As to what was said about their
falling in ipso invito, that is no plea, but he ought to show
that he could not do it in any other way, or that he did all that
was in his power to keep them out."
Forty years later, /1/ the Year Books report Rede, J. as adopting
the argument of Fairfax in the last case. In trespass, he says,
"the intent cannot be construed; but in felony it shall be. As
when a man shoots at butts and kills a man, it is not felony et
il ser come n'avoit l'entent de luy tuer; and so of a tiler on a
house who with a stone kills a man unwittingly, it is not felony.
/2/ But when a man shoots at the butts and wounds a man, though
it is against his will, he shall be called a trespasser against
his intent."
There is a series of later shooting cases, Weaver v. Ward, /3/
Dickenson v. Watson, /4/ and Underwood v. Hewson, /5/ followed by
the Court of Appeals of New York in Castle v. Duryee, /6/ in
which defences to the effect that the damage was done
accidentally and by misfortune, and against the will of the
defendant, were held insufficient.
In the reign of Queen Elizabeth it was held that where a man with
a gun at the door of his house shot at a fowl, and thereby set
fire to his own house and to the house of his neighbor, he was
liable in an action on the case generally, the declaration not
being on the custom of the realm, [88] "viz.
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