§ 222 a. Where the action is against a common carrier of passengers, for refusing to receive and convey the plaintiff, the carrier may prove, as a good defence, that the plaintiff was a person of bad or doubtful character, or of bad habits; or, that his object was to interfere with the defendant's interests, or to disturb his line of patronage; or, that he refused to obey the reasonable regulations made for the government of passengers in that line or mode of conveyance. And such carrier may rightfully inquire into the habits or motives of persons who offer themselves as passengers. But if the plaintiff has been received as a passenger and conveyed a part of the way, it seems he cannot be turned out on the ground that he is not a person of good character, so long as he was not guilty of any impropriety during the passage.2

1 Jenks v. Coleman, 2 Sumn. 221.

2 Coppin v. Braithwaite, 8 Jur. 875.

CASE.

§ 223. UNDER this head it is proposed only to mention some general principles of evidence, applicable to the action of Trespass on the Case, in any of its forms; referring to the appropriate titles of Adultery, Carriers, Libel, Malicious Prosecution, Nuisance, Trover, &c., for the particular rules relating to each of these heads.

§ 224. The distinction between the actions of Trespass vi et armis, and Trespass on the Case, is clear, though somewhat refined and subtle. By the former, redress is sought for an injury accompanied with actual force; by the latter, it is sought for a wrong without force. The criterion of Trespass vi et armis, is force directly applied, or, vis proxima. If the proximate cause of the injury is but a continuation of the original force, or, vis impressa, the effect is immediate, and the appropriate remedy is Trespass vi et armis. But if the original force, or vis impressa, had ceased to act, before the injury commenced, the effect is mediate, and the appropriate remedy is Trespass on the Case. Thus, if a log, thrown over a fence, were to fall on a person in the street, he might sue in Trespass; but if, after it had fallen to the ground, it caused him to stumble and fall, the remedy could be only by Trespass on the Case.1 The intent of the wrongdoer is not material to the form of the action; neither is it generally important, whether the original act was or was not legal. Thus, though the act of sending up a balloon was legal, yet Trespass vi et armis was held maintainable, for damage done by the accidental alighting of the balloon in the plaintiff's garden.2

1 Chitty on Plead. 115-120; Smith v. Ruthford, 2 S. & R. 358. 2 Guille v. Swan, 19 Johns. 381.

§ 225. For injuries to relative rights, the Action on the Case is the appropriate remedy. If the injury was without force as for example, enticing away a servant, Case is the only proper remedy; but if it be done with force, such as the battery of one's servant, or the like, the action may be in Case, or in Trespass vi et armis, at the plaintiff's election; and in the latter form, he may join a count for a battery of himself.1

§ 226. Where the injury is not to relative, but to absolute rights, the question, whether the party may waive the force, and sue in Trespass on the Case, for the mere consequential damages, has been much discussed, with no little conflict of opinion. Where the tortious act was done to the property of the plaintiff, and the defendant has derived a direct pecuniary benefit therefrom, as, if he seized the plaintiff's goods and sold them as his own, it is clear that the plaintiff may waive the tort entirely, and sue in assumpsit for the price of the goods. So, though the property was forcibly taken, the force may be waived, and trover, which is an Action on the Case, may be sustained, for the value of the goods. It is also agreed, that, where an injury was caused by the negligence of the defendant, but not wilfully, as by driving his cart against the plaintiff's carriage, Trespass on the Case may be maintained, notwithstanding the injury was occasioned by force, directly applied. And it has also been laid down, upon consideration, as a general principle, that where an injury has been done, partly by an act of trespass, and partly by that which is not an act of trespass, but the proper subject of an action on the Case, both acts being done at the same time, and causing a common injury, the party may sue in

1 Chitty on Plead. 128, [153], 181, [229]; Ditcham v. Bond, 2 M. & S. 436; Woodward v. Walton, 2 New Rep. 476.

2 Williams v. Holland, 10 Bing. 112; Rogers v. Imbleton, 3 New Rep. 117; Moreton v. Hardern, 4 B. & C. 223; Blin v. Campbell, 14 Johns. 432; McAllister v. Hammond, 6 Cow. 342; Dalton v. Favour, 3 N. Hamp.

either form of action, at his election. This rule has been illustrated by the case of a weir, or dam, erected partly on the plaintiff's ground, and partly on that of another riparian proprietor.1 It has also been held, that Case would lie for a distress, illegally made, after tender of the rent due; and for a tortious taking, under pretence of a distress for rent, where there was no right to distrain. In this last case, Lord Denman, C. J., proceeded upon the general ground, that, though the taking of the goods was a trespass, the owner was at liberty to waive it, and bring Case for the consequential injury arising from the unlawful detention. Indeed, it is diffi cult to discern any reason why the party may not, in all cases, waive his claim to vindictive damages, and proceed in Case, for only those actually sustained; or why he may not as well waive his claim for a part of the injury, and go for the residue, as to forgive the whole. There are however, several decisions, both English and American, to the effect that, where the injury is caused by force, directly applied, the remedy can be pursued only in Trespass.5

§ 227. In this action, as in others, if there are several plaintiffs, they must prove a joint cause of action, such as

1 Wells v. Ody, 1 M. & W. 459, per Ld. Abinger; Id. 462, per Parke, B.; Moore v. Robinson, 2 B. & Ad. 817; Knott v. Digges, 6 H. & J. 230. 2 Branscom v. Bridges, 1 B. & C. 145; 3 Stark. R. 171; Holland v. Bird, 10 Bing. 15.

3 Smith v. Goodwin, 4 B. & Ad. 413.

4 See Scott v. Sheppard, 2 W. Bl. 897; Pitts v. Gaince, 1 Salk. 10; Chamberlain v. Hazlewood, 5 M. & W. 515; 3 Jur. 1079; Muskett v. Hill, 5 Bing. N. C. 694; Parker v. Elliot, 6 Munf. 587; Van Horn v. Freeman, 1 Halst. 322; Haney v. Townsend, 1 McCord, 207; Ream v. Rank, 3 S. & R. 215; Parker v. Bailey, 4 D. & R. 215; Moran v. Dawes, 4 Cowen, R. 412. 5 These decisions are referred to in 1 Met. & Perk. Dig. p. 69, 70; 1 Harrison's Dig. 42-47. But in some of the United States, the distinction between the two forms of action has been abolished by statute. Thus, in Maine it is enacted, that "the declaration shall be equally good and valid, to all intents and purposes, whether the same shall be in form a declaration in trespass, or trespass on the case." Rev. St. ch. 115, § 13. So, in effect, in Indiana. Hines v. Kinnison, 8 Blackf. 119. And in Connecticut, Rev. St. 1849, tit. 1, § 274. Iowa, Rev. St. 1851, § 1733.

damage to their joint property, slander of both in their joint trade or employment, and the like, or they will be non-suited.1 If their interests are several, but the damage is joint, it has been held sufficient.2

§ 228. If the action is founded in tort, it is not necessary to prove all the defendants guilty; for as torts are several in their nature, judgment may well be rendered against one alone, and the others acquitted. But if the action is founded on a breach of an express contract, it seems that the plaintiff must prove the contract against all the defendants.3

§ 229. The particular day on which the injury is alleged to have been committed, is not material to be proved. Originally, every declaration in trespass seems to have been confined to a single act of trespass; and if it was continuous in its nature, it might be so laid; in which case it was considered as one act of trespass. Subsequently, to save the inconvenience of distinct counts for each tortious act, the plaintiff was permitted to consolidate into one count, the charge of trespasses done on divers days between two days specifically mentioned; in which case it is considered as if it were a distinct count for every different trespass. In the proof of such a declaration, the plaintiff may give evidence of any number of trespasses within the time specified. But he is not obliged to avail himself of this privilege; for he may still consider his declaration as containing only one count, and for a single trespass. When it is considered in this light, the time is immaterial; and he may prove a trespass done at any time before the commencement of the action, and within the time prescribed by the statute of limitations. But the plaintiff is not permitted to avail himself of the declaration in both these

1 Cook v. Batchellor, 2 B. & P. 150; 2 Saund. 116 a, note (2); Solomons v. Medex, 1 Stark. R. 191.

2 Coryton v. Lithebye, 2 Saund. 115; Weller v. Baker, 2 Wils. 414. 3 Ireland v. Johnson, 1 Bing. N. C. 162; Bretherton v. Wood, 3 B. & B. 54; Max v. Roberts, 12 East, 89; supra, § 214.