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in severalty. The rejoinder traversed this averment, and issue was joined thereon. It was holden, that the allegation in the replication, that “the said closes had been inclosed from the residue of the waste, and enjoyed in severalty," was divisible, and satisfied by proof, that any part of the closes in which the trespasses were committed had been so inclosed for that period, and that the plaintiff might therefore recover,

pro tanto.

A plaintiff in trespass was the occupier of a farm, called Tyr Adam, situate within a manor adjoining a mountain, and claimed to be exclusive owner of that part of the mountain next adjoining his farm. The question being, whether he was exclusive owner of the soil, or had a right of common only over that part of the mountain, the defendant, in order to shew that the plaintiff had not the right of soil, produced from the rolls of the manor an instrument, purporting to be a presentment in the year 1759, wherein the jurors, after reciting that they were sworn to view such part of the waste land as lieth within the lordship, as was claimed by A. B. to belong to his tenement called Tyr Adam, upon their oaths said, that they had considered the claim and the evidence, and presented that all the said lands within the said boundaries were part and parcel of the common called K., and that neither the said A. B. nor the tenants or occupiers of the tenement called Tyr Adam, had any right to the same, or any greater right than such as the other freehold tenants of the lordship had for their commonable cattle. It was holdena, that this instrument was not admissible in evidence; first, not as a presentment, because the homage had no right to decide the claim made by an individual to the freehold, they being interested; nor as an award, because there was no mutual submission, either express or implied; nor as evidence of reputation, because it was made post litem motam.

a Richards v. Bassett, 10 B. and C. 657.



Of Actions on the Case for Consequential Damages, and

herein of the general Rule for distinguishing Actions of Trespass vi et armis from Actions of Trespass on the Case.

A QUESTION frequently arises respecting the form of action which should be adopted by a person who has sustained an injury: that is, whether the proper remedy is by action of trespass vi et armis, or trespass on the case; and as, in order to avoid confusion, the judges have at all times been anxious that the boundaries of actions should be preserveda, it may be proper to remark, that the true distinction (and which seems to be now settled b) is, that if the injury be occasioned by the act of the defendant at the time, or the defendant be the immediate cause of the injury, trespass vi et armis is the proper remedy (1); but where the injury is not direct and immediate on the act done, but consequential only, there the remedy is by action on the case, sometimes termed an action on the case for consequential damages.

The following case will illustrate the rule here laid down : On the evening of the fair-day at Milborn Port, in Somer

a 3 Wils. 411. 1 Bos, and Pul. 476.
b Leame v. Bray, 3 East, 593.
c Reynolds v. Clarke, Lord Raym.

1999. Str. 634, S. C. See also Mor

gan v. Hughes, 2 T. R. 231. and Kenyon, C. J. in Day v. Edwards, 5 T. R. 649. S. P. and in Ogle v. Barnes, 8 T. R. 190, 1.

(1) “ Looking into all the cases from the Year Book in the 21 H. 7. 28. a. down to the latest decisions 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." Per Grose, J. in Leame v. Bray, 3 East, 600.

setshired, the defendant threw a lighted squib from the street into the market-house; the squib fell upon the stall or standing of B.; C. in order to protect himself and the wares of B. from injury, took up the squib, and threw it across the market-house, when it fell upon the standing of D., who to save his wares, threw the squib to another part of the markethouse; the squib struck the plaintiff in the face, when the combustible matter bursting put out one of his eyes: an action of trespass, vi et armis, having been brought, it was urged, on the part of the defendant, that it would not lie, and that a proper remedy was an action on the case; a verdict was found for the plaintiff, subject to the opinion of the court, as to the form of action (2). Nares, J. was of opinion that trespass vi et armis, was the proper form of action, the act being illegal, at common law, from the probable consequence of injury resulting from it, and by stat. 9 and 10 W. 3. c. 7. as a nuisance. Blackstone, J. was of a different opinion, conceiving that the lawfulness or unlawfulness of the original act was not the true criterion (3); that the settled distinction was, that where the injury was immediate, trespass vi et armis would lie; where consequential only, it must be an action on the case. In the present case, the original act was as against B. a trespass, not as against C. or the plaintiff. The tortious act was complete when the squib lay at rest upon B.'s stall; B. or any by-stander, had a right to protect

d Scott v. Shepherd, 2 Bl. R. 892. 3 Wils. 403. S. C.

(2) I have stated this case very fully on account of the important doctrine contained in the arguments of the judges, more especially in that of Blackstone, J. which is frequently cited on this subject. With respect to the decision of the court in Scott v. Shepherd, it is to be observed, that Lord Ellenborough, C. J. (in Leame v. Bray, 3 East's R. 596.) said, that it went to the limit of the law.

(3) So Lawrence, J. “In actions of trespass the distinction has not turned either on the lawfulness of the act, whence the injury happened, or the design of the party doing it to commit an injury; but, as mentioned by Blackstone, J. in the case of Scott v. Shepherd, on the difference between injuries direct and immediate, or mediate and consequential ; in the one instance, the remedy is by trespass, in the other, case.” 3 East, 601. If one turning round suddenly, were to knock another down, whom he did not see, without intending it, no doubt the action must be trespass.” Per Lawrence, J. 3 East, 597. “ Where a man shoots an arrow at a mark and wounds another, although it be against his will, he shall be called a trespasser.” Per Read, C. J. of the Common Pleas, 21 H. 7.

himself by removing the squib, but should have taken care to do it in such a manner as not to endamage others. He added, that this was not like the case of diverting the course of an enraged ox, or of a stone thrown, or an arrow glancing against a tree, because in those cases the original motion, the vis impressa, was continued, though diverted; but here the instrument of mischief was at rest, until a new impetus and a new direction was given to it, not once only but by two rational agents successively; that, in strictness of law, trespass vi et armis would lie against D. the immediate actor; for inevitable necessity only would excuse a trespass, and D. had exceeded the bounds of self-defence, and had not used sufficient circumspection in the act of removing the danger from himself; throwing the squib across the market-house, instead of brushing it down or throwing it out of the open sides into the street, was an unnecessary and an incautious act. Gould, J. was of opinion that trespass vi et armis was maintainable, that the defendant might be considered in the same light as if he had thrown the squib in the plaintiff's face. The terror impressed on C. and D. excited self-defence, and deprived them of the power of reflection; what they did was therefore the inevitable consequence of the defendant's unlawful act; they acted from necessity, and the defendant imposed that necessity on them; de Grey, C. J. was of the same opinion, agreeing with Blackstone, J. as to the principles he had laid down, but differing from him in the application of those principles to the present case. The question was whether the injury was received by the plaintiff by force from the defendant, or whether the injury resulted from a new force of another. He considered all that was done, subsequently to the original throwing, as a continuation of the first force, and the first act, which would continue until the squib was spent by bursting. Any innocent person was justifiable in removing the danger from himself to another; the blame lighted on the first thrower; the new direction and new force flowed out of the first force, and was not a new trespass; C. and D. were not free agents, but acting under a compulsive necessity for their own safety and self-preservation. The several acts of throwing the squib must be considered as one single act, namely, the act of the defendant; the same as if it had been a cracker which had bounded and rebounded again and again before it struck out the plaintiff's eye.

The distinction between trespass vi et armise, and trespass on the case, may be further illustrated by the example

e Per Fortescue, J. I Str. 636. cited by Kenyon, C. J. in Day v. Edwards, 5 T.

R. 649. Per Le Blanc, J. in Leame v. Bray, 3 East. 602.

usually put, of a man's throwing a log into the common highway; if at the time of the log being thrown it should strike any person, such person may maintain trespass vi et armis: but if, 'after it is thrown, and is lodged on the ground, any person passing along the highway, should receive any injury by falling against or over it, there the remedy is by action on the case.

The defendant driving his carriage on the wrong side of a road, (which was wide enough to admit of two carriages to pass conveniently,) by accident drove against the plaintiff's curricle, the night being so dark that the parties could not see each other: it was holden, that the injury which the plaintiff had sustained, having been immediate from the act of driving by the defendant, the proper remedy was trespass, vi et armis (4). But, as was truly observed by Le Blanc, J. if the defendant had simply placed his carriage in the road, and the plaintiff had run against it in the dark,

f Leame v. Bray, 3 East. 593.

(4) The true criterion seems to be, according to what Lord C. J. de Grey says, in Scott v. Shepherd, whether the plaintiff received an injury by force from the defendant. “If the injurious act be the immediate 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

, according to all the cases both ancient and modern. It is immaterial whether the injury be wilful or not.” Per Lord Ellenborough, C. J, 3 East, 599. It was observed by Le Blanc, J. that in “actions for running down vessels at sea, difficulties may occur, because 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 winds and waves, and the personal act of the party rather consists in putting the vessel in the way to be so acted upon. In Ogle v. Barnes, and another, 8 T. R. 188. where an action on the case was brought, and the declaration alleged negligence and unskilfulness in the defendant's management of a ship, by reason whereof she ran foul of the plaintiff's with great force and violence. On motion in arrest of judgment, after verdict for the plaintiff, on the ground of the action having been case when it ought to have been trespass, Grose, J. said, that the jury having found a verdict for the plaintiff, they must consider that the complaint set forth in the declaration was proved; and for such an injury an action on the case was the proper remedy. Lawrence, J. observed, that the negligent and improvident management of the defendant's 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

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