the mother's knowledge, the jury should have been instructed to return a verdict for defendant in an action brought to recover for injuries due to an explosion caused by the child. There could here be no dispute that the negligence of the mother had intervened.105 So, under the New York doctrine, a motion for a nonsuit was improperly refused where plaintiff's evidence, in an action to recover for the destruction of property by a fire negligently started on defendant's land, showed that lands of other owners intervened between plaintiff's land and the origin of the fire.106

105 Carter v. Towne, 103 Mass. 507.

106 Van Inwegen v. Port Jervis, M. & N. Y. R. Co., 165 N. Y. 625, 58 N. E. 878.

37. Collateral Defenses.

(1) Abatement by Death.

(2) Accord and Satisfaction.

(3) Release and Covenant Not to Sue.

(4) Statutes of Limitation.

IN GENERAL

35. There will be considered here certain defenses applicable in general to tort actions. For those of special application, reference must be made to the specific torts as treated elsewhere.

Broadly speaking, defenses to a claim of wrongdoing may be: (1) Inherent, in the sense that they are based upon the very facts upon which it is sought to predicate a tort, or on contemporaneous circumstances forming a part of the transaction; or (2) collateral, which depend upon facts arising entirely outside of and beyond the alleged tortious occurrence.

Other inherent defenses to be taken up later are defense of person and property, enforcement of discipline, assumption of risk, contributory negligence, and the privilege accorded to defamation under certain circumstances.

Necessity

There are occasions when private rights must give way to the common welfare. "It is a maxim of the common law that, where public convenience and necessity come in conflict with private right, the latter must yield to the former." 1 Necessarily such cases must be comparatively few in number, as the necessity which would justify an interference with private rights should be extreme; but the principle, though restricted in its application, is none the less settled. For example, we have the destruction of property to prevent the spread of fire, or disease, or to lessen the danger from a

1 Campbell v. Race, 7 Cush. (Mass.) 408, 412, 54 Am. Dec. 728, per Bigelow, J.

2 "The principle, as it is usually found stated in the books, is that, if a house in a street be on fire, the adjoining houses may be pulled down to save the city.' But this is obviously intended as an example of the principle, rather than as a precise definition of its limits. The principle applies as well to personal as to real estate; to goods as to houses; to life as to property-in solitude as in a crowded city; in a state of nature as in civil society. It is referred by moralists and by jurists to the same great principle, which justifies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed; with the throwing overboard of goods in a tempest for the safety of the vessel; with the taking of food to satisfy the instant demands of hunger; with trespassing upon the lands of another to escape death from an enemy. It rests upon the maxim, 'Necessitas inducit privilegium quoad jura privata." American Print Works v. Lawrence, 21 N. J. Law, 248, 257, per Green, C. J.

8 SUROCCO v. GEARY, 3 Cal. 69, 58 Am. Dec. 385, Chapin Cas. Torts, 52; Field v. City of Des Moines, 39 Iowa, 575, 28 Am. Rep. 46; Taylor v. Inhabitants of Plymouth, 8 Metc. (Mass.) 462; Mayor,

4 Meeker v. Van Rensselaer, 15 Wend. (N. Y.) 397 (destruction of filthy building calculated to spread disease, same having been done during prevalence of Asiatic cholera); Seavey v. Preble, 64 Me. 126 (removal of wall paper smeared with smallpox virus). And see abatement of nuisances, infra, p. 571.

6

5

7

hostile advancing army; a dangerous maniac may be restrained temporarily until he can be safely released, or can be arrested upon legal process, or committed to the asylum under legal authority; under certain conditions the private citizen is justified in arresting a criminal; one may destroy property to save human life, or may enter upon the premises of another for the same purpose, or to preserve property in peril from the elements,10 though not from peril due to the wrongdoing of the trespasser,11 or of a third party; 12 and, where a highway becomes obstructed and impassable from temporary causes, a traveler may go extra viam upon adjoining lands.18

Acts of State

9

Though the state as a distinct entity may perpetrate a wrong through its agents, nevertheless, as sovereign and not amenable to legal process, it cannot be sued, except with etc., of City of New York v. Lord, 17 Wend. (N. Y.) 285; Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980. In some states the statute provides for compensation. See Taylor v. Inhabitants of Plymouth, supra; Mayor, etc., of City of New York v. Lord, 18 Wend. (N. Y.) 126; "Compensation for Property Destroyed to Stop the Spread of a Conflagration," by Hall & Wigmore, 1 Ill. Law Rev. 501.

5 Harrison v. Wisdom, 7 Heisk. (Tenn.) 99 (destruction of intoxicating liquors in anticipation of the arrival of an enemy).

6 Keleher v. Putnam, 60 N. H. 30, 49 Am. Rep. 304; Fletcher v. Fletcher, 1 E. & E. 420, 5 Jur. N. S. 678, 28 L. J. Q. B. 134, 7 Wkly. Rep. 187, 102 E. C. L. 420. And see infra, p. 285.

7 See infra, p. 282 et seq.

8 Passengers, to save their lives, may cast cargo overboard without incurring liability to the owner. Mouse's Case, 12 Coke, 63. Ploof v. Putnam, 81 Vt. 471, 71 Atl. 188, 20 L. R. A. (N. S.) 152, 130 Am. St. Rep. 1072, 15 Ann. Cas. 1151.

10 PROCTOR v. ADAMS, 113 Mass. 376, 18 Am. Rep. 500, Chapin Cas. Torts, 54.

11 See Newkirk v. Sabler, 9 Barb. (N. Y.) 652.

12 Thus, in trespass, where defendant justified because the corn was set apart for tithes, and was in danger of destruction by catfle, and defendant took it to the barn of plaintiff, who was parson of the vill, it was held that the plea was not good; for, if the corn "had been destroyed, the plaintiff would have his remedy against the destroyer." Anonymous, Y. B. 21 Hen. VIII, 27, pl. 5. In accord, McCarroll v. Stafford, 24 Ark. 224.

13 Campbell v. Race, 7 Cush. (Mass.) 408, 54 Am. Dec. 728.

17

its own consent.14 As will be seen hereafter, this immunity does not in general extend to its officers 15 for acts committed against their fellow citizens or subjects,10 though it is otherwise where injury results to an alien. It is essential, however, in order that the alien may be debarred from recovery, that the act shall have been done by the direct command of, or have been subsequently ratified by, the sovereign. When either of these facts appear, the public officer is not liable. This principle has been applied where vessels belonging to subjects of Spain were seized in the late war, although they had been adjudged by a prize court not to be subject of capture, where the United States, though it might have ordered their release, failed to do so and sought a forfeiture;18 also where the American military governor of Cuba abolished plaintiff's hereditary right to a monopoly of the slaughter of cattle in the city of Havana.19The Police Power

Growing out of the doctrine of necessity is the right "which inheres in the state and in each political division thereof to

15 See infra, p. 138 et seq.

14 See infra, p. 196. 16 United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171; Mitchell v. Harmony, 13 How. 115, 14 L. Ed. 75.

17 "When the act of a public officer is authorized or has been adopted by the sovereign power, whatever the immunities of the sovereign, the agent thereafter cannot be pursued." United States v. The Paquete Habana, 189 U. S. 453, 465, 23 Sup. Ct. 593, 594, 47 L. Ed. 900, per Holmes, J.

18 United States v. The Paquete Habana, supra.

19 O'Reilly de Camara v. Brooke, 209 U. S. 45, 28 Sup. Ct. 439, 52 L. Ed. 676. Defendant, a naval commander stationed off the coast of Africa with instructions to suppress the slave trade, fired the barracoons of plaintiff, a Spaniard, and liberated the slaves. These proceedings were reported to the lords of the admiralty and the foreign and colonial secretaries of state, and were adopted and ratified by them. It was held that, the ratification being equivalent to a prior command, defendant was not liable, for his acts were acts of state. BURON v. DENMAN, 2 Exch. 167, Chapin Cas. Torts, 56. Seizure of the property of the deceased Rajah of Tanjore by the East India Company as an escheat, having been ratified by the English government, became an act of state. Secretary of State v. Kamachee Bore Sahaba, 7 Moore, Indian App. 476, 19 Eng. Repr. 388, 13 Moore, P. C. 22, 15 Eng. Repr. 9.