Scott v. Watson ( 1859 )

The opinion of the Court was drawn up by

Appleton, J.

This is an action of trespass quare clausum, for breaking and entering the plaintiff’s close and carrying away his hay; to which the only defence interposed is, that the defendant was a minor, acting under the authority and by the direction of his father.

“ Trespasse. Transgressio, derivatur a trailsgrediundo,” (says Lord Coke, as cited by the learned counsel for the defendant,) “ because it passeth over that which is right.” Coke’s Ins. 56, b. Now, the defendant, by entering without the plaintiff’s license or permission upon his land, and cutting and carrying away his hay, very much “ passeth over that which is right.” Nor is his infancy any defence, for infants are liable for torts. Campbell v. Stokes, 2 Wend. 137; Fitts v. Hall, 9 N. H. 441; School District in Milton v. Bragden, 3 Foster, 507; Lewis v. Littlefield, 15 Maine, 233. The parent is not answerable for the torts of his minor child, committed in his absence and without his authority or approval, but the minor is answerable therefor. Tifft v. Tifft, 4 Denio, 177. The minor is not exempt from liability, though the trespass was committed by the express command of the father. Humphrey v. Douglas, 10 Verm. 71.

Nor can the defendant derive any support from the scriptural injunction to children of obedience to their parents, invoked in defence. No such construction can be given to the command “ children obey your parents in the Lord, for this is right,” as to sanction or justify the trespass of the son upon the land of another, and the asportation of his crops, even though done by the express commands of his father. The defence is as unsound in its theology as it is baseless in its law. Defendant defaulted for $10.

Tenney, C. J., Cutting, Davis, and Kent, J. J., concurred.