#### * Benjamin Barnes *versus*Isaac Hurd.

Case lies against one for his servant’s driving the defendant’s horse and chaise against the plaintiff’s chaise, whereby it was broken, and the plaintiff injured, & c.

The defendant was attached to answer to the plaintiff in a plea of the *case,*for that the plaintiff, at, &c., on, &c., was travelling with his horse and chaise upon a certain highway, and the defendant’s horse and chaise, of which he then and there had the management, was then passing upon the same highway ; and the defendant so carelessly and negligently managed his chaise that his horse, which was then and there drawing his said chaise, drew the same upon and against the plaintiff’s chaise with such force and violence that the same was thereby broken and shattered, and rendered altogether unfit for use; and the plaintiff was thrown out of his said chaise with great violence upon the ground, and thereby greatly bruised, and his life endangered. In a second count a similar injury is charged, except only that the plaintiff alleges that the defendant’s horse and chaise were under the care, government, and direction, of a certain servant of the defendant, and that the defend ant, by his said servant, so carelessly, negligently, and improperly, drove his said horse, that, by and through the mere carelessness, negligence, and improper conduct, of the defendant, by his said servant in that behalf, his chaise struck with great force the plaintiff’s chaise, &c., as in the first count, *et alla enormia,*&c.

After a general verdict for the plaintiff upon both counts in the declaration, the defendant moved in arrest of judgment, on the ground that the action should have been trespass, and not case; and that causes of action are joined, which in their nature cannot be joined.

*Rockwood,*

in support of the motion, said he should principally insist on the first point, which resting in authorities only, he cited the case of *Reynolds*vs. *Clarke;*(1) where the distinction is said to be, when the immediate act itself occasions a prejudice, or is an injury to the plaintiff’s person, house, land, &c. The action should-; be trespass *vi et armis;*and where the act itself is not an injury, but a consequence from that act is prejudicial to the plaintiff’s person, house, land, &c., * the proper remedy is by [ * 58 ] an action on the case. The case of *Day*vs. *Edwards*(2) was like the first count of the declaration in the case at bar, and judgment was arrested for that cause. In *Savignac*vs. *Roome,*(3)*60which was case, stating that the defendant’s servant drove his coach and horses against the plaintiff’s chaise, as in the second count of the declaration in the present case, the judgment was arrested, because the action should have been trespass; and there is no difference whether the act be wilful or merely negligent; (4) or whether it be done by the defendant or his servant. (5)

*Sullivan,*for the plaintiff.

The distinctions in the books on this point are very nice, but it is not necessary to discuss them. In *M’Manus*vs. *Crickett,*(6) which was a case much discussed, and deliberately considered by the court, it was decided that a master was not answerable in trespass for an injury done by a servant, whether done wilfully or negligently. In *Morley*vs. *Gailsford,*(7) it was ruled that case, and not trespass, was the proper remedy for an injury done to the plaintiff’s carriage, by the defendant’s servant negligently driving his carriage against it. And in *Rogers*vs. Im*bleton,*(8) it was holden, upon demurrer to the declaration, that case was the proper action where the defendant, with force and violence, through negligence, inattention, and want of proper care, drove his cart against the plaintiff’s horse. The same point, in effect, was decided in *Huggett*vs. *Montgomery.*(9)

These authorities prove both the counts in the plaintiff’s declaration good. But if the Court should incline against us on the firsl count, we move for leave to amend the verdict, so as to apply it to the second count only, as the evidence was wholly to that count. (10)

This last fact appearing from the notes of *Parker,*J., before whom the cause was tried, the verdict was amended accordingly.

*Rockwood*

still insisted that both the counts were bad, and that neither would support a judgment. In *M’Manus*vs. [ *59 ] * *Crickett,*the only point decided was, that no action lay against a master for a wilful injury done by 'his servant without the master’s order. In *Rogers*vs. *Imbleton,*nothing was decided, but the demurrer was voluntarily withdrawn. In *Huggett*vs. *Montgomery,*the decision was only that, where a pilot of a ship, the owner being on board, negligently runs against another ship, the remedy against the owner is by action of the case; and the court expressly save the case of *Leame*vs. *Bray.*

(1)

 2 Lord *Raym.*1402.

(2)

 5 *D. & E.*648.

(3)

 6 *D. & E.*125

(4)

 3 *East,*593, *Leame*vs. *Bray.*

(5)

1 *Mass. Rep.*530, *Grinnell*vs. *Phillips.*— *Doug.*40, *Ackworth*vs. *Kempe.*

(6)

 1 *East's Rep.*106.

(7)

 2 *H. Black.*442

(8)

 2 *New Rep.*117.

(9)

*Ibid.*446.

(10)

*Doug.*376, *Eddowes*vs. *Hopkins.*

*Per Curiam.*

The counsel for the defendant has correctly stated the distinction between those facts which will support an action of *61trespass *vi et armis,*and those for which an action of the case should be brought. “ Where the injury is committed by the immediate act complained of, the action must be trespass; if the injury be merely consequential upon that act, an action of the case is the proper remedy.” The first count of the declaration before us cannot, then, be sustained. The second count, being for an injury done by the defendant’s servant, stands on different ground. The injury here arose, so far as the defendant was concerned, from his employing a careless or a mischievous servant; and it was in its nature merely consequential. The judge who sat in the trial having certified, from his notes, that all the evidence produced applied exclusively to this count, *(a)***the plaintiff may take.

*Judgment on the*verdict.

(a)

*Archbold, Prac. Com. PI.*2 vol. p. 284, 285. — 1 *Chitty, Pl.*235, 448, 7th ed.— *Barnard*vs. *Whiting,*7 *Mass. Rep.*358. — *Sullivan*vs. *Holker,*15 *Mass. Rep.*374.— *Patten & Al.*vs. *Gurney,*17 *Mass. Rep.*182. — *Clark*vs. *Lamb,*6 *Pick.*512