LEAME v. BRAY.

COURT OF KING'S BENCH, 1803.

3 East 593.

This was an action of trespass, in which the plaintiff declared that the defendant with force and arms drove and struck a singlehorse chaise which the defendant was then driving along the king's highway with such great force and violence upon and against the plaintiff's curricle drawn by two horses, and upon and against the said horses so drawing, etc., and in which said curricle the plaintiff was then and there riding with his servant, which servant was then driving the said curricle and horses along the king's highway aforesaid, that by means thereof the plaintiff's servant was thrown out of the curricle upon the ground, and the horses ran away with the curricle, and while the horses were so running away with the curricle the plaintiff, for the preservation of his life, jumped and fell from the curricle upon the ground and fractured his collar bone, etc. Plea, not guilty.

It appeared in evidence at the trial before Lord Ellenborough, C. J., at the last sittings at Westminster, that the accident described in the declaration happened in a dark night, owing to the defendant driving his carriage on the wrong side of the road, and the parties not being able to see each other; and that if the defendant had kept his right side there was ample room for the carriages to have passed without injury. But it did not appear that blame was imputable to the defendant in any other respect as to the manner of his driving. It was therefore objected for the defendant, that the injury having happened from negligence, and not wilfully, the proper remedy was by an action on the case and not of trespass vi et armis; and the plaintiff was thereupon nonsuited."

LORD ELLENBOROUGH, C. J.: The true criterion seems to be according to what Lord C. J. DeGrey says in Scott v. Shepherd, 2 Wm. Blackstone's Rep. 892, whether the plaintiff received an injury by force from the defendant. If the injurious act be the immediate

etc. Hurst v. Carlisle, 3 P. & W. (Pa.) 176 (1831); Petit v. Colmery, 4 Penn. (Del.) 266 (1903).

Trespass de bonis asportatis, the unlawful appropriation of or interference with personal property. Phillips v. Hall, 8 Wend. (N. Y.) 610 (1832); Crawford v. Waterson, 5 Fla. 472 (1854); Erisman v. Walters, 26 Pa. 467 (1856). The action is frequently concurrent with trover. Stanley v. Gaylord, I Cush. (Mass.) 536 (1848); see, also, Dame v. Dame, 43 N. H. 37 (1861).

Trespass quare clausum fregit, an unlawful entry upon or an immediate injury to real property in the possession of the plaintiff. Gregory v. Pipe, 9 B. & C. 591 (1829); Rucker v. McNeely, 4 Blackf. (Ind.) 179 (1836); Sturgis v. Warren, 11 Vt. 433 (1839); Maxwell v. Maxwell, 31 Maine 184 (1850); Collins v. Beatty, 148 Pa. 65 (1892); Kent C. A. Society v. Ide, 128 Mich. 433 (1901); Moore v. Duke, 84 Vt. 401 (1911); Collier v. Ulster & Del. R. Co., 72 Misc. (N. Y.) 274 (1911); Beasley v. Byrum, 163 N. Car. 3 (1913). It applies to an interest in land only. Burleigh v. Ford, 59 N. H. 536 (1880); Stocks v. Booth, 1 T. R. 428 (1786).

The arguments of counsel are omitted.

result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis by all the cases both ancient and modern. It is immaterial whether the injury be wilful or not. As in the case alluded to by my brother Grose, where one shooting at butts for a trial of skill with the bow and arrow, the weapon then in use, in itself a lawful act, and no unlawful purpose in view; yet having accidentally wounded a man, it was holden to be a trespass, being an immediate injury from an act of force by another. Such also was the case of Weaver v. Wood, in Hob. 134, where a like unfortunate accident happened whilst persons were lawfully exercising themselves in arms. So in none of the cases mentioned in Scott v. Shepherd did wilfulness make any difference. If the injury were received from the personal act of another, it was deemed sufficient to make it trespass. In the case of Day v. Edwards, 5 Term Rep. 648, the allegation of the act having been done furiously was understood to imply an act of force immediately proceeding from the defendant. As to the case of Ogle v. Barnes, 8 Term Rep. 188, I incline to think it was rightly decided; and yet there are words there which imply force by the act of another; but, as was observed, it does not appear that it must have been the personal act of the defendants; it is not even alleged that they were on board the ship at the time; it is said indeed that they had the care, direction, and management of it; but that might be through the medium of other persons in their employ on board. That therefore might be sustained as an action on the case, because there were no words in the declaration which necessarily implied that the damage happened from an act of force done by the defendants themselves. I am not aware of any case of that sort where the party himself sued having been on board this question has been raised. But here the defendant himself was present, and used the ordinary means of impelling the horse forward, and from that the injury happened. And therefore there being an immediate injury from an immediate act of force by the defendant, the proper remedy is trespass; and wilfulness is not necessary to constitute trespass.

GROSE, J.: I am of the same opinion. Looking into all the cases from the year book in the 21 H. 7 down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass. The case mentioned from Strange, that in Hobart, and those in the Term Reports, all agree in the principle.

LAWRENCE, J.: I am of the same opinion. It is more convenient that the action should be trespass, than case; because if it be laid in trespass, no nice points can arise upon the evidence by which the plaintiff may be turned round upon the form of the action, as there may in many instances if case be brought; for there if any of the witnesses should say that in his belief the defendant did the injury wilfully, the plaintiff will run the risk of being nonsuited. But in actions of trespass the distinction has not turned either on the lawfulness of the act from whence the injury happened, or the design of

the party doing it to commit the injury; but, as mentioned by Mr. Justice Blackstone in the case of Scott v. Shepherd, 2 Blac. Rep. 895, on the difference between injuries direct and immediate, or mediate and consequential; in the one instance the remedy is by trespass, in the other by case. The same principle is laid down in Reynolds v. Clarke, 2 Ld. Raym. 1402. As to Ogle v. Barnes, I certainly did not mean to say that the distinction turned on the wilfulness of the act; I only made use of the word wilful to distinguish that from other cases which had been mentioned where the injurious acts were averred to be wilfully done, and where as the acts complained of were charged as intentional, and the injuries done immediately referred to them, trespass was determined to be the proper remedy. And so I understand what was there said by my brother Grose. What I principally relied on there was, that it did not appear that the mischief happened from the personal acts of the defendants; it might have happened from the operation of the wind and tide counteracting their personal efforts at the time; or indeed they might not even have been on board. Alleging that the defendant negligently did such an act may be sustained by proof that it was done by his servant in his employ in the absence of the master, according to Michael v. Alestree, 2 Lev. 172, followed up by Brucker v. Fromont, 6 Term Rep. 659. Those were actions on the case, and are reconcilable with M'Manus v. Crickett, 1 East. 106, in which case the court held that trespass would not lie against a master for the wilful act of his servant in driving his master's carriage against another's carriage, against the will of his master.

LE BLANC, J.: In many of the cases the question has come before the court upon a motion in arrest of judgment, where the court in determining whether trespass or case were the proper remedy, have observed on the particular language of the declaration. But in all the books the invariable principle to be collected is, that where the injury is immediate on the act done, there trespass lies; but where it is not immediate on the act done, but consequential, there the remedy is in case. And the distinction is well instanced by the example put of a man's throwing a log into the highway; if at the time of its being thrown it hit any person, it is trespass; but if after it be thrown, any person going along the road receive an injury by falling over it as it lies there, it is case. Neither does the degree of violence with which the act is done make any difference; for if the log were put down in the most quiet way upon a man's foot, it would be trespass; but if thrown into the road with whatever violence, and one afterwards fall over it, it is case and not trespass. So here, if the defendant had simply placed his chaise in the road, and the plaintiff had run against it in the dark, the injury would not have been direct, but in consequence only of the defendant's previous improper act. Here, however, the defendant was driving the carriage at the time with the force necessary to move it along, and the injury to the plaintiff happened from that immediate act; there

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This illustration is given by Fortescue, J., in Reynolds v. Clarke, 1 Str. 634 (1725).

ADAMS V. HEMMENWAY

221

fore the remedy must be trespass; and all the cases will support that principle. It is chiefly in actions for running down vessels at sea that difficulties may occur; because certainly the force which occasions the injury is not so immediate from the act of the person steering. The immediate agents of the force are the wind and waves, and the personal act of the party rather consists in putting the vessel in the way to be so acted upon; and whether that may make any difference in that case I will not now take upon me to determine. But here, where the personal force is immediately applied to the horse and carriage, the things acted upon and causing the damage, like a finger to the trigger of a gun, the injury is immediate from the act of driving, and trespass is the proper remedy for an immediate injury done by one to another; but where the injury is only consequential from the act done, there it is a case. Rule to set aside nonsuit made absolute.8

(j) Case.

ADAMS & HEMMENWAY.

SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1804.

1 Mass. 145.

In this case, "the defendant was attached to answer to the plaintiff in a plea of trespass, for the plaintiffs, at K., on the day of —, being owners and proprietors of a certain schooner called the Charles, of the burden of then and there, on the said day, despatched the said vessel, duly fitted and equipped, under the command of one Charles Adams, master of said vessel, on a voyage for P., in order to bring back a cargo of lumber from said P., and while said vessel was so proceeding on her voyage aforesaid, on the day of aforesaid, about three leagues from the land, to wit, at Plymouth aforesaid, the defendant being then and there sailing in a certain boat or vessel, the name of which is to the plaintiffs unknown, then and there, with force and arms, made an assault on

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Accord: Gates v. Miles, 3 Conn. 64 (1819); Percival v. Hickey, 18 Johns. (N. Y.) 256 (1820); Rappelyea v. Halse, 12 N. J. L. 257 (1831); Painter v. Baker, 16 Ill. 103 (1854). Compare Williams v. Holland, 10 Bing. 112 (1833). Trespass will lie for beating a drum in the highway where a wagon and team are passing, causing the horses to take fright and run away. Loubs v. Hafner, 1 Dev. (N. Car.) 185 (1827). See, also, Cole v. Fisher, 11 Mass. 137 (1814); Guille v. Swan, 19 Johns. (N. Y.) 381 (1822); Johnson v. Perry, 2 Humph. (Tenn.) 569 (1842); Brennan v. Carpenter, 1 R. I. 474 (1849); Maher v. Ashmead, 30 Pa. 344 (1858); Ricker v. Freeman, 50 N. H. 420 (1870).

While statutes have in many states abolished the procedural distinction between trespass and case, it is generally held that the substantive rights and liabilities of the parties are not thereby affected. Blalock v. Randall, 76 Ill. 224 (1875); Chicago T. & T. Co. v. Core, 223 Ill. 58 (1906); Cannon v. Horsey, 1 Houst. (Del.) 440 (1857); Pruitt v. Ellington, 59 Ala. 455 (1877); Rogers v. Duhart, 97 Cal. 500 (1893); Lawry v. Lawry, 88 Maine 482 (1896); Busch v. Calhoun, 14 Pa. Super. Ct. 578 (1900); Suter v. Wenatchee W. P. Co., 35 Wash. 1 (1904). Compare Coe v. English, 6 Houst. (Del.) 456 (1881).

the aforesaid vessel called the Charles, owned by the plaintiffs as aforesaid, and fired and discharged at the said vessel, and master and crew therein, a musket or fire-arm loaded with gunpowder and lead, and with the same grievously and dangerously wounded the said Charles Adams, master of the plaintiffs' vessel, so that, for the preservation of the life of said Charles Adams, the crew on board the plaintiffs' vessel were compelled to return therein to K. aforesaid, and the plaintiffs' intended voyage aforesaid has been broken up and defeated, and the plaintiffs have thereby lost all the freightmoney which they might have earned and gained in the intended voyage aforesaid, together with the passage-money for sundry passengers, who had then and there taken and engaged a passage to P. in said vessel; and other outrages the defendant then and there committed on the plaintiff's vessel, against the peace, etc."

Upon hearing the declaration read, the whole court (Strong, Sedgwick, Sewall and Thacher, justices) said it would be in vain to go on with the action; that the action should have been case, and not trespass; and that even if a verdict should be found for the plaintiffs, the court must arrest the judgment.

The plaintiffs discontinued upon payment of costs.

Attorney-General (Sullivan) and Thomas for the plaintiffs. Parsons and B. Whitman for the defendants."

Note. In an action of assault and battery, brought by the master, Charles Adams, against the defendant, (for the injury done him by the discharge of the musket,) which was tried at this term, the jury found a verdict for the master-$3,391 damages.

'Logan v. Feasor, 1 Yeates (Pa.) 586 (1795); Stump v. Kelly, 22 Ill. 140 (1859); Cotteral v. Cummins, 6 Serg. & R. (Pa.) 343 (1821); Bath v. Caton, 37 Mich. 199 (1877); Meyer v. Horst, 106 Pa. 552 (1884); Vogel v. McAuliffe, 18 R. I. 791 (1895); Welch v. Seattle & M. R. Co., 56 Wash. 97 (1909). For injuries by servants in the course of their employment, case is the proper remedy. Sharrod v. London & N. W. R. Co., 4 Exch. 580 (1849); Barnes v. Hurd, 11 Mass. 57 (1814); Phila. G. & N. R. Co. v. Wilt, 4 Whart. (Pa.) 142 (1838); Havens v. Hartford & N. H. R. Co., 28 Conn. 69 (1859); Mossessiau v. Callender, 24 R. I. 168 (1902).

ACTION ON THE CASE.

"In 1537, some two hundred and fifty years after the introduction of this writ, Sir Anthony Fitzherbert, in his treatise de Natura Brevium, the earliest authoritative abridgement of the common law gives a list of the then known actions on the case. There is no attempt at classification, but on analysis they will be found to fall into certain definite classes.

1. Cases illustrating what may be termed the primary use of the writthe normal extension of the principles underlying the formed writs of trespass to conditions closely analogous to those for which remedy was given by such writs, but where one or another of the precise technical requirements for the operation of such writs being lacking no redress was possible under them: (a) either because the harm resulted indirectly and not directly as required in trespass vi et armis, or (b) the property which was destroyed had been given to the defendant and not taken from the possession of the plaintiff as required in trespass de bonis asportatis, or (c) the property invaded was not within the protection of the writ of trespass quare clausum fregit; being a term of years or a franchise.

2. The second class of case deals with the secondary use of the writ, the use of it not to extend trespass, but to enforce duties and obligations having