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knowledge or his good faith; the oath-helper who swore in support of the
party's oath was responsible, without regard to his belief or his good faith;
one who merely attempted an evil was not liable because there was no evil
result to attribute to him ; a mere counsellor or instigator of a wrong was not
liable, because the evil was sufficiently avenged by taking the prime actor, and
where several co-operated equally, a lot (frequently) was cast to select which
one should be amenable; while the one who harbored or assisted the wrong-
doer, even unwittingly, was guilty, because he had associated himself with one
tainted by the evil result. Of these various forms of the primitive notion
which determined responsibility, we are here concerned with only a few, —
those that have a more or less intimate connection with later doctrines of the
English law of torts, and are therefore for us more worth tracing from early

Common Pleas, 1466, Y. B. 6 Edward IV, 7 pi. 18. : A man brought
a writ of trespass qnare vi et armis frcg'it, etc., et hcrbam suam pcdibus
concuhando consunipsit, and supposed the trespass in five acres; and the
defendant says, as to the coming, &c., and as to the trespass in the five


acres, actio non; for he says that he himself has an acre of land upon which
a thorn-hedge is growing, adjoining the said five acres, and the defendant, at
the time of the trespass alleged, came and cut the thorns, and they, ipso in-
vito, cecidere on the said acres of the plaintiff, and the defendant went quickly
upon the said acres, &c., and took them, which is the same trespass for which
he has conceived his action, &c. ; and upon this they demurred, &c., and it was
well argued and adjourned. And now Catcsby says : "Sir, it has been said
that if one does an act, though lawful, whereby wrong and damage is done to
another against his will, still if he in any way could have avoided it, &c., then
he shall be punished therefor, &c. Sir, it seems to me the other way; and as
I understand it, if one does a lawful act whereby damage comes to another
against his will, he shall not be punished at all, &c. As if I drive my cattle
along the highway, and you have an acre of ground adjoining, and my cattle
enter upon your ground and eat your grass, and I come freshly and drive
them out: in this case you shall have no action against me, because then it
was lawful to drive them out, and their entry upon the land was against my
will;^ and no more here, for the cutting was lawful, and the falling upon
your land was against my will, therefore the retaking was good and lawful,
&c. And, sir, I put a case, that I am cutting my trees, and the boughs fall
upon a man and kill him; in this case I shall not be attainted as of felony, for
my cutting was lawful, and the falling upon the man was against my will, and
no more here, &c. Fairfax. It seems to me just the other way, and I say that
there is a diversity between an act resulting in a felony and one .-esulting in
trespass, for in the case put by Catesby there was no felony, for felony is of
malice prepense, and when it was against his will it was not animo felonico,
&c., but if one is cutting trees, and the boughs fall on a man and wound him,
in this case he shall have an action of trespass, &c. ; and, also, sir, if one is
shooting at butts, and his bow shakes in his hands, and kills a man, ipso inv'to,
it is no felony, as has been said, &c., but if he wounds one by shooting, he
shall have a good action of trespass against him, and yet the shooting was
lawful, &c., and the wrong which the other received was against his will., &c.,
and so here, &c.

YoNGE. I think differently; and in such a case, where one has damnum
absque injuria, in this case he shall have no action, for he has no wrong, and
there is no reason for his recovering damages; and so it was here, when he
went upon the land to get the thorns which had fallen, this entry was not tor-
tious, for when he cut them, and they fell on the close, ipso invito, the prop-
erty in them was in him, and therefore it was lawful for him to take them
out of the close; therefore, notwithstanding the damage, no wrong was suf-
fered, &c.

PiGOT. To the same intent, and suppose I have a mill and the water which
comes to my mill runs through your land and you have withies or willows
growing by the water, and you cut your withies and they against your will fall
into the water and stop the water so that I do not have sufficient water for
my mill, in that case I shall have an action of trespass and yet the cutting was
lawful and the falling was against your will.'

Brian. It seems to me the other way, and to my intent, when one does an

^ But see Hartford v. Bradv, post.

'See Lawsan v. Price, 45 Md. 123 (1876).


act he is bound to act in such a way as not to prejudice others, &c. As if I am
building a house, and a piece of timber falls on my neighbor's house and
breaks his house, he shall have a good action &c. ; and yet the raising of the
house was lawful, and the timber fell, me invito, &c. And so if one assaults
me and I can not escape, and I in self-defense lift my stick to strike him, and
in lifting it hit a man who is behind me, in this case he shall have an action
against me, yet my act was lawful, and I hit him, me invito, &c. ; and so here,

Littleton, J. To the same intent, and if a man is damaged, he ought to
be recompensed ; and to my intent the case put by Catesby is not law, for if
your cattle come on my land and eat my grass, notwithstanding you come
freshly and drive them out, you ought to make amends for what your cattle
have done, be it more or less. But if cattle stray upon a man's land, the lord
can not distrain them for rent because when a lord distrains for rent, he is to
hold the distress till his rent is paid, and so he can not in the case aforesaid,
for if I will offer sufficient amends, I shall have my cattle again, &c. ; and in
a writ of rescous of cattle taken damage feasant, it is a good plea for one to
say that he tendered sufficient amends, &c. ; and, sir, if this should be law, that
he might enter and take the thorns, for the same reason, if he cut a large tree,
he might come with his wagons and horses to carry the tree off, which is not
reason, for perhaps he has corn or other crops growing, &c. ; and no more
here, for the law is all one in great things and small, &c., and so according to
the quantity of the trespass Jie should have amends.

Choke, C. J. To the same intent, for when the principle was not lawful,
that which depends upon it is not lawful ; for when he cut the thorns and they
fell on my land, this falling was not lawful, and therefore his coming to take
them out was not lawful. As to what was said about their falling ipso invito,
that is no plea, but he ought to show that he could not act in any other way,
or that he did all that was in his power to keep them out, &c., or else he shall
pay damages, &c. And, sir, if the thorns on a great tree had fallen on his land
by force of the wind, m this case he might have come in to get them, because
the falling was not his act, but by the force of the wind, &c. 21 Hen. VII,
fol. 28.='

(a) Trespass to the person.


King's Bench, 1682. T. Jones 205.

The plaintiff brou.G^ht error on a judg-ment in the court of the
sheriffs of the city of York, in trespass for an assault, battery, and
wounding^ of the plaintiff's eye, by dischare^ing^ of a c^un charo-ed
with powder and hail-shot, by which he lost the sight of his eye.
The defendant pleaded actio non, because he is, and at the time of

° See Netvsom v. Anderson, 2 Iredell 42 (N. Car. 1841"), and Lavibcrt &
Olliot v. Besscy, T. Raym. 421 (1681), where the language of the counsel and
court in the principal case is quoted at length.


the trespass was, an officer appointed for collecting the duty of
hearth-money ; and for the better discharge of his office, and more
sure custody and keeping of the money by him collected and to be
collected, he provided himself with fire-arms, and having one of his
pistols in his hands, and intending to discharge it nc aliquod
damnum eveniret, he discharged it (nemine in opposito visii exis-
tente), and while he discharged it, the plaintiff casualiter viam illam
•X' "• proeterivit, et si aliquod malum ei inde accideret hoc fuit contra
voluntatcm, of the defendant. QiicB est eadeni trans gressio. Upon
this the plaintiff demurred, and judgment was given for him ; where-
upon error was brought, and judgment was affirmed, nothing being
urged besides the sufficiency of the plea. But the court held it to
be insufficient ; for in trespass the defendant shall not be excused
without unavoidable necessity, which is not shown here. Besides,
the defendant did not traverse absque hoc qiicd aliter seu alio
modo, as was done in the case of Weaver v. Ward, Hobart, 134.
And yet judgment there given for the plaintiff.

See Vincent v. Stinehour, 7 Vt. 62 (1835), where it is said that "Where
a person is doing a vol untarv act :K-hicli-h£-isuinder no obHgatiori-ta-dQ. he is
held answerable f or any injury^ whj^ch may happen to ajioth£r._eitha:JDy acct^
denOrlcarHessness ;" and Wright v. Clark, 50 Vt. 130 (1877) ; Denio, C. J.,
in Castle v. Duryee, 2 Keyes (41* N. Y.) 169 (1865), pp. 172-174, and Jennings
V. Fiindeherg, 4 McCord 161 (S. Car. 1827). _

Certain acts may be so fraught with peril to others that the mere doing
them, except under the compulsion of necessity or legal duty, may be so akin
to fault that he who does them does them at his risk and may be liable no
matter how carefully he does them, while if they be done under necessity or
legal duty, he is only liable if they are done without that care which the dan-
gerous nature of the thing requires. While the American courts generally
deny liability for direct injury unless caused by an unlawful act or due to neg-
ligence, they require a high degree of care in the voluntary carriage, handling
and discharge of firearms or other weapons. In Tally v. Ayres, 3 Sneed 677
(Tenn. 1856), it was said that "the act of taking a loaded gun into a public
place — no necessity or cause being shown for doing so — was an uncalled for
and reckless act;" and in Jndd v. Ballard, 66 Vt. 668 (1894), it was said that
irrespective of the care used in handling a loaded revolver, "it was negligence
to be adjusting it with the loaded revolver so held that an accidental discharge
would injure the plaintiff." See also, Morgan v. Cox, 22 Mo. 27Z (1856),
where the defendant having used a loaded gun to punch a cow, it went off,
presumably by reason of the hammer striking his saddle as he was returning
it to its original position, shooting the plaintiff's slave, but see Sutton v. Bon-
nett, 114 Ind. 243 (1887). So to carry a gun, while out shooting, pointing to-
ward a comrade, was held negligence in Winans v. Randolph, 169 Pa. 606
(1895), or to "break" a gun for the purpose of extracting the cartridge while
pointing it toward another, Atchison v. Dullam, 16 111. App. 42 (1884).

So an action of trespass will lie against one firing a gun or shooting an
arrow at a mark without making sure that no one is dangerously near to it,
C haddock V. Tabor, 115 Mich. 27 (1897) ; Bullock v. Bahcock, 3 Wend. 391
(N. Y. 1829), or who shoots at a fox while the dog which has run to cover is
playing nearby, Wright v. Clark, 50 Vt. 130 (1877), or who fires at what he
supposes to be a wild animal without making sure that it is such, Rudd v.
Byrnes, 156 Cal. 636 (1909), where the defendant shot a friend mistaking him
for a deer. So if one discharges a loaded firearm or directs its discharge at
another, he is liable in trespass and it is no defence that he did not believe or
that he had good reason to believe it to be unloaded, Bahel v. Manning, 112
Mich. 24 (1897), or that he has taken the utmost precautions to ascertain that
only blank cartridges are used. Castle v. Duryee, 2 Keyes (*41 N. Y.) 169



(1865), a regiment fired what was meant to be a blank volley in the
direction of a crowd of spectators. One of them was shot by a ball which,
notwithstanding the very elaborate precautions taken, had remained in one of
the muskets. It was held that the colonel who gave the order to fire was lia-
ble in trespass. "The negligence," said Denio, C. J., "consisted in firing into a
crowd of people without positive knowledge that no one musket in the whole
regiment contained anything more than a blank cartridge."


Supreme Judicial Court of Massachusetts, 1850. 60 Mass. 292.

This was an action of trespass ior assault and battery, orig-
inally commenced against George K. Kendall, the defendant, who
died pending the suit, and his executrix was summoned in.

It appeared in evidence, on the trial, which was before Wells,
C J., in the court of common pleas, that two dogs, belonging to the
plaintiff and the defendant, respectively, were fighting in the pres-
ence of their masters ; that the defendant took a stick about "four
feet long, and commenced beating the dogs in order to separate
them ; that the plaintiff was looking on, at the distance of about a
rod, and that he advanced a step or two toward the dogs. In their
struggle, the dogs approached the place where the plaintiff* was
standing. The defendant retreated backward from before the dogs,
striking them as he retreated; and as he approached the plaintiff,
with his back toward him, in raising his stick over his shoulder,
in order to strike the dogs, he accidentally hit the plaintiff' in the
eye, inflicting upon him a severe injury.

Whether it was necessary or proper for the defendant to inter-
fere in the fight between the dogs; whether the interference, if
called for, was in a proper manner, and what degree of care was
exercised by each party on the occasion ; were the subject of con-
troversy between the parties, upon all the evidence in the case, of
which the foregoing is an outline.

The jury under certain instructions which sufficiently appear
in the opinion of the court, returned a verdict for the plaintiff;
whereupon the defendant alleged exceptions,

Shaw, C. J. This is an action of trespass, vi et armis, brought
by George Brown against George K. Kendall, for an assault and
battery ; and the original defendant having died pending the action,
his executrix has been summoned in. The rule of the common law,
by which this action would abate by the death of either party, is
reversed in this commonwealth by statute, wliich provides that ac-
tions of trespass for assault and battery shall survive. Rev. Sts.,
chap. 93, § 7.

The facts set forth in the bill of exceptions preclude the sup-
position, that the blow, inflicted by the hand of the defendant upon
the person of the plaintiff', was intentional. The whole case pro-
ceeds on the assumption, that the damage sustained by the plaintiff,
from the stick held by the defendant, was inadvertent and unin-


tentional; and the case involves the question how far, and under
what quahfications, the party by whose unconscious act the damage
is done is responsible for it. We use the term "unintentional"
rather than involuntary, because in some of the cases, it is stated,
that the act of holding and using a weapon or instrument, the move-
ment of which is the immediate cause of hurt to another, is a volun-
tary act, although its particular effect in hitting and hurting an-
other is not within the purpose or intention of ^th4 party doing the

act *; '

It appears to us, that some of the confusion in the cases on this
subject has grown out of the long-vexed question, under the rule
of the common law, whether a party's remedy, where he has one,
should be sought in an action of the case, or of trespass. This is
very distinguishable from the question, whether in a given case,
any action will lie. The result of these cases is, that if the damage
complained of is the immediate effect of the act of the defendant,
trespass vi et armis lies; if consequential only, and not immediate,
case is the proper remedy. Leame v. Bray, 3 East, 593 ; Hiigget v.
Montgomery, 2 N. R. 446, Day's Ed. and notes. *_
/ In these discussions, it is frequently stated by judges, that when
one receives injury from the direct act of another, trespass will lie.
But we think this is said in reference to the question, whether tres-
pass and not case will lie, assuming that the facts are such, that some
action will lie. These dicta are no authority, we think, for holding,
that damage received by a direct act of force from another will be
sufficient to maintain an action of trespass, whether the act was
lawful or unlawful, and neither wilful, intentional, or careless. In
the principal case cited, Leame v. Bray, the damage arose from the
act of the defendant, in driving on the wrong side of the road, in
a dark night, which was clearly negligent if not unlawful. In the
course of the argument of that case (p. 595), Lawrence, J., said:
"There certainly are cases in the books, where, the injury being di-
rect and immediate, trespass has been holden to lie, though the
injury was not intentional." The term "injury" implies something
more than damage; but, independently of that consideration, the
proposition may be true, because though the injury was uninten-
tional, the act may have been unlawful or negligent, and the cases
cited iDy him are perfectly consistent with that supposition. So the
same learned judge in the same case says (p. 597), "No doubt tres-
pass lies against one who drives a carriage against another, whether
done wilfully or not." But he immediately adds, "Suppose one who
is driving a carriage is negligently and heedlessly looking about him,
without attending to the road when persons are passing, and thereby
runs over a child and kills him, is it not manslaughter? and if so, it
must be trespass ; for every manslaughter includes trespass ;" show-
ing what he understood by a case not wilful.

£^^ We think, as the result of all the authorities, the rule is cor-
rectlv stated by Mr. Greenleaf, thai Jihfi-plaifttifijiiust come pre-
pared with evidence_to^ow either JLh at the z;t^g?7fron j ^a&-43«tewful,
or that'the defendant was in iaiili-;-ioiJd- ^ mjury wasjinayoid'


able^ancLtliaLllie conduct of the defendant was free from blame,
he will n^ be liable. 2 Grecfll. Ev., f§ 85 to 92; Wakeman v. Rob-
inson, I Bing. 213. If, in the prosecution of a lawful act, a casualty
purel}' accidental arises, no action can be supported for an injury
arising therefrom. Davis v. Saunders, 2 Chit. R. 639; Com. Dig.
Battery, A. (Day's Ed.) and notes; Vincent v. Stinchour, 7 Vt. 69.
In applying these rules to the present case, we can perceive no rea-
son why the instructions asked for by the defendant ought not to
have been given ; to this effect, that if both the plaintiff and defend-
ant at the time of the blow were using ordinary care, or if at that
time the defendant was using ordinary care, and the plaintiff was
not, or if at that time, both the plaintiff and defendant were not
using ordinary care, then the plaintiff could not recover.

In using this term, ordinary care, it may be proper to state,
that what constitutes ordinary care will vary with the circumstances
of cases. To genernl, it menns th^t kind and degree of care,.-wiiich
jHiudent and cautjous-men would use, suchLas_Js_. required by the
exigency of th.e_xase^ and sucli as is necessary to guard against
4irQbable _danger^ A man, who should have occasion to discharge
a gun, on an open and extensive marsh, or in a forest, would be
required to use less circumspection and care, than if he were to do
the same thing in an inhabited town, village, or city. To make an
accident, or casualty, or as the law sometimes states it, inevitable
accident, it must be such an accident as the defendant could not
have avoided by the use of the kind and degree of care necessary
to the exigency, and in the circumstances in which he was placed. ^s_

We are not aware of any circumstances in this case, requiring
a distinction between acts which it was lawful and proper to do,
and acts of legal duty. There are cases, undoubtedly, in which
officers are bound to act under process, for the legality of which
they are not responsible, and perhaps some others in which this dis-
tinction would be important. We can have no doubt that the act
of the defendant in attempting to part the fighting dogs, one of
which was his own, and for the injurious acts of which he might
be responsible, was a lawful and proper act, which he might do by
proper and safe means. If, then, in doing this act, using due care
and all proper precautions necessary to the exigency of the case, to
avoid hurt to others, in raising his stick for that purpose, he acci-
dentally hit the plaintiff in his eye, and wounded him, this was the
result of pure accident, or was involuntary and unavoidable, and
therefore the action would not lie. Or if the defendant was charge-
able with some negligence, and if the plaintiff was also chargeable
with negligence, we think the plaintiff' can not recover without show-
ing that the damage was caused wholly by the act of the defendant,
and the plaintiff's own negligence did not contribute as an efficient
cause to produce it.

The court instructed the jury, that if it was not a necessary
act, and the defendant was not in duty bound to part the dogs, but
might with propriety interfere or not as he chose, the defendant was
responsible for the consequences of the blow, unless it appeared that


he was in the exercise of extraordinary care, so that the accident
was inevitable, using the word not in a strict but a popular sense.
This is to be taken in connection with the charge afterward given,
that if the jury believed, that the act of interference in the fight was
unnecessary (that is, as before explained, not a duty incumbent on
the defendant), then the burden of proving extraordinary care on
the part of the defendant, or want of ordinary care on the part of
the plaintiff, was on the defendant.

The court are of opinion that these directions were not con-
formable to law. If the act of hitting the plaintiff was uninten-
tional, on the part of the defendant, and done in the doing of a law-
ful act, then the defendant was not liable, unless it was done in the
want of exercise of due care, adapted to the exigency of the case,
and therefore such want of due care became part of the plaintiff's
case, and the burden of proof was on the plaintiff to establish it.
2 Greenl Ev., § 85; Powers v. Russell, 13 Pick. (Mass.) 69, 76;
Tourtellot v. Rosehrook, 1 1 Mete. 460.

Perhaps the learned judge, by the use of the term extraordinary
care, in the above charge, explained as it is by the context, may have
intended nothing more than that increased degree of care and dili-
gence, which the exigency of particular circumstances might require,
and which men of ordinary care and prudence would use under like
circumstances, to guard against danger. If such was the meaning
of this part of the charge, then it does not differ from our views,
as above explained. But we are of opinion, that the other part of the
charge, that the burden of proof was on the defendant, was incor-
rect. Those facts which are essential to enable the plaintiff to re-
cover, he takes the burden of proving. The evidence may be offered
by the plaintiff or by the defendant ; the question of due care, or
want of care, may be essentially connected with the main facts, and
arise from the same proof ; but the effect of the rule, as to the bur-
den of proof, is this, that when the proof is all in, and before the
jury, from whatever side it comes, and whether directly proved, or
inferred from circumstances, if it appears that the defendant was
doing a lawful act, and unintentionally hit and hurt the plaintiff,
then unless it also appears to the satisfaction of the jury, that the
defendant is chargeable with some fault, negligence, carelessness,
or want of prudence, the plaintiff fails to sustain the burden of
proof, and is not entitled to recover.

New trial ordered.

Accord: See Morris v. Piatt, 32 Conn. 75 (1864) ; Paxton v. Bayer, 67
111. 132 (1873), both cases where the defendant shooting in self -defense in-
jured a bystander L .ttrt'see'also the case supposed by Bria.n. argiiendo in Y. BT

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