An action on the case, founded upon the general custom of the realm, against the defendant, for negligently keeping his fire; and the plaintiff declared that the defendant in his close did light up a fire to burn the stubble, and ignem suum tam improvide and negligenter custodivit quod defectu debitae custodiae ignis sui pred’ the clothes of the plaintiff in the close adjoining were burnt. After a verdict for the plaintiff Gould Serjeant moved in arrest of judgment, for that this action lay not, neither for the matter of it, nor for the manner ; for an action lieth not on account of a fire lighted up iri a close, but only for fire in a house, for there a man must take care of his fire at his own peril, and it may properly be said to be his own fire, but out of his house it cannot be said to be his fire, and where it is not his fire an action will not lie, as it seems. 2 H. 4, 18 a, but if an action would lie for the matter, yet in the present case it is ill brought, for the plaintiff ought to have declared that the defendant exarsit vel ardebat his clothes, and not to have declared upon the general custom of the realm. Northey contra : An action lieth as well where the fire is lighted in the close as in the house of the defendant; an action was maintained lately for fire in the woodstack of the defendant; arid then the declaration is well enough, for the plaintiff says that by the improvident keeping of the fire the clothes of the plaintiff were burnt, which is now found by the verdict. Holt, C.J. The only qnestion is, whether the plaintiff ought not to have shewn a special negligence in the defendant.
The case was afterwards adjudged in favour of the plaintiff by the whole Court ; for the action is as well for a fire kindled in the fields of the defendant as in his house, for it is the defendant’s fire and kindled in his ground, and he ought to have the same care of a fire which he kindles iri his field as of that which is made in his house, for the duty to take care of both is founded upon this maxim, sic utere tuo ut non laedas alienum ; but if the fire of the defendant by inevitable accident, by impetuous and sudden winds, and without the negligence of the defendant or his servants, (for whom he ought to be answerable) did set fire to the clothes of the plaintiff in his ground adjoining; the defendant shall have the advantage of this in evidence, and ought to be found not guilty. But here the verdict hath found negligence in the defendant.
Therefore judgment for the plaintiff.
Citations:
[1792] EngR 2683, (1792) 1 Com 32, (1792) 92 ER 944
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Citing:
See Also – Turberville v Stamp 1792
The defendant’s haystack spontaneously combusted and it was alleged that he had ‘wrongfully negligently and improperly kept his haystack so that it became liable to ignite’ and so be a danger to the claimant’s property. The jury were left to . .
Cited by:
See Also – Turberville v Stampe 1792
Case on the custom of the realm lies against a man for damage done by a fire he has lighted in his field. D. acc. 1 Bl. Com. 431. Unless such damage was occasioned by the Act of God. A master is responsible for all acts dons by his servant in the . .
See Also – Turberville v Stamp 1796
Action upon the case on the custom of the realm, for negligently keeping of his fire; declaring that the plaintiff was possessed of a close of heath ; that the defendant possessed of another close next adjoining ; and that the defendant tam . .
Lists of cited by and citing cases may be incomplete.
Torts – Other
Updated: 02 May 2022; Ref: scu.360895
