/1/ These doctrines will be referred
to later, so far as necessary.
The other theory is directly opposed to the foregoing. It seems
to be adopted by some of the greatest common law authorities, and
requires serious discussion before it can be set aside in favor
of any third opinion which may be maintained. According to this
view, broadly stated, under the common law a man acts at his
peril. It may be held as a sort of set-off, that he is never
liable for omissions except in consequence of some duty
voluntarily undertaken. But the whole and sufficient ground for
such liabilities as he does incur outside the last class is
supposed to be that he has voluntarily acted, and that damage has
ensued. If the act was voluntary, it is totally immaterial that
the detriment which followed from it was neither intended nor due
to the negligence of the actor.
In order to do justice to this way of looking at the subject, we
must remember that the abolition of the common-law forms of
pleading has not changed the rules of substantive law. Hence,
although pleaders now generally [83] allege intent or negligence,
anything which would formerly have been sufficient to charge a
defendant in trespass is still sufficient, notwithstanding the
fact that the ancient form of action and declaration has
disappeared.
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