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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

CHAPTER IV.

GENERAL EXCEPTIONS.

Conditions excluding liability for act prima facie wrongful.We have considered the general principles of liability for civil wrongs. It now becomes needful to consider the general exceptions to which these principles are subject, or in other words the rules of immunity which limit the rules of liability. There are various conditions which, when present, will prevent an act from being wrongful which in their absence would be a wrong. Under such conditions the act is said to be justified or excused. And when an act is said in general terms to be wrongful, it is assumed that no such qualifying condition exists. It is an actionable wrong, generally speaking, to lay hands on a man in the way of force or restraint. But it is the right of every man to defend himself against unlawful force, and it is the duty of officers of justice to apply force and restraint in various degrees, from simple arrest to the infliction of death itself, in execution of the process and sentences of the law. Here the harm done, and wilfully done, is justified. There are incidents, again, in every football match which an uninstructed observer might easily take for a confused fight of savages, and grave hurt sometimes ensues to one or more of the players. Yet, so long as the play is fairly conducted according to the rules agreed upon, there is no wrong and no cause of action. For the players have joined in the game of their own free will, and accepted its risks. Not that a man is bound to play football or any other rough game, but if he does he must abide its ordinary chances. Here the harm done, if not justified (for, though in a manner unavoidable, it was not in a legal sense necessary), is nevertheless excused(a) . Again, defamation is a wrong; but there are certain occasions on which a man may with impunity make and publish untrue statements to the prejudice of another. Again, “sic utere tuo ut alienum non laedas” is said to be a precept of law; yet there are divers things a man may freely do for his own ends, though he well knows that his neighbour will in some way be the worse for them.

General and particular exceptions. Some of the principles by which liability is excluded are applicable indifferently to all or most kinds of injury, while others are confined to some one species. The rule as to “privileged communications” belongs only to the law of libel and slander, and must be dealt with under that particular branch of the subject. So the rule as to “contributory negligence” qualifies liability for negligence, and can be understood only in connexion with the special rules determining such liability. Exceptions like those of consent and inevitable accident, on the other hand, are of such wide application that they cannot be conveniently dealt with under any one special head. This class is aptly denoted in the Indian Penal Code (for the same or similar principles apply to the law of criminal liability) by the name of General Exceptions. And these are the exceptions which now concern us. The following seem to be their chief categories. An action is within certain limits not maintainable in respect of the acts of political power called “acts of state,” nor of judicial acts. Executive acts of lawful authority form another similar class. Then a class of acts has to be considered which may be called quasi-judicial, and which, also within limits, are protected. Also, there are various cases in which unqualified or qualified immunity is conferred upon private persons exercising an authority or power specially conferred by law. We may regard all these as cases of privilege in respect of the person or the occasion. After these come exceptions which are more an affair of common right: inevitable accident (a point, strange to say, not clearly free from doubt), harm inevitably incident to the ordinary exercise of rights, harm suffered by consent or under conditions amounting to acceptance of the risk, and harm inflicted in self-defence or (in some cases) otherwise by necessity. These grounds of exemption from civil liability for wrongs have to be severally examined and defined. And first of “Acts of State.”

1.—

Acts of State.

Acts of State. It is by no means easy to say what an act of state is, though the term is not of unfrequent occurrence. On the whole, it appears to signify—(1) An act done or adopted by the prince or rulers of a foreign independent State in their political and sovereign capacity, and within the limits of their de facto political sovereignty; (2) more particularly (in the words of Sir James Stephen(b) ), “an act injurious to the person or to the property of some person who is not at the time of that act a subject(c) of her Majesty; which act is done by any representative of her Majesty’s authority, civil or military, and is either previously sanctioned, or subsequently ratified by her Majesty” (such sanction or ratification being, of course, expressed in the proper manner through responsible ministers).

General ground of exemption. Our courts of justice profess themselves not competent to discuss acts of these kinds for reasons thus expressed by the Judicial Committee of the Privy Council:—“The transactions of independent States between each other” (and with subjects of other States), “are governed by other laws than those which municipal courts administer; such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make”(d) .

A series of decisions of the Indian Supreme Courts and the Privy Council have applied this rule to the dealings of the East India Company with native States and with the property of native princes(e) . In these cases the line between public and private property, between acts of regular administration and acts of war or of annexation, is not always easy to draw. Most of them turn on acts of political annexation. Persons who by such an act become British subjects do not thereby become entitled to complain in municipal courts deriving their authority from the British Government of the act of annexation itself or anything incident to it. In such a case the only remedy is by petition of right to the Crown. And the effect is the same if the act is originally an excess of authority, but is afterwards ratified by the Crown.

“The leading case on this subject is Buron v. Denman(f) . This was an action against Captain Denman, a captain in the navy, for burning certain barracoons on the West Coast of Africa, and releasing the slaves contained in them. His conduct in so doing was approved by a letter written by Mr. Stephen, then Under Secretary of State for the Colonies, by the direction of Lord John Russell, then Secretary of State. It was held that the owner of the slaves [a Spanish subject] could recover no damages for his loss, as the effect of the ratification of Captain Denman’s act was to convert what he had done into an act of state, for which no action would lie.”

So far Sir James Stephen, in his History of the Criminal Law(g) . It is only necessary to add, as he did on the next page, that “as between the sovereign and his subjects there can be no such thing as an act of state. Courts of law are established for the express purpose of limiting public authority in its conduct towards individuals. If one British subject puts another to death or destroys his property by the express command of the King, that command is no protection to the person who executes it unless it is in itself lawful, and it is the duty of the proper courts of justice to determine whether it is lawful or not”: as, for example, when the Court of King’s Bench decided that a Secretary of State had no power to issue general warrants to search for and seize papers and the like(h) .

Local actions against viceroy or governor. Another question which has been raised in the colonies and Ireland, but which by its nature cannot come before an English court for direct decision, is how far an action is maintainable against an officer in the nature of a viceroy during his term of office, and in the local courts of the territory in which he represents the Crown. It has been held by the Judicial Committee that the Lieutenant-Governor of a colony is not exempt from suit in the courts of that colony for a debt or other merely private cause of action(i) ; and by the Irish courts, on the other hand, that the Lord-Lieutenant is exempt from being sued in Ireland for an act done in his official or “politic” capacity(j) .

Power to exclude aliens. An alien not already admitted to the enjoyment of civil rights in England (or any British possession) seems to have no remedy in our law if prevented by the local executive authority from entering British territory(k) . It seems doubtful whether admission to temporary allegiance in one part of the British Empire would confer any right to be admitted to another part.

Acts of foreign powers. There is another quite distinct point of jurisdiction in connexion with which the term “act of state” is used. A sovereign prince or other person representing an independent power is not liable to be sued in the courts of this country for acts done in a sovereign capacity; and this even if in some other capacity he is a British subject, as was the case with the King of Hanover, who remained an English peer after the personal union between the Crowns of England and Hanover was dissolved(l) . This rule is included in a wider one which not only extends beyond the subject of this work, but belongs to international as much as to municipal law. It has been thus expressed by the Court of Appeal: “As a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its Courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador(m) , though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction”(n) .

Summary. If we may generalize from the doctrine of our own courts, the result seems to be that an act done by the authority, previous or subsequent, of the government of a sovereign state in the exercise of de facto sovereignty(o) , is not examinable at all in the courts of justice of any other state. So far forth as it affects persons not subject to the government in question, it is not examinable in the ordinary courts of that state itself. If and so far as it affects a subject of the same state, it may be, and in England it is, examinable by the courts in their ordinary jurisdiction. In most Continental countries, however, if not in all, the remedy for such acts must be sought before a special tribunal (in France the Conseil d’Etat: the preliminary question whether the ordinary court or the Conseil d’Etat has jurisdiction is decided by the Tribunal des Conflits, a peculiar and composite court)(p) .

2.—

Judicial Acts.

Judicial acts. Next as to judicial acts. The rule is that “no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice”(q) . And the exemption is not confined to judges of superior courts. It is founded on the necessity of judges being independent in the exercise of their office, a reason which applies equally to all judicial proceedings. But in order to establish the exemption as regards proceedings in an inferior court, the judge must show that at the time of the alleged wrong-doing some matter was before him in which he had jurisdiction (whereas in the case of a superior court it is for the plaintiff to prove want of jurisdiction); and the act complained of must be of a kind which he had power to do as judge in that matter.

Thus a revising barrister has power by statute(r) “to order any person to be removed from his court who shall interrupt the business of the court, or refuse to obey his lawful orders in respect of the same”: but it is an actionable trespass if under colour of this power he causes a person to be removed from the court, not because that person is then and there making a disturbance, but because in the revising barrister’s opinion he improperly suppressed facts within his knowledge at the holding of a former court(s) . The like law holds if a county court judge commits a party without jurisdiction, and being informed of the facts which show that he has no jurisdiction(t) ; though an inferior judge is not liable for an act which on the facts apparent to him at the time was within his jurisdiction, but by reason of facts not then shown was in truth outside it(u) .

A judge is not liable in trespass for want of jurisdiction, unless he knew or ought to have known of the defect; and it lies on the plaintiff, in every such case, to prove that fact(x) . And the conclusion formed by a judge, acting judicially and in good faith, on a matter of fact which it is within his jurisdiction to determine, cannot be disputed in an action against him for anything judicially done by him in the same cause upon the footing of that conclusion(y) .

Allegations that the act complained of was done “maliciously and corruptly,” that words were spoken “falsely and maliciously,” or the like, will not serve to make an action of this kind maintainable against a judge either of a superior(z) or of an inferior(a) court.

Liability by statute in special cases. There are two cases in which by statute an action does or did lie against a judge for misconduct in his office, namely, if he refuses to grant a writ of habeas corpus in vacation time(b) , and if he refused to seal a bill of exceptions(c) .

Judicial acts of persons not judges. The rule of immunity for judicial acts is applied not only to judges of the ordinary civil tribunals, but to members of naval and military courts-martial or courts of inquiry constituted in accordance with military law and usage(d) . It is also applied to a limited extent to arbitrators, and to any person who is in a position like an arbitrator’s, as having been chosen by the agreement of parties to decide a matter that is or may be in difference between them. Such a person, if he acts honestly, is not liable for errors in judgment(e) . He would be liable for a corrupt or partisan exercise of his office; but if he really does use a judicial discretion, the rightness or competence of his judgment cannot be brought into question for the purpose of making him personally liable.

The doctrine of our courts on this subject appears to be fully and uniformly accepted in the United States(f) .

3.—

Executive Acts.

Executive acts. As to executive acts of public officers, no legal wrong can be done by the regular enforcement of any sentence or process of law, nor by the necessary use of force for preserving the peace. It will be observed that private persons are in many cases entitled, and in some bound, to give aid and assistance, or to act by themselves, in executing the law; and in so doing they are similarly protected(g) . Were not this the rule, it is evident that the law could not be enforced at all. But a public officer may err by going beyond his authority in various ways. When this happens (and such cases are not uncommon), there are distinctions to be observed. The principle which runs through both common law and legislation in the matter is that an officer is not protected from the ordinary consequence of unwarranted acts which it rested with himself to avoid, such as using needless violence to secure a prisoner; but he is protected if he has only acted in a manner in itself reasonable, and in execution of an apparently regular warrant or order which on the face of it he was bound to obey(h) . This applies only to irregularity in the process of a court having jurisdiction over the alleged cause. Where an order is issued by a court which has no jurisdiction at all in the subject-matter, so that the proceedings are, as it is said, “coram non judice,” the exemption ceases(i) . A constable or officer acting under a justice’s warrant is, however, specially protected by statute, notwithstanding any defect of jurisdiction, if he produces the warrant on demand(k) . The provisions of many particular statutes which gave a qualified protection to persons acting under the statute have been superseded by the Public Authorities’ Protection Act, 1893, which substitutes for their various requirements the one rule that proceedings against any person for any act done in execution of a statutory or other public duty shall be commenced within six months(l) .

As to a mere mistake of fact, such as arresting the body or taking the goods of the wrong person, an officer of the law is not excused in such a case. He must lay hands on the right person or property at his peril, the only exception being on the principle of estoppel, where he is misled by the party’s own act(m) .

Acts of naval and military officers. Acts done by naval and military officers in the execution or intended execution of their duty, for the enforcement of the rules of the service and preservation of discipline, fall to some extent under this head. The justification of a superior officer as regards a subordinate partly depends on the consent implied (or indeed expressed) in the act of a man’s joining the service that he will abide by its regulations and usages; partly on the sanction expressly given to military law by statutes. There is very great weight of opinion, but no absolute decision, that an action does not lie in a civil court for bringing an alleged offender against military law (being a person subject to that law) before a court-martial without probable cause(n) . How far the orders of a superior officer justify a subordinate who obeys them as against third persons has never been fully settled. But the better opinion appears to be that the subordinate is in the like position with an officer executing an apparently regular civil process, namely, that he is protected if he acts under orders given by a person whom he is generally bound by the rules of the service to obey, and of a kind which that person is generally authorized to give, and if the particular order is not necessarily or manifestly unlawful(o) .

Of other public authorities. The same principles apply to the exemption of a person acting under the orders of any public body competent in the matter in hand. An action does not lie against the Serjeant-at-arms of the House of Commons for excluding a member from the House in obedience to a resolution of the House itself; this being a matter of internal discipline in which the House is supreme(p) .

Indian Act, XVIII. of 1850. The principles of English law relating to the protection of judicial officers and persons acting under their orders have in British India been declared by express enactment (Act XVIII. of 1850).

4.—

Quasi-judicial Acts.

Acts of quasi-judicial discretion. Divers persons and bodies are called upon, in the management of public institutions or government of voluntary associations, to exercise a sort of conventional jurisdiction analogous to that of inferior courts of justice. These quasi-judicial functions are in many cases created or confirmed by Parliament. Such are the powers of the universities over their officers and graduates, and of colleges in the universities over their fellows and scholars, and of the General Council of Medical Education over registered medical practitioners(q) . Often the authority of the quasi-judicial body depends on an instrument of foundation, the provisions of which are binding on all persons who accept benefits under it. Such are the cases of endowed schools and religious congregations. And the same principle appears in the constitution of modern incorporated companies, and even of private partnerships. Further, a quasi-judicial authority may exist by the mere convention of a number of persons who have associated themselves for any lawful purpose, and have entrusted powers of management and discipline to select members. The committees of most clubs have by the rules of the club some such authority, or at any rate an initiative in presenting matters of discipline before the whole body. The Inns of Court exhibit a curious and unique example of great power and authority exercised by voluntary unincorporated societies in a legally anomalous manner. Their powers are for some purposes quasi-judicial, and yet they are not subject to any ordinary jurisdiction(r) .

Rules of natural justice and special rules, if any, must be observed. The general rule as to quasi-judicial powers of this class is that persons exercising them are protected from civil liability if they observe the rules of natural justice, and also the particular statutory or conventional rules, if any, which may prescribe their course of action. The rules of natural justice appear to mean, for this purpose, that a man is not to be removed from office or membership, or otherwise dealt with to his disadvantage, without having fair and sufficient notice of what is alleged against him, and an opportunity of making his defence; and that the decision, whatever it is, must be arrived at in good faith with a view to the common interest of the society or institution concerned. If these conditions be satisfied, a court of justice will not interfere, not even if it thinks the decision was in fact wrong(s) . If not, the act complained of will be declared void, and the person affected by it maintained in his rights until the matter has been properly and regularly dealt with(t) . These principles apply to the expulsion of a partner from a private firm where a power of expulsion is conferred by the partnership contract(u) .

Absolute discretionary powers. It may be, however, that by the authority of Parliament (or, it would seem, by the previous agreement of the party to be affected) a governing or administrative body, or the majority of an association, has power to remove a man from office or the like without anything in the nature of judicial proceedings, and without showing any cause at all. Whether a particular authority is judicial or absolute must be determined by the terms of the particular instrument creating it(v) .

Questions whether duty judicial or ministerial: Ashby v. White, &c. On the other hand there may be question whether the duties of a particular office be quasi-judicial, or merely ministerial, or judicial for some purposes and ministerial for others. It seems that at common law the returning or presiding officer at a parliamentary or other election has a judicial discretion, and does not commit a wrong if by an honest error of judgment he refuses to receive a vote(x) : but now in most cases it will be found that such officers are under absolute statutory duties(y) , which they must perform at their peril.

5.—

Parental and quasi-parental Authority.

Authority of parents and persons in loco parentis. Thus much of private quasi-judicial authority. There are also several kinds of authority in the way of summary force or restraint which the necessities of society require to be exercised by private persons. And such persons are protected in exercise thereof, if they act with good faith and in a reasonable and moderate manner. Parental authority (whether in the hands of a father or guardian, or of a person to whom it is delegated, such as a schoolmaster) is the most obvious and universal instance(z) . It is needless to say more of this here, except that modern civilization has considerably diminished the latitude of what judges or juries are likely to think reasonable and moderate correction(a) .

Of custodians of lunatics, &c. Persons having the lawful custody of a lunatic, and those acting by their direction, are justified in using such reasonable and moderate restraint as is necessary to prevent the lunatic from doing mischief to himself or others, or required, according to competent opinion, as part of his treatment. This may be regarded as a quasi-paternal power; but I conceive the person entrusted with it is bound to use more diligence in informing himself what treatment is proper than a parent is bound (I mean, can be held bound in a court of law) to use in studying the best method of education. The standard must be more strict as medical science improves. A century ago lunatics were beaten, confined in dark rooms, and the like. Such treatment could not be justified now, though then it would have been unjust to hold the keeper criminally or civilly liable for not having more than the current wisdom of experts. In the case of a drunken man, or one deprived of self-control by a fit or other accident, the use of moderate restraint, as well for his own benefit as to prevent him from doing mischief to others, may in the same way be justified.

6.—

Authorities of Necessity.

Of the master of a ship. The master of a merchant ship has by reason of necessity the right of using force to preserve order and discipline for the safety of the vessel and the persons and property on board. Thus, if he has reasonable cause to believe that any sailor or passenger is about to raise a mutiny, he may arrest and confine him. The master may even be justified in a case of extreme danger in inflicting punishment without any form of inquiry. But “in all cases which will admit of the delay proper for inquiry, due inquiry should precede the act of punishment; and . . . . the party charged should have the benefit of that rule of universal justice, of being heard in his own defence”(b) . In fact, when the immediate emergency of providing for the safety and discipline of the ship is past, the master’s authority becomes a quasi-judicial one. There are conceivable circumstances in which the leader of a party on land, such as an Alpine expedition, might be justified on the same principle in exercising compulsion to assure the common safety of the party. But such a case, though not impossible, is not likely to occur for decision.

7.—

Damage incident to authorized Acts.

Damage incidentally resulting from act not unlawful. Thus far we have dealt with cases where some special relation of the parties justifies or excuses the intentional doing of things which otherwise would be actionable wrongs. We now come to another and in some respects a more interesting and difficult category. Damage suffered in consequence of an act done by another person, not for that intent, but for some other purpose of his own, and not in itself unlawful, may for various reasons be no ground of action. The general precept of law is commonly stated to be “Sic utere tuo ut alienum non laedas.” If this were literally and universally applicable, a man would act at his peril whenever and wherever he acted otherwise than as the servant of the law. Such a state of things would be intolerable. It would be impossible, for example, to build or repair a wall, unless in the middle of an uninhabited plain. But the precept is understood to be subject to large exceptions. Its real use is to warn us against the abuse of the more popular adage that “a man has a right to do as he likes with his own”(c) , which errs much more dangerously on the other side.

There are limits to what a man may do with his own; and if he does that which may be harmful to his neighbour, it is his business to keep within those limits. Neither the Latin nor the vernacular maxim will help us much, however, to know where the line is drawn. The problems raised by the apparent opposition of the two principles must be dealt with each on its own footing. We say apparent; for the law has not two objects, but one, that is, to secure men in the enjoyment of their rights and of their due freedom of action. In its most general form, therefore, the question is, where does the sphere of a man’s proper action end, and aggression on the sphere of his neighbour’s action begin?

Damage from execution of authorized works. The solution is least difficult for the lawyer when the question has been decided in principle by a sovereign legislature. Parliament has constantly thought fit to direct or authorize the doing of things which but for that direction and authority might be actionable wrongs. Now a man cannot be held a wrong-doer in a court of law for acting in conformity with the direction or allowance of the supreme legal power in the State. In other words “no action will lie for doing that which the Legislature has authorized, if it be done without negligence, although it does occasion damage to any one.” The meaning of the qualification will appear immediately. Subject thereto, “the remedy of the party who suffers the loss is confined to recovering such compensation” (if any) “as the Legislature has thought fit to give him”(d) . Instead of the ordinary question whether a wrong has been done, there can only be a question whether the special power which has been exercised is coupled, by the same authority that created it, with a special duty to make compensation for incidental damage. The authorities on this subject are voluminous and discursive, and exhibit notable differences of opinion. Those differences, however, turn chiefly on the application of admitted principles to particular facts, and on the construction of particular enactments. Thus it has been disputed whether the compensation given by statute to persons who are “injuriously affected” by authorized railway works, and by the same statutes deprived of their common-law rights of action, was or was not co-extensive with the rights of action expressly or by implication taken away; and it has been decided, though not without doubts and weighty dissent, that in some cases a party who has suffered material loss is left without either ordinary or special remedy(e) .

No action for unavoidable damage. Apart from the question of statutory compensation, it is settled that no action can be maintained for loss or inconvenience which is the necessary consequence of an authorized thing being done in an authorized manner. A person dwelling near a railway constructed under the authority of Parliament for the purpose of being worked by locomotive engines cannot complain of the noise and vibration caused by trains passing and repassing in the ordinary course of traffic, however unpleasant he may find it(f) ; nor of damage caused by the escape of sparks from the engines, if the company has used due caution to prevent such escape so far as practicable(g) . So, where a corporation is empowered to make a river navigable, it does not thereby become bound to keep the bed of the river clear beyond what is required for navigation, though an incidental result of the navigation works may be the growth of weeds and accumulation of silt to the prejudice of riparian owners(h) .

Care and caution required in exercise of discretionary powers. But in order to secure this immunity the powers conferred by the Legislature must be exercised without negligence, or, as it is perhaps better expressed, with judgment and caution(i) . For damage which could not have been avoided by any reasonably practicable care on the part of those who are authorized to exercise the power, there is no right of action. But they must not do needless harm; and if they do, it is a wrong against which the ordinary remedies are available. If an authorized railway comes near my house, and disturbs me by the noise and vibration of the trains, it may be a hardship to me, but it is no wrong. For the railway was authorized and made in order that trains might be run upon it, and without noise and vibration trains cannot be run at all. But if the company makes a cutting, for example, so as to put my house in danger of falling, I shall have my action; for they need not bring down my house to make their cutting. They can provide support for the house, or otherwise conduct their works more carefully. “When the company can construct its works without injury to private rights, it is in general bound to do so”(k) . Hence there is a material distinction between cases where the Legislature “directs that a thing shall at all events be done”(l) , and those where it only gives a discretionary power with choice of times and places. Where a discretion is given, it must be exercised with regard to the common rights of others. A public body which is by statute empowered to set up hospitals within a certain area, but not empowered to set up a hospital on any specified site, or required to set up any hospital at all, is not protected from liability if a hospital established under this power is a nuisance to the neighbours(m) . And even where a particular thing is required to be done, the burden of proof is on the person who has to do it to show that it cannot be done without creating a nuisance(n) . A railway company is authorized to acquire land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular householder, in building workshops so situated (though within the authorized limits) that the smoke from them is a nuisance to him in the occupation of his house(o) . But a statutory power to carry cattle by railway, and provide station yards and other buildings for the reception of cattle and other things to be carried (without specification of particular places or times) is incidental to the general purposes for which the railway was authorized, and the use of a piece of land as a cattle yard under this power, though such as would be a nuisance at common law, does not give any right of action to adjoining occupiers(p) . Such a case falls within the principle not of Metropolitan Asylum District v. Hill, but of Rex v. Pease.

A gas company was authorized by statute to have its pipes laid under certain streets, and was required to supply gas to the inhabitants. The vestry, being charged by statute with the repair of the streets, but not required or authorized to use any special means, used steam rollers of such weight that the company’s pipes were often broken or injured by the resulting pressure through the soil. It was held that, even if the use of such rollers was in itself the best way of repairing the streets in the interest of the ratepayers and the public, the act of the vestry was wrongful as against the gas company, and was properly restrained by injunction(q) .

“An Act of Parliament may authorize a nuisance, and if it does so, then the nuisance which it authorizes may be lawfully committed. But the authority given by the Act may be an authority which falls short of authorizing a nuisance. It may be an authority to do certain works provided that they can be done without causing a nuisance, and whether the authority falls within that category is again a question of construction. Again the authority given by Parliament may be to carry out the works without a nuisance, if they can be so carried out, but in the last resort to authorize a nuisance if it is necessary for the construction of the works”(r) .

An authority accompanied by compulsory powers, or to be exercised concurrently with authorities ejusdem generis which are so accompanied, will, it seems, be generally treated as absolute; but no single test can be assigned as decisive(s) .

8.—

Inevitable Accident.

Inevitable accident resulting from lawful act. In the cases we have just been considering the act by which the damage is caused has been specially authorized. Let us now turn to the class of cases which differ from these in that the act is not specially authorized, but is simply an act which, in itself, a man may lawfully do then and there; or (it is perhaps better to say) which he may do without breaking any positive law. We shall assume from the first that there is no want of reasonable care on the actor’s part. For it is undoubted that if by failure in due care I cause harm to another, however innocent my intention, I am liable. This has already been noted in a general way(t) . No less is it certain, on the other hand, that I am not answerable for mere omission to do anything which it was not my specific duty to do.

It is true that the very fact of an accident happening is commonly some evidence, and may be cogent evidence, of want of due care. But that is a question of fact, and there remain many cases in which accidents do happen notwithstanding that all reasonable and practicable care is used. Even the “consummate care” of an expert using special precaution in a matter of special risk or importance is not always successful. Slight negligence may be divided by a very fine line from unsuccessful diligence. But the distinction is real, and we have here to do only with the class of cases where the facts are so given or determined as to exclude any negligence whatever.

Conditions of the inquiry. The question, then, is reduced to this, whether an action lies against me for harm resulting by inevitable accident from an act lawful in itself, and done by me in a reasonable and careful manner. Inevitable accident is not a verbally accurate term, but can hardly mislead; it does not mean absolutely inevitable (for, by the supposition, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw of Massachusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed.

On principle such accident excludes liability. It may seem to modern readers that only one solution of the problem thus stated is possible, or rather that there is no problem at all(u) . No reason is apparent for not accepting inevitable accident as an excuse. It is true that we may suppose the point not to have been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first impulse of private revenge. But private revenge has disappeared from our modern law; moreover we do not nowadays expect a reasonable man to be angry without inquiry. He will not assume, in a case admitting of doubt, that his neighbour harmed him by design or negligence. And one cannot see why a man is to be made an insurer of his neighbour against harm which (by our hypothesis) is no fault of his own. For the doing of a thing lawful in itself with due care and caution cannot be deemed any fault. If the stick which I hold in my hand, and am using in a reasonable manner and with reasonable care, hurts my neighbour by pure accident, it is not apparent why I should be liable more than if the stick had been in another man’s hand(v) . If we go far back enough, indeed, we shall find a time and an order of ideas in which the thing itself that does damage is primarily liable, so to speak, and through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions of Roman law, and in our own criminal law by the forfeiture of the offending object which had moved, as it was said, to a man’s death, under the name of deodand. But this is matter of history, not of modern legal policy. So much we may concede, that when a man’s act is the apparent cause of mischief, the burden of proof is on him to show that the consequence was not one which by due diligence he could have prevented(x) . But so does (and must) the burden of proving matter of justification or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed.

Apparent conflict of authorities. We believe that our modern law supports the view now indicated as the rational one, that inevitable accident is not a ground of liability. But there is a good deal of appearance of authority in the older books for the contrary proposition that a man must answer for all direct consequences of his voluntary acts at any rate, or as Judge O. W. Holmes(y) has put it “acts at his peril.” Such seems to have been the early Germanic law(z) , and such was the current opinion of English lawyers until the beginning of this century, if not later. On the other hand, it will be seen on careful examination that no actual decision goes the length of the dicta which embody this opinion. In almost every case the real question turns out to be of the form of action or pleading. Moreover, there is no such doctrine in Roman or modern Continental jurisprudence(a) ; and this, although for us not conclusive or even authoritative, is worth considering whenever our own authorities admit of doubt on a point of general principle. And, what is more important for our purpose, the point has been decided in the sense here contended for by Courts of the highest authority in the United States. To these decisions we shall first call attention.

American decisions: The Nitro-glycerine Case. In The Nitro-glycerine Case(b) the defendants, a firm of carriers, received a wooden case at New York to be carried to California. “There was nothing in its appearance calculated to awaken any suspicion as to its contents,” and in fact nothing was said or asked on that score. On arrival at San Francisco it was found that the contents (which “had the appearance of sweet oil”) were leaking. The case was then, according to the regular course of business, taken to the defendants’ offices (which they rented from the plaintiff) for examination. A servant of the defendants proceeded to open the case with a mallet and chisel. The contents, being in fact nitro-glycerine, exploded. All the persons present were killed, and much property destroyed and the building damaged. The action was brought by the landlord for this last-mentioned damage, including that suffered by parts of the building let to other tenants as well as by the offices of the defendants. Nitro-glycerine had not then (namely, in 1866) become a generally known article of commerce, nor were its properties well known. It was found as a fact that the defendants had not, nor had any of the persons concerned in handling the case, knowledge or means of knowledge of its dangerous character, and that the case had been dealt with “in the same way that other cases of similar appearance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business when ignorant of their contents.” The defendants admitted their liability as for waste as to the premises occupied by them (which in fact they repaired as soon as possible after the accident), but disputed it as to the rest of the building.

Doctrine of Supreme Court; no liability for accidental result of lawful act without negligence. The Circuit Court held the defendants were not further liable than they had admitted, and the Supreme Court of the United States affirmed the judgment. It was held that in the first place the defendants were not bound to know, in the absence of reasonable grounds of suspicion, the contents of packages offered them for carriage: and next, that without such knowledge in fact and without negligence they were not liable for damage caused by the accident(c) . “No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. . . . . The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own.”

Brown v. Kendall (Massachusetts). The Court proceeded to cite with approval the case of Brown v. Kendall in the Supreme Court of Massachusetts(d) . There the plaintiff’s and the defendant’s dogs were fighting: the defendant was beating them in order to separate them, and the plaintiff looking on. “The defendant retreated backwards from before the dogs, striking them as he retreated; and as he approached the plaintiff, with his back towards him, in raising his stick over his shoulder in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury.” The action was trespass for assault and battery. It was held that the act of the defendant in itself “was a lawful and proper act which he might do by proper and safe means;” and that if “in doing this act, using due care and all proper precautions necessary to the exigency of the case to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in the eye and wounded him, this was the result of pure accident, or was involuntary and unavoidable(e) , and therefore the action would not lie.” All that could be required of the defendant was “the exercise of due care adapted to the exigency of the case.” The rule in its general form was thus expressed: “If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom.”

Other American cases: contrary opinion in Castle v. Duryee (N. Y.). There have been like decisions in the Supreme Courts of New York(f) and Connecticut. And these rulings appear to be accepted as good law throughout the United States(g) . The general agreement of American authority and opinion is disturbed, indeed, by one modern case in the Court of Appeal of New York, that of Castle v. Duryee(h) . But the conflicting element is not in the decision itself, nor in anything necessary to it. The defendant was the colonel of a regiment of New York militia, who at the time of the cause of action were firing blank cartridge under his immediate orders in the course of a review. The plaintiff was one of a crowd of spectators who stood in front of the firing line and about 350 feet from it. Upon one of the discharges the plaintiff was wounded by a bullet, which could be accounted for only by one of the men’s pieces having by some misadventure been loaded with ball cartridge. It appeared that one company had been at target practice an hour or two before, and that at the end of the practice arms had been examined in the usual way(i) , and surplus ammunition collected. Moreover, arms had again been inspected by the commanding officers of companies, in pursuance of the colonel’s orders, before the line was formed for the regimental parade. The plaintiff sued the defendant in an action “in the nature of trespass for an assault.” A verdict for the plaintiff was ultimately affirmed on appeal, the Court being of opinion that there was evidence of negligence. Knowing that some of the men had within a short time been in possession of ball ammunition, the defendant might well have done more. He might have cleared the front of the line before giving orders to fire. The Court might further have supported its decision, though it did not, by the cases which show that more than ordinary care, nay “consummate caution”(j) , is required of persons dealing with dangerous weapons. The Chief Judge added that, as the injury was the result of an act done by the defendant’s express command, the question of negligence was immaterial. But this was only the learned judge’s individual opinion. It was not necessary to the decision, and there is nothing to show that the rest of the Court agreed to it(k) .

English authorities: cases of trespass and shooting. We may now see what the English authorities amount to. They have certainly been supposed to show that inevitable accident is no excuse when the immediate result of an act is complained of. Erskine said a century ago in his argument in the celebrated case of The Dean of St. Asaph(l) (and he said it by way of a familiar illustration of the difference between criminal and civil liability) that “if a man rising in his sleep walks into a china shop and breaks everything about him, his being asleep is a complete answer to an indictment for trespass(m) , but he must answer in an action for everything he has broken.” And Bacon had said earlier to the same purpose, that “if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course: but if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party’s mind and will”(n) . Stronger examples could not well be propounded. For walking in one’s sleep is not a voluntary act at all, though possibly an act that might have been prevented: and the practice of archery was, when Bacon wrote, a positive legal duty under statutes as recent as Henry VIII.’s time, though on the other hand shooting is an extra-hazardous act(o) . We find the same statement about accidents in shooting at a mark in the so-called laws of Henry I.(p) , and in the arguments of counsel in a case in the Year-Book of Edward IV., where the general question was more or less discussed(q) . Brian (then at the bar) gave in illustration a view of the law exactly contrary to that which was taken in Brown v. Kendall. But the decision was only that if A. cuts his hedge so that the cuttings ipso invito fall on B.’s land, this does not justify A. in entering on B.’s land to carry them off. And by Choke, C. J., it is said, not that (as Brian’s view would require) A. must keep his thorns from falling on B.’s land at all events, but that “he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out.”

Weaver v. Ward. Another case usually cited is Weaver v. Ward(r) . The plaintiff and the defendant were both members of a trainband exercising with powder, and the plaintiff was hurt by the accidental discharge of the defendant’s piece. It is a very odd case to quote for the doctrine of absolute liability, for what was there holden was that in trespass no man shall be excused, “except it may be judged utterly without his fault;” and the defendant’s plea was held bad because it only denied intention, and did not properly bring before the Court the question whether the accident was inevitable. A later case(s) , which professes to follow Weaver v. Ward, really departs from it in holding that “unavoidable necessity” must be shown to make a valid excuse. This in turn was apparently followed in the next century, but the report is too meagre to be of any value(t) .

All these, again, are shooting cases, and if they occurred at this day the duty of using extraordinary care with dangerous things would put them on a special footing. In the celebrated squib case they are cited and more or less relied upon(u) . It is not clear to what extent the judges intended to press them. According to Wilson’s report, inevitable accident was allowed by all the judges to be an excuse. But Blackstone’s judgment, according to his own report, says that nothing but “inevitable necessity” will serve, and adopts the argument of Brian in the case of the cut thorns, mistaking it for a judicial opinion; and the other judgments are stated as taking the same line, though less explicitly. For the decision itself the question is hardly material, though Blackstone may be supposed to represent the view which he thought the more favourable to his own dissenting judgment. His theory was that liability in trespass (as distinguished from an action on the case) is unqualified as regards the immediate consequences of a man’s act, but also is limited to such consequences.

Leame v Bray. Then comes Leame v. Bray(x) , a comparatively modern case, in which the defendant’s chaise had run into the plaintiff’s curricle on a dark night. The defendant was driving on the wrong side of the road; which of itself is want of due care, as every judge would now tell a jury as a matter of course. The decision was that the proper form of action was trespass and not case. Grose J. seems to have thought inevitable accident was no excuse, but this was extra-judicial. Two generations later, in Rylands v. Fletcher, Lord Cranworth inclined, or more than inclined, to the same opinion(y) . Such is the authority for the doctrine of strict liability. Very possibly more dicta to the same purpose might be collected, but I do not think anything of importance has been left out(z) . Although far from decisive, the weight of opinion conveyed by these various utterances is certainly respectable.

Cases where exception allowed. On the other hand we have a series of cases which appear even more strongly to imply, if not to assert, the contrary doctrine. A. and B. both set out in their vessels to look for an abandoned raft laden with goods. A. first gets hold of the raft, then B., and A.’s vessel is damaged by the wind and sea driving B.’s against it. On such facts the Court of King’s Bench held in 1770 that A. could not maintain trespass, “being of opinion that the original act of the defendants was not unlawful”(a) . Quite early in the century it had been held that if a man’s horse runs away with him, and runs over another man, he is not even prima facie a trespasser, so that under the old rules of pleading it was wrong to plead specially in justification(b) . Here however it may be said there was no voluntary act at all on the defendant’s part. In Wakeman v. Robinson, a modern running-down case(c) , the Court conceded that “if the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie;” thinking, however, that on the facts there was proof of negligence, they refused a new trial, which was asked for on the ground of misdirection in not putting it to the jury whether the accident was the result of negligence or not. In 1842 this declaration of the general rule was accepted by the Court of Queen’s Bench, though the decision again was on the form of pleading(d) .

Holmes v. Mather. Lastly, we have two decisions well within our own time which are all but conclusive. In Holmes v. Mather(e) the defendant was out with a pair of horses driven by his groom. The horses ran away, and the groom, being unable to stop them, guided them as best he could; at last he failed to get them clear round a corner, and they knocked down the plaintiff. If the driver had not attempted to turn the corner, they would have run straight into a shop-front, and (it was suggested) would not have touched the plaintiff at all. The jury found there was no negligence. Here the driver was certainly acting, for he was trying to turn the horses. And it was argued, on the authority of the old cases and dicta, that a trespass had been committed. The Court refused to take this view, but said nothing about inevitable accident in general. “For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid”(f) . Thus it seems to be made a question not only of the defendant being free from blame, but of the accident being such as is incident to the ordinary use of public roads. The same idea is expressed in the judgment of the Exchequer Chamber in Rylands v. Fletcher, where it is even said that all the cases in which inevitable accident has been held an excuse can be explained on the principle “that the circumstances were such as to show that the plaintiff had taken that risk upon himself”(g) .

Stanley v. Powell. More lately, in Stanley v. Powell(h) , Denman J. came, on the English authorities alone, to the conclusion above maintained, namely that, where negligence is negatived, an action does not lie for injury resulting by accident from another’s lawful act.

Conclusion. These decisions seem good warrant for saying that the principle of The Nitro-glycerine Case and Brown v. Kendall is now part of the common law in England as well as in America. All this inquiry may be thought to belong not so much to the head of exceptions from liability as to the fixing of the principles of liability in the first instance. But such an inquiry must in practice always present itself under the form of determining whether the particular circumstances exclude liability for an act or consequence which is at first sight wrongful. The same remark applies, to some extent, to the class of cases which we take next in order.

9.—

Exercise of common Rights.

Immunity in exercise of common rights. We have just left a topic not so much obscure in itself as obscured by the indirect and vacillating treatment of it in our authorities. That which we now take up is a well settled one in principle, and the difficulties have been only in fixing the limits of application. It is impossible to carry on the common affairs of life without doing various things which are more or less likely to cause loss or inconvenience to others, or even which obviously tend that way; and this in such a manner that their tendency cannot be remedied by any means short of not acting at all. Competition in business is the most obvious example. If John and Peter are booksellers in the same street, each of them must to some extent diminish the custom and profits of the other. So if they are shipowners employing ships in the same trade, or brokers in the same market. So if, instead of John and Peter, we take the three or four railway companies whose lines offer a choice of routes from London to the north. But it is needless to pursue examples. The relation of profits to competition is matter of common knowledge. To say that a man shall not seek profit in business at the expense of others is to say that he shall not do business at all, or that the whole constitution of society shall be altered. Like reasons apply to a man’s use of his own land in the common way of husbandry, or otherwise for ordinary and lawful purposes. In short, life could not go on if we did not, as the price of our own free action, abide some measure of inconvenience from the equal freedom of our neighbours. In these matters veniam petimusque damusque vicissim. Hence the rule of law that the exercise of ordinary rights for a lawful purpose and in a lawful manner is no wrong even if it causes damage(i) . It is chiefly in this class of cases that we meet with the phrase or formula damnum sine iniuria; a form of words which, like many other Latin phrases and maxims, is too often thought to serve for an explanation, when in truth it is only an abridgment or memoria technica of the things to be explained. It is also of doubtful elegance as a technical phrase, though in general Latin literature iniuria no doubt had a sufficiently wide meaning(k) . In English usage, however, it is of long standing(l) .

The case of Gloucester Grammar School. A classical illustration of the rule is given by a case in the Year-Book of Henry IV., which has often been cited in modern books, and which is still perfectly good authority(m) . The action was trespass by two masters of the Grammar School of Gloucester against one who had set up a school in the same town, whereby the plaintiffs, having been wont to take forty pence a quarter for a child’s schooling, now got only twelve pence. It was held that such an action could not be maintained. “Damnum,” said Hankford J., “may be absque iniuria, as if I have a mill and my neighbour build another mill, whereby the profit of my mill is diminished, I shall have no action against him, though it is damage to me . . . . but if a miller disturbs the water from flowing to my mill, or doth any nuisance of the like sort, I shall have such action as the law gives.” If the plaintiffs here had shown a franchise in themselves, such as that claimed by the Universities, it might have been otherwise.

Case of mills. A case very like that of the mills suggested by Hankford actually came before the Court of Common Pleas a generation later(n) , and Newton C. J. stated the law in much the same terms. Even if the owner of the ancient mill is entitled to sue those who of right ought to grind at his mill, and grind at the new one, he has not any remedy against the owner of the new mill. “He who hath a freehold in the vill may build a mill on his own ground, and this is wrong to no man.” And the rule has ever since been treated as beyond question. Competition is in itself no ground of action, whatever damage it may cause. A trader can complain of his rival only if a definite exclusive right, such as a patent right, or the right to a trade mark, is infringed, or if there is a wilful attempt to damage his business by injurious falsehood (“slander of title”) or acts otherwise unlawful in themselves. Underselling is not a wrong, though the seller may purposely sell some article at unremunerative prices to attract custom for other articles; nor is it a wrong even to offer advantages to customers who will deal with oneself to the exclusion of a rival(o) .

“To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract their business to his own shop, would be a strange and impossible counsel of perfection”(p) . “To draw a line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the Courts. Competition exists where two or more persons seek to possess or to enjoy the same thing; it follows that the success of one must be the failure of another, and no principle of law enables us to interfere with or to moderate that success or that failure so long as it is due to mere competition”(q) . There is “no restriction imposed by law on competition by one trader with another with the sole object of benefiting himself”(r) .

Digging wells, &c. in a man’s own land. Another group of authorities of the same class is that which establishes “that the disturbance or removal of the soil in a man’s own land, though it is the means (by process of natural percolation) of drying up his neighbour’s spring or well, does not constitute the invasion of a legal right, and will not sustain an action. And further, that it makes no difference whether the damage arise by the water percolating away, so that it ceases to flow along channels through which it previously found its way to the spring or well; or whether, having found its way to the spring or well, it ceases to be retained there”(s) . The leading cases are Acton v. Blundell(t) and Chasemore v. Richards(u) . In the former it was expressly laid down as the governing principle “that the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such right he intercepts or drains off the water collected from underground springs in his neighbour’s well, this inconvenience to his neighbour falls within the description of damnum absque iniuria which cannot become the ground of an action.” In this case the defendant had sunk a deep pit on his own land for mining purposes, and kept it dry by pumping in the usual way, with the result of drying up a well which belonged to the plaintiff, and was used by him to supply his cotton mill.Chasemore v. Richards.Chasemore v. Richards carried the rule a step further in two directions. It settled that it makes no difference if the well or watercourse whose supply is cut off or diminished is ancient, and also (notwithstanding considerable doubt expressed by Lord Wensleydale) that it matters not whether the operations carried on by the owner of the surface are or are not for any purpose connected with the use of the land itself. The defendants in the cause were virtually the Local Board of Health of Croydon, who had sunk a deep well on their own land to obtain a water supply for the town. The making of this well, and the pumping of great quantities of water from it for the use of the town, intercepted water that had formerly found its way into the river Wandle by underground channels, and the supply of water to the plaintiff’s ancient mill, situated on that river, was diminished. Here the defendants, though using their land in an ordinary way, were not using it for an ordinary purpose. But the House of Lords refused to make any distinction on that score, and held the doctrine of Acton v. Blundell applicable(x) . The right claimed by the plaintiff was declared to be too large and indefinite to have any foundation in law. No reasonable limits could be set to its exercise, and it could not be reconciled with the natural and ordinary rights of landowners. These decisions have been generally followed in the United States(y) .

Other applications of same principle. There are many other ways in which a man may use his own property to the prejudice of his neighbour, and yet no action lies. I have no remedy against a neighbour who opens a new window so as to overlook my garden: on the other hand, he has none against me if, at any time before he has gained a prescriptive right to the light, I build a wall or put up a screen so as to shut out his view from that window. But the principle in question is not confined to the use of property. It extends to every exercise of lawful discretion in a man’s own affairs. A tradesman may depend in great measure on one large customer. This person, for some cause of dissatisfaction, good or bad, or without any assignable cause at all, suddenly withdraws his custom. His conduct may be unreasonable and ill-conditioned, and the manifest cause of great loss to the tradesman. Yet no legal wrong is done. And such matters could not be otherwise ordered. It is more tolerable that some tradesmen should suffer from the caprice of customers than that the law should dictate to customers what reasons are or are not sufficient for ceasing to deal with a tradesman.

Rogers v. Rajendro Dutt. But there are cases of this class which are not so obvious. A curious one arose at Calcutta at the time of the Indian Mutiny, and was taken up to the Privy Council. Rajendro Dutt and others, the plaintiffs below, were the owners of the Underwriter, a tug employed in the navigation of the Hoogly. A troopship with English troops arrived at the time when they were most urgently needed. For towing up this ship the captain of the tug asked an extraordinary price. Failing to agree with him, and thinking his demand extortionate, Captain Rogers, the Superintendent of Marine (who was defendant in the suit), issued a general order to officers of the Government pilot service that the Underwriter was not to be allowed to take in tow any vessel in their charge. Thus the owners not only failed to make a profit of the necessities of the Government of India, but lost the ordinary gains of their business so far as they were derived from towing ships in the charge of Government pilots. The Supreme Court of Calcutta held that these facts gave a cause of action against Captain Rogers, but the Judicial Committee reversed the decision on appeal(z) . The plaintiffs had not been prejudiced in any definite legal right. No one was bound to employ their tug, any more than they were bound to take a fixed sum for its services. If the Government of India, rightly or wrongly, thought the terms unreasonable, they might decline to deal with the plaintiffs both on the present and on other occasions, and restrain public servants from dealing with them.

“The Government certainly, as any other master, may lawfully restrict its own servants as to those whom they shall employ under them, or co-operate with in performing the services for the due performance of which they are taken into its service. Supposing it had been believed that the Underwriter was an ill-found vessel, or in any way unfit for the service, might not the pilots have been lawfully forbidden to employ her until these objections were removed? Would it not indeed have been the duty of the Government to do so? And is it not equally lawful and right when it is honestly believed that her owners will only render their services on exorbitant terms?”(x) .

It must be taken that the Court thought the order complained of did not, as a matter of fact, amount to an obstruction of the tug-owners’ common right of offering their vessel to the non-official public for employment. Conduct might easily be imagined, on the part of an officer in the defendant’s position, which would amount to this. And if it did, it would probably be a cause of action(y) .

Whether malice material in these cases. In this last case the harm suffered by the plaintiff in the Court below was not only the natural, but apparently the intended consequence of the act complained of. The defendant however acted from no reason of private hostility, but in the interest (real or supposed) of the public service. Whether the averment and proof of malice, in other words that the act complained of was done with the sole or chief intention of causing harm to the plaintiff as a private enemy(z) , would make any difference in cases of this class, does not appear to be finally decided by any authority in our law. In Rogers v. Rajendro Dutt the Judicial Committee expressly declined to say what the decision would be if this element were present. In Chasemore v. Richards the statement of facts (by an arbitrator) on which the case proceeded expressly negatived any intention to harm the plaintiff. Lord Wensleydale thought (apparently with reluctance) that the principle of regarding the presence or absence of such an intention had found no place in our law(a) ; and partly for that reason he would have liked to draw the line of unquestionable freedom of use at purposes connected with the improvement of the land itself; but he gave no authority for his statement. At the same time it must be allowed that he expressed the general sense of English lawyers(b) , and his opinion has now been followed(bb) .

Roman doctrine of “animus vicino nocendi.” The Roman lawyers on the other hand allowed that “animus vicino nocendi” did or might make a difference. In a passage cited and to some extent relied on (in the scantiness, at that time, of native authority) in Acton v. Blundell, we read: “Denique Marcellus scribit, cum eo qui in suo fodiens vicini fontem avertit, nihil posse agi, nec de dolo actionem: et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit”(c) . And this view is followed by recognized authorities in the law of Scotland, who say that an owner using his own land must act “not in mere spite or malice, in aemulationem vicini”(d) . There seems on principle to be much to recommend it. Certainly it would be no answer to say, as one is inclined to do at first sight, that the law can regard only intentions and not motives. For in some cases the law does already regard motive as distinct from proximate intention, as in actions for malicious prosecution, and in the question of privileged communications in actions for libel. And also this is really a matter of intention. Ulterior motives for a man wishing ill to his neighbour in the supposed case may be infinite: the purpose, the contemplated and desired result, is to do such and such ill to him, to dry up his well, or what else it may be. If our law is to be taken as Lord Wensleydale assumed it to be, its policy must be rested simply on a balance of expediency. Animus vicino nocendi would be very difficult of proof, at all events if proof that mischief was the only purpose were required (and it would hardly do to take less): and the evil of letting a certain kind of churlish and unneighbourly conduct, and even deliberate mischief, go without redress (there being no reason to suppose the kind a common one), may well be thought less on the whole than that of encouraging vexatious claims. In Roman law there is nothing to show whether, and how far, the doctrine of Ulpian and Marcellus was found capable of practical application. I cannot learn that it has much effect in the law of Scotland. It seems proper, however, to point out that there is really no positive English authority on the matter.

Cases of similar names. Again our law does not in general recognize any exclusive right to the use of a name, personal or local. I may use a name similar to that which my neighbour uses—and that whether I inherited or found it, or have assumed it of my own motion—so long as I do not use it to pass off my wares or business as being his. The fact that inconvenience arises from the similarity will not of itself constitute a legal injury(e) , and allegations of pecuniary damage will not add any legal effect. “You must have in our law injury as well as damage”(f) .

10.—

Leave and Licence: Volenti non fit iniuria.

Consent or acceptance of risk (leave and licence). Harm suffered by consent is, within limits to be mentioned, not a cause of civil action. The same is true where it is met with under conditions manifesting acceptance, on the part of the person suffering it, of the risk of that kind of harm. The maxim by which the rule is commonly brought to mind is “Volenti non fit iniuria.” “Leave and licence” is the current English phrase for the defence raised in this class of cases. On the one hand, however, volenti non fit iniuria is not universally true. On the other hand, neither the Latin nor the English formula provides in terms for the state of things in which there is not specific will or assent to suffer something which, if inflicted against the party’s will, would be a wrong, but only conduct showing that, for one reason or another, he is content to abide the chance of it(g) .

Express licence. The case of express consent is comparatively rare in our books, except in the form of a licence to enter upon land. It is indeed in this last connexion that we most often hear of “leave and licence,” and the authorities mostly turn on questions of the kind and extent of permission to be inferred from particular language or acts(h) .

Limits of consent. Force to the person is rendered lawful by consent in such matters as surgical operations. The fact is common enough; indeed authorities are silent or nearly so, because it is common and obvious. Taking out a man’s tooth without his consent would be an aggravated assault and battery. With consent it is lawfully done every day. In the case of a person under the age of discretion, the consent of that person’s parent or guardian is generally necessary and sufficient(i) . But consent alone is not enough to justify what is on the face of it bodily harm. There must be some kind of just cause, as the cure or extirpation of disease in the case of surgery. Wilful hurt is not excused by consent or assent if it has no reasonable object. Thus if a man licenses another to beat him, not only does this not prevent the assault from being a punishable offence, but the better opinion is that it does not deprive the party beaten of his right of action. On this principle prize-fights and the like “are unlawful even when entered into by agreement and without anger or mutual ill-will”(k) . “Whenever two persons go out to strike each other, and do so, each is guilty of an assault”(l) . The reason is said to be that such acts are against the peace, or tend to breaches of the peace. But, inasmuch as even the slightest direct application of force, if not justified, was in the language of pleading vi et armis and contra pacem, something more than usual must be meant by this expression. The distinction seems to be that agreement will not justify the wilful causing or endeavouring to cause appreciable bodily harm for the mere pleasure of the parties or others. Boxing with properly padded gloves is lawful, because in the usual course of things harmless. Fighting with the bare fist is not. Football is a lawful pastime, though many kicks are given and taken in it; a kicking match is not. “As to playing at foils, I cannot say, nor was it ever said that I know of, that it is not lawful for a gentleman to learn the use of the small sword; and yet that cannot be learned without practising with foils”(m) . Fencing, single-stick, or playing with blunt sabres in the accustomed manner, is lawful, because the players mean no hurt to one another, and take such order by the use of masks and pads that no hurt worth speaking of is likely. A duel with sharp swords after the manner of German students is not lawful, though there be no personal enmity between the men, and though the conditions be such as to exclude danger to life or limb. Here it cannot be said that “bodily harm was not the motive on either side”(n) . It seems to be what is called a question of mixed law and fact whether a particular action or contest involves such intention to do real hurt that consent or assent will not justify it(o) . Neglect of usual precautions in any pastime known to involve danger would be evidence of wrongful intention, but not conclusive evidence.

Reg. v. Coney. This question was incidentally considered by several of the judges in Reg. v. Coney(p) , where the majority of the Court held that mere voluntary presence at an unlawful fight is not necessarily punishable as taking part in an assault, but there was no difference of opinion as to a prize-fight being unlawful, or all persons actually aiding and abetting therein being guilty of assault notwithstanding that the principals fight by mutual consent. The Court had not, of course, to decide anything as to civil liability, but some passages in the judgments are material. Cave J. said: “The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial. If this view is correct a blow struck in a prize-fight is clearly an assault; but playing with single-sticks or wrestling do not involve an assault, nor does boxing with gloves in the ordinary way”(q) . Stephen J. said: “When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. . . . . In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as for instance in cases of wrestling, singlestick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character is a question of degree depending upon circumstances”(r) . These opinions seem equally applicable to the rule of civil responsibility(s) .

Licence gotten by fraud. A licence obtained by fraud is of no effect. This is too obvious on the general principles of the law to need dwelling upon(t) .

Extended meaning of volenti non fit iniuria. Trials of strength and skill in such pastimes as those above mentioned afford, when carried on within lawful bounds, the best illustration of the principle by which the maxim volenti non fit iniuria is enlarged beyond its literal meaning. A man cannot complain of harm (within the limits we have mentioned) to the chances of which he has exposed himself with knowledge and of his free will. Thus in the case of two men fencing or playing at singlestick, volenti non fit iniuria would be assigned by most lawyers as the governing rule, yet the words must be forced. It is not the will of one player that the other should hit him; his object is to be hit as seldom as possible. But he is content that the other shall hit him as much as by fair play he can; and in that sense the striking is not against his will. Therefore the “assault” of the school of arms is no assault in law. Still less is there an actual consent if the fact is an accident, not a necessary incident, of what is being done; as where in the course of a cricket match a player or spectator is struck by the ball. I suppose it has never occurred to any one that legal wrong is done by such an accident even to a spectator who is taking no part in the game. So if two men are fencing, and one of the foils breaks, and the broken end, being thrown off with some force, hits a bystander, no wrong is done to him. Such too is the case put in the Indian Penal Code(u) of a man who stands near another cutting wood with a hatchet, and is struck by the head flying off. It may be said that these examples are trivial. They are so, and for that reason appropriate. They show that the principle is constantly at work, and that we find little about it in our books just because it is unquestioned in common sense as well as in law.

Relation of these cases to inevitable accident. Many cases of this kind seem to fall not less naturally under the exception of inevitable accident. But there is, we conceive, this distinction, that where the plaintiff has voluntarily put himself in the way of risk the defendant is not bound to disprove negligence. If I choose to stand near a man using an axe, he may be a good woodman or not; but I cannot (it is submitted) complain of an accident because a more skilled woodman might have avoided it. A man dealing with explosives is bound, as regards his neighbour’s property, to diligence and more than diligence. But if I go and watch a firework-maker for my own amusement, and the shop is blown up, it seems I shall have no cause of action, even if he was handling his materials unskilfully. This, or even more, is implied in the decision in Ilott v. Wilkes(x) , where it was held that one who trespassed in a wood, having notice that spring-guns were set there, and was shot by a spring-gun, could not recover. The maxim “volenti non fit iniuria” was expressly held applicable: “he voluntarily exposes himself to the mischief which has happened”(y) . The case gave rise to much public excitement, and led to an alteration of the law(z) , but it has not been doubted in subsequent authorities that on the law as it stood, and the facts as they came before the Court, it was well decided. As the point of negligence was expressly raised by the pleadings, the decision is an authority that if a man goes out of his way to a dangerous action or state of things, he must take the risk as he finds it. And this appears to be material with regard to the attempt made by respectable authorities, and noticed above, to bring under this principle the head of excuse by reason of inevitable accident(a) .

Knowledge of risk opposed to duty of warning. It was held by a majority of the Court of Appeal that if a man undertakes to work in a railway tunnel where he knows that trains are constantly passing, he cannot complain of the railway company for not taking measures to warn the workmen of the approach of trains, and this though he is the servant not of the company but of the contractor(b) . The minority held that the railway company, as carrying on a dangerous business, were bound not to expose persons coming by invitation upon their property to any undue risk, and at all events the burden of proof was on them to show that the risk was in fact understood and accepted by the plaintiff(c) . “If I invite a man who has no knowledge of the locality to walk along a dangerous cliff which is my property, I owe him a duty different to that which I owe to a man who has all his life birdnested on my rocks”(d) .

But where a man goes on doing work under a risk which is known to him, and which does not depend on any one else’s acts, or on the condition of the place where the work is done, but is incident to the work itself, he cannot be heard to say that his exposure of himself to such risk was not voluntary(e) .

Cases between employers and their workmen: Smith v. Baker. The principle expressed by volenti non fit iniuria is different from that of contributory negligence(f) , as it is in itself independent of the contract of service or any other contract(g) . It does not follow that a man is negligent or imprudent because he chooses to encounter a risk which he knows and appreciates; but if he does voluntarily run the risk, he cannot complain afterwards(h) . At the same time knowledge is not of itself conclusive. The maxim is volenti—not scienti—non fit iniuria; “the question whether in any particular case a plaintiff was volens or nolens is a question of fact and not of law”(i) . A workman is not bound, for example, to throw up his employment rather than go on working with appliances which he knows or suspects to be dangerous; and continuing to use such appliances if the employer cannot or will not give him better is not conclusive to show that he voluntarily takes the attendant risk(k) . As between an employer and his own workmen, it is hardly possible to separate the question of knowledge and acceptance of a particular risk from the question whether it was a term in the contract of service (though it is seldom, if ever, an express term) that the workman should accept that risk. Since the Employers’ Liability Act has deprived the master, as we have already seen, of the defence of “common employment” in a considerable number of cases, the defence of volenti non fit iniuria has several times been resorted to, with the effect of raising complicated discussion on tolerably simple facts. By treating the maxim as if it were of literal authority (which no maxim is), and then construing it largely, something very like the old doctrine of “common employment” might have been indirectly restored. For some time there was appreciable danger of this result. But the tendency was effectually checked by the decision of the House of Lords in Smith v. Baker(e) . Except where there is an obvious and necessary danger in the work itself, it must be a question of fact in every case whether there was an agreement or at any rate consent to take the risk. “Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action:” as in the case of works unavoidably producing noxious fumes. But where “a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer,” there “the mere continuance in service, with knowledge of the risk,” does not “preclude the employed, if he suffer from such negligence, from recovering in respect of his employer’s breach of duty”(f) . And it seems that (apart from contracts to take a class of risks) there must be consent to the particular act or operation which is hazardous, not a mere general assent inferred from knowledge that risk of a certain kind is possible(g) .

Distinction where no negligence at all. Cases of volenti non fit iniuria are of course to be distinguished from cases of pure unexpected accident where there is no proof of any negligence at all on the defendant’s part(h) . It seems that Thomas v. Quartermaine, though not so dealt with, was really a case of this latter kind(i) .

In the construction of a policy of insurance against death or injury by accident, an exception of harm “happening by exposure of the insured to obvious risk of injury” includes accidents due to a risk which would have been obvious to a person using common care and attention(k) .

Distinction fromcases where negligence is ground of action. We now see that the whole law of negligence assumes the principle of volenti non fit iniuria not to be applicable. It was suggested in Holmes v. Mather(l) that when a competent driver is run away with by his horses, and in spite of all he can do they run over a foot-passenger, the foot-passenger is disabled from suing, not simply because the driver has done no wrong, but because people who walk along a road must take the ordinary risks of traffic. But if this were so, why stop at misadventure without negligence? It is common knowledge that not all drivers are careful. It is known, or capable of being known, that a certain percentage are not careful. “No one (at all events some years ago, before the admirable police regulations of later years) could have crossed London streets without knowing that there was a risk of being run over”(m) . The actual risk to which a man crossing the street is exposed (apart from any carelessness on his own part) is that of pure misadventure, and also that of careless driving, the latter element being probably the greater. If he really took the whole risk, a driver would not be liable to him for running over him by negligence: which is absurd. Are we to say, then, that he takes on himself the one part of the risk and does not take the other? A reason thus artificially limited is no reason at all, but a mere fiction. It is simpler and better to say plainly that the driver’s duty is to use proper and reasonable care, and beyond that he is not answerable. The true view, we submit, is that the doctrine of voluntary exposure to risk has no application as between parties on an equal footing of right, of whom one does not go out of his way more than the other. A man is not bound at his peril to fly from a risk from which it is another’s duty to protect him, merely because the risk is known(n) . Much the same principle has in late years been applied, and its limits discussed, in the special branch of the law which deals with contributory negligence. This we shall have to consider in its place(o) .

11.—

Works of necessity.

Works of necessity. A class of exceptions as to which there is not much authority, but which certainly exists in every system of law, is that of acts done of necessity to avoid a greater harm, and on that ground justified. Pulling down houses to stop a fire(p) , and casting goods overboard, or otherwise sacrificing property, to save a ship or the lives of those on board, are the regular examples. The maritime law of general average assumes, as its very foundation, that the destruction of property under such conditions of danger is justifiable(q) . It is said also that “in time of war one shall justify entry on another’s land to make a bulwark in defence of the king and the kingdom.” In these cases the apparent wrong “sounds for the public good”(r) . There are also circumstances in which a man’s property or person may have to be dealt with promptly for his own obvious good, but his consent, or the consent of any one having lawful authority over him, cannot be obtained in time. Here it is evidently justifiable to do, in a proper and reasonable manner, what needs to be done. It has never been supposed to be even technically a trespass if I throw water on my neighbour’s goods to save them from fire, or seeing his house on fire, enter peaceably on his land to help in putting it out(s) . Nor is it an assault for the first passer-by to pick up a man rendered insensible by an accident, or for a competent surgeon, if he perceives that an operation ought forthwith to be performed to save the man’s life, to perform it without waiting for him to recover consciousness and give his consent. These works of charity and necessity must be lawful as well as right. Our books have only slight and scattered hints on the subject, probably because no question has ever been made(t) .

It seems that on the same principle a stranger may justify interfering with the goods of a lately deceased person so far, but only so far, as required for the protection of the estate or for other purposes of immediate necessity(u) .

12.—

Private defence.

Self-defence. Self-defence (or rather private defence(v) , for defence of one’s self is not the only case) is another ground of immunity well known to the law. To repel force by force is the common instinct of every creature that has means of defence. And when the original force is unlawful, this natural right or power of man is allowed, nay approved, by the law. Sudden and strong resistance to unrighteous attack is not merely a thing to be tolerated; in many cases it is a moral duty. Therefore it would be a grave mistake to regard self-defence as a necessary evil suffered by the law because of the hardness of men’s hearts. The right is a just and perfect one. It extends not only to the defence of a man’s own person, but to the defence of his property or possession. And what may be lawfully done for oneself in this regard may likewise be done for a wife or husband, a parent or child, a master or servant(w) . At the same time no right is to be abused or made the cloak of wrong, and this right is one easily abused. The law sets bounds to it by the rule that the force employed must not be out of proportion to the apparent urgency of the occasion. We say apparent, for a man cannot be held to form a precise judgment under such conditions. The person acting on the defensive is entitled to use as much force as he reasonably believes to be necessary. Thus it is not justifiable to use a deadly weapon to repel a push or a blow with the hand. It is even said that a man attacked with a deadly weapon must retreat as far as he safely can before he is justified in defending himself by like means. But this probably applies (so far as it is the law) only to criminal liability(x) . On the other hand if a man presents a pistol at my head and threatens to shoot me, peradventure the pistol is not loaded or is not in working order, but I shall do no wrong before the law by acting on the supposition that it is really loaded and capable of shooting. “Honest and reasonable belief of immediate danger” is enough(y) .

Killing of animals in defence of property. Cases have arisen on the killing of animals in defence of one’s property. Here, as elsewhere, the test is whether the party’s act was such as he might reasonably, in the circumstances, think necessary for the prevention of harm which he was not bound to suffer. Not very long ago the subject was elaborately discussed in New Hampshire, and all or nearly all the authorities, English and American, reviewed(z) . Some of these, such as Deane v. Clayton(a) , turn less on what amount of force is reasonable in itself than on the question whether a man is bound, as against the owners of animals which come on his land otherwise than as of right, to abstain from making the land dangerous for them to come on. And in this point of view it is immaterial whether a man keeps up a certain state of things on his own land for the purpose of defending his property or for any other purpose which is not actually unlawful.

As to injuries received by an innocent third person from an act done in self-defence, they must be dealt with on the same principle as accidental harm proceeding from any other act lawful in itself. It has to be considered, however, that a man repelling imminent danger cannot be expected to use as much care as he would if he had time to act deliberately.

Assertion of rights distinguished from self-defence. Self-defence does not include the active assertion of a disputed right against an attempt to obstruct its exercise. I am not justified in shooting, or offering to shoot, one who obstructs my right of way, though I may not be able to pass him otherwise, and though I am justified in resisting, within due bounds, any active force used on his part. It seems the better opinion “that the use of force which inflicts or may inflict grievous bodily harm or death—of what in short may be called extreme force—is justifiable only for the purpose of strict self-defence”(b) . I may be justified in pushing past the obstructor, but this is not an act of self-defence at all; it is the pure and simple exercise of my right itself(c) .

Many interesting questions, in part not yet settled, may be raised in this connexion, but their interest belongs for most practical intents to public and not to private law. It must not be assumed, of course, that whatever is a sufficient justification or excuse in a criminal prosecution will equally suffice in a civil action.

Injury to third persons from acts of self-defence. Some of the dicta in the well-known case of Scott v. Shepherd(d) go the length of suggesting that a man acting on the spur of the moment under “compulsive necessity” (the expression of De Grey C.J.) is excusable as not being a voluntary agent, and is therefore not bound to take any care at all. But this appears very doubtful. In that case it is hard to believe that Willis or Ryal, if he had been worth suing and had been sued, could have successfully made such a defence. They “had . . . . . a right to protect themselves by removing the squib, but should have taken care”—at any rate such care as was practicable under the circumstances—“to do it in such a manner as not to endamage others”(e) . The Roman lawyers held that a man who throws a stone in self-defence is not excused if the stone by misadventure strikes a person other than the assailant(f) . Perhaps this is a harsh opinion, but it seems better, if the choice must be made, than holding that one may with impunity throw a lighted squib across a market-house full of people in order to save a stall of gingerbread. At all events a man cannot justify doing for the protection of his own property a deliberate act whose evident tendency is to cause, and which does cause, damage to the property of an innocent neighbour. Thus if flood water has come on my land by no fault of my own, this does not entitle me to let it off by means which in the natural order of things cause it to flood an adjoining owner’s land(g) .

13.—

Plaintiff a wrong-doer.

Harm suffered by a wrong-doer: doubtful whether any special disability. Language is to be met with in some books to the effect that a man cannot sue for any injury suffered by him at a time when he is himself a wrong-doer. But there is no such general rule of law. If there were, one consequence would be that an occupier of land (or even a fellow trespasser) might beat or wound a trespasser without being liable to an action, whereas the right of using force to repel trespass to land is strictly limited; or if a man is riding or driving at an incautiously fast pace, anybody might throw stones at him with impunity. In Bird v. Holbrook(h) a trespasser who was wounded by a spring-gun set without notice was held entitled to maintain his action. And generally, “a trespasser is liable to an action for the injury which he does; but he does not forfeit his right of action for an injury sustained”(i) . It does not appear on the whole that a plaintiff is disabled from recovering by reason of being himself a wrong-doer, unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction: and even then it is difficult to find a case where it is necessary to assume any special rule of this kind. It would be no answer to an action for killing a dog to show that the owner was liable to a penalty for not having taken out a dog licence in due time. If, again, A. receives a letter containing defamatory statements concerning B., and reads the letter aloud in the presence of several persons, he may be doing wrong to B. But this will not justify or excuse B. if he seizes and tears up the letter. A. is unlawfully possessed of explosives which he is carrying in his pocket. B., walking or running in a hurried and careless manner, jostles A. and so causes an explosion. Certainly A. cannot recover against B. for any hurt he takes by this, or can at most recover nominal damages, as if he had received a harmless push. But would it make any difference if A.’s possession were lawful? Suppose there were no statutory regulation at all: still a man going about with sensitive explosives in his pocket would be exposing himself to an unusual risk obvious to him and not obvious to other people, and on the principles already discussed would have no cause of action. And on the other hand it seems a strong thing to say that if another person does know of the special danger, he does not become bound to take answerable care, even as regards one who has brought himself into a position of danger by a wrongful act. Cases of this kind have sometimes been thought to belong to the head of contributory negligence. But this, it is submitted, is an unwarrantable extension of the term, founded on a misapprehension of the true meaning and reasons of the doctrine; as if contributory negligence were a sort of positive wrong for which a man is to be punished. This, however, we shall have to consider hereafter. On the whole it may be doubted whether a mere civil wrong-doing, such as trespass to land, ever has in itself the effect now under consideration. Almost every case that can be put seems to fall just as well, if not better, under the principle that a plaintiff who has voluntarily exposed himself to a known risk cannot recover, or the still broader rule that a defendant is liable only for those consequences of his acts which are, in the sense explained in a former chapter(k) , natural and probable.

Conflict of opinion in United States in cases of Sunday travelling. In America there has been a great question, upon which there have been many contradictory decisions, whether the violation of statutes against Sunday travelling is in itself a bar to actions for injuries received in the course of such travelling through defective condition of roads, negligence of railway companies, and the like. In Massachusetts (where the law has since been altered by statute), it was held that a plaintiff in such circumstances could not recover, although the accident might just as well have happened on a journey lawful for all purposes. These decisions must be supported, if at all, by a strict view of the policy of the local statutes for securing the observance of Sunday. They are not generally considered good law, and have been expressly dissented from in some other States(l) .

The principle now defined by the Supreme Court of Massachusetts as generally applicable is that illegal conduct of the plaintiff which contributed directly and proximately to the injury suffered by him is equivalent, as matter of law, to contributory negligence(m) .

Cause of action connected with unlawful agreement. It is a rule not confined to actions on contracts that “the plaintiff cannot recover where in order to maintain his supposed claim he must set up an illegal agreement to which he himself has been a party”(n) : but its application to actions of tort is not frequent or normal. The case from which the foregoing statement is cited is the only clear example known to the writer, and its facts were very peculiar.

[(a) ]Justification seems to be the proper word when the harm suffered is inseparably incident to the performance of a legal duty or the exercise of a common right; excuse, when it is but an accident: but I do not know that the precise distinction is always possible to observe, or that anything turns on it.

[(b) ]History of the Criminal Law, ii. 61.

[(c) ]This includes a friendly alien living in “temporary allegiance” under the protection of English law: therefore an act of state in this sense cannot take place in England in time of peace.

[(d) ]Secretary of State in Council of India v. Kamachee Boye Sahaba (1859) 13 Moo. P. C. 22, 75.

[(e) ]See Doss v. Secretary of State for India in Council (1875) 19 Eq. 509, and the case last cited.

[(f) ](1847) 2 Ex. 167.

[(g) ]Vol. ii. p. 64.

[(h) ]Entick v. Carrington, 19 St. Tr. 1043.

[(i) ]Hill v. Bigge (1841) 3 Moo. P. C. 465; dissenting from Lord Mansfield’s dictum in Mostyn v. Fabrigas, Cowp. 172, that “locally during his government no civil or criminal action will lie against him;” though it may be that he is privileged from personal arrest where arrest would, by the local law, be part of the ordinary process.

[(j) ]Luby v. Wodehouse, 17 Ir. C. L. R. 618; Sullivan v. Spencer, Ir. R. 6 C. L. 173, following Tandy v. Westmoreland, 27 St. Tr. 1246. These cases go very far, for the Lord Lieutenant was not even called on to plead his privilege, but the Court stayed proceedings against him on motion. As to the effect of a local Act of indemnity, see Phillips v. Eyre (1870) Ex. Ch. L. R. 6 Q. B. 1.

[(k) ]Musgrave v. Chung Teeong Toy, ’91, A. C. 272, 60 L. J. P. C. 28.

[(l) ]Duke of Brunswick v. King of Hanover (1843-4) 6 Beav. 1, 57; affirmed in the House of Lords, 2 H. L. C. 1.

[(m) ]What if cattle belonging to a foreign ambassador were distrained damage feasant? It would seem he could not get them back without submitting to the jurisdiction.

[(n) ]The Parlement Belge (1880) 5 P. D. 197, 214.

[(o) ]I have not met with a distinct statement of this qualification in existing authorities, but it is evidently assumed by them, and is necessary for the preservation of every state’s sovereign rights within its own jurisdiction. Plainly the command of a foreign government would be no answer to an action for trespass to land, or for the arrest of an alleged offender against a foreign law, within the body of an English county.

[(p) ]Law of May 24, 1872. But the principle is ancient, and the old law is still cited on various points.

[(q) ]Scott v. Stansfield (1868) L. R. 3 Ex. 220, 37 L. J. Ex. 155, which confirms and sums up the effect of many previous decisions. The authorities were lately reviewed and confirmed by the C. A., Anderson v. Gorrie (1894), not yet reported.

[(r) ]28 & 29 Vict. c. 36, s. 16.

[(s) ]Willis v. Maclachlan (1876) 1 Ex. D. 376, 45 L. J. Q. B. 689.

[(t) ]Houlden v. Smith (1850) 14 Q. B. 841, 19 L. J. Q. B. 170.

[(u) ]Lowther v. Earl of Radnor (1806) 8 East 113, 118.

[(x) ]Calder v. Halket (1839) 3 Moo. P. C. 28, 78.

[(y) ]Kemp v. Neville (1861) 10 C. B. N. S. 523, 31 L. J. C. P. 158 (an action against the Vice-Chancellor of the University of Cambridge), and authorities there cited.

[(z) ]Fray v. Blackburn (1862) 3 B. & S. 576.

[(a) ]Scott v. Stansfield (1868) L. R. 3 Ex. 220, 37 L. J. Ex. 155.

[(b) ]31 Car. II. c. 2, s. 9.

[(c) ]13 Edw. I. (Stat. Westm. 2) c. 31, cf. Blackstone, iii. 372.

[(d) ]This may be collected from such authorities as Dawkins v. Lord Rokeby (1875) L. R. 7 H. L. 744, 45 L. J. Q. B. 8; Daukins v. Prince Edward of Saxe Weimar (1876) 1 Q. B. D. 499, 45 L. J. Q. B. 567, which however go to some extent on the doctrine of “privileged communications,” a doctrine wider in one sense, and more special in another sense, than the rule now in question. Partly, also, they deal with acts of authority not of a judicial kind, which will be mentioned presently.

[(e) ]Pappa v. Rose (1872) Ex. Ch. L. R. 7 C. P. 525, 41 L. J. C. P. 187 (broker authorized by sale note to decide on quality of goods); Tharsis Sulphur Co. v. Loftus (1872) L. R. 8 C. P. 1, 42 L. J. C. P. 6 (average adjuster nominated to ascertain proportion of loss as between ship and cargo); Stevenson v. Watson (1879) 4 C. P. D. 148, 48 L. J. C. P. 318 (architect nominated to certify what was due to contractor).

[(f) ]Cooley on Torts, Ch. 14.

[(g) ]The details of this subject belong to criminal law.

[(h) ]Mayor of London v. Cox (1867) L. R. 2 H. L. at p. 269 (in opinion of judges, per Willes J.). The law seems to be understood in the same way in the United States. Cooley on Torts, 459—462.

[(i) ]The case of The Marshalsea, 10 Co. Rep. 76 a; Clark v. Woods (1848) 2 Ex. 395, 17 L. J. M. C. 189.

[(k) ]24 Geo. II. c. 44, s. 6. (Action lies only if a demand in writing for perusal and copy of the warrant is refused or neglected for six days.)

[(l) ]56 & 57 Vict. c. 61. There are subsidiary but not unimportant provisions as to costs.

[(m) ]See Glasspoole v. Young (1829) 9 B. & C. 696; Balme v. Hutton Ex. Ch. (1833) 9 Bing. 471; Dunston v. Paterson (1857) 2 C. B. N. S. 495, 26 L. J. C. P. 267; and other authorities collected in Fisher’s Digest, ed. Mews, sub tit. Sheriff.

[(n) ]Johnstone v. Sutton (1786-7) Ex. Ch. 1 T. R. 510, 548; affirmed in H. L. ibid. 784, 1 Bro. P. C. 76, 1 R. R. 257. The Ex. Ch. thought the action did not lie, but the defendant was entitled to judgment even if it did. No reasons appear to have been given in the House of Lords.

[(o) ]See per Willes J. in Keighly v. Bell (1866) 4 F. & F. at p. 790. In time of war the protection may perhaps be more extensive. As to criminal responsibility in such cases, cf. Stephen, Dig. Cr. Law, art. 202, Hist. Cr. Law, i. 200—206.

[(p) ]Bradlaugh v. Gossett (1884) 12 Q. B. D. 271, 53 L. J. Q. B. 209. As to the limits of the privilege, see per Stephen J. at p. 283. As to the power of a colonial legislative assembly over its own members, see Barton v. Taylor (J. C. 1886) 11 App. Ca. 197, 55 L. J. P. C. 1.

[(q) ]See Allbutt v. General Council, &c. (1889) 23 Q. B. Div. 400, 58 L. J. Q. B. 606; Leeson v. General Council, &c. (1889) 43 Ch. Div. 366, 59 L. J. Ch. 233; Partridge v. General Council, &c. (1890) 25 Q. B. Div. 90, 59 L. J. Q. B. 475.

[(r) ]See Neate v. Denman (1874) 18 Eq. 127.

[(s) ]Inderwick v. Snell (1850) 2 Mac. & G. 216 (removal of a director of a company); Dawkins v. Antrobus (1881) 17 Ch. Div. 615 (expulsion of a member from a club); cf. 13 Ch. D. 352; Partridge v. General Council, &c., note (q) last page, although no notice was given, the council honestly thinking they had no option. In the case of a club an injunction will be granted only in respect of the member’s right of property, therefore where the club is proprietary the only remedy is in damages: Baird v. Wells (1890) 44 Ch. D. 661, 59 L. J. Ch. 673. As to objections against a member of a “domestic tribunal” on the ground of interest, Allinson v. General Council, &c., ’94, 1 Q. B. 750, 9 R. (March) 205, C. A.

[(t) ]Fisher v. Keane (1878) 11 Ch. D. 353, 49 L. J. Ch. 11 (a club case, no notice to the member); Labouchere v. Wharncliffe (1879) 13 Ch. D. 346 (the like, no sufficient inquiry or notice to the member, calling and proceedings of general meeting irregular); Dean v. Bennett (1870) 6 Ch. 489, 40 L. J. Ch. 452 (minister of Baptist chapel under deed of settlement, no sufficient notice of specific charges either to the minister or in calling special meeting).

[(u) ]Blisset v. Daniel (1853) 10 Ha. 493; Wood v. Woad (1874) L. R. 9 Ex. 190, 43 L. J. Ex. 190. Without an express power in the articles a partner cannot be expelled at all.

[(v) ]E. g. Dean v. Bennett, note (t) last page; Fisher v. Jackson, ’91, 2 Ch. 84, 60 L. J. Ch. 482 (power judicial); Hayman v. Governors of Rugby School (1874) 18 Eq. 28, 43 L. J. Ch. 834 (power absolute).

[(x) ]Tozer v. Child (1857) Ex. Ch. 7 E. & B. 377, 26 L. J. Q. B. 151, explaining Ashby v. White, Ld. Raym. 938, and in 1 Sm. L. C.; and see the special report of Holt’s judgment published in 1837 and referred to in Tozer v. Child. There is some difference of opinion in America, see Cooley on Torts, 413, 414.

[(y) ]6 & 7 Vict. c. 18, s. 82. As to presiding officers under the Ballot Act, 1872, Pickering v. James (1873) L. R. 8 C. P. 489, 42 L. J. C. P. 217; Ackers v. Howard (1886) 16 Q. B. D. 739, 55 L. J. Q. B. 273.

[(z) ]Blackstone, i. 452. See modern examples collected in Addison on Torts, 7th ed. p. 145. A schoolmaster’s delegated authority is not bounded by the walls of the school: Cleary v. Booth, ’93, 1 Q. B. 465, 62 L. J. M. C. 87, 5 R. 263.

[(a) ]The ancient right of a husband to beat his wife moderately (F. N. B. 80 F. 239 A.) was discredited by Blackstone (i. 445) and is not recognized at this day; but as a husband and wife cannot in any case sue one another for assault in a civil court, this does not concern us. As to imprisonment of a wife by a husband, Reg. v. Jackson, ’91, 1 Q. B. 671, 60 L. J. Q. B. 346, C. A.

[(b) ]Lord Stowell, The Agincourt (1824) 1 Hagg. 271, 274. This judgment is the classical authority on the subject. For further references see Maude and Pollock’s Merchant Shipping, 4th ed. i. 127.

[(c) ]Cf. Gaius (D. 50, 17, de div. reg. 55): “Nullus videtur dolo facere, qui suo iure utitur.”

[(d) ]Lord Blackburn, Geddis v. Proprietors of Bann Reservoir (1878) 3 App. Ca. at p. 455; Caledonian R. Co. v. Walker’s Trustees (1882) 7 App. Ca. at p. 293; Mersey Docks Trustees v. Gibbs (1864-6) L. R. 1 H. L. at p. 112.

[(e) ]Hammersmith R. Co. v. Brand (1869) L. R. 4 H. L. 171, 38 L. J. Q. B. 265; A.-G. v. Metropolitan R. Co., ’94, 1 Q. B. 384, 9 R. Sept. 252, C.A.

[(f) ]Hammersmith R. Co. v. Brand, last note, confirming and extending Rex v. Pease (1832) 4 B. & Ad. 30, where certain members and servants of the Stockton and Darlington Railway Company were indicted for a nuisance to persons using a high road near and parallel to the railway. Lord Bramwell must have forgotten this authority when he said in the Court of Appeal that Rex v. Pease was wrongly decided (5 Q. B. D. 601).

[(g) ]Vaughan v. Taff Vale R. Co. (1860) Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247. See below in Ch. XII. So of noise made by pumps in the authorized sinking of a shaft near a man’s land or house: Harrison v. Southwark and Vauxhall Water Co., ’91, 2 Ch. 409, 60 L. J. Ch. 630.

[(h) ]Cracknell v. Corporation of Thetford (1869) L. R. 4 C. P. 629, 38 L. J. C. P. 353, decided partly on the ground that the corporation were not even entitled to enter on land which did not belong to them to remove weeds, &c., for any purposes beyond those of the navigation. A rather similar case, but decided the other way in the last resort on the construction of the particular statute there in question, is Geddis v. Proprietors of Bann Reservoir, 3 App. Ca. 430. Cracknell’s case seems just on the line; cp. Biscoe v. G. E. R. Co. below.

[(i) ]Per Lord Truro, L. & N. W. R. Co. v. Bradley (1851) 3 Mac. & G. at p. 341.

[(k) ]Biscoe v. G. E. R. Co. (1873) 16 Eq. 636.

[(l) ]6 App. Ca. 203.

[(m) ]Metropolitan Asylum District v. Hill (1881) 6 App. Ca. 193; cp. Rapier v. London Tramways Co., ’93, 2 Ch. 588, 63 L. J. Ch. 36, 2 R. 448.

[(n) ]Attorney-General v. Gaslight and Coke Co. (1877) 7 Ch. D. 217, 221, 47 L. J. Ch. 534.

[(o) ]Rajmohun Bose v. East India R. Co. (High Court, Calcutta), 10 Ben. L. R. 241. Qu. whether this be consistent with the case next cited.

[(p) ]London and Brighton R. Co. v. Truman (1885) 11 App. Ca. 45, 55 L. J. Ch. 354, reversing the decision of the Court of Appeal, 29 Ch. Div. 89.

[(q) ]Gas Light and Coke Co. v. Vestry of St. Mary Abbott’s (1885) 15 Q. B. Div. 1, 54 L. J. Q. B. 414. The Court also relied, but only by way of confirmation, on certain special Acts dealing with the relations between the vestry and the company. See 15 Q. B. D. at p. 6.

[(r) ]Bowen L. J., 29 Ch. D. at p. 108.

[(s) ]See especially Lord Blackburn’s opinion in London and Brighton R. Co. v. Truman.

[(t) ]P. 32, above.

[(u) ]This, at any rate, is the view of modern juries; see Nichols v. Marsland (1875) L. R. 10 Ex. at p. 256, 46 L. J. Ex. 174; Holmes v. Mather, L. R. 10 Ex. at p. 262.

[(v) ]Trespass for assault by striking the plaintiff with a stick thrown by the defendant. Plea, not guilty. The jury were directed that, in the absence of evidence for what purpose the defendant threw the stick, they might conclude it was for a proper purpose, and the striking the plaintiff was a mere accident for which the defendant was not answerable: Alderson v. Waistell (1844) 1 C. & K. 358 (before Rolfe B.). This, if it could be accepted, would prove more than is here contended for. But it is evidently a rough and ready summing-up given without reference to the books.

[(x) ]Shaw C. J. would not concede even this in the leading Massachusetts case of Brown v. Kendall, 6 Cush. at p. 297.

[(y) ]See on the whole of this matter Mr. Justice Holmes’s chapter on “Trespass and Negligence,” and Mr. Wigmore’s articles in Harv. Law Rev. vii. 315, 383, 441, where materials are fully collected.

[(z) ]Heusler, Inst. des deutschen Privatrechts, ii. 263; Ll. Hen. Primi, c. 88 § 6. 90 § 11; see p. 129, below.

[(a) ]“Inpunitus est qui sine culpa et dolo malo casu quodam damnum committit.” Gai. 3. 211. Paulus indeed says (D. 9. 2, ad legem Aquiliam, 45, § 4), “Si defendendi mei causa lapidem in adversarium misero, sed non eum sed praetereuntem percussero, tenebor lege Aquilia; illum enim solum qui vim infert ferire conceditur.” But various explanations of this are possible. Perhaps it shows what kind of cases are referred to by the otherwise unexplained dictum of Ulpian in the preceding fragment, “in lege Aquilia et levissima culpa venit.” Paulus himself says there is no iniuria if the master of a slave, meaning to strike the slave, accidentally strikes a free man: D. 47. 10, de iniuriis, 4. According to the current English theory of the 16th—18th centuries an action on the case would not lie on such facts, but trespass vi et armis would.

[(b) ]15 Wall. 524 (1872).

[(c) ]The plaintiff’s proper remedy would have been against the consignor who despatched the explosive without informing the carriers of its nature. See Lyell v. Ganga Dai (1875) Indian Law Rep. 1 All. 60.

[(d) ]6 Cush. 292 (1850).

[(e) ]The consequence was involuntary or rather unintended, though the act itself was voluntary; and it was also unavoidable, i. e. not preventable by reasonable diligence.

[(f) ]Harvey v. Dunlap, Lalor 193, cited 15 Wall. 539; Morris v. Platt, 32 Conn. 75.

[(g) ]Cooley on Torts, 80.

[(h) ]2 Keyes 169 (1865).

[(i) ]It will be remembered that this was in the days of muzzle-loaders. A like accident, however, happened not many years ago at an Aldershot field day, fortunately without hurt to any one.

[(j) ]Erle C. J. obiter, in Potter v. Faulkner, 1 B. & S. at p. 805, 31 L. J. Q. B. 30; Dixon v. Bell, 5 M. & S. 198.

[(k) ]The reporter adds this significant note: “The Court did not pass upon the first branch of the case, discussed by the Chief Judge, as to the question of the general liability of the commanding officer.”

[(l) ]21 St. Tr. 1022 (ad 1783).

[(m) ]Would an indictment ever lie for simple trespass? I know not of any authority that it would, though the action of trespass originally had, and retained in form down to modern times, a public and penal character.

[(n) ]Maxims of the Law, Reg. 7, following the dictum of Rede J. in 21 Hen. VII. 28. We cite Bacon, not as a writer of authority, but as showing, like Erskine, the average legal mind of his time.

[(o) ]O. W. Holmes 103.

[(p) ]C. 88 § 6. “Si quis in ludo sagittandi vel alicuius exercitii iaculo vel huiusmodi casu aliquem occidat, reddat eum; legis enim est, qui inscienter peccat, scienter emendet.” C. 90 § 11 adds an English form of the maxim: “et qui brecht ungewealdes, bete gewealdes.”

[(q) ]6 Edw. IV. 7, pl. 18; O. W. Holmes 85; cf. 21 Hen VII. 27, pl. 5, a case of trespass to goods which does not really raise the question.

[(r) ]Hob. 134, ad 1616.

[(s) ]Dickeson v. Watson, Sir T. Jones 205, ad 1682. Lambert v. Bessey, T. Raym. 421, a case of false imprisonment in the same period, cites the foregoing authorities, and Raymond’s opinion certainly assumes the view that inevitable accident is no excuse even when the act is one of lawful self-defence. But then Raymond’s opinion is a dissenting one; s. c. nom. Bessey v. Olliott, T. Raym. 467; being given in the former place alone and without explanation, it has apparently been sometimes taken for the judgment of the Court. At most, therefore, his illustrations are evidence of the notions current at the time.

[(t) ]Underwood v. Hewson, 1 Strange 596, ad 1723 (defendant was uncocking a gun, plaintiff looking on). It looks very like contributory negligence, or at any rate voluntary exposure to the risk, on the plaintiff’s part. But the law of negligence was then quite undeveloped.

[(u) ]Scott v. Shepherd (1773) 2 W. Bl. 892, 3 Wils. 403.

[(x) ]3 East 593 (ad 1803), cp. Preface to 7 R. R. at p. vii.

[(y) ](1868) L. R. 3 H. L. at p. 341.

[(z) ]Sometimes the case of James v. Campbell (1832) 5 C. & P. 372, is cited in this connexion. But not only is it a Nisi Prius case with nothing particular to recommend it, but it is irrelevant. The facts there alleged were that A. in a quarrel with B. struck C. Nothing shows that A. would have been justified or excused in striking B. And if the blow he intended was not lawful it was clearly no excuse that he struck the wrong man (p. 29 above, and see R. v. Latimer (1886) 17 Q. B. D. 359, 55 L. J. M. C. 135).

[(a) ]Davis v. Saunders, 2 Chitty 639.

[(b) ]Gibbons v. Pepper, 1 Lord Raym. 38.

[(c) ]1 Bing. 213 (1823). The argument for the defendant seems to have been very well reasoned.

[(d) ]Hall v. Fearnley (1842) 3 Q. B. 919, 12 L. J. Q. B. 22. The line between this and Gibbons v. Pepper is rather fine.

[(e) ]L. R, 10 Ex. 261, 44 L. J. Ex. 176 (1875).

[(f) ]Bramwell B. at p. 267.

[(g) ]L. R. 1 Ex. at pp. 286, 287. But see per Lord Halsbury in Smith v. Baker, ’91, A. C. 325, 337, 60 L. J. Q. B. 683.

[(h) ]’91, 1 Q. B. 86, 60 L. J. Q. B. 52. This was a shooting case (a pellet glanced from a bough and wounded the plaintiff’s eye). A point might have been made for the plaintiff, but apparently was not, on the “extra-hazardous” character of fire-arms.

[(i) ]A.-G. v. Tomline (1880) 14 Ch. Div. 58, 49 L. J. Ch. 377, is a curious case, but does not make any real exception to this. It shows that (1) the Crown as owner of foreshore has duties for the protection of the land, though not enforceable duties; (2) those duties, where the Crown rights have become vested in a subject, are laid upon and may be enforced against that subject.

[(k) ]Ulpian wrote (D. 9. 1, si quadrupes, 1, § 3): “Pauperies est damnum sine iniuria facientis datum, nec enim potest animal iniuria fecisse, quod sensu caret.” This is in a very special context, and is far from warranting the use of “damnum sine iniuria” as a common formula. Being, however, adopted in the Institutes, 4, 9, pr. (with the unidiomatic variant “iniuriam fecisse”), it probably became, through Azo, the origin of the phrase now current. In Gaius 3. 211 (on the lex Aquilia) we read “Iniuria autem occidere intellegitur cuius dolo aut culpa id acciderit, nec ulla alia lege damnum quod sine iniuria datur reprehenditur.” This shows that “damnum sine iniuria dare” was a correct if not a common phrase: though it could never have for Gaius or Ulpian the wide meaning of “harm [of any kind] which gives no cause of action.” “Damnum sine iniuria” standing alone as a kind of compound noun, according to the modern use, is hardly good Latin.

[(l) ]Bracton says, fo. 221 a: “Si quis in fundo proprio construat aliquod molendinum, et sectam suam et aliorum vicinorum subtrahat vicino, facit vicino damnum et non iniuriam.” “Dampnum sine iniuria” occurs in 7 Ed. III. 65, pl. 67, “damnum absque iniuria” in 11 Hen. IV. 47, pl. 21 (see below).

[(m) ]Hil. 11 Hen. IV. 47, pl. 21 (ad 1410-11). In the course of argument the opinion is thrown out that the education of children is a spiritual matter, and therefore the right of appointing a schoolmaster cannot be tried by a temporal court. The plaintiff tried to set up a quasi franchise as holding an ancient office in the gift of the Prior of Lantone, near Gloucester (sic: probably Llanthony is meant).

[(n) ]22 Hen. VI. 14, pl. 23 (ad 1443). The school case is cited.

[(o) ]Mogul Steamship Co. v. McGregor (1889-91) 23 Q. B. Div. 598, affirmed in H. L., ’92, A. C. 25.

[(p) ]Bowen L. J., 23 Q. B. Div. at p. 615.

[(q) ]Fry L. J., ibid. at pp. 625, 626.

[(r) ]Lord Hannen, s. c. in H. L. ’92, A. C. at p. 59.

[(s) ]Per Cur., Ballacorkish Mining Co. v. Harrison (1873) L. R. 5 P. C. at p. 61, 43 L. J. P. C. 19.

[(t) ]12 M. & W. 324, 13 L. J. Ex. 289 (1843).

[(u) ]7 H. L. C. 349, 29 L. J. Ex. 81 (1859).

[(x) ]Cp., as to the distinction between the “natural user” of land and the maintenance of artificial works, Hurdman v. N. E. R. Co. (1878) 3 C. P. Div. at p. 174, 47 L. J. C. P. 368; and further as to the limits of “natural user,” Ballard v. Tomlinson (1885) 29 Ch. Div. 115, 54 L. J. Ch. 454.

[(y) ]Cooley on Torts 580.

[(z) ]Rogers v. Rajendro Dutt, 8 Moo. I. A. 103.

[(x) ]8 Moo. I. A. at p. 134.

[(y) ]See per Holt C. J. in Keeble v. Hiokeringill, 11 East at pp. 575, 576, 11 R. R. 274 n.

[(z) ]It is very difficult to say what “malice,” as a term of art, really means in any one of its generally similar but not identical uses; but I think the gloss here given is sufficiently correct for the matter in hand. At all events, the intention of causing disadvantage to the plaintiff as a competitor in business by acts in themselves lawful, and done in the course of that business, does not make such acts wrongful: Mogul Steamship Co. v. McGregor (1889) 23 Q. B. Div. 598, H. L., ’92, A. C. 25, 61 L. J. Q. B. 295.

[(a) ]7 H. L. C. at p. 388. But see per Fry L. J., 23 Q. B. Div. at p. 625, on the hypothetical case of “competition used as a mere engine of malice.”

[(b) ]See Sir W. Markby’s “Elements of Law,” s. 239.

[(bb) ]Corporation of Bradford v. Pickles, ’94, 3 Ch. 53 (North J)., where, although the plaintiff succeeded on the ground that the defendant had broken a statutory prohibition, the question of the defendant’s good faith was discussed and held immaterial, and the plaintiff lost half his costs. See at p. 71.

[(c) ]D. 39, 3, de aqua, 1, § 12 (Ulpian).

[(d) ]Bell’s Principles, 966 (referred to by Lord Wensleydale).

[(e) ]See Burgess v. Burgess (1853) 3 D. M. G. 896, 22 L. J. Ch. 675, a classical case; Du Boulay v. Du Boulay (1869) L. R. 2 P. C. 430, 38 L. J. P. C. 35; Day v. Brownrigg (1878) 10 Ch. Div. 294, 48 L. J. Ch. 173; Street v. Union Bank, &c. (1885) 30 Ch. D. 156, 55 L. J. Ch. 31. Cp. Montgomery v. Thompson, ’91, A. C. 217, 60 L. J. Ch. 757.

[(f) ]Jessel M. R., 10 Ch. Div. 304.

[(g) ]Unless we said that leave points to specific consent to an act, licence to general assent to the consequences of acts consented to: but such a distinction seems too fanciful.

[(h) ]See Addison on Torts, p. 384, 7th ed.; Cooley on Torts, 303, sqq.

[(i) ]Cp. Stephen, Digest of the Criminal Law, art. 204.

[(k) ]Commonwealth v. Collberg (1876) 119 Mass. 350, and 20 Am. Rep. 328, where authorities are collected. See also Reg. v. Coney (1882) 8 Q. B. D. 534, 538, 546, 549, 567, and next page.

[(l) ]Coleridge J. in Reg. v. Lewis (1844) 1 C. & K. at p. 421, cp. Buller N. P. 16. The passage there and elsewhere cited from Comberbach, apart from the slender authority of that reporter, is only a dictum. Buller’s own authority is really better.

[(m) ]Foster’s Crown Law, 260.

[(n) ]Foster, l. c. “Motive” is hardly the correct word, but the meaning is plain enough.

[(o) ]Cp. Pulton, De Pace Regis, 17 b. It might be a nice point whether the old English backswording (see “Tom Brown”) was lawful or not. And quaere of the old rules of Rugby football, which allowed deliberate kicking in some circumstances. Quaere, also, whether one monk might have lawfully licensed another to beat him by way of spiritual discipline. But anyhow he could not have sued, being civilly dead by his entering into religion.

[(p) ]8 Q. B. D. 534, 51 L. J. M. C. 66 (1882). For fuller collection and consideration of authorities, cp. Mr. Edward Manson’s note in L. Q. R. vi. 110.

[(q) ]8 Q. B. D. at p. 539. As to the limits of lawful boxing, see Reg. v. Orton (1878) 39 L. T. 293.

[(r) ]8 Q. B. D. at p. 549. Compare arts. 206, 208 of the learned judge’s “Digest of the Criminal Law.” The language of art. 208 follows the authorities, but I am not sure that it exactly hits the distinction.

[(s) ]Notwithstanding the doubt expressed by Hawkins J., 8 Q. B. D. at pp. 553, 554.

[(t) ]A rather curious illustration may be found in Davies v. Marshall (1861) 10 C. B. N. S. 697, 31 L. J. C. P. 61, where the so-called equitable plea and replication seems to have amounted to a common law plea of leave and licence and joinder of issue, or perhaps new assignment, thereon.

[(u) ]Illust. to s. 80. On the point of actual consent, cf. ss. 87 and 88.

[(x) ]3 B. & Ald. 304 (1820); cp. and dist. the later case of Bird v. Holbrook (1828) 4 Bing. 628. The argument that since the defendant could not have justified shooting a trespasser with his own hand, even after warning, he could not justify shooting him with a spring-gun, is weighed and found wanting, though perhaps it ought to have prevailed.

[(y) ]Per Bayley J. 3 B. & Ald. at p. 311, and Holroyd J. at p. 314.

[(z) ]Edin. Rev. xxxv. 123, 410 (reprinted in Sydney Smith’s works). Setting spring-guns, except by night in a dwelling house for the protection thereof, was made a criminal offence by 7 & 8 Geo. IV. c. 18, now repealed and substantially re-enacted (24 & 25 Vict. c. 95, s. 1, and c. 100, s. 31).

[(a) ]Holmes v. Mather (1875) L. R. 10 Ex. at p. 267; Rylands v. Fletcher (1866) L. R. 1 Ex. at p. 287.

[(b) ]Woodley v. Metr. Dist. R. Co. (1877) 2 Ex. Div. 384, 46 L. J. Ex. 521; Mellish and Baggallay L. JJ. diss.

[(c) ]Cp. Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 56 L. J. Q. B. 340, and Lord Herschell’s judgment in Membery v. G. W. R. Co. (1889) 14 App. Ca. 179, 190.

[(d) ]Fry L. J. 18 Q. B. Div. at p. 701. And see Yarmouth v. France (1887) 19 Q. B. D. 647, 57 L. J. Q. B. 7.

[(e) ]Membery v. G. W. R. Co. note (c), last page. Lord Bramwell’s extra-judicial remarks cannot be supported: see per Lord Herschell, 14 App. Ca. at pp. 192, 193; and Smith v. Baker, note (i), p. 155.

[(f) ]Bowen L. J. in Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 694, 697, 56 L. J. Q. B. 340.

[(g) ]18 Q. B. Div. at p. 698.

[(h) ]Bowen L. J. 18 Q. B. Div. at p. 695.

[(i) ]Ibid. at p. 696; Lindley L.J. in Yarmouth v. France (1887) 19 Q. B. D. 647, 659, before judges of the C. A. sitting as a divisional Court.

[(k) ]Yarmouth v. France, last note; Thrussell v. Handyside (1888) 20 Q. B. D. 359, 57 L. J. Q. B. 347; Smith v. Baker, ’91, A. C. 325, 60 L. J. Q. B. 683.

[(e) ]’91 A. C. 325.

[(f) ]Lord Herschell, ’91 A. C. at pp. 360, 362.

[(g) ]Lord Halsbury, ’91, A. C. at pp. 336—338.

[(h) ]Walsh v. Whiteley (1888) 21 Q. B. Div. 371, 57 L. J. Q. B. 586.

[(i) ]See Lord Morris’s remarks in Smith v. Baker, ’91, A. C. at p. 369. In Smith v. Baker itself, an appeal from a County Court, this point, not having been raised at the trial below, was not open on the appeal. It was nevertheless extra-judicially discussed, with considerable variety of opinion.

[(k) ]Cornish v. Accident Insurance Co. (1889) 23 Q. B. Div. 453, 58 L. J. Q. B. 591.

[(l) ]L. R. 10 Ex. at p. 267.

[(m) ]Lord Halsbury, ’91, A. C. at p. 337.

[(n) ]Smith v. Baker, ’91, A. C. 325, 60 L. J. Q. B. 683; Thrussell v. Handyside (1888) 20 Q. B. D. 359, 57 L. J. Q. B. 347.

[(o) ]See Ges v. Metropolitan R. Co. (1873) Ex. Ch. L. R. 8 Q. B. 161, 42 L. J. Q. B. 105; Robson v. N. E. R. Co. (1875) L. R. 10 Q. B. at p. 274, 44 L. J. Q. B. 112; and per Bramwell L. J. (not referring to these authorities, and taking a somewhat different view), Lax v. Corporation of Darlington (1879) 5 Ex. D. at p. 35, 49 L. J. Ex. 105.

[(p) ]Dyer, 36 b. Cp. the opinion of Best C. J. in Dewey v. White (1827), M. & M. 56 (damage inevitably done to plaintiff’s house in throwing down chimneys ruined by fire, which were in danger of falling into the highway: a verdict for the defendants was acquiesced in).

[(q) ]Mouse’s case, 12 Co. Rep. 63, is only just worth citing as an illustration that no action lies.

[(r) ]Kingsmill J. 21 Hen. VII. 27, pl. 5; cp. Dyer, ubi supra. In 8 Ed. IV. 23, pl. 41, it is thought doubtful whether the justification should be by common law or by special custom.

[(s) ]Good will without real necessity would not do; there must be danger of total loss, and, it is said, without remedy for the owner against any person, per Rede C. J. 21 Hen. VII. 28, pl. 5; but if this be law, it must be limited to remedies against a trespasser, for it cannot be a trespass or a lawful act to save a man’s goods according as they are or are not insured. Cp. Y. B. 12 Hen. VIII. 2, where there is some curious discussion on the theory of trespass generally. A mere volunteer may not force his way into a house on fire already under the control of persons who are lawfully endeavouring to put down the fire, and are not manifestly insufficient for that purpose: Carter v. Thomas, ’93, 1 Q. B. 673, 5 R. 343 (judgment of Kennedy J.)

[(t) ]Cf. the Indian Penal Code,) s. 92, and the powers given to the London Fire Brigade by 28 & 29 Vict. c. 90, s. 12, which seem rather to assume a pre-existing right at common law.

[(u) ]See Kirk v. Gregory (1876) 1 Ex. D. 55, 59.

[(v) ]This is the term adopted in the Indian Penal Code.

[(w) ]Blackstone iii. 3; and see the opinion of all the justices of K. B., 21 Hen. VII. 39, pl. 50. There has been some doubt whether a master could justify on the ground of the defence of his servant. But the practice and the better opinion have always been otherwise. Before the Conquest it was understood that a lord might fight in defence of his men as well as they in his. Ll. Alf. c. 42, § 5.

[(x) ]See Stephen, Digest of Criminal Law, art. 200. Most of the authority on this subject is in the early treatises on Pleas of the Crown.

[(y) ]N. O. & N. E. R. R. Co. v. Jopes (1891) 142 U. S. 18.

[(z) ]Aldrich v. Wright (1873) 53 N. H. 398, 16 Am. Rep. 339. The decision was that the penalty of a statute ordaining a close time for minks did not apply to a man who shot on his own land, in the close season, minks which he reasonably thought were in pursuit of his geese. Compare Taylor app. Newman resp. (1863) 4 B. & S. 89, 32 L. J. M. C. 186.

[(a) ]7 Taunt. 489, the case of dog-spears, where the Court was equally divided (1817); Jordin v. Crump (1841) 8 M. & W. 782, where the Court took the view of Gibbs C. J. in the last case, on the ground that setting dog-spears was not in itself illegal. Notice, however, was pleaded.

[(b) ]Dicey, Law of the Constitution, 4th ed. 1893, appx. note (N), which see for fuller discussion.

[(c) ]Dicey, op. cit. 426.

[(d) ]2 W. Bl. 892.

[(e) ]Blackstone J. in his dissenting judgment, 2 W. Bl. at p. 895.

[(f) ]D. 9. 2, ad 1. Aquil. 45, § 4; supra, p. 124.

[(g) ]Whalley v. Lanc. and Yorkshire R. Co. (1884) 13 Q. B. Div. 131, 53 L. J. Q. B. 285, distinguishing the case of acts lawful in themselves which are done by way of precaution against an impending common danger.

[(h) ](1828) 4 Bing. 628. Cp. p. 151, above. The cause of action arose, and the trial took place, before the passing of the Act which made the setting of spring-guns unlawful.

[(i) ]Barnes v. Ward (1850) 9 C. B. 392, 19 L. J. C. P. 195.

[(k) ]P. 32, above.

[(l) ]Sutton v. Town of Wauwatosa (Wisconsin, 1871) Bigelow L. C. 711, and notes thereto, pp. 721-2; S. C. in Jer. Smith’s Cases on Torts, ii. 115, see note, ib.; Cooley on Torts, 156. And see White v. Lang, 128 Mass. 598; Bucher v. Cheshire R. R. Co., 125 U. S. 555.

[(m) ]Newcomb v. Boston Protective Depart. (1888), 146 Mass. 596, Jer. Smith, op. cit. ii. 123.

[(n) ]Maule J., Fivaz v. Nicholls (1846) 2 C. B. 501, 512.