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, etc. 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

See modern

(z) Blackstone, i. 452. examples collected in Addison on Torts, Jth ed. p. 145.

(a) The ancient right of a husband to beat his wife moderately (F. N. B. 80 F. 239 A.) was discredited by Blackstone (1.445) 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.

114; 76 Am. Dec. 156; Patterson v. Nutter, 78 Mo. 50; 8 Eastern Rep. 662; 57 Am. Rep. 818; Morron v. Wood, 35 Wis. 59.

The hirer of convicts is not in loco parentis. Cornell v. State, 6 Lea, 624; Prewitt v. State, 51 Ala. 33.

Nor is the keeper of an almshouse. State v. Hull, 34 Conn. 132. Unless to preserve present order. State v. Neff, 58 Ind. 516.

Although the supreme court of North Carolina declared in State v. Rhodes, (Phill. L. 453), that a husband has a right to whip his wife with "a stick as large as his finger but not larger than his thumb," this decision was in recognition of a barbarous custom which modern authorities condemn. Fulgham v. State, 46 Ala. 143; State v. Oliver, 70 N. C. 60; Shackett v. Shackett, 40 Vt. 195; Gholston v. Gholston, 31 Ga. 625; Edmond's App. 57 Pa. St. 232; Commonwealth v. McAfee, 108 Mass. 458; 11 Am. App. 383.

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

Of the master of a ship. The authority of the master of a vessel to punish those on board is limited to the preservation of discipline and the ship's safety, and it must not be excessive. It is not co-extensive with the authority of a parent or schoolmaster. Bangs v. Little, 1 Ware, 506; United States v. Alden, 1 Sprague, 95; Cushman v. Ryan, 1 Story, 91; Turner's Case, 1 Ware, 83; Wilson v. The Mary, Gilp. 31; Michaelson v. Dennison, 3 Day, 294; Brown v. Howard, 14 Johns. 119; Sampson v. Smith, 15 Mass. 365; Henning v. Ball, 1 Bay, 3; Mathews v. Torrey, 10 Conn. 455; Allen v. Hallet, 1 Abb. Adm. 573; Payne v. Allen, 2 Sprague, 304; Schelter v. York, Crabbe, 499; Jay v. Almy, 1 Woodb. & M. 262; Butler v. McLellan, 1 Ware, 219; Padmore v. Pietz, 44 Fed. Rep. 104; Buddington v. Smith, 13 Conn. 334.

Many of the foregoing cases contain extremes in the conduct of masters and the opinions of courts which would hardly be sanctioned in this time by a changed sentiment.

Upon the theory of "homicide by necessity " see Arp v. State (Ala.), 12 So. Rep. 301, where the authorities are collated and reviewed.

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

(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.

Damage incidentally resulting from an act not unlawful. Upon this subject it is said by the court in Losee v. Buchanan (51 N. Y. 484; 10 Am. Rep. 623): "By becoming a member of civilized society, I am compelled to give up many of my natural rights, but I receive more than a compensation from the surrender of every other man of the same right, and the security, advantage and protection which the laws give me. So, too, the general rules that I may have the exclusive and undisturbed use and possession of my real estate, and that I must so use my real estate as not to injure my neighbor, are much modified by the exigencies of the social state."

For injuries from lawful acts done in a lawful manner the law gives no redress. There must be a concurrence of wrong and damage. Accord

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.

(c) Cf. Galus (D. 50, 17, de div. reg. 55): “Nullus videtur dolo facere, qui suoiure atitur."

ingly it is said in Phelps v. Nowlen (72 N. Y. 46): "The maxim sic utere tuo est alienum non laedas applies only to cases where the act complained of violates some right, and an act legal in itself violating no right cannot be made actionable upon the ground of the motive which induced it." See National Copper Co. v. The Minnesota Mining Co., 57 Mich. 83; Lord v. Carbon Iron Mfg. Co., 42 N. J. Eq. 147; Lachat v. Lutz (Ky.), 22 S. W. Rep. 218; Victory v. Baker, 67 N. Y. 366; Chatfield v. Wilson, 28 Vt. 49; Kiff v. Youmans, 86 N. Y. 325; Burroughs v. Housatonic R. Co., 15 Id. 124; Paxton v. Boyer, 67 Ill. 132; 16 Am. Rep. 615; Flint etc. R. Co. v. Detroit etc. R. Co., 64 Mich. 350; 31 N. W. Rep. 281; Larmore v. Crown Point Iron Co., 101 N. Y. 391; 4 N. E. Rep. 752; Bizzell v. Brooker, 16 Ark. 308; Heywood v. Tillson, 75 Me. 225; De Bawn v. Bean, 29 Hun, 236; Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126; Bullard v. Saratoga Victory Mfg. Co., 77 N. Y. 525; Williams v. Pomeroy Coal Co., 37 Ohio St. 583; Grand Rapids Street Ry. Case, 48 Mich. 433; Watson v. City of Kingston, 114 N. Y. 88; 21 N. E. Rep. 102; Griffin v. Ohio & M. Ry. Co., 124 Ind. 326; 24 N. E. Rep. 888.

A builder in a large city is responsible for greater care in construction than would be required in the same work in the country. Gagg v. Vetter, 41 Ind. 228; Hoyt v. Jeffers, 30 Mich. 381.

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

Damage from execution of authorized works. The fifth amendment to the constitution of the United States forbids that "private property be taken for public use without just compensation." In the constitutions of probably all the States similar provisions are incorporated. In construing these provisions the courts have generally held, that damages not direct but merely incidental to the establishment of public works under the power of eminent domain constituted damnum absque injuria. To remove this hardship upon the property owners many of the states have provided in their several constitutions that private property shall not be "taken, damaged or destroyed" without compensation. See Constitutions of Ala., Ariz., Cal., Colo., Ga., Ill., La., Me., Mass., Mich., Minn., Mo., Neb., Nev., N. Y., N. J., R. S., Tex., Va., Vt., W. Va.

Under these provisions, a property owner may recover for the diminution in value of his property caused by the noise, smoke and vibration incident to the operation of a railroad. Gainesville etc. R. Co. v. Hall, 78 Tex. 169; 14 S. W. Rep. 259; Moses v. Manhattan R. Co., 58 Hun, 611; 13 N. Y. S. Rep. 46; Omaha etc. R. Co. v. Janecek, 30 Neb. 276; 46 N. W. Rep. 478; Fox v. Baltimore R. Co., 34 W. Va. 466; 12 S. E. Rep. 757.