Moral predilections must not be allowed to influence our minds in settling legal distinctions. If we accept the test of the liability alone, how do we distinguish between trover and the mill acts? Or between conduct which is prohibited, and that which is merely taxed? The only distinction which I can see is in the difference of the collateral consequences attached to the two classes of conduct. In the one, the maxim in pari delicto potior est [149] conditio defendentis, and the invalidity of contracts contemplating it, show that the conduct is outside the protection of the law. In the other, it is otherwise. /1/ This opinion is confirmed by the fact, that almost the only cases in which the distinction between prohibition and taxation comes up concern the application of these maxims. But if this be true, liability to an action does not necessarily import wrong-doing. And this may be admitted without at all impairing the force of the argument in the foregoing Lecture, which only requires that people should not be made to pay for accidents which they could not have avoided. It is doubtful, however, whether the ruling of Chief Justice Rolle would now be followed. The squib case, Scott v. Shepherd, and the language of some text-books, are more or less opposed to it. /2/ If the latter view is law, then an act must in general not only be dangerous, but one which would be blameworthy on the part of the average man, in order to make the actor liable. But, aside from such exceptional cases as Gilbert v. Stone, the two tests agree, and the difference need not be considered in what follows. I therefore repeat, that experience is the test by which it is decided whether the degree of danger attending given conduct under certain known circumstances is sufficient to throw the risk upon the party pursuing it.