Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 3. Strict Liability and Negligence
And Catesby said, Sir, it has been argued that if a man acts whereby injury and damage
are done to another person against his will, even though the act is lawful, nonetheless he shall be
punished if he could by some means have avoided the damage. Sir, to me the truth seems
contrary. As I understand, if a man acts in a lawful fashion, and damage occurs to another against
his will, he will not be punished. Consider the case that I driving my cattle along the highway,
and that you have an acre of land along the highway, and my cattle enter into your land and
destroy your plantings, and I come immediately and chase the cattle from your land, in this case
you will not have an action against me, because the driving of the cattle was lawful, and their
entry into your land was against my will. No more here, because the cutting was lawful and the
falling onto your land was against my will, and therefore the taking back was good and
permissible. And Sir, I put it that if I cut my trees, and a bough fell on a man, and killed him, in
this case I will not be attainted of a felony, because my cutting was permissible, and the falling on
the man was against my will. No more here.
Fairfax. To me it seems the contrary. I say that there is a difference between when a man
acts in a way that entails a felony, and when he acts in a way that entails a trespass, because in the
case that Catesby advances there is no felony, because felony requires malice aforethought, but it
was against his will, such that there was no animo felonico. But if someone cuts his plantings and
a bough fell on a man and injured him, in this case there will be an action of trespass. Also, sir, if
a man shoots at the butts and his bow turns in his hand and kills a man at its own invitation [i.e.,
against the shooter’s will], it is not a felony, as has been said. But if he injures a man by his
shooting, he will have a good action of trespass against him, even if the shooting was lawful, and
the injury to the other was against his will. Also here.
Pigot. To the same idea, I suggest that if I had a mill and the water that comes to my mill
flows past your land and you cut your willows such that against your will they fall in the water
and stop the flow so that I do not have enough water for my mill, in this case I have an action of
trespass, even though the cutting was lawful and the falling was against your will. . . .
Yonge. It seems to me the opposite. In this case you have damnum absque injuria
[damage without legal injury]. In this case you will have no action, because if there is no wrong
[tort] there will be no reason for him to recover damages. So it was here where he went into the
plaintiff’s close to retrieve the thorns that had fallen there: this entry was not wrongful [tortious],
because when he cut the thorns and they fell into the close against his will, nonetheless the
property in the thorns remained in him, and therefore it was lawful for him to remove them from
his close. Notwithstanding that the plaintiff was injured, he has done no wrong [tort].
Brian. To me it seems the opposite. My idea is that when a man acts he is bound to do it
in such a manner that by his act neither prejudice nor damage is done to others. In a case where I
build my house and a timber falls on the house of my neighbor and damages his house, he has a
good action, even though building my house was lawful and the timber fell against my will. Also
if a man assaults me and I cannot avoid him without hitting him, and in my defense I raise my
stick to strike him, and there is someone behind me, and in raising my stick I strike him, in this
case he will have an action against me, even though my raising of my stick was lawful selfdefense
and his injury was against my will. The same is true here.
LITTLETON, J. In my view, if a man is damaged that is reason that he should be
recompensed. To my understanding, the case that Catesby has put is not the law, because if your
cattle comes onto my land and consumes my plantings, then even if you immediately come and
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