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 favorable to his own dissenting judgment. His theory was that

(8) Dickeson v. Watson, Sir T. Jones, 205, A. D. 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, A. D. 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.

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

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(z) 3 East, 593 (A. D. 1803).

(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).

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).

In

Holmes v. Mather. Lastly, we have two decisions well within our own time which are all but conclusive. 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. no negligence. Here the driver was certainly acting, for he was trying to turn the horses. And it was

38.

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

(b) Gibbons v. Pepper, 1 Lord Raym.

(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).

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 injury 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

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.

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

Immunity in exercise of common rights. Closely analogous to this subject in their application are the cases cited under Damage Incidentally Resulting from an Act not Unlawful, ante, p. 152.