Art. 6. Exercise of Common Law and Statutory Rights. may follow. Nor will a man be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care or skill on his part." Radcliff's Executors v. The Mayor, etc., of Brooklyn, 4 N. Y. 195 (200). This rule is illustrated in Partridge v. Gilbert, 15 N. Y. 601 (612); Brooks v. Curtis, 50 N. Y. 639; Clark v. Foot, 8 Johns. 421; Farrand v. Marshall, 21 Barb. 409; Austin v. Hudson River R. R. Co., 25 N. Y. 346; Stewart v. Hawley, 22 Barb. 619; Ellis v. Duncan, 21 Barb. 230; Bliss v. Greeley, 45 N. Y: 671; Ryckman v. Gillis, 6 Lans. 79; Sullivan v. Dunham, 161 N. Y. 290; Uppington v. City of New York, 165 N. Y. 222. It is undoubtedly true that there are cases in which the legislature, in the public interest, may authorize and legalize the doing of acts resulting in consequential injury to private property, without providing compensation, and as to which the legislative sanction may be pleaded in bar of any claim for indemnity. Indeed such is the transcendent power of Parliament that it is the settled doctrine of the English law that no court can treat that as a public or private wrong which Parliament has authorized, and consequently, as stated by Blackburn, J., in Hammersmith, etc., Ry. Co. v. Brand, 4 H. of L. Cas. (Eng. & Ir. App.) 171, "The person who has sustained a loss by the doing of that act is without remedy, unless in so far as the legislature has thought it proper to provide for compensation." The legislative power in this country is subject to restrictions, but nevertheless private property is frequently subjected to injuries incurred from the execution of public powers conferred by statute, for which there is no redress. The case of consequential injuries resulting from street improvements authorized by the legislature is a familiar example. Cogswell v. N. Y., N. Y. & H. R. R. Co., 103 N. Y. 10 (18). While the legislature may authorize acts which would otherwise be a nuisance, when they affect or relate to matters in which the public have an interest or over which they have control, the statutory authority which affords immunity for such acts must be express, or a clear and unquestionable implication from powers expressly conferred, and it must appear that the legislature contemplated the doing of the very act which occasioned the injury. Even in such case, while the legislative authorization exempts from liability to suits, civil or criminal, at the instance of the State, Art. 6. Exercise of Common Law and Statutory Rights. it does not affect the claim of a private citizen for damages for any special inconvenience or discomfort not experienced by the public at large." Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18. While legal liability in damages cannot result from acts of a municipal corporation, done in the performance of a public duty by express legislative authority, which, as between individuals, would be regarded as a nuisance, and which would result in injury to another, the authority must be express, or a clear and unquestionable implication from powers conferred, and must be certain and unambiguous, showing that the legislature must have intended and contemplated the very act in question. Morton v. Mayor, Aldermen and Commonalty of the City of New York, 140 N. Y. 207. These cases are cited with approval in Fries v. N. Y. & H. R. R. Co., 169 N. Y. 270, opinion O'Brien, J., 277. The legal effect of compliance with a legislative act by a municipal corporation resulting in injury to property is considered in Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 202; Fries v. N. Y. & H. R. R. Co., 169 N. Y. 270; Muhlker v. N. Y. & H. R. R. Co., 173 N. Y. 549, the latter case discussing and distinguishing the two previous decisions, holding the rule to be that, where an act is performed in accordance with the direct and express mandate of the statute and there is no encroachment upon or actual interference with property, and an improvement is made for the benefit of the public in a proper manner, no recovery can be had against a municipal corporation in absence of negligence or want of skill. It was held to be one of the cases where the individual must be subjected to remote or consequential damage or loss following the rule laid down in Fries Case, 169 N. Y. 270, recognizing as correct, however, the rule laid down in the Reinning Case, 128 N. Y. 157, that a municipality cannot raise the grade of a street for the exclusive use of a railroad without compensating the abutter for the injury inflicted, distinguishing it from the case then at bar upon the ground that in the latter case the change was made for the public benefit as well as for that of the railroad. See Dolan v. N. Y. & H. R. R. Co., 175 N. Y. 367. In an action to recover damages for injuries to the vault of a building, constructed under a sidewalk, alleged to have been caused by the negligence of defendant in blasting while engaged Art. 7. Consent as Affecting Right of Action. in excavating a trench in the street in front of the building under a municipal contract providing that the blasting should be conducted in conformity with the city ordinances, where there is no evidence showing or tending to show negligence in the performance of the work, and for aught that appears the injuries may have been a natural result thereof, influenced possibly in addition by some weakness in the construction of the building, a nonsuit is properly granted. Holland House Co. v. Baird, 169 N. Y. 136. See also Bates v. Holbrook, 171 N. Y. 460. ARTICLE VII. CONSENT AS AFFECTING RIGHT OF ACTION. A sufferer is not entitled to bring action where there is lief and license. No action is maintainable for damage for acts suffered by consent, if such acts were not likely or intended to cause bodily harm. Fraser, 23. As illustrating the rule that a person consenting to injury which he may suffer has no legal redress, Pollock says, at p. 130: "There are incidents in every football match which an uninstructed observer might easily take for a confused fight of savages, and grave hurt sometimes ensues to one or more of the players. Yet, so long as the play is fairly conducted according to the rules agreed upon, there is no wrong and no cause of action. For the players have joined in the game of their own free will and accepted its risks." The man who consents to an act is barred of an action for it. There is a limit to the validity of consent, and it is said that no very satisfactory ground has been reached upon that subject. It is illustrated by the refusal on the part of most authorities to hold an agreement between the shipper and common carrier, to exempt the carrier from liability for negligence of his servant as valid on the ground that the shipper is in the power of the carrier, and it is also held where both parties agree to a fight, one may sue the other for assault and battery notwithstanding the consent. Bigelow on Torts, §§ 18, 19, citing Shaw v. Thompson, 59 Wis. 540; Adams v. Waggoner, 33 Ind. 531. Harm suffered by consent is not in general the basis of a civil action. This is the meaning of the maxim, "volenti non fit injuria." Hale on Torts, 116; Broom Maxims, 267; Bishop on NonContract Law, § 49. Art. 7. Consent as Affecting Right of Action. One inflicting an injury while engaged in a game or sport is liable for such injury if it was intentional; but if the injury was inflicted in good faith and within the rules of the game, it is not actionable. Black's Law and Practice in Accident Cases, § 38. But a voluntary consent, or consent to a wrong induced by fraud, duress, and conspiracy is no answer to the action upon the wrong by the party consenting against the party procuring the consent. Johnson v. Girdwood, 7 Misc. Rep. 651. In Commonwealth v. Collberg, 119 Mass. 353, 20 Am. Rep. 328, it is said: "The common law recognizes as not necessarily unlawful certain manly sports calculated to give bodily strength, skill, and activity, and to fit people for defense, public as well as personal, in time of need. Playing at cudgels or foils, or wrestling by. consent, there being no motive to do bodily harm on either side, are said to be exercises of this description. But prize-fighting, boxing matches, and encounters of that kind serve no useful purpose, tend to breaches of the peace, and are unlawful, even when entered into by agreement and without anger or mutual ill-will. If one party licenses another to beat him, such license is void, because it is against the law." * * * 473; The following authorities hold the same rule: Smith v. Simon, 69 Mich. 481, 47 N. E. 548; Evans v. Waite, 83 Wis. 286, 53 N. W. 445; Shay v. Thompson, 59 Wis. 540, 18 N. W. Grotton v. Glidden, 84 Me. 589, 24 Atl. 1008; Dole v. Erskine, 35 N. H. 503; Jones v. Gale, 22 Mo. App. 637. See, however, Galbraith v. Fleming, 60 Mich. 403, 27 N. W. 581; State v. Olympic Club, 46 La. Ann. 935, 15 So. 190. In Searing v. Village of Saratoga Springs, 39 Hun, 307, it was held that plaintiff could not recover for injury by discharge of sewerage upon her land, as she had consented to the laying of the pipe. Affirmed, without opinion, in 110 N. Y. 643. A husband cannot rely upon that as a seduction of his wife, to which he has either expressly or impliedly consented. Wyndham v. Wycombe, 4 Esp. 16. A person seduced cannot maintain an action for such seduction because she consented thereto. An action may be maintained by the parent. Hamilton v. Lomax, 26 Barb. 615. See "Assault and Battery," subdivision "Consent." CHAPTER VI. REMEDIES FOR WRONGS. PAGE. ARTICLE I. Civil and criminal remedies not merged... 200 II. Civil remedies for wrongs 201 III. Jurisdiction 208 .... IV. Waiver of tort and effect of election of rem VII. Enforcement of remedies in actions for torts. 239 VIII. Effect of discharge in bankruptcy.. ARTICLE I. CIVIL AND CRIMINAL REMEDIES NOT MERGED. 248 All the definitions of a tort refer to the civil remedy for a wrong and have no reference to its punishment as a crime. The distinction is fully recognized between criminal actions, as such, prosecuted by the people of the State against a person charged with a public offense, for the punishment thereof in section 3336, Code Civ. Proc., and a civil action for a wrong brought on behalf of the individual injured, as defined by section 3337. This is true, although the same state of facts may constitute a crime for which the offender may be prosecuted at the suit of the public or the State, and a tort for which the injured party may maintain a civil action for damages. 26 Encyc. of Law, "Torts" (1st ed.), 73, citing 4 Bl. Comm. 5; Cooley on Torts (2d ed.), 84. That the criminal suit is not a bar to the civil, and that no court will drive the prosecutor to elect between them, if the former be by indictment, is entirely settled. Jones v. Clay, 1 Bos. & P. 191; Jacks v. Bell, 3 Car. & P. 316. He may proceed by both at the same time; nor will the courts even stay proceedings in the civil action to govern themselves by the event of a pending criminal prosecution. Caddy v. Barlow, 1 Man. & R. 275; Cook v. Ellis, 6 Hill, 466 (467). The provision of section 1899 of the Code that "where the violation of a right admits of a civil and also of a criminal prose |