was the trespass committed by the defendant; but what damages, or costs, the plaintiff might recover for bringing an action under such circumstances, is quite another thing. Unless it were brought, bond fide, to try a right, the defendant would, in a trivial case, pay a farthing or some merely nominal sum, at once into Court, leaving the plaintiff to proceed for more at the peril of having to pay all the defendant's costs from that moment: and if without the defendant's paying any money into Court, the plaintiff should recover less than 40s., he would have to bear all his own costs!*-The above rules seem at first sight sufficiently plain and straightforward: exceedingly difficult questions, nevertheless, continually arise out of the application of them, in practice, but into which we cannot here enter. It is when the question comes to be between trespass and case, as applicable to a particular state of facts, that difficulties have continually started up, too great to be mastered by almost any amount of learning and ingenuity. Let us come, then, to,

II. CASE, or "TRESPASS ON THE CASE;" which, as we may recollect, is brought to recover damages for injuries bearing a certain analogy to trespasses. The first class of cases, then, in which this action may be adopted is in respect of consequential, as contradistinguished from direct, injuries. About eighty years ago, there occurred the following curious case, as reported in Mr. Justice Blackstone's Reports, vol. ii., p. 892 (Scott v. Shepherd). It was an action for a serious injury done by one lad to another, under the following somewhat singular circumstances :On the evening of the fair-day at Melbourne Port,

Stat. 3 & 4 Vict. c. 24, s. 2.

28th October, 1770, the defendant Shepherd 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 at 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. One Willis, instantly, to prevent injury to himself and the wares of Yates, took up the lighted squib from off the standing, and threw it across the market-house, when it fell upon another standing, belonging to one Ryal, who sold the same sort of wares as Yates. Ryal instantly, and to save his own goods from being injured, took up the lighted squib from off his standing, and threw it to another part of the market-house, and, in so throwing it, struck with it the plaintiff Scott, then in the said market-house, in the face, and the combustible matter then bursting, put out one of the plaintiff's eyes. The plaintiff having brought an action of TRESPASS, the question was, whether the proper form of action. ought not to have been CASE? Chief Justice De Grey commenced his judgment by observing, that the case was one "in which the line drawn by the law between an action on the case, and of trespass, was very nice and delicate;" and he thus tersely stated the nature of the question: "Whether the injury sustained by the plaintiff, arose from the force of the original act of the defendant, or from a new force by a third person?" Lord Ellenborough, C. J., some thirty years afterwards, viz. in 1813, in another celebrated case of similar difficulty (Leam v. Bray, 3 East, 593), approved of this as the true criterion; and it having been decided by the majority of the Court (in the Squib case), that Trespass

was maintainable (Mr. Justice Blackstone dissenting), Lord Ellenborough observed, that "that case, to be sure, went to the limit of the law." However difficult may be the application of this rule, it would seem that the true criterion is "Was the injurious act the immediate result of the force originally applied by the defendant?" If so, Trespass lies; but the plaintiff is not BOUND to sue in this form of action: for it has been recently decided after great consideration, that Case may be maintained, as well as Trespass, for wrongs committed with direct violence, provided they were not wilfully or designedly, but only carelessly or negligently, done. (See Williams v. Holland, 10 Bing. 113; and also Wells v. Oddy, 5 Dow, P. C. 95; Mr. Smith's Notes to the case of Scott v. Shepherd, 1 Leading Cases, pp. 217 et seq. (1st edit.); 1 Selwyn's Nisi Prius, tit. "Consequential Damages." The case of Williams v. Holland thus relieves the practitioner from the distracting difficulties which gave rise to Scott v. Shepherd, and Leam v. Bray; for wherever there is the least doubt, and the plaintiff cannot show that the act complained of was done wilfully and designedly, he will take the prudent course, and sue in Case,-in which form of action he may recover as great an amount of damages, as in Trespass. It is chiefly cases of accidents occurring in driving carriages, and navigating ships, which give rise to these questions: and the results of the numerous decisions on the subject may be thus stated. First, if the injury be both wilful and immediate, Trespass is the only remedy. Secondly, if immediate, yet not wilful, either Trespass or Case may be maintained. Thirdly, when the injury is not immediate, but only consequential, Case alone will lie. Fourthly, when the act arises from the negligence of the defendant's ser

vants, Case is the only proper remedy. In this last class of cases, extraordinary difficulties frequently arise, as to the party liable for the acts of servants and drivers. In Laugher v. Pointer, 5 Barn. and Cress. 547, for instance, the question was this :-In the year 1826, the owner of a carriage hired of a stable-keeper a pair of horses, to draw it for a day; and the owner of the horses provided a driver, by whose negligent driving the horse of a third party was injured. The question was-whether the owner of the carriage was liable for this injury? Four most able judges were equally divided on the point. Lord Tenterden and Littledale, J., held that he was not; Bayley and Holroyd, Js., that he was. "Their judgments," says Mr. Justice Story,* * " exhaust the whole learning of the subject, and should on that account be attentively studied." The question of liability in such a case as the foregoing remained unsettled, down to the year 1840; when the Court of Exchequer, in Quarman v. Bennett, 6 M. and W. 499, after great consideration, confirmed the opinion of Lord Tenterden and Mr. Justice Littledale. Similar questions have arisen in the late cases of Milligan v. Wedge, 12 Ad. and Ell. 737; Martin v. Temperley, 4 Q. B., p.298, and M'Laughlin v. Pryor, 4 Mann. and Gr.48: all of which are commended to the deliberate perusal of the student.

An action" ON THE CASE" lies, as already intimated, for injuries occasioned by either non-feazance, or misfeazance, or mal-feazance, in a vast number of cases to which we cannot do more than allude. I. For torts to the person; as by keeping mischievous animals; for public nuisances occasioning personal injury to the plaintiff; for malicious prosecutions of different kinds;

* Commentaries on the law of Agency, p. 406.

for libel and slander; for criminal conversation with the plaintiff's wife; for seducing a daughter [in these last two cases trespass also lies*]; for enticing away apprentices; for carelessly driving coaches, carriages, &c., so as to injure or wound the plaintiff. II. For torts to personal property. For a breach of duty, whether implied by law, or arising out of an implied contract between the parties: e. g. against carriers by land, or water, for delaying, or losing articles; against innkeepers for refusing to lodge the plaintiff, and for losing his goods; against attorneys, surgeons, apothecaries, &c. &c. &c. for negligence and unskilfulness; against persons intrusted with property, for injuring it, and not re-delivering it; for deceit and fraudulent misrepresentation of any kind, occasioning injury to the plaintiff; for negligent driving, and navigating ships, so as to injure the plaintiff's carriage, or vessel; for illegal, excessive, and irregular Distresses; against sheriffs for making false returns to writs, or neglecting to execute them with promptness and diligence; for infringing copyrights and patents; and for injury to personal property in reversion -e. g. goods in the possession of the plaintiff's tenant, for a term of years. III. For torts to real property CORPOREAL. For injury to houses, &c. in possession,-by obstructing windows-erecting nuisances near them, &c.; for injury to houses, &c., in reversion; for waste; not cultivating according to the course of good husbandry, or custom of the country; for injuries to water courses, by diversion, and otherwise. For torts to real property INCORPOREAL; e. g. for disturbance of rights of common;

for

* This is on the ground that the law regards the wife and daughter as incapable of consenting; and treats such cases as injuries committed with implied force.