/2/
Next comes the argument from authority. I will begin with an
early and important case. /3/ It was trespass quare clausum. The
defendant pleaded that he owned adjoining land, upon which was a
thorn hedge; that he cut the thorns, and that they, against his
will (ipso invito), fell on the plaintiff's land, and the
defendant went quickly upon the same, and took them, which was
the trespass complained of. And on demurrer judgment was given
for the plaintiff. The plaintiff's counsel put cases which have
been often repeated. One of them, Fairfax, said: "There is a
diversity between an act resulting in a felony, and one resulting
in a trespass .... If one is cutting trees, and the boughs fall
on a man and wound him, in this case he shall have an action of
trespass, &c., and also, sir, if one is shooting at butts, and
his bow shakes in his hands, and kills a man, ipso invito, it is
no felony, as has been said, [86] &c.; but if he wounds one by
shooting, he shall have a good action of trespass against him,
and yet the shooting was lawful, &c., and the wrong which the
other receives was against his will, &c.; and so here, &c."
Brian, another counsel, states the whole doctrine, and uses
equally familiar illustrations. "When one does a thing, he is
bound to do it in such a way that by his act no prejudice or
damage shall be done to &c.
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