Page:Harvard Law Review Volume 5.djvu/52

36 HARVARD LAW REVIEW. of attorney, where, as in the case of a gratuitous delivery of a spe- cialty, such a power is fairly to be implied. The arbitrary distinction now existing between gifts inter vivos and donationes mortis causa would thereby disappear. We should also have, on both sides of the Atlantic, a just, simple, and uniform rule as to gifts of choses in action. Inevitable Accident a Defence to Action of Trespass. — The rule, so well settled in America, 1 that inevitable accident is a good defence to an action of trespass for personal injuries, has not hitherto found entire favor with the English courts. There crept very early into the English law a principle, which the courts have been slow to repudiate, to the effect that he who acts voluntarily acts at his peril, and is responsible for personal injuries to another resulting from his acts, though the injury be the outcome neither of wilful wrong- doing nor of negligence. 2 The few cases in which a defence has been allowed have been decided either upon principles of expediency or upon questions of pleading. For example, in Holmes v. Mather* where the plaintiff was knocked down by the defendant's runaway horses, it was held that such an accident was one of the ordinary risks of the road, which a person travelling upon the road took upon himself. In Fletcher v. Rylands* Lord Blackburn remarks that all the cases "in which inevitable accident has been held an excuse for what prima facie was a trespass, can be explained on the principle that the circum- stances were such as to show that the plaintiff had taken that risk upon himself." That is, the English judges have obstinately refused to adopt squarely the reasoning of the American courts, that where a man uses due care he is not responsible for results which could not have been foreseen, and, while practically arriving at the same results in a number of cases, have based their decisions upon narrow and unsatisfactory grounds. It is refreshing, therefore, to find Justice Denman, in the recent case of Stanley v. Powell* facing the music squarely and holding that, in the absence of negligence, a man who accidentally shoots another is not liable in an action of trespass. He reviews the English cases upon the subject, and concludes that the bulk of authority in favor of the opposite view may be sifted down to a few dicta or decisions which went off on other grounds. In commenting upon the well-known case of Weaver v. Ward 6 Justice Denman says: "I can find nothing in the report to show that the court held that in order to constitute a defence in the case of a trespass it is necessary to show that the act was inevi- table. If inevitable, it would seem that that was a defence under the general issue ; but a distinction is drawn between an act which is inevi- table and an act which is excusable, and what Weaver v. Ward really lays down is that ' no man shall be excused of a trespass except it may be judged utterly without his fault.' " Further on, in reference to the case at bar, he says : " It was argued that inasmuch as the plaintiff was injured by a shot from defendant's gun, that was an injury owing to an act of force committed by defendant, and therefore an action would lie. I am of opinion that this is not so, and that to any statement of claim which the plaintiff could suggest the defendant must 1 Brown v. Kendall, 6 Cush. 292. * Year Book, 21 Hen. VII, p. 28 a. 3 L. R. 10 Ex. 261. 4 L. R. 1 Ex. 265, at 287. « 39 W. R. 77. « Hob. 134.