1833. June 12. Attachment GOBBY V. DEWES. THE sheriff having returned that he made his warrant in writing to his bailiff to take the Defendant, by virtue of which warrant the bailiff took and kept him until A. B. and others unknown rescued him out of the custody of the bailiff. (See the form, Tidd's Appendix, 125.) The Court, upon the motion of Wilde Serjt., and the authority of Sir W. Jon. 197., cited in Com. Dig. Rescous, D. 4., granted a rule absolute, in the first instance, for an attachment against the rescuers, although the return stated a rescue out of the custody of the bailiff, and not out of the custody of the sheriff. June 12. WILLIAMS v. HOLLAND. Where injury THE declaration stated that Plaintiff, on, &c. at, &c., is occasioned by the carelessness and negligence of the Defendant, the Plaintiff is at liberty to bring an action on the case, notwithstanding the act be immediate, so long as it is not a wilful act. was lawfully possessed of a certain cart, and of a certain horse drawing the same; in which said cart certain persons, to wit, John Williams, being the son and servant, and Mary Ann Williams, being the infant daughter of the Plaintiff, were then riding in and along a certain public and common highway: and the Defendant was then and there possessed of a certain gig, and of a certain other horse drawing the same, which said gig and horse were then and there under the care, government, and direction of the Defendant, in and along the WILLIAMS v. HOLLAND. the said highway, to wit, at, &c. Nevertheless the 1833. Defendant so carelessly, unskilfully, and improperly drove, governed, and directed his said gig and horse, that, by and through the carelessness, negligence, unskilfulness, and improper conduct of the Defendant, the said gig and horse of the Defendant then and there ran and struck with great violence upon and against the cart and horse of the Plaintiff, and thereby then and there crushed, broke to pieces, and damaged the same; and the said cart of the Plaintiff thereby then and there became and was rendered of little or no value to the Plaintiff: and thereby the said John Williams and Mary Ann Williams were then and there cast and thrown with great force and violence from and out of the said cart to and upon the ground there, and by means of the several premises aforesaid, the Plaintiff was deprived of the service of his son, and put to expense for doctor's bills, &c. Plea, not guilty. At the trial before Tindal C. J., it appeared that the Plaintiff's cart was standing at the side of a road twentyfour feet wide, with the near wheel on the footway, when the Plaintiff in a gig, and, in the act of racing with another gig, drove against the cart, upset and broke it to pieces, and severely injured the Plaintiff's children. The defence was, that the Defendant's horse had run away with him. And the Chief Justice left it to the jury to say whether the collision was the result of accident, or of negligence and carelessness in the Defendant. The jury found the latter, and gave a verdict with damages for the Plaintiff. It was also contended, on the part of the Defendant, that the action was misconceived, and ought to have been trespass instead of case. The Chief Justice having reserved that point for the consideration of the Court, VOL. X. I Bompas 1833. WILLIAMS V. HOLLAND. Bompas Serjt. obtained, thereupon, a rule nisi to set aside the verdict and enter a nonsuit. Jones Serjt., who shewed cause, contended, that the result of all the cases on this subject was, that where the act complained of is immediate and wilful, the remedy is only by action of trespass; where the act is immediate, but occasioned by negligence or carelessness, the remedy is either by trespass or case; where the act is unimmediate, the remedy is by case only. Weaver v. Ward (a), Underwood v. Hewson (b), Reynolds v. Clarke (c), Scott v. Shepherd (d), Morley v. Gaisford (e), Day v. Edwards(g), Savignac v. Roome (h), Brucker v. Fromont (i), Ogle v. Barnes (k), Turner v. Hawkins (1), Rogers v. Imbleton (m), Huggett v. Montgomery (n), Leame v. Bray (0), Lotan v. Cross (p), Covell v. Laming (q), Hall v. Pickard (r), Branscomb v. Bridges (s), Moreton v. Hardern (t), Lloyd v. Needham. (u) Bompas, in support of his rule, insisted, that the effect of all the authorities is, that when the act complained of is immediate, whether it be wilful or the result of negligence, the remedy is by trespass only. Cur. adv. vult. TINDAL C. J. This was an action on the case, in which the declaration states that the Plaintiff was possessed of a cart, and horse drawing the same, in which (a) Hob. 134. (c) I Str. 634. (d) 2 W. Bl. 892. (m) 2 N. R. 119. cart cart were the Plaintiff's son and daughter, and that Defendant was possessed of a gig, and horse drawing the same," which gig and horse were then under the care, &c. of Defendant, who was driving the same in and along the highway:" nevertheless Defendant "so carelessly, unskilfully, and improperly drove, &c. his said gig and horse," that through the carelessness of the Defendant the said gig and horse of Defendant ran and struck with great violence upon and against the horse and cart of Plaintiff, and thereby broke to pieces the same, and the son and daughter of Plaintiff were greatly hurt, &c. The Defendant pleaded the general issue; and on the trial the question left to the jury was, whether the injury was occasioned by the negligence and carelessness of the Defendant; which question the jury found in the affirmative, and gave their verdict for the Plaintiff, with 127. damages. After the trial, the present rule was obtained for setting aside the verdict and entering a nonsuit, under leave given for that purpose, upon the ground that the injury having been occasioned by the immediate act of the Defendant himself, the action ought to have been trespass, and that case was not maintainable; and amongst other cases cited by the Defendant's counsel in support of this objection, that of Leame v. Bray (a) was principally relied upon as an authority in point. The declaration, in this case, states the ground of action to be an injury occasioned by the carelessness and negligence of the Defendant in driving his own gig; and that such carelessness and negligence is, strictly and properly in itself, the subject of an action on the case, would appear, if any authority were wanting, from Com. Dig. tit. Action upon the Case for Negligence; and the jury have found in the very terms of the declar 1833. WILLIAMS บ. HOLLAND. 1833. WILLIAMS V. HOLLAND. ation, that the injury was so occasioned. Under such a form of action, therefore, and with such a finding by the jury, the present objection ought not to prevail, unless some positive and inflexible rule of law, or some authority too strong to be overcome, is brought forward in its support. If such are to be found, they must, undoubtedly, be adhered to; for settled forms of action, adapted to different grievances, contribute much to the certain administration of justice. But upon examining the cases cited in argument, both in support of, and in answer to, the objection, we cannot find one in which it is distinctly held, that the present form of action is not maintainable under the circumstances of this case. For as to Leame v. Bray, on which the principal reliance is placed by the Defendant, in which the form of action was trespass, and the circumstances very nearly the same as those in the case now under consideration, the only rule established is, that an action of trespass might be maintained, not that an action on the case could not. The case of Savignac v. Roome, in which the Court held that case would not lie where the defendant's servant wilfully drove against the plaintiff's carriage, was founded on the principle, that no action would lie against the master for the wilful act of his servant; and in that of Day v. Edwards, in which it was ruled that trespass was the proper remedy, and not case, it should be observed that the question arose upon a special demurrer to the declaration; and that the declaration stated that the defendant "so furiously, negligently, and improperly drove his cart and horse, that through the furious, negligent, and improper conduct of the defendant, the cart and horse were driven and struck with great force and violence upon and against the carriage of the plaintiff;" the question therefore arising upon a special demurrer, where the Court could |