¶1The former action of trespass, for the same injury, was clearly an action for an assault and battery, of which the justice had no jurisdiction. It was a proceeding coram non judice, and, therefore, void. The justice did right in disregarding it as a nullity, although unreversed. The only question then is, whether this action of trespass on the case is not liable to the same objection of want of jurisdiction. ( From the authorities on the subject, it appears, that if the injury 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 the injury, and to declare in trespass. (1 Chilly Plead. 127., and the cases there cited.) The proof on the trial clearly showed the act to have been unintentional. It is a case of mere negligence ; and, as there is no appearance of undue evasion on the part of the justice to extend his jurisdiction, the judgment ought to be affirmed.
¶2Judgment affirmed.