
    *Taylor v. Rainbow.
    Tuesday, May 6, 1808.
    Pleading — Trespass Vi Et Armis — Case at Bar. — The defendant, througli neglect, and for want of due caution, Rut without any design to injure, discharged a loaded gun in a public place where many people were assembled, the contents of which gun struck the plaintiff’s leg and wounded him severely, in consequence of which wound the plaintiff lost his leg, and incurred great expense in effecting its cure, besides being disabled from carrying on his business, as before. Art action on the case for consequential damages was held not to lie; but that the proper action was trespass vi et armis.
    5ame — Same—Trespass on the Case — Distinction between the Actions. — The distinction between trespass vi et armis, and trespass on the case for consequential damages, is this: — that where the act done is in itself an immediate injury to another’s person or property, there trespass vi et armis will lie, and not such action on the case; but, where the act is not immediately injurious, but only by consequence, and collaterally, there no action of trespass vi et armis will lie, but a special action on the case for the damages consequent on such act.
    Same — Same—Wiliullness of Act. — In trespass vi et armis it is immaterial whether the injury be committed wilfully, or not.
    Same — Species of Action. — The species of action will be designated by the-Court according to the general form and structure of the declaration.
    In this case, the much agitated question whether trespass vi et armis, or trespass on the case, was the proper action, (between which the law says there is a nice distinction, but the reason of which it is often difficult to discover,) was the only point considered by the Court.
    It was an appeal from a judgment of the District Court of Suffolk, affirming a judgment of the Borough Court of Norfolk rendered in favour of the plaintiff Rainbow, .{now appellee,) against the defendant Taylor, (now appellant.)
    Rainbow brought an action against Taylor, which, upon oyer of the writ, appeared to be trespass on the case, and by indorsement thereon was ‘for negligence and folly in shooting off a gun, whereby the plaintiff lost his leg and damage in consequence thereof.”
    The declaration (on which the cause principally turned) was in the following words:
    “Norfolk Borough, to wit: Thomas Rainbow complains of John Taylor, in custody, &c. of a plea of trespass on the case; for this, to wit: That whereas the said John-on the twenty-second day of June, 1798, in the borough aforesaid, and within the jurisdiction of this Court, with force and arms, a certain gun, then and there loaded and charged with gun-powder, and leaden shot, which gun, he the said John in both his hands, then and there had and held, then and there did shoot and discharge, *and that the said John with the leaden shot aforesaid, out of the .gun aforesaid, then and there by force of the gun-powder aforesaid, shot and sent forth as aforesaid, the aforesaid Thomas in and upon the left leg of the aforesaid Thomas, he the said Thomas then and there standing and being, with the leaden shot aforesaid, out of the gun aforesaid, by the said John so as aforesaid shot, discharged and sent forth, did strike, penetrate, and wound, giving him the said Thomas then and there so many and so grievous wounds in the said lett leg of the said Thomas, .that the said left leg of the said Thomas, then and there by reason thereof was obliged to be amputated and taken off, and the business of the said Thomas happening in the mean time, from the said 22d day of June, 1798, until the day of the exhibition of this bill was in consequence thereof neglected, and remained undone, to the great loss and injury of the aforesaid Thomas; and also for this that in consequence of the said wounds so as aforesaid given by the said John to the said Thomas, he the said Thomas was unavoidably and of necessity obliged to be at great expense, and did expend and lay out great sums of-money in paying and satisfying surgeons and physicians for their trouble, skill, medicine, and attendance, so by them used in amputating and taking off the said left leg of the said Thomas, and in curing the wounds as aforesaid given to the said Thomas by the said John, to wit, the sum of 2,0001. and he the said Thomas was likewise compelled to lay out and expend great sums of money in paying and satisfying sundry persons in attending upon him the said Thomas, during the illness created by the said wounds so as aforesaid given by the said John, to wit, the sum of 2,0001. and was also obliged to expend and lay out divers other sums of money in consequence thereof, whereby the said Thomas says he is prejudiced, and hath damage to the value of 5,0001. and therefore he sues.”
    * After some efforts to demur to the declaration, and to file special pleas in bar, which were ineffectual, because, in .the opinion of the Borough Court, irregularly made, the parties finally went to trial on the plea of not guilty.
    At the first trial a verdict was found for the plaintiff with 1,0001. damages, which, on the motion of the defendant, and for reasons appearing to the Court, was set aside, and a new trial granted.
    Another trial was had, and a verdict found for 9001. damages. At this trial, the defendant moved the Court to instruct the Jury that the plaintiff could not maintain his action under the facts proven in the cause. The Court refused to give the instruction, and the following bill of exceptions was tendered, sealed, and made a part of the record. “Memorandum, at the trial of this cause, the plaintiff having proved by several witnesses, that the defendant John Taylor, through neglect, and for want of due caution, but without any design to injure, had discharged a loaded gun in a public place where many people were assembled, and that the contents of the said gun, had struck the said plaintiff in his leg, and had wounded him grievously, having also proved that in consequence of the said wounds, the said plaintiff had lost his leg, had been run to great expense in curing the said wound, and had been rendered unfit to carry on his trade and business as before; and this being all the evidence offered in the case, the defendant by his attorney moved the Court to instruct the Jury, that the plaintiff could not maintain this action, under these facts established in this case in a special verdict. But the Court were of opinion that the plaintiff could maintain this action under these facts, and refused to instruct the Jury to find the facts established in this case in a special verdict. To which opinion of the Court, the defendant, by his attorney, excepted, and prayed that these his exceptions might be saved to him, and this his bill signed and sealed according to law.” ^Judgment was rendered upon this verdict; and, on appeal to the District Court, the judgment was affirmed; from which affirmance Taylor again appealed to thi» Court.
    Hay, for the appellant,
    relied on the following points:
    1. That the action being trespass on the case, and the charge in the declaration being for a direct and immediate injury accompanied by force, the action could not be maintained,. In support of this position, he cited 3 Blacks. Com. 123, 208, and the cases of Day v. Edwards,  and Eeame v. Bray.
    
    If it be said that this is a declaration in trespass, and not in case, because of the words “with force and arms” inserted in it; the answer is, 1st. That the declaration charges the defendant in a plea of trespass on the case; 2d. That the essential part of the declaration in trespass, the contra pacem, is omitted; and 3d. That the writ is in case, which as to the designation of the action is a part of the record, according to the decision of the Court in Savignac v. Soome. 
    
    2. That the charge in the declaration is by way of recital only; and not a direct averment. Whether this declaration be considered in trespass Vi et armis, or in case, the want of a direct averment is equally fatal. The gist of the action must always be positively laid, 
    
    3. That the instruction given by the Borough Court at the trial, and stated in the bill of exceptions then filed was erroneous; because the defendant is liable in trespass for involuntary acts injurious to others, where there is neglect or want of due caution, but not in case; as is expressly said by Lord Mansfield in the case of Tarlton v. Fisher,  In trespass it is not necessary that the plaintiff should shew the trespass was wilfully committed; but in case it is necessary to prove that the act was maliciously done; the quo animo being all important.
    Call, for the appellee.
    The first position which I am to maintain is, that the action is well brought.
    *The first reason is, that the plaintiff, when the injury is immediate, may bring trespass for the whole injury, or case for the consequences only, even where they proceed immediately from the force. For a man may waive the injury, and go for the damages only. An analogous case is, that the plaintiff may bring trover or trespass, for the same cause of action. So if a person take goods wrongfully and sell them, the owner may bring indebitatus assumpsit for the price, though it is clear that he might have maintained detinue or trover,  Of course, he may elect to include the whole in trespass, or the consequences only in case,  The case of Watson v. Norbury, cited from Style, p. 201, is perfectly analogous. There the plaintiff first recovered in trespass and then brought case for consequential damages, and the action was supported. In the present case the plaintiff brought his action for expenses in physicians’ ‘bills, and for attendance, and the force was only laid as inducement.
    In Aleyn, 84,  it appears that the plaintiff brought case for taking down his fences, per quod the cattle from the common entered on his soil and did the damage; although this was a trespass on the plaintiff’s own soil. So in 6 East, 388,  it is laid down that an action for crim. con. may be brought in trespass or case. The case of Ash v. Brudnel,  is much stronger than the present. There, case was supported for an act which was simply a trespass — for tearing off the seal of a deed. In 2 Vin. Abr. 13, pi. 40, case for burning deeds. 1 Roll. Abr. 104, Let. K. pi. 3, case for pulling off the tiles of the plaintiff’s house. Though it was said that trespass would lie in such case; yet case would also lie, because it was alleged that by pulling off the tiles the water penetrated and rotted the timbers of the house. In all these cases, the damages were consequential, and necessarily grew out of the force.
    Other authorities shew that, where the damages are in any degree collateral, or unconnected with the force, there is no doubt but case will lie. The case from Style, 201, *proves that position. So in Aleyn, 22,  case for killing cattle distempered with the murrain, and throwing the entrails into the plaintiff’s fields. The injury in the present case arising from the expense of medicine, attendance, and loss of business is wholly disconnected from the force.
    Wickham. Do you mean to contend that the consequential damage could not have been given in evidence, in an action of trespass?
    Call. Yes. And for that I refer to Style, page4, where the Court say that “the Jury had no power to take any damages into their consideration, which happened after the trespass done.”
    In 11 Mod. 180,  it is said, that if a man by being unlawfully imprisoned receive any special damage; as if he cannot appear, per quod his recognizance is forfeited, he shall have an action on the case. This doctrine is approved by Judge Blackstone, in his celebrated argument in the case of Scott v. Shepherd. Though, on the main question, the other Judges differed from him, yet'the soundness of this position was not denied. In the case of Lodge v. Weeden, cited from Aleyn, if trespass had been brought, the plaintiff could only have recovered for the simple act of throwing the garbage over his fence. So, in the present case, the plaintiff could not have recovered for the consequential damages, in an action of trespass.
    This brings me to consider some of the exceptions taken to the declaration itself. It is said'that the charge is only by way of recital; and that there is no direct averment. The quod cum, in this case, is but inducement, and the consequence is the gist of the action ; in which the averment is as explicit as it can be made. For the charge is, “and also for this, that in consequence,” &c. It is admitted that whatever relates to the wound and amputation of the leg is mere recital; but the averment of consequential damages is as express as it can be stated. This recital was absolutely necessary; as, without it, the declaration could *not have been supported on demurrer, or, perhaps, on a motion in arrest of judgment. That this is the correct mode, will appear from a precedent in Modern Entries, page 217.
    But, if there-be a want of positive averment in the declaration, it is supplied by the writ, of which oyer was taken, and which has thus become a part of the record. The indorsement on the writ shews the nature of the action and contains a positive charge. According to the principles of Ballard v. Eeavell,  the writ may be considered as supporting the declaration.
    The last point respects the merits of the cause, as stated in the bill of exceptions. It is said, there was no malice, no design to injure, and, therefore, this action would not lie; and for this we are referred to Douglas, 674. It is true, there is one species of action on. the case, in which malice is necessary to be proved: but it is equally true, that it is not necessary in others. In that case the action was for arresting the plaintiff. Where a party acts under the colour of process it is necessary to shew malice, otherwise he is not liable.
    Randolph, on the same side.
    The great and only question in this cause is, whether the Court below decided right in saying this action was sustainable. This involves the question whether it should have been trespass vi et armis or trespass on the case.
    Though the declaration charges force by way of inducement, yet it wants those parts which are peculiar to trespass, as against the peace, &c. There being nothing, therefore which designates it a declaration in trespass, but the whole tenor of it being in case, it shall be taken to be case, according to the principle of Byrd v. Cocke, 
    
    The Court will depart from the strict law of England, in matters of practice, where it is too rigid. Thus in case for slander; after verdict, the Court will not inquire whether the words were actionable or not. 
    
    *If we are left unfe+tered by the decisions of the English Courts, no good good reason can be given why this action is not case as well as trespass. The defendant has the same opportunity of defending himself, has as full notice of the plaintiff’s cause of action, and may be as fully prepared for trial. Why not permit case or trespass, in this instance, when you may have trover or trespass; detinue, replevin or trespass, and in such a variety of cases, elect to have one action or another, 
    
    But, in truth, the reason why the Courts of England supported trespass was, that the King was entitled to a fine in that action, which he would lose in case, '
    In the passage cited from the third volume of Blackstone’s Commentaries, page 123, it is said that the remedy for an immediate' injury to the person or property of another, is usually by an action of trespass vi et armis. This is permissive only, and not exclusive.
    No case has been cited which comes up to this. Here is no violence charged: it goes for consequential damages only. There is a recital, indeed; but it concludes, in consequence of this act the plaintiff is entitled to damages.
    This is simply an action on the case for consequential damages, arising from the negligence and folly of the defendant: and the plaintiff having obtained a verdict commensurate with the injury, the Court will not deprive him of it by too rigid an adherence to technical objections.
    Wickham, in reply.
    If this cause really turned upon the point, on which the counsel on the other side have placed it, it ought not to have taken up a moment in argument. It was presumed b3r us, that they would have attempted to shew, that, though this action in appearance in case, yet in truth it is trespass. They have endeavoured, however, to prove, that for trespass assault and battery, case will lie.
    It is unnecessary to reason on the propriety of keeping up the boundaries of action : it is a settled rule of law that they must be preserved. In 1 Wash. 232,  this principle is recognized; and in 6 Term Rep. 129,  Ed. Kenyon, *in giving his opinion, expressly says, that “the boundaries of actions should be kept up.”
    This, then, is an action on the case; and the question is, whether case can be maintained for such a trespass as this, committed with force.
    The case of Weaver v. Ward,  which was cited and relied upon as law, in the case of Leame v. Bray, is the very case at bar. That was an action of trespass, assault and battery for an injury done to the plaintiff by the defendant’s negligently discharging his musket, while they were both innocently engaged in performing military exercises, in opposite companies of the trained bands of London. The case of Underwood v. Hewson, is also, in principle like the present. There the defendant in uncocking his gun, discharged it, and wounded the plaintiff who was looking on; and it was holden that trespass lay. Nor does the wilfulness of the act make any difference: as appears from the cases of Weaver v. Ward and Leame v. Bray, just cited, and also from Day v. Edwards,  In Hobart,  it is stated by the plea that the defendant accidentally, and by misfortune, and against his will, in discharging his piece, wounded the plaintiff, &c. But it was held, that, if there be the slightest degree of negligence, trespass was the proper action : nothing but inevitable necessity, or where the act was “utterly without the fault” of the defendant would excuse him. Besides, was it ever stated in a declaration for trespass, assault and battery, that the defendant committed the act wilfully?
    This is exactly the same thing as if in a common case of assault and battery, the party should bring case for consequential damages, and state the battery by way of inducement. Has such an action ever been maintained either in England, or in this country?
    But, says Mr. Call, this action was brought for consequential damages only; for expenses incurred in medicine and attendance. Are not all damages consequential? His argument proves too much. For, if the plaintiff can recover only for damages immediate on the injury, then, as, in trespass, no damages are cotemporaneous with the act, *none could be recovered. But it is the constant practice, in actions of trespass, assault and battery, to give in evidence the injury sustained from the act.
    The authorities are often misapplied by not adverting to a distinction in the term immediate. It is used by Mr. Call, in the present case, in reference to time only; whereas it should be used with reference to the act, and not to the damages consequent thereon; it should be used as opposed to mediate, or, where there is no intervening agent. Thus, if a man throw a log of wood across the street, and another fall over it and get injured, case only lies for the consequential damage; but, if, in throwing it, he strike another, trespass lies for the immediate injury.
    If it be law, that case for consequential damages will lie upon such facts as these, surely some authorities could be found to support the action; but not one can be produced. Such an action would be contrary to all principle. For if the plaintiff could bring one action for consequential damages, he might bring twenty; as for loss of business, purchase of a wooden leg, fitting it on, the expenses of the doctor, nurse, &c.
    In the report of the case of Scott v. Shepherd, bv Wilson,  the declaration is given, in which all the circumstances and consequences flowing from the act are as fully stated as in this case; and no doubt was entertained but that trespass was the proper action. All the Judges agreed in this; though Judge Blackstone thought that trespass did not lie for Scott v. Shepherd, because of the intermediate agency of others, and because, on the first lighting of the squib, the force as proceeding from Shepherd had ceased, and it received a new impulse and direction from others.
    In 2 Lilly’s Entries, 428, and 455, there are precedents of declarations in trespass, assault and battery, in which the particular circumstances of the case, and the consequential damages, are stated. The per quod, in trespass, is laid merely is aggravation of damages, 
    
    Only one case has occurred in which an attempt was made to recover consequential damages, for a trespass, *assault and battery, in a new and subsequent action. That was the case of Fetter v. Beale, reported in 1 Salk. 11.  But the Court held that the action would not lie.
    It appears clearly that the present is nothing but an action of assault and battery misconceived.
    I come now to consider the cases cited by Mr. Call.
    Such authorities as Aleyn and Style may with propriety be cited in tracing the history of the law; but when decisions reported by them have been overruled by all modern determinations, they ought not to be regarded.
    The case of Watson v. Norbury, in Style 3, and 201, may or may not be law; but it has no bearing on the present case. The action was brought for unlawfully procuring a commission of bankruptcy against the plaintiff, and breaking open his shop in executing it. They were separate and distinct acts and might admit of different remedies; one for the loss of credit in consequence of the commission of bankruptcy, the other for the injury in breaking open his shop.
    Aleyn reported during the commotions produced by the civil wars; and is an authority not much to be relied on. In his report of Cooper v. St. John, page 84, the case is made to turn upon the question, whether the action should have been trespass vi et armis or case; but he has left us totally in the dark as to one important fact, which would make the one action or the other proper: he has not told us whether the fence was on the land of the plaintiff, or of the defendant. In 2 Vin. Abr. 2, pi. 6, this case from Aleyn is noticed. Viner, who is a mere collector of cases, cites one from the Year Books, which Aleyn, in this case of Cooper v. St. John, says is not law. Viner, however, inserts it, and leaves it to the Courts to decide. Style, 130, reports the same case of Cooper v. St. John, and makes it auite a different action. This shews the loose manner in which they reported at that day. Again, this case is mentioned in 5 Vin. Abr. 404, pi. 8, where it is said that the fence was not on the land of the plaintiff. This circumstance makes the case more intelligible. For, if the fence “''were not on the land of the plaintiff,' he could not bring trespass ; but the owner of the fence only. The plaintiff could only recover, in case, for the damages done to him by the cattle getting into his field.
    The point cited by Hr. Call, from 2 Vin. 8, pi. 14, was merely stated by the Court arguendo, in the case of —— v. Slater,  In pi. IS, of the same page, Viner refers to the case of Reynolds v. Clarke,  where the distinction is taken between trespass vi et armis and trespass on the case. But in pi. 13, of page 7, he gives the decision of the Court on the main point in-v. Slater; which was case for causing the plaintiff to be arrested, and maliciously charging her with felony, &c. but it neither being stated that the defendant arrested the plaintiff by his own authority, nor appearing that there was any false imprisonment, the plaintiff had judgment. But, if there be a direct trespass, if the defendant, by his own author^', maliciously make an arrest, case will not lie; as was settled in Morgan v. Hughes,  There an action on the case was brought against the Justice himself, for illegally and maliciously arresting the plaintiff by his own warrant; but the judgment was arrested, because it should have been trespass. The injury arising from the Justice’s own act in unlawfully issuing the process, made him a trespasser ab initio.
    The case of the King’s farmer, noticed in 2 Vin. 2, pi. 14, is like that of Pitts v. Gainee, cited in 2 Vin. 7, pi. 11, where it was held that case would lie, because the plaintiff who was captain of the ship had no property, but only declared as a particular officer.
    2 Vin. 2, pi. 10, cites the case of Lewson v. Kirk, Cro. Jac. 265, where it is only said by counsel that the action ought to have been trespass; but the Court, very properly, decided that it should be case. It is not law, but a mere dictum when it is said that either trespass or case would lie upon the facts stated in that cause. In 4 Bac. Abr. 589, it is cited merely to shew that a master may maintain an action against his servant upon such circumstances.
    *The next authority relied on by Mr. Call, is 2 Vin. 13, pi. 40, where it is said that case lies for burning deeds, &c. This loose note may in many cases be law, a,nd in many others not, according to the circumstances. If the act was immediate, as by taking a fire-brand and setting fire to a house which was consumed together with the deeds, &c. trespass would be the proper remedy; but if the defendant kept his fire so negligently that it consumed the house of his neighbour, with the deeds, &c. then it should be case for consequential damages.
    In 1 Vin. 598, the case of Booth and Oliver, from Rolle, is cited, where the defendant pulled down the wall which divided the houses of the plaintiff and defendant, and also pulled off the tiles from the house of the plaintiff, per quod the water came into the plaintiff’s house and rotted the timber. Now, if the wall was upon the defendant’s own land, as it probably was, the plaintiff could not bring trespass, but case for consequential damages.
    The case in Cro. Jac. 255, never turned upon the distinction between trespass and case. It might happen that case was the proper action; because the deed, the seal of which was torn off, might or might not be the property of the plaintiff, he being merely interested in an annuity for life secured by it. So, in Aleyn, 22, the ground of the action was for throwing the entrails-of diseased cattle, into the plaintiff’s field. Probably, the defendant had leave to throw entrails there, in general terms; but in doing it he threw those of distempered cattle, whereby the murrain was communicated to-the plaintiff’s cattle. The sole question there was, whether the plaintiff ought not to have stated the number of his cattle which died of the disease.
    11 Mod. 180,  was an action on the case for a malicious prosecution without probable cause; but what is there said, is a mere conversation among the Judges, as the case was never decided.
    In 6 East, 388, the objection was that the husband brought an action without joining his wife. If for the batterj' of the wife, the husband must join; but, if for consequential K'damages, not. This case turned wholly upon the circumstance of its being an action, brought by the husband singly for an injury done to the wife.
    All the modern cases cited on the other side, which have any application.to this, from Ld. Raym. 1216, down to the present time, were cases of property and not of personal injury. A. takes the property of B. and turns it into money. There the plaintiff may waive the force and go for the mon.ey. Or, if he keep the property in his own possession, the plaintiff may bring detinue, or trover, dr trespass, at his election. Take away the force in all such cases, and the property remains; but, take away the force in this case, and what remains?
    The precedent in 1 Mod. Entries depends upon its own principles. That was an action for negligently managing a boat. If the injury had merely arisen from the winds and the waves, the captain would not be liable. Perhaps he was struggling against both, but was considered liable for not having a sufficient boat, sails, &c.
    This is said to be a peculiar case. What is it but the common case of a trespass where the consequences are natural and direct?
    But the reason of the law has been gone into; and we are told that the plaintiff will lose his verdict, if the distinction which we contend for should prevail. This argument will fit any case. It would apply as well, if the plaintiff had brought an action of debt or a bill in equitjt
    
      
      Pleading — Trespass Vi Et Armis — Trespass on the Case. — See foot-note to Jordan v. Wyatt, 4 Gratt. 151, and 4 Min. Insts. 436.
      The principal case is cited in Cunningham v. Pitter, 2 W. Va. 271; Catlett v. Russell, 6 Leigh 374; The Farmers’ Bank v. Clarke, 4 Leigh 609.
    
    
      
       5 Term Rep. 648.
    
    
      
       3 East, 593.
    
    
      
       6 Term Rep. 125.
    
    
      
      
         2 Call, 39, Cook v. Simms; 2 Ld. Raym. 1413; Dobbs v. Edmunds, Sra. 621; Amyon v. Shore, ib. 1151; Wilder v. Handy, ib. 1161; Marshall v. Riggs, 5 Com. Dig. (old edit.) 350, 1 Wils. 99; Douglas v. Hall, 2 Wils. 203; White v. Shaw, 2 Salk. 636; Hore v. Chapman, 20 Vin. Abr. 535.
    
    
      
       Doug. 674.
    
    
      
       2 Ld. Raym. 1216: Lamine v. Dorrell, Burn's Dig. 30, pl. 28, Ib. 31, pl. 36; 1 Term Rep. 387; Birch v. Wright. Cowp. 415, 416, 419; Lindow v. Hooper.
    
    
      
      
        2 Vin. Abr. 8, pl. 14, Ib. 2, pi. 14; Ib. 2, pi. 10; Cro. Jac. 265; Lewson v. Kirk Style, 3, 4; Watson v. Norbury, Ib. 201, S. C.
    
    
      
      b) Sir Anthony Ashley Coopery. St. John.
    
    
      
       Macfadzen v. Olivant.
    
    
      
       Cro. Jac. 255.
    
    
      
       Longe v. Weeden.
    
    
      
       Bourden v. Alloway.
    
    
      
       See 2 W. Blacks. Rep. 895.
    
    
      
       8tb of November, 1805, MS.
    
    
      
       1 Wash. 232.
    
    
      
       1 Wash. 150, Hoye v. Young.
    
    
      
      a) Comyn’s Dig. tit. “Action,” let. (M) &c. Ib. tit. “Pleader.”
    
    
      
       See 2 Vin. 7, pl. 10.
    
    
      
       Byrd v. Cocke.
    
    
      
      
         Savignac v. Roome.
    
    
      
       Hobart, 134.
    
    
      
       3 Bast, 593.
    
    
      
       Stra. 596.
    
    
      
       B Term Rep. 648.
    
    
      
       In the case of Weaver v. Ward.
    
    
      
      3 Wils. 403.
    
    
      
       2 Ld. Raym. 1403, Reynolds v. Clarke.
    
    
      
       See also 1 Rd. Raym. 339, and 692, S. C. more fully reported.
    
    
      
       Holt’s Reports, 22.
    
    
      
       2 Ld. Raym, 139D, 1402.
    
    
      
       2 Term. Rep. 225.
    
    
      
       1 Salk. 10.
    
    
      
       See Leach’s edit in notes.
    
   Monday, May 16. The Judges delivered their opinions.

JUDGE TUCKER.

Rainbow brought an action on the case against Taylor for shooting off a gun, and wounding him in the leg, “so that his leg, by reason thereof, was obliged to be amputated and taken off, and then the plaintiff’s business in the mean time was in consequence thereof neglected; and the plaintiff put to great expense in the *cure,” &c. The declaration begins, “For that whereas the defendant, with force and arms, a certain gun, loaded, &c. did shoot,” &c. It appears, from a bill of exceptions at the trial, that it was proved that the defendant, through neglect, and for want of due caution, but without any design to injure, discharged a loaded gun in a public place, where many people were assembled, and that the contents were lodged in 'the plaintiff’s leg, in consequence of which it was cut off; that he was thereby unable to carry on his business, and put to great expense in the cure, &c. And the opinion of the Court was required as an instruction to the Jury, whether the plaintiff could maintain this action, upon these facts. The Court being of opinion that he could, there was a verdict and judgment for the plaintiff, which was affirmed in the District Court, from which judgment there is an appeal to this Court.

The great point in question in this cause is, whether the plaintiff ought to have brought an action of trespass vi et armis for this injury, and alleged the loss of his leg, the expense of the cure, and the consequent inattention and neglect of his business, by way of aggravation of his damages; or whether he can maintain this action, which is agreed on all hands to be an action on the case, and not trespass vi et armis; there being no assault charged, &c. and many other circumstances which clearly designate it as an action on the case.

There are some cases where one may have either trespass vi et armis, or an action upon the case, at his election; as in Wheatly v. Stone, Hob. 180, Tiffyn v. Wingfield, 3 Cro. 325, and in a much more modern case, Slater v. Baker and Stapleton, 2 Wils. 362, which is certainly a very strong one — being a special action on the case for unskilfully breaking and disuniting the callus of the plaintiff’s leg, after it had been set, and the callus formed. The plaintiff declared upon their undertaking the cure of his leg, which had been broken and set, and the callus of the fracture formed; and that, not regarding their promise, *&c. they had ignorantly and unskilfully broke it, &c. And after verdict it was objected, that it ought to have been trespass vi et armis; but it was answered by the Court, that it was ignorance and unskilfulness to do contrary to the rule of practice in the profession, for which this action would lie, and the plaintiff had judgment. The plaintiff, in this case, having declared upon a special undertaking to cure his leg, seems to have been entitled to his action founded upon that undertaking, although the means made use of to effect a cure might have been such, as, if not founded upon a previous contract, and consent on the part of the plaintiff to submit to whatever they might think proper to be done for his cure, might have amounted to a violent breach of the peace. As, suppose a surgeon called in to amputate a leg, should do it in the wrong place, or so unskilfully, as to render a second amputation in another part indispensably necessary; although the cutting off the leg would, without the patient’s consent, well have justified an action of trespass vi et armis, yet, being done with his consent, and in the way of his profession and undertaking, an action of trespass on the case, (founded upon his ignorance and un-skilfulness in performing what he had undertaken,) would seem to be the proper remedy, and not trespass vi et armis. But, where there is no such undertaking or agreement on the part of the defendant, nor any consent or agreement on the part of the plaintiff, the distinction as laid down by Lord Ch. J. Raymond, in the case of Reynolds v. Clarke, 2 Ld. Raym. 1402, and 1 Strange, 634, is_, that, where the act done is, in itself, an immediate injury to another’s person or property, there trespass vi et armis will lie; but where the act is not immediately injurious, but only by consequence, and collateral^, there no action of trespass vi et armis will lie, but a special action on the case for the damages consequent on such act. This distinction is adopted by Judge Blackstone in his Commentaries, vol. 3, p. 123. The same was adopted by the Court oí K. B. in the case of Howard v. Bankes, 2 Burrow, 1114, “'which was an action on the case, for damage done to the plaintiff’s colliery, by what the defendant had done in his own colliery, and within his own soil. On a motion in arrest of judgment, the Court said, ‘The plaintiff describes in his declaration a fact which, as it comes out at the trial, may, or may not, be a proper strict trespass.” It might, at the trial, be proved to be either trespass, or case, according to the evidence. And, it appears, that it was here proved at the trial, to be trespass upon the case. If it had been proved to be trespass vi et armis, the plaintiff must, in that event, have been nonsuited. The case of Harker et al. v. Birbeck et al., 3 Burr. 1556, was also an action on the case, in which the plaintiffs declared that they were lawfully entitled to the sole liberty and privilege of digging for, getting, and raising lead-ore, within a certain place, and that the defendants, intending to injure them, and to deprive them of all the benefit and advantage of getting and raising lead-ore, did sink for, and raise, a large quantity within the same limits; whereby they were deprived of the benefit and advantage of their privilege. Upon a special case stated, the Court was of opinion, that the plaintiffs being in possession of the mine, the injury done was a trespass, and that the action ought to have been trespass; and judgment was given for the defendants. The same case is reported by Sir William Blackstone, vol. 1, 482. He concludes the opinion of the Court, as delivered by Lord Mansfield, in these words: “The plaintiff is cestui que trust in possession, and therefore was entitled to an action of trespass, and no other, for the present injury.” These authorities clearly shew, that the rule, as to the distinction of these actions, is now settled, that where the act done is an immediate injury to another’s person or property, and without, or against his consent or agreement, there the proper and only remedy is by action of trespass vi et armis. But here another distinction occurs. It is said, that, to constitute a trespass, for which an action of trespass vi et *armis is maintainable, the act causing the injury must be voluntary, and with some degree of fault; for if done involuntarily, and without fault, no action of trespass vi et armis lies, As, where the defendant drove the plaintiff’s sheep out of his own ground with a dog that chased and followed them into the plaintiff's ground, it was held, that the defendant might justify chasing the sheep off his own ground, and, as the dog could not be suddenly called in, the trespass and injury was involuntary, it appearing that the defendant had called the dog in; and the defendant had judgment. But that, in an action on the case, it is no excuse for a defendant that an injury was involuntary on his part; for if any damage is caused to another from the folly, or want of due care and caution in such defendant, an action on the case lies. As, where an unruly horse is brought into a place of public resort to break, though the person might not intend to do an injury to any one, yet, if the horse kick or otherwise hurt any one, he shall have an action on the case; for it was folly and want of care to bring him to such a place, for such a purpose, But, in this case, the injury might have proceeded, not from the immediate act of the defendant, viz. the bringing the horse into the public place, but from a consequential act of the horse, which it was the defendant’s folly not to have guarded against. But, if the defendant had rode over any person in a public place, unless his horse had suddenly taken fright and run away with his rider against his will, the authorities are clear, that an action of trespass vi et armis would have been proper, For, where, from the nature of the act, the time and place when and where it was done, make it highly probable, that some personal damage will immediately happen thereby to somebody then present, in a public place; as where the defendant threw a lighted squib into a market, which was tossed to and fro till it struck the plaintiff’s eye, and put it out, there trespass vi et armis is the proper action.

*The case of Mosley v. Gaisford, 2 H. Bl. 402, which was an action on the case against a master for injury done to the plaintiff’s chaise, by his servant’s negligently driving his cart against it in the. highway, may seem in contradiction to the cases I have before cited. But, it must be recollected, that that was an action against the master, not against the servant who committed the injury. And, on motion in arrest of judgment, for that the action should have been trespass vi et armis, the Court said it would be difficult to put a case where the master could be considered as a trespasser, for an act of his servant, not done at his command. But, in Savignac v. Roome, 6 T. R. 125, the Court of King’s Bench decided otherwise, and arrested the judgment, because the action brought, was an action upon the case instead of trespass vi et .armis. And the decision in Day v. Edwards, 5 T. R. 648, was to the same effect.

In the present case the plaintiff, begins his declaration with complaining against the defendant in a plea of trespass on the case, “for this,” &c. The whole declaration is manifestly a declaration in case, and not in trespass vi et armis. In Byrd v. Cocke, 1 Wash. 232, this Court observed, that the declaration being in debt, although after a verdict, they could find no authority to justify a rejection of that part as sur-plusage, which designated it to be an action of debt; and for that reason reversed the judgment. The case of Gibbons v. Jameson, Nov. 15, 1804, was reversed upon the same point, because the plaintiff had brought an action of debt for military certificates.

With respect to the special damages which the plaintiff would be entitled to recover in consequence of this injury, it is said that many things may be laid in aggravation of damages, for which alone trespass would not lie. And the case of Scott v. Shepherd, 3 Wils. 403, furnishes a precedent of a declaration that would be proper in such cases. And, as no objection was taken to the declaration on that ground, nor to the damages, which were evidently given not only as a recompense for the loss of the plaintiff’s eye, *and the pain he suffered from that injury, but also as a satisfaction for the expense he was put to in the cure, I conceive that it affords a strong presumption that it was not liable to any.

This is undoubtedly a case of very great hardship, and I have felt every disposition to support, if possible, the verdict of the Jury; but the authorities are too strong and conclusive against this action, in its present form. I therefore think the judgment must be reversed, and judgment given that the plaintiff take nothing by his declaration, &c.

JUDGE ROANE-

There is no position in the law more clearly established than this; that, “wherever the injury is committed by the immediate act complained of, the action must be trespass.” This doctrine is also to be found in a great variety of other cases. In Deame v. Bray, the Chief Justice says, that ‘ ‘if the injurious act be the immediate result of the force originally applied by the defendant, it is the subject of an action of trespass vi et armis by all the cases ancient and modern; and that it is immaterial whether the injury be wilful or not.” He then refers to several cases which are entirely analogous to the case before us; as, where one shooting at butts, for trial of skill, with a bow and arrow, and having no unlawful purpose in view, wounded a man, it was hotden to be trespass. So in the case of Weaver v. Ward, where a like unfortunate accident happened whilst persons were lawfully exercising themselves in arms. And this doctrine is said by one of the Judges in that case, to be traced up to the Year Books.

The case of the squib, in Scott v. Shepherd, goes infinitely beyond our case, and was yet held to be trespass, Blackstone, J., dissentiente. If the injury had been done to the person upon whom the squib first alighted, it would have been similar to the ■case at bar; and, in that view, it is supposed that that Judge would have concurred: he could “not have dissented ; because then it could not have been pretended that the injury was merely consequential.

Case therefore will not lie in the present instance. This seemed to be, in a measure, conceded by one of the appellee’s counsel; but he endeavoured to get round the objection by waiving the trespass, considering all that part of the declaration, which relates to the force, as mere inducement, ■and going only for the consequential injury. No precedent, however, justifies that attempt in a case like the present. It might -equally be argued, that, in the case of a battery, a man could sustain trespass on ■the case for the pain and injury arising -from the infliction of the blows.

This concession establishes, however, as ■far as the concession of counsel can establish it, the only material point in the cause, (considered in relation to the general question,) and which was sufficiently clear before, namely, that the declaration in question is a declaration in case. The plaintiff tells us, that it is so, totidem ver-bis. It begins, “Thomas Rainbow complains of John Taylor, in custody, &c. of a plea of trespass on the case.” It omits the •contra pacem; it has no averment that the gun was shot against the plaintiff; (allegations which would naturally have been found in a declaration in trespass;) and, •on the whole context, appears to be a declaration in case. On the other hand, indeed, the act is stated to have been done with force and arms; and the question is, whether this circumstance, in opposition to all the circumstances just mentioned, will pin it down to be a declaration in trespass?

In the case of Day v. Edwards, the declaration did not indeed charge the act to have been done with force and arms, in so many words; but it charged in very em-phatical terms, (twice repeated,) that the defendant drove his cart “furiously,” and that it was then and there “driven and struck with great force and violence against the carriage of the plaintiff;” and yet judgment was given for the defendant, on the ground that the action should have been trespass. So, in Savignac v. Roome, 6 Term Rep. 125, “where the declaration charged the driving one carriage “willfully against” another, the judgment was arrested; because case would not lie for this injury. In that case, after observing that “the bounds of the different actions should be preserved,” Eord Kenyon added, that “the whole frame and structure •of the declaration shew that it is an action on the case, and that the memorandum” (which the Judges looked into) “is of an action on the case. ’ ’ This latter circumstance might perhaps (if necessary) justif3' us in looking into the writ and in-dorsement in this case, (of which oyer is craved,) and which expressly state the action to be an action on the case. The case of Byrd v. Cocke, seems also to shew that the Court will designate a declaration according to its general form and structure.

Considered, however, as a declaration in trespass, I am strongly inclined to think that the trespass is not sufficiently charged, being only under a quod cum. On this point, however, I will merely refer to the ground of my opinion in the case of Ballard v. Leavell. If any aid could (in this view)be derived from the writ and indorsement to cure the want of a positive averment, that writ and indorsement would equally shew, bej'ond all controversy, that the declaration is in case, and thus cut up by the roots the plaintiff’s right to recover.

On these grounds, I am of opinion, (however I may regret it,) that the decision of the Court stated in the bill of exceptions is erroneous; that this action cannot be sustained; and that the judgment must be reversed, and entered for the defendant.

JUDGE EIEMING.

Were it not that I think myself tied down, and bound by precedents, I should have differed in opinion from the Judges who have preceded me on the first great point in this cause, (to wit, the nature of the action,) because it does appear to me, from the reason of the thing, and upon sound general principles, that three things “only are essentially requisite to maintain an action: 1st. That the plaintiff make out such a case as will entitle him to recover; 2dly. That he state his case in such a manner as to afford the defendant a fair opportunity of making a full and complete defence; and, 3dly. So that a recovery in the suit may be pleaded in bar to any future action for the same cause. All this seems to have been done in the case now before the Court. But a line of distinction between actions of trespass vi et armis, and actions of trespass on the case, seems to have been settled in the case of Reynolds v. Clarke, in which it is laid down, that, where the immediate act itself occasions a prejudice, or is an injury to the plaintiff’s person, house, land, &c. the remedy is by action of trespass vi et armis; but, where the act itself is not an injury, but a consequence from that act is prejudicial to the plaintiff’s person, &c. his remedy is by an action on the case. And this doctrine is further illustrated and confirmed, in the case of Hayward v. Banks, 2 Burr. 1114, in that of Harker and others, in 1 Bl. Rep. 482, and more at large in 3 Burr. 1556, in Scott v. Shepherd, 2 Bl. 892, and in other cases that have been already cited. In many of those cases, the Judges have declared the necessity of keeping up the distinction, to avoid a confusion of actions.

It appears from the record in this case, that the injury to the plaintiff was immediate, being occasioned by the discharge of a gun by the appellant; and that, according to the cases cited above, he has mistaken his action, which ought to have been trespass vi et armis, instead of an action on the case. And therefore, without deciding on any other points in the cause, I am constrained, under those authorities, to concur in opinion, that the judgments of both the Courts below are erroneous, and must be reversed.

By the whole Court, (absent JUDGE LYONS,) the judgments of the District and Borough Courts reversed. 
      
       2 Esp. 598.
     
      
       1 Esp. 313.
     
      
       1 Esp. 383, Ib. 313, cites 4 Burr. 2092, Hobart, 138, Weaver v. Ward.
     
      
       2 Rev. 16.
     
      
       Bull. N. P. 16, 1 Esp. 513, 3 Wils. 411. 412.
     
      
       Scott v. Sheppard, 3 Wils. 403, 2 Bl. Rep. 892, S. C.
     
      
       Bull. N. P. 89, Str. 61, Dix v. Brookes.
     
      
       Day v. Edwards, 5 Term Rep. 649.
     
      
       3 East, 599.
     
      
       2 Bl. Rep. 892.
     
      
       1 Wash. 232.
     
      
       8th Nov. 1805, MS.
     
      
       2 Bd. Raym. 1402, and 1 Sira. 634.
     