prevent his breaking up a prize fight be brought under the head Ontario. of an attempt to prevent a breach of the peace (a).. RECAPTION OF PROPERTY (b). In trespass for breaking and entering plaintiff's barn New defendant justified on the ground that his cattle had been Brunswick. wrongfully taken by the plaintiff, who locked them up in his barn and refused to give them up. Held sufficient, and that the defendant had a right to take his cattle from the plaintiff, who was a wrongdoer (c). Where the plaintiff asked to be allowed to read a bond to Nova reconvey which he had given, and after reading it refused to Scotia. give a deed or to return the bond, the defendant recovered it by force, and his assault was held justified (d). RE-ENTRY ON LAND (e). A defendant entitled to possession of a house was held justified New in forcing open the locked door, possession having been refused Brunswick. him (ƒ). EXPULSION OF INTRUDER (9). Force may be used to expel an intruder if he has refused to Ontario. leave, but not more force and violence than necessary; otherwise the defendant will be liable for the excess (h). The defendant has a right to show that assault was committed New on his land in defence of his title (i). The law in Nova Scotia is to the same effect (k). Brunswick. Nova Scotia. The mere fact that an intruder refuses to leave upon the order Manitoba. or demand of the occupant does not constitute an assault by the intruder in the absence of some overt act of resistance (l). VIOLENT TRESPASS: LIMIT OF FORCE (m). Where the defendant's plea for shooting at and wounding Ontario. plaintiff was that it was done to prevent plaintiff and others (g) P. 152, supra. (h) Glass v. O'Grady, 17 U. C. C. (k) See Doucette v. Therio, 38 N. S. R. (1) Pockett v. Pool, 11 M. L. R. 275. Ontario. Nova Scotia. Canada. from entering and assaulting him, it was held that he should have first warned the plaintiff to desist and depart (a). DISTURBANCE IN A CHURCH. Where there was an action for assault and battery against fourteen defendants, their plea of justification was disturbance in a church (b). SHOOTING DOG (c). Where the defendant, driving a nervous horse and fearing an accident, shot a dog that kept barking and jumping at the horse, he was held justified (d). SPRING GUNS (e). The Criminal Code of Canada, s. 249, deals with setting spring guns and man traps. PROTECTION AGAINST FLOODS (ƒ). Where the owner of land is threatened with damage by water used for irrigation purposes coming from a higher level, he has a right to protect himself against such injury by all lawful means, without regard to any damage that may result to land of his neighbour from the measures he adopts (g). ABATEMENT OF NUISANCE (h). A person taking it upon himself to abate a nuisance (e.g., a mill dam) will be liable for any unnecessary damage to the plaintiff's property (i). The right to abate may be lost by acquiescence in the nuisance (k). WHEN there is a vested right of action for a tort it may be discharged by the death of one of the parties, by waiver, by accord and satisfaction, by release, by judgment recovered, and by the Statute of Limitations. Discharge by death has been dealt with in the chapter on Parties; it remains to consider the other methods (a). election. 1. If a man has more than one remedy for the same wrong and Waiver by elects to pursue one of them, giving the go-by to the others, he must stand and fall by his election; the other remedies are waived. "If a man's goods are taken by an act of trespass, and are subsequently sold by the trespasser and turned into money, he may maintain trespass for the forcible injury; or waiving the force he may maintain trover for the wrong; or waiving the tort altogether he may sue for money had and received" (b). Trespass waived by suing in trover. Thus, if a trespass to realty is committed, and portions of it such as minerals, timber, or fixtures, are severed, the injured party, waiving the unlawfulness of the severance, may sue in trover for the value of the severed chattels (c). So, if a man is unlawfully deprived of the possession of his property, which is afterwards sold or pledged (d), the owner may affirm the trans- and received. action, and sue the wrong-doer on a contract implied in law to Trover waived by suing for money had By agreeing to accept payment. Accord and satisfaction. refund the proceeds (g). The commencement of an action or of proceedings in bankruptcy to recover the money is evidence of an election to waive the tort, but not necessarily conclusive evidence. If, however, a final judgment or order is obtained in the action or proceedings, then the election is final (a). A mere demand of the money does not amount to an election (b); but in a case where the demand was assented to and a sum paid on account, it was held that the tort was waived (c). It would seem that the result would have been the same even though no payment had been made. In Brewer v. Sparrow (d), the defendant had sent to the plaintiff an account of the proceeds of certain goods converted by him, and after deducting expenses had paid over the balance, and it was held that the plaintiffs had waived their right to treat him as a wrong-doer. It is not, however, in every case that the mere receipt of the proceeds of a conversion operates as an election not to sue in tort. Thus, where the finder of a note had cashed it, and he being afterwards arrested on a charge of larceny, some of the money was handed over to the owner, the latter sued successfully in trover for the balance. The plaintiff, by the receipt of money under the circumstances, did not elect to treat the case as one of debt (e). Moreover, if a party agree to accept a sum certain in satisfaction of all demands, and a subsequent damage arises from the original tort which was not within the contemplation of either of the parties when such agreement was arrived at, the original accord and satisfaction apparently will not in every case debar the injured party from bringing a further action for damages against the tort-feasor (f). 2. Any one who has a cause of action may agree with the party against whom the action lies to accept in substitution for the right any good legal consideration, and by such acceptance his cause of action is satisfied, and he can proceed with it no further. This is called an accord and satisfaction. (g) Smith v. Hodson, (1791) 4 T. R. 211; Smith v. Baker, (1873) L. R. 8 C. P. 350. (a) Smith v. Baker, supra; Curtis v. Williamson, (1874) L. R. 10 Q. B. 57; Scarf v. Jardine, (1882) 7 App. Cas. 345. (b) Valpey v. Sanders, (1848) 5 C. B. 886. (c) Lythgoe v. Vernon, (1860) 5 H. & N. 180. (d) (1827) 7 B. & C. 310. (e) Burn v. Morris, (1836) 4 Tyr. 485. As to the effect of waiver where the cause of action is by or against joint parties, see below, p. 184. (f) Ellen v. Great Northern R. Co., (1901) 49 W. R. 395. A criminal offence, although involving a tort, cannot, however, be compounded for by an accord and satisfaction (a). without A bare accord amounts simply to an understanding between Accord the parties that something shall be done in future which the satisfaction. aggrieved person shall take in satisfaction of his claim, and so long as it remains executory cannot be enforced by either party. The plaintiff cannot sue upon it in substitution for his original cause of action (b), nor can the defendant set it up as a defence to that cause of action. "If divers things are to be performed by the accord, the performance of part is not sufficient, but all ought to be performed. . . . Also, if the thing be to be performed at a day to come, tender and refusal is not sufficient without actual satisfaction and acceptance" (c). If one man agree to take a bill of exchange from another in satisfaction of a claim and receive it by post, he may, nevertheless, at once repudiate the transaction, for the mere receipt is not an acceptance; and unless he assent to the receipt he is not satisfied (d). The arrangement, however, may be that the cause of action shall be satisfied, not in the future on certain things being done, but forthwith by the mere agreement to do certain things. "There may be two kinds of accord: the making of the agreement itself may be what is stipulated for, or the doing the things mentioned in the agreement. In the latter case the plea . . . ought to aver that the things have been done, and the agreement without that affords no answer. Where the making of the agreement is itself the thing looked to, the plea must aver that it has been accepted in satisfaction; that averment in truth carries with it the fact of the performance of all that was to be done in order to settle the action; it leaves nothing in fieri, nothing incomplete" (e). Mere agreement taken in satis faction. Sometimes the accord is self-executing, as, for instance, where Self-execut parties agree mutually to relinquish claims which they have ing accord. |