3 Ill. 434 | Ill. | 1840
delivered the opinion of the Court:
In this case it is only necessary to consider a few plain principles, to determine the points presented.
First, If an illegal act be done, the party doing or causing the act to be done, is responsible for all consequences resulting from the act.
Secondly, If an act be done from evident necessity, and justified by such necessity, but which, without such necessity, would otherwise be illegal, it must appear that such necessity existed at the time, and that every possible diligence and care was taken in the manner of the execution of the act, to avoid injury being done to others, or their property.
Apply these principles to the case under consideration. The authority given by the one hundred and forty-eighth section of the-Criminal Code, to fire the prairies, conferred no authority whatever on the defendant to set out the fire in the prairie, because the firing was not done at the period of the year allowed by the section of the law referred to. If the act was done, as is contended, as a means of protection, by making a back fire to protect the defendant’s possession, then he was bouud to use every possible diligence to prevent injury to others.
The fifth instruction given, which imposed on the plaintiff the necessity of proving the negligence of the defendant, before he was entitled to recover, we think was incorrect. The principles already stated show the converse of the rule. The defendant, to justify the act, should have shown the absolute necessity which existed at the time, for doing the act, and that every possible caution was used to prevent injury. It rested with him to show the excuse and justification, and was not required of the plaintiff.
The judgment of the Circuit Court is reversed with costs, and the cause is to be remanded, with instructions to the Circuit Court to issue a venire de novo.
Judgment reversed.
Note. As to liability for consequences resulting from illegal acts, see Clarke v. Lake, 1 Scam. 229 ; Stout v. McAdams, Ante 67.