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lawfulness or unlawfulness of the original act; for actions of trespass will lie for legal acts when they become trespasses by accident; as in the cases cited of cutting thorns, lopping of a tree, shooting at a mark, defending oneself by a stick which strikes another behind, etc. They may also lie for the consequences even of unlawful acts, as that of casting a log in the highway, etc. But the true question is, whether the injury is the direct or immediate act of the defendant; and I am of opinion that in this case it is. The throwing the squib was an act unlawful, and tending to affright the bystander. So far mischief was originally intended; not any particular mischief, but mischief indiscriminate and wanton. Whatever mischief therefore follows he is the author of it-Egerditur personam, as the phrase is in criminal cases. And though criminal cases are no rule for civil ones, yet in trespass I think there is an analogy. Every one who does an unlawful act is considered as the doer of all that follows; if done with a deliberate intent, the consequence may amount to murder; if incautiously, to manslaughter; Fost, 261. So, too, in 1 Ventr., 295, a person breaking a horse in Lincoln's Inn Fields hurt a man; held that trespass lay; and 2 Lev., 172, that it need not be laid scienter. I look upon all that was done subsequent to the original throwing as a continuation of the first force and first act, which will continue till the squib was spent by bursting. And I think that any innocent person removing the danger from himself to another is justifiable; the blame lights upon the first thrower. The new direction and new force flow out of the first force, and are not a new trespass. The writ in the Register, 95, a, for trespass in maliciously cutting down a head of water, which thereupon flowed down to and

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overwhelmed another's pond, shows that the immediate act need not be instantaneous, but that a chain of effects connected together will be sufficient. It has been argued that the intervention of a free agent will make a difference; but I do not consider Willis and Ryal as free-agents in the present case, but acting under a compulsive necessity for their own safety and self preservation. On these reasons I concur with brothers Gould and Nares, that the present action is maintainable."


The extent of the scope of trespass on the case is not limited to cases where the damage result as the consequential result of the unlawful application of force. Trespass on the case also covers the wide and important field of negligence, and also embraces all those torts in which deceit or malice is a necessary element.3


Although trespass lies wherever the injury done to the plaintiff result 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 Reland vs. Hardern 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


See Chapters VIII to XIII.
See Note to Smith's Leading
Cases, p. 217.

Vol. IV-8.

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the defendants was personally driving when the accident occurred; and it was 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, vexato quaestio, 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. In 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 vs. 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 the negligence. In Ogle vs. Barns, 8 T. R., 188, which was for negligently steering a ship, the declaration alleged that the ship was under the care of Barns, 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 vs. Imbledon, 2 N. R., 117, which was decided after Leame vs.

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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 vs. Bray, the action being in case; but the court was clearly of opinion that case would lie, and the demurrer was overruled. In Huggett vs. 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 lies where the act is negligent, and not wilful."

There are also 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. Tindal, C. J., in Holland vs. Bird, says: "If trover will lie, which is only a subdivision of action on the case, why should not case also in its more expanded form?" 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.

• 10 Bing., 18

Another class of cases comprehends actions for criminal conversation and for seduction; for both which injuries trespass and case are held to lie concurrently."


The importance of the distinction between trespass and trespass on the case, from the adjective side of the law, has to-day practically disappeared. In about half of the States at the present time a system of Code Pleading has been adopted, and all common law forms of action abolished. In many of the other states all distinction between the actions of trespass and trespass on the case has been abolished by statute. On the substantive side of the law, however, all rights of action for tort still owe their origin to one or the other of these old forms of actions. The most scientific, convenient and accurate method of treatment, therefore, is to make the primary division of torts into the various forms of trespass on the one side, and those rights, now or formerly protected by trespass on the case, on the other.

See 2 T. R., 167; 6 East, 388.

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See Vol. XI, Subject 35.

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