1806-8 and 1845. Selwyn's Nisi Prius, 1328. - "Although if a person does an injury by an unavoidable accident, an action does not lie, yet if any blame attaches to him, although he be innocent of any intention to injure, then trespass may be maintained." ... 1808. Chitty's Pleading, 128, 129. - "A person may become an immediate trespasser vi et armis, even in the performance of a lawful act, if in the course of such performance he be guilty of neglect, as if he hurt another by accident," citing 21 H. VII. and Lambert v. Bessey. But "the mind needs not concur in the act that occasions an injury to another, and if the act occasion an immediate injury, trespass is the proper remedy without reference to the intent [citing Weaver v. Ward, Underwood v. Hewson], and where a person accidentally drives a carriage against that of another, the injury is immediate and trespass is the remedy, though the defendant was no otherwise blamable than in driving on the wrong side of the road on a dark night." 1810. Milman v. Dolwell, 2 Camp. 378. - Trespass for cutting away a barge which afterwards sank. Lord Ellenborough held that the cutting away (which was admitted) was a trespass, and that under Not Guilty it could not be shown that the barge was frozen to another which could not be removed separately. "If the necessity was inevitable, and the barges of the third person must otherwise have been destroyed, this might have amounted to a justification." ... 1810. Knapp v. Salsbury, 2 Camp. 500. - Trespass for driving against the plaintiff's horse. An offer to show under "not guilty" that the collision took place " by mere accident and without any default on the part of the defendant," was held to be appropriate only under a plea of justification. "If what happened arose from inevitable accident" is used by Lord Ellenborough as covering the offer. 1823. Wakeman v. Robinson, I Bing. 213. - Trespass for driving against the defendant's horse. Plea, not guilty. The judge did not direct the jury to consider whether the action was occasioned by any negligence or default on the part of the defendant, or was wholly unavoidable. Dallas, C. J.: "If the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie; but upon the facts of the case I should have directed the jury that the plaintiff was entitled to a verdict, because the accident was clearly occasioned by the default of the defendant. .. ... ... I am now called upon to grant a new trial, contrary to the justice of the case, upon the ground that the jury were not called upon to consider whether the accident was unavoidable or occasioned by the default of the defendant. The learned judge who presided would have taken the opinion of the jury on that ground, if he had been requested to do so; " and so new trial refused. [Note how "unavoidable," here as elsewhere before and afterwards, is loosely taken as synonymous with "not occasioned by defendant's default."] ... 1832. Boss v. Litton; Goodman v. Taylor; 5 C. & P. 407, 410. - Trespass for injuries received by the defendant's horse and carriage. Lord Denman held that in trespass the only defence, as to the defendant's conduct, could be "inevitable accident," = "one which the defendant could not prevent," following Knapp v. Salsbury; but this must be pleaded as a justification. 1834. Pearcy v. Walter, 6 C. & plaintiff's horse; plea, not guilty. P. 232. — Trespass for driving against the that an inquiry into whether there was negligence of the plaintiff or of both, or inevitable accident, could not be gone into under the general issue; implying that it could under a plea of excuse. 1837. In Cotterill v. Starkey, 8 C. & P. 691, "inevitable accident" in a case similar to Boss v. Litton was taken as equivalent to "not the fault of the defendant," and also equivalent to absence of negligence: Patteson, J. (Q. B.). 1842. Hall v. Fearnley, 3 Q. B. 919. - Trespass for driving a cart and horse against the plaintiff; plea, not guilty. Wightman, J., "told the jury that the question for them was, whether the injury was occasioned by unavoidable accident or by the defendant's default." Lord Denman, C. J.: "A defence admitting that the accident resulted from an act of the defendant would not have been so provable [under the general issue]." Wightman, J.: "The act of the defendant was prima facie unjustifiable, and required an excuse to be shown. The omission to plead the defence here deprived the defendant of the benefit of it; " and so a new trial. 1849. Sharrod v. R. Co., 4 Exch. at 585. - Parke, B.: "Now the law is well established that whenever the injury done to the plaintiff results from the immediate force of the defendant himself, whether intentionally or not, the plaintiff may bring an action of trespass." [Observe that nothing is said as to possible defences.] 1870. Smith v. R. Co., L. R. 6 C. P. 14. - Blackburn, J.: "... If a man fires a gun across a road where he may reasonably anticipate that persons will be passing, and hits some one, he is guilty of negligence, and liable for the injury he has caused; but if he fires in his own wood, where he cannot reasonably anticipate that any one will be, he is not liable to any one whom he shoots; which shows that what a person may reasonably anticipate is important in considering whether he has been negligent." 1875. Holmes v. Mather, L. R. 10 Exch. 261. - Action for driving a carriage and horses against the plaintiff. After a citation in argument of some of the above cases, Bramwell, B.: "As to the cases cited, most of them are really decisions on the form of action, whether case or trespass. The result of them is this, and it is intelligible enough: if the act that does an injury is an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy), where the act is wrongful, either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reasons, no action is maintainable, though trespass would be the proper form of action if it were maintainable. That is the effect of the decisions." 1891. Stanley v. Powell, [1891] 1 Q. B. D. 86. - Action for firing a gun on a shooting excursion and wounding the plaintiff. The jury found that the defendant had not fired negligently; but it was claimed that trespass nevertheless lay. Denman, J.: "This contention was founded on certain dicta which, until considered with reference to those cases in which they are uttered, seem to support that contention; but no decision was quoted, nor do I think any can be found, which goes so far as to hold that, if A. is injured by a shot from a gun fired at a bird by B. an action of trespass will necessarily lie, even though B. is proved to have fired the gun without negligence and without intending to injure the plaintiff or to shoot in his direction. [After reviewing many of the cases above] It was argued that nevertheless, inasmuch as the plaintiff was injured by a shot from the defendant's gun, that was an injury owing to an act of .. force committed by the defendant, and therefore an action would lie. I am of the opinion that this is not so. If... it is turned into an action of trespass, and the defendant is (as he must be) supposed to have pleaded a plea denying negligence and establishing that the injury was accidental in the sense above explained, the verdict of the jury is equally fatal to the action." American Precedents. — The notable thing here is that three of our best Chief Justices of the last generation had reached the result here indicated as the correct one, and that expressly as a matter of the construction of the English precedents. ... 1835. Vincent v. Stinehour, 7 Vermont, 62. — Williams, C. J.: "The principle of law which is laid down by all the writers upon this subject, and which is gathered from and confirmed by the whole series of reported cases, is that no one can be made responsible, in an action of trespass, for consequences where he could not have prevented those consequences by prudence and care. We have examined this case more particularly as the highly respectable and learned counsel for the plaintiff has urged that the doctrines to the contrary found in the elementary writers are only the opinions of the writers, and not founded on adjudged or reported cases. The result of our examination is, that we think there must be some blame or want of care and prudence to make a man answerable in trespass." .. 1843. Harvey v. Dunlop, Hill & Den. Suppl. (Lalor) 193. - Trespass for wounding the plaintiff's child: the defendant, a child, had thrown a stone which accidentally struck the other child and put out her eye. Nelson, C. J.: “All the cases concede that an injury arising from inevitable accident, or, which in law and reason is the same thing, from an act that ordinary human care and foresight are unable to guard against, is but the misfortune of the sufferer, and lays no foundation for legal responsibility. If not imputable to the neglect of the party by whom it was done, or to his want of caution, an action of trespass does not lie, although the consequences of a voluntary act," citing Bacon's Abr., Weaver v. Ward, Gibbons v. Pepper. 1850. Brown v. Kendall, 6 Cush. 292. Shaw, C. J., after referring to Leame v. Bray, etc.: "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, or 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," citing Wakeman v. Robinson and Davis v. Saunders. ... See, in accord, Center v. Finney, 17 Barb. 94 (1852); Hilliard on Torts, I. c. V., § 9; Greenleaf on Evidence, II., 85; Morris v. Platt, 32 Conn. 73 (1865); Dygert v. Bradley, 8 Wend. 470 (1832). In Cole v. Fisher, II Mass. 137 (1814), Castle v. Duryea, 2 Keyes, 169 (1865), the contrary attitude may be claimed to exist. In Brown v. Collins, 53 Ν. Η. 442 (1873), Doe, J., while appreciating the argument, thinks that Lambert v. Bessey is representative of the general trend. BEFORE THE STATUTE OF FRAUDS, MUST AN AGREEMENT TO STAND SEISED HAVE BEEN IN WRITING? THAT HAT the declaration of a use before the Statute of Frauds need not have been in writing if there was a common-law conveyance, as by feoffment, fine, or recovery, appears to be clear (see Shepp. Touchstone (by Preston), 519); and in 27 Hen. VIII. 8 b, the same year in which the Statute of Uses was enacted, there is a discourse upon uses, in which it is said that the land cannot pass without livery, but the use may by bare words.1 It is asserted by Mr. Washburn (see 2 Wash. R. P. 127-129, 99, 100) and by Mr. Tiedeman (Tiedeman R. P. 2d ed. § 783) that an oral agreement to stand seised was good before the Statute of Frauds; but neither of these authors cites adequate authority for the proposition. It is, of course, to be understood that a technical covenant must have been under seal; and we think that the following discussion will show that the answer which we shall give to the question at the head of this article will depend upon what force and meaning we shall attach to the well-known case of Callard v. Callard. The transaction in Callard v. Callard, Cro. Eliz. 344 (Queen's Bench), was as follows: A father being seised in fee of certain land, in consideration of a marriage of Eustace, his eldest son, said these words, being upon the land : "Eustace, stand forth. I do here, reserving an estate for my own and my wife's life, give thee these my lands, and Barton to thee and thy heirs." It was held that this was a good conveyance; but upon what grounds does not appear. This decision was reversed in the Exchequer Chamber, reported in Moore, 687. But it appears in the report of Moore that in the Queen's Bench (supra) Popham, C. J., held that the consideration of blood raised a use to Eustace without writing; but that the three other judges were of a contrary opinion, and that these latter regarded the transaction as a feoffment with livery being upon the land; and that there was a use to the feoffor and his wife for life, and afterwards to Eustace and his heirs. In the Exchequer Chamber, out of seven judges, five regarded the 1 See further, I Sanders on Uses (5th ed.), 14, 218; 1 Perry on Trusts, § 75, 2d Inst. 675, 676. transaction as not a good conveyance. The grounds stated in this report (Moore) are that there was no feoffment executed, because the intent was repugnant to law, that is, to pass an estate to Eustace, reserving a particular estate to himself and his wife; and that a use it could not be, because the purpose was not to raise a use without an estate executed, but by an estate executed which did not take effect; and this report states that they all agreed that if this were a use, yet it would not arise upon natural affection without a deed. In the report of this case in Popham, 47 (there spelt Collard v. Collard), it was said by Gawdy, J., of the Queen's Bench (see pp. 47, 48), that "by a bare word an use cannot be raised, as appeareth in diverse reports," citing Mich. 12 and 13 Eliz., which we take to be the case of Page v. Moulton, cited infra. But then Gawdy, J., added (p. 48): “But to say generally that an use cannot be raised or charged upon a perfect contract by words upon good consideration cannot be law." And Gawdy, J., goes on to say (p. 48) that it is to be considered what was the law before the Statute of Uses; and that a use was raised before that statute by a grant of land for money, which is a bargain and sale, and that a grant of land made in consideration of the marriage of the grantor's child is as valuable as a grant of it for money, and more valuable, and that at the common law there was no difference between these; and that the use by the contract was transferred according to the bargain in each case; that because of the Statute of Enrolments, which requires a bargain and sale to be by deed indented and enrolled, it appears that before that statute the use would have been passed by bare words; that that statute applies to bargain and sale only; hence, that other cases are as they were before the Statute of Enrolments, and that the Statute of Uses has made no change in this particular. But Gawdy, J., repeats that every slight or accidental speech shall not be enough to raise a use; but that if upon a statement by a man of what he will give upon the marriage of his child, the marriage shall occur, and that in consideration thereof the young people shall have such land, and for such an estate, then a use shall be raised, and shall pass accordingly to the parties; and Fennor, J., agreed to this. Popham, C. J. (p. 49), also said, that by Baynton's Case, 6 and 7 Eliz., it is admitted that a use was raised at common law by bargain and sale by parol; for otherwise to what purpose was the Statute of Enrolments? And that by the same case it is also admitted now to pass |