Martn's Executors v. Miller

Scott, Judge, delivered the opinion of the court. This case was formerly here, and is reported in the 1,6 Mo. Rep. 508. The only question now presented for our determination is, whether, if the defendant fired his land on'Sunday, he was not a wrong doer, and liable for all damages resulting from his illegal act. It will he borne in mind that the declaration is at common law, (this action having been commenced in October, 1847,) and for damages resulting from the act of firing the defendant’s land, from which the fire escaped and burned the rails and fence of the plaintiff. The act is^ alleged to have been done on the 28th day of March, 1847, which was Sunday. 1. It was argued for the appellant, that the almanac is a part of the law of the land, and that the court will consequently take notice that the 28th day of March, 1847, was Sunday, and being such day, the act of firing his land by the defendant was illegal, and he is liable for all damages flowing from it. One test by which the materiality of the averment that the kindling the fire was on the 28th of March, 1847, may be ascertained, is to suppose a plea filed to the declaration denying that the fire was kindled on that day. Such a plea would be obviously bad, as it would contain a negative pregnant. The action brought is for negligently keeping fire set out on his land by the defendant. Under this declaration, the plaintiff cannot [393] try whether the defendant did unlawfully set fire to his land on Sunday, and thereby injure the plaintiff. Had the action been fpr illegally kindling the fire on Sunday, the. declaration should have been framed under the section of the statute prohibiting labor on that day, and have negatived the exceptions therein contained. The declaration in this case is clearly bad as a declaration under that section of the staute. It will not be necessary to cite authority to show that, under a declaration for one cause of action, another and a different cause of action cannot be tried. Judge Ryland concurring, the judgment will be affirmed.