17 Vt. 128 | Vt. | 1844
The opinion of the court was delivered by
As the action progressed to a final trial and judgment after the amendment took place, it must appear beyond doubt that the amendment was permitted contrary to law, before we can be justified in vacating those subsequent proceedings for that cause.
We have to determine whether the original declaration must necessarily be regarded as a declaration in trespass, and not in trespass on the case. That the party intended to declare in case, and not in trespass, is sufficiently evident. He not only entitled his declaration “ a plea of the case,” but he commenced it by way of recital, (with a quod cum, as formerly styled,) which is admitted to be a decisive mark of distinction between the two forms of declaring.
There is no doubt that the act of the defendants, as set forth, may properly be deemed a forcible act, and the question is, whether the injury must be referred to that act as its proximate and immediate cause. It is to be noticed that the injury complained of was not inflicted by the clubs or stones employed by the defendants, or directly by any act of force by them committed; so that, in effect, they were only charged with having by acts of force frightened and chased the mare, whereby she was induced to jump upon the fence to make her escape. Now in regard, at least, to injuries to the person and to personal property, I think the following rule may be sustained : — That where the injury is directly inflicted by a forcible (act, as where a blow is given to a person, or an act of violence jcommitted upon his beast, or other property, causing injury, the ¡party aggrieved has generally no choice of actions, and trespass is ; his only remedy ; but that the necessity of sueing irt trespass expends no farther, though the injury may have followed the forcible act without the intervention of any voluntary and responsible agency. In the latter case the party frequently has, as I consider, an election between the action's of trespass and case. I allude to the instance where he has sustained a forcible injury, effected by means flowing from the act of the defendant, but not operating by the very force and impulse of that act. ■ He may then sue in trespass, constructively treating those means as attached to, and forming part of, ¡the defendants, act, and thus bringing that act into immediate connexion with the injury; or, waiving all artificial views of the matter, he may adopt the other form of action, and treat the
Judgment affirmed.