unlawful subject, and that he was run away when he should serve his prince."1 In the above twenty-six cases, not one of them comes within the definition which was supposed to give the Ecclesiastical Courts jurisdiction in defamation, viz., that the words spoken imputed to the person defamed a sin punishable by the Courts Christian. The great majority of the cases are those imputing theft, two imputed murder, one perjury, and one assault, while the rest of the cases impute offences neither cognizable by the Ecclesiastical nor the King's Courts. Probably, until the close of the 16th century, in matters of defamation, the Ecclesiastical Courts did pretty much as they chose. By this time, however, the King's Courts were beginning to exert their authority, and began to prohibit suits for defamation which were not strictly in order. The subsequent history of defamation in the Ecclesiastical Courts may be summed up as a gradual curtailment of their jurisdiction by the King's Justices. Throughout the 18th century, to the majority of lawyers at least, save in matrimonial, testamentary, and Church matters, the Ecclesiastical Courts must have seemed an anomaly. They had practically ceased to punish for sin, and cases of defamation were rare indeed at the beginning of the 19th century. It was, however, not until the year 1855 that the jurisdiction of the Ecclesiastical Courts over defamation was finally abolished by Statute. Like the jurisdiction over wills, that over defamation got into the hands of the Church mainly through the King's Courts refusing relief, and remained there for centuries. Even at the present day we can trace the effects of this in the somewhat curious distinction which our law makes between libel and slander. ARTHUR CLEVELAND. 1 Pub. Surtees Society, Vol. XXI. 282 III.-HOUSEHOLDER'S LIABILITY FOR DAMAGE CAUSED BY FALLING TILES, ETC. I' T is always surprising to find how little authority there is to determine the legal responsibility for many of the ordinary occurrences of daily life. The occurrence with which this article treats is supposed to be this:-A passer-by is walking down a street on, perhaps, a windy or snowy day, and a tile, or a chimney-pot, or piece of gutter from a house, falls upon him and injures him; has he any claim in damages against the occupier of the house, and if so, upon what grounds? It is assumed throughout this article that the occupier of the house is the freeholder, so as to avoid the complication of any question arising as between landlord and tenant. There is some uncertainty as to the law which determines the liability of the occupier of the house in these circumstances. The uncertainty arises from the decision in the case of Tarry v. Ashton.1 There is, however, a recent decision in the Irish Courts,2 in which the identical facts in question were dealt with, and in which Tarry v. Ashton was distinguished; but, until we have an authoritative English decision which either approbates or reprobates the Irish case and explains clearly the grounds of the decision in Tarry v. Ashton, it will not be possible to dispose of the view taken by some of the English text-books. The facts in Tarry v. Ashton were these:-A heavy lamp was suspended from a house by an iron bracket projecting over the highway. The lamp fell and injured a passer-by. The occupier of the house knew of a defect in the bracket and employed a "contractor" to repair it, who, however, failed to effect a proper repair to a flaw in the iron. A 1 [1876], I Q. B. D. 314. 2 Palmer v. Bateman ([1908], 2 Ir. R. 393). Court composed of three judges-Blackburn, Lush and Quain, JJ.,-unanimously decided in favour of the plaintiff, but based their judgments upon different grounds. It seems that Blackburn, J., rests his decision either upon the ground of negligence or of nuisance; while the other two judges use language which may imply that they regard the occupier of the house as being under an absolute duty to see that no injury befalls passers-by. In the Irish case (Palmer v. Bateman) a piece of gutter fell from the roof, owing to the rusting through of a screw, and injured a passer-by. The occupier knew of no defect, and there was evidence of due diligence on his part: the gutters were cleaned out every two years, and in the year previous to the accident the roof and gutters had been twice properly inspected. A Court of First Instance, a Divisional Court and the Irish Court of Appeal, all found in favour of the defendant. It will be necessary, therefore, to discuss the possible liability of an occupier of a house in the circumstances described at the beginning of this article under the heads of (a) negligence, (b) nuisance, (c) absolute responsibility, and see how far Tarry v. Ashton, the Irish case, and the view taken by the English text-books, can be reconciled with each other. In the first place, any abnormality of climatic conditions -heavy rain, snow or wind-can be easily dealt with. "Act of God" is some cause due to natural causes directly and exclusively without human intervention, and such that could not have been prevented by any amount of foresight and pains and care reasonably to be expected1; and even should climatic occurrences amount to Act of God, an Act of God only excuses, if it is the immediate cause of the damage.2 1 Nugent v. Smith ([1876], 1 C. P. D.), at p. 444. But it may be said, surely weather is material, at all events as regards negligence, for the amount of care to be required depends upon the weather to be reasonably expected? It will appear, however, from what is said below, that we are dealing with due diligence in keeping in repair, and not, at any rate, as far as negligence is concerned, with avoiding results. A building so flimsy as to be dangerous in bad weather might constitute a nuisance, and as to a latent defect brought to light by bad weather, liability for that would depend upon the kind of duty there is upon the occupier, which is about to be discussed in this article. First, then, as to negligence on the part of the occupier. It is clear, even without the Irish case, which expressly turns upon the question of negligence or no negligence, that the occupier of a building is responsible for any damage caused by negligence. It is a well-settled principle of the Law of Torts that everyone is bound to exercise due care towards his neighbours in his acts and conduct, and if a man has been negligent in keeping the roof of his house in repair, there is no difficulty in making him responsible for any injury caused by his neglect—“ Sic utere tuo ut alienum non lædas." If an accident has happened, the plaintiff will succeed unless defendant can prove due diligence. In other words, the accident will be prima facie evidence of the accident, and will shift the burden of proof on to the defendant, and in the absence of proof by the defendant of his diligence, there is no need for the plaintiff to prove negligence by the defendant; but the plaintiff will not succeed if the defendant does in fact prove due diligence.2 1 Scott v. London Dock Company (3 H. & C. 596); Kearney v. L.B. & S. C. Ry. ([1870], L. R. 5, Q. B. 411); ([1871], L. R. 6, Q. B. 759). 2 Palmer v. Bateman ([1908], Ir. R. 393), qualifying the statement in Pollock on Torts, 8th Ed., at p. 517, as to the application of the principle "res ipsa loquitur." The occupier will be responsible, according to the wellknown principle of tort, for the negligence of his servant, and Tarry v. Ashton must at any rate be taken as authority for saying that if the occupier knew of any defect, or if he ought to have become aware of any defect by proper inspection, employing a contractor to make repairs, who in fact fails to do so, will not relieve the occupier from liability. But suppose the defendant can prove due diligence, is that an end of the matter, and is the plaintiff bound to fail in his action? If the Irish case of Palmer v. Bateman1 is correctly decided, the answer must be in the affirmative, and the Irish case must be good law, unless it is possible to substantiate liability on either of the other two grounds above mentioned-nuisance or absolute responsibility. 66 First, as regards nuisance. It may be that Blackburn, J., in Tarry v. Ashton, rested his judgment on the grounds of nuisance. That nuisance was in his mind is shown by his question during argument: "Was the lamp in such a state as to be a nuisance, if so, was it to the knowledge of the defendant ? In his judgment in that case he says that the occupier is liable "if he discovers the defect and does not cure it" or "if "he did not discover what he ought on investigation to have "discovered." Compare with this the responsibility for nuisance as stated in Barker v. Herbert, where it says: "There can be no liability upon the part of the possessor "of land, unless it is shown either that he himself or some person for whose action he is responsible created that 66 danger which constitutes a nuisance to the highway, or "that he has neglected for an undue time after he became aware of it, or, if he had used reasonable care, ought to "have become aware of it, to abate or prevent the danger "or nuisance." And, again, "He cannot be said to have 1 Supra. 2 L. R. [1911], 2 K. B. 633. 3 Vaughan Williams, L.J., at pp. 636-7. |