Ir is perfectly clear, that if an injury be done to A. by the immediate force of B., the former may bring trespass; and it is equally clear that if the injury be not immediate, but merely consequential, he cannot sue in trespass; and that his remedy, if any, is by action on the case for consequential damages: these two propositions are well illustrated by the case put in the text, of a man throwing a log into the highway. If the log strike A. in its fall, he may sue in trespass; but if, after it is lodged, and rests upon the ground, he stumble over it, and so receive an injury, case is his only remedy. See Com. Di. Pleader Action on the case, A. ibid. B. (6); Leame v. Bray, 3 East, 593; Covell v. Laming, 1 Camp. 697; Chandler v. Broughton, 1 Cr. & Mee. 29; 3 Tyrwh. 220.

However, although trespass lies wherever the injury done to the plaintiff results from the immediate force of the defendant, still there are many instances in which the plaintiff, though he may adopt that form of action, is not bound to do So, but may sue in case.

In

Moreton v. Hardern, 4 B. & C. 224, the declaration stated that the defendants drove their coach so negligently and carelessly that the wheel ran with great force against the plaintiff, whereby one of his legs was broken. It was proved that one of the defendants was personally driving when the accident occurred; and it was

In

thereupon urged that the action should have been trespass, not case. The court, however, decided that case would lie, and Bayley, J., gave the following historical account of the progress of the law upon this subject. "It was long," said his lordship, “vexata quæstio, whether case could be brought when the defendant was personally present, and acting in that which occasioned the mischief. Early in my professional experience, case was the form of action usually adopted for such injuries. Lord Kenyon's time a doubt was raised upon the point, and he thought that, where the act was immediately injurious, trespass was the only action that could be maintained for that injury. Leame v. Bray was an action of trespass. On the trial, Lord Ellenborough thought it should have been case, but on further consideration this court was of opinion that trespass was maintainable, but they did not decide that an action on the case would have been improper. Looking at the other cases on the subject, it is difficult to say that an action on the case will not lie for an injury sustained by the negligent driving of a coach, though one of the proprietors was the person guilty of that negligence. In Ogle v. Barnes, 8 T. R. 188, which was an action for negligently steering a ship, the declaration alleged that the ship was under the care of Barnes, one of the defendants, and of certain servants

*

of the defendants, and that through their negligence the injury was sustained; and it was never urged that the action should have been trespass, and not case, because one of the defendants was on board, but on the ground of the injury being immediate. In Rogers v. Imbledon, 2 N. R. 117, which was decided after Leame v. Bray, it was alleged that the defendant was driving a cart, and took such bad care of the cart and horse, that it ran with great force against the plaintiff's horse. To that there was a demurrer upon the authority of Leame v. Bray, the action being in case; but the court was clearly of opinion that case would lie, and the demurrer was overruled. In Huggett v. Montgomery, 2 N. R. 446, although the defendant was on board, yet the ship was not under his immediate care and management, but under that of a pilot; and on that ground case was held to be the proper form of action. It is not necessary to say that trespass could not, in this case, have been sustained against Hardern; no doubt that action lies where an injury is inflicted by the wilful act of the defendant; but there is no doubt that case also lies where the act is negligent, and not wilful." This judgment has been cited at some length, because it contains a complete history of the progress of the law up to the decision in Moreton v. Hardern. The right of the plaintiff to bring case, where

the act for which he sues, although committed with immediate force, is negligent, not wilful, is fully established in Williams v. Holland, 10 Bingh. 113, where all the previous cases, having any bearing on the subject, will be found collected in the argument of Jones, Serjeant. The declaration charged that the defendant so carelessly, unskilfully, and improperly drove his gig, that through the carelessness, negligence, unskilfulness, and improper conduct of the defendant, the said gig struck with great violence against the cart and horse of the plaintiff. The jury having found a verdict of guilty on the ground of negligence, it was objected that the action should have been trespass, not case; but the Court of Common Pleas were of opinion that Moreton v. Hardern had "laid down a plain intelligible rule, that where the injury is occasioned by the carelessness and negligence of the defendant, the plaintiff is at liberty to bring an action on the case, notwithstanding the act is immediate, so long as it is not a wilful act." See also Wheatly v. Patrick, 2 Mee. & Welsb. 651; and there are other instances in which the plaintiff has his choice of case and trespass, as where one man builds his house overhanging that of another, so that the rain falls on it, Wells v. Ody, Judgment of Parke, B., 1 M. & W. 462; Raine v. Alderson, 4 Bing. N. C. 702. It is, however, clear from Leame v. Bray, and Chandler v.

Broughton, 1 Cr. & Mee. 29, 3 Tyrwh. 220, that the plaintiff may, if he please, bring trespass, whenever the injury is immediate, even though it be not wilful; and it is equally clear that, where the injury, which forms the gist of the action, is both wilful and immediate, trespass is the only remedy. Savignac v. Roome, 6 T. R. 125; Day v. Edwards, 5 T. R. 648; Weeton v. Woodcock, 7 Dowl. 853: The words which forms the gist of the action are printed in italics, because it is apprehended that the proposition laid down by Blackstone, J., in the text, p. 215, is correct, viz. that wherever a trespass occasions consequential damage, the trespass itself may be waived, and case brought for the consequential damage. See Wells v. Ody, 5 Dowl. 95; Raine v. Alderson, 4 Bing. N. C. 702. See however the judgment of Parke, B., in Weeton v. Woodcock, 7 Dowl. 857. In Comyn's Digest. Action on the Case, B. (6), the distinction is clearly stated as follows, viz. "So it (i. e. case) does not lie for a mere trespass, as for taking down the walls and pulling down the tiles from a house, unless it be alleged that the timber was thereby rotted, 1 Roll. 104."

Where the defendant elects to sue in case for an immediate but negligent act of violence, he must pay much attention to the wording of his declaration, and take care to introduce no expressions which import an exertion of wilful force.

In Day v. Edwards, 5 T. R. 648, a declaration in case alleged that the defendant "so furiously, negligently, and improperly drove his cart and horse, that through the furious, negligent, and improper conduct of the defendant, the cart and horse were driven against the plaintiff's carriage." This was held bad on special demurrer; and is distinguished from Williams v. Holland, by Tindal, C. J., on the ground that the declaration imported wilful violence, 10 Bing. 116. There is sometimes a good deal of difficulty in determining whether a count be in case or trespass, see Hensworth v. Fowkes, 4 B. & Ad. 461. Smith v. Goodwin, Ibid. 413. Holland v. Bird, 10

Bing. 15.

There are other instances in which trespass and case lie concurrently. Where goods are tortiously taken out of the plaintiff's possession, trover, which is a form of action on the case, may be maintained for the conversion, which, and not the tortious taking, is then the gist of the action; and "if trover will lie, which is only a subdivision of action on the * case, why should not case also in its more expanded form?" per Tindal, C. J., in Holland v. Bird, 10 Bing. 18. In that case the form of the count was, that the defendant having distrained the plaintiff's goods for rent, the plaintiff tendered the rent in arrear and the costs of the distress, which the defendant ought to have accepted

and re-delivered plaintiff's goods, but wrongfully refused so to do: this was held the proper subject of an action on the case. See on the same point Branscombe v. Bridges, 1 B. & C. 145. Smith v. Goodwin, 4 B. & Ad. 413.

Another class of cases, and certainly rather an anomalous one, comprehends actions for criminal conversation and for seduction; for both which injuries trespass and case are held to lie concurrently. See 2 T. R. 167, 6 East, 388. In Woodward v. Walton, 2 New Rep. 476, the declaration contained two counts; the first stating that the defendant broke and entered the plaintiff's house, and there assaulted and debauched his daughter; the second omitted the breaking and entering the dwelling-house, but stated that the defendant assaulted and debauched his daughter, per quod servitium amisit. On a motion to arrest judgment the question was learnedly argued, and the previous authorities on both sides cited; and the court, after consideration, were of opinion that the action was rightly brought. "In actions like the present," said Sir J. Mansfield, C. J., delivering judgment, as far as my recollection goes, the form of the declaration has always been in trespass, vi et armis et contra pacem. I cannot distinguish between this action and an action for criminal conversation. If that be the subject of trespass, this must be so too.

66

In the action for criminal conversation the violence is not the ground of the action: both in that case and this, if the injury were committed with violence, it would amount to a rape. I therefore do not see any good reason why either of them should be the subject of an action of trespass. In actions by a master for an assault on his servant, per quod servitium amisit, there is no trespass against the plaintiff; the sole foundation of the action is the loss of service. Yet this also has been considered as an action of trespass. All these cases are the same in principle, and fall within the same rule." His lordship then cited and commented upon several of the authorities, and concluded by stating himself perfectly satisfied that the injury complained of was the subject of an action of trespass, accord. Ditcham v. Bond, 2 M. & S. 436; where Woodward

V.

Walton was recognised, and acted upon.

One class of cases, illustrative of the distinction between case and trespass, consists of those in which the subject-matter of complaint is an arrest. If one man maliciously, and without probable cause, procure another to be arrested either by civil or criminal process, that is the subject-matter of an action on the case, for the tort consists not in any immediate violence to the plaintiff's person, but in communicating an improper direction to the process of the