Page images

3. Where a right of action is vested, transferred from a state court to

and an action commeneed, nothing the circuit court. 3 Lallas, 107.
ean deprive the plaintiff of his
right to recover, except some act
done by himself in relation to that ACTION ON THE CASE.

right. Ibid. 4. if the defendant in his plea, aver, I. Case and trespass, distinction bethat prior to the suing out of the

treen. writ, he settled the debt of the plain- II. Who may maintain an action on tiff, it is suficient as to time; for

the case. the suing out of the writ, is the III. For consequential damages by necommencement of the suit. Bird, glect, fc. Savage and others v. Caritat. 2 IV. Crim. Con. Seduction, 8c. Johns. Rep. 342.

V. Lecéit. 5. The suing out of the writ is the VI. For malicious suits and proseru

commencement of the action, and tions, and othur malicious injuries. the cause of action must be stated, VII. For uusarices, and keeping misin the declaration to have arisen chievous animals. prior to the commencement of the suit. Cheetham y. Lecis. 3 Johns. I. Case and trespass, distinction between.

Rep. 42. 6. An action cannot be maintained, 1. Trespass is for an immediate

in this state, on a judgment recov- wrong-case for a consequential ered in another state, in an action damage. Scott v. Sheplerd. 3 Burr. commenced by an attaehment of 1 103. 2 BI, 892. goods, without any personal sum- 2. Trespass and not case lies for enmons, or actual notice to the defend- croaching on a lead mine, thouch ant; and who was, at the time of the plaintill has not property in the issuing the attachment, a resident soil above the mine, but only a lib. in this state. Kilburn v. Wood- erty of digging. Harker v. Birckeworth, 5 Johns. Rep. 37.

beck. 1 Blackst. 82. 3 Burr. 1336.

3. Causing water to overflow anothI. Cause of ; when it accrues. i er Inan's fishery or land, though by

an act on the party's own soil, is a 1. When the defendant had agreed trespass. Courtney v. Collett. 1 1.

to remove his goods from a store, in Raym. 272, (see Hauard v. Banks. May, 1803, but neglected to do so, in 2 Burr. 1114.) consequence of which, the plaintiff, 4. Case lies for breaking the fence in 1806, was obliged to pay dam- of a third person, by which my catages to the person to whom he had tle escape into his land, and are sold the store; it was held, that the distrained. Ibid. cause of action accrued, when the 5. When the act is lawfal, (as the defendant neglected to remove the entering a yard by him who has a goods, in 1803, and not when the right to go there, and the fixing a plaintiff' was obliged to pay damag- spout there, but the consequence is es, in 1806. M'Kerras v. Gardner. injurious, the reinedy is by case, and 3 Johns. Rep. 137.

not trespass. Reynolds v. Clarke.

1 Str. 631. 2 L. Rayjan. 1399. III. Removal of

6. Either case or trespass will lie

for wrongfully entering and seizing 1. Delt by a state against an Alien, plaintiff's ship, of which he was

on a forfeited recognizance to be of master, and by which he lost his good behaviour, &c. is a suit of a voyage.

Gaire & Fires criminal nature, and cannot be sight. 1 Sal. 10. 1 L. Raym. 558.

Childs & Sails. 1 Salk. 31.

[ocr errors]

Pitts v.


7. To support an action on the case, under a larger sum. Otherwise, if

there must be damnum cum injuria. the owner had directed the anction

Winsmerev. Greenbank. Willes, 577. eer to set the horse up at such a 8. If a man undertake for a valuable particular price, and not lower.

consideration to do what is impossi- Bexuell v. Christie. 3 Cowper, 395. ble, an action will lie against him 18. In actions on the case, satisfacfor nonperformance. Thornborów tion made to the plaintiff pending

v. Whitacre. 2 L. Raynı. 1164. the suit will take away the remedy. 9. Action for mesne profits (including Bird and Randal. 1 Black. 388.

the costs of the ejectment) brought 19. Case for disturbing him in the exin the name of the lessee against the ercise of the office of parish-clerk, tenant in possession, after judgment good. Lee v. Drake. *2 Salk. 468. by default, held to be inaintainable. 20. Actions of debt on judgment, not issin v Parkin. 2 Burr. 663.

to be favoured. Biddleson of Whi10. And against the bank, &c. for re- tell. 1 Blackstone, 507.

fusing to transfer stock. Rer v. 21. Actions trifling discouraged by the The Bank of England. 2 Douglas, court. Anon. Black. 207. 52+ to 327.

22. Case lies where the plaintiff had 11. Case in nature of waste, will lie a possession without any property.

against tenant for years after the Keeble v. Hickeringhall. 3 Salk. 9. expiration of his term, as well as 23. Where the injury is committed by covenant for the breach of those the immediate act complained of, contained in his lease. Einlyside the action must be trespass ; where

and Thornton. 2 black. 1111. the injury is consequential upon that 12. By the lord of the manor, for a act, case is the proper remedy. Day upon

the admission of an infant v. Edwards. 5 Term Rep. 648. Scicopy-holder, when he comes of age, vignac v. Roome. 6 Terin Rep. 125. good. Evelyn v. Chichester. 3 Bur- Leame v. Bray. 3 East, 593. rows, 1719.

24. The true criterion is, whether or 13. Action on the case for money had not the injury were received by

and received to the plaintiff's use, force : if it were, the action must ought to be brought against the prin- be trespass. It is immaterial whethcipal, not against a receiver or col. er it were wilful or not. 3 East, lector. Sadler v. Evans. 4 Burr. 599. 1985.

23. If I put in motion a dangerous 14 Action on the case lies not a- thing; as, if I let loose a dangergainst the captor for imprisonment dus animal, and mischief ensue,

I in consequence of a capture as am answerable in trespass, though prize, although the captured ship the case of Scott v. Shepherd (that has been acquitted. Le Caux v. of throwing the squib) goes to the

Eden. 2 Douglas, 594 to 613. limit of the law. 3 East, 598. 15. Nor for goods taken on shore as 26. For false imprisonment the dis

prize by the joint opperation of a tinction between case and trespass Heet and army. Lindo v. Rodney. is this ; where the immediate act of 2 Douglas, 613 n. to 620 n.

imprisonment proceeds from the de16. Nor for seducing a servant who fendant, the action can only be tres.

had paid the penalty stipulated by pass : but where the act of imprishis articles for leaving his master. onment by one person is in conseBird v. Randall. 3 Burr. 1345. 1 quence of information from another, Black. Rep. 373, 387.

there an action on the case is the 17. Nor against an anctioneer for sell- proper remedy. Morgan v. Tughes.

ing a borse at the highest price bid 2 Term Rep. 232. [And see Stonefor him, contrary to the owner's ex- house v. Elliot. 6 Term Rep. 315.] press directions not to let him go

37. A plaintiff cannot declare in an 33. And if such act be done wilfully action on the case, that the defend- by the servant without the assent of ant so furiously drove his cart, that the master, neither trespass, nor it by his improper conduct it was driv- should seem, any other action, will en with great force against the lie against the master. M'Manus plaintiff's carriage, per quod, the v. Crickett. 1 East, 106. loss happened; his remedy is tres. 34. It is difficult to put a case where pass vi & armis. Day v. Edwards. the master can be considered as a 5 Terin Rep. 648.

trespasser for an aet of his servant, 28. A declared in case against B, for not done by his command. 2 H.

sinking his boat, and after averring Black. 143. a non-feasance in B, as the cause, 35. In an action for negligently drivstated him to have acted with great ing a cart against the plaintiff's force and vidence in accomplishing carriage, it may be stated in the dethe injury; A recovered ; and on claration as the act of the master, error brought because the action though in fact it be the act of the should have been trespass, not case,

servant. Brucker v. Fromont. 6 and because the two actions were Terin Rep. 659. mixed, the Court of Exchequer 36. An action of trespass will not lie Chamber referred the two conclud- for a consequential injury. 1 Mass. ing expressions to the non-feasance 145. first stated, and held the delaration sufficient to support the judgment. II. Who may maintain action on the Turner & al. v. Hawkins q ah in

case. Cam. Scac. 1 Bos. ** Pull. 472. 29. An action on the case stating that 1. A termor of a house, if he shews

the defendant's servant wilfully that he has a residuary interest after drove against the plaintiff's car- the expiration of a lease to an under riage whereby it was damaged, can- lessee, may have an action on the not be supported : it should bave ease against such under lessee for been trespass. Savignac v. Roome. negligently keeping his fire, by 6 Term Rep. 125, and Tripe v. Pot- which the house was hunrt. Hicks ter. 6 Term Rep. 128, n.

v. Downling: 1 Salk. 13.

1 L. 30. Where one accidentally drove his Raym. 99.

earriage against another's, the rein. Otherwise, where the whole term is edy is trespass and not case ; the in- assigned, or under leased. Wheeljury being immediate from the act er v. Baker. 3 Salk. 10. done ; though he were no otherwise 2. Lessor seized in fce has no such blameable than by driving on the action against a tenant at will, since wrong side of the road in a dark he might have secured himself by

night. Leame v. Bray. 3 East, 593. covenant. Pantam v. Ishan. 4 31. If A wilfully run his vessel against Salk. 19.

B's, and damage ensue, B may 3. Where the inhabitants of a certain bring trespass ; but if I so negli vill have a prescriptive right to gently steer his vessel that it runs cross a ferry, toll-free, and all the foul of B's, then ease is the proper king's subjeets have a right to pass action. Ogle goal. v. Barnes fal. the same, paying toll ; one of the 8 Term Rep. 188.

above inhabitants may maintain an 32. Case and not trespass is the proper action against the ferryman for tak

remedy for an injury done to the ing toll, but not for not keeping up plaintiff's earriage by the servant of the ferry. Payne v. Partridge. i the defendant negligently driving Salk. 12. his carriage against it. Morley v. 4. Reversioner may bring an action Gainsford. 2 H. Black. 442. for an injury done to the inheritance.

Jesser v. Gifford. 4 Burr. 214.

5. Trespass on the case lies by a bance of his right : his remedy is

master for seducing his journeyman. for the penalty given by the statute.

Hart v. Aldridge. Cowper, 54. Almy v. Harris. 5 Johns. Rep. 175. 6. But action by a master for beating

his servant; or by a father for beat. II. Consequential damages by neglect, ing his child; will not lie, unless it

&c. be added—“per quod survitium amisit." Postlethwnite v. Parkes. 1. An action on the case does not lie 3 Burrow's, 1879.

at the suit of the College of Physi7. For when brought by a father, for cians against an apothecary for ad

assaulting his daughter, being 23 ministering medicine without a liyears old, and then in the service of cence, though he is thereby practisanother person ; and getting her ing physic. Physicians (College of) with child; “ per quod, The FA- v. Rose. 3 Salk. 17. THER, servitum amisit.And the 2. Action on the case does not lie afaet proved was, that she was got- gainst postmasters general for loss ten with child by the defendant dur- of bills enclosed in a letter. Lane ing her service abroad ; and becom- v. Cotton.

1 Salk. 17.

1 L. Raying unable to perforın it, was dis- mond, 616. charged by her master; and was 3. Action on the case lies against rereceived by her father, out of neces- turning officer for refusing to persity; and lodged, boarded, and mit a free burgess to vote. Isiiby maintained by him in his own house, v. White. 2 L. Kaymond, 938. i both before and after her lying-in; Salk. 19. it was holden, that the father could 4. An action lies against a farrier for

not maintain the action. Ibid. refusing to shoe a horse when he 8. Case lies by an administrator a- has time. Lane v. Cotton. :( 1 L.

gainst the bailiff of a liberty for ex- Raym. 65+, q. Obit. Diet. ecuting a fi: fa: and removing the 5. A sheriff is liable to an action for goods off the premises before the taking insufficient bail. Ethericke landlord was paid a year's rent. v. Cooper. 1 L. Raymond, 425. 1 Palgrave v. Windlam. 1 Str. Rep. Salk. 99. 212.

6. Action lies against an attorney for 9. An executor, as such, may have neglecting to charge a person in exan action of tort for an injury done

ecution at the suit of the plaintiff, to the personal estate of his testator according to a rule of court, alin the testator's life-time. Williams though it appears to be rather want

v. Grey. 1 L. Raym. 40. 1 Salk. 12. of judgment than negligence. Rus10. A consignor may maintain an ac- sel v. Palmer. 2 Wils. 325.

tion against a carrier, after consign- % Action lies against surgeon and ment, upon his agreement. Davis apothecary for want of skill, in disv. James. 5 Burr. 2680.

uniting the callus of plaintiff's leg, 11. An alien enemy may maintain an after it was set. Slater v. Baker

action upon a ransom bill. Ricord and Stapleton. 2 Wils. 359.

v. Bettenham. 3 Burrows, 1741. 8. Action on the case lies a rainst a 12. An action on the case will not lie deputy postmaster for not delivering

against a sheriff who serves an ex- letters. Roroning vi Goodchild. 3 ecution after it has expired; it

Wils. 443. 2 Blackst. 906. should be trespass. Vail v. Lewis 9., Action lies against the commis

& Livingston. 4 Johns. Rep. 450. sioners under a paving act for rais13. A person having a right to a ing the street, thereby injuring plain

ferry, granted under the act to reg. tiff's houses. Leaders v. Mortoni. ulate ferries, cannot maintain an 3 Burr. 461. 2 Blackst. 924. 3 action on the case for the distur- Wils. 461.

10. Case lies equally against carrier pasture the residue of the grass,

or wharfinger, for negligence in lest they should hurt the tithes. their trust, by which goods are stol- Shapcott v. Mugford. 1 L. Rayen or lost. Ross v. Johnson f. Dow: mond, 187. And Butler v. Heathby. som. 5 Burr. 2825.

3 Burr. 1891. 11. I'a man undertakes to carry goods 18. Case for suffering a fence between

safely and securely, he is responsi- the plaintiit's and defendant's close ble for any damage they may sus- to be out of repair, per quod defendtain in the carriage through his ne- ant's cattle entered plaintiff's close, glect, though he was not a common &c. Where a charge against comcarrier, and was to have nothing for mon right is laid on owners of the the earriage. Coggs v. Barnard, soil, plaintiff must nake a title; 2 L. Raymond, 909.

1 Salk. 26,

and a prescription is sufficient.. 522. 3 Salk. 11, 268.

Prescription in tenentes and occupa12. Action upon the case for an es- tores is well, Star v. Rookesby.

cape upon mesne process, lies al- 1 Salk. 336. though the prisoner returns to the 19. Case for not repairing the partiFleet the same day, and this after tion wall of defendant's privy, pro plaintiff has proceeded to final judg: defectu, of which the filth ran into ment against prisoner. Ravenscroft the plaintiff's cellar. Gist. v. Eyles, Esg. Warden of the Fleet. Where the charge is upon the defend2 Wils. 294.

ant of common right, the plaintiff 13. Case lies against a sheriff for let- need not prescribe in his declara

ting a man arrested on an excommu- tion. Tenant v. Golding. 1 Salk. nicato capiendo, escape. Slipper v. 24. 360. 2 L. Raynonil, 1089.

Minson. 2 L. Raymond, 788. 20. Case against a corporation for not 14. Action upon the case lies for the repairing a creek, into which the

escape of an outlaw. Cooke, qui tide of the sea fiewed and reflowed

tam v. Champneys. 2 Str. 901. (but not saying it was a navigable 15. Case on the custom of the realm river) as from time immemorial they

lies against a man for damage done had been used, the action lies, by a fire he has lighted in his field, though no special damage be stated. ünless such dainage was occasioned And saying " as from time immemoby the act of God. Turberville v. rial they had been usedis well eStampe. 1 L. Kaymond, 264. 1 nough, without alledging that they Salk. 13.

were bound, &c. ratione tenuræ, or 16. Lies for a shipwright, for work other special cause. Lynn (Mayor)

and labour done, and materials de- v. Turner. Corcper, 86. livered, in repairing a ship; thougl 21. An action on the case will not lie the ship was burnt in the dock, by against a party suing out a writ, a fire communicated from land, just for neglecting to countermand it af before the repairs were completed. ter payment of the debt, by means The dock belonged to the ship- whereof plaintiff was arrested ; at wright; but the owner of the ship least unless malice be averred. had agreed to pay him 5. for the Scheibel v. Fairbain & al. 1 Bos. use of it. Menetone v. Athawes. & Pull. 388. 3 Burrows, 1592.

22. Nor even though the costs were 17. Case lies against the proprietor of paid as well as the debt. Page

tithes for not taking them away, Wiple. 3 East, 314. And the plaintiff may declare with a 23. And if in such a case it were in.

per quod, the grass did not grow cumbent on the party suing out the where the tithes lay, and he could writto countermand the arrest, not put his cattle into the close to de- what is a reasouable time for doing 3 so, is a question of law.

1 Bos. So


« PreviousContinue »