Hosmer, Ch. J.
The right determination of this case, depends on a correct answer to the following questions; what action has the plaintiff instituted ; and what is the legal remedy applicable to the facts, which appear on the motion for a new trial ? As no suit can be maintained for trespass vi et armis after three years, and as in trespass on the case there is no limitation, it becomes highly important to preserve the established boundaries between these actions.
What action has the plaintiff instituted ? His declaration is founded merely on non-feasance. From the frame of the action it manifestly appears, that he has not complained of any act of the defendant, committed with force. “ The person who drew this declaration,” as was said by Grose, J. in Savingac v. Roome, 6 Term Rep. 130. “meant to draw a declaration on the case ; if he had thought that trespass was his proper remedy, he would have moulded the declaration differently.” The action is denominated “ a plea of trespass on the case;” and every such allegation is expressive only of neglect, want of care, imprudent omission, and mismanage[68]*68ment. The latter term, in its popular meaning, denotes non* feasance, or misfeasance, according to the subject matter to which it is applied. After verdict for the plaintiff, in favour of which, every reasonable presumption should be made, a motion in arrest of judgment, on the ground that the facts amounted to a trespass with force, would be of no legal avail. Ogle & al. v. Barnes & al. 8 Term Rep. 188. Howard v. Bankes, 2 Burr. 1113. Turner & al. v. Hawkins & al. 1 Bos. &. Pul. 472. Rogers v. Imbleton, 2 New Rep. 117. In support of the declaration, it might fairly be presumed, that the injury complained of was the consequence only of the defendant’s act; or, that he was not on board the Susan, but navigated her by his servant. See the above cases, and Leame v. Bray, 3 East 593. Michel v. Alestree, 2 Levinz 172. Brucker v. Fromont, 6 Term Rep. 659. In my opinion, it is clear beyond a question, that the plaintiffs’ action is trespass on the case.
This brings me to the remaining enquiry ; what is the legal remedy applicable to the facts-, which appear on the motion for a new trial ? It appears, that the defendant was proceeds ing with the Susan, under his personal direction .> and management, to New-TIaven. One of the plaintiffs, in an opposite direction, was navigating the Mary to New- York. When distant from each other about thirty rods, the defendant commanded the person at the helm of the Susan to luff; “ in obedience to which, the helmsman suddenly luffed, and turned said sloop Susan to windward, and in pursuance of the direction thus given, she directly struck the larboard quarter of the Mary,,with,great violence.” This is the history of the transaction,, which the motion gives, and from which certain incontrovertible propositions are established., 1. By reason of the express : command to the helmsman, the defendant is precisely ki the same condition as if he had steered the sloop. 2.. The Susan obeyed the helm, andi was guided by it., The expression, “ the helmsman turned the sloop, and in pursuance of the direction thus given, she directly struck theMaryff as definitely ascribes to the defendant the act of turning and directing her movement, until the injury was effected, as if she had been a cane wielded by his hand. Whether the word directly is considered as synonymous with the term immediately, or the whole phrase is viewed as indicating that the defendant, by the helm, controlled and regulated the movemeut of the Susan, the con[69]*69struction must be the same. The act of striking was his act. If it had appeared, that the winds and waves baffled the defendant’s purpose, and counteracted his efforts, the motion would have presented a case very different from the one before the Court. On this subject there is a total silence ; and had a fact so important been ’ftade to appear, it would not have been omitted in the statement made for the purpose of reviewing the former decision. Nothing can be assumed which the expressions of the motion do not warrant. The damage, then, was effected by a stroke from the Susan ; the immediate result of force, originally, and unintermittingly, applied by the defendant. Exclude from consideration the possible effect of the winds and waves, and bear constantly in mind, that the elements neither counteracted the exertions of the defendant, nor operated otherwise than in entire subserviency to his will; and what is the result ? That the helm and the sails, the winds and the waves, were all his instruments, obedient to his wishes ; and the Susan was directed by him in the course which he thought most eligible. From the moment the helm, by the defendant’s direction, turned the Susan into that path in which the injury was accomplished, there was no intermediate agent, which varied the course intentionally pursued. Were it said, that a person turned his horse, and in pursuance of the direction given, run over a child and broke his arm, there would exist no doubt whether the damage was imputable to his act. If the misfortune resulted from the impracticability of controlling the horse, it would change the nature of the case ; but were the person who did the injury, as silent as the motion is, the court would not gratuitously assume as a reality, what he had never claimed.
On these facts, I am extremely clear, that the only legal remedy is trespass vi et armis.
The general principle, which discriminates trespass from case, is stated with great accuracy, by Sir William Blackstone. “ It is a settled distinction,” said that learned^ commentator, “ that where an act is done, which is in itself an immediate injury to another’s person, or property, there the remedy is usually by an action of trespass vi et armis ; but where, tHore is no act done, but only a culpable-amission. or where the act is not immediately injurious, but only by consequence, and collaterally; there no action of trespass vi et [70]*70armis will lie, but an action on the special case for the damages consequent on such omission or act.” 3 Bla. Comm. 123.
It has been contended, that the defendant did not intentionally, or wilfully, do the act complained of; and hence was deduced the unwarrantable inference, that trespass vi et armis could not be sustained. Whether the act was the result of the will, or is attributable to neglect or miscalculation, the legal consequence is the same. In actions on the case, the quo animo, is the material enquiry ; but in trespass vi et armis, when the act complained of was done by the defendant personally, or by his express command, it is of no imaginable importance. Tarlton v. Fisher, Doug. 646. 649. “ In trespass, innocence of intention is no excuse; in case the whole turns upon it,” ike. Idiots and lunatics, as to their legal capacity of committing trespass, are not distinguishable from moral agents; and he who strikes another through negligence, or by accident', is as much a trespasser, as if the stroke had been intentionally given. Reynolds v. Clarke, 1 Strange 634. Shapcott v. Mugford, 1 Ld. Raym. 187. Hayward v. Bankes, 2 Burr, 1114. Harker & al. v. Birbeck & al. 3 Burr. 1556. Gates v. Bayley, 2 Wilson, 313. Scott v. Shepherd, 2 Wm. Black. 892. Morgan v. Hughes, 2 Term Rep. 225. Day v. Edwards, 5 Term Rep. 649. Savignac v. Roome, 6 Term Rep. 125. Ogle & al. v. Barnes & al. 8 Term Rep. 188. Sheldrick v. Abery & al. 1 Esp. 55. Leame v. Bray, 3 East 593. Adams & al. v. Hemmenway, 1 Mass. Rep. 145. Taylor v. Rainbow, 2 Hen. & Mun. 423. Underwood v. Hewson, l Strange, 596. Covell v. Laming, 1 Campb. 497. Lotan v. Cross, 2 Campb. 464. e contra, Rogers v. Imbleton, 2 New Rep. 117.
A difference has been attempted, between the injury resulting from the incautious, or negligent casting a stone, or striking with a cane, and the running down a ship in the same manner ; and it has been said, that the former is trespass, but that the latter is not. In the nature of the case, there is no foundation for the supposed distinction. From the same premises, the legal and logical result, must invariably be the same. The case of Leame v. Bray, 3 East 593. which was an action of trespass for running down a carriage, in my opinion, is sound law: and in Covell v. Laming, 1 Campb. 497. the same action was maintained for damage produced by the defendant’s ship, on the ship of the plaintiff, unintentionally, and from unskilful management. Mr. Chitty (1 Plead. 127.) has contributed [71]*71to confirm the opinion I am opposing, in the first edition of his valuable work; but in a late edition, he has corrected the error. In his first edition, he remarked, that “ in the case of injuries arising from driving carriages, or navigating ships, if the injury were immediate, and be stated to have been wilfully committed, or appear to have been so, on the trial, the remedy must be trespass; but if the injury were attributable to negligence, though it were immediate, the party injured has his election, either to treat the negligence of the defendant as the cause of action, and to declare in case; or to consider the act itself as the injury, and to declare in trespass.” I have critically examined the cases cited by him, and find his proposition not supported. In his late edition, he observes, that “ in the case of injuries arising from driving carriages or navigating ships, if the injury were immediate, though occasioned by negligence, or if it be stated in the declaration to have been wilfully committed, or appear to have been so on trial, the remedy must be trespass; but if the injury were attributable to negligence, the party has sometimes an election,” &c. What possible reason can be assigned for considering, in some instances, an immediate injury arising from negligence as trespass, and in others, as authorizing an action on the case ? It is true, that in suits for damage arising from carriages, or for running down ships, it sometimes becomes an enquiry of considerable difficulty, to ascertain whether the injury was produced by the immediate act of the person complained of, orresul-ted consequentially from neglect, or culpable omission. This, however, is merely a question of fact; and when it is once settled, there is no propriety in adopting a flexible principle, ascribing different legal consequences to facts of the same nature and amount.
Cases have been cited of suits brought for acts done by the servant of the defendant, in his absence, and not by his express command. These have no bearing on the question before the Court. “ It is difficult to put a case, where the master could be considered a trespasser for an act of his servant, which was not done by his command.” Morley v. Gaisford, 2 Hen. Black. 442. Hugget v. Montgomery, 2 New Rep. 446. Bowcher v. Noidstrom, 1 Taunt. 567.
The decision most relied on, by the defendant, is Ogle & al. v. Barnes & al. 8 Term Rep. 188. The action was trespass oa the case, for an injury done by the incautious and negli[72]*72gent steering and direction of the defendant’s ship, whereby she sailed against, and struck, the ship of the plaintiffs. The plaintiffs haying obtained a verdict, the defendants moved in arrest of judgment, on the ground that the action was misconceived. The rule was discharged, and, in my opinion, with perfect correctness. It did not appear that the injury was the personal act of the defendants, or that they were on board the ship at the time ; and although it is said, they had the care, direction, and management of the vessel, this might be through the medium of other persons in their employ. Leame v. Bray, 3 East, 600. Michel v. Alestree, 2 Levinz, 172. Brucker v. Fromont, 6 Term Rep. 659. As was said in Howard v. Banks, 2 Burr. 1113. “The plaintiffs describe in their declaration, a fact, which, as it comes out at the trial, may, or may not be proved either to be trespass or case ; either the one or the other of them, according to the evidence. And it appears, that it was here proved, at the trial, to be trespass on the case. If it had been proved to be trespass vi et armis, the plaintiffs must, in that event, have been non-suited.” The same observations are equally applicable to Turner v. Hawkins, 1 Bos. & Pul. 472. In the case of Ogle & al. v. Barnes & al., Grose, J. observes, “ that every presumption is to be made in favour of the verdict ; at least, nothing is to be presumed against it.” And on the same principle, Lawrence, J. says ; “ The negligent and imprudent management of the defendants’ ship, does not imply, that any act was done by them : after having been guilty of the negligence which led to the mischief, they may have done every thing in their power to avoid the mischief; and then the running against the plaintiffs'’ vessel, may have been owing to the wind and tide. If it had appeared in evidence in this case, that the defendants had wilfully done the act, the plaintiffs must have been nonsuited.” So, in the case before us, had the plaintiffs obtained a verdict, on motion in arrest, it ought to be presumed, that the agency of the defendant was not personal, but through the medium of a servant; or, that the stroke given, resulted from the uncontrollable impulse of natural causes.
It has been said, that if the injury were attributable to negligence, though it were immediate, the party injured has an election either to treat the negligence of the defendant as the cause of action, and to declare in case ; or to consider the act itself as an injury, and to declare in trespass. This, as a gene[73]*73ral principle, although it was asserted in the preceding words, by Mr. Chitty, in the first edition of his treatise on Pleading, (page 127.) is manifestly incorrect. In the late edition of the celebrated work alluded to, the author has modified the proposition, and only asserts, that the party injured has sometimes an election. Sir William Blackstone, in Scott v. Shepherd, 2 Bla.Rep. 895. hazarded an observation to the same effect, and referred, in proof of it, to Bourden v. Alloway, 11 Mod. Rep. 180. In that case, Powell, J. said, “ if a man, being imprisoned, should have a special damage, as forfeiting a recognizance, &c. there it must be ease.” If the principle be admitted, it only reaches a case where the injury complained of resulted neither necessarily, nor by any-foreseen probability, from the act of trespass ; but was altogether subsequent, collateral, and consequential. So, a person rftay maintain trespass against another, who entered his house, and debauched his daughter; or he may waive the injury done to his dwelling, and sue in case, for the injury done to the daughter only. Bennet v. Olcott, 2 Term Rep. 167. And in an earlier case, it was determined, that the master of a ship, laden with corn, and ready to sail for Dantzick, which ship the defendant seized, might bring trespass on his possession, as a bailiff of goods, may, or case for his own loss in particular, arising from the obstruction of his voyage. Pitts v. Gaince & Foresight, 1 Salk. 10. But these cases proceed on the distinct injuries embraced in them, and lend no support to the proposition, that an action on the case is sustainable for the direct or probable consequences of a trespass. I am well aware, a decision has been made by a judiciary, for whose opinions I have the highest deference, in opposition to the one which I have expressed. Blin v. Campbell, 14 Johns. Rep. 432. This case appears to have been submitted without argument, and to be founded on the erroneous proposition of Chilly, (page 127.) which he has since corrected. Vide Fetter v. Beale, 1 Salk. 11. e contra of Blin v. Campbell.
There exists no question, if the act from which the injury, resulted, was in the nature of trespass, that consequential damages, if shewn with particularity, may be recovered ; although they are more remotely consequential from the act,than any matter which the plaintiff’s declaration discloses. 1 Chitty, 386. Hence, the principle contended for by the plaintiffs, is unnecessaay ; and would authorize the manifest in[74]*74convenience of severing a cause of action, and producing multiplicity of suit.
In this opinion Peters and Brainard, Js. concurred; the latter, with some hesitation.
Chapman, J.
The only question, in this case, is, whether from the facts admitted, an action of trespass on the case, Can be supported, or whether trespass only will lie.
If decided cases are to govern in the decision of this case, it seems to me, that there can hardly be a doubt hut that the former is the appropriate action. An examination of the cases cited, and relied on, by the plaintiffs, will evince this.
In the case of Ogle & al. v. Barnes & al. 8 Term Rep. 188. it is alleged in the declaration, “that through negligence, &c* the defendants, with great violence and force, sailed against, and ran foul of, the plaintiffs’ ship and all the judges concurred in saying, that case was the proper action.
The case of Turner & al. v. Hawkins & al. in error, 1 Bos. & Pull. 472. is, if possible, stronger in favour of the plaintiffs. It is there statéd, “ that the defendants wrongfully, unlawfully -and injuriously, drove their cattle, with great force and violence,'1'1 he.-, and yet, as the injury was caused by the negligence of the defendants, it was held, that case would lie ; the -Chief Justice remarking, “ that it was fair to infer, that it was not intended to charge the defendants with wilfully driving” he.
The case of Savignac v. Roome, 6 Term Rep. 125. is not opposed to the cases cited above. In that case, it is alleged, “ that the defendant wilfully drove his horses upon and against the chaise of the plaintiff.” Where the injury is caused by force, and done wilfully,-trespass is the appropriate action. In this respect the decisions are uniform; but where negligence is the ground of action, though the injury is the effect of force, case is, in general, the proper action. In the case of Leame v Bray, 3 East 593. 603. Le Blanc, J. remarks, “ It is chiefly in actions for running down vessels at sea, that difficulties may occur, because certainly the force, which occasions the injury, is not so immediate '■ from the act of the person steering.” ■“ The immediate agents of the force are the wind and waves-, and the personal act of the party rather consists in putting the vessel in the way to be so acted upon.”
[75]*75It is admitted, that there are cases, where the will need not concur with the act, to lay a foundation for an action of tres* pass ; as wounding a person, by shooting at butts, driving a carriage on the wrong side of the way, <ke., which are cases found in the hooks. But in those cases, the act done is considered the personal act of the defendant. But I believe no case can be found, in any book, where it has been adjudged, that case was not the proper action, where an injury was done, by one vessel’s running against another, through negligence. It is, emphatically, the appropriate remedy.
What, then, is this case? The defendant, through carelessness, ran his vessel against that of the plaintiffs. What is the evidence to support this allegation ? Why, that this was done by injudiciously luffing. Suppose it had been done, by injudiciously bearing away, carrying too much sail, or too little, or any other injudicious act.
But the great objection, here, is, that the injury was the effect of force. Was it not in all the cases before cited? Indeed, were one vessel to run foul of another, in so gentle a manner, as to do no injury, it would be difficult to conceive how any action would lie. The injury is always the effect of force ; but then it is the force of the winds and waves ; and the defendant becomes liable in consequence of his misconduct ; if wilful, in trespass,—if negligent, in case.
I am confident, that in relation to injuries done by one vessel to another, the proposition last laid down will be supported, by every adjudged case, both in England and in the United States. I think, therefore, that there ought to be ⅜. new trial.
Bristol, J. was of the same opinion.
New trial not to be granted,.