ABSTRACT
Discussions of legislative principle have been darkened by arguments on the limits between trespass and case, or on the scope of a general issue. The contra pacem in the writ of trespass was no doubt inserted to lay a foundation for the king’s writ; but there seems to be no reason to attribute a similar purpose to vi et armis, or cum vi sua, as it was often put. The liability for trespasses of cattle seems to lie on the boundary line between rules based on policy irrespective of fault, and requirements intended to formulate the conduct of a prudent man. Negligence, it might be said, had nothing to do with the common-law liability for a nuisance, and it might be added that, where negligence was a ground of liability, a special duty had to be founded in the defendant’s super se assumpsit, or public calling.
