#### Remembrance Lippencott *against*Abraham Smith.

ON CERTIORARI.

*CRANE*for plaintiff.

State of demand. (a)

Time oftrespass. (b)

Style of action, case, or trespass. (c)

Adjournment more than 15 days. (d)

(a)

*Gould vs. Brown, 4 Hal. 167. Wooley vs. Carter, 2 Hal. 85. Mount vs. Cubberly, 4 Har. 124.*

(b)

*Cooper vs. Taylor, 8 Gr. 455. Chambers vs. Riggins, Pen. *1002. Glenn vs. Garrison, 2 Har. 1.*

(c)

*Post vs. Munn, ante 61. Sayres vs. Springfield, 3 Hal. 168. Bruch vs. Carter, 3 Vr. 554.*

(d)

*Auten vs. Bryan, Pen. *135. Horner vs. Hewlings, 3 Hal. 229. Midler vs. Lazadder, 2 Gr. 34. Woodworth vs. Woolverton, 4 Zab. 419. Lloyd vs. Hance, 1 Har. 127. Pierson vs. Millan, Pen. *1011.*

Opinion of the Court.

Kirkpatrick C. J.

The reasons assigned for the *reversal*<~> of this judgment, are 1. That the state of demand is insufficient and unlawful, and 2. That the action is in trespass on the case; whereas, if the state of demand contains any cause of action at all, it is in trespass.

The state of demand is, *that the defendant, about the month of September*1814, *took away from the hay-landing, near Browning’s mill, a certain rope cable, with a fifty-six tied to one end,*to the plaintiff’s damage, 40 dollars.

Under the first reason, it is said, that the state of demand, charges the taking to have been *about the month of September,**not giving the precise month, or the particular day of the month. But this would certainly be carrying the matter too far, especially as the day is not material. It is said again, that the state of demand does not aver that the said cable and fifty-six were the property of the plaintiff. It has, however, long since been settled, that if the state of demand, in these courts, has so much particularity, as fully to apprize the defendant of the nature of the case, and also to preclude another action for the same thing, it is enough. It answers all the substantial purposes of justice. It shall not be .held ill, for lack of mere form.

The second reason, has still less foundation. There is no breaking of the close, no taking from the person, no act of violence or force alleged. The *locus in quo*is not stated to be the plaintiff’s freehold, hut on the contrary) *107to bo the hay-landing at *Browning’s*mills. It is merely a taking of the plaintiff’s cable and fifty-six, by any of these circumstances. Now, trespass on the case is said to be an action for the recovery of damages, for acts *unaccompanied with force,*and which in their consequences only, are injurious. The present seems to be precisely that action. Therefore, let judgment be affirmed.

Southard J.

dissented, and remarked, that, the state of demand in this case, complains, “ for that about in the month of *September*1814, last past, the defendant took away from the hay-landing, near *Browning’s*mill, a certain rope cable, with a fifty-six tied to one end, which the said plaintiff demands of the defendant, the sum of 40 dollars.” The return day of the summons was the 16th day of *September*1815. The cause was adjourned for one week, to the 23d of *September,*and there was a second adjournment, until the 2nd of *October*1815.

In this case, so stated, I find three errors.

1. The state of demand is uncertain and insufficient. In all states of demand, in this court, or declarations in other courts, time is necessary to be stated with certainty and precision. “ About in the month of *September*1814,” does not contain that certainty and precision. It is no specification of time. It might as well have said, “ about the year 1813.” It might as well have contained no allusion to the time, so far as relates to good pleading, or the information which it gives to the defendant. But

2. This state of demand, contains no allegation of property or *possession in the plaintiff, of the goods taken. It does not assert, even by implication, that they belonged to the plaintiff. That they were not in his actual and immediate, however they might have been in his constructive possession, is manifest from the charge, that they were taken “ from the hay-landing near *Browning’s*mill.” This whole declaration may be true, and yet, the rope and fifty-six be neither the property, nor in the possession of the plaintiff, nor any trespass committed on him by taking them away. No recovery ought to be had, on such a state of demand. It seems to me, to violate the very first principles of the law. In 2 *Show,*395, the declaration *108charged “ the taking of the beast of the plaintiff, viz. one and one hat,” and the judgment was arrested, because it was not alleged in express terms, that the property of the hat was in the plaintiff. So the case in *Salk*640. 6 *Bac. Abr.*600, and many others.

2. There seems to be a fatal variance between the style of the action, and the declaration. The former is in case, the latter is in trespass. The act complained of, is the taking away of the rope and fifty-six. It is the trespass for doing this, which is to be remedied by this action.

Much dispute, has at former periods, existed respecting the difference between the two actions of case and trespass ; but there is now no question more fully discussed, or better understood. It is perfectly well settled, that “ if the injury be committed by the immediate act complained of, the action must be trespass; if the injury be merely consequential upon that act, an action upon the case.is the proper remedy.” Where the act done,is, without the intervention of any other act or agent, an immediate injury to the person or property of another, and without or against his consent or agreement, trespass will lie, and not case: but where the act is not immediately injurious, but only by consequence and collaterally, no action of trespass will lie.” I do not think that actions of trespass are confined to cases, where the close has been broken; where the person has been injured; where force is alleged; where the act was wilful and illegal; but extends to every direct and immediate injury to things personal, either by taking them away from the owner, or by destroying them, or injuring them. 2 *Swift,*94. 1 *Str.*634. 5 *T. R.*649. 2 *H.*and *M.*423. In the present case, I cannot conceive how the act complained of, can be considered as collaterally and by ^consequence injurious ; it is directly and immediately so. It is true that in many, perhaps most cases of trespass upon personal property, by taking it away the party may waive the trespass, and maintain an action on the case, for trover and conversion ; but this will not avail here. This state of demand, possesses no resemblance to one, which would be sustained in an action on the case, for trover and conversion.

*109The importance of preserving the boundaries of actions distinct and separate, must be felt by all who are accustomed to legal investigation, or the practice of the courts of law. It is not confined to any particular grade of jurisdiction, but extends from the highest to the lowest. And this court has often decided, that where the action was case, and the demand in trespass, or *vice versa,*there ought to be a reversal. (a)*Pen.*136, 240, 367, 648, 620. But

3. The justice adjourned the cause, longer than by law, he was permitted to do. The return day was on the 16th of *September,*the trial on the 2nd of *October;*sixteen days intervening between the two, and no consent of parties, or other cause to justify it. The words of the law, *(Bloom.*56) and the decisions of this court *(Pen.*851,954) demand a reversal for this cause. If it is to be cured by the consent of the parties, that consent ought expressly to appear. I am therefore obliged to dissent from the opinion of the rest of the court, and am in favour of a reversal.

Judgment affirmed.

(a)

**Contra *Woodruff vs. Clark, Pen. *1045. Dilts vs. Kinney, 3 Gr. 131. Price vs. N. J. R. R. Co., 2 Vr. 229, and 3 Vr. 19. U. S. Watch Co. vs Learned,*7 *Vr. 430.*