In America there have been several decisions to the point. In Brown v. Kendall, /2/ Chief Justice Shaw settled the question for Massachusetts. That was trespass for assault and battery, and it appeared that the defendant, while trying to separate two fighting dogs, had raised his stick over his shoulder in the act of striking, and had accidentally hit the plaintiff in the eye, inflicting upon him a [106] severe injury. The case was stronger for the plaintiff than if the defendant had been acting in self-defence; but the court held that, although the defendant was bound by no duty to separate the dogs, yet, if he was doing a lawful act, he was not liable unless he was wanting in the care which men of ordinary prudence would use under the circumstances, and that the burden was on the plaintiff to prove the want of such care. In such a matter no authority is more deserving of respect than that of Chief Justice Shaw, for the strength of that great judge lay in an accurate appreciation of the requirements of the community whose officer he was. Some, indeed many, English judges could be named who have surpassed him in accurate technical knowledge, but few have lived who were his equals in their understanding of the grounds of public policy to which all laws must ultimately be referred. It was this which made him, in the language of the late Judge Curtis, the greatest magistrate which this country has produced. Brown v. Kendall has been followed in Connecticut, /1/ in a case where a man fired a pistol, in lawful self-defence as he alleged, and hit a bystander. The court was strongly of opinion that the defendant was not answerable on the general principles of trespass, unless there was a failure to use such care as was practicable under the circumstances. The foundation of liability in trespass as well as case was said to be negligence. The Supreme Court of the United States has given the sanction of its approval to the same doctrine. /2/ The language of Harvey v. Dunlop /3/ has been [107] quoted, and there is a case in Vermont which tends in the same direction. /1/