8 Johns. 421 | N.Y. Sup. Ct. | 1811
The point to be tried was, whether there was negligence on the part of Esc/, or his agent for Foot was as much accountable for the negligéncc of his servant, whilst employed in his business, as if the fire ' had spreád by his own neglect.
It is a lawful act for a person to burn his fallow; and if his1 neighbour is injured thereby, he will have a remedy, - by action on the case, if there be sufficient ground to impute the act to the negligence or misconduct of the defendant' or his servants. ,
Should a man’s house get on fire, without his neglect, or default, and burn his neighbour’s, no action would lie against him, notwithstanding the fire originated in his house, because it was lawful for him to keep fire (3 Bl. Comm. 43. 1 Nay’s Max. c. 44.) The same rule would apply to this case.
Here, there is no evidence of negligence, and the jury 1 have passed on the case.
Judgment affirmed.