the conviction tity of flour, knowing it to have been stolen. It appeared that one of his principal of the principals had been convicted of the felony on the evidence of by viva voce testimony;* Or show that the principal was entirely in nocent.† The record of the conviction of the principal is not conclusive evidence of the felony against the accessary. another who had been concerned in it. At the trial the record of the principal's conviction was produced, but, on the authority of Mac Daniel's case, (Fost. 121.) the Court permitted the prisoner to controvert the propriety of that conviction by viva voce testimony; and it appearing that the prosecutor had intrusted the principal felon with the flour in such a way as to make the conversion of it a breach of trust only, and not a felony, the prisoner was acquitted. 5. COOK V. FIELD. H. T. 1788. 3 Esp. 134. It was stated, in this case, by counsel, as a clear rule, and assented to by Lord Kenyon, that where the principal has been convicted, it is nevertheless, on the trial of the accessary, competent to the defendant to prove the principal innocent. 6. THE KING V. PROSSER. 1784. 1 Leach, 290. n. a. A prisoner was indicted as an accessary before the fact, in procuring one R. to counterfeit an halfpenny; the record of R.'s conviction was produced, and it was admitted by Mr. Justice Gould, upon the authority of Foster, that the record of the conviction of the principal was not conclusive evidence of the felony against the acces sary, and that he had a right to controvert the propriety of such conviction, for a record is only conclusive evidence against those who are parties to it. But he gave no positive opinion on the point. * Mr. Justice Foster, p. 366. thus illustrates the position above extracted from the case of the King v. Smith. "A. is indicted for stealing a quantity of live fish, the property of B.; A. pleaded guilty upon his arraignment, is immediately burned in the hand, and discharged. At the next sessions C. is indicted as an accessary to A. in this felony after the fact, as the receiver knowingly; A. is produced as a witness against him, and, in the course of his evidence, proveth, that the fish were taken in a river, of which B. had the sole and separate fishery, or in a large pond upon the waste of B. Might not C. had he been so advised, have insisted, that the fish being at their natural liberty, B. had no fixed property in them, and consequently, that the taking of them in that state could amount to no more than a bare trespass. Undoubtedly he might." + How far the accessary can avail himself of a defence arising from the total innocence of the principal, the same learned judge says, is a question of more difficulty; though he is of opinion, that if it shall manifestly appear, in the course of the accessary's trial, that in point of fact the principal was innocent, common justice requires that the accessary should be acquitted." He then puts the following case :-A. is convicted upon circumstantial evidence, strong as that sort of evidence can be, of the murder of B.; C. is afterwards indicted as accessary to this murder; and it comes out upon the trial, by incontestible evidence, that B. is still living; (Lord Hale somewhere mentions a case of this kind; semb. 2 Hale's P. C. 290.) is C. to be acquitted or convicted? The case is too plain to admit of a doubt. Or, suppose B. to have been in fact murdered, and that it should come out in evidence, to the satisfaction of the Court and Jury, that the witnesses against A. were mistaken in his person, (a case of this kind I have known,) that A. was not, nor could possibly have been present at the murder. It must be admitted, continues Mr. Justice Foster, that mere alibi evidence lies under a great and general prejudice, and ought to be heard with uncommon caution; but if it appears to be founded in truth, it is the best negative evidence that can be offered; it is really positive evidence which, in the nature of things, necessarily implies a negative, and in many cases it is the only evidence which an innocent man can offer. What, in the case above put, are a Court and jury to do? If they are satisfied, upon this evidence, that A. was innocent, uatural justice and common sense will suggest what is to be done in the case of C. See 1 Phil. Ev. 242, 3d ed. 7. The KING V. HASLAM. 1786. Old Bailey. 1 Leach, 418. S. P.; PATRAM'S CASE. 2 East, P. C. 782; PRICE'S CASE. 1 Leach, 119. n. On an indictment on the stat. 22 Geo. 3. c. 58. against an acces- The principal is sary, for receiving stolen goods, a question arose, whether the prin- a competent cipal could legally be received as a witness against him; and the witness against twelve judges were unanimously of opinion, that his testimony was, all cases, where the accessary in under such circumstances, admissible. the latter may be See Wild's case, 2 East, P. C. 782; case of Bilmore and others, indicted before 2 Hale, P. C. 279; Gunston and Downes, 2 Rol. Ab. 385. pl. 3; the former. Bath v. Montague, cited Fost. Rep. 247; post, tit. " Receiver of Stolen Goods." (C) PUNISHMENT. REGINA V. WHISTLER. M. T. 1701. K. B. 2 Ld. Raym. 846. A statute which takes away clergy from aiders and abet ters, does not, If a statute take away clergy from aiders and abettors, yet acces- by those words, saries shall have their clergy. include accessa ries after the fact. Accident. 1. BECKWITH V. SHORDIKE AND ANOTHER. E. T. 1767. K. B. 4 Burr. 2093. Trespass for entering the plaintiff's close, with guns and dogs, A party is not and killing the plaintiff's deer; plea not guilty, and verdict for the liable for an unplaintiff, with 30l. damages. The evidence to prove the defendants' avoidable acci.dent. guilt was, that they entered with guns and dogs into a close of the plaintiff's, adjoining to his paddock, and were not going along a foot path; that their dog happened to escape from them, and run into the plaintiff's paddock, and there pulled down and killed one of his deer. A motion was made for a new trial; as the judge who tried the cause was of opinion, though he did not direct to that purport, that the jury ought not to have found the defendants guilty, it being an accidental encroachment beyond their control, and contrary to their inclination. Per Cur. Cases of this nature must depend entirely upon the particular circumstances disclosed by the evidence in the course of the trial. The question here is, whether the persons who were the owners of the dogs which occasioned the mischief, whilst in their company, were or were not trespassers. The jury were to judge quo animo the party entered the plaintiff's close, and to determine whether it was an intentional trespass, or merely an involuntary accident. But as the damages are small, it is not worth while to set the verdict aside, upon payment of costs, and put the parties to the expense of a new trial. Mr. Justice Aston adverted to the distinction between voluntary and involuntary trespasses, pointed out in Fuller v. Fandage, Poph. 161. The defendant there, with a little dog, chased the plaintiff's sheep out of his ground, (where they were trespassing,) and drove them off his own ground; they went into another man's ground which had no hedge to divide it from the defendant's grounds, which were contiguous. The dog pursued them into the other man's land, so next adjoining. The defendant, as soon as the sheep Or where chattels are inevitably driven against each other by the wind, and rolling of the sea; were out of the defendant's own land, called in his dog and chid him. The owner of the sheep brought an action of trespass for chasing his sheep. The Court gave judgment quod quærens nil capiat per Billam, being of opinion" that trespass did not lie in that case," for they held it to be an involuntary trespass; whereas a trespass that is incapable of being justified ought to be done voluntarily. They thought he might lawfully drive the sheep out of his own land, with his dog, and he did his best endeavour to recall the dog when they were driven out of it; but from the nature of the animal he could not be withdrawn and recalled in an instant: therefore trespass could not be supported against him. 2. DAVIS V. SAUNDERS AND OTHERS. M. T. 1770. K. B. 2 Chit. Action of trespass; the first count in the declaration alleged, that the defendant took and converted a large quantity of spirituous liquors belonging to the plaintiff, to his own use; the second count the violence of stated, that the defendant, with force and arms, broke, damaged, and spoiled a ship of the plaintiff's, whereby he was put to great expense in repairing her, and prevented from using her for a long space of time; plea, general issue, not guilty. At the trial a verdict was found for the defendants, on the first count of the declaration, and for the plaintiff on the second, subject to the opinion of the Court on the following case. The plaintiff and defendants, respectively, were the owners of certain vessels; and having heard that some smugglers had deposited a raft of brandy in the sea, several ships, and among others the vessel of the plaintiff and defendants, went out to endeavour to find the contraband spirits; and whilst the plaintiff was drawing up some of the casks, the defendants in one boat, and C. and B. in another, came up, and obtained possession of part of the raft, and while accomplishing the object, from the blowing of the wind, their ships came in contact with that of the plaintiff, and did the vessel considerable damage: the casks which were taken were removed to the custom-house, and afterwards condemned, no one claiming them. Or an injury is Occasioned by the want of ordinary care on the part of the plaintiff; The question reserved for the opinion of the Court was, whether the plaintiff was entitled to recover. And after-argument-they determined, that as the original act of the defendant was lawful, and the injury merely accidental, the defendant was entitled to a general verdict upon the whole declaration.-Judgment for defendant. 3. Butterfield V. FORRESTER. E. T. 1809. K. B. 11 East, 60. In an action for obstructing a highway, by means of which the plaintiff was injured; it appeared in evidence on the trial, that the defendant had put up a pole across that part of the road along which the plaintiff was riding; but that a free passage was left in another part, which the plaintiff might have seen, and thus avoided the alleged obstruction, had he not been riding along the street without ordinary care and attention to his own safety: a verdict was found for the defendant. A motion was now made for a new trial, on the ground that the jury had been misdirected, in being told that two things must concur in order to support such an action; an obstruction in the road by the misconduct of the defendant, and no want of ordinary care on the part of the plaintiff. But the Court, concurring 4. FLOWER V. ADAM. E. T. 1810. C. P. 2 Taunt. 314. It appeared, in this case, that some bricklayers employed by the Or ordinary defendant had deposited a quantity of lime rubbish before his skill. door; that while the plaintiff was passing in a single horse chaise, a violent gust of wind scattered the lime rubbish about the street, and frightened his horse, which it was proved was usually quiet and tractable, and that the animal started on one side, and would have run against a waggon which was then advancing; the plaintiff, however, hastily and unskilfully pulled him round, and the horse then ran over a lime heap lying before the door of an opposite house; by this shock the shaft of the vehicle was broken, and the horse being still more alarmed, ran away, and overset the chaise, and the plaintiff was thrown out and materially hurt. At the trial a verdict was found for the defendant. A rule nisi was now applied for to set aside the verdict. Sed Per Cur. The jury were, at the trial, directed to find for the defendant, if they were of opinion that the unfortunate occurrence was occasioned, either by pure accident, or owing to the plaintiff not being a skilful driver; but that if they were of opinion that there was blame or negligence in placing the lime on the spot where it was deposited, they would find for the plaintiff. The injury, however, is too remote to affect the present defendant, and we think it must be ascribed either to accident, or inability in the driver. R. Ref. See Bush v. Steanman, 1 B. & P. 404. 5. WAKEMAN V. ROBINSON. E. T. 1823. C. P. 1 Bing. 213. In trespass for driving against the plaintiff's horse, and injuring But any the least him with the shaft of a gig; plea, the general issue, and a special blame on the justification; replication de injuria suâ propriâ. part of the defendant will de It appeared in evidence, that the defendant was driving a young prive him of the horse in a gig, without a curb-chain, when the gig, a waggon and protection of the horses of the plaintiff, and a stage coach, all met at the same preceding rule. spot, when, in consequence of the defendant in his alarm pulling the wrong rein, his horse was suddenly turned against one of the horses in the waggon, and by a wound received in that percussion, the animal shortly afterwards died. The defendant attempted to prove that the accident happened without any fault being imputable to him, and that it was altogether unavoidable; but having failed in making out this defence, and in supporting his special plea of justification, the judge before whom the cause was tried directed the jury, that under the circumstances of the case the special plea not being made out, the defendant could have no defence, because, in an action of trespass, whether the cause of the injury arose through inadvertence or not, it could not prevent the plaintiff from succeeding; and accordingly a verdict was found by the jury for the plaintiff. On a motion for a new trial, on the hypothesis that it should have been left to the jury to consider whether the accident was occasioned It is the duty of a party, before he trusts a dangerous instrument in the by the negligence of the defendant, or was wholly unavoidable; for if the injury, it was contended, had happened entirely through inevitable accident, and without negligence on his part, the action could not be maintained ; Per Cur. We admit that no action lies for an unavoidable accident, but if any blame at all be imputable to the defendant it may be supported; the present suit is an action of trespass, and we are of opinion that the trespass was clearly made out by the evidence against the defendant. It has been argued, on the facts of this case, that the defendant is not liable in any form of action; but it is a well established rule of law, that no one can be excused from the consequences arising from a trespass, unless he can show that trespass to have happened entirely without fault on his part; here, however, it is distinctly proved that the accident was occasioned by an act of the defendant himself, and the weight of evidence satisfactorily demonstrated that it was through his unskilfulness; granting a new trial would be against the real justice of the case, and the rule must therefore be discharged. See Weaver v. Ward, Hob. 134; Leame v. Bray, 3 East, 593; Gibbons v. Pepper, 1 Ld. Raym. 38; Scott v. Shepherd, 2 Blac. 892; S. C. 3 Wils. 403; Day v. Edmond, 5 T. R. 648; Ogle v. Barnes, 8 T. R. 188; Harker v. Birkbeck, Burr. 1556; Tullege v. Wide, 3 Wils. 18; Woodward v. Warlton, 2 N. R. 478; Underwood v. Hewson, 1 Stra. 596. 6. DIXON V. BELL. E. T. 1816. 1 Stark. 287. Case for negligently entrusting a girl with a loaded gun, whereby the son of the plaintiff was wounded, and the plaintiff put to expense in effecting his cure. It appeared by the evidence adduced on the part of the plaintiff, that the defendant had sent a verbal message hands of an in- by a child twelve years old to A. B. to deliver a gun to her, but experienced per- requested him not to give it to the child until he had removed the son, to prevent priming. A. B. on examining the gun could discover no priming, and accident by ren- accordingly delivered the instrument to the child, who, imagining that it was unloaded and harmless, presented it at the plaintiff's son, when it went off, and occasioned the injury sought to be redressed by the present action. dering it innoxious, The information of an accomplice, taken pursuant to the 1 & 2 Ph. & M. c. 13. s. 4. on being properly proved, may be read as evidence against Per Lord Ellenborough. I think the defendant, in only desiring A. B. to remove the priming, which request was complied with, did not go far enough. It was incumbent upon him to have directed A. B. to render, by a careful examination, the gun perfectly harmless and innoxious. Verdict for plaintiff. The Court afterwards refused to set the verdict aside. Accomplice. And see tit. Aiders and Abettors. 1. REX v. WESTBEER. 1739. 1 Leach, C. L. 12. Upon the trial of an indictment for stealing a parchment writing, the prisoner, on purporting to be a commission for ascertaining the boundaries of proving that certain manors, pursuant to an order of the Court of Chancery; it such accomplice appeared that one C. L. an accomplice, had made a full confession, is dead. |