1795. TURNER V. HAWKINS. appears to have been a direct and immediate trespass and injury committed by the faid defendants on the property of the faid Plaintiffs." The fame as to the 2d count. And "that the Plaintiffs have complained against the Defendants for the whole of the caufes of action mentioned in the faid declaration as in a plea of trefpafs on the cafe whereas for fo much of the cause of action in the faid declaration mentioned as arofe from the faid driving on the faid cattle in the 1ft count of the faid declaration mentioned with great force and violence and thereby driving and forcing the faid boat or veffel of the Defendants againft the faid boat or veffel of the Plaintiffs, they ought to have complained against the Defendants in a plea of trespass vi et armis" The fame as the 2d count. And "that in the faid declaration there are comprehended and included caufes of action different and diftinct in their natures to wit caufes of action founded on immediate direct and forcible injuries and trefpaffes and caufes of action founded on injuries that are merely confequential; which caufes of action are incompatible with each other and ought not to be joined in the fame declaration." Joinder in error. The errors affigned apply Wood for the Plaintiffs in error. to the 1ft and 2d counts only, in which the breaches ftated are clear acts of trefpafs. The diftinction between the actions of trespass vi et armis and trespass on the cafe, is perfectly fettled; "if the injury be committed by the immediate act complained of, the action must be trefpafs; if the injury be merely confequential upon that act, an action on the cafe is the proper remedy." Per Lord Kenyon in Day v. Edwards, 5 Term Rep. 649. The injury here complained of was the immediate act of the Defendants' fervants; no negligence is ftated in either of the two first counts. In Day v. Edwards an action on the cafe being brought against the Defendant for driving his cart against the Plaintiff's carriage, it was held bad on demurrer; and the only difference between that cafe and the prefent, confifts in the injury having been there committed by the Defendant himfelf, whereas here it was committed by the Defendants' ferBut this difference in circumftance affords no diftinction in principle; Savignac v. Roome, 6 Term Rep. 125. The cafe of Tripe and Dyer v. Potter, before Yates J. at Exeter 1767, cited 6 Term Rep. 128. is ftrongly analogous to the prefent; there the Plaintiff having declared in cafe against the Defendant for wilfully rowing his boat against the Plaintiff's net, vants. whereby whereby the Plaintiff's net was funk and the Plaintiff prevented from drawing it, &c. was nonfuited. And the principles laid down by Lord Chief Juftice De Grey in Scott v. Shepherd, 2 Bl. 899. clearly establish that if the act of the Defendant be immediately injurious to the Plaintiff, though the injury arise from accident, or the act which occafions it be lawful, yet trespass is the only remedy. Wigley for the Defendants in error. Whatever might have been the event of this cafe on a demurrer, the Court will not now prefume any thing after verdict which can defeat the Plaintiffs' judgment. Slater v. Baker and another, 2 Wilf. 359. It appears that in fome cafes either trefpafs or cafe will lie. Thus in Pitts v. Gaince and another, 1 Salk. 10. where it was objected that cafe by the master did not lie for entering and detaining a fhip, but trefpafs only, Holt Ch. Juft. held that either action might have been maintained. In Scott v. Shepherd it was faid by Blackstone J. that every action of trespass with a per quod includes an action on the cafe; and that a man may bring trefpass for the immediate injury and fubjoin a per quod for the confequential damages, or cafe for the confequential damages and pafs over the immediate injury; and for this he cited 11 Mod. 180. So in Slade's cafe, 4 Co. 94. b. a cafe is put where a man may have "a general writ of trefpafs or an action upon his cafe," and in Hob. 180. and Sty. 99. the fame doctrine is laid down. It was thrown out in argument in Savignac v. Roome, that the mafter is not anfwerable for the wilful wrong of his fervant, and for this was cited Jones v. Hart, 2 Salk. 441. and the marginal abftract there; if however the act whether wilful or not be done in the mafter's fervice, the mafter is answerable. I Ld. Raym. 265. 2 Term Rep. 154. It was indeed intimated in Saunderfon v. Baker and another, 2 Black. 832. 3 Wilf. 309. S. C. that there should be a recognition of the fervant's act by the mafter in order to fix the latter; but that is now held unneceffary (a). Had this appeared at the trial to have been an act altogether unauthorized by the Defendants, or a clear trespass, in either cafe the Plaintiffs would have been nonfuited, Haward v. Bankes, 2 Burr. 1113, and therefore the Court after verdict will fuppofe it to have been so proved as to fupport the judgment. Indeed in Morley v. Gaisford, 2 H. Bl. 443. the Court faid it would be difficult to put a cafe where a mafter could be confidered as a trespasser for the act of his fervant, unless done by his command. 1796. TURNER ย. HAWKINS. Day v. Edwards was on demurrer, and in Savignac v. Roome the injury was ftated to have been done wilfully, which was much preffed in argument. The prefent cause of action was a mere non-feafance, for the injury is averred to have arifen from not flackening the rope, in confequence of which the Plaintiffs' boat was funk. EYRE Ch. J. Undoubtedly we ought to endeavour to preferve the diftinction of actions, and therefore if it appear upon the pleadings that actions of a different nature have been mixed, that is a fufficient ground for arrefting the judgment. That point however ought to be very clearly made out, where the objection is taken after verdict. Now if we read this declaration with that favour to which it is intitled after verdict, the judgment may well be fupported without reference to all that learning which has been cited in its fupport. The cause of all the mifchief which has happened in this cafe, was the Defendants' fervants not flackening the rope as it was their duty to have done, and in confequence of which neglect the horses went on in a way injurious to the Plaintiffs. It is therefore extremely clear that the caufe of action was a non-feafance, and it is fair to infer that it was not intended to charge the Defendants with wilfully driving their boat against that of the Plaintiffs. All the circumftances alleged are referable to the non-feafance, which makes it a compleat action on the cafe. The injury is not laid to have been done wilfully but wrong fully, which is applicable to cafe, and indeed to make it trespass, we muft entirely overlook the non-feafance. This being fo, we may pafs over all the learning which has been collected, and decide the cafe on that ground on which the whole refts, viz. a fair understanding of the declaration, referring the different expreffions to that first cause to which they are justly referable. Per Curiam, (a) The fame in principle is the cafe of agle and another v. Barnes and others, & Term Rep. 188. There the declaration in cate having alleged negligence and unkilfulne's in the Defendants' management of a fhip, by reafon whereof the ran foul of the Plaintiffs' fhip with great force and Judgment affirmed. (a) violence, and damaged her, the Court of K. B. on a motion in arreft of judgment, on the ground of the action having been cafe when it ought to have been trefpafs, refused to imply any act wilfully done by the Defendants, and held the action well conceived. CHAUNT V. SMART. April 25th. abfolute in the SHEPH HEPHERD Serjt. moved for an attachment againft the Defendant for neglecting to deliver up a promiffory note in purfuance of an order of Nifi Prius, which had been made a first instance rule of Court, and ferved upon him with a demand of the note. except for nonThere was fome difficulty at first as to the manner in which the upon the prothonotary's alrule ought to be drawn up, the officers feeming to be of opinion, locatur. on the authority of Townsend v. Baker, Barnes 31, that the rule fhould be abfolute in the firft inftance. But The Court determined that a fingle authority was not fufficient to fupport that doctrine; that the party though willing might not be able to deliver up the note, as in cafe of fire; that where any excufe could be offered for difobedience to the rule, the party ought to be permitted to fhew caufe; that in future the practice of this Court fhould be conformable to that of the King's Bench (a). and the rule fhould be to fhew caufe why the attachment should not iffue in all cafes except of non-payment of cofts on the Prothonotary's allocatur. (a) Tida's Pract. K. B. 256. payment of cofts Ex parte BENJAMIN LAWRENCE. April 26th. refuted to dif. not putting in the intolvent act 34 G. 3. difcharged under CLAY LAYTON Serjt. applied to the Court to difcharge the peti- The Court of tioner out of the cuftody of the Warden of the Fleet, under Chancery having the following circumftances. In 1784 the prifoner being then charge a prifonez under confinement in Gloucester gaol for debt, was ferved in cuftody for with a fubpoena iffued out of Chancery at the fuit of G. Mayo; an answer unless in 1785 he was removed by Habeas Corpus to the Fleet, on payment of the fees, he applied and his poverty difabling him from putting in any anfwer to C. B. to be to Mayo's bill, a decree that the bill be taken pro confell was obtained against him, on which he was regularly charged in cuftody for the contempt, and the fees amounting to near 5cl. remained unpaid. On the 15th of September 1994 he was brought up at the Quarter Seffions for the City of London, in order to take the benefit of the infolvent act 34 Geo. 3. c.69. but was remanded, it appearing in the copy of the caufes wherewith he stood charged in cuftody, that he was detained by virtue of an attachment iffued out of Chancery. Application was then made to the Court of Chancery to discharge him, which was refufed unless upon payment of the fees. Clayton now but was refuted; not confifting in the non-payment his contempt of money. 1796. Fx parte LAWRENCE. now urged, that though he was in cuftody for a contempt in point of form, yet that he was in reality detained for the non-payment of the fees incurred by that contempt. The Court however were of opinion that no redress could be obtained by the prifoner, but from the Court of Chancery; for that though on payment of his fees, that Court had offered to discharge him, yet his contempt did not confift in the non-payment of money (the term used in the 34 Geo. 3. c.69.) and confequently that he was not intitled to be discharged under that act. Clayton took nothing by his motion. April 26th. 2 Bof. Pull. 370. A writ of error operates as a Superfedeas from the time of the allowance, not from the time of fervice. Bail therefore must be put in within four days from the former period. GRAVALL V. STIMPSON. FINAL judgment was figned in this cafe, and a writ of error allowed on the 27th February; on the ift of March the Defendant's attorney ferved the Plaintiff's attorney with the allowance of the writ of error; on the 3d of the fame month the writ of Fi. Fa. was fued out upon the judgment; and on the 4th bail in error was put in, execution under the Fi. Fa. having been previously levied in the morning of the fame day. To quash this Fi. Fa. for irregularity and have the money levied under it reftored to the Defendant with costs, Le Blanc Serjt. on a former day obtained a rule Nifi: the queftion being whether a writ of error operates as a fuperfedeas from the time of it's allowance, or from the time of ferving the allowance on the party? Shepherd Serjt. fhewed caufe. Awrit of error is a fuperfedeas of execution from the time of its operative allowance, provided bail be regularly put in. Lane v: Bacchus, 2 Term Rep.44. Service of the allowance is only material to bring the party into contempt if he afterwards proceed to execution. Bail therefore must be put in within four days after the time of the operative allowance. In Jaques v. Nixon, 1 Term Rep. 279. the allowance of the writ of error was served on the 31ft of May, final judgment was figned and execution fued on the 14th of June, and within four days after that time bail was put in. This was held to be a fuperfedeas; which could not have been the cafe, if the time of fervice which was long before the judgment, had been the date of the operative allowance, for bail would not then have been put in within four days. The inconvenience of the contrary practice is a fufficient argument against it: for if the plaintiff in error were not compellable to put in bail, till within four days after service of |