DIXON against BELL.

CASES IN TRINITY TERM IN THE FIFTY-SIXTH YEAR OF GEORGE III.

5 M. & Sel. 198 (1816) [pages 198-200]

[page 198]
1816. Tuesday, June 18th.

The law requires of persons having in their custody instruments of danger, that they should keep them with the utmost care: therefore, where defendant, being possessed of a loaded gun, sent a young girl to fetch it, with directions to take the priming out, which was accordingly done, and a damage accrued to the plaintiff's son in consequence of the girl's presenting the gun at him and drawing the trigger, when the gun went off: Held that the defendant was liable to damages in an action upon the case.
CASE. The plaintiff declares that the defendant was possessed of a gun, then being in a certain messuage [outbuilding], situate, &c.; and that he, well knowing the same to be loaded with powder and printing types, wrongfully and injuriously sent a female servant to the said messuage, to fetch away the gun so loaded, he well knowing that the said servant was too young, and an unfit and improper person to be sent for the gun, and to be entrusted with the care or custody of it; and which said servant afterwards, and while she was so sent and entrusted by the defendant, and had the custody of the said gun accordingly, carelessly and improperly shot off the same, at and into the face of the plaintiff's son and servant, and struck out his right eye and two of his teeth, whereby he became sick, &c., and was prevented from performing his lawful business, and the plaintiff was deprived of his service, and put to great expence in procuring his cure, &c. There was a second count, for taking such improper care of the gun, knowing that it was loaded, that the gun was afterwards discharged against the plaintiff's son, &c. Plea, not guilty. At the trial, before Lord Ellenborough C. J., at the last Middlesex sittings, the case was thus:
The plaintiff and defendant both lodged at the house of one Leman, where the defendant kept a gun loaded with types, in consequence of several robberies having been committed in the neighbourhood. The defendant left the house on the 10th of October, and sent a mulatto [p. 199:] girl, his servant, of the age of about thirteen or fourteen, for the gun, desiring Leman to give it her, and to take the priming out. Leman accordingly took out the priming, told the girl so, and delivered the gun to her. She put it down in the kitchen, resting on the butt, and, soon afterwards took it up again, and presented it, in play, at the plaintiff's son, a child between eight and nine, saying she would shoot him, and drew the trigger. The gun went off, and the consequences stated in the declaration ensued. There was a verdict for the plaintiff, damages 100l.
The Attorney General moved for a new trial, on the ground that the defendant had used every precaution which he could be expected to use on such on occasion, and, therefore, was not chargeable with any culpable negligence.

Lord ELLENBOROUGH C. J. The defendant might and ought to have gone farther; it was incumbent on him, who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious. This might have been done by the discharge or drawing of the contents; and though it was the defendant's intention to prevent all mischief, and he expected that this would be effectuated by taking out the priming, the event has unfortunately proved, that the order to Leman was not sufficient; consequently, as by this want of care, the instrument was left in a state capable of doing mischief, the law will hold the defendant responsible. It is a hard case, undoubtedly; but I think the action is maintainable. [p. 200:]

BAYLEY J. The gun ought to have been so left as to be out of all reach of doing harm. The mere removal of the priming left the chance of some grains of powder escaping through the touch-hole.

Per curiam, (a ) Rule refused.

(a ) Abbot J. absent.

NOTE: "The medieval courts met during four periods of the year, and the nineteenth-century reforms in 1831 preserved the names of the four medieval terms while giving them fixed spans of time as follows:
1) Hilary, 11 - 31 January;
2) Easter, 15 April - 8 May;
3) Trinity, 22 May - 12 June;
4) Michaelmas, 2 - 25 November."
Arthur Hogue, Origins of the Common Law, Liberty Fund: 1966, 1985), page 159 ; Hogue cites C. R. Cheney (ed.), Handbook for Students of English History, Royal Historical Society: 1955), pp. 65-69.