M'Allister ex rel. Bulger v. Hammond

Curia, per Savage, Chief Justice. It w7as once important to ascertain whether trespass or case was the proper action. Originally, actions of trespass involved a breach of the peace ; and besides damages to the party, judgment of capiatur was entered, upon which the defendant was taken, a fine was imposed, and he was imprisoned till he paid both the fine and the damages. It is still important to preserve the distinction between the actions, on account of the costs and the pleadings. Whether the one or the other action is proper, has been often a puzzling question ; and decisions have not been uniform. The cases were principally reviewed by chief justice Spencer, in Percival v. Hickey, (18 John. 283.) In conclusion, he remarks, “ I am perfectly satisfied, from a review of the cases, that if the defendant is liable at all, Ais action is appropriate : and that it ought to have been [345] trespass rather than case, as the injury was immediate, and from gross negligence. The general principle established by this case, is, that whether trespass or case is the proper action, depends on the fact, whether the injury was immediate or consequential. Another principle is also recognized ; that if the in- j jury is attributable to negligence, though it were immediate, the party injured has his election, either to treat the negligence of the defendant as the cause of action, and declare in case, or to consider the act itself as the injury, and to declare in trespass, as in Blin v. Campbell, (14 John. 432.) There this court held case the proper action for carelessly firing a pistol, and wounding the plaintiff’s leg. And had trespass been brought in that ease, the court say they would also have considered it appropriate. In some cases either action may be maintained; as where j there is both an immediate and also a consequential in- ¡ jury. Whether the act complained of was accompanied with force ; whether it was wilfully done ; whether by the defendant himself, or through the agency of another; whether the act done was lawful; these have all been attempted as criteria by which to determine the form of the action; but have all been abandoned. (5 B. & P. note. 1 Com. Digest, Day’s ed. 234, where all the learning, and all the cases on this question are collected.) There is in the last book, at page 244, an ingenious argument in favor of the indifferent use of the two actions at all events. We have the authority of lord Ellenborough, for saying, “ It may likewise be worthy of consideration, whether in those instances where trespass may be maintained, the party may not waive the trespass, and proceed for the tort,” (3 Campb. 188,) as you may bring trover for goods taken tortiously. (3 Wils. 336.) In this case, the injury was occasioned by the negligence of the defendant. The damages were partly immediate, but principally consequential. I consider the case of Blin v. Campbell, as recognized and established by Percival v. Hickey; although in the [346] latter case, trespass was adjudged the proper action rather than case. The courts of king’s bench and common pleas in England, certainly do not think alike on that point; but in the decisions of this court, there is no discrepancy. In Percival v. Hickey, the whole injury was immediate; the destruction of the plaintiff’s vessel. In the case of Blin v. Campbell, it was, as in this case, partly immediate and partly consequential. Besides, the action on the case is altogether the most favorable to the defendant. He can make any defence, without the technicality of special pleading, and the plaintiff must recover a larger sum than in trespass, in order to carry costs. She has, therefore, in this instance, selected that form of action most unfavorable to herself ; and there cannot be a doubt but this recovery' may be pleaded in bar to an aetion of trespass, should it be hereafter brought for the same injury. In my opinion, the plaintiff is entitled to judgment. Judgment for the plaintiff.