Courtney v Collet
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | High Court |
English Reports Citation: 91 E.R. 1079
COURTS OF KING'S BENCH AND COMMON PLEAS
courtney vers. collet. S. C. 12 Mod. 164. Actions which require different judgments cannot be joined. Vide 2 Wils. 321. 1 Term Rep. 276, ante, 58, and the cases there cited. Bro. Trespass, pi. 112. 2 Vin. 39, pi. 13. The judgment in trespass is a capiatur. In actions upon the case, though vi & armis, a misericortlia. Therefore trespass and case cannot be joined. Causing water to overflow another's fishery or land, though by an act on the party's own soil, is a direct trespass. S. C. Garth. 272, cit. Str. G35. Blackst. 898. Vide Hardr. 60, post, 1042, 1403, ante 188, and the cases there cited. Trespass quare clausum of the plaintiff called B. fregit, et herbam ibidem cres-eeiitera pedibus ambulando conculcavit et consumpsit, et piscatus fuit in separali piscaria, necnon quare postea, viz. eodem die et anno the defendant threw down a certain wear, per quod aqua ab eadem cataracta decurrens piscariam ipsius the plaintiff ibidem in tantum inundavit, quod per cursum aquse [273] illius, et inunda-tionem praedictam, pisces in eadem piscaria tune existentes ad valentiam exiveruut, &c. Upon not guilty pleaded, verdict for the plaintiff, and intire damages were given. Gould King's Serjeant moved in arrest of judgment, that the plaintiff has joined an action of trespass, and an action upon the case, which cannot be joined, 2 Eoll. Rep. 139, 140, Dawtry vers. Dee, for the former part of the declaration is a plain trespass, but the latter is only case. For if A. breaks the fences of B. per quod the cattle of C. escape into B.'s land; case lies for C. against A. if the cattle of C. are distrained for escaping and damage feasant in B.'s land. And in this case the plaintiff does not say, that the defendant broke his wears, but they might be some other person's: and in fact they were the defendant's own wears, and therefore trespass does not lie for it, but case, for the consequential damage to the plaintiff. And therefore the case differs from the case of (it) Drake v. Cooper, Garth. 113, where in trespass for breaking the plaintiff's close, containing one hundred acres, upon which a fair used to be held every Michaelmas day, and for throwing down booths and stalls ibidem erecta, per quod the plaintiff lost the benefit of his pickage; after verdict for the plaintiff, upon motion in arrest of judgment, the Court were of opinion, that this was an intire...
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