| 1466.020 |
1466 |
Common Pleas |
Trespass for breaking close, trampling grass and grazing |
Tuer pur misadventure |
Catesby, John Sjt
Fairfax, Guy Sjt
Catesby, John Sjt (mentioned)
Pygot, Richard Sjt Pigot
Yonge, Thomas Sjt
Bryan, Thomas Sjt
Littleton, Thomas JCP
Catesby, John Sjt (mentioned)
Choke, Richard JCP |
(Hulle) |
(Henry) |
|
|
Fitzherbert Trespas 110
Brooke Trespas 310, Corone 147 (not 148) |
variant report 1466.024bkr = Mich. 6 Edw. 4, Baker & Milsom 327-329
21 Hen. 7, fol. 28
7 Hen. 7, fol. 1 (twice)
2 Hen. 4, fol. 25
22 Edw. 3, Lib. Ass. pl. 56
12 Hen. 8, fol. 3
13 Hen. 8, fol. 18 (twice)
20 Edw. 4, fol. 10
22 Hen. 6, fol. 41
13 Hen. 4, fol. 19
22 Edw. 4, fol. 8
27 Edw. 3, Lib. Ass. pl. 34
40 Edw. 3, fol. 6 |
|
| Un home port briefe de Trespas quare vi & armis clausum fregit, &c. & herbam suam pedibus |
67 |
Plaintiff brought a writ of Trepass vi et armis for breaking close and trampling grass, supposing the trespass in 5 acres (of meadow and 6 acres of land).
Defendant pleaded as to coming (and breaking close) in the 5 acres of meadow), 'not guilty', and as to trespass in the 6 acres (of land) defendant pleaded that defendant himself had an acre of land on which a thorn hedge (un Hay de thornes) was growing, which adjoined the (plaintiff's) 6 acres, that defendant at the time of the supposed trespass came and cut the thorns, and they fell, against his will ('ipso invito') on the plaintiff's acres, that defendant came immediately (freshment) onto the (plaintiff's) acre and took them (the thorns), which was the same trespass of which plaintiff had conceived his action.
Plaintiff demurred.
This was well argued.
It was adjourned.
Sjt Catesby argued that defendant would not be punished for wrong and damage done against defendant's will.
Sjt Fairfax, Sjt Pygot, Sjt Bryan, Littleton JCP and Choke JCP all argued for plaintiff's position that defendant's plea was not good.
(The record showed that judgment on the demurrer was given for plaintiff, and that defendant brought a writ of Error, and that plaintiff released all the damages in respect of this part of the trespass.
The outcome of the writ of Error is not known, but presumably it was withdrawn in the compromise.) |
conculcando consumpsit, supposant le trespas in v. acres,
& le defendant dit quant a venir, &c. & le trespas en les v. acres de rien culpable, & quant a le trespas en le v. acres action ne doit le plaintiff avera, car il dit que il mesme ad un acre de terre sur quel un Hay (= hedge) de thornes est crescentes, le quel est ajoint a le dit vi. acres, & le defendant al temps de trespas suppose vient, & coupe le thornes, & ils 'ipso invito (= against his will) cecidere (= fell)' en le dit acre del plaintiff, & le defendant vient freshment en le dit cre, &c. & eux prist, le quel est meme le transgressioun de quel il ad conceive cest action, &c.
& sur cest ils demurrant, &c.
& fuit bien argue,
& fuerent ajurnes
Et ore Sjt Catesby dit: sir il ad estre dit que si home fait un chose nient obstant que il soit loial, & pur cel chose tort & damage est fait a un auter encounter son volunte, uncore s' il per ascun voy puissoit avera eschew cel damage, &c. donques il serra punis per cel chose, &c. sir a ceo moy semble le contrary, & come jeo entende, si un home fait un chose loial, & pur cel dammage devient a un auter encounter son volunte, il ne serra mye punish, &c.; Sicome en case jeo pose que jeo enchase mes averes per le haut chimin, & vous aves un acre de terre gisant pur le chimin, & mes avers entre en vostre terre & depascent vostre herbes, & jeo veigne freshment, & eux chases hors de vostre terre, en cest case vous n' aves action vers moy, pur ceo que l' enchasement fuit loial, & lour entre en le terre fuit encounter ma volunte, pur ceo il n' avera action vers moy, &c. nient pluis icy, car le couper fuit loial, & le chiere en vostre terre fuit encounter ma volunte, donques cel reprisel fuit bon & congeable, &c.; Et sir jeo pose que si jeo couper mes arbres, & le bowes (= boughs) chient sur un home, & luy occist (marginal heading: Tuer per misadventure), en ceo case jeo ne serra atteint come de felony, car mon couper fuit congeable, & le chiere sur le home fuit encounter ma volunte, &c. nient pluis icy, &c.
Sjt Fairfax: Moy semble le contrary, & jeo die que il est diversitie lou un home fait chose en quel ensueroit felony, & lou trespas ensueroit, car en le case que Sjt Catesby ad mise, il ne fuit my felonous, car felony est de malice prepence, & quant il fuit encounter son volunte, ceo ne fuit ' animo felonico', &c. mes si un couper ces herbes (should be arbres), & les bowes chient sur un home, & luy ledent, en ceo case il avera action de trespas, &c. & auxi sir si un home sagitte al pricks, & son arke swacset en sa mein, & occist un home 'ipso invito', ceo n' est my felony, come ad estre dit, &c., mes s' il leda un home per son sagitacion, il aver bon action de trespas envers luy, & uncore le sagitation fuit loial, &c. & le tort que l' auter avoit fuit encounter son volunte, &c. issint icy, &c.
Sjt Pygot (a mesme l' entent): & jeo pose que jay un molin (= mill), & le ewe que vient a mon molin de currer (= runs) per vostre terre, & vous aves salowes ou welowes (= willows) crescants per le ewe, & vous coupes vostre salowes (= willows), & ils encounter vostre volunte chient (= fell) en le ewe, & estoppent le ewe, issint que jeo nay sufficient ewe per mon molin, en cest case jeo avera action de transgressioun, & uncore le couper fuit loial, & le chier fuit encounter vostre volunte, &c.; Auxi si un home ad un stagne (= pond, pool) deins son manor, & il demist le ewe a decurrere hors (= let the water run out) de le stagne pur prendre les pisses (= fish), & ewe surround (= flooded) ma terre, &c. jeo avera bon action, &c. & uncore vostre fait fuit loial, &c.
Sjt Yonge: Moy semble le contrary, & en tiel case lou home 'ad dampnum absque injuria' (Latin legal tag: damage without injury), en cest case il navera action, car s' il n' ad tort il n' est reason que il recover damages, issint fuit il icy quant il venoit en son close pur prendre les thornes queux fueront chies eins, ceo entre ne fuit torcious, car quant il coupe eux, & ils chieront en son close, 'ipso invito' (against his will), touts foites le property d' eux fuit en luy, donques il fuit loial pur luy de prendre eux hors de son close, donques nient obstant que il avoit damages, il avoit nul tort, &c.
Sjt Bryan: Moy semble le contrarie, & a ma entent quant ascun home fait un chose il est tenus de faire en tiel maner que per son fait nul prejudice ne damage soit fait as auters, &c.; Sicome en case que jeo leve meason, & quant le timber est en rering, un peace de timber chief sur le meason mon vicin, & debruse sa meason, il avera bon accion, &c. uncore le lever del mease fuit loial, & le timber chief 'me invito' (= against my will), &c.; Et auxi si un home fait assault sur moy, & jeo ne poy luy avoidre, mes que il voiet moy bater, & jeo en defence de moy meme leve mon baston (= staff, stick) pur luy percuter (= strike), & un est a mon dorse (= back), & en levant de mon baston jeo luy lede (= hurt), en ceo case il avera action vers moy, uncore mon levant de mon baston fuit loyal pur defense moy meme, & auxy jeo luy lede 'me invito' (= against my will), &c., issint icy
Littleton JCP: A meme l' entent, & si un home ad damage il est reason que il soit recompence, & a ma entent le case que Sjt Catesby ad mis n' est my ley, car si vostre avers veignant sur ma terre, & consume mes herbs, nient obstant que vous venes freshment, & eux chase hors, il covient vous de faire amendes, pur ceo que vostre avers ont fait, soit il pluis ou meins, &c.; Mes si avers escapent en le terre d' un home, le Seignior ne poit eux distrein pur son rent, & auxy si mes avers straient en ascun Seigniorie, le Seignior ne poet prendre eux per son rent, pur ceo que quant un Seignior distrein pur son rent, il est a tenir le distreint tanque son rent soit a luy paie, & issint il ne poet en les cases avantdits, car si jeo voile offre sufficient amendes, jeo reavera mes bestes, &c. & en briefe de Rescous des avers prises pur damage fesans, il est bon ple pur le defendant adire que il tendist a le plaintiff sufficient amendes, &c. & sir si cest serroit ley que il purroit enter & prend les thornes, pur meme le reason s' il coup un graund arbre il purroit venir ove ses charrets & chivalx pur carier les arbres hors, le quel n' est my reason, car peraventure il ad blees ou auters herbes crescents, &c. nient pluis icy, car le ley est tout un en greindre choses & meindre, &c. & issint solonque le quantity de transgressioun il covient que il eit amendes, &c.
Choke JCP: Moy semble a meme l' entent, car lou le principal chose ne fuit my loyal, donques cel chose que depende sur cel ne fuit loyal, car quant il coupe les thornes, & ils chiete en ma terre, cel chiere ne fuit my loyal donques son vener pur prendre eux hors ne fuit my loial, & a cest que est dit que ils chier eins 'ipso invito', ceo n' est my plee, mes il covient adire que il ne purroit en nul auter maner faire, ou que il fist tout cest que fuit en luy per eux saver dehors, &c., ou auterment il respondera des damages, &c.; Et sir si les thornes ou un graund arbre usent chie en sa terre per le sufflacion (= blowing) de vent, en cest case il purroit aver vener eins pur eux prendre, pur ceo que le chiere ne fuit vostre fait, eins per le vent, &c. |
Case of Thorns, excerpted in many U.S. Torts casebooks
Sjt Fairfax and Sjt Pygot and Sjt Bryan and Littleton JCP and Choke JCP argued for plaintiff's position; Sjt Catesby and Sjt Yonge argued for defendant's position
Sjt Catesby: Sir, it has been said that if one (you) do a thing, notwithstanding that it be lawul, and by (doing) this thing wrong (tort) and damage is done to another against my (your) will, yet if he (you) by any way (voy) could have avoided (eschew) this damage, etc, then he (you) will be punished for (doing) this thing, etc., Sir, it seems to me the contrary, and as I understand, if one (you) do a lawful thing, and by (doing) this (thing) damage befalls another against his (your) will, he (you) will not be punished, etc.; as in case I put that I drive (enchase) my animals on the high road, and you have an acre of land lying alongside the road, and my animals enter onto your land and eat your grass, and I come immediately and drive (chases) them (my animals) off your land, in this case you will not have an action against me, because the (my) driving (of my animals) was lawful, and their entry inot the land was against my will, so he will not have an action against me, etc., no more here, because the cutting (of the thorns) was lawful, and their falling on your land was against my will, so this retaking (of the thorns by me) was good and permissible (congeable), etc.; and Sir, I put that if I cut my trees, and the boughs fall on another and kill him (marginal heading: slaying by misadventure), in this case I will not be attaint as of a felony, because my cutting (of my trees) was permissible (congeable), and the falling on the victim (home) was against my will, etc. no more here, etc.
Sjt Fairfax: there is a distinction where one does a thing from which a felony would ensue, and (does a thing) from which a trespass would ensue, because in the case that Sjt Catesby has put, it (the death by falling boughs) was not felonious, because felony is malice aforethought (malice prepence), and when it was against his will, this was not 'felonious animus' (animo felonico), etc., but if one cut my trees (herbes, should be bowes), and boughs (bowes) fell on another, and hurt him (ledent), in this case he will have an action of Trespass, etc., and also, Sir, if one shoot (arrows) at targets, and his bow (arke) trembles (swacset) in his hand (mein), and kills another against his will (ipso invito), this is no felony, as has been said, etc., but if he hurts another by his shooting (of arrows), he will have a good action of Trespass against me, and yet the shooting (of arrows) was lawful, etc., and the wrong (tort) that the other suffered was against his (the shooter's) will, etc., so here, etc.
Sjt Pygot: I put that I have a mill, and the water that come to my mill runs past your land, and you have willows (salowes ou welowes) growing by the water, and you cut you willows (salowes), and against your will they (the cut willows) fall into the water, and stop (running of) the water, so that I do not have sufficient water for my mill, in this case I will have an action of Trespass, and yet the cutting was lawful, and the falling (into the water) was against your will, etc.; also if one had a pond (stagne) within his manor, and he let the water run out of the ponnd to take the fish, and water floods (surround) my land, etc., I will have a good action, etc., and yet your act was lawful, etc.
Sjt Yonge: in such a case where one had 'damage without injury (dampnum absque injuria), in this case he will not have an action, because if there was no wrong (tort) then there was no reaons that he should recover damages, so it is here when he (defendant) comes into his (plaintiff's) close to take the thorns that had fallen within it, this entry was not wrongful (torcious), because when he (defendant) cut them (the thorns), and they fell in his (plaintiff's) close, against his (defendant's) will (ipso invito), always the property of them (the thorns) was in him (defendant), so it was lawful for him (defendant) to take them (the thorns) out of his (plaintiff's) close, so notwithstanding that he (plaintiff) suffered damages, he had no wrong, etc.
Sjt Bryan: when anyone does a thing he is held to do it in such a manner that by his action no prejudice nor damage be done to others (duty of care), etc.; as in case I build a house (leve meason), and when the timber is being raised (en rering), a piece (peace) of timber falls on my neighbour's house (mon vicin), and breaks his house, he will have a good action (against me), yet the building (lever) of the house was lawful, and the timber fell against my will (me invito), etc.; and also if one assaults me, and I cannot avoid him, but he wants to beat me, and I in self-defence (en defence de moy meme) raise my staff (leve mon baston) to strike him (percuter), and one is behind me (a mon dorse), and in raising my stuff I hurt (lede) him, in this case he (the one behind me) will have an action against me, yet my raising of my staff (baston) was lawful for my self-defence (defense moy meme), and also I hurt him unwillingly ('me invito'), etc., and so here
Littleton JCP: if one is damaged, it is reasonable that he be compensated (recompence), and to my thinking the case that Sjt Catesby has put is not law, because if your animals come onto my land, and eat my grass, notwithstanding that you come immediately (freshment) and chase them out, you ought to make satisfaction (amendes), because your animals (avers) have done this, be it more (damage) or less, etc.; but if animals (avers) escape onto the land of one, the lord cannot distrain them for his rent, and also if my animals (avers) stray into any lordship, the lord cannot take them for his rent, because when a lord distrain for his rent, he is held to distrain until his rent be paid to him, and so he (the lord) cannot (take the animals) in these cases, because if I (whose animals they are) want to offer sufficient satisfaction (amendes), I will have back my animals (bestes), etc., and in a writ of Rescue of animals taken for damage feasant, it is a good plea for the defendant to plead (adire) that he tendered to the plaintiff sufficient satisfaction (amendes), etc., and Sir, if this be law that I could enter and take the thorns, then for the same reason if I cut down a large tree I could come with wagons and horses to carry the tree out, which is unreasonable, because perhaps he (on whose land the tree fell) has grain or other grass growing, etc., and no more here, because the law is the same in larger and smaller things, etc., and so according to the quantity of the trespass he (plaintiff) ought to have satisfaction (amendes), etc.
Choke JCP: where the principal thing was not lawful, then this thing that depends on that (principal thing) was not lawful, because when he (defendant) cut the thorns, and they fell on my land, this falling was not lawful, so his (defendant's) coming (onto plaintiff's land) to take them (the thorns) out was not lawful, and to what is said that they (the thorns) fell in (to plaintiff's land) against defendant's will ('ipso invito'), this is no plea, but he (defendant) ought to plead that he (defendant) could not have done this (cutting of thorns) in any other manner, or that he (defendant) did all that was in him to keep them (the thorns) outside (plaintiff's land), etc. (negligence standard?), or otherwise he (defendant) will answer for the damages, etc.; and Sir, if the thorns or a large tree had fallen into his (plaintiff's) land by the blowing of the wind (sufflacion de vent), in this case he could have come in (to plaintiff's land) to take them, because the falling was not your (defendant's) act, but (was caused) by the wind, etc.
similar case put in 1378.016am = Mich. 2 Ric. 2, pl. 7, Ames 69-70 |
| Bodleian MS Lat. misc. C. 55, fol. 6 variant report) |
|
1466.020 = Mich. 6 Edw. 4, pl. 18, fol. 7a-8a
Brooke Corone 147, fol. 185v: Trespass, Sjt Catesby, if I cut my tree, and the branches fall (chia) on one, and kill him against my will, this is not felony, which Sjt Fairfax agreed, because it is not of malice aforethought (prepense), nor felonious animus (animo felonico), and also by him (Sjt Fairfax? Sjt Catesby), if one shoots arrows (sagitta) at targets (al prickes), and his bow trembles (suarfe), and he kills another (home), this is not felony, and Sjt Pygot to the same thinking, see the whole case under the title Trespas |
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C.H.S. Fifoot, History and Sources of the Common Law (London, Stevens & Sons 1949), pp. 195-197 (The Thorns Case)
A.K.R. Kiralfy, A Source Book of English Law (Sweet & Maxwell 1957), pp. 130-132 (Hull v. Orynge, Case of Thorns) (record translated at pp. 128-130
J.H. Baker & S.F.C. Milsom, Sources of English Legal History (London, Butterworths 1986), pp. 327-331 (Hulle v. Orynge, The Case of Thorns) |
| CP 40/815, m. 340, translated in Kiralfy, Sourcebook, pp. 128-130 |
0 |
Hulle, Henry |
Orynge, Richard |
2006-07-29 |
Vi Et Armis
Vi & Armis
Force And Arms
Close
Breaking Close
Clausum Fregit
Grass (herbes)
Trampling
Grazing
Pedibus
Conculcando
Consumpsit
Consumption
Supposition
Acre
Coming
Not Guilty
Rien Culpable
Action
Hedge (Hay)
Thorn
Thorn Hedge
Growing (crescentes)
Adjoining
Time
Cutting (couper)
Ipso Invito
Against His Will (ipso invito)
Falling (cecidere)
Immediacy (freshment)
At Once (freshment)
Taking (prist)
Conception
Conception Of Action
Demurrer
Argument
Well Argued
Adjournment
Notwithstanding
Lawfulness (loial)
Wrong (tort)
Damage
Against His Will
Will (volunte)
Way (voy)
Avoidance (eschew)
Punishment
Seeming
Contrary
Understanding (entende)
Doing A Thing
Befalling (devient)
Case
Driving (enchase)
Highway
High Road (haut chimin)
Laying (gisant)
Alongside (per)
Road (chimin)
Entry
Uprooting (depascent)
Retaking (reprisel)
Good Retaking
Permission (congeable)
Permissible Retaking
Tree (arbres)
Bough (bowes)
Killing (occist)
Homicide
Attaint
Felony
Attaint Of Felony
Distinction (diversitie)
Ensue
Felonious
Malice
Aforethought
Malice Aforethought
Malice Prepence
Malice Prepense
Animus
Animo
Animo Felonico
Felonious Intent
(Mens Rea)
Harm (ledent)
Hurt (ledent)
Shooting (sagitter)
Shooting Arrows
Butt (pricks)
Target (pricks)
Wavering (swacset)
Trembling (swacset)
Bow (arke)
Hand (mein)
Mill (molin)
Water (ewe)
Watercourse
River (ewe)
Running (currant)
Williow (salowe, welowes)
Stopping (estoppent)
Sufficiency
Insufficiency
Pond (stagne)
Pool (stagne)
Manor
Letting (demist)
Running Out
Fish (pisses)
Flood (surround)
Good Action
Act (fait)
Lawful Act
Damnum Absque Injuria
Damage Without Injury
Injury
Reason
Reasonableness
Unreasonable
Recovery
Damages
Tortious
Wrongful Entry
Property
Thinking (entent)
Prejudice
(Duty Of Care)
House
Building (leve)
Building A House
Timber
Raising (rering)
Rearing
Piece (peace)
Neighbour (vicin)
Breaking House
Assault
Avoidance
Beating (bater)
Battery (bater)
Defence
Self-Defence
Self Defence
Staff (baston)
Striking (percuter)
Back (dorse)
Behind (dorse)
Recompense
Compensation (recompence)
Satisfaction (amendes)
Amends
More Or Less
Escape
Lord
Distraint
Rent
Straying
Estray
Lordship (Seigniorie)
Payment
Offer
Sufficiency
Sufficient Amends
Having Back
Rescue
Writ Of Rescue
Damage Feasant
Tender
Large Tree
Wagon (charrets)
Carrying
Perhaps
Grain (blees)
Quantity
Quantity Of Trespass
Principal
Principal Thing
Dependent
Saving
Answering
Render
Wind
Strength Of Wind
Blowing (sufflacion) |
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