Page:Harvard Law Review Volume 8.djvu/223

TRIPARTITE DIVISION OF TORTS. 20/ quence of the words spoken " ; and afterwards in Lynch v. Knight} this phrasing was doubted by Lord Wensleydale, who preferred to say that " the consequence must be such as . . . might fairly and reasonably have been anticipated and feared would follow from the speaking the words." Here we have the same sort of question that arises so commonly for injuries to the person and the property. The Responsibility element, then, in these and in other classes of injuries, has a real place, — greater or less, to be sure, in different instances, but scientifically never to be ignored. Responsibility must be discussed as a generic idea, and with reference to the vari- ous harms, and must be thus discussed just as well jis the nature and limits of the harm itself. III. The Excuse or Justification Element. — Assuming that the various sorts of harm have been specified, and that the conditions and tests of Responsibility for them have been determined, the general limitations under which the nexus exists still call for treat- ment. Perhaps the simplest illustration, if any is needed, is the excuse of Self-defence. Here it is conceded that a harm has been done, otherwise the subject of recovery, and that a definite person is responsible for it; nevertheless no legal claim exists, because social experience prescribes limits to the nexus, and one of those limits is found in the circumstances briefly expressed in the term " self-defence." Here, again, it is impossible now to attempt an analysis of the various kinds of limitations. Only two or three suggestions can be made. I. As a rule certain principles of pleading are based on the dis- tinction between this element and the first and second, throwing on the defendant the business of making out the existence and the application of these limitations. For instance, justifications for a battery and privileges for defamation are left to the defendant to urge. Sometimes, however, the principles of pleading cannot be relied upon to show in this way the line of distinction. P"or in- stance, in actions for malicious prosecution, these tertiary limita- tions vindicate or exempt the defendant, if he brought the suit upon reasonable or probable ground and without malice; never- theless, it is the plaintiff who is required to show that this reason- 1 9 H. L. C. 577. So also Allsop v. Allsop, 5 H. & N. 534, " damages . . . that do not fairly and naturally result " ; Davits . Solomon, L. R. 9 Q. B. 112, "reasonably and naturally be expected to follow."