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 (ƒ). 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 markethouse 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

(e) Blackstone J. in his dissenting judgment.

(ƒ) D. 9. 2, ad 1. Aquil 45, § 4; supra, pp. 123, 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.

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

(h) 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.

Harm suffered by a wrong-doer. The authorities in both England and America agree that humanity requires that the person of a trespasser be not exposed to bodily injury or death on the mere ground that he is at the time acting in violation of the law. In the case of Hooker v. Miller (37 Ia. 613), plaintiff, having no knowledge of a spring-gun set in defendant's vineyard, entered therein for the purpose of taking grapes without permission, and coming in contact with the gun received a severe wound. The defendant was held responsible for the injury; citing Loomis v. Terry, 17 Wend. 496; Shufey v. Bartley, 4 Sneed, 58. See Aldrich v. Wright, 53 N. H. 396; 16 Am. Rep. 339; Churchill v. Hulbert, 110 Mass. 42; 14 Am. Rep. 578.

The mere fact that a person is a tort-feasor does not prevent him from recovering for a subsequent wrong done him. Fletcher v. Cole, 26 Vt. 170. See Gray v. Ayres, 7 Dana, 375; Love v. Moynehan, 16 Ill. 277; Ogden v. Claycomb, 52 Ill. 365; Getzler v. Witzee, 82 Ill. 392. But see Jones v. Gale, 22 Mo. App. 637; Phillips v. Kelly, 29 Ala. 628.

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 wrongdoing, 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 it has been held that a plaintiff in such circumstances cannot 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 (1).

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" (m): 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.

(k) P. 35 above

(1) Sutton v. Town of Wauwalosa (Wisconsin, 1871), Bigelow L. C. 711, and notes thereto, pp. 721-2; Cooley on

Torts, 156. And see White v. Lang, 128
Mass. 598.

(m) Maule J., Fivaz v. Nicholls (1846), 2 C. B. 501, 512.

209

CHAPTER V.

OF REMEDIES FOR TORTS.

Diversity of remedies. At common law there were only two kinds of redress for an actionable wrong. One was in those cases exceptional cases according to modern law and practice where it was and is lawful for the aggrieved party, as the common phrase goes, to take the law into his own hands. The other way was an action for damages (a). Not that a suitor might not obtain in a proper case, other and more effectual redress than money compensation; but he could not have it from a court of common law. Specific orders and prohibitions in the form of injunctions or otherwise were (with few exceptions, if any) (b) in the hand of the Chancellor alone, and the principles according to which they were granted or withheld were counted among the mysteries of Equity. But no such distinctions exist under the system of the Judicature Acts, and every branch of the Court has power to administer every remedy. Therefore we have at this day, in considering one and the same jurisdiction, to bear in mind the manifold forms of legal redress which for our predecessors were separate and unconnected incidents in the procedure of different courts.

(a) Possession could not be recovered, of course, in an action of ejectment. But this was an action of trespass in form only. In substance it took the place of the old real actions, and it is sometimes called a real action. Detinue was not only not a substantial exception, but hardly even a formal one, for the action was not really in tort.

(b) I do not think any of the powers of the superior courts of common law to issue specific commands (e. g. man

damus) were applicable to the redress of purely private wrongs, though they might be available for a private person wronged by a breach of public duty. Under the Common Law Procedure Acts the superior courts of common law had limited powers of granting injunctions and administering equitable relief. These were found of little importance in practice, and there is now no reason for dwelling on them.