
    Cotteral against Cummins and another.
    
      Monday, January 1.
    When the trespass™ nd whe“ case>
    In Error.
    THE plaintiff in error, Peter- Cotteral, brought an action in the District Court for the city and county of Philar delphia, against Samuel Cummins and Henry Ranston, in which they declared as follows :
    
      First count. “ Whereupon, the said Richard Cotteral, by Peter A. Browne, his attorney, complains, for that the said Richard now is, and at the time of the grievances hereinafter complained of, was a citizen of the United States of America; that on the thirteenth day of June, Anno Domini one thou» sand eight hundred and nine, he, the said Richard, shipped on board the brig or vessel the Hawk (the said vessel being an American vessel, and sailing under American colours) as a seaman, bound on a voyage, to the island of Sumatra, island of Madagascar, and back to Philadelphia. That the said Samuel Cummins was the captain and commander of the said brig or vessel called the “ Hawk,” and the said Henry Ran-ton was the mate, and officer thereof. That the said Richard entered himself on board the said brig or vessel and proceeded in her for and towards the island of Sumatra on the said intended voyage, and in all things did and performed his duty as a seaman on board the said brig or vessel; yet the said Samuel and Henry, not regarding their duty as officers of the said brig or vessel, but contriving and maliciously intending to aggrieve, oppress, and damnify the said Richard, and to take and to carry the said Richard, and to cause and procure the said Richard to be taken and carried into foreign parts and places beyond the seas, to which, he, the said Richard, had not agreed to be taken and carried, and to leave the said Richard in such foreign parts and places, and to cause and procuie him to be left in such foreign parts and places, and not tobe returned to the United States of America, pursuant to his said agreement; and also contriving and maliciously intending him, the said Richard, to put and place, and cause to be put and placed, on board of a foreign ship or vessel, sailing under foreign colours, to wit, the colours of the empire Qf France, on the tenth day of July, in the year last aforesaid, at Grande Porte, in the Isle of France, to wit, at Philadelphia, in the city and county aforesaid, did cause and procure the said Richard to be taken and arrested, and being so arrested, forcibly and against his will, to be conveyed from Grande Porte, aforesaid, to Port Louis, and also did cause and procure him, the said Richard, forcibly, and against his will, to be put and placed on board of a certain French guard-ship, then and there lying, at the port of Port Louis, to wit, at the city and county of Philadelphia, and. there to be forcibly kept and detained against his will and consent, for a long space of time, to wit, for the space of three days ; and, also, did cause and procure the said Richard, forcibly, and against his will, to be taken and conveyed before a certain tribunal, or pretended tribunal, called the “Bureau de Classes,” and then and there, before the said tribunal, or pretended tribunal, did cause and procure the said Richard to be threatened with further imprisonment and injury to his person ; and also, did cause and procure the said Richard to be taken and conveyed from Port Lpuis, aforesaid, to Grande Porte, aforesaid ; and also did cause and procure the said Richard forcibly, and against his will, to be confined and deprived of his liberty in a certain place or prison called the “ Black Hole,” in Grande Porte, to wit, at the city and county of Philadelphia, and then and there forcibly, and against his will, as aforesaid, to be kept and detained for a long space of time, to wit, for the space of eight days ; and also, did cause and procure the said Richard forcibly, and against his will, to be retaken on board the said brig or vessel then sailing under foreign colours, to wit, the colours of the empire of France, and under the command of foreigners, to ■ wit, subjects of the empire of France ; and also, did cause the said Richard forcibly, and against his will and consent, to be taken and conveyed on board the said brig or vessel, under the said foreign colours and command, to Saint Dennis, in the island of Bourbon, and from Saint Dennis, aforesaid, for and towards France; by reason of which sailing and proceeding under the said foreign colours and foreign command, the said brig or vessel was liable and subject to be taken and captured by the enemies of France, and the said brig or vessel was, to wit, on the twenty-second day of March, Anno Domini, one thousand eight hundred and ten, taken and captured by a certain frigate or vessel of war, belonging to the United Kingdom of Great Britain and Ireland, called the “ minerva,” and he, the said Richard, being taken and found on board the said brig or vessel under foreign colours, and commanded as aforesaid, was treated as an enemy and" prisoner of war, to the said United Kingdom of Great Britain and Ireland, and was confined and deprived of his liberty as a prisoner of war for a long- space of time, to wit, from the said twenty-second day of March until the first day of May, in the year last aforesaid : By reason of all which premises, he, the said Richard, hath been greatly hurt, injured, and damnified, hath been subjected to many hardships, risks, and dangers of his life and person, hath been unjustly deprived of his liberty, and hath been obliged and constrained- to pay and lay out large sums of money.’’
    
      Second count. “ And also, the said Richard complains that the said Samuel and Henry, not regarding their duty as officers of the said brig or vessel, but contriving, combining, conspiring, confederating and agreeing among themselves to aggrieve, oppress, and damnify the Said Richard, and to take and carry the said Richard, and to cause and procure him, the said Richard,„to be taken and carried into foreign parts and places beyond the seas, to which he, the said Richard, had not agreed to be taken and carried, and to leave the said Richard in such foreign parts and places, and to cause and procure him to be left in such foreign parts and places, and not to be returned to the United States of America, pursuant to his said agreement, did, in pursuance of the conspiracy and confederacy, as aforesaid, and contriving and maliciously intending him, the said Richard, to put and place, and cause to be put and placed, on board of a foreign ship or vessel, sailing under foreign colours, to wit, the colours of the empire of France, on the tenth day of July, in the year last aforesaid, at Grande Porte, in the Isle of France, to wit, at Philadelphia, in the city and county aforesaid, cause and procure the said Richard to be taken and arrested, and being so arrested forcibly and against his will, to be conveyed from Grande Porte, aforesaid, to Port Louis, and also did cause and procure him, the said Richard, forcibly and against his will, to be put and placed on board of a certain French guard-ship then and there lying at the port of Port Louis, to wit, at the city and county of Philadelphia, and there to be forcibly kept and detained against his will and consent, for a long space of time, to wit, for the space of three days, and also, in pursuance of their conspiracy and confederacy, as aforesaid, did cause and procure the said Richard, forcibly and against his will, to be taken and conveyed before a certain tribunal, or pretended tribunal, called the “ Bureau de Classes,” and then and there, before the said tribunal, or pretended tribunal, did cause and procure the said Richard to be threatened with injury to his person ; and also, in pursuance of their conspiracy and confederacy, as aforesaid, did cause and procure the said Richard tobe taken and conveyed from Port Louis aforesaid, to Grande Porte aforesaid; and also, in pursuance of their conspiracy, did cause and procure the said Richard, forcibly and against his will, to be confined and deprived of his liberty in a certain place or prison called the “ Black Hole,” in Grande Porte, to wit, at the city and county of Philadelphia, and then and there, forcibly and against his will, as aforesaid, to be kept and detained for a long space of time, to wit, for the space of eight days ; and also, in pursuance of their conspiracy and confederacy, as aforesaid, did cause and procure the said Richard, forcibly and against his will, to be retaken on board the said brig or vessel, then sailing under foreign colours, to wit, the colours of the empire of France, and under the command of foreigners, to wit, subjects of the empire of France; and also, in pursuance of their conspiracy and confederacy, aforesaid, did cause and procure the said Richard, forcibly and against his will and consent, to be taken and conveyed in the said brig or vessel, under the said foreign colours and command, to Saint Dennis, in the island of Bourbon, and from Saint Dennis, aforesaid, for and towards France ; by reason of which sailing and proceeding under the said foreign colours and command, the said brig or vessel was liable and subject to be taken and captured by the enemies of France ; and the said brig or vessel was, to wit, on the twenty-second day of March, Anno Domini, one thousand eight hundred and ten, taken and captured by a Certain frigate or vessel of war, belonging to the United Kingdom of Great Britain and Ireland, called the “ Minerva,” and he, the said Richard, being taken and found on board the said brig or vessel under foreign co-lours and command, as aforesaid, was treated as an enemy and prisoner of war to the said United Kingdom of Great 
      
      Britain and Ireland, and was confined and deprived of his liberty as a prisoner of war for a long space of time, to wit, from the said twenty-second day of March until the first day of May, in the year last aforesaid : By reason of all which premises, he, the said Richard, hath been greatly hurt, injured, and damnified ; hath been subjected to many hardships, risks, and dangers of his life and person ; hath been unjustly deprived of his liberty, and hath been obliged and constrained to pay and lay out large sums of money. Whereupon, the' said Richard says he is worse, and hath damage to the value of five thousand dollars, and therefore he brings suit, &c.”
    The plaintiff obtained a verdict, but the Court arrested the judgment for the fifth of the following reasons, which were filed by the defendants’ counsel:
    1st. Because there is a variance between the writ and declaration, inasmuch as the writ issued in trespass on the case, and the declaration has counted in trespass.
    2d. Because the plaintiff has counted in the same declaration both in trespass and case.
    3d. Because the declaration embraces several distinct and separate grounds or causes of action in one and the same count.
    4th. Because the declaration contains several and distinct matters, some of which are not legal grounds for the plaintiff’s action, and yet entire damages are assessed on them by the jury.
    5th. Because the plaintiff has counted in his declaration, for false imprisonment, with force, when his action is an action on the case.
    6th. Because the damages laid in the declaration are too remote.
    The record being removed by writ of error to this Court, the cause was argued by P. A. Brozvne and S. Levy for the plaintiff in error,
    who cited Slade's case, 4 Co. 94¿. Fitz. Ff. B. 212. Slater v. Baker, 2 Wils. 359. Harvard v. Bankes, 2 Burr. 1113. Cro. Eliz. 13. Shapcott v. Mug-ford, 1 Ld. Ray, 187. Reynolds v. Clarke, 2 Ld. Ray, 1399. 1 Str. 636. S. C. Post Rep. 212. 2 Wm. Bl. 983.1 Salk. 10. note Marker v. Birk
      
      beck, 3 Burr. 1561. Tiffin v. Wingfield, Gro. Car. 325. Bourden v. Allow ay, ilMod. ISO. 2 Vin. Ab. Action, p. 2. pi. 10. Gro. Jac. 265. Watson v. Nor bur ij, Style, 3,4. Percival v. Hickey, 18 Johns. 257 ; and by ' ,
    
      Dillingham and Chauncey, for the defendants in error,
    who cited 3 Bl. Com. 208, 9. 2 Wm¿Bh 892. Taylor v. Rainbozv, 2 Hen. Si Mun. 423.'5 Bac. Ab. 321. 1 Tidd, 401.
    
   Duncan J.,

delivered the opinion of the Court.

Whether, on the evidence, the plaintiff has made out an injury for which action on the case, or trespass vi et armis, is his remedy, is often a very nice and difficult question ; but whether his declaration states a grievance, for which the one or the other is the proper form of action, is not so difficult to decide. After verdict, it must be considered that all the facts the plaintiff has stated in his declaration, and all the consequences he has laid as arising from those facts, are established ; and the general question is, whether, on the face of his declaration, he has stated sufficient matter to support this action for consequential damages.

It is the law, that where several matters are laid in the same count, part of which are not actionable, or not actionable in the form laid, if there are sufficient facts laid to support the action, it will be intended after verdict, that damages only were given'for such as are properly laid. And although Courts will not look with the eyes of the eagle to discover errors in a judgment^ yet, as was said by Sir William Blackstgnr, in, the leading case on this subject, the noted squib cáse, Scott v. Shepherd, 3 Wils. 410, they will not like some other birds'shut-out'the light. It is the duty of the Court, without exercising ingenuity in criticising a declaration, to support a verdict if possible, the cause having been tried on its merits. Smith et al. v. Rutherford et ah, 2 Serg. & Rawle, 360. It is not my intention to go through and comment' on all the cases which the researches of the counsel have furnished, but to sum up and draw the conclusion from all of them together. The distinction is well settled, however,}udges may have differed in its application to particular cases, that if the injury be occasioned by the act of the defendant, or the defendant be the immediate cause of the injury, trespass vi et armis is the proper action ; but where the injury is not direct and immediate, but consequential only, case; or as is strongly expressed by the Chief Justice in Smith v. Rutherford, before cited, the criterion of trespass is force directly applied. The leading case is Scott v. Shepherd, 3 Wils. 403, and 2 W. Bl. 844, and this case, it is said, has gone to the very limits of the law. The opinion of Sir Wil-Liam Blackstone, although he stood alone in the principal case, has ever since prevailed, that the unlawfulness of the original act was not the true criterion ; but the true distinction was, whether the injury was immediate or consequential, and trespass never lay for the latter; and De Grey, Chief Justice, agreed with him in the principle, but differed in its application, and further said, that the question was, whether the injury was received by the plaintiff by force from the defendant, or whether it was received from a new force by another ; the vis impressa must continue, or it cannot be trespass; if a new.impetus be given by another, the consequences are, in their nature, consequential damages ; but if all which happened subsequently are continuations of the first act, then it is trespass. The invariable principle to be collected from all the cases, is, that where the injury is immediate on the act done, then trespass lies, but where it is not immediate, but consequential, the remedy is case.

The discrimination is clear, however difficult it may be to apply it, and however differently it may have been applied to particular cases on the evidence. The intelligible criterion is, whether the injury complained of arose directly or followed consequentially from the acts of the defendants. The line of distinction is very accurately drawn by Chief Justice Spencer in the late case of Percival v. Hickey, 18 Johns. 257.

What is the grievance here complained of, and for which the plaintiff seeks redress ? It is not the imprisonment immediately procured by defendants, or his confinement in any French prison or ship; these are the inducements, not the grievances; but it is because the defendants placed him forcibly, and against his will, on board a French ship, to be conveyed in that vessel, sailing under French colours and command, for and towards France; and that by reason of the sailing and proceeding under such colours and command, this vessel was liable and subject to be taken and captured by the enemies of France, and was taken and captured by a British ship, Great Britain then being at war with France, and the plaintiff being .taken and found on board the said vessel under foreign colours and command, was treated as an enemy and prisoner of war, and confined and deprived of his liberty for a long time, by reason whereof he was damnified, &c. The captivity and confinement of the plaintiff, as a prisoner of war, were not the immediate and direct force of defendants, but occasioned by a new force from another. This gave the plaintiff no action of trespass against the captors ; it was an act of power by a foreign State, committed on one taken in an enemy’s ship on the high seas ; he was a prisoner taken and confined, jure belli. Trespass would not lie against the agents of this power; it would not, therefore, lie against the defendants, tracing it up to them as the cause of it, because the principal act done is, in itself, no trespass. Rafal v. Verlst et al. 2 W. Bl. 985. If the principal be not liable for a trespass, he who counsels, aids, and assists him cannot. Vaughan, 553. It would necessarily follow, that for this capture and detention, the defendants could not be liable as trespassers, because the act itself was not a trespass, and because this consequence of their act of force was not immediate,but quite remote and collateral. It could not be given in evidence under the alia enormia, or if laid as special damage. He must then have this right of action, or for this injury he is without redress. But this form of action was intended for the very reason, that the law never would suffer an injury and a damage without a remedy, and there must be new facts in every special action on the case, Winner v. Greenbush, Willes, 577. Is there any authority for the position, that where a consequence arises from an act of force, this action will lie? There is; for in Bourden v. Alloway, 11 Mod. 180, it is said by Powell, and assented to by Powis and Gould, that if a man, by being imprisoned, should have a special damage, as forfeiting a recognizance, or that he could not appear on such a day, per quod he was damnified, this must be case. And Sir William BLACKSTONE,in 1 W. Bl. 895, Scott v. Shepherd, cites this opinion as an authority to support the position, that case will sometimes lie for the consequences of an unlawful act. Its novelty is no objection, for torts are infinitely various, not limited or confined ; they assume various forms, and there is nothing in nature which may not be converted into an instrument of mischief. Pratt, Chief Justice, when the objection was made to the first action on the case for falsely and maliciously suing out a commission of bankruptcy against the defendants, said, novelty was urged against the action in Ashby v. White, but he did wish never to hear it again. Chapman v. Pickersgill, 2 Wils. 146. In actions on the case, for torts such as this, it is not necessary to lay the act to be done maliciously; the word, wrongly, is held tobe sufficiently expressive of a malicious intent, 1 Sand. 242, a, note 2.; where there is an ' allegation of a contrivance to aggrieve, and the act is said to be done forcibly and against the will of the plaintiff.

My first impression, I am free to own, was in affirmance of the judgment of the District Court; but it has been removed by a critical examination and minute analysis of the declaration; and my mind finally settled down in a conviction, that case, and no other action for this special damage could be supported ; and that, however multifarious the declaration máy be, it contains one injury, from which consequential, and not direct, damage arose, which was properly the subject of an action on the case. The judgment is reversed 5 judgment to be entered on the verdict for the plaintiff, and the record remanded for execution.

Judgment reversed.  