Plucknett, however, has contended that the action of case is not the product of the statute but rather developed from a form of the action of trespass quite independently, and that in the issuing of new writs no reliance was placed upon the statute prior to the end of the sixteenth century. At any rate, there is no doubt that new writs were issued from the Chancery in cases not covered by the older writs, and that these were grouped together ultimately in a new form of action called the action on the case, or often trespass on the case. This form of action covers heterogeneous groups of situations. It became the remedy available for various injuries not committed vi et armis, for indirect injuries to person and property, and for injuries with respect to various non-possessory interests in property, reversionary interests, easements and the like. It also became the remedy in cases of malicious prosecution, deceit, slander and libel. In some cases, as we shall see, the plaintiff may maintain either trespass or case, as for example where a negligent act of the defendant causes direct damage to the plaintiff's person or to his possessory interest in property.

In the sixteenth century the actions of trover and of assumpsit,2 which had theretofore been particular applications of the action on the case, split off as separate forms of action.

TROVER.3 Trover was originally a subdivision of case, but by the middle of the sixteenth century it had become a separate form of action. It may be maintained against a defendant guilty of conversion of a chattel, by a plaintiff who at the time of the conversion had either possession or the right to immediate possession of the chattel. Originally it lay only where the plaintiff had lost the chattel and the defendant had found it and had converted it to his own use. Subsequently the scope of the action was enlarged so that it might be maintained for any act constituting a conversion, i.e., a wrongful taking of possession of a chattel, a wrongful user of a chattel in the defendant's possession, a wrongful sale by the defendant of a chattel in his possession, or a wrongful detention.

1 See Plucknett, "Case and the Statute of Westminster II," 31 Col. L. Rev. 778 (1931). See also [Holdsworth] Note, 47 L. Quar. Rev. 334 (1931); Landon, "The Action on the Case and the Statute of Westminster II," 52 L. Quar. Rev. 68 (1936); Plucknett, “Case and Westminster II," 52 L. Quar. Rev. 220 (1936) ; Dix, "The Origins of the Action of Trespass on the Case," 46 Yale L. J. 1142 (1937).

2 As to assumpsit, see pp. 116-117, infra.

3 See Ames, Lectures on Legal History (1913) 80-87; 3 Street, Foundations of Legal Liability (1906) 159-171.

4 See 3 Street, Foundations of Legal Liability (1906) 164-165.

KELLY v. LETT.

SUPREME COURT, NORTH CAROLINA. 1851.

13 Iredell Law 50.

APPEAL from the Superior Court of Law of Montgomery County, at the Fall Term, 1851, his Honor Judge Bailey presiding.

Case, for breaking and otherwise injuring the plaintiff's mill-dam. The plaintiff, in his declaration, alleged, that the defendant, who owned a mill above the plaintiff, on the same stream, repeatedly shut down his gates, particularly on Sundays and at night, and after the water in the defendant's pond had accumulated to as large a head as possible, raised his gates, and discharged his water in immense volumes, which ran with great force and violence, so as to injure the plaintiff's dam below; and that these acts were done by the defendant wilfully, and with the intent to injure the plaintiff, and that he was injured thereby.

The plaintiff introduced witnesses, who testified to facts sustaining the allegations in his declaration, as to the wilful injury of the plaintiff by the defendant, and further, that very large volumes of water ran, with great force and violence, against the plaintiff's dam below, by the sudden raising of the defendant's flood-gates, attached to his dam, by which the plaintiff's dam was carried off, or essentially injured; that the defendant had been in possession of his mill from seven to ten years; and that the plaintiff's mill and dam were about one-half mile below the defendant's. The plaintiff was in possession, and owned the mill below. Upon this evidence, the defendant's counsel moved the Court to instruct the Jury, that the action could not be maintained, as, from the evidence, the injury was immediate and wilful, and not consequential; that, whatever injury was sustained, was by the wilful and immediate act of the defendant; and, therefore, that the action should be Trespass vi et armis. This instruction the Court declined to give; but instructed the Jury that the acion was well brought; whereupon, the Jury, under this instruction, rendered a verdict for the plaintiff. From the judgment thereon, the defendant, prayed, and obtained an appeal to the Supreme Court. . . .

PEARSON, J. The declaration alleges, that the plaintiff was the owner of a mill, about one-half mile below a mill, on the same stream, owned by the defendant; that the defendant repeatedly shut down his gates, so as to accumulate as large a head of water as possible, and then raised them, so as thereby to discharge an immense volume of water, which ran with great force against the dam of the plaintiff, and swept it away; and that this was done by the defendant, wilfully, and with an intent to do the injury. The only question is, can an action on the Case be sustained?

When the act itself is complained of, Trespass vi et armis, is the proper action. When the consequences, only, are complained of, then Case is the proper action; or, as the rule is expressed in the books, Trespass lies where the injury is immediate, Case, when it is consequential. There is no difficulty as to the rule. The difficulty is as to its application; and it sometimes requires an exceedingly nice perception, to be able to trace the dividing line. But this case is settled by authority, and there is no occasion to resort to reasoning, or to a discussion of principles. In Scott v. Shepherd, 2 Blackstone, 892, [De Grey,] C. J. cites a suit from the register, 95 a. of Trespass vi et armis, for cutting down a head of water, maliciously, which thereupon, flowed down to, and overwhelmed another pond, which is our

case.

It is true that, in some cases, although the injury be immediate, the party has his election, and may waive the trespass, and bring Case for the consequential damage. As, if one take another's horse, he may elect to bring Trover, (which is an action on the Case), or, if one, in driving his carriage, run on that of another, although the damage is immediate, Case may be sustained, alleging that the defendant so negligently drove his carriage, that it ran against that of the plaintiff, and did great damags [damage]; and the defendant is not allowed to defeat the action, by averring that the injury was more aggravated, for that in fact, he drove against the carriage of the plaintiff on purpose, and with an intent to do the injury. Williams v. Holland, 10 Bingham, 116. But, if the declaration alleges, that the defendant took the horse from the possession of the plaintiff, instead of supposing that he found it; or, that the defendant wilfully drove against the carriage, instead of ascribing it to negligence, Case cannot be sustained, because these allegations are inconsistent with the nature of that action, and it is simply an attempt to recover in Case, for a direct, wilful trespass, which is the peculiar subject of another form of action. To maintain Case, you must waive your ground of complaint on account of the trespass. Day v. Edwards, 5 T. R. 648. It is apparent, then, that this right of election cannot exist, except in cases where there is a separate and distinct cause of action, besides the trespass. Admitting, for the sake of argument, this to be one of those cases, the plaintiff has no ground to stand on. He has not waived the trespass that is, the burthen of his complaint. But, it seems to us, this is not one of those cases; and we are inclined to think, that Case could not be maintained, if the declaration had been ever so carefully or skillfully drawn. Suppose the defendant had planted a cannon on his dam, and wilfully fired at the plaintiff's dam, until it was demolished; it could not be distinguished from the present case, the only difference being in the kind of force: In the one, the dam is destroyed by metal propelled by the force of gunpowder; in the other, it is destroyed by water, propelled by the force of gravitation, the water being kept back, on purpose to increase the head,

and thereby add to the power of the propelling force. Both are neither more nor less than wilfull trespass. And, although the intent is not the test of liability, yet, when the damage is immediate, it is the test of the proper form of action. If the damage be immediate, and the act is wilful, Trespass is the only action.

There is no question that the doctrine by which plaintiffs, in certain cases, are allowed to waive Trespass, and bring Case, which is finally settled by authority, is an indulgence, granted on account of the difficulty of tracing the dividing line; and the principle is, that the plaintiff may, without injustice to the defendant, take the most charitable view of the case. But this doctrine only applies, when two causes of action are involved; then one may be waived, and still leave ground to stand on; but if the case involved merely a cause of action for Trespass, to allow an election to bring Case would be an absurdity, as if one wilfully shoots down another's horse, or commits a battery on the person.

PER CURIAM. Judgment reversed, and venire de novo.1

DALTON v. FAVOUR.

SUPERIOR COURT OF JUDICATURE, NEW HAMPSHIRE. 1826.

3 New Hampshire 465.

TRESPASS on the case, for that the said Favour, on the 27th September, 1825, at D. having in his hands a firelock, highly charged with powder, and a great quantity of wadding, so exceedingly carelessly managed his said firelock, that he discharged its contents into the foot of the plaintiff; whereby he was put to great pain, &c.

The cause was tried here, upon the general issue, at November term, 1825; when it appeared in evidence, that the plaintiff was standing in an entry of a house in sight of the defendant, who was about six feet distant from him, when the defendant discharged the firelock and wounded the plaintiff in his foot; but it did not appear, that the firelock was discharged with the intent to injure the plaintiff, but the accident was the consequence of great carelessness.

Webster, for the defendant, objected, that case could not be supported on the facts proved in the case; but the court overruled the

1 Where there is a judgment for the defendant on the ground that the plaintiff sued in the wrong form of action, is the plaintiff precluded from bringing a new action in the proper form? See Restatement, Judgments (1942) §§ 49, 65(2) Comment h; 2 Freeman, Judgments (5th ed. 1925) 1548, 1551.

objection; and the jury having returned a verdict for the plaintiff, he moved the court to grant a new trial, on the same ground.

Smiley, for the plaintiff.

RICHARDSON, C. J., delivered the opinion of the court.

The principles, upon which the decision of this case must depend, are well settled in the books.

In all cases, where the injury is done with force and immediately by the act of the defendant, trespass may be maintained. 1 Chitty's Pl. 122.3 East, 593, Leame v. Bray. 19 Johns. 381-18 ditto, 257, Percival v. Hickey.

And in every case, where the injury is the immediate effect of the defendant's act, and is stated in the declaration, or appears upon the trial, to have been wilfully done, the remedy must be trespass. 1 Chitty's Pl. 127. - 8 D. & E. 188, Ogle v. Barnes. - 6 D. & E. 128. And Savignac v. Roome, 6 D. & E. 125.5 D. & E. 648, Day v. Edwards.

But where the damage or injury ensues, not directly from the act of the defendant, the remedy must be case. 1 Chitty's Pl. 126.

In all cases, where the injury is attributable to negligence, although it were the immediate effect of the defendant's act, the party injured has an 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 cause of the injury, and to declare in trespass. 1 Chitty's Pl. 127.5 Bos. & Puller, 117, Rogers v. Imbleton. - 3 Burrows 1560. 5 B. & P. 447, note. 3 East, 600 and 601. 8 D. & E. 188, Ogle v. Barnes. -14 Johns. 432, Blin v. Campbell, where it was decided, that case might be maintained for wounding the plaintiff's leg, by negligently firing a pistol. 1 Bos. & Puller 472, Turner v. Hawkins.

In the case now before us, it did not appear, that the injury was wilfully done, but it was the consequence of great carelessness. This is an instance then, where either trespass or case may be maintained; and there must be

Judgment on the verdict.

SCOTT v. SHEPHERD.

COURT OF COMMON PLEAS. 1773.

2 William Blackstone 892.1

TRESPASS and Assault for throwing, casting and tossing a lighted Squib, at and against the Plaintiff, and striking him therewith on the Face, and so burning one of his Eyes, that he lost the Sight of it, whereby, &c.

1 Also reported in 3 Wilson 403.