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§ 223. Scope of this chapter. Under this head it is proposed only to mention some general principles of evidence, applicable to the action of Trespass on the Case, in any of its forms: referring to the appropriate titles of Adultery, Carriers, Libel, Malicious Prosecution, Nuisance, Trespass, Trover, &c., for the particular rules relating to each of these heads.

§ 224. Trespass, and trespass on the case. The distinction between the actions of trespass vi et armis, and trespass on the case, is clear, though somewhat refined and subtle. By the former, redress is sought for an injury accompanied with actual force ; by the latter, it is sought for a wrong without force. The criterion of trespass vi et armis is force directly applied, or vis prorima. If the proximate cause of the injury is but a continuation of the original force, or vis impressa, the effect is immediate, and the appropriate remedy is trespass vi et armis. But if the original force, or vis impressa, had ceased to act, before the injury commenced, the effect is mediate, and the appropriate remedy is trespass on the case. Thus, if a log, thrown over a fence, were to fall on a person in the street, he might sue in trespass ; but if, after it had fallen to the ground, it caused him to stumble and fall, the remedy could be only by trespass on the case. The intent of the wrong-doer is not material to the form of the action; (a) neither is it generally important, whether the original act was or was not legal. Thus, though the act of sending up a balloon was legal, yet trespass vi et armis was held maintainable, for damage done by the accidental alighting of the balloon in the plaintiff's garden.? (6)

1 Chitty on Plead. 115–120; Smith o. Ruthford, 2 S. & R. 358. 2 Guille o. Swan, 19 Johns. 381.

(a) Thus trespass vi et armis will lie is the only remedy against the master, and for an unintentional injury caused by the is only maintainable when the act is negliglancing of a pistol-ball shot at a mark. gent or improper; and this rule applies Welch v. Durand, 36 Conn. 182.

to all cases where the carriage or cattle of (6) Where the act is that of the servant a master are placed in the care and under in performing his duty to his master, case the management of a servant, a rational

§ 225. Relative rights. For injuries to relative rights, the action on the case is the appropriate remedy. If the injury was without force, as, for example, enticing away a servant, case is the only proper remedy; but if it be done with force, such as the battery of one's servant, or the like, the action may be in case, or in trespass vi et armis, at the plaintiff's election; and in the latter form he may join a count for a battery of himself.' (a)

$ 226. Absolute rights. Where the injury is not to relative, but to absolute rights, the question whether the party may waive the force, and sue in trespass on the case, for the mere consequential damages, has been much discussed, with no little conflict of opinion. Where the tortious act was done to the property of the plaintiff, and the defendant has derived a direct pecuniary benefit therefrom, as, if he seized the plaintiff's goods and sold them as his own, it is clear that the plaintiff may waive the tort entirely, and sue in assumpsit for the price of the goods. So, though the property was forcibly taken, the force may be waived, and trover, which is an action on the case, may be sustained, for the value of the goods. It is also agreed, that, where an injury was caused by the negligence of the defendant, but not wilfully, as by driving his cart against the plaintiff's carriage, trespass on the case may be maintained, notwithstanding the injury was occasioned by force, directly applied. And it has also been laid down, upon consideration, as a general principle, that where an injury has been done partly by an act of trespass, and partly by that which

1 Chitty on Plead. 128 (153), 181 (229]; Ditcham v. Bond, 2 M. & S. 436; Woodward v. Walton, 3 New Rep. 476.

2 Williams v. Holland, 10 Bing. 112; Rogers v. Imbleton, 3 New Rep. 117; More. ton e. Hardern, 4 B. & C. 223; Blin v. Campbell, 14 Johns. 432; McAllister v. Hammond, 6 Cow, 342; Dalton v. Favour, 3 N. A. 465. agent. The agent's direct act or trespass ployer (Burgess v. Carpenter, 2 S. C. 7); is not the direct act of the master. Each nor does an action lie by a prisoner conblow of the whip, whether skilful and care- fined in the house of correction against ful or not, is not the blow of the master, the master for neglecting to provide him it is the voluntary act of the servant. with sufficient food, unless it be shown Sharrod v. London, &c. R. Co., 4 Eng. that the negligence was malicious. Will. Law & Eq. 401. Cf. post, § 627. And iams v. Adams, 3 Allen (Mass.), 171. this, even though such acts were acts of (a) When a right is violated the law force, and such that trespass would have gives a remedy. Ashby v. White, 1 S. L. been the only proper remedy against the C. 105. If the remedy is not obvious, the servant. Havens v. Hartford & N. H. R. law will take pains to find one. Peabody Co., 28 Conn. 69. It seems that there is v. Peters, 5 Pick. (Mass.) 1. Trespass vi no right of action for loss of services of a et armis will lie for an unintentional inservant who is not a menial. Wounding jury caused by the glancing of a pistol. and causing the loss of the services of a bali shot at a mark. Welch v. Durand, laborer who is working for a share of the 36 Conn. 182. crop gives no cause of action to the em.

is not an act of trespass, but the proper subject of an action on the case, both acts being done at the same time, and causing a common injury, the party may sue in either form of action, at his election. This rule has been illustrated by the case of a weir, or dam, erected partly on the plaintiff's ground, and partly on that of another riparian proprietor. It has also been held, that case would lie for a distress, illegally made, after tender of the rent due ;2 and for a tortious taking, under pretence of a distress for rent, where there was no right to distrain. In this last case, Lord Denman, C. J., proceeded upon the general ground, that, though the taking of the goods was a trespass, the owner was at liberty to waive it, and bring case for the consequential injury arising from the unlawful detention. Indeed, it is difficult to discern any reason why the party may not, in all cases, waive his claim to vindictive damages, and proceed in case for those only actually sustained; or why he may not as well waive his claim for a part of the injury, and go for the residue, as to forgive the whole.4 There are, however, several decisions, both English and American, to the effect that, where the injury is caused . by force, directly applied, the remedy can be pursued only in trespass.

§ 227. Several plaintiffs. In this action, as in others, if there are several plaintiffs, they must prove a joint cause of action, such as damage to their joint property, slander of both in their joint trade or employment, and the like, or they will be nonsuited. their interests are several, but the damage is joint, it has been held sufficient.7


1 Wells v. Ody, 1 M. & W. 459, per Ld. Abinger; Id. 462, per Parke, B.; Moore v. Robinson, 2 B. & Ad. 817; Knott v. Digges, 6 H. & J. 230.

2 Branscom v. Bridges, 1 B. & C. 145; 3 Stark. 171; Holland v. Bird, 10 Bing. 15. 3 Smith v. Goodwin, 4 B. & Ad. 413.

4 See Scott v. Sheppard, 2 W. Bl. 897; Pitts v. Gaince, 1 Salk. 10; Chamberlain v. Hazlewood, 5 M. & W. 515; 3 Jur. 1079; Muskett v. Hill

, 5 Bing. N. C. 694; Parker v. Elliot, 6 Munf. 587; Van Horn v. Freeman, 1 Halst. 322; Haney v. Townsend, 1 McCord, 207; Ream r. Rank, 3 S. & R. 215; Parker v. Bailey, 4 D. & R. 215; Moran 0. Dawes, 4 Cowen, 412.

5 These decisions are referred to in 1 Met. & Perk. Dig. pp. 69, 70; 1 Harrison's Dig. 42-47. But in some of the United States, the distinction between the two forms of action has been abolished by statute. Thus, in Maine, it is enacted, “that the declara. tion shall be equally good and valid, to all intents and purposes, whether the same shall be in formi a declaration in trespass, or trespass on the case." Rev. Stat. c. 115, $ 13. So, in effect, in Indiana. Hines v. Kinnison, 8 Blackf. 119. And in Connecticut, Rev. Stat. 1849, tit. 1, § 274; Iowa, Rev. Stat. 1851, § 1733.

6 Cook v. Batchellor, 2 B. & P. 150; 2 Saund. 116 a, n. (2); Solomons v. Medex, 1 Stark. 191.

7 Coryton v. Lithebye, 2 Saund. 115; Weller v. Baker, 2 Wils. 414.

§ 228. Several defendants in tort. If the action is founded in tort, it is not necessary to prove all the defendants guilty; for as torts are several in their nature, judgment may well be rendered against one alone, and the others acquitted. (a) But if the action is founded on a breach of an express contract, it seems that the plaintiff must prove the contract against all the defendants.

$ 229. Time. The particular day on which the injury is alleged to have been committed is not material to be proved. Originally, every declaration in trespass seems to have been confined to a single act of trespass; and if it was continuous in its nature, it might be so laid ; in which case it was considered as one act of trespass. Subsequently, to save the inconvenience of distinct counts for each tortious act, the plaintiff was permitted to consolidate into one count the charge of trespasses done on divers days between two days specifically mentioned ; in which case it is considered as if it were a distinct count for every different trespass. In the proof of such a declaration, the plaintiff may give evidence of any number of trespasses within the time specified. But he is not obliged to avail himself of this privilege ; for he may still consider his declaration as containing only one count, and for a single trespass. When it is considered in this light, the time is immaterial ; and he may prove a trespass done at any time before the commencement of the action, and within the time prescribed by the statute of limitations. But the plaintiff is not permitted to avail himself of the declaration in both these forms at the same time. He is therefore bound to make his election, before he begins to introduce his evidence; and will not be permitted to give evidence of one or more trespasses within the time alleged, and of another at another time.2

$ 230. Malice. Negligence. If the plaintiff charges both malice and negligence upon the defendant, in doing the act complained of, the count will be supported by evidence of the negligence only. (6)

1 Ireland v. Johnson, 1 Bing. N. C. 162; Bretherton v. Wood, 3 B. & B. 54; Max v. Roberts, 12 East, 89; supra, § 214.

2 Pierce v. Pickins, 16 Mass. 472, per Jackson, J.; Brook v. Bishop, 2 Ld. Raym. 823; 7 Mod. 152; 2 Salk. 639; Monckton v. Pashley, 2 Ld. Raym. 974, 976; Hume v. Oldacre, 1 Stark. 351; 1 Saund. 24, n. (1), by Williams. See post, $ 624.

8 Panton v. Holland, 17 Johns. 92.

(a) In Turner v. Hitchcock, 20 Iowa, 310, committed, it operates to discharge all the it is held that where the plaintiff in an ac wrong-doers. Wright & Cole, JJ., distion of trespass intermarries with one of senting. the joint trespassers after the trespass is (6) And see ante, $ 208, note (a); 218,

And where the action is against a carrier, or an innkeeper, for the negligent keeping of the goods in his care, whereby they were lost, proof of the loss affords presumptive evidence of negligence on the part of the carrier or innkeeper or his servants. So, where the action is against a railway corporation, for the destruction of property by sparks emitted from their engine, the fact of the premises having been fired by sparks from the passing engine is prima facie evidence of negligence on the part of the company.? (a)

1 Dawson v. Chamney, 5 Ad. & El. N. s. 164; Story on Bailments, SS 472, 529. See supra, $219, 222.

? Piggot v. Eastern Railroad Co., 3 M. Gr. & Sc. 229. And see McCready v. S. Car. Railroad Co., 2 Strobh. 356. See also ante, § 222, n.

note b. Where the declaration charges which great diversity of opinion appears that the defendant wrongfully kept a horse in the decisions of the courts.

It is unaccustomed to bite mankind, and that the questionable that the burden of proof is defendant knew it, it need not aver that on the plaintiff, and mere proof of an inthe injury complained of was received jury to the plaintiff, without connecting it through the defendant's negligence in with the defendant in any way, is not keeping the horse. Popplewell v. Pierce, enough to make a prima facie case of neg. 10 Cush. 509 ; May v. "Burdett, 9 Ad. & ligence; but if, in proving the injury, it is El. N. S. 101 ; Jackson v. Smithson, 15 also proved that the injury was caused by M. & W. 563; Card v. Case, 5 M. G. & S. the defendant's property, e. g. when one is 622; Kerwhacker v. C. C., &c. R. R. Co., injured by the derailing of defendant's cars, 3 Ohio, N. S. 172.

or similar accidents, the question arises (a) It has already been seen that it is whether this is prima facie evidence of not necessary to allege negligence in an ac. negligence. It has been held that the tion against a common carrier of goods, mere showing that the injury was caused where the action is based on his common- by such an accident, without showing fur. law liability as insurer, but if the carrier ther the negligence or carelessness of the proves that the loss happened from a cause defendant or some defect in the machinery excepted in his contract, or that his liabil- or property in question is not enough to ity is restricted by special stipulations in prove negligence. Kendall v. Boston, 118 the contract, then it is necessary to prove Mass. 234; Ward v. Andrews, 3 Mo. App. negligence on his part, and the burden of 275; Hutchinson v. Boston Gas Light Co., proof of this is on the plaintiff. Ante, 122 Mass. 219; Ruffner v. Cincinnati, &c. 88 218, 219, 220, and notes.

R.R. Co., 34 Ohio St. 96. But it is not It has also been seen that it is necessary often that this special question arises, for to allege and prove negligence against à generally, in proving the accident, circumcarrier of passengers, and due care in the stances are proved which have a logical plaintiff in order to charge him with an tendency to show the negligence of the injury received by the passenger. § 222, defendant, and this is held in most courts and notes.

to be enough to throw the onus of rebutThe principles of all the actions which ting this evidence on the defendant. Shear. are based on negligence, whether of com- man & Redfield, Negligence, $ 5; Baltimon carriers or others, are the same, and more, &c. R. R. Co. v. Noell, 32 Gratt. (Va.) the points to be proved are: 1. The in- 394 ; Peoria, &c. R. R. Co. v. Reynolds, 88 jury to the plaintiff; 2. That it was prox- Ill. 418 ; Tuttle v. Chicago, &c. R. R. Co., imately caused by the negligence of the 48 Iowa, 236; Yerkes v. Keokuk, &c. Packet defendant; 3. That the plaintiff's own Co., 7 Mo. App. 265 ; Feital v. Middlesex negligence did not contribute to produce R. R. Co., 109 Mass. 398 ; Carpue v. Lonit. Chicago City Ry. Co. v. Freeman, 6 don, &c. Ry. Co., 5 Q. B. 747. Proof that Ill. App. 608.

a person or corporation has failed to com. The first is proved by any relevant evi. ply with city ordinances is generally held dence, just as any other material fact in to be proof of negligence.

Koster v. the plaintiff's case is proved.

Noonan, 8 Daly (N. Y.), 231 ; Hanlon v. The second involves several points on South Boston R. R. Co., 129 Mass. 310;



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