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The jury under these instructions returned a verdict for the plaintiff; whereupon the defendant alleged exceptions.

This case was argued at the sittings in Boston, in January last, by J. G. Abbott, for the defendant, and by B. F. Butler and A. W. Farr, for the plaintiff.

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. . . .

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The facts set forth in the bill of exceptions preclude the supposition that the blow, inflicted by the hand of the defendant upon the person of the plaintiff, was intentional. The whole case proceeds on the assumption, that the damage sustained by the plaintiff, from the stick held by the defendant, was inadvertent and unintentional; and the case involves the question how far, and under what qualifications, the party by whose unconscious act the damage was 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 movement of which is the immediate cause of hurt to another, is a voluntary act, although its particular effect in hitting and hurting another is not within the purpose or intention of the 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; Huggett v. Montgomery, 2 N. R. 446. 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 trespass 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, nor careless..

We think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf, that the plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. Wakeman v. Robinson, 2 Bing. 213. If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising

therefrom. Davis v. Saunders, 2 Chitty, 639; Vincent v. Stinehour, 7 Vt. 69 [ante, No. 480]. . . . In using this term, "ordinary care," it may be proper to state, that what constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable 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. . . .

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 accidentally 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. . . .

The Court are of opinion that these directions [of the trial court] were not conformable to law. If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful 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.

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 diligence 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.. New trial ordered.

482. ANON [THORN-CUTTING CASE]

Y. B. 6 Edw. IV, 7, pl. 18 (1466)

[Printed ante, in No. 475.]

483. BASELY v. CLARKSON

KING'S BENCH. 1681

3 Lev. 37

TRESPASS for breaking his close called the balk and the hade, and cutting his grass, and carrying it away. The defendant disclaims any title in the lands of the plaintiff, but says that he hath a balk and hade adjoining to the balk and hade of the plaintiff; and in mowing his own land he involuntarily and by mistake mowed down some grass, growing upon the balk and hade of the plaintiff, intending only to mow the grass upon his own balk and hade, and carried the grass, &c., quæ est eadem, &c. Et quod ante emanationem brevis he tendered to the plaintiff 2s. in satisfaction; and that 2s. was a sufficient amends. Upon this the plaintiff demurred, and had judgment; for it appears the fact was voluntary, and his intention and knowledge are not traversable: they cannot be known.

484. WHITECRAFT v. VANDERVER
SUPREME COURT OF ILLINOIS. 1850

12 Ill. 235

THIS was an action of debt brought in the Christian Co. Circuit Court, to recover a penalty under the statute for cutting trees. The declaration contains but one count, which is as follows: That they (the defendants) render unto the plaintiff the sum of $1166, which they owe to and unjustly detain from him; for that whereas, heretofore, to wit, on, etc., and from thenceforward continually, until the bringing of this suit, at, etc., the said plaintiff was the owner of certain land (describing it) and that the said defendants, on, etc., and on divers other days and times, before the bringing of the suit, did fell 68 elm trees, 68 elm saplings, etc., etc., which said trees and saplings theretofore, and up to the times of felling the same, as aforesaid, were standing and growing upon the land aforesaid, belonging to the plaintiff, as aforesaid; by reason whereof, and by force of the statute in such case made and provided, an action hath accrued to the said plaintiff, to demand and have of and from the said defendants a large sum of money, to wit, the sum of $1,166, above demanded, yet, etc., to the damage of the plaintiff of $200. To this declaration there was a demurrer and joinder, and a plea of nil debet, and issue joined thereon. The declaration was amended, and the cause was submitted to a jury, and a verdict was found for plaintiff for $476; DAVIS, Judge, presiding. The cause was tried at a special term in August, 1850.

Motions for a new trial and arrest of judgment were made and overruled.

W. J. Ferguson, for defendants (plaintiffs in error). The judgment should have been arrested. The declaration does not allege either that the trees were cut vi et armis, or that they were cut without the permission of the owner.

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Lincoln & Herndon, for plaintiffs (defendants in error): 1. The statute of this State to prevent trespassing upon and cutting timber is not purely a penal statute, but a kind of remedial one at least not penal: 13 Pick. 100; 6 Iredell 352; 10 Missouri 781; 1 Blackstone Com. 87, note. 2. It is not necessary to prove that the defendants wilfully and maliciously trespassed upon the land and cut the timber. It was a defence once to a certain extent, but that extent was repealed in 1833: Revised Laws, 604, § 6, and the repealing clause following § 1; 6 Blackford, 258; 5 Mass. 341. . .

TRUMBULL, J. All the facts stated in the declaration may be true, and yet the defendants below have committed no act that would subject them to this action. . .

1. The declaration, after setting forth the felling of the trees on the land of the plaintiff, alleges that, "by force of the statute in such case made and provided, an action hath accrued," etc. There is no statute giving an action of debt in such a case as that stated. The words of the law (R. S. ch. 104, sec. 1) are: “ Any person who shall cut, fell, box, bore, or destroy, or carry away any black walnut, black, white, yellow or red oak, whitewood, poplar, wild cherry, blue ash, yellow or black locust, chestnut, coffee or sugar tree, or sapling, standing or growing upon land belonging to any other person or persons, without having first obtained permission so to do, from the owner or owners of such lands, shall forfeit and pay for such tree or sapling so cut, felled, boxed, bored or destroyed, the sum of eight dollars." The subsequent part of the same section prescribes a penalty of three dollars for cutting, etc., trees of any other description than those before enumerated. . . .

2. The question of intention or knowledge on the part of the defendants that they were trespassing upon the land of the plaintiffs, as necessary to render them liable to this action, was raised in the court below, has been argued here and will probably arise again upon another trial. It becomes therefore necessary to settle it now. Notwithstanding the statute, a party may still sue in trespass for an injury to his timber in the same manner as if the statute had never been enacted. The object of the statute is to furnish an additional remedy to the owner of the land, and also punish the wrongdoer. To subject a party to such punishment, he must have committed the wrong knowingly and wilfully, or under such circumstances as show him guilty of criminal negligence. It could never have been the intention of the legislature to impose a penalty upon a person, who, supposing in good faith that he was cutting upon his own land after having taken reasonable pains to ascertain its boundaries, should, inadvertently and by mistake, cut trees upon the land of another: Cushing v. Dill, 2 Scam.

461; Batchelder v. Kelly, 10 N. H. 436. For an injury committed under such circumstances, the party is left to his common law remedy by action of trespass.

The judgment of the Circuit Court is reversed, and the cause remanded, with leave to the plaintiff below to amend his declaration. Judgment reversed.

485. MAYE v. YAPPEN

SUPREME COURT OF CALIFORNIA. 1863

23 Cal. 306

APPEAL from the District Court, Eleventh Judicial District, Placer County. The facts are stated in the opinion of the Court.

Tuttle & Fellows, for appellants.

P. L. Edwards and H. O. Beatty, for respondents.

CROCKER, J., delivered the opinion of the Court; COPE, C. J., NORTON, J., Concurring.

and

This is an action to recover damages, in the sum of $2,000, which the plaintiffs allege they sustained, by reason of the acts of the defendants, in entering upon the mining claim of the plaintiffs, and taking away gold and gold-bearing earth of that value. The case was tried by a jury, who found for the plaintiffs damages in the sum of fifty dollars, for which amount judgment was rendered, and the plaintiffs appeal therefrom, and from an order refusing a new trial. . . .

1. It appears that the plaintiffs and defendants are the owners of adjoining mining claims, which are worked by deep under-ground tunnels. The fact that the defendants mined over the dividing line between the claims, and worked out a portion of the mining ground. of the plaintiffs, is not disputed. But they contend that it was not done wilfully or unintentionally, but in ignorance of the locality of the dividing line, between the claims, under the surface; and they were led to work over the line by the representations of one of the plaintiffs, as to its locality, in relation to the tunnel and the place they were working. On the trial, the plaintiffs objected to all evidence showing that the defendants were ignorant of the location of this dividing line; but the Court overruled the objection, and permitted several of the defendants to testify to those facts, and this is assigned as error. The plaintiffs, in this action, were not entitled to vindictive or exemplary damages, but could only recover the damages they had actually sustained by being deprived of the gold or gold-bearing earth taken by the defendants from their mining ground. It follows, that the question whether the defendants acted wilfully and maliciously, or ig norantly and innocently, in digging up and taking away the goldbearing earth, is entirely immaterial. The defendants took property belonging to the plaintiffs, and have thereby injured them to a cer

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