Barnes v. Hurd, 11 Mass. 57

Barnes v. Hurd

11 Mass. 57 | Mass. | 1814

Per Curiam.

The counsel for the defendant has correctly stated the distinction between those facts which will support an action of *61trespass vi et armis, and those for which an action of the case should be brought. “ Where the injury is committed by the immediate act complained of, the action must be trespass; if the injury be merely consequential upon that act, an action of the case is the proper remedy.” The first count of the declaration before us cannot, then, be sustained. The second count, being for an injury done by the defendant’s servant, stands on different ground. The injury here arose, so far as the defendant was concerned, from his employing a careless or a mischievous servant; and it was in its nature merely consequential. The judge who sat in the trial having certified, from his notes, that all the evidence produced applied exclusively to this count, (a) the plaintiff may take.

Judgment on the verdict.

Archbold, Prac. Com. PI. 2 vol. p. 284, 285. — 1 Chitty, Pl. 235, 448, 7th ed.— Barnard vs. Whiting, 7 Mass. Rep. 358. — Sullivan vs. Holker, 15 Mass. Rep. 374.— Patten & Al. vs. Gurney, 17 Mass. Rep. 182. — Clark vs. Lamb, 6 Pick. 512