whom it hurts, he who was the first actor and turned out the beaft is anfwerable in trefpafs vi et armis for the injury done to C.-But fuppofe the death of a man enfues from turning out fuch a wild beast by the owner, who knows it to be mifchievous, the owner of the beaft is guilty of murder, Rex versus Huggins, 2 Ld. Raym. 1583.-If a man doth an unlawful act, he 12 Mod. 639fhall be anfwerable for the confequences of it. 1 Ld. Raym. 480. per Holt Chief Justice, 5 Mod. 427. S. C, and S. P.

I fhall conclude with what the Lord Chief Juftice Wilmot, and the court faid in the cafe of Slater verfus Baker and Stapleton, 1 Wilfon 362. where it was objected that the defendants ought to have been charged as trefpaffers vi et armis, and not as tref paffers upon the cafe; the court faid, "That the plaintiff in that

cafe ought to receive a fatisfaction, feemed to be admitted, "fo we will not look with eagle's eyes to see whether the evi"dence applies exactly or not to the cafe, when we can see the plaintiff has obtained a verdict for fuch damages as he de"ferves, but we will eftablish fuch verdict if poffible:" fo I am of opinion the plaintiff ought to have judgment.

Blackflone Justice-I am of a different opinion. I take it here is no verdict; the declaration and fpecial cafe are stated for the opinion of the court, whether the facts in the cafe amount to an affault and battery vi et armis by the defendant upon the plaintiff?

The declaration alleges that the defendant threw, caft and toft a lighted fquib against the plaintiff, and ftruck him on the face therewith, whereby he loft his eye; this is laid as an immediate injury done by defendant to the plaintiff, which is the gift of this action of affault and battery; for if the injury received from the act of the defendant was not immediate, but a confequence, trefpafs vi et armis will not lie, but it must be an action on the cafe; and my Lord Raymond in the cafe of Reynolds verfus Clarke, 2 Ld. Raym. 1402. puts the difference, where he fays, "The diftinction in law is, where the immediate act "itfelf occafions a prejudice or is an injury to the plaintiff's "perfon, house, land, &c. and where the act itself is not an 1 Stra. 634 "injury, but a confequence from that act is prejudicial to the 8 Mod. 275. "plaintiff's perfon, houfe, land, &c. In the firft cafe trefpafs 1114. "vi et armas will lie; in the laft it will not, but the plaintiff's 3 Burro. "proper remedy is by action on the cafe." And this dif- 1559. tinction runs through all the cafes which have been cited.

The lawfulness or unlawfulness of an act is not the criterion between these two actions, for a man may become an immediate trespasser

2 Burro.

trefpaffer vi et armis by doing a lawful act; as if a man in doing an act lawful in itself, hurts another by accident, misfortune, and against the will of the actor, yet he fhall be anfwerable in trefpals vi et armis for immediate injury done; unless the injury was inevitable, 27 Hen. 7. 28. a. 1 Stra. 596. and many other cafes in the books to this purpose.. Trefpals on the cafe will lie for doing an unlawful act, if the damage fuflained thereby be not immediate but confequential, 11 Mod. 108. The first act in the prefent cafe (I allow) was unlawful; but the fquib by the firft act did not ftrike the plaintiff, the first act was compleat when it lay on Yate's ftall, afterwards Willis a bye-stander threw it across the market houfe, it fell on the fall of another man who threw it to another part of the market-house and struck the plaintiff therewith and put out his eye. Willis who took up the fquib and threw it across the market-houfe is not answerable in trefpafs vi et armis, for he did that act to prevent injury to himself, and did no harm to any body. Willis and Yates gave the fquib two new directions, acting as free agents, not by the inftigation, command, requeft, or as fervants of the defendant, but in defence of their perfons, fo the injury which happened to the plaintiff was the confequence of, and not done immediately by the firft act of the defendant.

It is faid the firft act was not compleat until the explosion of the fquib; I admit the fquib had not power to do mischief until the explofion; but it doth not follow from thence that the first act was not compleat, at the inftant the fquib received a new direction from a fecond act. Suppofe feveral perfons are playing at foot-ball, which is toffed by many, and at last breaks win. dows: trefpafs vi et armis will only lie againft the man who ftruck it against the windows. The throwing the fquib against Yate's ftall was the only act the defendant did.

In the cafe of Slater verfus Baker and Stapleton, there was a compleat verdict, but the prefent cafe is referved for the opinion of the court; and although the court in that cafe faid they would not look with eagle's eyes to fee whether the evidence applied exactly or not when the plaintiff had obtained a juft verdict; yet there being no compleat verdict in the prefent cafe, the. court will not, like another fort of birds, fhut their eyes against the light.

Upon the whole I am of opinion that trespass vi et armis doth not lie in this cafe, because I think the injury done to the plaintiff was not immediate, but was a confequential damage; and therefore the proper action upon the facts stated, is trespass upon the cafe.

Gould

Gould Juftice-I differ with my Brother Blackflone, but with the utmost respect to his fentiments. I think that neither Willis nor Ryall are liable to an action in this cafe; if that be fo, and this action will not lie against the defendant Shepherd who did the first act, which was unlawful, the plaintiff who has been greatly injured will be without remedy. The damage done did inftantly arife by and from the act of the defendant: Willis and Ryall in defence of themselves and their goods, being in a ftate of fear, without power of recollection, inftantly toffed and threw the fquib away from themfelves, what they did was inevitable, as it feemeth to me. Suppofe a burning fquib thrown into a coach paffing along the freet, and one of the perfons therein throws it out, and the like misfortune as this happens; furely the perfon throwing the fquib out of the coach might juftify or excufe himself by pleading; though this is not fo ftrong a cafe I think as the prefent. The defendant is the only wrong doer; his act put Willis and Ryall under an inevitable neceffity of acting as they did, fo neither of them is liable to an action: upon the whole I am of opinion judgment must be for the plaintiff.

Lord Chief Juftice De Grey-The diftinction between actions of trefpafs on the cafe, and trefpafs vi et armis fhould be moft carefully and precifely obferved, otherwife we fhall introduce much confufion and uncertainty; this is that kind of injury where the diftinction is very nice. It trikes me thus; trefpafs vi et armis lies against the perfon from whom an injury is received by force. So the question is, whether this perfonal injury was received by the plaintiff by force from the defendant? Or whether the injury was received from, or refulting from a new force of

another?

The real or true queftion (I think) is not whether the first act of throwing the fquib by the defendant was lawful or not; for I fee, that in doing a lawful act, trefpafs vi et armis will, in fome cafes, lie against the actor; and yet there are cafes where trefpafs vi et armis will not lie against a person for doing an unlawful act; legal acts may become trefpaffes vi et armis, by accident or inadvertency. If a man cuts his own thorns, which by accident or through his inadvertency fall upon his neighbour's ground, his going upon that ground to take them away is a trefpafs vi et armis, becaufe not inevitable. So if one in fhooting at a mark wounds or hurts another by mere accident; fo if I aim a blow at one and by accident ftrike another, trefpafs vi et armis lies. And in fome cafes where the act feems to be totally inevitable, you cannot plead a juftification or excufe, as in Gibbons verfus Pepper, 4 Mod. 404. In affault and battery, the "defendant pleaded that he was riding on a horfe in the high

3

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z Ven. 295.

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way, and that on a fudden fright the horse started and run 66 upon the plaintiff, who continued in the way after he was "called to go out, which was the fame affault: to this plea "the plaintiff demurred; and it was moved for the defendant, "that what he had pleaded was a fufficient excufe; for it was no neglect in him, and the mifchief was inevitable; but it was anfwered, that the battery was not answered, that de"fendant fhould have pleaded the general iffue, for if the horse ran away against his will, he would not have been found guilty, because it cannot be faid with any colour of reason to "be a battery in the rider. The plaintiff had judgment."

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For doing an unlawful act, as by laying a log in the highway whereby another perfon is hurt, it is a nuifance, for which trefpafs vi et armis will not lie, but trefpafs upon the cafe; whether the injury occafioned by the act be immediate and direct or not, is the criterion, and not whether the act be unlawful or not; if the injury be immediate and direct, it is trespass vi et armis, it confequential, it will be trespass on the cafe.

"If an action unlawful in itself be done deliberately, with "intention of mischief or great bodily harm to particulars, or "of mischief indifcriminately, fall where it may, and death enfue "against or befide the original intention of the party, it will be "murder." Fofter 261. So where a blow, intended against A. with a malicious murderous intention, lights on B. and kills him, it is murder; although the blow was not intended at B.

But to return to the prefent cafe of a civil action; I think it was admitted upon the argument of this cafe at the bar, that if a man turns a wild ox loose amongst people not with-any intent to hurt any one, and he gores a man, trespass vi et armis lies.

The throwing the fquib by the defendant was an unlawful act at common law, the fquib had a natural power and tendency to do mischief indifcriminately; but what mifchief, or where it would fall, none could know; the fault egreditur è perfona of him who threw the fquib, it would naturally produce a defence to be made by every perfon in danger of being hurt thereby, and no line can be drawn as to the mifchief likely to happen to any person in fuch danger; the two perfons Willis and Ryall, did not act with, or in combination with the defendant, and their removal of the fquib for fear of danger to themselves feems to me to be a conti, nuation of the first act of the defendant until the explosion of the fquib; no man contracts guilt in defending himself; the second and third man were not guilty of any trefpafs, but all the injury

was

was done by the first act of the defendant; here I lay the ftrefs, and here I differ with my Brother Blackftone; for I conceive all the facts of throwing the fquib must be confidered as one fingle act, namely the act of the defendant; the fame as if it had been a cracker made with gunpowder which had bounded and rebounded again and again before it had ftruck out the plaintiff's eye. I am of opinion that judgment muft be for the plaintiff, and the poftea was accordingly delivered to him, by the opinion of three judges against one.

A

Nota. The Lord Chief Juftice cited the register 95. a. writ of trefpafs de flagno fracto per quod inundavit vivarium querentis; and 95. b. de bladis inundatis, &c. and 108. b. de fimo et alijs fæditatibus pofitis juxtà parietes querentis, per quod parietes. prædici putridi devenerunt, et alia enormia, &c. as fomething like

this cafe.

John Jackfon verfus Harriot Ford, spinfter.

THE plaintiff declared in an action upon the cafe, upon Affumpfit by feveral promifes against the defendant, by the name of Jackfon verHarrict Ford fpinfter; to which declaration a plea in bar was Ford. pleaded in the following words, viz.

fus Harriot

And the faid

And the faid Ann White who is fued by the name of Harriot Plea begins Ford, who is within the age of twenty-one years, by James thus, viz. Ford her next friend and guardian by the court here fpecially Ann White, admitted, comes and defends the wrong and injury when and fo &c. forth, and fays, that the faid John Jackfon ought not to have his aforefaid action thereof maintained against her, because the fays that the faid Ann White, at the feveral times of the making of the said several promifes and undertakings in the faid declaration mentioned, and each of them was within the age of twentyone years, (to wit) of the age of nineteen years and no more, that is to fay at Westminster aforefaid; and this fhe is ready to verify: wherefore the prays judgment if the faid John Jackson ought to have his aforefaid action thereof maintained against her and fo forth.

Thomas Walker.

And the faid John Jackson as to the plea of the faid Harriot Demarrer. Ford by her above pleaded in bar fays, that the faid plea and the matters therein contained, are infufficient in law to bar the faid John from having his aforefaid action thereof maintained against her the faid Harriot Ford: to which faid plea in manner and form as the fame is above made and fet forth, he the faid

John