From the evidence on the part of the plaintiff, it appeared that the defendant Exhill was clearing and burning off some land adjoining to that in the plaintiff's possession, and that the fire communicated to the stubble on the plaintiff's ground, and to a stack of wheat which was entirely consumed.  The plaintiff endeavoured to shew that the other defendant Cox was present, and giving directions for the burning off.

For the defence it was contended that the main ingredient in the plaintiff's case was negligence on the part of the defendants.  On the part of the defendant Cox, if it were intended to make him liable in this action, it must be proved that he had given immediate direction for the act, the consequence of which is now complained of, and that the damage done was immediately consequential upon that direction.  The defendant Cox had previously directed Exhill to clear the land.  Burning off formed no part of that direction.  On the part of the defendant Exhill, it appeared that Coghlan had stated to several persons that the mischief complained of was caused by Slaven, one of the plaintiff's witnesses, who was burning stubble on the ground in question.  The whole evidence for the defendant went to shew that Slaney set fire to the stubble, which communicated with the stack in question.

The learned Judge told the Assessors to consider by whose neglect or what accident was the plaintiff's wheat consumed.  One version of the story was, that Cox had given directions to fall and fire timber, which, not being managed properly, was the cause of the stack being burned.  If this were the case, the principle of master and servant applied, and Cox would be answerable for the acts of Exhill.  If in the course of falling and firing accidents happen to any of the neighbours, both are liable.  Another version of the story is, that Slaven was burning off, and the fire communicated to the stack.  If this were true, of course the present defendants would not be liable.  A man must so use his own right, as not thereby to injure his neighbour.  If individuals use extraordinary means, they are bound to take extraordinary caution to prevent accidents.  It was the province of the Assessors to decide upon this statement of the case, what were the facts, and upon those facts who was entitled to their verdict.

The Assessors found a verdict for the defendants.

S. Stephen for plaintiff; Norton for defendants.