Odger's English Common Law

432 TORTS GENERALLY.
occurred. If, however, the plaintiff was trespassing upon
the defendant's premises, the defendant would owe him
no duty.
Thus, if a railway company invites passengers to enter its premises, or a
shopkeeper invites customers to enter his shop, they are liable should an
injury happen to any one who has entered in consequence of the invita-
tion. 1 In the case of a shopkeeper, it is a sufficient invitation to enter if
goods are displayed in the window for sale and the shop door is open. So
liability may arise from the mere fact that the defendant is in occupation
of premises which are out of repair. 2
A private duty may also he created by statute, although
most duties so created are of a public nature. 3 " "Wherever a
statute gives a right to one person to have an act fulfilled
by another and that other does not fulfil it, a cause of action
arises." 4
So in Richardson v. Willis 5 the Court laid it down
as a general rule that " where a statute gave a right to a sum
of money and provided no means of recovering it, the remedy
was by action."
Thus, where a railway company neglected to issue a warrant to the
sheriff, as it was required to do by section 39 of the Lands Clauses Con-
solidation Act, 1845, 6 to summon a jury to assess the value of land which the
company had given notice that it would require for the purposes of its
railway, it was held that this was an actionable wrong and that a mandamus
should be granted to compel the railway company to issue such a
warrant. 7
Again, it is provided by statute 8 that in the case of any indictment
or information by a private prosecutor for the publication of any defamatory
libel, if judgment be given for the defendant, he is entitled to recover his
costs from the prosecutor. But the Act provides no method for the
recovery of such costs—the judge at the Assizes has no power to issue
execution for them ; hence the defendant's only remedy is to bring an
action at law. 9
So an action will lie against a railway company for wrongful omission
1 Chapman v. Rothwell (1858), E. B. & E. 168 ; Hounsell v. Smyth (1860),
7 C. B. N. S. 731 ; PHtchard v. Peto, [1917] 2 K. B. 173 ; Hayward v. Drury
Lane Theatre, lb. 899 ; Kimber v. Gas, Light and Coke Co., [1918] 1 K. B. 439.
2 Nelson v. Liverpool Brewery Co. (1877), 2 C. P. D. 311.
« See post, pp. 435, 436.
' Per Erie, C. J., in Fotherby v. Metropolitan By. Co. (1866), L. R. 2 C. P.
at p. 194.
s
(1872), L. R. 8 Ex. at p. 71.
e 8 Vict. c. 18.
i Fotherby v. Metropolitan Ry. Co. (1866), L. R. 2 C. P. 188.
8 8 Edw. VII. e. 15, s. 6 (2), re-enacting s. 8 of Lord Campbell's Libel Act, 1843
(6 & 7 Viet. c. 96).
* Richardson v. Willis (1872), L. R. 8 Ex. 69.