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it, trespass lies. This is the case cited from 6 Edw. 4, 7. But then the entry is of itself an immediate wrong. And case will sometimes lie for the consequence of an unlawful act. If by false imprisonment I have a special damage, as if I forfeit my recognizance thereby, I shall have an action on the case; per Powel, J., 11 Mod., 180. Yet here the original act was unlawful, and in the nature of trespass. So that lawful or unlawful is quite out of the case; the solid distinction is between direct or immediate injuries on the one hand, and mediate or consequential on the other. And trespass never lay for the latter. If this be so, the only question will be whether the injury which the plaintiff suffered was immediate or consequential only; and I hold it to be the latter. The original act was, as against Yates, a trespass; not as against Ryal or Scott. The tortious act was complete when the squib lay at rest upon Yates' stall. He, or any bystander, had, I allow, a right to protect themselves by removing the squib, but should have taken care to do it in such a manner as not to endanger others. But Shepherd, I think, is not answerable in an action of trespass and assault for the mischief done by the squib in the new motion impressed upon it, and the new direction given it, by either Willis or Ryal; who both were free agents, and acted upon their own judgment. This differs it from the cases put of turning loose a wild beast or a madman. They are only instruments in the hand of the first agent. Nor is it like diverting the course of an enraged ox, or of a stone thrown, or an arrow glancing against a tree; because there the original motion, the vis impressa, is continued, though diverted. Here the instrument of mischief was at rest, till a new impetus and a new direction are given it, not only once
but by two successive rational agents. But it is said that the act is not complete, nor the squib at rest, till after it is spent or exploded. It certainly has a power of doing fresh mischief, and so has a stone that has been thrown against my windows, and now lies still. Yet if any person gives that stone a new motion, and does further mischief with it, trespass will not lie for that against the original thrower. No doubt but Yates may maintain trespass against Shepherd. And, according to the doctrine contended for, so may Ryal and Scott. Three actions for one single act; it may be extended in infinitum. If a man tosses a football into the street, and, after being kicked about by one hundred people it at last breaks a tradesman's windows, shall he have trespass against the man who first produced it? Surely only against the man who gave it that mischievous direction. But it is said, if Scott has no action against Shepherd, against whom must he seek his remedy? I give no opinion whether case would lie against Shepherd for the consequential damage; though, as at present advised, I think, upon the circumstances, it would. But I think, in strictness of law, trespass would lie against Ryal, the immediate actor in this unhappy business. Both he and Willis have exceeded the bounds of self-defence, and not used sufficient circumspection in removing the danger from themselves. The throwing it across the markethouse, instead of brushing it down, or throwing (it) out of the open sides into the street (if it was not meant to continue the sport, as it is called), was at least an unnecessary and incautious act. Not even menaces from others are sufficient to justify a trespass against a third person; much less a fear of danger to either his goods or his person; nothing but inevitable
necessity; Weaver vs. Ward, Hob, 134; Dickenson vs. Watson, T. Jones, 205; Gilbert vs. Stone, Al. 35, Style 72. So in the case put by Brian, J., and assented to by Littleton and Cheke, C. J., and relied on in Raym, 467, "If a man assaults me, so that I cannot avoid him, and I lift up my staff to defend myself, and, in lifting it up, undesignedly hit another who is behind me, an action lies by that person against me; and yet I did a lawful act in endeavoring to defend myself." But none of these great lawyers ever thought that trespass would lie, by the person struck, against him who first assaulted the striker. The cases cited from the Register and Hardres are all of immediate acts, or the direct and inevitable effects of the defendants' immediate acts. And I admit that the defendant is answerable in trespass for all the direct and inevitable effects caused by his own immediate act. But what is his own immediate act? The throwing the squib to Yates' stall. Had Yates' goods been burnt, or his person injured, Shepherd must have been responsible in trespass. But he is not responsible for the acts of other men. The subsequent throwing across the markethouse by Willis is neither the act of Shepherd nor the inevitable effect of it; much less the subsequent throwing by Ryal. Slater vs. Barker was first a motion for a new trial after verdict. In our case the verdict is suspended till the determination of the court. And though after verdict the court will not look with eagle's eyes to spy out a variance, yet, when a question is put by the jury upon such a variance, and it is made the very point of the cause, the court will not wink against the light, and say that evidence, which at most is only applicable to an action on the case, will maintain an action of trespass. 2. It was an action on the case
that was brought, and the court held the special case laid to be fully proved. So that the present question could not arise upon that action. 3. The same evidence that will maintain trespass, may also frequently maintain case, but not e converso. Every action of trespass with a "perquod" includes an action on the case. I may bring trespass for the immediate injury, and subjoin a "per quod" for the consequential damages; or may bring case for the consequential damages, and pass over the immediate injury, as in the case from 11 Mod., 180, before cited. But if I bring trespass for an immediate injury, and prove at most only a consequential damage, judgment must be for the defendant; Gates and Baileu, Tr. 6 Geo., 3; 2 Wils., 313. It is said by Lord Raymond, and very justly, in Reynolds and Clarke, "we must keep up the boundaries of actions, otherwise we shall introduce the utmost confusion." As I therefore think no immediate injury passed from the defendant to the plaintiff (and without such immediate injury no action of trespass can be maintained), I am of opinion that in this action judgment ought to be for the defendant.
Gould, J., was of the same opinion with Nares, J., that this action was well maintainable. The whole difficulty lies in the form of the action and not in the substance of the remedy. The line is very nice between case and trespass upon these occasions; I am persuaded there are many instances wherein both or either will lie. I agree with brother Nares, that wherever a man does an unlawful act, he is answerable for all the consequences; and trespass will lie against it, if the consequence be in nature of trespass. But, exclusive of this, I think the defendant may be considered in the same view as if he himself had personally thrown the
squib in the plaintiff's face. The terror impressed upon Willis and Ryal excited self-defence, and deprived them of the power of recollection. What they did was therefore the inevitable consequence of the defendant's unlawful act. Had the squib been thrown into a coach full of company, the person throwing it out again would not have been answerable for the consequences. What Willis and Ryal did was by necessity, and the defendant imposed that necessity upon them. As to the case of the football, I think that if all the people assembled act in concert, they are all trespassers; 1, from the general mischievous intent; 2, from the obvious and natural consequences of such an act; which reasoning will equally apply to the case before us. And that actions of trespass will lie for the mischievous consequences of another's act, whether lawful or unlawful, appears from their being maintained for acts done in the plaintiff's own land; Hardr., 60; Courtney and Collet, 1 Lord Rayn, 272. I shall not go over again the ground which brother Nares has relied on and explained, but concur in his opinion, that this action is supported by the evidence.
DeGray, C. J., This case is one of those wherein the line drawn by the law between actions on the case and action of trespass is very nice and delicate. Trespass is an injury accompanied with force, for which an action of trespass vi et armis lies against the person from whom it is received. The question here is, whether the injury received by the plaintiff arises from the force of the original act of the defendant or from a new force by a third person. I agree with my brother Blackstone as to the principles he has laid down, but not in his application of those principles to the present case. The real question certainly does not turn upon the