Rogers v Cook
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 91 E.R. 10
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Pas. 12 Will. B. R. 1 Ld. Raym. 558, S. C.
4. pitts versus gainoe and foresight. [Pas. 12 Will. B. R. 1 Ld. Raym. 558, S. C.] Case or trover, quod fuit magister navis, and defendant detained her per q'd impedit. in viagio. Holt 12, S. C. Held well for the special damages, but that he might have had trespass on his possession. Br. Action sur le Case, 123. All. 84. Fitz. Action sur Case. 1 Roll. Abr. 104. 2 Roll. Abr. 556. Lane 65, 66. Cro. Jac. 265, 266. 4 Co. 94. 2 Cro. 50. Com. Dig. 3 ed. vol. i. p. 158. Action M. Action sur le case, for that he was master of a ship, and that it was laden with corn in such a harbour, ready to sail for Dantzick, and that the defendant entered and seized the ship, and [11] detained her, per quod impedilus & obstructus fuit in viagio. Defendant justified for toll and port duties; but his plea being naught, took this exception to the action, viz. that it should have been trespass. Fide 4 E. 3, 24. Palm. 47. 13 H. 7, 26. Holt C.J. In the cases cited, the plaintiff had a property in the thing taken; but here the plaintiff has not a property; the ship was not the master's but the owner's; the master only declares as a particular officer, and can only recover for his particular loss. Yet he might have brought trespass as a bailiff of goods may ; and then as a bailiff he could only have declared upon his possession, 1SALKBLD. n. ACTION IN GENERAL 11 sc. that he was possessed; which is sufficient to maintain trespass (a). Judgment pro quer. (a) It is clear that for a mere trespass an action on the case will not lie; and questions frequently arise whether case or trespass is the proper action. As a general rule it is agreed, that where the injury is immediate the action should be trespass, and where it is consequential it should be case. The present is an instance in which either action would be maintainable, the principle of which seems correctly stated by Mr. Wedderburne in ffarker v. Birbeck, 3 Bur. 1561, "Both actions may lie where there is both an immediate and also a consequential injury; and the plaintiffs therein, being entitled to both actions must have their election to proceed in either." In Shapcott v. Mugford, 1 Ld. Raym. 187, case was brought against a parson for not taking away tithes in a convenient time, per quod the plaintiffs land was injured; and it was objected that it should...
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