setshire, 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. 1 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 roadf, (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

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, 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 was 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, 1 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 cart 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 upon 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.
k Hall v. Pickard, 3 Campb. 187.

1 Reynolds v. Clarke, Lord Raym.

1399. Str. 634. S. C.