was insisted, for the defendant, that he was entitled to a verdict on the plea of licence, as the plaintiff must be supposed to have consented to all persons entering the house for the purpose of playing at billiards. The defendant might have been guilty of some excess; but that could not be taken advantage of for want of a new assignment. On the other side it was contended, that the keeping of billiard tables, under these circumstances, was no evidence of licence, and that at any rate the defendant by his subsequent conduct had made himself a trespasser ab initio. Lord ELLENBOROUGH, C. J. The keeping of a billiard table amounts to a licence given by the party. I think the plaintiff was bound to new assign. The distinction is taken in the Six Carpenters' Case between a licence given by the party, and a licence given by the law. If the defendant exceeds the latter, as by committing a trespass in an inn, he is a trespasser ab initio; but an excess of the former must be taken advantage of by new assignment. The plaintiff had a verdict, with £5 damages for the assault upon himself and his servant. Garrow, A. G., and Cross, for the plaintiff. 612. WINTER v. HENN NISI PRIUS. 1831 4 C. & P. 494 CRIM. CON. The plaintiff, better known by the name of Spring, the boxer and champion of the English prize ring, kept the Castle Tavern, in Holborn; and the defendant was a hatter, carrying on business in that neighborhood. The plaintiff and his wife were at Hereford, in the year 1821, and then came to London, and lived for two years in London, keeping the Weymouth Arms; after this, they returned to Hereford. . . . It happened, that the wife went to live with her father for a time while they were at Hereford, in consequence of some disagreement. . . . With respect to the elopement, it did not appear with whom, if with any one, Mrs. Winter left her husband's house; but it was proved that on the 27th of August, 1830, the defendant called at the Mulberry Tree public-house at Stepney, between 10 and 11 in the morning, and ordered some refreshments, and said that he expected a lady would be with him in about an hour. About that time he came again and the plaintiff's wife with him in a gig; they dined at the house. . . . And the plaintiff's wife remained there till the 8th of September, the defendant coming and being with her for some time every day. . . Taddy, Serjt., for the defendant. The plaintiff is to have compensation for what he has lost, and if he has lost nothing, he is entitled to nothing. It goes not only to the damages, but to the action; because the ground of the action is, the loss of comfort and assistance. On the part of the defendant, a letter written by the plaintiff to his wife was put in and read. It was dated July 26th, and was as follows:"After receiving your farewell letter, I was rather surprised at receiving another from you. As far as regards your seeking that kindness from strangers, which I deny you, you seeked their favours when you had me to fly to, therefore I do not wonder at your doing so now. You say, you will bid adieu to England and deception. . . . But whosoever may be the partner of your flight, I hope he will make you more happy than I have been for a long time, or ever shall be. ALDERSON, J. (in summing up), said- there are two questions in this case: First, whether the defendant is entitled to the verdict or not, and secondly, if he is not, and the plaintiff is, then, what amount of damages ought to be given. I apprehend the law to be that the plaintiff will be entitled to recover, unless he has, in some degree, been a party to his own dishonour, either by giving a general license to his wife to conduct herself as she pleased with men generally, or by assenting to the particular act of adultery with this defendant, or by having totally and permanently given up all the advantages to be derived from her society. If you should be of opinion that the plaintiff has done any of these three things, then the defendant will be entitled to your verdict. . . . There is a part of this letter which may also be material for you, when you are considering whether the plaintiff had, at the time when he wrote it, and before the adultery with the defendant, permanently given up all intention of living with his wife; because, if he had, it seems to me (and if I am wrong, I may be set right hereafter), that he cannot set up the loss of what he had voluntarily relinquished as the ground of a claim for compensation. If you think that this letter was a permanent giving up of the society of his wife, before the act of adultery with the defendant, then you will find your verdict for the defendant; if you do not think so, then you will find your verdict for the plaintiff, with such damages as you think a person who has written such a letter is entitled to claim from a Jury of the country for the loss of his wife. Verdict for the plaintiff. Damages £150. Wilde, and Jones, Serjts., and Justice, for the plaintiff. 613. FONVILLE v. M'NEASE COURT OF APPEALS OF SOUTH CAROLINA. 1838 Dudley, Law, 302 THIS action was on the case for a libel. The words which constituted the cause of action were contained in a sealed letter directed to the plaintiff or "Miss Susan Sloan," but delivered to and opened by the plaintiff himself. . . . A witness testified, that she picked up a sealed letter within her enclosure, which she believed to be the same as that on which this action was brought. Not being able to read the superscription herself, her son informed her that it was directed to the plaintiff. She carried it to him, and he broke it open, and read it aloud in her presence. A motion was made for a nonsuit, 1st. Because the expressions contained in the letter were not actionable by themselves, without special damage; and 2d. Because there was no proof of publication by the defendant. The presiding Judge granted the motion, and the plaintiff appealed, and moved to set aside the nonsuit ordered, on the following grounds: 1st. That the written words proved, are actionable per se. 2d. That there was sufficient proof of publication by the defendant. Dargan, for the motion, argued. . . . Considering this letter as addressed "to Miss Susan Sloan," as well as to plaintiff, it falls precisely within the principle established in all those cases where the sending a libellous letter to a third person has been held actionable. . . . In a civil action for libel, it is the tendency to injure the plaintiff's reputation, and not any actual injury, which constitutes the gist of the action. . . . Here then was an express authority, given by the plaintiff's own superscription on the letter to a third person, to open the letter. . . . Sims, contra. O'NEALL, J., delivered the opinion of the Court. . . . ... Upon the second ground, a majority of the Court agree with the Judge below, that there was no publication. There is a great distinction in this respect between an indictment, and an action of slander, for a libel. In the first, the end is to prevent a breach of the peace; and hence a publication to the party of whom is written will be enough. In slander, the object is to redress the party for an injury done to his character, which is nothing more than the good opinion of his neighbors and acquaintances. If the knowledge of the slander be altogether confined to himself, he has sustained no damage. If the defendant only communicated the slander to the plaintiff, then he has committed no wrong for which he is liable civilly. If the plaintiff afterwards makes public the charge, the defendant is not answerable for the consequences for the act of publication is not his. These principles seem to me so |