Savignac against Roome
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1794 |
| Date | 28 November 1794 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 470
IN THE COURT OF KING'S BENCH.
2 H. Bl. 40. 8 T. R. 188. 1 B. & P. 472. 1 East, 106.
savignac against rooms. Friday Nov. 28th, 1794. An action on the case, stating that the defendant's servant wilfully drove against the plaintiffs carriage, whereby it was damaged, cannot be supported; and the Court will arrest the judgment after verdict. The stat. 16 & 17 Car. 2, c. 8, which says that judgment shall not be arrested for want of the words " vi & armis" or "contra pacem " in actions of trespass, only applies to those cases that appear on the face of the declaration to have been evidently intended to be actions of trespass; and as to a case where the memorandum is of " an action of trespass on the case." [2 H. Bl. 40. 8 T. R. 188. 1 B. & P. 472. 1 East, 106.] The declaration in this case began thus; the plaintiff complains of the defendant, &c. of a plea of trespass on the case, for that whereas the plaintiff, on, &c. at, &c. was possessed of a horse and chaise, which he was then and there driving on the highway, &c.; and that the defendant was possessed of a certain coach, and two horses drawing the same, &c. which said coach and horses were then under the care, government, and direction of a certain then servant of him the said defendant, who was then driving the same in and along the highway aforesaid, &c. nevertheless the defendant by his said servant then and there in the highway aforesaid, wilfully drove the said coach and horses of the said defendant upon and against the said chaise ,of the said plaintiff, and then and there pulled, forced, and dragged the same between and against the said coach of the said defendant and a certain other coach there, whereby the plaintiff's chaise became, and was crushed, broken, and damaged, '&c. The defendant pleaded the general issue, and on the trial the plaintiff obtained a verdict. Espinasse moved, at the beginning of the term, in arrest of judgment; 1st, because no action could be maintained against the defendant for a wilful act of the servant, accompanied with force, Salk. 441, unless done by the command of the master; 2d, if any action could be supported, this should have been an action of trespass, and not an action on the case. [126] Bayley shewed cause against the rule on a subsequent day. First, it does not follow from the introduction of the word " wilfully " in the declaration, that the act of the servant was not in consequence of directions from the master; for if the master had ordered him to do the act, it would still be a wilful act done by the servant, as opposed to an accidental act. But if this be taken to be the act of the servant only, still the master is answerable; for whether the act of the servant from (a) 2 Lord Raym. 1545. 6T.R.1K. SAVIGNAC fi, ROOMB 471 which the injury arises be voluntary or negligent, if it be done in the course of the servant's employment, the party injured may maintain an action of some kind against the master. Dy. 161, pi, 45; and 238 b. pi. 38. Mead \. Hamottd, 1 Str. 505, Grammer v, Nixon, ib. 653. In Fenn v. Harrison (a)1, where the question was whether an agent had exceeded his authority in indorsing a bill for his principal, Ashhurst J. said " If F. H. had been...
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