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VVatson against Norbury

21 Car. Banc. reg.

Mich. 20 Car. rot. 156.

VVAtson brought an Action upon the case against Norbury, for procuring a Commission of Bankrupt against him, by virtue whereof he broke open his Shop, and took away his goods and Shop∣books, whereby he was so discreited that he lost his trade, to his damage, &c. To this the Defendant pleads, that the Plaintiff did heretofore bring his Action of trespass for the breaking open of his Shop, and for the taking away of his goods, and had in that Action recovered dama∣ges against him, and demands if he shall not be thereby barred in this Act∣ion; And that he should be barred the Defendants Councell alleged, that a recovery in one personal Action is a bar in all personal Actions touching the same thing, and that here the Action of trespass formerly brought, and the Action of the case now brought were personal Actions, and that they were both brought for the same thing, and therefore the Plaintiff ought to be barred; It was also urged that an Action of the case lies not in this case, for that, to ground an Action upon the case, there must appear to be malice in the party that did the fact, and prejudice to the party to whom the fact is done, but there appears no malice here, for what was done is said to be done, by virtue of a Commission of Bankrupt which shall be intended a lawfull authority to warrant the fact, and not grounded upon malice, so that malice and prejudice do not both appear, but only damage, and that alone will not support this Action, for neither for damage alone without malice, nor for malice without damage will an Action upon the case lie. But to this it was answered (to which the Court enelined) That this Action upon the case was not brought for the same cause that the Action of trespass was formerly brought, for that was only for the breaking open of the Shop, and taking away his goods, and the damages he received thereby, but this Action is brought for the damage he sustained, by the losse of his credit, and hindrance in his trade thereby, caused by the Defendants taking out a Commission of Bankrupt against him, and by colour thereof breaking open his Shop and taking away his goods, and so disparaging him in his reputation, whereby he lost his trade; and though the breaking open of his Shop, and the taking a∣way his goods be named in this Action, as it was in the former Action of trespass, yet it is but by way of Inducement to this Action upon his case, and not to recover damages for that wrong, and here being two severall wrongs done to the Plaintiff which do not one depend upon another, the Plaintiff must bring two severall Actions for them, and not joyn them in one Action, because the damages must be several which are to be recovered, but if they had depended one upon a∣nother he might have joyned them in one Action, and recovered joynt dammages for both: and besides these two Actions differ in their nature one from the other, and the judgements given in them are several, for the Iudgement in an Action of Trespass vi et Armis, as the first Action was, is Capiatur, because there is thereupon a fine due to the King, but the Iudgement in an Action upon the case is ideo in misericordia, and so

though the Plaintiff have Iudgement here in his Action upon the case, it cannot be said he hath had Iudgement already; for that must beintended, at least a Iudgement of the same nature, which cannot be in this case. And to that which is objected, that if the Plaintiff should recover damages in this Action, he should recover damages twice for one and the same thing which is against Law; it is answered, that it is not for the same thing but cleerly for another, and if he should not have this Action he were with∣out remedy for the damage he suffred in the losse of his Credit, and the damage in his Trade; for in the former Action he recovered no damages for that, for the Iury never took that into their consideration, for they had no power to take any damages into their consideration which hap∣pened after the Trespass done, for which the Action was brought, but only for the breaking open of the Shop, and the taking away of his Goods; and although he might at the first have brought his Action upon the case as he hath now done, yet he was not commpellable thereto, but had his Electi∣on to bring either an Action upon his case, or an Action of Trespass as should most make for his advantage, for this Election of Action belongs to every subject as his birth right, and he is not to be hindred from it. Adjournatur.

Notes

• Action upon the case.
• Inducement.
• Actions seve∣rall.
• Ioynt Acti∣ons.
• Ioynt dama∣ges.
• Election of Actions