master; and if the act be immediately injurious to the plaintiff, trespass is the proper remedy (i). The plaintiff, however, though he may sue in trespass, is not bound to do so in all cases, where the injury done to him results from the immediate force of the defendant. Hence, where the declaration stated that the defendants so carelessly managed their coach and horses, that the coach ran against the plaintiff and broke his leg; the evidence was, that one of the defendants was driving at the time the accident happened, and the jury found that it happened through his negligent driving; it was holden (k), that the plaintiff might maintain case against all the proprietors: Bayley, J., observing, "It is not necessary to say that trespass could not, in this case, have been maintained against the defendant who was driving; no doubt that action lies where an injury is inflicted by the wilful act of the defendant, but it is also clear that case will lie where the act is negligent and not wilful.”

Where there is a gratuitous permission to use a chattel, as the possession constructively remains in the owner, he may maintain (1) trespass for an immediate injury to it; but if the owner of a horse lets him to hire for a certain time, during which he is killed by the owner of a cart driving violently against him, the remedy of the owner of the horse against the owner of the cart (m) is case, and not trespass; for this is in the nature of an injury to the plaintiff's reversion.

If the occupier of a house (n), who has a right to have the rain fall from the eaves of it upon the land of another person, fixes a spout, whereby the rain is discharged in a body upon the land, the proper form of action, by the owner of the land against the occupier of the house for this injury, is an action on the case; because the flowing of the water, which constitutes the injury, is not the immediate act of the occupier of the house, but the consequence only of his act, viz. the fixing the spout. Building a roof with eaves, which discharge rain water by a spout into adjoining premises, is an injury for which the landlord of such premises may recover (o), as reversioner, while they are under demise, if the jury think there is a damage to the reversion.

In an action on the case (p), for digging so near the gable-end of the house of the plaintiff, let to a tenant, that it fell; Lord Ellenborough held, that where, as in the case before the court, a man had built to the extremity of his soil, and had enjoyed his building above twenty years, upon analogy to the rule as to lights, &c., he had acquired a right to a support, or as it were of leaning to his neigh

(i) Chandler v. Broughton, 1 Cr. & Mee. 29; 3 Tyrw. 220, recognized in M'Laughlin v. Pryor, 4 M. & Gr. 48; 4 Scott's N. R. 655, post, tit. "Master and Servant."

(k) Moreton v. Hardern and others, 4 B. & C. 223.

(1) Lotan v. Cross, 2 Campb. 464.

(m) Hall v. Pickard, 3 Campb. 187. (n) Reynolds v. Clarke, Lord Raym. 1399; Str. 634, S. C.

(0) Tucker v. Newman, 11 A. & E. 40 3 P. & D. 14.

(p) Stansell v. Jollard, B. R. Trin. 43 Geo. III. MS. Lawrence, J.

bour's soil, so that his neighbour could not dig so near as to remove the support; but that it was otherwise of a house, &c. newly built. See Comyn's Dig. Action upon the Case for Nuisance C., who cites 1 Sidf. 167; 2 Roll. Abr. 565, line 5—“ If a man build a house and make cellars upon his own soil, whereby a house newly built upon the adjoining soil falls down, no action lies." The same point was ruled in Wyatt v. Harrison, 3 B. & Ad. 871, consistently with this position in Rolle: "It may be true, that if my land adjoins another, and I have not by building increased the weight upon my soil, and my neighbour digs in his land so as to occasion mine to fall in, he may be liable to an action. But if I have laid an additional weight upon my land, it does not follow that he is to be deprived of the right of digging his own ground, because mine will then become incapable of supporting the artificial weight which I have laid upon it." Per Lord Tenterden, C. J., delivering judgment of the court. See further on this subject, Dodd v. Holme, 1 A. & E. 493. "However insufficient or dilapidated the neighbouring house may be, a party is not justified, by any negligent act on his own premises, in accelerating the fall." If a party builds a house on his own land, which has previously been excavated for mining purposes, he does not acquire a right to the support for the house from the adjoining land of another, at least until twenty years have elapsed since the house first stood on excavated land, and was in part supported by the adjoining land, so that a grant by the owner of the adjoining land of such right to support may be inferred; for rights of this sort have their origin in grant only (q). The mere circumstance of juxtaposition does not render it necessary for a person who pulls down his wall to give notice (r) of his intention to the owner of an adjoining wall. Nor if he be ignorant of the existence of the adjoining wall (as where it is underground) is he bound to use extraordinary caution (s) in pulling down his own.

In an action upon the case, the declaration stated, that the plaintiff was master of a ship (t), which was laden with corn, ready to sail, and that the defendant seized the ship and detained her, per quod querens impeditus et obstructus fuit in viagio. An exception was taken to the action, on the ground that it should have been trespass vi et armis; and 4 Ed. III. 24, 13 H. VII. 26, and Palm. 47, were cited: Holt, C. J., observed, that, in the cases cited, the plaintiff had a property in the thing taken; but here the ship was not the master's, but the owners'. The master declared only as a particular officer, and could recover for his particular loss. He admitted, however, that the master might have brought trespass, and declared upon his possession, which was sufficient to maintain that

action. So where the plaintiff declared (u), that he exercised the trade of a wheeler, and was possessed of several tools that related to the trade, viz. an axe, &c., and being so possessed, gained a livelihood, &c., and by the license of the defendant deposited the tools in defendant's house, who had detained them two months after request, whereby the plaintiff had lost the benefit of his trade. After verdict, a motion was made in arrest of judgment, on the ground, that the plaintiff ought to have brought detinue or trover; but the court held the action well brought for, if the fact was that the plaintiff had the goods again, detinue was not proper; and though a detainer upon request was evidence of a conversion, yet it was not a conversion; and the damages which he demands in this case being special, the action ought to be special. So where the plaintiff declared (x), that he was possessed of a close of land and a decoy pond, to which wild fowl used to resort, and the plaintiff, at his own costs, had procured decoy ducks, nets, and other engines, for decoying and taking the wild fowl, and enjoyed the benefit in taking them; yet the defendant, intending to injure plaintiff in his decoy, and to drive away the wild fowl, and deprive him of his profit, discharged guns against the decoy pond, whereby the wild fowl were frighted away and forsook the pond. Upon not guilty pleaded, a verdict was found for the plaintiff, and 207. damages. On motion in arrest of judgment, Holt, C. J., observed, that the action was maintainable; that although it was new in its instance, yet it was not new either in the reason or principle of it. For 1st, the using or taking a decoy was lawful; 2ndly, this employment of his ground, to that use, was profitable to the plaintiff, as was the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken, is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and destroy wild fowl or tame cattle. Then when a man useth his art or his skill to take them, to sell and dispose of for his profit, this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. The C. J. added, that it had been objected, that the nature of the wild fowl was not stated; but this was not necessary; for the action was not brought to recover damage for the loss of the fowl, but for the disturbance.

In a special action on the case (y), the declaration stated, that plaintiff's wife, unlawfully and against his consent, went away from him, and continued apart from him a long time, and that, during her

(u) Kettle v. Hunt, Bull. N. P. 78. (x) Keeble v. Hickeringill, 11 East, 574, n. from Holt's MS.; Holt's Rep. 14, 17, 19; 11 Mod. 74, 130; 3 Salk. 9; Bull. N.

P. 79, S. C., cited in Carrington v. Taylor 11 East, 574, and 2 Campb. 258, S. C.

(y) Winsmore v. Greenbank, Willes,

577.

absence, a large estate, real and personal, having been devised for her separate use, she thereupon was desirous of being reconciled, and of cohabiting with plaintiff, her husband; but that the defendant persuaded and enticed her to continue apart from the plaintiff, which she accordingly did until her death; whereby the plaintiff lost the comfort and society of his wife, and her assistance in his domestic affairs, and the profit and advantage of her fortune. After verdict for the plaintiff, with 3,000l. damages, on motion in arrest of judgment, it was objected, that there was not any precedent of any such action as this. Litt. sect. 108, and 1 Inst. 81, b, were cited; but Willes, C. J., said, that the general rule there mentioned was not applicable to the present case; that it would have been so, if there had never been any special action on the case before; that this form of action was introduced for this reason, that the law would never suffer an injury and a damage without a remedy; but there must be new facts in every special action on the case (5).

Case lies for disturbing plaintiff in his office of bell-man (2). Case lies for maintenance; and if the action which was maintained was against two, they may join; the declaration need not charge the maintenance to be contra formam statuti, it being a wrongful act at common law; and the statutes which relate to maintenance are only declaratory of the common law, with additional penalties; nor need it state that the defendant was not interested in the action; if he was, he must plead that in his defence (a). After an exchange of livings between two incumbents, an action on the case lies at the suit of one against the other, as his successor, for dilapidations (b).

(z) Jones v. Waters, 5 Tyrwh. 361. (a) Pechell v. Watson, 8 M. & W.691, decided on authority of Barratt v. Collins,

10 Moore, 446.

(b) Downes v. Craig, 9 M. & W. 166.

(5) See Ashby v. White, Lord Raym. 957; Pasley v. Freeman, 3T.R.51; and Chapman v. Pickersgill, 2 Wils. 146; which last case was an action on the case for falsely and maliciously suing out a commission of bankrupt against the plaintiff: Pratt, C. J., (in answer to the objection of novelty,) said, that this was urged in Ashby v. White, but he did not wish ever to hear it again; that this was an action for a tort; torts were infinitely various, not limited or confined; for there was not any thing in nature which might not be converted into an instrument of mischief; and this of suing out a commission of bankrupt falsely and maliciously was of the most injurious consequence in a trading country. Durnford's note. Willes, 581. See also Hargrave's Co. Lit. 81, b, n. (2).

CHAPTER XIII.

COVENANT.

I. Of the Action for Breach of Covenant, p. 462.
II. Of the Exposition of Covenants, p. 464.

III. Of the different Kinds of Covenants:

1. Express, p. 467; and herein of express Covenants running with the Land, p. 472.

2. Implied, p. 475.

3. Joint and Several, p. 478.

4. Void and Illegal, p. 482.

IV. Of Particular express Covenants:

1. Covenants for Title, p. 485.

2. Not to Assign without Licence, p. 493.

3. To Repair, p. 497.

4. To Insure, p. 499.

V. By whom the Action of Covenant may be maintained:

1. Heir, p. 500.

2. Executor, p. 501.

3. Assignee, p. 502.

VI. Against whom the Action of Covenant may be maintained:

1. Heir, p. 507.

2. Executor, p. 507.

3. Assignee, p. 508.

VII. Of the Declaration, p. 517; Breach, p. 520; Dependent

Covenants and Conditions precedent, p. 522; concurrent
Covenants, p. 527; and independent Covenants, p. 528.

VIII. Of the Pleadings:

1. Accord and Satisfaction, p. 534.

2. Eviction, p. 536.

3. Illegal Purpose, p. 537.

4. Infancy, p. 537.

5. Limitations, Statute of, p. 538.

6. Nil habuit in tenementis, p. 538.