rule. kingdom against the king's enemies (c). The civil-law writers indeed say, that those who suffer have a right to resort to the public for a satisfaction, but no one ever thought that the common law gave an action against the individual who pulled down the house or raised the bulwark (d), and the reason is, that a man may justify committing the private injury for the public good (e), as, for instance, the pulling down of a house, if necessary, in order to arrest the progress of a fire (ƒ). Limitation of It would, however, be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or not to take any extraordinary step for promoting it; and, therefore, wherever it is necessary to interfere with private property for some specific object of public utility, the Legislature alone can, and frequently does, interpose, and compel the individual to acquiesce, as in the instances of turnpike, navigation, canal, railway, and paving acts: but in these and similar cases, all that the Legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power which is indulged with caution, and which nothing but the Legislature can perform (g), the true principle applicable to all such cases being, that the private interest of the individual is never to be sacrificed to a greater extent than is necessary to secure a public object of adequate importance (h); nor will the courts so construe an act of Parliament as to deprive persons of their estates and to transfer them to other parties (c) Per Buller, J., Plate Glass (d) Per Buller, J., 4 T. R. 797. (f) Ib.; Dyer, 36 b. (g) 1 Bla. Com. 139. See judgment, Simpson v. Lord Howden, 1 Keen, 598, 599; Lister v. Lobley, 7 A. & E. 124. (h) 1 Steph. Com. 154. without compensation, and in the absence of any manifest or obvious reason of policy for so doing, unless they are so fettered by the express words of the statute as to be unable to extricate themselves, for they will not suppose that the Legislature had such an intention (i). And, as was observed in a very recent case, where large powers are entrusted to a company to carry their works through a great extent of country without the consent of the owners and occupiers of land through which they are to pass, it is reasonable and just, that any injury to property which can be shewn to arise from the prosecution of those works should be fairly compensated to the party sustaining it (k). In accordance with the general principle under consider- Example. ation, it was held, that, where the acts of commissioners appointed by a paving act occasioned damage to an individual, without any excess of jurisdiction on their part, neither the commissioners nor paviors acting under them were liable to an action, the act of Parliament under which the commissioners acted not giving them power to award satisfaction to the individuals who happened to suffer; and it was observed, that some individuals suffer an inconvenience under all such acts of Parliament, but the interests of individuals must give way to the accommodation of the public (1)—privatum incommodum publico bono pensatur (m). indictment. Having stated that in some cases an action is not main- Remedy by tainable at suit of an individual for an injury caused by (i) See per Lord Abinger, C. B., Stracey v. Nelson, 12 M. & W. 540, 541; Anon., Lofft, 442; R. v. Croke, Cowp. 29; Clarence Railway Company v. Great North of England Railway Company, 4 Q. B. 46. (k) Judgment, Reg. v. The Eastern Counties Railway Company, 2 Q. B. 359; Blakemore v. Glamor- (1) Plate Glass Company v. Me- operations conducive to the public good, it is necessary to observe another important rule, that the law gives no private remedy for anything but a private wrong; and, therefore, no action lies for a public or common nuisance, but an indictment only, because, the damage being common to all the subjects of the Crown, no one individual can ascertain his particular proportion of it, or, if he could, it would be extremely hard if every subject in the kingdom were allowed to harass the offender with separate actions. Where, however, a private person suffers some direct and particular damage by a public nuisance, in this case he shall have a private satisfaction by action (n). Thus, where the Crown, by letters-patent, granted to a corporation the borough or town of L., together with the pier or quay belonging thereto, and it appeared from the whole instrument that the things granted were in fact the consideration for repairing certain buildings and erections, the court held, that the corporation, by accepting the letterspatent, bound themselves to do the repairs, and that, this obligation being one which concerned the public, an indictment would lie, in case of non-repair, against the mayor and burgesses for their general default, and an action on the case for a direct and particular damage sustained in consequence by an individual (o). So, in the ordinary case of nuisance in a highway, caused by a stranger digging a trench ex transverso viæ, or by any similar obstruction (p), or arising from the act or default of a person bound to repair ratione tenuræ, an indictment may be sustained for (n) 3 Bla. Com. 219, 220; 4 Bla. Com. 167; Co. Litt. 56. a.; 1 Chit. Gen. Pr. Law, 10. (0) The Mayor, &c. of Lyme Regis v. Henley (in error), 3 B. & Ad. 77. See Rex v. Ward, 4 A. & E. 384, overruling Rex v. Russell, 6 B. & C. 566; 1 Chit. Gen. Pr. Law, 11. (p) See Hart v. Basset, T. Jones, 156; Chichester V. Lethbridge, the general injury to the public, and an action on the case for a special and particular injury to an individual (q); though, where the county or parish is bound to repair the highway, no action will lie for non-repair at the suit of an individual (r). And, with respect to the liability at common law to the repair of bridges ratione tenure, the result of the authorities seems to be to throw the charge ultimately upon the owner, though, primarily, as far as the public are concerned, the occupier may be the person chargeable by indictment in case of non-repair (s). From the principle under consideration, and from the Criminal law. very nature of the social compact on which all municipal law is founded, and in consequence of which every man when he enters into society gives up a part of his natural liberty (t), result those laws which, in certain cases, authorise the destruction of life, the privation of liberty, or the infliction of penalties, with a view to the future prevention of crime, and to promoting the safety and well-being of the public; but, in these cases, no privation or restraint ought in any case to be inflicted on the individual, unless it be indispensable to the protection of some public interest of adequate importance, and all laws savour of injustice and oppression which authorise the destruction of life in order to secure a public object of comparatively trivial character, or even an object of the highest consequence to the public, but capable of being sufficiently secured by some more lenient method (u). Willes, 73; Rose v. Miles, 4 M. & (q) 3 B. & Ad. 93, citing Year (r) Russell v. Men of Devon, 2 T. R. 667, 671. (s) Judgment, Baker v. Greenhill, 3 Q. B. 162. (t) 2 Steph. Com. 486. (u) See 1 Steph. Com. 133, 134; Russ. on Crimes, 3rd ed., 107. Necessity of self-preservation. NECESSITAS INDUCIT PRIVILEGIUM QUOAD JURA PRIVATA. (Bac. Max., reg. 5).—With reference to private rights, necessity privileges a person acting under its influence. As a general rule, the law charges no man with default where the act done is compulsory, and not voluntary, and where there is not a consent and election on his part; and, therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason as in presumption of law man's nature cannot overcome, such necessity carries a privilege in itself (x). Necessity, as contemplated in the above rule, may be considered under three different heads:-1. Necessity of self-preservation; 2. Of obedience; 3. Necessity resulting from the act of God or of a stranger (y). 1. Where two persons, being shipwrecked, have got on the same plank, but, finding it not able to save them both, one of them thrusts the other from it, and he is drowned; this homicide is excusable through unavoidable necessity, and upon the great universal principle of self-preservation, which prompts every man to save his own life in preference to that of another, where one of them must inevitably perish (z). So, where one man attacks another, and the latter, without fighting, flies, and, after retreating as far as he safely can, until no means remain to him of escaping his assailant, he then turns round and kills his assailant, this homicide is excusable, as being committed in self-defence; the distinction between this kind of homicide and manslaughter being, that here the slayer could not otherwise (x) Bac. Max., reg. 5, cited argument, 1 T. R. 32; Jenk. Cent. 280. (y) Bac. Max., reg. 5; Noy, Max., 9th ed., p. 32. (z) Bac. Max, reg. 5; 4 Bla. Com. 186; 1 Russ. on Crimes, 3rd ed., 664. |