Weaver v. Ward

Weaver brought an action of trespass of assault and battery against Ward. The defendant pleaded, that he was amongst others by the commandment of the Lords of the Council a trained soldier in London, of the band of one Andrews captain; and so was the plaintiff, and that they were skirmishing with their muskets charged with powder for the exercise in re militari [in a military matter], against another captain and his band; and as they were so skirmishing the defendant casualiter & per infortunium & contra voluntatem suam [accidentally and by misfortune and against his will] in discharging his piece did hurt and wound the plaintiff, which is the same, & c. absque hoc [without this], that he was guilty aliter sive alio modo [otherwise or in another manner]. And upon demurrer by the plaintiff, judgment was given for him; for though it were agreed, that if men tilt or turney in the presence of the King, or if two masters of defence playing their prizes kill one another, that this shall be no felony; or if a lunatic kill a man, or the like, because felony must be done animo felonico [with a felonious mind]; yet in trespass, which tends only to give damages according to hurt or loss, it is not so; and therefore if a lunatick hurt a man, he shall be answerable in trespass; and therefore no man shall be excused of a trespass (for this is in the nature of an excuse, and not of a justification, prout ei bene licuit [as is properly permitted to him]), except it may be judged utterly without his fault.

As if a man by force take my hand and strike you, or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging, or had set forth the case with the circumstances, so as it had appeared to the Court that it had been inevitable and that the defendant had committed no negligence to give occasion to the hurt.