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On Not Guilty pleaded, the Cause came on to be tried before NARES Justice last Summer Assises at Bridgewater, when the Jury found a Verdict for the Plaintiff with 1001. Damages, subject to the Opinion of the Court on this Case.
On the Evening of the Fair-day at Milborne-Port, 28th October 1770, the Defendant threw a lighted Squib, made of Gunpowder, &c from the Street into the Market House, which is a covered Building, supported by Arches, and enclosed at one End, but open at the other, and both the Sides, where a large Concourse of People were assembled; which lighted Squib, so thrown by the Defendant, fell upon the Standing of one Yates, who sold Gingerbread, &c. That one Willis instantly, and to prevent Injury to himself and the said Wares of the said Yates, took up the said lighted Squib from off the said Standing, and then threw it across the said Market-house; when it fell upon another Standing there of one Ryall, who sold the same Sort of Wares; who instantly, and to save his own Goods from being injured, took up the said lighted Squib from off the said Standing, and then threw it to another Part of the said Market-house, and in so throwing it struck the Plaintiff then in the said Market-house in the Face therewith, and the combustible Matter then bursting put out one of the Plaintiff's Eyes.
Qu. If this Action be maintainable?
This Case was argued last Term by Glyn for the Plaintiff and Burland for the Defendant: and this Term, the Court being divided in their Judgment, delivered their Opinions seriatim.
NARES Justice was of Opinion, that Trespass would well lie in the present Case. That the natural and probable Consequence of the Act done by the Defendant was Injury to Somebody, and therefore the Act was illegal at common Law. And the throwing of Squibs has by Statute W. 3. been since made a Nusance. Being therefore unlawful, the Defendant was liable to answer for the Consequences, be the Injury mediate or immediate. 21 Hen. 7. 28. is express that malus Animus is not necessary to constitute a Trespass. So too 1 Stra. 196. Hob. 134. T. Jones 205. 6 Edw. 4, 7, 8. Fitzh. Trespass. 110. The Principle I go upon is what is laid down in Reynolds and Clark, Stra. 634. that if the Act in the first Instance be unlawful, Trespass will lie. Wherever therefore an Act is unlawful at first, Trespass will lie for the Consequences of it. So in 12 Hen. 4. Trespass lay for stopping a Sewer with Earth, so as to overflow the Plaintiff's Land. In 26 Hen. 8. 8. for going upon the Plaintiff's Land to take the Boughs off which had fallen thereon in lopping. See also Hardr. 60 Reg. 108. 95. 6 Edw. 4. 7, 8. 1 Ld. Raym. 272. Hob. 180. Cro. Jac. 122. 43. F. N. B. 202. 91. g. I do not think it necessary to maintain Trespass, that the Defendant should personally Touch the Plaintiff; if he does it by a Mean it is sufficient. Qui facit. per aliud 19 & 10 Will. III, c. 7 (1698).
facit per se. He is the Person, who, in the present Case, gave the mischievous Faculty to the Squib. That mischievous Faculty remained in it till the Explosion. No new Power of doing Mischief was communicated to it by Willis or Ryal. It is like the Case of a mad Ox turned loose in a Crowd. The Person who turns him loose is answerable in Trespass for whatever Mischief he may do. The intermediate acts of Willis and Ryal will not purge the original Tort in the Defendant. But he who does the first Wrong is answerable for all the consequential Damages. So held in the King and Huggins, 2 Ld. Raym. 1574. Parkhurst and Foster, 1 Ld. Raym. 480. Rosewell and Prior, 12 Mod. 639. And it was declared by this Court in Slater and Baker M. 8 Geo. 3. 2 Wils. 359. that they would not look with Eagle's Eyes to see whether the Evidence applies exactly or not
to the Case: but if the Plaintiff has obtained a Verdict for such Damages as he deserves, they will establish it if possible.
BLACKSTONE Justice was of Opinion, that an Action of Trespass did not lie for Scot against Shepherd upon this Case. He took the settled Distinction to be, that where the Injury is immediate an Action of Trespass will lie; where it is only consequential, it must be an Action on the Case. Reynolds and Clarke, Ld. Raym. 1401. Stra. 634. Haward and Bankes, Burr. 1114. Harker and Birkbeck, Burr. 1559. The Lawfulness or Unlawfulness of the original Act is not the Criterion; though Something of that Sort is put into Lord Raymond's Mouth in Stra. 635. where it can only mean, that if the Act then in question, of erecting a Spout, had been in itself unlawful, Trespass might have lain; but as it was a lawful Act (upon the Defendant's own Ground) and the Injury to the Plaintiff only consequential, it must be an Action on the Case. But this cannot be the general Rule, for it is held by the Court in the same Case, that if I throw a Log of Timber into the Highway, (which is an unlawful Act) and another Man tumbles over it and is hurt, an Action on the Case only lies, it being a consequential Damage; but if in throwing it I hit another Man, he may bring Trespass, because it is an immediate Wrong. Trespass may sometimes lie for the Consequence of a lawful Act. If in lopping my own Trees a Bough accidentally falls on my Neighbour's Ground, and I go thereon to fetch it, Trespass lies. This is the Case cited from 6 Ed. 4. 7. But then the Entry is of itself an immediate Wrong. And Case will sometimes lie for the Consequence of an unlawful Act. If by false Imprisonment I have a special Damage, as if I forfeit my Recognizance thereby, I shall have an Action on the Case. Per Powell Justice. 11 Mod. 180. Yet here the original Act was unlawful, and in the Nature of TresSo that lawful or unlawful is quite out of the Case; the solid Distinction is between direct or immediate Injuries on the one Hand, and mediate or consequential on the other. And Trespass never lay for the latter.
If this be so, the only Question will be, whether the Injury' which the Plaintiff suffered was immediate, or consequential only, and I hold it to be the latter. The original Act was as against Yates a Trespass; not as against Ryal, or Scot. The tortious Act was complete, when the Squib lay at rest upon Yates's Stall. He, or any Bystander had, I allow, a Right to protect themselves by removing the Squib, but should have taken care to do it in such a Manner as not to endamage others. But Shepherd, I think, is not answerable in an Action of Trespass and Assault for the Mischief done by the Squib in the new Motion impressed upon it, and the new Direction given it, by either Willis or Ryal: who both were free Agents, and acted upon their own Judgment. This differs it from the Cases put of turning loose a wild Beast or a Madman. They are only Instruments in the Hand of the first Agent. Nor is it like diverting the Course of an enraged Ox, or of a Stone thrown, or an Arrow glancing against a Tree: because there the original Motion, the Vis impressa, is continued tho' diverted. Here the Instrument of Mischief was at rest, till a new Impetus and a new Direction are given it, not once only, but by . two successive rational Agents.
But it is said, that the Act is not complete, nor the Squib at rest, till after it is spent or exploded. It certainly has a Power of doing fresh Mischief, and so has a Stone that has been thrown against my Windows, and now lies still. Yet if any Person gives that Stone a new Motion, and does farther Mischief with it, Trespass will not lie for that against the original Thrower.
No Doubt but Yates may maintain Trespass against Shepherd. And, according to the Doctrine contended for, so may Ryal and Scot. Three Actions for one single Act! nay it may be extended in infinitum. If a Man tosses a Football into the Street, and, after being kicked about by 100 people, it at last breaks a Tradesman's Windows: Shall he have Trespass against the Man who first produced it? Surely only against the Man who gave it that mischievous Direction.
But it is said, if Scot has no Action against Shepherd, against whom must he seek his Remedy? I give no Opinion whether Case would lie against Shepherd for the consequential Damage; though, as at present advised, I think upon the circumstances it would. But I think, in Strictness of Law, Trespass would lie against Ryal, the immediate Actor in this unhappy Business. Both he and Willis have exceeded the Bounds of Self-Defence, and not used sufficient Circumspection in removing the Danger from themselves. The throwing it across the Market-house, instead of brushing it down, or throwing out of the open Sides into the Street, (if it was not meant to continue the Sport as 'tis called) was at least an unnecessary and incautious Act. Not even Menaces from others are sufficient to justify a Trespass against a third Person. Much less a Fear of Danger to either his Goods or his Person; - nothing but inevitable Necessity. Weaver and Ward, Hob. 134. Dickenson and Watson, T. Jones. 205.
Gilbert and Stone, Al. 35. Styl. 72. So in the Case put by Brian Justice and assented to by Littleton and Cheke Chief Justice and relied on in Raym. 467. If a Man assaults me, so that I cannot avoid him, and I lift up my Staff to defend myself, and in lifting it up undesignedly hit another who is behind me, an Action lies by that Person against me; and yet I did a lawful Act, in endeavouring to defend myself. But none of these great Lawyers ever thought that Trespass would lie by the Person struck against him who first assaulted the Striker.
The Cases cited from the Register and Hardres are all of immediate Acts, or the direct and inevitable Effects of the Defendants immediate Acts. And I admit that the Defendant is answerable in Trespass for all the direct and inevitable Effects caused by his own immediate Act. But what is his own immediate Act? The throwing the Squib to Yates's Stall. Had Yates's Goods been burnt, or his Person injured, Shepherd must have been responsible in Trespass. ́ But he is not responsible for the Acts of other Men. The subsequent throwing across the Market-house by Willis, is neither the Act of Shepherd, nor the inevitable Effect of it. Much less the subsequent throwing by Ryal.
Slater and Barker [Baker] was first a Motion for a new Trial after. Verdict. In our Case the Verdict is suspended till the Determination of the Court. And though after Verdict the Court will not look with Eagle's Eyes to spy out a Variance; yet, when a Question is put by the Jury upon such a Variance and it is made the very Point of the Cause, the Court will not wink against the Light, and say that Evidence, which at most is only applicable to an Action on the Case, will maintain an Action of Trespass. 2. It was an Action on the Case that was brought; and the Court held the special Case laid to be fully proved. So that the present Question could not arise upon that Action. 3. The same Evidence that will maintain Trespass, may also frequently maintain Case, but not e converso. Every Action of Trespass with a per quod includes an Action on. the Case. I may bring Trespass for the immediate Injury, and subjoin a per quod for the consequential Damages; — or may bring Case for the consequential Damages, and pass over the immediate Injury, as in the Case from 11 Mod. 180. before cited. But if I bring Trespass for an immediate Injury, and prove at most only a consequential Damage, Judgment must be for the Defendant. Gates and Bailey. Tr. 6 Geo. 2 Wils. 313.
It is said by Lord Raymond, and very justly, in Reynolds and Clarke, "We must keep up the Boundaries of Actions, otherwise we shall introduce the utmost Confusion." As I therefore think no immediate Injury past from the Defendant to the Plaintiff, and with
1 This is no longer true of England, and probably never was true in the United States. See Stanley v. Powell,  1 Q. B. 86; Brown v. Kendall, 6 Cush. 292 (Mass. 1850).
out such immediate Injury, no Action of Trespass can be maintained, I am of Opinion that in this Action Judgment ought to be for the Defendant.
GOULD Justice was of the same Opinion with NARES Justice, that this Action was well maintainable. The whole Difficulty lies in the Form of the Action, and not in the Substance of the Remedy. The Line is very nice between Case and Trespass upon these Occasions; I am persuaded there are many Instances wherein both or either will lie. I agree with Brother NARES, that wherever a Man does an unlawful Act, he is answerable for all the Consequences; and Trespass will lie against him, if the Consequence be in Nature of Trespass. But, exclusive of this, I think the Defendant may be considered in the same View, as if he himself had personally thrown the Squib in the Plaintiff's Face. The Terror impressed upon Willis and Ryal excited Self-Defence, and deprived them of the Power of Recollection. What they did was therefore the inevitable Consequence of the Defendant's unlawful Act. Had the Squib been thrown into a Coach full of Company, the Person throwing it out again would not have been answerable for the Consequences. What Willis and Ryal did, was by Necessity, and the Defendant imposed that Necessity upon them. As to the Case of the Football, I think that if all the People assembled act in Concert, they are all Trespassers; 1. from the general mischievous Intent; 2. from the obvious and natural Consequences of such an Act. Which reasoning will equally apply to the Case before Us. And that Action of Trespass will lie for the mischievous Consequences of another's Act, whether lawful or unlawful, appears from their being maintained for Acts done in the Plaintiff's own Land. Hardr. 60. Courtney and Collect, Ld. Raym.
I shall not go over again the Ground which Brother NARES has relied on and explained, but concur in his Opinion, that this Action is supported by the Evidence.
DE GREY Chief Justice.
This Case is one of those wherein the Line drawn by the Law between Actions on the Case and Actions of Trespass is very nice and delicate.
Trespass is an Injury accompanied with Force, for which an Action of Trespass vi & armis lies against the Person from whom it is received. The Question here is, whether the Injury received by the Plaintiff arises from the Force of the original Act of the Defendant, or from a new Force by a third Person.
I agree with my Brother BLACKSTONE as to the Principles he has laid down, but not in his Application of those Principles to the present Case. The real Question certainly does not turn upon the Lawfulness or Unlawfulness of the original Act. For Actions of Trespass will lie for legal Acts, when they become Trespasses by Accident. As in the Cases cited cutting Thorns, lopping of a Tree, shooting at a