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Trespass, Case and The Rule in Williams v. Holland

Published online by Cambridge University Press:  16 January 2009

M. J. Prichard
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Extract

It is only fitting that the issue of the Cambridge Law Journal that marks the eightieth birthday of its former Treasurer should contain an article on legal history, and the recent case of Letang v. Cooper provides an occasion for returning to the forms of action on which Professor Hollond lectured to generations of Cambridge undergraduates. It is not, however, the purpose of this article to consider Letang v. Cooper itself, but to attempt to trace the evolution of the rule in Williams v. Holland (1833) and thereby to answer the question why plaintiffs in running-down actions preferred to sue in case rather than trespass. Winfield and Goodhart asked themselves this question, but their answer was directed primarily to the period after 1833, by which time the rule had contributed very substantially to the “handsome balance in favour of an action for negligence as against one for trespass.”

Type
Research Article
Information
The Cambridge Law Journal , Volume 22 , Issue 2 , November 1964 , pp. 234 - 253
Copyright
Copyright © Cambridge Law Journal and Contributors 1964

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References

1 [1964] 3 W.L.R. 573. Noted ante, p. 200.

2 2 L.J.C.P.(n.s.) 190; 10 Bing. 112. The former report gives the arguments of counsel.

3 (1933) 49 L.Q.R. 359, 366.

4 (1926) 42 L.Q.R. 184; (1933) 49 L.Q.R. 359; (1934) 34 Col.L.R. 41.

5 The present article is intended only as a gloss upon these works, not an attempt to go over the whole ground again. The writer's indebtedness to both authors, but particularly to Mr. Fifoot, will be apparent.

6 42 L.Q.R. at p. 195.

7 e.g., Street, Law of Torts (3rd ed.), p. 103; Fleming, Law of Torts (2nd ed.). pp. 113–114.

8 Fifoot, History and Sources of the Common Law, pp. 154–156. Liability for animals naturally played an important part in establishing the early running-down cases, as Mitchil v. Alestree shows.

9 (1676) 1 Vent. 295; 2 Lev. 172; 3 Keb. 650.

10 Cf. Burford v. Dadwel (1669) 1 Sid. 433 (trespass).

11 2 Lev. 172.

12 1 Vent. 295.

13 See Kiralfy, Action on the Case, p. 103.

14 Martin v. Green (1664) 1 Keb. 730.

15 Mustard v. Harnden (1680) T.Raym. 390.

16 (1678) p. 70.

17 (1695) 1 Ld.Raym. 38.

18 Street, Foundations of Legal Liability, Vol. 1, p. 189; Holdsworth, History of English Law, Vol. 8, p. 453; Williams, G. Ll., Liability for Animals, p. 340Google Scholar; Newark, 65 L.Q.R. 485.

19 42 L.Q.R. at pp. 194–195; 49 L.Q.R. at p. 364. Fifoot, op. cit. p. 164, gives a somewhat similar impression. But cf. 34 Col.L.R. at p. 49, where Winfield puts the development back to the last quarter of the 18th century.

20 Commentaries, III, pp. 163–165, 208.

21 e.g., Reynolds v. Clarke (1726) 2 Ld.Raym. 1399; Haward v. Bankes (1760) 2 Burr. 1113; Scott v. Shepherd (1773) 2 W.Bl. 892.

22 Pt. I, Bk. I, Chap. 5, Bk. II, Chaps. 6, 7.

23 (6th ed.), p. 25. Distinguish the very different sic utere two ut alienum non laedas which Winfield rightly dismisses as vague and otiose, 34 Col.L.R. at pp. 48–49.

24 The writer does not wish to overstress the extent of this development of liability for negligence without a prior relationship; but he believes it important to appreciate the strength of the association of negligence with the action on the case in the minds of lawyers by 1790. He hopes on a future occasion to examine the positive function of the duty of care in fusing ‘relationship’ and ‘non-relationship’ negligence in the early 19th century. Modern tort lawyers may be interested to know that there is even a precedent (1788) for an action in negligence against an attorney by a frustrated devisee who lost her devise because the attorney failed to get the testator's will prepared in time for him to execute it before his death. Unfortunately counsel “dissuaded this action”! Wentworth, J., System of Pleading, Vol. 8, p. 396.Google Scholar

In another context Professor Newark has pointed out that the actions from the end of the 18th century for damages for personal injuries caused by a public nuisance were actions for negligence, not nuisance as they later became: (1949) 65 L.Q.R. at p. 484.

25 42 L.Q.R. at pp. 194–195.

26 According to Browne, A., Compendious View of the Civil Law, Vol. 2, p. 112Google Scholar, Addison v. Overend (1796) 6 T.R. 766 was the first case at common law which was not expressed to be within the body of a county. Cf. Blackstone, Vol. III, p. 106.

27 Browne v. Davies (temp. Anne) J. Lilley, Collection of Modern Entries (5th ed., 1791), Vol. 1, p. 37 (cited Fifoot, p. 180); cf. p. 80, Hawbank v. Trim. Lilley's was one of the last of the old style “Books of Entries.” There is a curious dearth of satisfactory precedent books on pleading in the middle of the 18th century, which may well be due to the very imperfect state of the plea rolls from that time onwards. The first adequate collection thereafter that is known to the writer is Wentwoith's; cf. n. 24 above. Works like Impey's New Instructor Clericalis, Morgan's Vade Mecum and the Pleader's Assistant are very inferior.

28 Anon. Salk. 441 (sub. Jones v. Hart), Ld.Raym. 739; Holt 642; Anon. (Hil. 10 Anne ?) cited Buller, Nisi Prius, p. 77; Jarvis v. Hayes (1738) 2 Str. 1083; Anon. (1744) Buller, Nisi Prius, p. 77.

29 op. cit. p. 164.

30 According to Wigmore, the rule that case was the proper form of action against a master was an innovation introduced by the Common Pleas in Morley v. Gaisford (1795) 2 H.Bl. 441 under a misapprehension, and the “prevailing practice” in the King's Bench was that “the form of action followed the intrinsic nature of the act, i.e., sue the master in Case where negligence is the basis of the claim, sue in Trespass for the servant's trespass”: Select Essays in Anglo-American L.H., Vol. 3, pp. 535–536. Wigmore cited Savignac v. Roome (1794) 6 T.R. 125 and Brucker v. Fromont (1796) 6 T.R. 659. Brucker v. Fromont appears to be an action on the case, not trespass. The present writer knows of no instance of such a “prevailing practice” earlier than Savignac v. Roome; as Lord Kenyon later conceded in McManus v. Crickett (1800) 1 East 106, all the earlier instances indicate that a contrary practice had prevailed and that case was the proper form against a master even where the servant would have been a trespasser. See too the cases in nn. 27, 28, 31, and Bayley (“daily instances”) in Savignac v. Roome at p. 126. It was precisely because case was the form of action used that the ‘course of employment’ notion of vicarious liability was gradually able to establish itself from the time of Holt C.J. onwards without a head-on collision with the older trespass authorities from the ‘command’ era of vicarious liability.

31 J. Wentworth, System of Pleading, Vol. 8, p. 396 (1781), p. 397 (1788), p. 400, p. 401; Norfolk v. Young (1789) cited in Drewry v. Twiss (1792) 4 T.R. 558; Stort v. Clements (1792) Peake 144. See, too, the remarks of Gibbs and Park in Leame v. Bray (1803) 3 East at p. 594, on the form in ship cases; and Bayley J. in Moreton v. Harden (1824) 4 B. & C. at p. 226.

32 5 T.R. 648.

33 Maitland, Forms of Action, p. 4.

34 2 & 3 Will. IV, chap. 39.

35 Cf. W. Tidd, Practice of the King's Bench (1828, 9th ed.), Chaps. 7 and 8, for the final position just before the Uniformity of Process Act, 1832.

36 Tidd, op. cit., Vol. 1, pp. 10–12, gives the position at the end of the 18th century.

37 Courtney v. Collet (1697) 1 Ld.Raym. 272. 5 & 6 Will. & Mar., chap. 12 abolishes the fine, but not the judgment. There were other more important differences, such as costs and the scope of the general issue; these other differences were usually put forward as reasons for distinguishing trespass and case (cf. Harker v. Birkbeck (1764) 3 Burr. 1556), but the judgment difference was the one alwaya put forward as preventing joinder.

38 Kenyon, Lord, in Day v. Edwards, 5 T.R. at p. 649.Google Scholar

39 For (a) see Gibbons v. Pepper (1695) 1 Ld.Raym. 38; for (b) see Kingston v. Booth (1685) Skinner 228.

40 J. Chitty, Treatise on Pleading (1st ed. 1809), Vol. 1, pp. 126–127.

41 (1841) 3 M. & G. 88. The case itself concerns a different point.

42 11 Price 608, at p. 613.

43 Anon. (1744) Buller, Nisi Prius, p. 77; cf. Huggett v. Montgomery (1807) 2 B. & P.(n.r.) at pp. 447–448. Bowcher v. Noidstrom (1809) 1 Taunt. at p. 569.

44 Wentworth, op. cit., Vol. 8, p. 400. See too Handaysyde v. Wilson (1828) 3 C. & P. 528 for similar counts much later.

45 (1799) 8 T.R. 188.

46 Chitty, op. cit. (7th ed., 1844), Vol. 2, p. 531. Garrow was Att.-Gen. 1813–1817.

47 (1796) 6 T.R. 659. The action appears to have been in case, so that a second count could have been added. (Or was the plaintiff very cunningly trying to frame a declaration which might be held good as trespass or case?)

48 Chitty, op. cit. (3rd ed. 1817), Vol. 2, pp. 320–322.

49 (1825) 4 B. & C. 223.

50 Common Law Procedure Act, 1852, s. 41.

51 Brooke, Trespass 113.

52 See 6 T.R. at p. 128 and 8 T.R. at p. 191.

53 1 Esp. 55.

54 5 T.R. 648.

55 6 T.R. 125.

56 Fifoot, op. cit. p. 185.

57 6 T.R. at p. 130.

58 2 H.Bl. 441. See ante, p. 239, n. 30.

59 In McManus v. Crickett (1800) 1 East 106.

60 (1796) 1 B. & P. 472.

61 Ibid. at p. 108. cf. his remarks in Ellis v. Turner (1800) 8 T.R. 531 at P. 533. “The defendants are responsible for the acts of their servants in those things that respect their duty under them; though they are not answerable for his misconduct in those things that do not respect his duty to them: as if he were to commit an assault on a third person in the course of the voyage.”

62 (1849) 4 Ex. 580.

63 Far more closely than in McManus v. Crickett itself, where Lord Kenyon formulated (ii) before he mentioned (i).

64 (1821) 4 B. & Ald. 590. The writer is indebted to Mr. Jolowicz for drawing his attention to this nice use of language. See, too, Chitty, op. cit. (7th ed.), Vol. 1, p. 92.

65 Limpus v. London General Omnibus Co. (1862) 1 H. & C. 526.

66 See Esso Petroleum Co. Ltd. v. Southport Corporation [1956] A.C. at p. 244Google Scholar, per Lord Tucker; Letang v. Cooper [1964] 3 W.L.R. at pp. 576–577Google Scholar, per Lord Denning M.R.

67 See n. 96 below.

68 See Newark (1956) 19 M.L.R. at p. 320. Even before the abolition of the forms of action, would the rule have been applied to all varieties of trespass, e.g., false imprisonment? Cf. Goff v. G.N.R.Co. (1861) L.J. 30 Q.B. 148.

69 (1799) 8 T.R. 188. In Addison v. Overend (1796) 6 T.R. 766 and Sedgworth v. Overend (1797) 7 T.R. 279 arising out of the same collision at sea, one part-owner chose to sue in trespass, the other in case—both in the King's Bench.

70 Ibid. at p. 191. Writer's italics.

71 Erskine at p. 189. Cf. Wentworth, op. cit., Vol. 8, p. 400n.

72 (1803) 3 East 693.

73 Including Lord Ellenborough C.J., who as counsel had argued against the proposition in Ogle v. Barnes, and Lawrence J. himself; see Fifoot, op. cit., p. 186 on Lawrence J.'s judgment.

74 2 B. & P.(n.r.) 117.

75 2 B. & P.(n.r.) 446.

76 Covell v. Laming (1808) 1 Camp, at 498.

77 The “might” becomes “may” by the 3rd ed. (1817), Vol. 1, p. 141. See too 5th ed. (1831), Vol. 1, p. 146. Compare Covell v. Laming and Lotan v. Cross (1810) 2 Camp. 464, with Rogers v. Imbleton, Huggett v. Montgomery and Boucher v. Noidstrom (1809) 1 Taunt. 568.

78 (1810) 2 Camp. 464.

79 (1812) 3 Camp. 187.

80 Pitts v. Gaince and Foresight (1700) 1 Salk. 10; Scott v. Shepherd (1773) 2 W.Bl. 892.

81 Chitty, op. cit (1st ed., 1809) p. 127; cf. 1 B. & P. at 475, per Wigley.

82 11 Price 608, at p. 613. See ante, p. 242, n. 42.

83 The retreat from Leame v. Bray can be neatly traced in the various editions of Chitty, op. cit., Vol. 1. The statement that “the proper remedy was trespass” (4th, p. 117) becomes a mere “trespass might be maintained” in the 5th (p. 145).

84 11 Price at p. 620.

85 (1825) 4 B. & C. 223.

86 2 L.J.C.P.(n.s.) 190.

87 Ibid. at p. 196.

88 The possibility of a wilful, but indirect injury was hardly considered at the time. Wilkinson v. Downton [1897] 2 Q.B. 57 would seem to fall here.

89 Until Fowler v. Laning [1959] 1 Q.B. 426.

90 Chitty, op. cit. (3rd ed.), Vol. 1, pp. 147, 214.

91 (1837) 2 M. & W. 770.

92 Knapp v. Salisbury (1810) 2 Camp. 500; Boss v. Litton (1832) 5 C. & P. 407; Cotterill v. Starkey (1839) 8 C. & P. 691; Hall v. Fearnley (1842) 3 Q.B. 919. Cf. Pearce v. Walton (1834) 6 C. & P. 232.

93 Cf. Letang v. Cooper [1964] 3 W.L.R. 573.Google Scholar

94 Reg.Gen.Trin. 1853, r. 1. (Day, Common Law Procedure Acts, p. 492.)

95 (1875) L.R. 10 Ex. 261.

96 Fifoot, op. cit. p. 370, citing Smith, Action at Law, puts the burial at 1852, but Smith appears to read too much into s. 49 of the Common Law Procedure Act, 1852. Section 49 made it unnecessary to insert formal allegations which did not need to be proved, such as vi et armis; it did not, however, purport to abolish completely the different forms of action themselves. The Act clearly contemplates their continued existence. Maitland's traditional date seems more correct: Forms of Action, p. 81; cf. Supreme Court of Judicature Act, 1875, 1st. Sched. Order XIX.