CASE. lord, had there been no deed of covenant, an action of waste, or case in the L ON THE nature of waste, would have lain. Because the landlord by the special covenant acquires a new remedy, does he therefore lose his old?" (y) And a landlord may sue a tenant holding over by sufferance, in case for wilful waste (z). It was held, before the late repealing act, that a reversioner might sue the hundred on the 9 Geo. 1, c. 22, to recover damages for an injury done to premises maliciously set on fire (a). With regard to permissive waste there seems to be some difficulty. It is laid down by great authority (b), that the statute of Gloucester (c), (which extended the ancient law of waste by the writ of waste) applies to permissive waste by a tenant from year to year. In Gibson v. Wells (d) it was held, that case for permissive waste is not sustainable against a yearly tenant; and in Herne v. Bembow (e) it was decided, that case for such waste does not lie against a tenant for a term of years holding upon a lease, which does not contain a covenant to repair. In a subsequent case, Jones v. Hill (f), it was determined that an action upon the case in the nature of waste cannot be sup→ ported against the assignee of a lease, in which the lessee had covenanted "from time to time, and at all times during the term, when need should re. quire, sufficiently to repair the premises with all necessary reparations, and to yield up the same so well repaired at the end of the term, in as good condition as the same should be in when finished under the direction of J. M." Upon a breach that the defendant suffered the premises to become and be in decay and ruinous during a large part of the term, and after the term wrongfully yielded them up in much worse order and condition than when the same were finished under the direction of J. M.; the Court did not decide that an action upon the case was not maintainable for permissive *waste but only that it was [*162 ] impossible it should be waste merely to omit to put the premises into such repair as A. B. had put them into (g); in other words, the peculiar terms of the covenant were such, that a breach of them could not be considered so far within the technical doctrine of waste, as to justify an action upon the case, and therefore covenant should have been the form of action. It has been lately decided, that if a lessee assign the term to another by deed-poll,“ subject to the performance of the covenants in the lease," the lessee may maintain case against the assignee for a breach of covenant in the lease committed after the assignment, per quod the lessce was damnified (h). Assumpsit is the usual form of action against a tenant not holding by deed, upon his implied (or express) promise to cultivate a farm according to the rules of good husbandry, and to use the premises in a tenant-like manner (i). Case may be maintained upon the custom of the realm against the personal representatives of a rector, &c. at the suit of the successor, for dilapida (y) 2 Bla. Rep. 111; Kenlyside v. Thornton, 2 Saund. 252 a, b, note. (z) Tabart v. Tipper, 1 Campb. 350. (a) 9 B. & C. 134; 4 M. & R. 130, S. C. (b) 1 Saund. 323 b, n. 7, cites 2 Inst. 302; Co. Lit. 54 b. See however the note in Co. Lit. 15th edit. citing Dyer, 198. (c) 6 Edw. 1, c. 5. (f) 7 Taunt. 392; 1 Moore, 100, S. C. In the latter report the marginal note seems to be too general. (g) Per Lord Tenterden, 5 B. & C. 603; 8 D. & R. 375, S. C. (h) 5 B. & C. 589; 8 D. & R. 368, S. C.; ante, 136. (i) See the precedent and notes, post, vol. ii. CASE.. I. ON THE tions (j); and it lies for not repairing fences, whereby the plaintiff's cattle escaped from his land, or the cattle of the defendant got into the land of the plaintiff (k); or whereby the cattle in the plaintiff's possession escaped and fell into a pit and were killed (1); or a hay-stack in the defendant's close fell on and killed plaintiff's horses (m). For the escape of the defendant's cattle into the plaintiff's close the plaintiff might support trespass, or distrain the cattle damage feasant (345). We may remember that trespass cannot in general be supported where the matter affected is not substantial, or the estate therein is incorporeal (n). Case therefore is the proper remedy for disturbance of common of pasture, turbary, or estovers (o). If the plaintiff's cattle be chased off the common, trespass may be supported for such chasing; and that form of action may in some instances be advisable, in order that the right may be fully stated on the record. So case is the proper form of action for obstructing a private way (p), or a public way, per quod the plaintiff was delayed on his journey, and obliged to take a more circuitous rout (q), or sustained some other special damage. So case is the proper remedy for disturbing a party in the [*163] possession of a pew in *a church; but no action for such disturbance can be maintained unless the pew were annexed to a house in the parish (r). Perhaps trespass may be sustained if the pew to which the plaintiff is entitled as appurtenant to his messuage be broken (s)(346); and that form of action may be adopted by the erector of a tombstone against a person who wrongfully removes it from the church-yard, and erases the inscription (1). Case is in general the remedy for disturbing a party in the enjoyment of an easement (u), and it may be maintained in that instance, although the right to the easement were conferred by a written agreement, which is stated in the declaration, and which stipulates for the enjoyment of the easement (x). It lies for disturbance, obstruction, or other injuries, to offices, franchises, ferries, markets, or tolls, or for not grinding at an ancient mill, &c. (y). And it may be maintained for disturbing and injuring the right to, and enjoyment of, an ancient decoy (z); but no action is sustainable for frightening away game from a preserve (not being a franchise), or for disturbing a rookery (a). (s) See 2 Rol. R. 140; Palm. 46; per Best, C. J., 3 Bing. 137, 138. (t) 3 Bing. 136. (u) 5 B. & A. 361; 5 B. & C. 221; 7 D. & R. 783, S. C.; 8 B. & C. 288, 294, 295; 3 M. & R. 318. An easement can be granted by deed only, id. (x) 3 Wils. 348; 6 B. & C. 273; 9 D. & R. 265, S. C.; ante, 144, 145. (y) See Com. Dig. Action, Case, Disturbance, and Action, Case, Nuisance; 6 M. & Sel. 69. See many instances of actionable obstruction or sturbance of a party in the exercise of a right put by Holt, C. J., 11 East, 576, note. (z) 11 East, 571; 2 Campb. 258. (345) Vide Provost, &c. of Queen's College v. Hallett, 14 East's Rep. 489. ante, 50, n. 108. So, it lies against the assignee of a lessee. Short v. Wilson and others, 13 Johns. Rep. 33. 2 Saund. 252. a. c. (346) But not for permissive waste. Gibson v. Wells, 1 New Rep. 290. CASE. tute. An action on the case is frequently given by the express provision of some 1. ON THE statute to a party aggrieved (b); and it has even been decided that where a navigation act empowered the company to sue for calls, &c. by action of debt On a staor on the case, that an action on the case in tort might be supported, though the defendant were thereby deprived of the means of availing himself of a setoff (c). Whenever a statute prohibits an injury to an individual, or enacts that he shall recover a penalty or damages for such injury, though the statute be silent as to the form of the remedy, this action, or in some instances an action of debt (d), may be supported (e); as on the *statute (f) at the suit [*164] of a landlord against a sheriff, for taking goods under an execution, without paying a year's rent (g); and on the statute of Winton (h) at the suit of a party robbed against the hundred; or upon the Black Act, or the Riot Act (i); or on different statutes relative to irregularities in making or disposing of a distress (k), &c. In these and other instances case may be supported by implication; and if a statute give a remedy in the affirmative, without a negative expressed or implied, for a matter which was actionable by the common law, the party may sue at common law, as well as upon the statute (l) (347). But in some instances the statute prescribes a particular remedy, in conferring a new right, or creating a liability; and in that case the remedy pointed out, and no other, can be pursued (m). In many cases the common law remedy is altered by a statute. Thus the 43 Geo. 3, c. 141, enacts, that in all actions against any justice of the peace for any conviction, &c. which may have been quashed, or for any matter done by him for carrying it into effect, the plaintiff shall not recover more than the sum levied under the conviction, and 2d. damages, unless it be expressly alleged in the declaration, which shall be in an action on the case only, that such acts were done maliciously, and without any reasonable cause (n). We have seen that a common informer cannot sue unless an action be expressly given to him (0). of this ac The judgment of Lord Ellenborough, C. J., in the case of Govett v. Rad- of the adnidge (p) explains the advantages arising in many instances from the adop- vantages tion of the action on the case, in preference to the action of assumpsit; viz. tion, in "there is no inconvenience in suffering the party to allege his gravamen as a reference breach of duty arising out of an employment for hire, and to consider that to others. breach of duty as tortious negligence, instead of considering the same circumstances as forming a breach of promise implied from the same consideration of hire. By allowing it to be considered in either way, according as the *neglect of duty or the breach of promise is relied upon as the injury, a mul- [*165] (347) Little v. Lathrop, 5 Greenl. Rep. 356; where the law in relation to fencing against cattle is laid down. CASE. 1. ON THE tiplicity of actions is avoided; and the plaintiff, according as the convenience of his case requires, frames his principal count in such a manner, as either to join a count in trover therewith, if he have another cause of action other than the action of assumpsit, or to join with the assumpsit the common counts, if he have another cause of action to which they are applicable." Other advantages may also sometimes ensue from the adoption of case instead of assumpsit, viz. that in the former action the defendant cannot always plead in abatement the nonjoinder of other parties as defendants (q); and the plaintiff in case will in general be entitled to a verdict if he prove one of several defendants to be liable, whereas a different rule prevails in an action of assumpsit (r). If a party has obtained goods upon a fraudulent contract, whereby credit was to be allowed, he should be sued in case, at least before the expiration of the credit, as assumpsit cannot be maintained during its currency (s). So.if a set-off be apprehended (t), or the defendant's certificate would be pleadable in bar (u) to an action of assumpsit, it would in some cases be most advisable, if possible, to avoid it, by suing in case. And again, where there has been a fraud, and it is supposed that the statute of limitations will be set up as a defence, an action for the fraud is perhaps preferable to an action of assumpsit; as there is reason to contend that the statute only begins to run from the time the fraud is discovered (x); and on account of costs, case is frequently preferable to trespass, as in the former action the plaintiff is entitled to full costs though he recover less than 40s. damages, whereas in some actions of trespass for assault and battery, or trespass to land, if the damages be under 40s. the plaintiff is not entitled to full costs (y). On the other hand, there were some disadvantages attending the action on vantages. the case, on account of the generality of the pleadings, and of the circumstance of the general issue being the usual plea, which put the plaintiff on proof of the whole of the allegations in his declaration, and left the defendant at liberty to avail himself of any matter of defence at the trial, without apprizing the [ *166] plaintiff by his plea of the *circumstances on which it is founded. But this objection was removed by Reg. Gen. Hil. T. 4 W. 4, reg. 5, which now compels a defendant to plead specially almost every description of defence.† When cattle of the defendant have trespassed in the plaintiff's land, in consequence of the defendant's neglect to repair his fences, the plaintiff had an election to proceed in case or in trespass (z); or to distrain, if the real damage exceed 40s. or the circumstances be of such a nature that a verdict for that amount may be anticipated, so as to carry full costs, an action of trespass may be advisable in preference to an action on the case, in order that the trial may be upon some particular point in issue (a), still narrowing the evidence more than in the action on the case. It is not advisable to distrain where the title to the locus in quo is doubtful, but the party should proceed by action of trespass, or on the case (b), and the same observations apply where a right of common is in dispute (c). Its disad CASE. general, The declaration in an action on the case ought not in general to state the 1. ON THE injury to have been committed vi et armis, nor should it conclude contra pacem (d); in which respects it principally differs from the declaration in trespass. The pleadIn other points the form of the declaration depends on the particular circumings in stances on which the action is founded, and consequently there is greater &c. variety in this than any other form of action. The leading rules will be stated when we inquire into the form of the declaration in general. It is open to this commendation that the statements are not fictitious as in trover, and that it truly and specifically discloses the grounds upon which the action is founded. The plea in this action until recently was principally the general issue, not guilty; and under it (except in an action for slander, and a few other instances) (e), any matter might be given in evidence, but the statute of limitations. But since the pleading rules, H. T. 4 W. 4,† the general issue only puts in issue the wrongful act, and not the right (f), and most grounds of defence must be pleaded specially. The judgment is, that the plaintiff do recover a sum of money ascertained by a jury, for his damages sustained by the committing of the grievances complained of, and full costs of suit; to which the plaintiff is entitled, although he recover a verdict for less than 40s. damages (g); unless the judge certify under the statute (h); a circumstance which we have already observed frequently renders this action preferable to that of trespass. tions. The action of trover or conversion was, in its origin, an action of trespass on the case for the recovery of damages against a person who had found II. TROVER. goods, and refused to deliver them on demand to the owner, but converted General them to his own use; from which word finding (trouver) the remedy is called observaan action of trover. The circumstance of the defendant not being at liberty to wage his law in this action, and the less degree of certainty requisite in describing the goods, gave it so considerable an advantage over the action of detinue, (which, before the late enactment, was subject to the defence of law wager), that by a fiction of law actions of trover were at length permitted to be brought against any person who had in his possession, by any means whatever, the personal property of another, and sold or used the same without the consent of the owner, or refused to deliver the same when demanded. The injury lies in the conversion and deprivation of the plaintiff's property, which is the gist of the action, and the statement of the finding or trover is now immaterial, and not traversable (i); and the fact of the conversion does not necessarily import an acquisition of property in the defendant (k). It is (d) Com. Dig. Action on Case, C. 3, 4, A. (e) 1 Saund. 130, note 1; Willes, 20. (ƒ) Frankum v. Earl of Falmouth, 1 Harrison, 1; 6 Car. & P. 529; Bosanquet's Rules. (g) 6 T. R. 129; Tidd, 9th ed. 963. (h) 43 Eliz. c. 6; Tidd, 952, 953, 9th ed. This statute deprives plaintiff of costs, not withstanding the action be brought under (i) 3 Bla. Com. 152, 153; 1 New Rep. † See American Editor's Preface. |