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When the de

the defendants, as sheriff, seized part of the furniture, although notice was given to the officer that it was the property of the plaintiff. The plaintiff having brought an action of trespass, the judge who tried the cause thought that trespass would not lie; however, a verdict was taken for the plaintiff, with liberty for the defendants to move to enter a nonsuit.

Per Cur. The distinction between trespass and trover is well settled; the former is founded on possession, the latter on property. Here the plaintiff had no possession. His remedy was by an action of trover,* founded on his property in the goods taken. Rule absolute. See 1 T. R. 480.

5.

DAY V. EDWARDS. T. T. 1794. K. B. 5 T. R. 648. S. P. SAVIGNAC v. ROOME. M. T. 1704. K. B. 6 T. R. 125.

In case; the plaintiff declared that he was driving a landaulet, claration charges drawn by one horse, and that the defendant, on the same day, was that the defend- driving a horse and cart, then under his management, and that

ant furiously drove against the plaintiff's carriage, the action should be trespass;

Or where, in an action for running down a

ship, the injury is stated to have been done wilfully.

the defendant so furiously and negligently drove the cart and horse, that it struck with great force and violence upon and against the carriage of the plaintiff. To which the defendant demurred specially, assigning for causes, that the declaration was for a mere consequential injury, whereas it appeared to have been an immediate and direct trespass; that the plaintiff had declared in trespass on the case, whereas it ought to have been trespass vi et armis, &c. Joinder in demurrer.

Per Cur. The distinction between the action of trespass vi et armis and on the case is perfectly clear. If the injury be immediate, the action must be trespass; if the injury be merely consequential, case is the proper remedy. And as the plaintiff complains of an immediate act, he should have brought trespass. Judgment for the defendant.

See 1 Stra. 636; 2 Blac. 892; 2 Wils. 259; 6 T. R. 125; 8 T. R. 188.

6.

OGLE AND ANOTHER V. BARNES AND OTHERS. T. T. 1799. K. B. 8 T. R. 188.

In an action on the case, the declaration alleged negligence and unskilfulness in the defendants' management of a ship, by reason whereof she ran foul of the plaintiffs' vessel with great force and violence. After verdict for the plaintiff, a motion was made in arrest of judgment, on the ground that the action ought to have been trespass,

not case.

Per Cur. The jury having found a verdict for the plaintiffs, we must consider that the complaint set forth in the declaration was proved, and for such an injury an action upon the case is the proper remedy. But the negligent and improvident management of the defendants' ship did not imply that any act was done by them, after having been guilty of the negligence which led to the mischief; they might have done every thing in their power to avoid the mischief, and then the running against the plaintiffs' vessel might have been

*That trover would not lie, pending the demise, see Gordon v. Harper, 7 T. R. 9 ; and post, tit. Trover. A special action on the case is the only remedy.

owing to the wind and tide. Had the defendants been charged with having committed the act wilfully the rule would have been different. Rule discharged.

See Reynolds v. Clarke, 1 Stra. 634; Haward v. Banks, 2 Burr. 1113; Davy v. Edwards, 5 T. R. 648; Savignac v. Roome, 6 T. R. 125; Tripe v. Potter, 6 T. R. 128; Morley v. Gaisford, 2 H. P. C. 442; Weaver v. Ward, Hob. 134; Scott v. Shepherd, 2 Blac. Rep. 892; S. C. 3 Wils. 403; Turner v. Hawkins, 1 B. & P. 472; 1 East, 106; 3 East, 593; 1 Sel. N. P. 435.

7.

TURNER V. HAWKINS. E. T. 1796. Ex. Cha. 1 B. & P. 472.

boat, and

In an action on the case the declaration stated, that the plaintiff A. declared in was possessed of a certain boat then navigating on a navigable river, case against B. and there drawn by certain horses affixed, and that the said vessel for sinking his was under the superintendance of his servants; the declaration stated that B. then alleged, that the defendant had also a vessel navigating on the neglected to same river, which was then and there hauled along the same river by slacken certain horses, and was under the guidance of the defendant's servants; and ropes, that he that at the time of the committal of the act complained of, the plaintiff horses attached had occasion to pass the defendant's vessel, and the defendant's servants to them, with ought to have slackened the ropes to which the horses were attached, force and vioso as to permit the plaintiff to have passed; yet the said defendant, lence, and thereby his servants, did not, nor would loosen the lines, or suffer the by forced, &c.; held in error, plaintiff's vessel to pass the boat of the defendant, but, on the after verdict, contrary, wrongfully and unlawfully drove the boat with force and that the word violence, and thereby forced their boat against the plaintiff's vessel, "thereby " by reason whereof the plaintiff's vessel was greatly damaged, and should be taken Second count nearly thereby he lost the benefit of a voyage, &c. similar to the first. Third and fourth, for improperly navigating ele their vessel.

to have reference to the

that the decla

The defendant pleaded not guilty, and the plaintiff obtained a ver- ration was suffidict. Upon a writ of error being brought, the plaintiff in error cient to support assigned for cause, that the declaration included two different forms the judgment. of actions, distinct in their nature; to wit, causes of action for an immediate injury, which is trespass; and causes of action for a consequential damage, which is the object of an action on the case.

Per Cur. We are of opinion, that after verdict this declaration may be justly supported, to entitle the plaintiff to judgment. Here it was incumbent on the defendant's servants to have slackened the lines so as to have enabled the plaintiff to have passed; consequently it is palpably clear that this action is brought for a non-feasance; and hence it may be inferred, that the plaintiff did not intend to charge the defendant with wilfully driving, &c. nor is it stated that he drove wilfully, but wrongfully; therefore, we think the circumstances alleged clearly prove it to be a non-feasance, for which case is maintainable.

8.

LEAME V. BRAY. E. T. 1803. K. B. 3 East, 593; S. C. 5 Esp. 18.

Trespass; the declaration stated, that the defendant drove and Where a party struck a single horse chaise which he was then driving along the driving on the highway, with such force and violence upon and against the wrong side of plaintiff's curricle, and the horses drawing it, and in which the dentally comes

the road acci

in percussion with the carriage of the plaintiff, held that trespass was properly. brought.

When the injury is merely attributable to neglect, the party injured has an

election either to

plaintiff was then driving, that by means thereof the horses took fright, and ran away; upon which the plaintiff, to preserve his life, jumped out and fell upon the ground, and broke his collar bone. Plea not guilty. At the trial it appeared, that the accident happened on a dark night, owing to the defendant driving his carriage on the wrong side of the way, without any design on his part to injure the plaintiff; the objection that the injury having resulted from negligence, and not from design, that the form of action should have been case, and not trespass, was taken and allowed, and the plaintiff accordingly nonsuited. A motion was made to set it aside; 1st. On the ground that it was immaterial, in order to decide as to the form of action, to consider whether or not the defendant intended to injure the plaintiff; 2d. That the defendant had impelled the horse forward, and from that the injury happened, and so there being an immediate injury from an immediate act of force by the defendant, the proper remedy was trespass.

Per Cur. The distinction between the propriety of adopting case or trespass consists, not in the consideration whether or not the injury was wilful, but whether the injury was direct and immediate, or mediate and consequential. Here, if the defendant had simply placed his chaise in the road, and the plaintiff had run against it, the injury would not have been direct, but in consequence of the defendant's previous improper conduct, and case would have been proper; but the injury happened from the immediate act of driving, which occasioned the concussion of the carriage, and trespass has been properly adopted. Rule absolute.

See Hob. 134; 1 Stra. 596; Tripe v. Potter, 6 T. R. 128; and 8 id. 191; Ogle v. Barnes, 8 T. R. 188; Scott v. Shepherd, 3 Wils. 403; 2 Bl. 895. S. C.; Reynolds v. Clarke, 2 Ld. Raym. 1402; 1 Str. 636; Bull. N. P. 26. 79; Day v. Edwards, 5 T. R. 649; 2 Hen. 7. c. 28. a; 1 East, 106; 2 Lev. 172; 6 T. R. 659; 2 Campb. 464; 3 id. 187; 2 N. R. 117; Wayde v. Carr, 2 D. & R. 255.

9.

ROGERS V. IMBLETON. H. T. 1806. C. P. 2 N. R. 117. SHELDRICK
V. ABERY. 1793. 1 Esp. 55.

The plaintiff declared against the defendant for driving his cart against the plaintiff's horse with force and violence, alleging it to treat the negli- have been done "by and through the mere negligence, inattention, gence of the de- and want of proper care of the defendant." The defendant demurred, fendant as the on the ground that the declaration ought to have alleged that the act cause of action, had been committed vi et armis. But the Court were clearly of case; or consider opinion, that as the declaration charged the defendant with mere negligence, the demurrer could not be sustained.

and declare in

the act itself as

the injury, and declare in tres

pass.

Trespass may be

owner of one

In this case, Sir J. Mansfield, C. J. expressed his disapprobation of the decision pronounced in Leame v. Bray, supra.

10

COVELL V. LAMING. M. T. 1808. 1 Campb. 497.

In an action of trespass for running the defendant's ship against supported by the the plaintiff's, it appeared that at the time of the accident the defenvessel against the dant was on board his ship, at the helm, but that there was a desire on the part of the defendant to steer clear of the plaintiff, and that the accident was to be ascribed to the mere unskilfulness of the

owner of an

other, who is

defendant. It was contended, that as the act was not wilful, an himself at the action on the case was the proper remedy; but helm, and by

tiff's vessel is

Per Ellenborough, C. J. "Whether the injury complained of whose unskilfularises directly or follows consequently from the act of the defendant, ness the plainI consider as the only just and intelligible criterion of trespass and case. unintentionally The winds and the waves were only instrumental in carrying her along run down." in the direction which the defendant commanded. The force, therefore, originated with him."

11.

DEAN V. BRANTHWAITE. T. T. 1803. 5 Esp. 35.

chaise and horse, driven by his own servant, has

Trespass, for violently and immoderately driving the plaintiff's A stable-keeper horses, by reason of which one of them died. The defendant pleaded who lets out a a special justification, stating the facts which were afterwards proved in evidence. It appeared, that the plaintiff had let the horses to the defendant to draw his carriage; that the defendant during the such a possession journey conceiving that one of the postilions was intoxicated, forcibly as will enable pulled him off his horse and mounted the animal himself, and rode him to maintain so violently that the horse died with fatigue. It was objected that trespass for an injury done the remedy had been misconceived, as the horses were let to the by the hirer; defendant for a limited purpose, who had during that time the complete control over them; that it was only a breach of trust, and could not be converted into a trespass.

Per Lord Ellenborough. This objection to the form of action cannot avail. A person who hires horses to convey him in the manner here stated has not the entire management and power over the horses; they continue under the control of the stable-keeper's servants, who were entrusted with the driving, and the stable-keeper is answerable for any accident produced by the post-boy's misconduct on the road. Verdict for plaintiff.

See 1 B. & P. 409; 1 East, 106; 1 Chit. Pl. 71.

12.

LOTON V. CROSS. T. T. 1810. K. B. 2 Campb. 464.

Trespass, for running against the plaintiff's chaise and damaging Or where there it. It appeared that the plaintiff had lent the vehicle gratuitously is a gratuitous to a third person, who was in actual possession of it at the time of permission to the accident. On this ground it was suggested that trespass was not the possession the appropriate remedy.

use a chattel, as

constructively re

Sed per Lord Ellenborough. Where there is a gratuitous permission mains in the to use a chattel, the possession constructively remains in the real owner, he may owner, and he is entitled to maintain trespass for any immediate injury maintain trespass to it, notwithstanding the temporary bailment.

See 1 T. R. 480.

* The following rules, extracted from the judgment delivered by Lord Stowell, in the High Court of Admiralty, in the case of the Woodrose v. Sims, may be useful:There are four probabilities, he says, urder which an accident of this sort may occur. In the first place, it may happen without blame being imputable to either party, as where the loss is occasioned by a storm, or any other vis major. In that case the misfortune must be borne by the party on whom it happens to light, the other not being responsible to him in any degree. Secondly, a misfortune of this kind may arise where both parties are to blame, where there has been a want of skill or of due diligence on both sides. In such a case the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both of them. Thirdly, it may happen by the misconduct of the suffering party only, and then the rule is, that the sufferer must bear his own burthen. Lastly, it may have been the fault of the ship which ran the other down, and in this case the injured party would be entitled to an entire compensation from the other. See 2 Dodson, Adm. Rep. 85.

for an immediate injury to it.

But if A.'s

13.

HALL V. PICKARD. 1812. 3 Campb. 187.

In an action on the case, it appeared that the owner of a horse had horses are hired let him to hire for a limited period, during which the animal was by B., and C. killed, by the defendant driving his cart violently against him.

drives a cart against them, A.'s remedy is case for the injury done to his reversionary interest.

The hirer of a carriage, who

coachman and

furnishes the

Per Lord Ellenborough. The horse having been let to a third party for a certain time, which was unexpired at the moment of the accident, the remedy adopted by the plaintiff is the proper and correct This is in the nature of an action for an injury to the plaintiff's

one.

reversion.

See 1 Campb. 360; 7 T. R. 431; 1 Price, 53.

14.

CROFT V. ALISON. T. T. 1821. K. B. 4 B. & A. 590.

The plaintiffs declared as the owners and proprietors of a chariot, and that the defendant carelessly and negligently drove against the appoints his own vehicle and damaged it. On the trial, it appeared that the plaintiffs had hired the drivers and horses, and that the injury had arose from horses, may sue the defendant's coachman improperly whipping the plaintiffs' horses. as the owner and On a motion for a new trial, it was objected that the plaintiffs had proprietor of it, been mis-described, in stating them to be the owners and proprietors of the chariot.

and may sue in

case.

Trespass will lie

Sed per Cur. The plaintiffs might well be considered, for the purposes of the declaration, as the owners and proprietors of the carriage; they were not mere temporary passengers, but had hired the vehicle for the day.

(d) Injuries to the person.

1.

UNDERWOOD V. HEWSON. T. T. 1723. K. B. 1 Stra. 596.

The defendant was uncocking a gun, and the plaintiff standing to for an immediate look at it, it went off and wounded him. It was holden that the injury to the person, though un- plaintiff might maintain trespass.

intentionally

committed;

Hence where a lighted squib

market, and

afterwards

others in self

See 27 Hen. 7. 28; Weaver v. Ward, Hob. 134; per Lord Ellenborough, and Lawrence, J., 3 East, 595; 3 Wils. 411; 2 Bl. Rep. 894.

2.

SCOTT V. SHEPHERD. E. T. 1773. K. B. 3 Wils. 403; 2 Blac. 892. This was an action of trespass and assault against the defendant, was thrown in a for throwing lighted squibs at and against the plaintiff, and striking him therewith on the face, whereby he was deprived of the sight of thrown about by one of his eyes. On not guilty pleaded, it appeared at the trial that the defendant, on the evening of the fair at Milborne Port, threw a lighted squib, consisting of gunpowder and other combustible the plaintiff, the materials, from the street into the market-place, and the squib being injury was contossed from hand to hand by different persons to save their own sidered as the property, was ultimately thrown in the plaintiff's face, and the immediate act of combustible materials bursting, put out one of his eyes. The jury

defence, and

ultimately hurt

the first thrower,

and a trespass.

• Lord Ellenborough, in Leame v. Bray, 3 East, 596; that the above case of Scott v. Shepherd went to the limit of the law.

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