Francis H. (Francis Hermann) Bohlen.

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~n6T:dw. IV 7, p. 816, ante; Martin v. Miller, 16 Mo. 509 (1852), semble; and
see Doe, C. J., in Brown v. Collins, 53 N. H. 442 (1873) ; Sullivan v. Murphy,
2 Miles 298 (Pa. 1839), th e defendant stumbled a ndfell against a s_tove in a
bar room overturning- the stove an dJlu:awiag-b ^^'nR^vi ' tPr from iL_v:essel,
standing thprenn . nnon the plaintiff. J he court charged that if the fall of the
defeTrd^fTwaTa mere accident, brought about without any default or negli-
gence or improper conduct on his part, he would not be responsible for the
plaintiff's injury; but the, fall was the effect of intox icalioiLfrom voluntary .
drinking, he was cii lpqblf and thp'vprdi Vt should h^ ^'pr thr^ pl^mi-iff, A rule
for a new trial, moved for on the ground of misdirection, was refused.



MC GEE V. WILLING. 6l

McGEE V. WILLING.
Supreme Court of Pennsylvania, Nisi Prius, 1874. 31 Legal Intelligencer, Z7.

1. A civil action for damages can be maintained against an
infant iiimself for injuries done by him while under the age of seven
years.

2. Whether a woman undertaking to perform the duties of a
nurse assumes the risk of being injured by the follies of a child, not
decided.

Sharswogd, J. — Gentlemen of the jury: This is, in some re-
spects, a novel and interesting case. The defendant is sued by the
plaintifif for an assault and battery, alleged to have been committed
by him on her four years ago, at a time W'hen he was not six years
of age. Of that there is no doubt, and she claims to recover of him
the damages which she has sustained in consequence thereof.

There is no doubt whatever that such an infant being in the
eye of the law deficient in mental capacity and under seven years of
age, is not liable, in a criminal proceeding, to be punished for his
acts contrary to law, any more than would an idiot, or would a per-
son of unsound mind ; the mains animus, the evil intention, which
is essential to constitute crime, would be wanting. Had then, the
defendant been proceeded against criminally for this alleged as-
sault, he could not have been convicted in a court of justice, and
would have been entitled to his acquittal on the ground of his age
alone ; or had he inflicted a blow on the plaintifif, which had pro-
duced death, he could not have been convicted or punished e\*en
for the lowest degree of homicide ; but the law is certainly dififerent,
I think, as to the liability of a person for the consequences of civil
injuries in a civil court of justice wdien proceeded against in an
action. T he evij ^ intention, or mains a?n">n; <.y.,:wliid.T_ia_£-Ssentialjto
constitute cnmeT^is not es sential to constitute liability, though o?
CDirrseiT enters_very_ mafenally m to_jthe^[uestio n orthe amount of
damages'which'areto^ be recoveredm the case. In ordmary cases,
-irrthe instance of an"^adult7 i^fhe injury is not the efifect of an un-
avoidable accident, the person by whom it was inflicted is liable to
respond in damages to the sufferer, however innocent he may be
in respect to intending an injury to anybody. Thus, in a very old
case decided in England as far back as Henry the seventh, in the
year 1505, more than three hundred and fifty years ago, where in
shooting at a mark, the archer's arrow glanced and struck another,
struck a person who was present, it was held that it would be a tres-
pass for which he would be civilly responsible. In another later
case, where a number of persons were lawfully exercising them-
selves in a military muster, one whose gun went oft' accidentally and
wounded another, w^as held liable in trespass for the injury, and it
was laid down hi that case as clear law, that if a lunatic hurt a
man he should be answerable in damages, and no man should be
excused for trespass except it be adjudged entirely without his
fault. The liability therefore, to answer in damages for trespass,
does not depend upon the capacity of the actor, and if it were nee-



62 MC GEE V. WILLING.

essary, very good reasons could be given for it. Where infants are
the actors, that may probably be considered, however, an unavoid-
able accident, which would not be so considered where the actors
are adults ; but such a distinction, if it exists at all, does not apply
to this case; for if the evidence of the plaintiff be believed, here
was a blow voluntarily inflicted by the defendant, and not an acci-
dent resulting from mere negligence, which might not be imputable
to so young an infant. If this had been an injury arising from neg-
ligence, I suppose the law to be very clear that no negligence could
be imputed to so young an infant ; but this blow, if the testimony
of the plaintiff is to be believed, was voluntarily given, and was
not the result of negligence, although it may have been and was
the mere act of a foolish child, ignorant of the consequences.^



"■Accord: Harvey v. Dunlop, Hill & Denio, 193 (N. Y. 1843), where
the defendant was a boy of six; Y. B. 35, Hen VI 11, pi. 18, where the de-
fendant's counsel s^id that the defendant was no more than five years of age
and so he shows clearly that he has not the discretion to commit a trespass or
to entertain malice; Huchting v. Engle, 17 Wis. 230 (1863), child of six lia-
ble in trespass quare claiisum free/it. Compare Nagle v. Allegheny Valley R.
Co., 88 Pa. 35 (1«7§) y Savannah F. & W. R. Co. v. Waller, 97 Ga. 164 (1895) ;
Giinn V. Ohio River R. Co., 42 W. Va. 676 (1896) ; Chicago City R. Co. v.
Tuohy, 196 111. 410 (1902), and Nashville R. Co. v. Howard, 112 Tenn. 107
(1903), as to the capacity of very young children to be guilty of contributory
negligence barring recovery for injuries due to the negligence of others.

Accord also: Vosburg v. Putney, 80 Wis. 523 (1891). and Haffner v.
Peterson, 59 Ind. 130, note 1 thereto; Bullock v. Babcock, 3 Wend. 391 (N. Y.
1829) ; O'Brien v. Loomis, 43 Mo. App. 29 (1890), in all of which the injury
was the direct result of a willed act of a child of ten to twelve ; Neal v. Gillett,
23 Conn. 437 (1855), where a horse was frightened by a ball thrown in play by
a boy of twelve, who the court regarded as having sufficient discretion to
make his act culpably negligent; Conklin v. Thompson, 29 Barb. 218 (N. Y.
1859), horse frightened by firecracker thrown into street by boy of fourteen;
Edwards v. Crume, 13 Kans. 348 (1874), boy, age not stated, set fire to prairie
which spread to plaintiff's adjacent premises, Smith v. Davenport, 45 Kans.
423 (1891), boy, age not stated, riding on a pony, ran over plaintiff.
^^ The minor's act is none the less a trespass in him b cause done by his

-,4-*'**^ faltLei^ command. Edivards v. Crume, 13 Kans. 348 (1874) ; Scott v. Watson,
lr^-~^^M2^m& 362 (1859).

^^^^^ So a lunatic, though not punishable criminally is liable to make compensa-
tA * tion for the harm done bv his acts, Weaver v. Ward, 1 Hobart 134; Mc-
Intyre v. Sholty, 121 111. 660 (1887); Jeivell v. Colby, 66 N. H. 399 (1890),
both cases of death caused by acts of an insane person which would have
been criminal had he been sane; and Morse v. Crawford, 17 Vt. 499 (1845),
an insane bailee destroyed the property entrusted to him.

In Williams v. Hays, 157 N. Y. 541 (1899), it was held that an insane per-
son was not answerable for negligent non-feasance, at least if his insanity is
due to no fault of his own, and a person totally lunatic is held in Worthington
V. Mencer, 96 Ala. 310 (1891). to be incapable of contributory negligence.

In Cross v. Andrews, 2 Croke 622, an insane innkeeper is held as fully lia-
ble for the loss of his guest's property as though sane and in Cross v. Kent, 32
Md. 581 (1870), it was said that a lunatic was as answerable if he burned the
plaintiff's barn bv accident as if he had burned it intentionally, but see Jewell
V. Colbv, 66 N. H. 399 (1890).

Both infants and lunatics are liable for injuries due to the negligent up-
keep of their real estate. McCabe v. O'Connor, 4 N. Y. App. Div. 354 (1896),
162 N. Y. 600 (1900) ; Morain v. Devlin, 132 Mass. 87 (1882), "there is no
reason for holding that the lunatic, having the benefits, is exempt from re-
sponsibilities of ownership of real estate," per Gray, C. J.




FUAZIKK Z'. TLKNER. 63

(b) False imprisonment.



FRAZIER V. TURNER.
Suprevie Court of Wisconsin, 1890. 76 Wis. 562.

Action to recover damages for alleged false imprisonment. On
the trial in the court below the plaintiff recovered, and from the
judgment rendered in his favor the defendants Martha E. Turner
and David Turner appeal to this court.

On the trial it was shown that the warrant was issued on a
complaint signed by the defendant but in the handwriting of ^^Ir.
Duff, the district attorney. The defendant took the warrant from
the magistrate, stating that she wanted Mr. Conger, the deputy-
sheriff, to serve it. Conger later brought the plaintiff' before the
magistrate.

The defendants offered to show that they had, previous to the
application for the warrant, made a statement of the facts to Mr.
Duff, the district attorney, and that he drew up the complaint. This
was objected to by the plaintiff, and excluded by the trial court, on
the ground that, as there was no claim that the arrest was ma-
liciously made, and no claim for punitory damages, the motive which
actuated the defendants in making the complaint and procuring the
arrest was immaterial.

Taylor, J. On this appeal it is contended by the learned coun-
sel for the plaintiff and respondent that the complaint and warrant
do not state facts sufficient to show that the plaintiff had committed
any crime known to the law ; that the warrant was absolutely void
upon its face, and was therefore no justification to the officer serv-
ing the same for making the arrest complained of ; and it is also in-
sisted that there is sufficient evidence to show that the appellants,
Martha E. and David Turner, directed the officer serving such void
warrant to make such arrest, and are therefore liable in the law
for such unlawful arrest. On the part of the appellants, the counsel
claim that the warrant was not void on its face, and, if it was void-
able, it could have been amended by the justice on the return of the
warrant, on the application of the state.

We think there can be no doubt but that the complaint does
not state facts showing that the plaintiff' had committed any crime,
and that the warrant was void on its face for the same reason. The
warrant was void because it does not state that the thing alleged to
have been stolen was of any value.

The warrant being void on its face, was no justification for the
arrest by the deputy-sheriff ; and the appellants having delivered
the void warrant to the sheriff', and having directed him to make
the arrest on such void warrant, are equally liable with the sheriff*.
This was fully discussed and decided by this court in the case of
Gclaoilcttchfcr v. Nioncyrr. 64 Wis. 316. There is as much evi-
dence of the participation of the appellants in making the arrest in



64 HAZELTOX v. WEEK.

this case as in the case last above cited. The question as to whether
the appellants participated in procuring the arrest of the respondent
under the void warrant was properly submitted to the jury by the
learned circuit judge.

There was no error in excluding the evidence offered by the
appellants that they had submitted the facts in the case to the dis-
trict attorney, and acted under his advice. Having participated in
the arrest of the plaintiff under a void warrant, they are equally
liable as the officer making such arrest.

By the Court. — The judgment of the circuit court is affirmed.^



(c) Trespass to property.



HAZELTON v. WEEK.
Supreme Court of Wisconsin. 1880. 49 Wis. 661.

Cole, J. In the court below this was treated as an action of
trespass for unlawfully entering upon the plaintiff's land and cut-
ting and removing therefrom a quantity of pine timber. There was
no dispute on the trial that the logs were cut on the plaintiff's land,
and that the defendant Week had them and manufactured them
into lumber. Nor was there any claim that the defendant Week
himself cut any of the logs. It is clearly established by the evi-
dence, and the fact is conceded, that he did not, but that the de-
fendant Hughes, with his brother, and person employed by them,
actually cut the timber. The contention in the court below was,
whether Week employed the brothers Hughes to cut the timber,
agreeing to pay them for their work, or whether he simply agreed to
buy the logs of them, which they cut on their own responsibility.

It seems to have been assumed by the learned circuit court,
that if Week merely agreed to buy the logs which Hughes cut, then
he would not be responsible in this action of trespass ; for the court
in effect charged upon this question, that if the jury found from
the testimony that Week employed Hughes to cut the logs for him,
agreeing to pay him for his work, then he would be liable for the
trespass ; but if the agreement simply was that Week would buy
the logs which Hughes got out, and then Week took them under
that arrangement, without notice or knowledge of the trespass by
Hughes, then he would not be liable in an action for such trespass.
This charge was excepted to by the plaintiff; and in view of the
evidence there can be no doubt that it was well calculated to mis-
lead the jury to his prejudice. It may be assumed at the outset that



^ See also Campbell v. Sherman, 35 Wis. 103 (1874), where it was held that
a -sheriff seizing a vessel w^as liable for seizing a ship under a process issued
by a circuit court of the state ujidera^ statute, wluch,-JjeiQg_unconstitutional,
gave it no jurisdiction^



HAZELTON Z'. WEEK. 65

Week purchased the logs of the Hugheses, as he said he did, in good
faith, without notice that they had been guilty of trespass in cut-
ting them. He was sworn on his own behalf on the trial, and tes-
tified to this effect. He says that the agreement was that he was
to purchase the logs which the Hugheses should cut, at three dol-
lars per thousand, they furnishing their own timber. He admits
that he went upon the plaintiff's land not knowing who owned it at
the time, and examined the logs, which were banked thereon. He
denies, however, that he knew these logs had been cut upon this
land. But he says that he furnished a man to aid in scaling the
logs, and on his cross-examination makes this admission : "I re-
moved the timber from the land, or my men did and I paid them
for it. Frank helped, and that was part of the bargain, that he
should help get the logs into the creek. I paid for men to go up
and get the logs and drive them down. * * * j (jj^j ^q^ know
when I made the bargain with the Hugheses, in the fall of 1875,
that they had previously trespassed on lands where they had no
right."

Now, assuming, as we do, that this is a true version of the
transaction — that Week had merely agreed to purchase of the
Hugheses the logs which they might cut and get out — yet if the
Hughes brothers entered upon the plaintiff's land without right or
authority, and committed a trespass by cutting the timber standing
thereon, and Week, with his servants, also entered upon the prem-
ises and removed the logs and converted them to his own use, he
is responsible equally to the Hugheses to the owner, or plaintiff,
for the value of the logs. The Hughes brothers certainly acquired
no title to the timber by severing it from the soil ; they were simply
wrongdoers, and consequently could confer no title by the formality
of a sale. As soon as the timber was cut it became the personal
property of the owner of the land, and Week in going upon the
premises and removing the logs without authority from such owner,
was a trespasser, and liable in damages for the wrong. It is not
essential to that responsibility that the element of a wilful or inten-
tional trespass should enter into the transaction ; it was sufficient
that he was taking away property that he had no right to remove.
H he did not know who owned the land, he was bound to know
that the logs severed from the soil were the property of the owner,
whoever he might be, and that without the consent of such owner
he had no right to interfere with the property. The rule of law is
well settled in this court.

In Dexter v. Cole, 6 Wis. 320, which was an action of trespass,
it appeared that the defendant, who was a butcher in ^Milwaukee,
was driving some sheep he had purchased, toward the city, upon the
highway, when they became mixed with a small lot belonging to
the plaintiff", which were running at large upon the highway. The
defendant drove the whole flock into a yard near the road, for the
purpose of parting them, and did not throw out a number which
he did not claim, and pursued his way with the remainder to his
slaughter-house, where they were slaughtered in his business. The

S — Bohlen's Cases, Vol. I.



65 HAZELTON Z: WEEK,

evidence tended to show, and if the jury found it did show, that
some four of the plaintiff's sheep remained in the flock, and were
driven to Mihvaukee and slaughtered. The court sustained the ac-
tion on the ground that any unlawful interference with, or acts
of ownership over property, the exclusion of the owner, was suf-
ficient to sustain the action, and that it was not necessary to show
actual or forcible dispossession of the property; that the intent did
not necessarily enter into the trespass ; that it was sufficient if the
act done was without a justifiable cause or purpose. But perhaps
the case nearest in point to the one at bar is Higginson v. York, 5
Mass. 341. The head note thus states the case: "A., having entered
the close of B., and having cut a quantity of cord wood, sells the
same to C, who hires D., the master of a coasting vessel, to go in
company with C. and transport the wood to market. D. was held
liable for the value of the wood in an action of trespass quare
clausum fregit, brought by B., although it was agreed he was ig-
norant of the original trespass committed by A."

In Hobai't v. Hagget, 12 Maine 67, which was an action of tres-
pass for taking an ox belonging to the plaintift', it was proved that
the defendant met the plaintiff in the street, and bought of the latter
an ox, which the plaintiff directed him to go and take out of his
enclosure, and the defendant, by mistake, took the wrong ox. The
defendant was held hable in the action. The court says : "The tak-
ing of the plaintiff's ox was the deliberate and voluntary act of the
defendant. He might not have intended to commit a trespass in
so doing. Neither does the officer, when, on a precept against A.,
he takes, by mistake, the property of B., intend to commit a tres-
pass ; nor does he intend to become a trespasser \yho, believing that
he is cutting timber on his own land, by mistaking the line of di-
vision, cuts on his neighbor's land; and yet in both cases the law
would hold them as trespassers." Cooley on Torts, 348, lays down
the same doctrine.

But it would seem to be quite unnecessary to extend our re-
marks upon this question. The above authorities, and others which
might be cited, of the same import, abundantly show that the de-
fendant Week, by entering upon the premises of the plaintiff and re-
moving therefrom the logs in controversy, was simply a wrongdoer,
and is responsible in damages for the value of the property taken.
If he did not intend to commit a trespass, of course no exemplary
damages could be recovered against him ; but he is surely liable,
upon every just principle, for the value of the property which he
unlawfully removed and converted to his own use. Therefore, with-
out noticing the other questions discussed on the briefs of counsel,
we must reverse the judgment and order a new trial.

By the Court — It is so ordered.^



' Tn the following cases the defendant cut timber or mined minerals upon
the plaintiff's land through a mistake as to the boundaries, Oswalt v Smith.
97 Ala 627 (1893)- Jeffries v. Harqis. 50 Ark. 65 (1887); MuMer Lumber
Co. V. Craig, 112 Mo. App. 454 (1905); Perry v. Jefferies, 61 S Car. 292
(1901) • Luttrell v. Hazen, 3 Sneed 20'(Tenn. 1855) ; Stnall v. Ball, A7 Vt. 486



RUSSELL V. IRBY. 6^

RUSSELL V. IRBY.

Supreme Court of Alabama, 1848. 13 Ala. 131.

Collier, C. J. The seventh section of the act of 1807, "to
prevent trespasses in certain cases," enacts, "If any person shall
cut down, carry away, or destroy, any cypress, white oak, black
walnut, pecan, or cherry tree, upon any lands not his own, with-
out first having the consent of the owner, he shall forfeit and
pay the owner thereof ten dollars for every such tree, so cut, car-
ried away, or destroyed." Clay's Dig. 581. There can be no doubt
that where a statute imposes a penalty, but omits to prescribe a
remedy for its recovery, that an action of debt will lie at the suit
of the party entitled to it. The material question in the case before
us, is, whether to subject one to liabilitv u nder the statute, it is
enough to show mistake, or even carelessness. We think it entirely
clear, tKat Ibe cutting of trees upon another's land, under the im-
pression that the party had not gone beyond his own boundaries,
was not within the contemplation of the legislature. Moral justice
would forbid any extraordinary infliction in such a case, and the
damages recoverable at common law, would afford an adequate
reparation. Whether negligence so gross as to indicate an entire
recklessness, or indifference to the rights of another, would be a
substitute for actual knowledge, or authorize its application, need
not be considered. The facts before us show nothing more than a
mere accident or mistake, consistent with honest intention. This
construction of the act rests not upon the mere fitness of the thing,
and the suggestions of reason, but is supported by at least one most
respectable adjudication directly in point. In Batcheldcr v. Kelly,
10 N. H. 436, which was an action under a similar statute to recover



(1874); Maxe v. Tappan, 23 Cal. 306 (1863); Atlantic etc. Co. v. Maryland
Coal Co., 62"Md. 135 (1884) : Herdic v. Young, 55 Pa. 176 (1867).

In Pearson v. Inlow, 20 j\Io. 322 (1855). and Maye v. Tappan, 23 Cal. 305
(1863), the defendant was held guilty of trespass though misled by the inno-
cent misstatements of the plaintiff, who was himself mistaken as to the loca-
tion of his boundary.

In Cubit V. O'Dett, 51 j\Iich. 347 (1883), the defendant acting under direc-
tion and orders of an overseer of higlnvays, cut a ditch which threw surface
water upon the plaintiff's land.

The defendant's entry upon the plaintiff's land is none the less a trespass
because made in the bona fide assertion of a title which he thought to be good,
Shipman v. Baxter, 21 Ala. 456 (1852), or in the exercise of an authority
which he in good faith believed he possessed, Coffman v. Burkhalter, 98 111.
.'\pp. 304 (1901).

In the following cases the defendant took or carried away, or destroyed,
personal property, under an honest mistake as to the identity of the chattel,
(Hobart v. Hagget, 12 Maine 67 (1835), cited in principal case), or as to his
title thereto, (Humbser v. Scott, 5 Mo. App. 597 (1878), a trustee under a
fraudulent deed of trust, liable in trespass for removing and selling goods
covered thereby) ; or as to the title of another whom he assii^ted in removing
goods, Wallard v. Worthman, 84 111. 446 (1877), defendant in good faith as-
sisted the holder of a bill of sale in fact given as security onlv, to recover
goods covered thereby, and see Cate v. Cate, 44 N. H. 211 (1862).



68 NEWSOM t'. ANDERSON.

the penalty prescribed for cutting and carrying away trees on the
land of another, the court said, to subject a party to the penalty:
"it must appear that the act was done knowingly and wilfully, and
not through mistake or accident; in which latter case the party
would be entitled to recover only the value of the injury he had
actually sustained. The general tenor of the statute is such, as
wholly to preclude the idea that it was designed to apply to uninten-
tional trespasses." This latter remark applies with equal justness
to our statute.^



•^^NEWSO:^! V. ANDERSON.

Supreme Court of North Carolina, 1841. 2 Iredell (Law) 42.

This was an action of Trespass vi et armis quare clausiim f regit,
tried at. the Fall Term, 1841, of Stokes Superior Court, before his
Honor Judge Nash. The plaintift and defendant were owners of
contiguous tracts of land. In clearing near the dividing line, a tree
cut on the defendant's land fell with part of the top on the land of
the plaintift. There was no evidence to show that the tree was