Mark, defending oneself by a Stick which strikes another behind, &c. They may also not lie for the Consequences even of illegal Acts, as that of casting a Log in the Highway, &c. But the true Question is, whether the Injury is the direct and immediate Act of the Defendant, and I am of Opinion that in this Case it is.

The throwing the Squib was an Act unlawful and tending to affright the Bystanders. So far, Mischief was originally intended; not any particular Mischief, but Mischief indiscriminate and wanton. Whatever Mischief therefore follows, he is the Author of it;Egreditur Personam, as the Phrase is in criminal Cases. And though criminal Cases are no Rule for civil ones, yet in Trespass I think there is an Analogy. Every one who does an unlawful Act, is considered as the Doer of all that follows; if done with a deliberate Intent, the Consequence may amount to Murder; if incautiously, to Manslaughter. Fost. 261. So too in Ventr. 295. A Person breaking a Horse in Lincoln's Inn Fields hurt a Man, held that Trespass lay: and 2 Lev. 172, that it need not be laid scienter. I look upon all that was done subsequent to the original Throwing as a Continuation of the first Force and first Act, which will continue till the Squib was spent by bursting. And I think that any innocent Person removing the Danger from himself to another is justifiable; the Blame lights upon the first Thrower. The new Direction and new Force flow out of the first Force, and are not a new Trespass.

The Writ in the Register 95 b. for Trespass in maliciously cutting down a Head of Water, which thereupon flowed down to and overwhelmed another's Pond, shews that the immediate Act need not be instantaneous, but that a Chain of Effects connected together will be sufficient.

It has been urged that the Intervention of a free Agent will make a Difference: But I do not consider Willis and Ryal as free Agents in the present Case, but acting under a compulsive Necessity for their own Safety, and Self-Preservation. On these Reasons I concur with Brothers GOULD and NARES that the present Action is maintainable.. Postea to the Plaintiff.1

1 See the notes to the principal case in 1 Smith's Leading Cases (6th ed. 1867) 425-434; Leame v. Bray, 3 East 593 (K. B. 1803).

Trespass for killing plaintiff's sheep by driving defendant's railway engine against and over them. Plea: Not guilty. At the trial it appeared that the sheep had been run over by a locomotive engine negligently operated by an employee of the defendant. Will the action lie? Sharrod v. London & North Western Ry. Co., 4 Exch. 580 (1849).

GREGOIR v. LEONARD.

SUPREME COURT, VERMONT. 1899.

71 Vermont 410.

CASE. Heard on general demurrer to the declaration, at the December term, 1898, Addison county, Ross, C. J., presiding. Demurrer overruled and declaration adjudged. sufficient. The defendant excepted.

WATSON, J. The only contention made by the defendant upon his general demurrer to the declaration is that if the plaintiff has any right of action in the premises, it is in trespass and not in an action on the case.

The allegations in the declaration show a right in the defendant, his servants, and agents, to pass and repass to and from the lands owned and occupied by the defendant, over the described premises of the plaintiff, in and over the way in question, upon the condition that in so passing over the plaintiff's premises they should keep the gates, bars, and fences, which they shall pass or repass, closed and put up in as good condition as they found them at the time of such passing.

The plaintiff alleges in substance, that at the time in question, he had constructed and maintained good and sufficient bars across the discontinued road near the southerly boundary of his farm, and also about thirty rods south of the north end of the discontinued road on his farm, and that the bars were then in good repair; that it was the duty of the defendant, his servants, and agents, upon passing along the road, in accordance with the conditions of the right of way, "to carefully lower said bars, without injury to them, and to place them up, after passing through;" that to obstruct the plaintiff in the use and enjoyment of his farm, on the days in question, the defendant, with his servants and agents, passed over the discontinued road, along the right of way, and through the bars, and threw them down in a careless and wrongful manner, and broke and ruined them, and, with his servants and agents, passed through and left the bars down and did not put them up, or place any barrier to prevent horses and cattle and other stock from going through the bars and upon the land of the plaintiff; and that cattle and horses did escape through them and upon his farm, trod down grass and grain growing thereon, etc., by means whereof, the plaintiff was damaged in the use and enjoyment of his farm, etc.

The plaintiff was the servient and the defendant the dominant owner of the land covered by the right of way, with a right in the defendant to enter upon and pass over the plaintiff's premises in

and over the right of way, and, in so doing, the defendant had a right to take down the bars across the way to enable him to pass through.

The defendant, having the right to enter upon and pass over the plaintiff's premises in the legitimate use of his easement, in the exercising of that right within its limitations he was not guilty of breaking and entering, and whatsoever was done thereafter being but aggravation of damages, the action of trespass on the freehold will not lie. Goodrich v. Judevine, 40 Vt. 190; Grout v. Knapp, 40 Vt. 163; Howard v. Black, 42 Vt. 258.

The throwing down of the bars by the defendant, his servants, and agents, in a careless and wrongful manner, did not work a forfeiture of the defendant's right in the easement; it was but the careless and negligent exercise of a lawful right, for which trespass will not lie. Sabin v. Vermont Central Railroad Co., 25 Vt. 363.

The bars having been let down by the defendant, to pass through, it was his duty, after passing through, to put them up, but his failure so to do, was only the omission of an act which he ought to have performed a mere non-feasance - for which trespass will not lie. Stone v: Knapp, 29 Vt. 501; Stoughton v. Mott, 25 Vt. 668; 1 Chit. Pl. 126.

The injuries for which the plaintiff seeks to recover damages, were committed by cattle and horses, which escaped through the bars, left down by the defendant, upon the plaintiff's farm, treading down grass, grain, etc., there growing. Such injuries were not done by the act of throwing down the bars in a careless and wrongful manner, and therefore immediate, but arose after that act was completed, and were more particularly occasioned by the failure of the defendant to put up the bars, after passing through, and were the collateral consequences thereof.

For the careless and negligent exercise of a lawful right and for the omission of an act which it is the duty of a party to perform, resulting in a collateral injury to another, whose relations thereto are such that he may insist upon the proper exercise of such lawful right, and upon the performance of the act omitted, but which ought to have been performed, the party so injured may recover his consequential damages in an action on the case. That is the proper remedy. 1 Chit. Pl. 133; Sabin v. Vermont Central Railroad Co., 25 Vt. 363. No question having been raised, in argument, as to the sufficiency of the declaration if an action on the case is the proper remedy, we express no opinion thereon.

Judgment affirmed and cause remanded.1

1 Would the result be different if the cattle and horses had been the defen

dant's? See Noyes v. Colby, 30 N. H. 143 (1855).

CHAMBERLAIN v. HAZLEWOOD.

COURT OF EXCHEQUER. 1839.

5 Meeson & Welsby 515.

ACTION upon the case for the seduction of one Mary Ann Chamberlain, the sister and servant of the plaintiff, per quod servitium amisit. General demurrer and joinder in demurrer. The points marked for argument on the part of the defendant were as follows:- That an action for debauching a man's servant, per quod servitium amisit, is an action of trespass, and not an action of trespass on the case; that the present action is misconceived; for that it is an action of trespass on the case, and that the declaration cannot be treated as framed in trespass, nor would the plea of "not guilty" put in issue the relation of master and servant.

Manning, in support of the demurrer. — The foundation of the action for seduction is the trespass committed upon the plaintiff's servant in effecting the injury upon her, and thereby depriving the plaintiff of the benefit of her services; and therefore trespass, and not case, is the proper remedy. In Ditcham v. Bond, 2 Mau. & Selw. 436 [1814], it was held that a count for beating the plaintiff's servant, per quod servitium amisit, might be joined with counts in trespass. That decision was founded upon the authority of Woodward v. Walton, 2 New Rep. [B. & P.] 476 [1807]; and Lord Ellenborough said, "In the opinion of those who formed the Register, and in Townshend's and Cornwall's Tables, this action has been treated as an action of trespass; and the Court of Common Pleas, in Woodward v. Walton, have also treated it as such." In the last-mentioned case it was held that an action for debauching the plaintiff's daughter, per quod servitium amisit, is an action of trespass, and that a count for that injury might be joined with a count for breaking and entering the house. There the dictum of Buller, J., in Bennett v. Allcott, 2 T. R. 167, that "an action merely for debauching a man's daughter, by which he loses her services, is an action on the case," was cited and overruled; and Chambre, J., said that it was founded upon a mistake of Lord Holt's meaning. To shew that this was the old law, it will be necessary to refer to some of the earlier authorities. In Fitzherbert's Natura Brevium, 88 D, it is said, “And if a man taketh his villain and putteth him into the stocks, and others come and break the stocks, he shall have a writ of trespass:" and in 90 H, -“And a man shall have an action of trespass for taking his son and heir, or his daughter and heir, and marrying her." And the form of the writ is given in both cases. He referred also to Fitzherbert's Abr., Gard. 32. [LORD ABINGER, C. B. — There is no doubt that tres1 In his judgment in Russel v. Corne, 2 Lord Raym. 1302. REP.

pass may be maintained; but the question is, whether it is not one of those cases in which either case or trespass may be maintained. PARKE, B. The practice has been to bring either the one or the other, according as either form of action has been thought most convenient to the plaintiff.] That practice was founded upon the mistaken notion entertained by Buller, J., of the opinion of Lord Holt, which was overruled in Woodward v. Walton, confirmed by Ditcham v. Bond; but since those later decisions it is submitted that the action ought to be trespass. It was only in cases where there was no form of a count in trespass in the Register that a special action on the case was maintainable. Here it has been shewn that there was a form applicable to this case in trespass.

Cowling contra. In all the books, it is laid down that although trespass will lie, yet that case will also. The cases which have been cited are merely authorities to shew that trespass will lie, which is not disputed but no case has been cited to shew that case will not lie. [He was then stopped by the Court.]

LORD ABINGER, C. B. The question is not whether trespass will lie, but whether case will not lie also: and I have known from pretty long experience that either will lie. In actions of crim. con. it has always been the practice to bring trespass or case indiscriminately, on the ground that the party aggrieved might waive all damages resulting from the trespass; and if that be so in cases of crim. con., it applies a fortiori to a case of seduction. Perhaps it was more usual formerly to bring trespass, because a notion at one time rather prevailed that a married woman was from her situation in law incapable of giving consent.

PARKE, B. - I am of the same opinion. There may have been no direct decision on this subject, but it has been the constant practice with pleaders to declare either in one form of action or the other. The cases which have been cited, of Woodward v. Walton and Ditcham v. Bond, are only authorities to shew that trespass may be maintained, although the observations of Chambre, J., and Dampier, J., are certainly at variance with what has been for years the established practice. We should do much mischief if we were to shake a practice which has so long prevailed. The plaintiff has the option to bring trespass for the direct injury to his servant per quod servitium amisit, or case for, the consequential damage.

Judgment for the plaintiff.1

1 Accord, Furman v. Applegate, 3 Zab. (23 N. J. L.) 28 (1850) (rape of plaintiff's daughter). See 1 Street, Foundations of Legal Liability (1906) 263-273.