being under the control of the driver, the owner's possession continues. See Deane v. Branthwaite, 5 Esp. R. 35.

V. Whether the injury is done to the possession, or only to a reversionary interest.

Where an injury is done to real estate, Trespass lies for the tenant in possession, and Case for the reversioner, according to their respective interests. 1 Rol. 103, l. 35; 3 Lev. 131, 209; 1 Johns. R. 511; 3 Johns. R. 461.

And therefore, for stopping a rivulet, and drowning a close, and thereby spoiling the trees, it was held that Trespass lies for the tenant in possession, and Case for him in reversion. 3 Lev. 209.

So if the owner of a horse lets him to hire for a certain time during which he is killed by the owner of a cart driving it violently against him, the remedy for the owner of the horse against the owner of the cart, is Case, and not Trespass. 3 Camp. R. 187.

But it seems if a trespass is committed on goods in the possession of a bailee, generally, either the bailor or the bailee may maintain Trespass. 2 Rol. 569, 1. 22. But as this is an ancient authority in the case of the bailor, perhaps it would be considered a special action of Trespass, i. e. an action on the case, only, could be maintained, unless the bailor, at the time of the Trespass, had an immediate right of reducing the goods into his own possession. This distinction is recognized in Walcot v. Pomeroy et al, 2 Pick. 121.

It is laid down in Lotan v. Cross, that if the owner of a chattel permit another to use it gratuitously, Trespass will lie for the owner for an injury done to it by a third person, while it is so used.

2 Campb. 464.

VI. Where the act is done by animals, how far they were incited or negligently permitted to do it, by the defendant.

If A sets his dog on to worry sheep or other animals, or encourages him to bite a person, Trespass lies. But if, after notice, he keeps a dog used to bite, and a person is bitten, or an animal worried by him, A is liable to an action on the Case. 2 Ld. Raym. 608; Salk. 662.

But it seems, if cattle trespass on land, though there is no pretence that the owner was guilty of any thing more than negligence, or nonfeasance, Trespass lies. Ib. Though the law is clearly so laid down, yet there is no principle to warrant the difference of decision in the two classes of cases. For a dog accustomed to bite, and known by the master to be so, in which case alone an action on the Case lies at common law, should have the same precautions used against him by the master to prevent mischief, that the owner of cattle, which it is known are naturally disposed to rove, is bound to use to prevent trespass by them. If Case therefore is the proper form of action in the first class of cases, there seems to be no discernible principle, that can make Trespass the proper form of action in the last. But in each of these cases, the law seems to be too well settled to be now shaken.

VII. In what cases, (if any,) where Trespass may be maintained, the plaintiff is at liberty to waive the force, and bring Case.

The difficulty of determining which form of action to bring in particular cases, has led the court to permit an amendment by changing the form of action. But as this seems to be an inconvenient innovation,

and as it is not probable, it would be suffered in any case, where the rights of third persons would be at all affected by it, it may still be worth while to give a moment's attention to the above inquiry.

It is matter of common learning, that whenever A commits a trespass in taking and carrying away the goods of B, and converting them to his own use, B may either bring Trespass vi et armis; or, waiving the force, may bring Trover and recover for the conversion of them; or he may waive the tort altogether, and bring an action as on a sale and delivery of the goods, and an implied assumpsit or undertaking to pay the full value of the goods. Other analogous cases might be stated, grounded on the general maxim of the law, that though you cannot increase, you may always qualify a tort. See Cro. Eliz. 824; 3 Wils. 338. And Lord Ellenborough (3 Campb. 188,) says, "it may likewise be worthy of consideration, whether in those instances where Trespass may be maintained, the party may not waive the trespass and proceed for the tort." To adopt this idea in its full extent, would be to render the action of Trespass altogether unnecessary, and to substitute Case in its room; since then, in cases of assault and battery, the person injured would be able to bring Case. But this doctrine would be inconvenient, and could be introduced only by overturning a long series of decisions.

However, in cases where one is injured by the act of another accompanied with force, and where also there are consequential damages, for the whole of which a recovery may be had in an action of Trespass, and which consequential damages would have been sufficient to sustain an action on the Case, if there had been no force, there appears to be no impropriety in suffering the plaintiff to waive the force and the direct. injury, and recover in Case for the consequential damages. This however could not be permitted, where the waiving of the force would affect the plaintiff's right to recover, by destroying the ground of action. Thus, suppose A takes off the roof of a house, containing H's furniture, and in consequence of it the rain injures the furniture. Now in this case, there may be two injuries, the taking off of the roof, which then would be a trespass; and the consequential damages, by the rain; for which, if D's taking off the roof were out of the question, an action on the case might be sustained. Now if the house were D's house, and in D's occupation, it is very plain that I could not maintain an action of Trespass against D at all, because in such case D commits no trespass in taking off the roof of his own house; and yet H might well maintain an action on the Case for the injury done to his furniture by the rain, in consequence of it. Now the idea meant to be conveyed in the above proposition is, that in cases where D has no right to take off the roof, and consequently H may maintain Trespass against him for doing it, H may waive the Trespass, if there are consequential damages, and recover for them alone in an action on the Case. But if D commits an assault and battery on H, and puts out one of his eyes, there would be no propriety in suffering H to bring an action on the Case for it; 1. because the damages are immediate and not consequential; 2. because, if the force is waived, there does not appear any consequences, upon which to ground an action of the Case, which are not necessarily waived also. Ideo Quære.

Further Observations.

In Hard. 60, where Trespass vi et armis was brought against A for

laying dung on his land, and causing stinking water from it to run to the walls of the plaintiff's house and into his cellar; after verdict for the plaintiff, and a mot on in arrest of judgment, the court held, that the action would lie. But this was after great wavering in opinion, and the court at first were against the plaintiff, because a man cannot be a trespasser with force and arms for an action done on his own ground where the consequences only are injurious. According to modern practice, Case would be the proper action. But, if the act had been done on the plaintiff's ground, Trespass only could be maintained. Ld. Raym. 188, Arguendo in Shapcott v. Mugford.

If A breaks B's hedge, and cattle get in and do damage, B shall have Trespass, and may recover for all the damages in that form of action. Vin. Abr. Trespass, (Q. a. 4.)

If A's land is fenced off from B's by a fence belonging to B, and standing on B's land, and C breaks down the fence, and thereby D's cattle break in and do damage to A, it seems A cannot maintain an action of Trespass against C, but must bring Case against him; for one man cannot have Trespass for breaking another's fence. See Str. 131; see also Keb. 577, Pl. 38; Ld Raym. 1402.

If a justice of the peace grants execution within twenty-four hours after judgment, he is liable to an action of Trespass. 10 Mass. R.

356.

For all proceedings coram non judice, Trespass is the proper remedy. 2 Wils. 382.

A search-warrant is no justification, if stolen goods are not found, and Trespass will lie. See 1 D. & E. 535.

DECLARATIONS IN CASE FOR MISFEASANCE, NONFEASANCE, NEGLIGENCE, MALFEASANCE, &c.

For carelessly driving a team against plaintiff's chaise.

For that, on &c., in S aforesaid, to wit, in the main-street, two of the plaintiff's daughters were riding there in the plaintiff's chaise, of the value of &c.; and the said D's team, whereof he then had the sole management, was, at the same time passing along in the same street. And the plaintiff avers, that the said D, then and there, so carelessly and negligently managed his team aforesaid, that his cattle, which were then and there drawing the said D's team aforesaid, drew the same upon and against the chaise aforesaid; so that the chaise aforesaid, with the plaintiff's daughters aforesaid in it, was, through the negligence of the said D, overturned by the team aforesaid, and so broken and shattered thereby, that the same chaise was rendered altogether unfit for use, and the plaintiff's daughters aforesaid were in great hazard of their limbs and lives, to the damage, &c.

NOTE. Unless the plaintiff has a right to waive the it may be doubted whether Case can be maintained.

R. DANA. force in this case, See 3 East, 593.

See also 8 T. R. 188. According to the current of authorities it would be safe to declare in Trespass; for the injury, though arising from defendant's carelessness, is direct.

For the carelessness of defendant's servant, in running his stage against plaintiff's chaise.

For that whereas the plaintiff, on &c., at &c., was possessed, and the owner of a certain chaise, of the value of &c., and of a certain horse, which was then and there harnessed to said chaise; and the plaintiff was then and there sitting and riding in said chaise, so harnessed, in a certain public highway, there called Boston-street. And whereas, there, on the same day, the said D was possessed of a certain stage-coach or carriage, and also of four horses, drawing the same through and along said street; and the said D, then and there, by a certain servant of him, the said D, had the care, government, and direction of the said stagecoach or carriage, and horses; yet the said D, not minding nor regarding his duty in this behalf, then and there by his said servant, so negligently and unskilfully managed and behaved himself in this behalf, and so ignorantly, carelessly, and negligently drove and managed, guided, and governed said stage-coach or carriage and horses, that the said stagecoach or carriage of the said D, for want of good and sufficient care and management thereof, and of the horses, then and there drawing the same, as aforesaid, then and there struck against the said chaise of the plaintiff, with such force and violence, that his said chaise, wherein he was then and there sitting and riding as aforesaid, was thereby overset, broken to pieces, and destroyed, and the plaintiff thrown with great violence from and out of his said chaise, upon and against the ground, and thereby his thigh, hip, and body, were greatly bruised, and his life endangered, &c. Burnham v. Paine, S. J. Court, 1802. Judgment for plaintiff. S. PUTNAM.

Against pilot for running ship aground.

For that the said D, at &c., on &c., was one of the pilots for the port of &c. duly appointed and sworn, according to law in such case made and provided, with a branch or warrant for the due execution of the duties of said office, and entitled to the legal fees of pilotage, according to the law aforesaid; and for that the said plaintiff was then and there owner and in possession of a certain ship, called &c., bur

which ship

thened about tons, and laden with a valuable cargo of &c. [merchandise] lying in the port of then and there drew more than nine feet of water, to wit, feet of water, and was bound out of said port, with said cargo on board, to proceed on a voyage to &c. And the said D, then and there, in the execution of his said office, as one of the pilots aforesaid, for the said port, and for the legal fees of pilotage, took upon himself all the charge of piloting said ship, out of said port, and promised the plaintiff that he would faithfully do the same; yet the said D, not regarding the duties of his said office, nor the charge he had taken upon himself, as aforesaid, so ignorantly, negligently, and unskilfully managed said ship, in piloting her out of said port, that he run the said ship aground on certain rocks in the said port; by which means the said ship was greatly damaged in her bottom, sheathing, planks, and timber, and great part of her cargo was damaged and wasted; and the plaintiff has been put to great expense in repairing and refitting the said ship, and unlading her cargo, and relading the same on board other vessels, and hath wholly lost the use of said ship, from that time to this; all which is &c. Thomas v. Hunt. T. PARSONS.

Against owners; for carelessness of master in running his ship foul of plaintiff's boat, whereby she was sunk.

FIRST COUNT. For that the said plaintiffs, at &c., on &c., were the owners, and lawfully possessed of a certain fishing boat, called &c., burthened about thirteen tons, then and there lying at anchor, and employed in the fishery, with the articles, mentioned in the schedule hereto annexed, on board the said boat, being also the property of the said plaintiffs; and the said T and E were, then and there, the owners and in possession of a certain ship, called &c., then and there being and sailing, of which one A. then and there had the care and management, and was the master, duly appointed by the said T and E, and for whose negligence, carelessness, and unskilfulness, as master of the said ship, the said T and E then were, and now are answerable; and the said A, then and there so negligently, carelessly, and unskilfully managed and steered the said ship, that the said ship, for want of good and sufficient care and management thereof, fell foul of, run down, and sunk the said boat, with the said articles on board of her, by reason whereof the said plaintiffs have wholly lost the said boat, with all the articles