the third, and that unless they were so delivered they would be thrown on their (the plaintiffs') hands; but he was not informed that there was any thing exceptional in the character of the con-tract. The shoes were not delivered in London till the fourth, and were consequently not accepted by the consignees; and the plaintiffs were obliged to sell them at two shillings and ninepence a pair, which, in consequence of the cessation of the French war, was, apart from the previously mentioned contract, the best price that could have been obtained for them, even if they had been delivered on the evening of the third instead of the morning of the fourth of February.

In an action against the defendants for the delay in delivering the shoes, they paid into court a sufficient sum to cover any ordinary loss occasioned thereby, but the plaintiffs further claimed the sum of two hundred and sixty-seven pounds three shillings and ninepence, the difference between the price at which they had contracted to sell the shoes and the price for which they were ultimately sold, it was

Held, by Kelly, C. B., Blackburn, J., Mellor, J., Martin, B., and Cleasby, B. (Lush, J., and Pigott, B., dissenting), that the plaintiffs were not entitled to recover the latter sum, the damage not being such as might reasonably be considered as arising naturally from the defendants' breach of contract, or such as might reasonably be supposed to have been in the contemplation of both parties at the time when they made the contract.

Held, by Kelly, C. B., Blackburn, J., Mellor, J., and Cleasby, B., that the notice given to the defendants was not such that they could reasonably be supposed to have had in their contemplation (at the time of entering into the contract for the carriage of the shoes) damages of such an exceptional nature as those claimed.

Held, by Martin, B., and, it appears, by Blackburn, J., and Lush, J., that a mere notice, as such, could not have the effect of rendering the defendants liable to more than ordinary damages; but that in order to do so it must be given under such circumstances as to make it a term of the contract that the defendants shall be liable for such damages if the contract be broken.

Held, by Lush, J., and Pigott, B., that the notice given to the defendants was sufficient to put them upon inquiry as to the nature of the contract which the plaintiffs were under, and if they chose to accept the goods for carriage without further inquiry,

they took the risk of what the contract might turn out to be, and were liable to the plaintiffs for the loss actually occasioned.

In a case like this the form of the action is immaterial; it is immaterial whether the action be in contract for not delivering or in tort for neglecting to carry, the measure of damage is in each case the same. The defendant is liable for the ordinary market loss upon the goods; but is he liable for an extraordinary loss? But the ordinary and the extraordinary loss were brought about by the same act of the defendants; they happened in the same instant of time and at the same point of space. One loss was as inevitable as the other. Neither the plaintiff nor the defendants, nor any person for whom either of them was legally responsible, brought the French war to a close. How, then, can language be intelligible which calls one a certain damage, a proximate and natural result of the act complained of, and the other a remote and a consequential result of that act? It would be intelligible to say that when the defendants received the goods they saw before them shoes worth in the market two shillings and ninepence a pair, and were willing to carry them at a certain rate, and take the risk of a safe delivery. But if some further fact existed, unseen by them, which made the shoes worth four shillings a pair, they should have been notified of the fact, so that they might refuse to carry at such a risk (if they had a legal right so to refuse), or, at any rate, that they might charge in proportion to that risk, and take precautions in proportion to the value of the property. They are liable for any loss which it might fairly be held they could have anticipated when they entered into the contract. So the blacksmith, when he undertook to shoe the horse, might reasonably understand that he must pay for the damage which he might cause to the horse. If he had been given to understand that the rider was to marry an heiress of a mind too impatient to postpone the wedding, whether the proper bridegroom was there or not, and that in case of a slip he was to be held responsible for her loss and that of her fortune, he most probably would have refused to shoe the horse at any price. But if he had lamed the horse for the purpose of preventing the wedding, he might then have been held liable to all the resulting loss, because that was a loss which he not only might reasonably anticipate, but which he actually had anticipated, would follow from his act. But the loss of the heiress and her fortune follows

from the act of the blacksmith in pricking the horse in the same manner and degree in the one case as in the other. The only difference between the two cases is the state of the man's mind; and unless that state of mind can be called proximate in the one case, and remote in the other, then the words "proximate" and "remote" are not predicable of such a state of facts.

Our author, in treating of the extent to which one wrong can be set off against another, says, it is difficult to formulate a precise rule concerning the effect which a contributory fault has upon the action of the party injured. The judge must weigh the circumstances, and decide whether the respective wrongs are of such a nature as to deprive the one party of all recourse against the other. Thus, it has been held that two manufacturers who have mutually disparaged each other's goods cannot maintain actions the one against the other.

Lord Kenyon held the same doctrine in the law of libel. But in the case of Finnerty v. Tipper,1 Lord Mansfield refused to follow that precedent. The case before Lord Mansfield was an action for a libel published in the Satirist, or Monthly Meteor, which stated that the plaintiff, being prosecuted by the AttorneyGeneral, had fled the country to save himself from the pillory. To show malice, another issue of the paper was put in evidence, containing the following retraction: "We certainly did state in our last number that we understood Peter Finnerty had quitted the country, and we had good grounds for believing that he had; but it now appears that he merely spread a report of his absence, and remained concealed in London." It was offered in proof, as a bar to the action, that the plaintiff had proposed as a question for discussion in a public debating society, of which he was manager, "Whether the editor of the Satirist or a notorious pickpocket was the greater nuisance to society;" that he had caused boards with the question printed upon them in large characters to be carried through the streets; and that when the question came on he took an active part in the debate, giving the decided preference to the pickpocket. Lord Mansfield allowed this to be shown in mitigation of damages, but refused to follow Lord Kenyon in admitting it as a defence in bar. He said he thought Lord Kenyon was correct in point of justice, but incorrect in point of form.

1 2 Camp. 72.

The question whether one party to a duel can maintain an action against another is discussed. The author says:

"On the contrary, one who in a duel has wounded or killed his adversary should be held liable to his adversary or to his family, even though a criminal proceeding should be decided in his favor. A duel is always an illicit act. It is a wrong to the laws of religion, of morality, and of society, and furnishes ground for an action.

"Suppose the person killed had been insulted; that his adversary had refused him all other satisfaction; that he had knowingly sought advantage in his skill in the handling of weapons. All will admit that he has under these circumstances been guilty of a crime, notwithstanding the distance which the prejudices of society and the chances of combat place between such a duel and an ordinary assassination. But even where it is the party who was insulted who is the victor; where there has been an equality of strength and address; in short, under the most favorable circumstances, a duel is none the less culpable. It is a shock to public order, - to the principle that in a well-regulated society no one should take the law into his own hands.

"It is no defence against the party wounded, or against the representatives of him who has been killed, that he accepted the event of the combat. The agreement to fight is radically void, as contrary to good order and good morals. In vain can the victor set up that he acted in self-defence. He exposed himself voluntarily to danger. His defence was unnecessary.

"From the point of view of a joint fault there is nothing to defeat the action. That there was a double fault in the agreement to fight is incontestable, but the damage is wholly upon one side. The act which caused it-its immediate and direct cause is the single act of one of the parties. The circumstances of the duel, particularly the provocation, if it came from the injured party, can only be shown in mitigation of damages."

Authority is not wanting to show that by the English law one can maintain an action of assault and battery, although he agreed to fight with his adversary; and that the unlawful agreement, although it is not a bar to the action, can be shown in mitigation of damages;1 and that each may maintain an action against the other; that cross actions may be brought for the damages each has received.2

The author endeavors to trace out the line which divides those

1 Adams v. Wagoner, 33 Ind. 531; Stout v. Wren, 1 Hawks. (N. C.) 420; Bell v. Hansley, 8 Jones (N. C.), 131; Boulter v. Clark, Buller, N. P. 211.

2 Dole v. Erskine, 35 N. H. 503.

acts which, being intentionally done, are actionable, from those ⚫ which, although they are intentionally done, are not actionable.

"It may be said, without doubt, in a general way that, under a system of legislation where the natural rights of man in society are recognized and sanctioned, all which is not forbidden by law is permitted. That our liberty so far as our actions are concerned has no other bounds than those which insure to the other members of society the enjoyment of their natural and acquired rights, and that these bounds are marked out by provisions of law which are penal, and prohibitory of all acts harmful either to society or to the individual members who compose it.

"This is very true as far as criminal law is concerned, but is not true when looked at from the side of civil liability. It is true that when the law is silent no punishment can be awarded, and that in this respect courts have not an arbitrary discretion. But if the law has been able to foresee all disturbances to social order which deserve repression, it has not been able to foresee in the same manner all acts which are injurious to individuals, and to provide beforehand for the damage which may result from them. There are acts, then, which are not forbidden, and which are yet illicit. A conscience enlightened by the divine rule, 'all things whatsoever ye would that men should do to you, do ye even so to them,' can discern and recognize those things which should be actionable. The formula by which the problem of civil responsibility is resolved, is not that all which is not forbidden by law is permitted,' but that every thing whatever which causes damage to another obliges him by whose agency it has happened to make reparation, provided the damage done does not result from the exercise of a right recognized by law, and even then if it results from an unnecessary mode of exercising the right, or from a mode which could have been avoided "1 [but which has been chosen with an intention to do harm].

"But the thing which causes damage to another may be a negative fact of omission, as well as a positive act of commission. Is he who lets a harmful act take place, being able to prevent it, to be considered as one who, having had a part in it, is responsible for it? From a philosophical and moral point of view, one must admit that simply to refrain is often reprehensible. In his treatise upon duties (which is deeply stamped with the philosophy of the Stoics), Cicero places in the same category him who does a wrong, and him who, being able, does not hinder it. There

1 Nous croyons que tout fait quelconque de l'homme qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer, quand il n'a pas sa source dans l'exercice d'un droit reconnu par la loi, ou quand il résulte d'un mode particulier d'exercer son droit qui n'a pas d'utilité pour son auteur, ou qui aurait pu être évité.