The majority held Shepherd was fully liable, because, said De Gray CJ, "I do not consider [the intermediaries] as free agents in the present case, but acting under a compulsive necessity for their own safety and self-preservation."
The principle I go on is what is laid down in Reynolds v. Clark... that if the act in the first instance be unlawful, trespass will lie.
So, in YEAR BOOK 12 Hen 4... trespass lay for stopping a sewer with earth so as to overflow the plaintiff's land.
In YEAR BOOK 26 Hen 8... for going on the plaintiff's land to take the boughs off which had fallen thereon in lopping...
The real question certainly does not turn on the lawfulness or unlawfulness of the original act; for actions of trespass will lie for legal acts when they become trespasses by accident, as in the cases cited of cutting thorns, lopping of a tree, shooting at a mark, defending oneself by a stick which strikes another behind, etc.
But the true question is whether the injury is the direct and immediate act of the defendant; and I am of opinion that in this case it is.
Everyone who does an unlawful act is considered as the doer of all that follows; if done with a deliberate intent, the consequence may amount to murder; if incautiously, to manslaughter.
a person breaking a horse in Lincoln's Inn Fields hurt a man; held, that trespass lay: and, 2 LEV 172 .
I think that any innocent person removing the danger from himself to another is justifiable; the blame lights on the first thrower.
for trespass in maliciously cutting down a head of water which thereupon flowed down to and overwhelmed another's pond shows that the immediate act need not be instantaneous, but that a chain of effects connected together will be sufficient.
On these reasons I concur with JUDGES GOULD and NARES, that the present action is maintainable.Blackstone J argued, reflecting the arcane distinctions between trespass on the case and vi et armis, that there was no liability for indirect consequences.
The lawfulness or unlawfulness of the original act is not the criterion, although something of that sort is put into LORD RAYMOND'S mouth in Reynolds v. Clark .
But this cannot be the general rule, for it is held by the court in the same case that if I throw a log of timber into the highway (which is an unlawful act) and another man tumbles over it and is hurt, an action on the case only lies, it being a consequential damage; but if in throwing it I hit another man, he may bring trespass because it is an immediate wrong.
If in lopping my own trees a bough accidentally falls on my neighbour's ground and I go thereon to fetch it, trespass lies.
If by false imprisonment I have a special damage, as if I forfeit my recognisance thereby, I shall have an action on the case per JUDGE POWELL in Bourden v. Alloway.
The solid distinction is between direct or immediate injuries on the one hand and mediate or consequential on the other, and trespass never lay for the latter.
But the defendant, I think, is not answerable in an action of trespass and assault for the mischief done by the squib in the new motion impressed on it, and the new direction given it, by either Willis or Ryal, who both were free agents and acted on their own judgment.
Yet if any person gives that stone a new motion and does further mischief with it, trespass will not lie for that against the original thrower.
I give no opinion whether case would lie against the defendant for the consequential damage; though, as at present advised, I think that on the circumstances, it would.
But I think that, in strictness of law, trespass would lie against Ryal, the immediate actor in this unhappy business.
But none of these great lawyers ever thought that trespass would lie by the person struck against him who first assaulted the striker.
And I admit that the defendant is answerable in trespass for all the direct and inevitable effects caused by his own immediate act.
I may bring trespass for the immediate injury and subjoin a "per quod" for the consequential damages; or may bring case for the consequential damages and pass over the immediate injury, as in Bourdon v. Alloway before cited.
But if I bring trespass for an immediate injury and prove at most only a consequential damage, judgment must be for the defendant: Gates v. Bayley.
It is said by LORD RAYMOND, and very justly, in Reynolds v. Clark: "We must keep up the boundaries of actions, otherwise we shall introduce the utmost confusion."