OF INJU RIES EX who was one of the proprietors of the coach, it was held that he and the other NATURE proprietors might be jointly sued in case (y). If the injury arise from the want of care or negligence of the servant, case is the remedy; but if it oc- DELICTO. curred as the necessary, probable, or natural consequence of the act ordered by the master, then the act is the master's, and he should be sued in trespass (if the act were forcible and immediate). Therefore where a master ordered a servant to lay some rubbish near his neighbor's wall, but that so it might not touch the same, and the servant used ordinary care, but some of the rubbish naturally ran against the wall, it was held that trespass was maintainable against the master (z). may Fom this concise view of the nature of injuries ex delicto, as well as from Summary the following observations on the properties of each particular action, it of the principal be collected that there are four leading points to be attended to in deciding points on what form of action should be adopted. First, the nature of the matter or which the thing affected; secondly, the plaintiff's right thereto; thirdly, the means by tion ex dewhich the injury was effected; and, fourthly, the situation in which the defend- licto may ant stood. form of ac depend. *And, first, the nature of the matter or thing affected; as whether it were [*150] substance or tangible, as the body, personal chattels, and real property corporeal; or not tangible, as health, reputation, and real property incorporeal. In the first instances, as the property might be affected immediately by an injury committed with force, trespass, case, replevin, trover, or detinue, may or may not be sustainable, depending on the other three points, and the particular properties of each action (a); but in the latter instances, an action on the case is in general the only remedy, because the property could not be injured immediately by force. Secondly, The nature of the plaintiff's right to the matter or thing affected; as if the injury were to the person, whether the right were absolute or relative; in the latter instance case being sustainable, however forcible the injury; or if the damage were to personal or real property, whether the right were in severalty or joint-tenancy, or in common, or in possession or reversion; in the last instance neither trespass, trover, replevin, nor detinue could be supported, but only case (b). Thirdly, The means by which the injury was effected; as whether it were a commission or omission; in the latter case, trespass is not in general sustainable (c); or with or without force, actual or implied, for if without force, case is in general the remedy (d); or immediate or consequential; in the latter case, trespass is not sustainable (e); or whether the injury were committed by the defendant himself, or by his agent or servant, or by his cattle or property (f), or under color of a distress for rent, &c. or of the process of a superior or inferior Court. (y) 4 B. & C. 223; 6 D. & R. 275, S. C. (z) 9 B. & C. 591; 4 M. & R. 500, S. C. (a) Replevin lies only for personal property, and not for taking part of the freehold, 4 T. R. 504 (325). (b) 7 T. R. 9. (d) Ante, 143, 144; 3 Campb. 187. which appear to have turned upon the distinction between trespass and case are collected and classed according to their characteristic circumstances, in a note to Huggett v. Montgomery, 2 New Rep. 448.-Day's edit." Note by Mr. Day. (325) { Brown v. Caldwell, 10 Serg. & Rawle, 114. Nor trover, Mather v. Ministers NATURE OF INJU RIES EX Fourthly, The situation or character in which the defendant stood, as whether he were joint-tenant or tenant in common with the plaintiff (g); or whether DELICTO. there were any privity of contract between the plaintiff or defendant, in respect of the latter being tenant or bailee, when in general trespass cannot be [*151] supported (h). Keeping in view these important points, we *proceed to consider the nature and particular applicability of the several actions in form er delicto. 1. ON THE CASE. To per sons absolutely. I. ACTION ON THE CASE. We have before remarked that an action upon the case was a remedy given by the common law, but that it appears to have existed only in a limited form, and to a certain prescribed extent, until the statute of Westminster 2 (i). In its most comprehensive signification it includes assumpsit, as well as an action 'n form ex delicto (k); but at the present time, when an action on the case is mentioned, it is usually understood to mean an action in form ex delicto; and therefore, where a navigation act enacted that the company might sue for calls, &c. by action of debt, or on the case, it was holden that an action on the case in tort lay, though the defendant might thereby be deprived of the benefit of a -set-off (l). Actions on the case are founded on the common law, or upon acts of parliament, and lie generally to recover damages for torts not committed with force, actual or implied; or having been occasioned by force, where the matter affected was not tangible, or the injury was not immediate, but consequential; or where the interest in the property was only in reversion; in all which cases trespass is not sustainable (m). Torts of this nature are, to the absolute or relative rights of persons, or to personal property in possession or reversion, or to real property, corporeal or incorporeal, in possession or reversion. These injuries may be either by nonfeasance, or the omission of some act which the defendant ought to perform; or by misfeasance, being the improper performance of some act which might lawfully be done; or by malfeasance, the doing what the defendant ought not to do; and these respective torts are commonly the performance or omission of some act contrary to the general obligation of the law, or the particular rights or duties of the parties, or of some express or implied contract between them. Case is the proper remedy for an injury to the absolute rights of persons not immediate, but consequential; as for keeping mischievous animals, having [*152] notice of their propensity (n); *or for special damage arising from a public (g) Ante, 90; 2 Saund. 47 g. (h) Post; Bac. Ab. Trespass, B. (k) See Steph. on Pleading, 16. (1) 7 T. R. 36. (m) 4 T. R. 489; 7 T. R. 9. (n) Ante, 94. of Trinity Church, 3 Serg. & Rawle, 509. Nor money had and received for the proceeds of it, if sold by the taker. Baker v. Howell, 6 Serg. & Rawle, 476. } CASE. nuisance (o) (326). But if the injury were immediate, as if the defendant 1. ON THE incited his dog to bite another, or let loose a dangerous animal (p); or if in the act of throwing a log into a public street, it hurt the plaintiff' (q); or if an injury be committed by cattle (r) to land; the action should be trespass. Also, whenever an injury to a person is occasioned by regular process of a Court of competent jurisdiction, though maliciously adopted, case is the proper remedy, and trespass is not sustainable (§); as for a malicious arrest; or for malicious prosecution of a criminal charge before a magistrate or otherwise (t). If the proceeding be malicious and unfounded, though it were instituted by a Court having no jurisdiction, case may be supported, or trespass (u). Formerly it was usual, in these instances, where several persons combined in the prosecution, to proceed by writ of conspiracy, but the action on the case is now the usual remedy (x). If, on the other hand, the proceeding complained of were irregular (327), the remedy in general must be trespass; and therefore, where a justice of the peace maliciously and irregularly granted a warrant against a person for felony, without any information upon oath, it was decided that the remedy against the justice should have been trespass and not case (y) (328); and though case may be supported for maliciously suing out a commission of bankruptcy (≈), or now a fiat, yet an action of trespass is also sustainable for the seizure of goods under the same, because if the plaintiff were not subject to the bankrupt laws, the commissioners had no jurisdiction, in which case trespass is always sustainable, if in other respects the injury were forcible and immediate (a). Case, we have seen, *is also the pro- [*153] per remedy, where the right affected was not tangible, and consequently could not be affected by force, as reputation and health, the injuries to which are always remediable by action on the case; as libels, or verbal slander. It is also the only remedy against sheriff's, justices, especially after convictions quashed (b), or other officers acting ministerially and not judicially (c), for refusing bail (d), or to receive an examination upon the statute of hue and (») Wiles, 71 to 75; and see note to the ] re: dent in case for laying rubbish in a street, post, vol. ii. and 11 East, 60. When not, see 12 East, 432. Injuries arising from keeping mischievous animals, and from public nuisances, also frequently affect personal property; and on the other hand, many of the wrongs hereafter enumerated as affect. ing personal property may also affect persons, as negligence in riding horses and driving carriages, &c. (p) Ante, 94. (q) Ante, 144. (r) Ante, 94, 95. (8) 3 T. R. 185; Boot v. Cooper, 1 T. R. 535; 3 Esp. Rep. 135; 11 East, 297; I (326) So in case, parties may be joined as defendants, who were not present when the act complained of was done, and therefore not liable in trespass. Moreton v. Hardern, 6 Dow!. & Ryl. 275. (327) { See however Moreton v. Hardern, 6 Dowl. and Ryl. 275, and observe the reasos ap on which the form of action was sustained in that case. (328) { Berry Hamill, 12 Serg. & Rawle, 210. } Vide Beaurain ". Sir William Scott, 3 Campb. 388, which was an action on the case against the defendant, a judge of an ecclesiastical court, for excommunicating a party for refusing to obey an order which the court had no authority to make. I. ON THE cry, &c. (e); and case lies against surgeons, agents, &c. for improper treatCASE. ment, or for want of skill or care; though assumpsit is also sustainable (ƒ). To per sons rela tively. To personal proper contract, it is a con current remedy with assumpsit. Actions for injuries to the relative rights of persons, as for seducing or harboring wives, enticing away or harboring apprentices or servants, are properly in case; though it is now usual, and perhaps more correct, to declare in trespass vi et armis and contra pacem, for criminal conversation, and for debauching daughters or servants (g); yet as the consequent loss of society or service is the ground of action, the plaintiff is still at liberty to declare in case (h) (329). When, however, the action is for an injury really committed with force, as by menacing, beating, or imprisoning wives, daughters, and servants, it is most proper to declare in trespass (i). For injuries to personal property not committed with force or not immedity, and for ate (k), or where the plaintiff's right thereto is in reversion (1); case is the breach of a proper remedy (330). It lies against attornies or other agents for neglect or duty or other breach of duty or misfeasance in the conduct of a cause, or other busiand when ness (331), &c. though it has been more usual to declare against them in assumpsit (m) (332). And though we have seen that assumpsit is the usual remedy for neglect or breach of duty against bailees (n); as against carriers, wharfingers, and others having the use or care of personal property, whose liability is founded on the common law as well as on the contract; yet it is clear that they are also liable in case for an injury resulting from their neg[*154] lect or breach of duty in the course of their employ (o). For any misfeasance by a party in a trade which he professes, the law gives an action upon the case to the party grieved against him; as if a smith in shoeing my horse prick him, and other like cases (p). And it seems that although there be an express contract, still if a common law duty result from the facts, the party may be sued in tort for any neglect or misfeasance in the execution of the contract (q). (329) Muse v. Heffernan, 6 Munf. 27. See 12 Serg. Rawle, 212. Reynolds v. Orvis, 7 Cow. Rep. 269. But in such a case in Pennsylvania, no action can be maintained against a constable executing such process, unless a copy of it be previously demanded, agreeably to the 6th section of the act of 21st March, 1772, (1 Sm. Laws, 364.) Varley Zahn, 11 Serg. & Rawle, 185. } (330) Hornketh v. Barr, 8 Serg. & Rawle, 36. Parker v. Elliotte, Gilm. Rep. 33. Mercer v. Warmesly, 5 Harr. & Johns. 27. Lockwood v. Betts, 8 Conn. Rep. 130. Moran v. Hawes, 4 Cow. Rep. 412. Clark v. Fitch, 2 Wend. R. 459. (331) As, if the owner of a horse hire him to another for a certain time, and while the hirer is using the horse, the defendant drives against him and kills him, the owner's remedy is by action on the case and not trespass; this being in the nature of an injury to the plaintiff's reversion. Hall v. Pickard, 3 Campb. 187. But where the owner gratuitously permits another person to use the chattel, it is still constructively in his possession, and he may maintain trespass. Lotan v. Cross, 2 Campb. 464. (332) Dearborn v. Dearborn, 15 Mass. Rep. 316 So, if he disobey the lawful instructions of his client, and a loss ensues. Gilbert v. Williams, 8 Mass. Rep. 51. Vide Taylor, 62, 63. Church and Demilt v. Mumford, 11 Johus. Rep. 479. Stimpson v. Sprague, Adm., 6 Greenl. Rep. 470. CAST. If the contract be laid as inducement only, it seems that case for an act, in 1. CS THE its nature a tort or injury, afterwards committed in breach of the contract, may often be adopted. On this ground, case for not accounting for, and for converting to the defendant's use, bills delivered to him to be discounted, or the proceeds of such bills, is probably sustainable (r). And in Mast v. Goodson (s) it was held that a count in case, setting out an agreement by which the plaintiff was to build a yard in defendant's close, and lay out not less than £20, and was to enjoy it for life, and averring that defendant built the yard and enjoyed it for some years as an easement, but defendant afterwards wrongfully obstructed him in the enjoyment of it, was good. In that case the action was founded on a contract; but the obstruction to the plaintiff's right for which the action was brought was ex delicto, although the right also arose out of the contract (). And a count stating that the plaintiff being possessed of some old materials, retained the defendant to perform the carpenter's work on certain buildings of the plaintiff, and to use those old materials, but that the defendant, instead of using those, made use of new ones, thereby increasing the expense, is sustainable (u). "Where there is an express promise, and a legal obligation results from it, then the plaintiff's cause of action is most accurately described in asumpsit, in which the promise is stated as the gist of the action. But where from a *given state of facts the law raises a legal obligation to do a particular act, [*155] and there is a breach of that obligation, and a consequential damage, there, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case founded in tort is the more proper form of action, in which the plaintiff in his declaration states the facts out of which the legal obligation arises, the obligation itself, the breach of it, and the damage resulting from that breach." (x) Therefore, where by deed-poll a lessee assigned his term to another," subject to the rent and covenants," and in consequence of the non-performance of the covenants the lessee was damnified, it was held that he might sue the assignee in an action upon the case founded in tort; for, under the circumstances, the law raised a duty in the defendant to perform the covenants, and the breach of that duty had caused an injury to the plaintiff (y). If there be a covenant or contract under seal between the same parties, and directly relating to the matter in dispute, the action must in general be in covenant, and founded thereon (z); and consequently in the instance last mentioned, if the assignee had covenanted with the lessee to perform the covenants in the lease, case could not have been maintained, though case for actual waste is sustainable, notwithstanding the defendant covenanted to keep in repair (a). So where there is a charter-party between the master of a ship and the freighter, case does not lie against the master for the breach of a (r) 1 New Rep. 43; 6 East, 333, S. C. in error. (s) 3 Wils. 349; 2 Bla. Rep. 848, S. C. (1) Per Holroyd, J., 6 B. & C. 273; 9 D. & R. 264, S. C.; and in 1 New Rep. 46, Heath, J., observed that in Mast v. Goodson the Court was of opinion that a count upon a cause of action to which a contract is only inducement, may be joined with a count VOL. I. 19 upon a tort. (u) 5 T. Rep. 143; see 1 Esp. Rep. 75. (y) 5 B. & C. 589; 8 D. & R. 368, S. C. (a) 2 Bla. Rep. 1111; post, 181. |