724 LEAME V. BRAY 3EAST,593.

[593] LEAME against BRAY. Saturday, May 21st, 1803. Where one accidentally drove his
carriage against another's, the remedy is trespass and not case, the injury being immediate
from the act done, though he were no otherwise blame- abl& than driving on the wrong side
of the road in a dark night. The distinction is, that where the injury is immediate from an act
of force done by the defendant the remedy is in trespass; where the injury is only
consequential to an act before done by the defendant, there an action on the case lies.
[Distinguished, Holmes v. Mather, 1875, L. E. 10 Ex. 269.Considered, Stanley v. Powell
[1891], 1 Q. B. 89.]
This was an action of trespass, in which the plaintiff declared that the defendant with force
and arms drove and struck a single-horse chaise which the defendant was then driving along
the King's highway with such great force and violence upon and against the plaintiff's curricle
drawn by two horses, and upon and against the said horses so drawing, &c, and in which said
curricle the plaintiff was then and there riding with his servant, which servant was then
driving the said curricle and- horses along the King's highway aforesaid, that by means
thereof the plaintiff's servant was thrown out of the curricle upon the ground, and the horses
ran away with the curricle, and while the horses were so running away with the curricle the
plaintiff, for the preservation of his life, jumped and fell from the curricle upon the ground
and fractured his collar bone, &c. Plea, not guilty.
It appeared in evidence at the trial before Lord Ellenborough C.J. at the last sittings at
Westminster, that the accident described in the declaration happened.in a dark night, owing to
the defendant driving his carriage on the wrong side of the road, and the parties not being
able to see each other; and that if the defendant had kept his right side there was ample room
for the carriages to have passed without injury. But it did not appear that blame was
imputable to the defendant in any other respect as to the manner of his driving. It was
therefore objected for the defendant, that the injury having happened from negligence, and
not wilfully, the proper remedy was by an action on the case and not of trespass vi et armis;
and the plaintiff was thereupon nonsuited.
[594] Gibbs and Park now shewed cause against a rule for setting aside the non- suit, and
admitted that there were many precedents of trespass vi et armis for an injury immediately
proceeding from the party, although his will did not go along with his act; but here they
contended that the injury was consequential and not immediately flowing from the forcible
act of the defendant, and in such a case trespass will not lie unless such act be done wilfully:
and they compared it to the case of one ship running down another, in all which cases the
form of the action has been case and not trespass. Yet in the one case the ship is as much
impelled by the agency of the captain as in the other the carriage is impelled by the agency of
the driver. In both the injury happens not from the immediate personal act of the parties
concerned,
3EAST,595. LEAME V. BRAY 725
but by subsequent contact of the subject matters derived from the impulse communicated for
another and lawful purpose, but taking a direction at the time, either from the unskillfulness
or negligence of the parties, beyond their control. Here the accident was solely imputable
to the negligence of the defendant in driving on the wrong side of the road in a dark night; but
the injury was occasioned by the carriage and horses, and not by his personal act. To make it
his personal act it must be done wilfully. [Lord Ellenborough. I do not find that distinction
laid down in any of the cases, that in order to maintain trespass the act must be wilful. In
Scott v. Shepherd (a)1, Lord C. J. de Grey said that trespass vi et armis lay against the person
from whom an injury was received by force: and he afterwards adverted to acts that might
become trespasses by accident or inadvertency. Now here, was not the putting the horse
in motion an act of force by the defendant?] The same argument would apply as well to the
case of a vessel at sea: and yet there is but one instance of that sort mentioned in the books
where trespass was holden to lie, and that was in Tripe and Another v. Potter (a)*, at Exeter
in 1767, where Yates J. nonsuited the plaintiff in case for wilfully rowing his boat against the
defendant's net, because the act being wilful, trespass was the proper remedy. So in Ogle
v. Barnes, where the allegation was that the defendant so negligently and unskilfully steered
his vessel that she ran foul of and damaged the plaintiff's vessel, Lord Kenyon distinguished
it from actions of trespass where the act was laid to be done wilfully, or furiously, which
implied wilfully : and the other Judges thought that if upon a declaration in case it appeared
in evidence that the act were wilfully done the plaintiff must be nonsuited. [Lawrence J.
There certainly are cases in the books where the injury being direct and immediate, trespass
has been holden to lie, though the injury were not intentional. As in Weavery.
Ward(b), where the defendant exercising in the trained bands and firing his musket
accidentally hurt the plaintiff; and in Underwood v. Hewson(c), where one uncocking a gun,
it went off and accidentally wounded a bystander. In Ogle v. Barnes (d) it did not appear
that the force which occasioned the injury was the act of the defendant. But it might have
happened from the force of the wind or tide operating at the time directly against the force
used by the defendant.] Here the continuing motion of the carriage was not the immediate act
of the defendant. [Lord Ellenborough. If I put in motion a dangerous thing, as if I let [596]
loose a dangerous animal, and leave to hazard what may happen, and mischief ensue to any
person, I am answerable in trespass.] The case of throwing the squib (a)s was put upon that
ground, but that has never been approved since. [Lord Ellenborough. That case to be sure
goes to the limit of the law. Lawrence J. The question is, whether the injury be immediate
from an act done by the defendant, or whether it be consequential only from such act1? If one
turning round suddenly were to knock another down, whom he did not see, without intending
it, no doubt the action must be trespass.] Perhaps a defendant might be liable in trespass for
that which is the immediate consequence of a forcible act done by himself; but for that which
is not the immediate consequence of his own act, but is the consequence of some other act
which he negligently, improvidently, or unskilfully did, he is only liable in case. [Grose J.
There is a case put in the Year-Book 21 H. 7, 28 a. that where one shot an arrow at a mark
which glanced from it and struck another, it was holden to be trespass. Lord Ellen-
borough. The only rule I believe will be found to be where the injury happens from an
immediate act of force of the defendant, there it is trespass. And if one put an animal or
carriage in motion which causes an immediate injury to another, he is the actor, the causa
causans. It is not to be wondered at that actions for running down ships should have been
brought in case; for the plaintiff would fail in almost every case in proving that the injury
happened from the immediate act of the master where the action is brought against him : it
happens more frequently from the negligent or improper execution of orders by some of
[597] the seamen, for which the master would not be liable in trespass («)4-] The
boundaries of actions connot depend upon such nice calculations as whether the injury
happened by the last impulse given to a
(a)1 3 Wils. 411. S. C. 2 Blac. 892. (a)2 6 Term Rep. 128, and 8 Term Rep. 191. (b)
Hob. 134 (c)31 Stra. 596. (d) 8 Term Rep. 188. (a)4 Scott v. Shepherd, 3 Wils. 403. (a)
Vide M'Manus v. Crickett, 1 East, 106.
726 LEAME V.BRAY 3EAST,598.
vessel or carriage by the defendant: the only plain and solid distinction seems to be, whether
or not the injurious act were done wilfully; and though particular cases may have erred in the
application of it, most of them, particularly Ogle v. Barnes, seem to have gone upon that
principle. [Lawrence J. The word wilful, and other words equivalent to it, were there used in
answer to arguments adduced from cases where the acts were wilfully done, and with a view
to distinguish those cases from the principal one then in judgment before the Court. Le
Blanc J. In several of the cases where the word wilfully has occurred it will be found that the
Court were commenting upon other cases where the acts were laid to be done wilfully.
Lawrence J. No doubt trespass lies against one who drives a carriage against another,
whether done wilfully or not. Suppose one who is driving a carriage is negligently and
heedlessly looking about him, without attending to the road where persons are passing, and
thereby runs over a child and kills him, is it not manslaughter? and if so, it must be trespass;
for every manslaughter includes trespass.] Erskine and Hovell1 in support of the rule. The
distinction which was taken in Reynolds v. Clarice (b) has been adopted in all the subsequent
cases, that where the immediate act itself occasions a prejudice or is an injury to the [598]
plaintiff's person, &c. there trespass vi et armis will lie : but where the act itself is not an
injury, but a consequence' from that act is prejudicial to the plaintiff's person, &c, there
trespass vi et armis will not lie, but the proper remedy is by an action on the case. So in Day
v. Edwards (a), Lord Kenyon said, " 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." And he exemplified it by the instance
(J)2 of a man throwing a log into the highway, which if, in the act of throwing, it hit another,
it is trespass; but if as it lies there the other tumble over it, he must bring case. The
declaration there charged that the defendant " so furiously, negligently and improperly" drove
his cart against the plaintiff's carriage that it overturned and damaged it: but non constat that
it was done wilfully, however furiously : and on the contrary, the allegation of its being done
negligently as well as furiously rebutted the idea of wilfulness : yet the Court held that the
injury ensuing upon the immediate act of the defendant, the action ought to have been
trespass, and not case, as it was laid to be. In Ogle v. Barnes (c) the Court could not say
that the act done was by the immediate agency of the defendants: it was charged to be done
by their negligence, carelessness, ignorance, and unskilfulness ; non constat but that the act
which produced the mischief was done the day before; they might not have been in the ship
when it happened. In none of the cases is it laid down as a branch of the distinction that
the act done must be either wilful, or illegal, [599] or violent, in order to maintain trespass :
the only question is, whether the injury from it be immediate.
Lord Ellenborough C.J. The true criterion seems to be according to what Lord C. J. de Grey
says in Scott v. Shepherd, whether the plaintiff received an injury by force from the
defendant. If the injurious act be the immediate result of the force originally applied by the
defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis
by all the cases both ancient and modern. It is immaterial whether the injury be wilful or
not. As in the case alluded to by my brother Grose, where one shooting at butts for a trial of
skill with the bow and arrow, the weapon then in use, in itself a lawful act, and no unlawful
purpose in view; yet having accidentally wounded a man, it was holden to be a trespass,
being an immediate injury from an act of force by another. Such also was the case of
Weaver v. Wood, in Hob. 134, where a like unfortunate accident happened whilst persons
were lawfully exercising themselves in arms. So in none of the cases mentioned in Scott v.
Shepherd did wilfulness make any difference. If the injury were received from the personal
act of another, it was deemed sufficient to make it trespass. In the case of Day v. Edwards the
allegation of the act having been done furiously was understood to imply
an act of force immediately proceeding from the defendant. As to the case of Ogle v.
Barnes, I incline to think it was rightly decided ; and yet there are words there which imply
force by the act of another: but, as was observed, it does not appear
(b)1 2 Lord Kay. 1402, recognised in Bull. N. P. 26 and 79, where some other cases are
referred to.
(a) 5 Term Eep. 649. {bf 1 Stra. 636. (c) 8 Term Rep. 188.
3EAST,600. LEAME V. BRAY 727
that it must have been the personal act of the defendants; it is not even alleged that they were
on board the ship at the [600] time: it is said indeed that they had the care, direction, and
management of it; but that might be through the medium of other persons in their employ on
board. That therefore might be sustained as an action on the case, because there were no
words in the declaration which necessarily implied that the damage happened from an act of
force done by the defendants them- selves. I am not aware of any case of that sort where
the party himself sued having been on board this question has been raised. But here the
defendant himself was present, and used the ordinary means of impelling the horse forward,
and from that the injury happened. And therefore there being an immediate injury from an
immediate act of force by the defendant, the proper remedy is trespass ; and wilful- ness is
not necessary to constitute trespass.
Grose J. I am of the same opinion. Looking into all the cases from the Year Book in the 21 H.
7, down to the latest decision on the subject, I find the principle to be, that if the injury be
done by the act of the party, himself at the time, or he be the immediate cause of it, though it
happen accidentally or by misfortune, yet he is answerable in trespass. The case
mentioned from Strange, that in Hobart, and those in the Term Reports, all agree in the
principle.
Lawrence J. I am of the same opinion. It is more convenient that the action should be trespass
than case ; because if it be laid in trespass, no nice points can arise upon the evidence by
which the plaintiff may be turned round upon the form of the action, as there may in many
instances if case be brought; for there if any of the wit-[601]-nesses should say that in his
belief the defendant did the injury wilfully, the plaintiff will run the risk of being nonsuited.
But in actions of trespass the distinction has not turned either on the lawfulness of the act
from whence the injury happened, or the design of the party doing it to commit the injury :
but, as mentioned by Mr. Justice Blackstone in the case of Scott v. Shepherd (a)1, on the
difference between injuries direct and immediate, or mediate and consequential; in the one
instance the remedy is by trespass, in the other by case. The same principle is laid down in
B,eynolds v. Clarke (b). As to Ogle v. Barnes, I certainly did not mean to say that the
distinction turned on the wilfulness of the act; I only made use of the word wilful to
distinguish that from other cases which had been mentioned where the injurious acts were
averred to be wilfully done, and where as the acts complained of were charged as intentional,
and the injuries done immediately referred to them, trespass was determined to be the proper
remedy. And so I understand what was there said by my brother Grose. What I principally
relied on there was, that it did not appear that the mischief happened from the personal acts of
the defendants : it might have happened from the operation of the wind and tide counteracting
their personal efforts at the time : or indeed they might not even have been on board.
Alleging that the defendant negligently did such an act may be sustained by proof that it
was done by his servant in his employ in the absence of the master, according to Michael v.
Alestree(c), followed up by Brucker v. Fromont(d). Those were actions on the case, and are
reconcileable with M'Manus v. [602] Crickett (a)2, in which case the Court held that trespass
would not lie against a master for the wilful act of his servant in driving his master's carriage
against another's carriage, against the will of his master.
Le Blanc J. In many of the cases the question has come before the Court upon a motion in
arrest of judgment, where the Court in determining whether trespass or case were the proper
remedy, have observed on the particular language of the declara- tion. But in all the books the
invariable principle to be collected is, that where the injury is immediate on the act done,
there trespass lies; but where it is not immediate on the act done, but consequential, there the
remedy is in case. And the distinction is well instanced by the example put of a man's
throwing a log into the highway : if at the time of its being thrown it hit any person, it is
trespass; but if after it be thrown, any person going along the road receive an injury by falling
over it as it lies there, it is case. Neither does the degree of violence with which the act is
done make any difference: for if the log were put down in the most quiet way upon a man's
foot, it would be trespass; but if thrown into the road with whatever violence, and one
afterwards fall over it, it is case and not trespass. So here, if the defendant had
(a)1 2 Blac. Bep. 895.(b) 2 Ld. Ray. 1402. (c) 2 Lev. 172. (d) 6 Term Rep. 659.
(a)2 1 East, 106.
728 3 EAST, 603.
simply placed his chaise in the road, and the plaintiff had run against it in the dark, the injury
would not have been direct, but in consequence only of the defendant's previous improper
act. Here however the defendant was driving the carriage at the time with the force
necessary to move it along, and the injury to the plaintiff happened from that [603] immediate
act: therefore the remedy must be trespass: and all the cases will support that principle. It is
chiefly in actions for running down vessels at sea that difficulties may occur; because
certainly the force which occasions the injury is not so immediate from the act of the person
steering. The immediate agents of the force are the wind and waves, and the personal act of
the party rather consists in putting the vessel in the way to be so acted upon: and whether that
may make any difference in that case I will not now' take upon me to determine. But here,
where the personal force is immediately applied to the horse and carriage, the things acted
upon and causing the damage, like a finger to the trigger of a gun, the injury is immediate
from the act of driving, and trespass is the proper remedy for an immediate injury done by
one to another: but where the injury is only consequential from the act done, there it is case.
Rule absolute.