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the injury would not have been direct, but in consequence only of the defendant's previous improper act; and then the proper form of action would have been that of an action on the case.

The plaintiff declared against the defendant, for driving his cart against the plaintiff's horse with force and violence 5, alleging it to have been done, “ by and through the mere negligence, inattention, and want of proper care,” of the defendant. On demurrer to this declaration, as not being in trespass, it was holden that it was good. Sir James Mansfield, C. J. observed, at the close of the decision, that it was not to be considered that the case of Leame v. Bray was overturned by the present; at the same time he might say thus much, that upon a proper case it might be fit that the decision of the court of King's Bench, in Leame v. Bray, should be reconsidered. In an action of trespassh, where the plaintiff declared that the defendant with force and arms drove a vessel, whereof the said defendant was the commander, against and over a certain boat of the plaintiff, and sunk her, damno, &c. contra pacem, &c.; it appeared, that the defendant was master and owner of the vessel by which the injury to the plaintiff's boat was committed; but that he, though on board at the time, did not give the order which caused the accident, but the pilot did; that it was nine o'clock at night, in the month of September, when the accident happened; that the vessel would not obey her rudder; and that it was owing to no design or wilful act of any person on board. Sir J. Mansfield, C. J. left it to the jury to say whether the accident vas owing to the mere force of the wind, or to negligence. The jury were of opinion that the accident arose from negligence, and gave a verdict for the plaintiff. On motion to set aside this verdict, and enter a nonsuit, on the ground that the action should have been an action on the case, and not trespass, the court were of opinion that trespass could not be maintained against the defendant; and said, the case differed from the preceding case of Leame v. Bray, because here the defendant, though on board the vessel, did not give the order which occasioned the accident, but the

g Rogers v. Imbleton, 2 Bos. & Pul. h Huggett v. Montgomery, 2 N. R. N. R. 117.

446.

their power to avoid the mischief, and then the running against the plaintiff's vessel might have been owing to the wind and tide. See further on this point, Turner v. Hawkins, 1 Bos. and Pul. 472.

pilot did; whereas in Leame v. Bray, the defendant was driving the carriage which injured the plaintiff's carriage. The court, at the same time, intimated doubts as to the authority of Leame v. Bray; and Chambre, J. observed, that in cases of this kind it would be difficult to sustain the proposition, that a master could be liable to an action of trespass for a negligent act done by his servant in the course of his employment, for which the servant himself would also be liable in that form of action.

In a subsequent case of Covell v. Laming, i Campb. 497. which was trespass for running defendant's ship against plaintiff's, it appeared that, at the time of the accident, the defendant 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 defendant. It was contended that as the act was not wilful, an action on the case was the proper remedy; but, per Lord Ellenborough, C. J. “Whether the injury complained of arises directly, or follows consequentially, from the act of the defendant, I consider, as the only just and intelligible criterion of trespass and case; it makes no difference, that here the parties were sailing on ship board. The winds and the waves were only instrumental in carrying her along in the direction which he communicated. The force, therefore, proceeded from him, and the injury which the plaintiff sustained was the immediate effect of that force.”

Where there is a gratuitous permission to use a chattel, as the possession constructively remains in the owner, he may maintaini trespass for an immediate injury to it; but if the owner of a horse lets him to hire for a certain time, during which he is killed by the owner of a cart driving violently against him, the remedy of the owner of the horse against the owner of the cartk is case, and not trespass; for this is in the nature of an injury to the plaintiff's reversion.

If the occupier of a house', who has a right to have the rain fall from the eaves of it

the land of another person, fixes a spout, whereby the rain is discharged in a body upon the land, the proper form of action, by the owner of the land against the occupier of the house for this injury, is an action on the case; because the flowing of the water, which constitutes the injury, is not the immediate act of the occupier of the house, but the consequence only of his act, viz. the fixing the spout. i Lotan v. Cross, 2 Campb. 464. I Reynolds v. Clarke, Lord Raym. k Hall v. Pickard, 3 Campb. 187. 1399, Str. 634, S. C.

upon

In an action on the case m, for digging so near the gable end of the house of the plaintiff

, let to a tenant, that it fell ; Lord Ellenborough held, that where, as in the case before the court, a man had built to the extremity of his soil and had enjoyed his building above twenty years, upon analogy to the rule as to lights, &c., he had acquired a right to a support, or as it were of leaning to his neighbour's soil, so that his neighbour could not dig so near as to remove the support; but that it was otherwise of a house, &c. newly built. See Comyn's Dig. action upon the case for nuisance Č., who cites 1 Sidf. 167. 2 Roll. Abr. 565. line 5—“If a man build a house and make cellars upon his own soil, whereby a house newly built upon the adjoining soil falls down, no action lies.” The same point was ruled in Wyatt v. Harrison, 3 B. & Ad. 871. consistently with this position in Rolle : “ It

may

be true, that if my land adjoins another, and I have not by building increased the weight upon my soil, and my neighbour digs in his land so as to occasion mine to fall in, he may

be liable to an action. But if I have laid an additional weight upon my land, it does not follow that he is to be deprived of the right of digging his own ground, because mine will then become incapable of supporting the artificial weight which I have laid upon it.” Per Ld. Tenterden, C. J. delivering judgment of the court. See further on this subject, Dodd v. Holme, 1 Ad. & Ell. 493. “However insufficient or dilapidated the neighbouring house may be, a party is not justified, by any negligent act on his own premises, in accelerating the fall.

In an action upon the case, the declaration stated, that the plaintiff was master of a ship, which was laden with corn, ready to sail, and that the defendant seized the ship and detained her, per quod querens impeditus et obstructus fuit in viagio. An exception was taken to the action, on the ground that it should have been trespass vi et armis ; and 4 Edw. 3. 24. 13 H. 7. 26. and Palm. 47. were cited; Holt, C. J. observed, that, in the cases cited, the plaintiff had a property in the thing taken, but here the ship was not the master's but the owners. The master declared only as a particular officer and could recover for his particular loss. He admitted, however, that the master might have brought trespass, and declared upon his possession, which was sufficient to maintain that action. So where the plaintiff declaredo, that he exerm Stansell v. Jollard, B. R. Trin. 43 sition, that the master might have G. 3. M. S. Lawrence, J.

maintained trespass, in Moore v. n Pitts v. Gaince, Salk. 10. Lord Raym. Robinson, 2 B. & Ad. 817.

558. S. C. recognized, as to the po- o Kettle v, Hunt, Bull. N. P. 78.

cised the trade of a wheeler, and was possessed of several tools that related to the trade, viz. an axe, &c. and being so possessed, gained a livelihood, &c. and by the licence of the defendant deposited the tools in defendant's house, who had detained them two months after request, whereby the plaintiff had lost the benefit of his trade. After verdict, a motion was made in arrest of judgment, on the ground, that the plaintiff ought to have brought detinue or trover; but the court held the action well brought : for, if the fact was that the plaintiff had the goods again, detinue was not proper; and though a detainer upon request was evidence of a conversion, yet it was not a conversion; and the damages which he demands in this case being special, the action ought to be special. So where the plaintiff declared P, that he was possessed of a close of land and a decoy pond, to which wild fowl used to resort, and the plaintiff, at his own costs, had procured decoy ducks, nets, and other engines, for decoying and taking the wild fowl, and enjoyed the benefit in taking them; yet the defendant, intending to injure plaintiff in his decoy, and to drive away the wild fowl, and deprive him of his profit, discharged guns against the decoy pond, whereby the wild fowl were frighted away and forsook the pond. Upon not guilty pleaded, a verdict was found for the plaintiff, and 201. damages. On motion in arrest of judgment, Holt, C. J. observed that the action was maintainable; that although it was new in its instance, yet it was not new either in the reason or principle of it. For, 1st, the using or taking a decoy was lawful; 2ndly, this employment of his ground, to that use, was profitable to the plaintiff, as was the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken, is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and destroy wild fowl or tame cattle. Then when a man useth his art or his skill to take them, to sell and dispose of for his profit, this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. The C. J. added, that it had been objected, that the nature of the wild fowl was not stated; but this was not necessary; for the action was not brought p Keeble v. Hickeringill, 11 East, 574. Bull. N. P.79. S. C. cited in Carringn. from Holt's MS. Holt's Rep. 14. ton v. Taylor, 11 East, 574. and 2

Campb. 258. S. C.

17. 19. 11 Mod. 74. 130. 3 Salk. 9.

to recover damage for the loss of the fowl, but for the disturbance.

In a special action on the case 9, the declaration stated, that plaintiff's wife, unlawfully and against his consent, went away from him, and continued apart from him a long time, and that, during her absence, a large estate, real and personal, having been devised for her separate use, she thereupon was desirous of being reconciled, and of cohabiting with plaintiff, her husband; but that the defendant persuaded and enticed her to continue apart from the plaintiff, which she accordingly did until her death; whereby the plaintiff lost the comfort and society of his wife, and her assistance in his domestic affairs, and the profit and advantage of her fortune. After verdict for the plaintiff, with 30001. damages, on motion in arrest of judgment, it was objected, that there was not any precedent of any such action as this. Litt. s. 108. and i Inst. 81. b. were cited; but Willes, C. J. said that the general rule there mentioned was not applicable to the present case; that it would have been so, if there had never been any special action on the case before; that this form of action was introduced for this reason, that the law would never suffer an injury and a damage without a remedy; but that there must be new facts in every special action on the case (5).

a

Winsmore v. Greenbank, Willes, 577.

(5) See Ashby v. White, Lord Raym. 957, Pasley v. Freeman, 3 T. R. 51. and Chapman v. Pickersgill, 2 Wils. 146. which last case was an action on the case for falsely and maliciously suing out a commission of bankrupt against the plaintiff; Pratt, C. J. (in answer to the objection of novelty,) said, that this was urged in Ashby v. White, but he did not wish ever to hear it again ; that this was an action for a tort; torts were infinitely various, not limited or confined ; for there was not any thing in nature which might not be converted into an instrument of mischief, and this of suing out a commission of bankrupt falsely and maliciously was of the most injurious consequence in a trading country. Durnford's note. Willes, 581; see also Hargrave's Co. Lit. 81. b. n. (2).

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