37. In an action against three, wherein the plaintiff declared that they had the loading of a hogshead of the plaintiff's, for a certain reward to be paid to one of them, and a certain other reward to the other two, and that the defendants so negligently conducted themselves in the loading, &c. that the hogshead was damaged held that the gist of the action was the tort, and not the contract out of which it arose ; and therefore that en a plea of not guilty, the two being acquitted, judgment might be had against the third, who was found guilty. Gorett v. Radnidge and others. 3 East,

62.

38. In estimating the measure of damages in an action for breach of an engagement to replace stock on a given day, it is not enough to take the value of the stock on that day if it have arisen in the mean time, but the highest value as it stood at the time of the trial; there being no offer of the defendant to replace it in the intermediate time while the market was rising. Shepherd v. Johnson. 2 East, 211.

39. A canal act provided that the canal company should not be entitled, on purchasing lands for making a eanal, to any coal mines, &c. under the same; but that such mines should belong to the same persons as would have been entitled to them if the aet had not been made: but it required the owners to give notice to the company of their intention to work their mines within ten yards of the canal: and that the company might inspect the mines,

and might stop the further working of them, paying; compensation to the owners; held that the right of the owners to work within the ten yards was left as before the act, if after notice given by them to the company the latter did not purchase out their rights and that the canal being damaged by the nearer approach of the mine after such notice and non-purchase, no action lay against the coal-owner for such injury, which happened by the default of the company in not purchasing. The company of proprietors of the Wyrley and Essington Canal Navigation v. Bradley and others. 7 East,

368.

40. Aliter, where the canal act provided that in working such mines no injury should be done to the canal. Birmingham Canal Company v. Hawesford, cited. Ibid.

41. And aliter, where the house of one claiming under a grant from the owner of the soil was undermined by him. Earl of Lonsdale's case cited. Ibid.

42. An action on the case lies against a surgeon for gross ignoranee and want of skill in his profession, as well as for negligence and carelessness, to the detriment of a patient; though if the evidence be of negligence only; which was properly left to the jury, and negatived by them; the court will not grant a new trial, because the jury were direeted that want of skill alone would not sustain the action. Seare v. Prentice. 8 East, 348.

43. If a man place dangerous traps baited with flesh, in his own ground, so near to a high way, or to the premises of another, that dogs passing along the highway, or kept in his neighbor's premises, must probably be attracted by their instinct into the traps; and in consequence of such act his neighbor's dogs be so attracted, and thereby injured, an action on the case lies. Townsend v. Wathen. 9 East, 277. 44. In an action on the case against

the sheriff for negligent and wrongful conduct in conducting the sale of the plaintiff's goods under a writ of fieri facias, by which they were sold much under value, where, in stating the substance of the writ, the count alledged that the sheriff was commanded to levy 80s. awarded to J. C. for his damages sustained by occasion of the detaining the debt; that is proved by the writ which stated that the 80s. were awarded to J. C. for his damages sustained as well by reason of detaining the debt, as for his costs, &c; for costs are in legal sense included in the word damages. Phillips v. Bacon. 9 East, 298.

45. A sheriff having an execution in his hands, and the return day being passed, the creditor's attorney writes to him, presuming him to have the money, and requests him to send it by mail. At that time the sheriff had not received the money. Several months after, he received it and put it into the post office, directed to plaintiff's attorney, to whom it was never delivered. In an action against the sheriff, it was held, that the money so sent, was sent at his own risk; although if he had sent it on receiving the attorney's letter, it would have been sent at the risk of the creditor. Wakefield v. Lithgow. 3 Mass. 249.

46. A banking company, incorporated with the privilege of creating a stock, not less than one sum, nor greater than another sum, commence business with the smaller capital; and afterwards vote to increase it to the largest. Those who held the stock in the capital first raised, have a right to subscribe for, and hold the new stock in proportion to their respective shares. If the corporation, or their officers, refuse to permit a stockholder so to subscribe, he may have his special action on the case against the corporation for such refusal, and in such action, the excess of the market value above the par value of the number

of shares he was entitled to, will be the measure of damages. Gray v. Portland Bank. 3 Mass. 364. 47. An officer cannot attach the estate of a defendant on mesne process, after having arrested his body on the same writ; and if in such case, he returns only the attachment of the estate, he is liable to an action for a false return; and such action lies for a third person, who had caused the same estate to be afterwards attached at his suit. Brinley v.

Allen. 3 Mass. 561.

48. An action of trespass on the case will lie against a corporation aggregate, for neglect of a corporate duty, by which the plantiff has suffered. Riddle v. Proprietors of the Locks and Canals on Merrimack river. 7 Mass. 169.

49. In an action against the proprietors of a canal, who were bound by their incorporation to construct their canal so deep, and wide, that rafts of a certain description could pass through it, when the same could pass the river with which it was connected, it was held that they were liable to the owner of a raft of such description, having received toll therefor, for all the damages he sustained in consequence of the canal not being sufficient to pass the raft, without evidence that it could pass the river. Riddle v. Proprietor of the Locks and Canals on Merrimack river. 7 Mass. 169.

50. The form of action cannot be objected to, on a motion for a new trial. Smith v. Elder. 3 Johns. Rep,

105.

51. An action of trespass on the case lies against a person, for putting on board of a vessel of the plaintiff, (being an American vessel, bound from New-York, to Greenock, in Scotland,) certain goods, which, by the laws of Great-Britain, are prohibited to be imported into that country, in consequence of which the vessel was seized, and the plaintiff was compelled to pay a large sum of money to obtain her release, Ibid.

52. No action lies against a plaintiff or his attorney for not countermanding an execution after the return day. Vail v. Lewis & Livingston. 4 Johns. Rep. 450.

53. Where A. and B. were joint owners of a vessel, and A. voluntarily undertook to get the vessel insured, but neglected to do so, and the vessel was lost; it was held, that no action would lie against A. for the non performance of his promise, though B. sustained a damage by the non-feasance; there being no consideration for the promise. Thorne v. Deas. 4 Johns. Rep. 84. 54. But a factor or commercial agent, who is entitled to a commission, will be liable for not executing an order to insure. Ibid.

1. In an action for criminal conversation there must be evidence of the actual fact of marriage. Morris v. Miller. 4 Burr. 2057. 1 Black. 632. 2. In an action on the case for enticing away the plaintiff's wife, it is sufficient to state, that "the defendant unlawfully and unjustly persuaded, procured, and enticed the wife to continue absent, &c. by means of which persuasion she did continue absent, &c. whereby the plaintiff lost the comfort and society of his wife" without setting forth the means used by the defendant. Winsmore v. Greenbank. Willes 577. 3. No action for crim. com. can be brought for any act of adultery af

ter a separation between husband and wife. Weedon v. Timbrell. Term Rep. 357.

5

But where husband and wife entered into a deed with trustees, whereby the husband covenanted with the trustees that they should apply certain annuities to the sepa rate use of the wife in case she should live apart from him, with the approbation of the trustees; and he also covenanted, in case of future differences, to permit the wife to live separate from him, if she should on that account find it necessary; and the deed also contained a clause, that in case of separtion with the approbation of the trustees, certain of the children should live with and be educated by the wife for a certain period, and that she might visit the others at his house, especially when ill, so as to require the attention of a mother: held, that such a deed did not preclude the husband from maintaining an action for adultery committed while the wife was in fact living apart from him, whether the separation were with or without the approbation of the trustees, the case not being within the principle of Weedon v. Timbrell, even allowing that to be law to the extent of the case there decided. Chambers v. Caulfield. 6 East,

214.

An action on the case for debauching and getting with child the plaintiff's daughter and servant, per quod servitium amisit, is not maintained by evidence that the daughter, though under age, was living in another person's family in the capacity of a housekeeper, and had no intention at the time of the seduction to return to her father's house, though she afterwards did return there while within age, in consequence of the seduction, and was maintained by her father. Dean v. Peel. 5 East, 45.

No such action is maintainable unless laid with a per quod servitium amisit, where it does not ap

7. But though the daughter be of age, yet the action is maintainablè if she be living with her father. Booth v. Charlton, at Lancaster, in 1789, cor. Wilson, J. 5 East, 47.

8.

Or absent on a visit with his consent, with the intention of returning. Johnson v. M'Adam. Ibid. ibid. And see Bennett v. Allcott. Trespass I.

9. No action lies for a single woman against one for seducing her, and getting her with child, under pretence of a design to marry her, no promise of marriage being alleged. Paul v. Frazier. 3 Mass. 71. 10. One permitting his wife's mother to reside in his house, and affording her the rights of hospitality, although forbidden by the husband of the mother, is not liable to the action of the husband for illegally harbouring his wife. Turner v. Estes. 3 Mass. 317.

11. An action on the ease will lie by a husband against the father of his wife, for enticing her away, &c. ; but much stronger evidence of malicious and improper motives is required, than in an action against a stranger; the presumption of law being in favour of the father, that he was actuated in his conduct, in taking his daughter from her husband's house, by parental affection. Hutcheson v. Peck. 5 Johns. Rep.

196.

V. Deceit.

1. An action on the case will lie against the seller of an estate, for affirming, whilst the treaty is going on, that the rents are more than they really are, if the buyer has been induced to rely on such false statement. Lysney v. Selby. 2 L. Raymond, 1118.

2. If the purchaser of a horse, warranted to be of a certain age, discover that he is of a greater age,

and offer him to the seller, who refuses to take him back, he may sell the horse to any third person, and then maintain an action against the seller on the warranty. Buchanan v. Parnshaw. 2 Term Rep. 745. 3. A false affirmation, made by the defendant with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action upou the case in the nature of deceit. Pasley v. Freeman. 3 Term Rep. 51.

4. In such an action it is not necessary that the defendant should be benefitted by the deceit, or that he should collude with the person who is. 3 Term Rep. 51.

5.

The defendant having had a eredit lodged with him by a foreign house in favour of one W. T. to a certain amount, upon an express stipulation that W. T. should previously lodge in his hands goods to treble the amount; and being applied to by the plaintiffs for information respecting the responsibility of W. T. answered that he knew nothing of W. T. himself, but what he had learned from his correspondent; but that he had a credit lodeed with him for so much by a respectable house at H. which he held at W. T.'s disposal, (omitting the condition) and that upon a view of all the circumstances which had come to his (the defendant's) knowledge, the plaintiffs might execute W. T.'s order with safety; viz. an order for the sale and delivery of goods on credit. In an action on the case to recover damages incurred bythe plaintiffs in consequence of having trusted W. T. on this representation; held, that there was a material suppression of the truth, and evidence sufficient for the jury to find fraud, which is the gist of the action; although the defendant had no immemediate interest in making the false representation; and though at the time when it was made, he added, that he gave the advice without prejudice to himself. Eyre v. Dunsford.

1 East 318.