88 HARVARD LAW REVIEW. It is in connection with this principle that notice becomes im- portant. A combination of circumstances which otherwise is most unlikely may be made probable by knowledge of the existence of unusual factors ; and one to whom the existence of such fac- tors was known might therefore be bound to guard against an injury for which otherwise he could not be held responsible. In the law of damages this principle is embodied in the so-called "rule in Hadley v. Baxendale." ^ A striking case, in which notice was essential, is Com. v. Wing.^ Defendant was shooting wild fowl in a proper place, when he received notice that a girl in a neighboring house was in so peculiar a state of mind that she would be thrown into convulsions at the sound of a gun. Notwithstanding the notice he continued to shoot, and the girl was thrown into convulsions. Defendant was held guilty of a crime. Without notice, the only combination which defendant could foresee was that of the sound of his gun with a human being, — a harmless and legal combination, which he need not guard against. After the notice, he could fore- see the combination of the sound of his gun with a diseased mind, and he should have guarded against it. The remote and the improbable, it must be admitted, are often difficult to distinguish; indeed, what is remote is often also improb- able. From this has resulted a confusion of the principles exclud- ing the one and the other. The courts have seldom sufficiently discriminated between them ; as, indeed, for the purpose of deciding an individual case it is not usually necessary to do. But the rules are clearly distinct in origin, in reason, and in application, and much confusion in the cases would be avoided by distinguishing them in theory, if not in practice. It does not fall within my purpose to discuss the time at which the mental state of the defendant must exist. A settlement of the problem will probably furnish a rule in cases of contributory negli- gence. It seems likely that in the case of torts the defendant's 47, Smith Cas. Torts, 91. But see Holmes, J., in Hayes v. Hyde Park, 153 Mass. 514. Of course the defendant would be responsible, as explained above, irrespective of negligence, if he intended the act of injury to result from the force he set in motion. 1 9 Ex. 341, 23 L. J. Ex. 179. The court held in that case that the damages recov- erable for breach of contract " should be such as may fairly and reasonably be considered either arising naturally, /. <r., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the con- templation of both parties at the time they made the contract, as the probable result of the breach of it." 2 9 Pick. I, Beale Cas. Crim. L. 119.
