AN action of trespass, vi et armis, lies to recover damages for any injuries committed with force to the person, or to real or personal property. Thus it lies for an assault, battery, false imprisonment, or even a menace, if accompanied with a consequent inconvenience."(1) So it lies for an injury to the relative rights occasioned by force, as for menacing tenants, servants, &c., and beating, wounding, and imprisoning a wife or servant, whereby the landlord, master, or servant hath sustained a loss; *1402 though the injury be consequential and not immediate. *It lies for criminal conversation with the plaintiff's wife, or for seducing his servant or daughter, per quod servitium amisit, force being implied, as the wife and servant have no power to con sent.c The injury To sustain trespass, the injury must in general be immedimust be ate, and not consequential, and committed with force, either actual or implied; an injury may be considered immediate when the act complained of itself, and not a mere consequence immediate a 3 Bl. Com. 120. "A menace alone without consequent inconvenience, makes not the injury; but to complete the wrong, there must be both of them together." Id. Ditcham v. Bond, 2 M. & S. 436. 1 Ch. Pl. 167. Id. Woodward v. Watton, 2 N. R. 476. Guy v. Livesey, Cro. Jac. 501. Fitz. N. B. 89. Macfadzen v. Olivant, 6 East, 387. (1) (Hurst v. Carlisle, 3 Penn. 176.) of that act, occasions the injury; but the degree of force is or not."b It may, however, be observed that, though the intention of When the the wrong doer is immaterial as to the question whether the party inform of action should be trespass, yet the party injured may waive the jured may waive the trespass and proceed for the tort, where the injury tort. is caused not by the wilful act but by the negligence of the defendant. As where in an action on the case against three defendants, proprietors of a stage-coach, the declaration stated, that the defendants so carelessly managed their coach and horses, that the coach ran against the plaintiff and broke his leg. It appeared in evidence, that one of the defendants was driving at the time when the accident happened, and the *jury *1403 found that it happened through his negligent driving; the court held, that the plaintiff might maintain case against all the proprietors, though perhaps trespass would lie against the proprietor who drove the coach. Bayley, J., "No doubt trespass lies when the injury is inflicted by the wilful act of the defendant, but it is also clear that case will lie where the act is negligent and not wilful."e So where the declaration stated, 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, whereby he was much hurt, &c.; on demurrer, the court were clearly of opinion that case would lie, as the injury was alleged to have arisen from the carelessness and negligence of the defendant. And whenever the injury is occasioned by the negligence of the defendant, the plaintiff is at liberty to bring an action on the case, notwithstanding the act be immediate, so long as it is not a wilful act. Where one driving on the wrong side of a Per Le Blanc, J., in Leame v. Bray, 3 East, 602. Scott v. Shepherd, 2 Bl. 892. 3 Wils. 403. Reynolds v. Clarke, Lord Raym. 1402. 1 Stra. 633. Per Lord Kenyon, in Day v. Edwards, 5 T. R. 649. • Per Lord Ellenborough, in Leame v. Bray, 3 East, 599. © Moreton v. Hardern, 4 B. & C. 223. (10 Eng. C. L. 316.) "Although where the trespass is wilful, and there be no ground of action but the trespass, case may not be maintainable; yet, in general, where an actual damage has been sustained, the trespass may be waived, and an action may be maintained on the special circumstances." Per Holroyd, J., id. Pitts v. Gaince, 1 Salk. 10. a Rogers v. Imbleton, 2 N. R. 117. e Williams v. Holland, 10 Bing. 112. (25 Eng. C. L. 50.) VOL. II.-37 *1404 When a trespass will lie the road, on a dark night, accidentally drove his carriage against another's, it was held, that trespass would lie." Where the declaration stated, that A., the defendant, had so carelessly and negligently managed and steered his ship, that it ran foul of the plaintiff's ship, whereby it was greatly damaged; the court held, that case would lie, observing, that if the injury had been occasioned by the wilful act of the defendant, trespass would be the only remedy. Where the defendant drove his gig against another chaise, whereby the plaintiff's wife was injured; held, that trespass would lie; though the chaise was not the property of the plaintiff. *The distinction appears to be, that where the act is wilful, and the injury immediate, trespass is the only remedy. But where the act is not wilful, but the result of negligence, trespass or case will lie, at the option of the plaintiff, even though the injury be immediate. And where the injury is not immediate, but consequential case, and not trespass, is the proper remedy. Where a lighted squib was thrown in a marketplace, and afterwards thrown about by others in self-defence, and ultimately hit the plaintiff and put his eye out, the injury was considered as the immediate act of the first thrower, who was held to be liable in trespass; the new direction and new force given to it by the other persons not being a new trespass but merely a continuation of the original force.s Trespass lies, at the suit of an alien, for procuring and influencing a foreign prince to imprison him. So it was held, that the captain of a merchant ship was liable in trespass for procuring a mutinous seaman to be flogged and imprisoned in a foreign country by the local authorities.i Where the injury has been occasioned by the negligence of the defendant's servant, trespass cannot be supported, the only remedy being case; unless the act be done in the presence of against a master for the master; as where a master and servant were together in a Leame v. Bray. Day v. Edwards, 5 T. R. 648. Lotan v. Cross, and Covel v. Laming, 1 Camp. 498. с Ogle v. Barnes, 8 T. R. 188. Hopper v. Reeve, 7 Taunton, 698. (2 Eng. C. L. 260.) 1 Moore, 407. If one ship run against another by the negligence of the pilot, while the owner is on board, case, and not trespass, is the proper remedy against the owner. Id. Tripe v. Dyer, Coram Gates, J., Exeter S. Assiz. 1767, cited 8 T. R. 191, and 6 T. R. 128. Where a person wilfully ran his boat against nets and destroyed them; held, that trespass was the only remedy. Day v. Edwards, 5 T. R. 648. Savignac v. Roome, 6 T. R. 125. Williams v. Holland, 6 C. & P. 23. (25 Eng. C. L. 261.) Per Curiam, in Moreton v. Hardern, supra. Williams v. Holland, 10 Bing. 112. (25 Eng. C. L. 50.) Lloyd v. Needham, 11 Price, 608. See title Case. Ante, 586. Per Curiam, in Leame v. Bray, Day v. Edwards, supra. Scott v. Shepherd, 2 Bl. 892. 3 Wils. 403. This is considered an extreme case, and its authority is very doubtful. See 3 East, 596. 5 Taunt. 534. Rafael v. Verelst, 2 Bl. 963. 1055. Aitken v. Bodwill, M. & M. 68. (22 Eng. C. L. 252.) Morley v. Gainsford, 2 H. Bl. 442. See ante, 589. gig, and the servant was driving when an accident happened; the act of held, that the trespass of the servant was the trespass of the his sermaster."(1) vant. 1.-When this action lies.] TRESPASS lies for taking or injuring all inanimate personal property, and all domiciled and tame animals, as cattle, dogs, &c.; it lies for all animals usually marketable, as parrots, monkeys, &c., in which case it is not necessary to show in the pleadings that they have been reclaimed. So it lies for other animals, feræ naturæ, which have been reclaimed, or in the possession of the plaintiff, as hawks, rabbits, hares, fish, &c. So it lies in some cases in respect of animals, feræ naturæ, not reclaimed; as if A. start a hare in the ground of B. and kill it there, the property continues all the while in B., who may maintain trespass against A. for taking it; but if A. start a hare in the ground of B., and hunt it in the ground of C., and kill it there, the property is in A., but he is liable to an action of trespass for hunting in the grounds as well of B. as of C.; and if after the hare be killed, or run down by the dogs of A. in the land of C., C. takes the hare, A. may maintain trespass against him; but it would be otherwise if C. took the hare before A. reduced it into possession by his dogs or servants.e have ac 2.-Who may maintain this action.] To support an action The plainof trespass, the plaintiff must at the time the injury was com- tiff must mitted, have actual possession of the thing which is the object tual of the trespass, or else he must have a constructive possession session, or in respect of the right being actually vested in him. The per- a right of a Chandler v. Broughton, 1 C. & M. 29. 3 Tyr. 220. a Com. Dig. Trespass, (A. 1.) (Trover, C.) 1 Saund. 84. Jac. 262. F. N. B. 86. pos Grymes v. Shark, Cro. Per Holt, C. J., in Sutton v. Moody, 1 Lord Raym. 250. 2 Salk. 556. 2 Bl. Com. 419. Godb. 123. Id. • Churchward v. Studdy, 14 East, 249. (1) (It will lie against a person, whose servant takes property by mistake, where no direction or authority is given by him to the servant to take the particular property in question, and where there is no subsequent assent or approbation, with a knowledge of the trespass. Broughton v. Whallon, 8 Wend. 474.) possession. son in actual possession of the property, even though he has no right to it, may maintain trespass against any person but the real owner."(1) So may a bailee, as a carrier, factor, pawnee, or a sheriff; and even a mere gratuitous bailee, or an executor de son tort may maintain trespass for an injury done to the property while in his possession. And if a sheriff omit to continue in possession of the goods under an execution, he cannot maintain trespass. As where a sheriff's officer seized a table in the name of all the goods in the house, and locked up his warrant in the table drawer, and left the house without leaving any person in possession; it was held, that the sheriff could not maintain trespass against the landlord for distraining the goods for rent afterwards, for the sheriff abandoned the possession. And where the sheriff seizes goods in the possession of a party who obtained them through fraud, the sheriff cannot maintain an action against the real owner for rescuing them out of his custody.(2) A party We have seen that actual possession with a qualified tille entitled to to the property, or even without any title, will enable a party immediate to maintain this action; it may be further observed, that as the posses- right of property in personal chattels, for all civil purposes, maintain draws to it the possession, a person who has the absolute protrespass. perty, or an interest in the goods, may maintain trespass, al sion may though he has never had the actual possession, provided he be entitled to immediate possession. Thus, where A. commissioned a party to buy a cow for him, who bought it accordingly, but before the cow came into the possession of A., or he assented to the purchase, it was taken away by the defendant; held, that A. might maintain trespass for the cow, for he had a *1407 *property in her at his election, and by bringing the action he elected to take the bargain.s So the owner of tithe may maintain trespass against the occupier of the land, for turning in cattle and injuring it after it has been set out. So the grantee of waifs, estrays, and a wreck within a manor may before seizure maintain trespass against a wrong doer for taking them away. So an executor a 2 Saund. 47, c. Blackham's case, 1 Salk. 290. Woodson v. Nawton, 2 Stra. 777. Rackham v. Jesup, 3 Wils. 332. In trespass for seizing goods in the possession of the plaintiff, the defendant cannot set up the title of a third person as a defence. Nelson v. Cherrill, 7 Bing. 663. (20 Eng. C. L. 280.) 1 M. & Scott, 452. Booth v. Wilson, 1 B. & A. 59. b 2 Saund. 47, b. a Husband v. Smith, 1 Ch. Pl. 151. 170. e Blades v. Arundel, 1 M. & S. 711. 'See Earl of Bristol v. Wilsmore, 1 B. & C. 514. (8 Eng. C. L. 146.) 2 D. & R. 755. Thomas v. Phillips, 7 C. & P. 573. (32 Eng. C. L.) h Williams v. Lander, 8 T. R. 72. F. N. B. 91. Com. Dig. Trespass, (B. 4.) Smith v. Milles, 1 T. R. 480. Dunwich v. Sterry, 1 B. & Ad. 831. (20 Eng. C. L. 492.) (1) (Townsend v. Kerns, 2 Watts, 180. Aikin ads. Bach et al. 1 Wend. 466.) (2) (An action of trespass de bonis asportatis is rightly brought in the name of the person ho was the owner of the goods at the time of the trespass, although he may have sold them the action was commenced. Boynton v. Willard, 10 Pick. 166.) |