fire was a lawful one, and he did not expect or intend that the fire should communicate.” 23. Mistake no excuse.-While it is now the fully accepted rule that accident will operate as an excuse in the case of all lawful acts which otherwise would be trespasses, whether to the person, to chattels, or to real property, it is the prevailing view that mistake or ignorance affords no excuse. For example, where one buys an ox and by mistake takes away the wrong ox, he is liable for a trespass:10 And where a person went upon the land of another to get his own sheep, and by mistake took sheep which did not belong to him, the court said: "We have no doubt that the action of trespass would lie in this case. In driving off the sheep the defendant in error, without doubt, unlawfully interfered with the property of Dexter, and it has been frequently decided that to maintain trespass de bonis asportatis it was not necessary to prove actual forcible possession of property, but that evidence of any unlawful interference with, or exercise of acts of ownership over, property, to the exclusion of the owner, would sustain the action." 11 A sheriff is liable for arresting the wrong man, although the person arrested has the same name as the one named in the warrant.12 Where two mining claims adjoin, and the owner of one of them encroaches upon the other and extracts gold quartz therefrom, although in the belief that he is working on his own property, he • Morris v. Platt, 32 Conn. 75. 10 Hobart v. Hagget, 12 Me. 67, LEADING ILLUSTRATIVE CASES. 11 Dexter v. Cole, 6 Wis. 319. 12 Clark v. Winn, 19 Tex. Civ. App. 223. is liable for a trespass.13 Notwithstanding the fact, then, as has been said, that "probably one-half of the cases in which trespass de bonis asportatis is maintained arise from mere misapprehension of legal rights, "14 yet the rule is universal that "mistake will not excuse a trespass." 24. Leave and license-Meaning.-In all actions for an alleged trespass, acceptance of the risk, or consent by the plaintiff to the harm suffered, is, within limitations, a defense. The phrase, leave and license, is the common English expression to indicate this defense and corresponds to the Latin maxim, volenti non fit injuria (no wrong is done to one who consents). Usually, the consent of the plaintiff which the defendant pleads in action of trespass is implied consent. "The case of express consent is comparatively rare in our books, except in the form of a license to enter upon land. It is indeed in this last connection that we most often hear of 'leave and license,' and the authorities mostly turn on questions of the kind and extent of permission to be inferred from particular language or acts." 15 are concerned here only with implied consent, and the limits thereof can best be shown by concrete illustrations. We 25. Same subject-Illustrations.-The plaintiff sued the defendant for false imprisonment. The plaintiff had gone on board the defendant's steamboat, just before its departure, for the purpose of 13 Maye v. Yappen, 23 Cal. 306, LEADING ILLUSTRATIVE CASES. 14 Stanley v. Gaylord, 1 Cush. 536 (Mass.). 15 Pollock, Torts (8th ed.), p. 160. arresting a third person. The boat started. After a while the plaintiff found and arrested the person he was in search of. The plaintiff refused the defendant's offer to set him ashore, except on condition that the defendant would also assist in getting the prisoner ashore, which the defendant declined to do. As the steamer passed the last land before leaving the bay and putting out to sea, the plaintiff asked the defendant to stop the boat and put him ashore. The defendant refused to do so. The court said: "If the defendant was not bound to aid in the arrest and removal of the prisoner, I do not perceive that he was bound either to delay his voyage or put back his boat to enable the plaintiff to procure assistWhen the boat had arrived at the mouth of the harbor, near Sullivan's Island, the plaintiff demanded to be put ashore, which the defendant then refused; here commenced the detention of the plaintiff against his will. Was it unlawful? I think it cannot be so held; the defendant only proceeded on his voyage. His refusal to send the plaintiff ashore at that time, which would have delayed his progress and put him to trouble, was a mere nonfeasance, which, if he had been guilty of no trespass up to that time, did not render him a trespasser ab initio; it was not a positive act, incompatible with the legal exercise of the right to proceed from the wharf, the plaintiff being on board." 16 26. Same subject-Illustrations.-The plaintiff tied his horse to a post at the curb, and went into an office. The defendant took off the lines. When 16 Moses v. Dubois, Dudley 209 (S. C.). the plaintiff returned, he demanded the lines from the defendant, who refused to give them back. The plaintiff had recently taken some small article from the defendant, and the removal of the reins seemed to have been done in the spirit of a practical joke. At the trial of the case, the trial judge said: "If the defendant will make a tender of these lines now, I will dismiss this case upon the ground de minimis non curat lex." The lines were tendered and the case dismissed. On appeal, the court said: "This disposition of the case is the error complained of in this court. The trial judge acted upon the idea that the conduct of the defendant was intended as a joke, and that the matter involved was too insignificant to claim the attention of the court. If the defendant relied upon the fact that he removed the lines by way of a joke, it was a question for the jury to decide whether the parties had been perpetrating practical jokes upon each other in such a way that the defendant had a right to believe that the plaintiff would accept this act as a joke." 17 Administration of drugs by a physician or the performance of a surgical operation is in general lawful by the consent of the patient, either express or implied. Accordingly, it has been held that the vaccination of a passenger by a ship's surgeon would not constitute an assault, if the passenger's behavior indicated consent, whatever might be his unexpressed feelings on the subject.18 27. Same subject-Sports and fighting.—Where 17 Wartman v. Swindell, 54 N. J. L. 589, 25 Atl. 356. 18 O'Brien v. Cunard S. S. Co., 154 Mass. 272, 28 N. E. 266. one is injured in contests of sport, the question whether the defense of consent will avail seems to depend upon the way in which the law, or public opinion, regards the particular sport, or so-called sport. "Where one person is indicted [the views here expressed seem to govern equally in civil cases] for inflicting personal injury on another, the consent of the person who sustains the injury is no defense to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. In cases * * where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defense to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football, or the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances." 19 Where two engage in mutual combat, such fighting being unlawful, the general rule is that consent of either participant does not deprive him of his civil remedy against the other.20 19 Reg. v. Coney, 8 Q. B. D. 534 (Eng.). 20 McNeil v. Mullin, 70 Kans. 634, 79 Pac. 168, LEADING ILLUSTRATIVE CASES. |