butts for a trial of skill with the bow and arrow accidentally wounded a man, it was holden that he was responsible in damages, though he was doing an act lawful in itself, and had chargeable for injuries resulting to the plaintiff by reason of the escape of his (the defendant's) horse, which was left unattended in the public streets. These are cases where the defendants inflicted injury upon the plaintiff, by reason of carelessness on their part, and the books are full of similar cases, which will be referred to and discussed under their proper heads. There are a class of acts that result from direct force employed by a party, where the motive and intention with which they are done is controlling as to liability. Thus if a person inflicts a personal injury upon another in necessary defense of himself or his property, no liability exists, however severe the injury, if it did not exceed the limit necessary to secure protection to himself and property. Hazel v. Clark, 3 Har. (Del.) 22; Paige v. Smith, 13 Vt. 251. So, if a person unlawfully takes the property of another, the owner may recapture it and may use as much force as is necessary to do so. Alderson v. Waisteil, 1 C. & K. (Vt.) 358. So, if a person attempts unlawfully to enter upon the premises of another, or unlawfully enters; Tullay v. Reed, 1 C. & P. 6; Weaver v. Bush, 8 T. R. 78; or being there lawfully, refuses to leave when requested to do so, an assault and battery even is justiñable, if it does not exceed the limits of reasonable necessity to protect his right to the exclusive enjoyment of his property or to remove the trespasser. Tuliay v. Reed, I C. & P. 6; Bullard v. Bond, 1 Jur. 7; Tittey v. Foxall, 2 Ld. Ken. 308. So, if a person raises a cane in a threatening manner with the intent to strike another, this is an actionable assault, even though there was no battery. Stephens v. Myers, 4 C. & P. 349. And in all cases for an assault merely, the question of liability depends, not upon the threat of the party, but upon his actual intention. Thus, if A. points a pistol at B. which is not loaded, and threatens to shoot him, this is not an assault, for the law will not presume that A. intended to do more than he threatened, and it being impossible for him to carry out his threat by reason of his pistol not being loaded, the law will presume that he had no intention to perpetrate an assault, and therefore, has not committed an actionable injury. Blake v. Barnard, 9 C. & P. 626; but if the pistol is loaded, although only at half cock, and in that condition could not be discharged, yet, it being possible for the party to carry out his threat; this will be an assault, because the law will presume that the person intended all that his words and acts indicated. Osborn v. Veitch, 1 F. & F. 317. So, if a man raises his cane, hand, of other weapon, in a threatening attitude, to strike another, under such circumstances as warrant the presumption that he intended to strike, if not prevented-and this intention may be gatherei from his words, gestures, or other circumstances-this is an actionable as-ault, although he is prevented from striking by a third person, and although at the time when he lifted his cane and made the threat, it was impossible for him to have hit the plaintiff, on account of the distance between them. Stephen v. Myers, 4 C. & P. 349. So in Read v. Cokes, 1 C. B. 350, the plaintiff was in the defendant's shop, and words passing between them, the defendant ordered him out, and refusing to go, the defendant and his workmen gathered around him, rolling up their sleeves and in a threatening attitude, the defendant threatened to break his neck if he did not get -out, and the plaintiff left, fearing violence if he remained. This was held an actionable assault. Thus it will be seen that mere threats to commit an assault, accom 1 no unlawful purpose in view. (e) And the same was holden where a like unfortunate accident happened whilst persons were lawfully exercising themselves in arms. (ƒ) "If I put in motion a dangerous thing, as, if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue to any person, I am answerable in an action of trespass." (g) "If I turn suddenly round and knock a man down without intending it, I am responsible for the injury I do him." () (e) 21 Hen. 7, 28 a. (f) Weaver v. Ward, Hob. 134; post, ch. 8, s. I. (g) Ld. Ellenborough, Leame v. Bray, 3 East, 595. (h) Lawrence, J., Id. 596; post, ch. 8, S. I. panied even by demonstrations that indicate a purpose to carry the threat into execution, do not constitute an actionable assault, but in order to be actionable the party must have an intention of committing it, and must be in a situation to carry his intention into effect. TINDAL, C. J., in Stephens v. Myers, 4 C. & P. 349, said: "It is not every threat, when there is no acual personal violence. that constitutes an assault. There must in all cases be the means of carrying the threat into execution." In Mortin v. Schopper. 3 C. & P. 374, the defendant being on horseback, rode after the plaintiff and compelled him to escape into his own garden for protection, and then shaking his whip at him told him if he would come out of the garden he would whip him, Lord TENTERDEN, C. J., held this to be an assault. So there are instances where a person's intention and necessity may excuse a trespass, as where his horse, usually gentle, becomes frightened at some object, and becoming unmanageable runs upon the premises of another and does damage; Gibbons v. Pepper, 1 Ld. Ray. 38; or when a person being pursued by another who threatens to inflict bodily harm upon him, enters upon the premises of another to escape from his pursuer. Vanderburgh v. Truax, 4 Den. (N. Y.) 464. One who voluntarily does an unlawful act is always answerable for all the natural and probable consequences of his act, and, while the motive with which the act is done will not excuse him from actual damages, yet it may be given in evidence to aggravate or mitigate the damages, provided, however, that no mitigating evidence is ever permissable when only actual damages are claimed. Thus if two persons are fighting, and one of them unintentionally strikes a third person, he is answerable in damages, and the want of intention can only be urged in mitigation. James v. Campbell, 5 C. & P. 372. 66 1 Balbridge v. Allen, 2 Ired. (N. C.) 206; GROSE, J., in Leame v. Bray, 3 East, 395, says: Looking into all the cases from the Year Book in the 21 Henry 7, down to the latest decision on the subject, I find the principle to be, that, if the injury be done by the act of the part himself, at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable." But, if the injury results from causes which he could not control, and of which he is not the promoting cause, no liability exists on his rart on the ground of inevitable accident. 52 N. II. ; North v. Smith, to C. B. (N. S.) 575. It a person carelessly and negligently kindles a fire; Barnard v. Poor, 21 Pick..(Mass,} 3. Damage without wrong.-A man may, however, sustain grievous damage at the hands of another; and yet, if it be the result of inevitable accident or a lawful act, done in a lawful manner, without any carelessness or negligence, there is no legal injury, and no tort giving rise to an action for damages. An act of force, for example, done in necessary self-defense, causing injury to an innocent by-stander, is damnum sine injuriâ, "for no man does wrong, or contracts guilt in defending himself against an aggressor." (i) Thus, if a lighted firework is thrown into a coach full of company, and is flung out again in necessary self-defense, and falls against and burns a by-stander, or explodes in his face and blinds him, the person throwing out the firework is not answerable for the damage, as his act was inevitable, and he has done no wrong. () The wrongdoer is the party who originally threw the burning material into the coach; and as against him there is that conjunction of damage and wrong which constitute a tort, and will support an action. () 4. Right to erect sea-walls.-If a landowner whose land is exposed to inroads of the sea, or to inundation from the overflowing of an adjoining creek or river, erects sca-walls, groins, or dams, for the protection of his land, and by so doing causes the tide, the current, or the waves to flow against the land of his neighbor and wash it away, or cover it with water, the landowner so causing an injury to his neighbor is not responsible in damages to the latter, as he has done no wrong, having acted in self-defense, and having a right to protect his land and his crops from inundation. (/) But if he runs out a wharf or embankment into the stream for the mere purpose of acquiring additional land, and improving the value of his property, and (1) Rex v. Pagham Com., &c., 8 B. & C. 360. (i) De Grey, C.J., 3 Wils., 412. 378; or carries fire whereby the property of others is injured or destroyed, he is liable for the damage that ensues. Moull v. Wilson, 2 Her. (Del.) 443. So, if a person suffers a dog or other animal to go at large, knowing its propen ity to do a particular kind of mischief. Dilts v. Kinney, 3 Green (N. J.) 130; Durden v. Barnett, 7 Ala. 169. So, if a dangerous obstruction is placed in a highway; Martin v. Bliss, 5 Black (Ind.) 35; or objects calculated to frighten horses placed near a bighway; Dimmock v. Suffield, 30 Conn. 129; Daveing v. Westmoreland, 52 N. II. 403; or unlawfully frightening an animal, whereby it breaks its Ig or is injured in any manner in consequence of the fright. Johnson v. Periy, 2 Hamph. (Tenn.) 5' 9. encroaches upon the waterway of a navigable river, and thereby gives a new direction to the current, and causes his neighbor's land to be washed away, he commits a tort or wrong, and is responsible for all its injurious consequences; for "if an individual, for his own benefit, makes an improvement on his own land, and thereby unwittingly injures his neighbor, he is answerable." (m) 5. Hiding of prospect not actionable.-If a man sells a house commanding a fine sea view, or a lovely prospect, and then builds on his own adjoining land, so as to shut out the sea view or the prospect, and thereby greatly diminishes the marketable value of the house he has just sold, a great damage is done to the purchaser thereof; but there is no tort or wrong, as the vendor has done nothing which restrains him from interfering with his neighbor's prospect. (2) So the building of a gasometer, which obstructs the view by the public of the plaintiff's place of business, is not an injury for which an injunction can be maintained. (0) 6. Selling diseased animals not actionable, per se.—The simple sale of horses diseased with glanders, or of horned cattle infected with the lung disease, or sheep infected with the scab, has been held not to be unlawful: and therefore, if a man buys horses, cattle, or sheep so infected, and mixes them with his own flocks and herds, and sustains grievous damage from the spread of the disease, he has no remedy; although the vendor knew at the time of the sale that the animals had the disease upon them, and the purchaser was wholly ignorant of it. The maxim of caveat emptor has been applied to such a case; and the purchaser, it is said, ought to have had a warranty. (p) The damage, however, resulting from the spread of infectious and contagious disorders amongst sheep and cattle is so serious, that every vendor who sells an animal, knowing it to be laboring under a highly contagious or infectious disorder, ought to be held responsible for fraudulent concealment, if he fails to disclose the fact at the time he makes the bargain. (9) 1 (m) Gibbs, C. J., 6 Taunt. 44; post, ch. 4. (n) Aldred's case, 9 Co. 58 b. Knowles v. Richardson, 5 Mod. 55. Att.-Gen. v. Doughty, 2 Ves, senr. 453. (0) Butt v. Imperial Gas Co., L. R., 2 Ch. App. 158. 1 (p) Hill v. Balls, 2 H. & N. 302. (q) Post, Fraud & Falsehood. Blakemore v. Brist. & Ex. Rail. Co., 8 Ell. & Bl. 1051. Anderson v. Buckton, I Str. 192. Animals infected with a contagious disease, are regarded as nuisances, and, 7. Animals affected with contagious diseases.-By the Contatagious Diseases (Animals) Act, 1869 (32 & 33 Vict. c. 70), it is provided (§§ 6 & 57) that if any person exposes, either in a public market or private sale-yard, or places in a lair adjacent to a market or fair, or sends by railway, canal, or coasting vessel, or drives along a highway, any cattle, sheep, goats, or pigs, affected with a contagious or infectious disease, he is liable to a penalty (103); and, by section 58, that any person keeping on any common or uninclosed land, or in any field insufficiently fenced, or on the side of a highway, any animal so affected, is liable to a similar penalty, unless in either case he did not, or could not, reasonably have known that the animals were diseased. (r) 8. Wrong without damage.-There may, on the other hand, be a wrong done to another, but if it has not caused what the law terms actual legal damage to the plaintiff, there is no tort in respect of which an action is maintainable. Thus, in cases of slander by word of mouth, where the words do not convey any imputation of an indictable offense, there is no cause of action in respect of them, unless the injured party has sustained some pecuniary loss, or has been deprived of some gainful occupation and employment, or has been injured in his trade, occupation, or profession, or means of livelihood, or has lost a marriage by reason of the slander. (s) An imputation, for example, by words, however gross, and on an occasion however public, upon the chastity of a modest matron or a pure virgin is not actionable without proof that it has actually produced special temporal damage to her; (f) neither is it action () Very extensive powers are also given by the Act of the Privy Council as to the importation, &c., of foreign animals (ss. 10-21, and schedule 4). (s) Post, ch. 17, s. 2. (t) Ld. Wensleydale, Lynch v. Knight 8 Jur., N. S. (H. L.) 724; 9 H. of L, Ca. 577, S. C. Wilby v. Elston, 8 C. B. 142. while it is true that in the absence of fraud or a warranty an action might not lie upon the contract of sale, yet an action on the case would lie for damages resulting therefrom, as the spread of the disease to other animals of the purchaser. Thus it has been held that a person is liable for damages resulting from taking a horse affected with glanders into a public place, and also to indictment upon the ground of nuisance; Regina v. Henson, 1 Deanl. (66) 24; also for allowing it to drink at a public watering-place; Mills v. N. Y. & H. R. R. R. Co., 2 Rob. (N. Y.) 326; and for allowing sheep affected with foot-rot to escape from his lands upon the land of others, and communicating the disease to other flocks. Fisher v. Clark, 41 Barb. (N. Y.) 329; Walker v. Herron, 22 Tex. 55. |