maliciously causing process to be issued.129 In malicious prosecution, as has been seen, lack of probable cause must be proved, and the proceeding must have terminated. On the other hand, while there may have been probable cause for instituting the proceeding, and the latter may still be pending, the process may have been used oppressively, or to effect a purpose not within its scope.'

130

But, though it is established that the proceeding need not have terminated,181 it has been said that probable cause must be negatived. 182 What is probably meant is that, though there may have been probable cause for the original proceeding, there should have been none for the specific acts of which complaint is made.188

for the purpose of harassing debtor's employers and thereby compel him to pay to avoid discharge).

129 Dickerson v. Schwabacher, 177 Ala. 371, 58 South. 986; Bonney v. King, 201 Ill. 47, 66 N. E. 377; Bartlett v. Christhilf, 69 Md. 219, 14 Atl. 518; Wright v. Harris, 160 N. C. 542, 76 S. E. 489.

130 Page v. Cushing, 38 Me. 523; Zinn v. Rice, 154 Mass. 1, 27 N. E. 772, 12 L. R. A. 288; Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 143 N. C. 54, 55 S. E. 422; GRAINGER v. HILL, 4 Bing. N. C. 212, 7 L. J. C. P. 85, 5 Scott, 561, 33 E. C. L. 695, Chapin Cas. Torts, 297.

131 See cases cited in previous note; also Dishaw v. Wadleigh, 15 App. Div. 205, 44 N. Y. Supp. 207; Lockhart v. Bear, 117 N. C. 298, 23 S. E. 484.

132 Nix v. Goodhill, 95 Iowa, 282, 63 N. W. 701, 58 Am. St. Rep. 434; Malone v. Belcher, 216 Mass. 209, 103 N. E. 637, 49 L. R. A. (N. S.) 753, Ann. Cas. 1915A, 830.

133 Cf. Hearn v. Shaw, 72 Me. 187, 193. "We should be careful to observe a distinction between suing out a writ and the improper use of the writ after it is issued." Nix v. Goodhill, 95 Iowa, 282, 284, 63 N. W. 701, 58 Am. St. Rep. 434. But the court does not appear to have given this effect.

UNAUTHORIZED SUIT IN ANOTHER'S NAME

102. To bring suit in another's name without his authority constitutes an actionable wrong, if damage is caused thereby.

Lack of probable cause is not required to be shown, since this tort is based upon the improper use of another's name in prosecuting a suit by which the nominal plaintiff 134 or the defendant 185 therein was injured. Nor is proof of malice essential. "If the party supposes he has authority to commence a suit, when in fact he has none, and the nominal plaintiff does not adopt it, the action fails for want of such authority. In such case, though the party supposed he had authority, and acted upon that supposition, without malice, still, if the defendant suffers injury by reason of the prosecution of the unauthorized suit against him, he may maintain an action for the actual damage sustained by him, in the loss of time, and for money paid to procure the discontinuance of the suit, but nothing more. Where, however, in addition to a want of authority, the suit commenced was altogether groundless, and was prosecuted with malicious motives, which may be inferred from there existing no right of action, as well as proved in other ways, then, in addition to the actual loss of time and money, the party may recover damages for the injury inflicted on his feelings and reputation." 130

134 Metcalf v. Alley, 24 N. C. 38; Hackett v. McMillan, 112 N. C. 513, 17 S. E. 433, 21 L. R. A. 862.

135 See cases cited in succeeding note.

136 BOND v. CHAPIN, 8 Metc. (Mass.) 31, 33, Chapin Cas. Torts, 298, per Hubbard, J. See Moulton v. Lowe, 32 Me. 466; Smith v. Hyndman, 10 Cush. (Mass.) 554; Streeper v. Ferris, 64 Tex. 12. See Code Civ. Proc. N. Y. §§ 1900, 1901, giving a cause of action to the defendant in the original suit and to the party whose name was used; the former being allowed treble damages, and the latter his actual damages and $250 in addition. But the former action must have been commenced or continued "vexatiously or maliciously." Cf. Hawes v. Dunlop, 136 App. Div. 629, 121 N. Y. Supp. 380.

MAINTENANCE AND CHAMPERTY

103. "Maintenance [is] an officious intermeddling in a suit that noways belongs to one by maintaining or assisting either party with money or otherwise to prosecute or defend it," 187 and an action may be maintained at common law to recover damages therefor. Champerty "is a species of maintenance, *** being a bargain with a plaintiff or defendant campum partire to divide the land or other matter sued for between them, if they prevail at law, whereupon the champerter is to carry on the party's suit at his own expense.'

99 138

Maintenance and champerty were at one time of some importance, owing to the practices of a class of nobles, who by their great power and influence could overawe the courts and pervert the course of justice.139 But, conditions having changed, actions based thereon are not now frequent.140 Indeed, it has been doubted in some states,141 and in others denied,142 that the common-law doctrine of champerty or maintenance ever formed part of their jurisprudence,

137 4 Blackstone's Comm. 134 (quoted in Vaughan v. Marable, 64 Ala. 60, 66; Joy v. Metcalf, 161 Mass. 514, 515, 37 N. E. 671); 2 Story, Eq. Jur. § 1048 (quoted in Spicer v. Jarrett, 2 Baxt. [Tenn.] 454, 457).

138 4 Blackstone's Comm. 135 (quoted in Duke v. Harper, 2 Mo. App. 1, 4); 2 Story, Eq. Jur. § 1048 (quoted in Spicer v. Jarrett, 2 Baxt. [Tenn.] 454, 457). Readers of Samuel Warren's novel, "Ten Thousand a Year," will remember how "Mr. Quirk had, as well as Mr. Gammon, cast many an anxious eye" on these passages during their negotiations with the supposed owner of Yatton.

139 Sedgwick v. Stanton, 14 N. Y. 289, 297.

140 Goodyear Dental Vulcanite Co. v. White, 10 Fed. Cas. No. 5,602; Fletcher v. Ellis, 9 Fed. Cas. No. 4,863a; Bradlaugh v. Newdegate, 11 Q. B. D. 1, 52 L. J. Q. B. 454, 31 Wkly. Rep. 792.

141 Richardson v. Rowland, 40 Conn. 565; Wildey v. Crane, 63 Mich. 720, 30 N. W. 327; Sedgwick v. Stanton, 14 N. Y. 289; Browne v. West, 9 App. Div. 135, 41 N. Y. Supp. 146.

142 Mathewson v. Fitch, 22 Cal. 86; Schomp v. Schenck, 40 N. J. Law, 195, 29 Am. Rep. 219.

CHAP.TORTS-32

though in some statutes have been passed which preserve in part the ancient rule.143

While it is prima facie unlawful for a stranger to a litigation to take the quarrel upon himself and make it his own, an exception was early recognized in cases where one has maintained the suit "of his near kinsman, servant, or poor neighbor out of charity and compassion." 144 In a sense, therefore, lack of malice may be a defense, although proof of a malicious motive is not deemed essential. Nor need lack of probable cause for the original action or defense be shown. As maintenance contemplates an officious interference, it will not be established as against one who had an interest in the subject-matter of the action,145 or honestly believed that he had.146

By the weight of authority, agreements between attorney and client by which the former undertakes to render professional services for which he is to be paid out of the thing recovered are not champertous, where the attorney has not assumed payment of the costs and expenses of the litigation.147 In some states the matter is governed by

statute.148

143 See Wightman v. Catlin, 113 App. Div. 24, 98 N. Y. Supp. 1071. 144 Blackstone's Comm. vol. 4, p. 135; Harris v. Briscoe, 17 Q. B. D. 504.

145 Guy v. Churchill, 40 Ch. D. 481.

146 See Lewis v. Broun, 36 W. Va. 1, 14 S. E. 444.

147 Meeks v. Dewberry, 57 Ga. 263; GEER v. FRANK, 179 Ill. 570, 53 N. E. 965, 45 L. R. A. 110, Chapin Cas. Torts, 300; Aultman v. Waddle, 40 Kan. 195, 19 Pac. 730; Omaha & R. V. Ry. Co. v. Brady, 39 Neb. 27, 57 N. W. 767; Pittsburg, C., C. & St. L. Ry. Co. v. Volkert, 58 Ohio St. 362, 50 N. E. 924. But in the following an agree ment to pay costs and fees was upheld: Grace v. Floyd, 104 Miss. 613, 61 South. 694; Smits v. Hogan, 35 Wash. 290, 77 Pac. 390, 1 Ann. Cas. 297.

148 McCoy v. Gas Engine & Power Co., 152 App. Div. 642, 137 N. Y. Supp. 591.

Jan 24 145 1984

CHAPTER XIX '/

105.

106.

107.
108.

Elements-Duty to Exercise Care.
Duty of Occupant of Land.

Duty of Maker or Vendor of Chattel.
Duty of Keeper of Animals.

109. Standard of Care.

110.

111.

112.

Of Innkeeper and Common Carrier.

Determining Standard of Care-Res Ipsa Loquitur.
Damage.

113. Contributory Negligence.

DEFINED

104. Negligence consists in failing to fulfill a legal duty to exercise a proper degree of care, whereby damage

results to one to whom such legal duty is owing.

It is manifestly impossible to define this tort with any degree of exactness, since no fixed rule of duty can be established which will be applicable to all cases. The standard of care must be determined by the circumstances of each. A course of conduct consistent with the exercise of proper care under some conditions might under others exhibit the grossest negligence.1

Negligence, being a mere omission to exercise proper precaution, must be distinguished from intentional wrongs, whether the intent be actual or constructive. It presupposes culpable inadvertence, and is therefore inconsistent with the thought of malice or design. Hence such ex

1 See Pennsylvania R. Co. v. Coon, 111 Pa. 430, 440, 3 Atl. 234. Definitions are collected in 29 Cyc. 415 et seq.

2 Indiana, B. & W. Ry. Co. v. Overton, 117 Ind. 253, 20 N. E. 147; O'Brien v. Loomis, 43 Mo. App. 29; Proctor v. Southern Ry., 61 S. C. 170, 39 S. E. 351; Id., 64 S. C. 491, 42 S. E. 427. "Where an intention to commit the injury exists, whether that intention be actual or constructive only, the wrongful act ceases to be merely negligent