In the case of a special bailment it is proper to declare at least in one count on the bailment and to lay a special request; 88 in other cases it is sufficient to declare upon the supposed finding, for this allegation is not traversable. The declaration must always contain an averment that the property belongs to the plaintiff.90 91 3481. The plea of non detinet is the general issue; but special pleas may be pleaded. A defendant was allowed to plead, puis darrein continuance, the death of the slave who was the object of the action ;" and if goods were pawned to the defendant he must plead this matter specially, that the goods were pawned to him for money remaining unpaid. 3482. To entitle himself to a verdict the plaintiff must prove that he has a property in the goods," that the defendant had the possession of them, that the goods were of some value, and that they are the same claimed in point of identity.93 When the plaintiff seeks to recover damages for the detention previous to the suit, he must prove a demand before bringing his action," but a demand is not necessary where the defendant had the possession and claimed title to it before bringing suit.95 96 Under the general issue the defendant may give in evidence a gift from the plaintiff, or any other evidence which proves that the defendant does not detain the plaintiff's goods, and the statute of limitations need not be specially pleaded; evidence to sustain the plea of the act of limitations, it seems, may be given under the plea of non detinet. 3483. The verdict and judgment in this action must be such that a specific remedy may be had for the recovery of the goods detained or a satisfaction in value for each parcel in case they or either of them cannot be returned; when, therefore, the action is for several chattels, the jury ought in their verdict to assess the value of each separately; but where there are two kinds of property, each composed of several individuals, each kind may be assessed in a gross sum.99 If the jury neglect to find the value, the omission cannot be supplied by a writ of inquiry.10 98 3484. The judgment is in the alternative that the plaintiff do recover the goods, or the value thereof, if he cannot have the goods themselves, and his damages for the detention and full costs of suit. 101 88 Kettle v. Bromsall, Willes, 120. 89 Mills v. Graham, 4 Bos. & P. 140; Mortimer v. Brumfield, 3 Munf. Va. 122; Irwin v. Wells, 1 Mo. 9; Anon. 2 Hayw. No. C. 136; Tunstal v. McClelland, 1 Bibb, Ky. 186; Cole v. Cole, 4 Bibb, Ky. 340; Jones v. Henry, 3 Litt. Ky. 46; Dunn v. Davis, 12 Ala. N. s. 135. 90 Kent v. Armistead, 4 Munf. Va. 72; Price v. Israel, 3 Bibb, Ky. 516. 91 Bethea v. McLennon, 1 Ired. No. C. 523. 92 Barnley v. Lambert, 1 Wash. Va. 308. 933 Blackstone Comm. 152; Felt v. Williams, 2 Ill. 206. * Vaughn v. Wood, 5 Ala. N. s. 304; Brock v. Headen, 13 Ala. N. s. 370. 95 Jones v. Green, 4 Dev. & B. No. C. 354. 96 Turner v. Allison, 3 Dan. Ky. 422; Smith v. Towne, 4 Munf. Va. 191; Stratton v. Minnis, 2 Munf. Va. 329; Dazier v. Joyce, 17 Ala. 303; McCurry v. Hooper, 12 Ala. N. s. 823. See Brown v. Brown, 13 Ala. N. s. 208. 97 Morrow v. Hatfield, 6 Humphr. Tenn. 108; Elam v. Bass, 4 Munf. Va. 301. 98 Smith v. Wiggins, 4 Ala. 221; Cummings v. Tindall, 8 Ala. 357; Carraway v. Niece, 1 Miss. 538; Haynes v. Crutchfield, 7 Ala. N. s. 189; Baker v. Beasly, 4 Yerg. Tenn. 570; Buckner v. Higgin, 3 T. B. Monr. Ky. 59; Mulliken v. Greer, 5 Mo. 489; Thomas v. Tanner, 6 T. B. Monr. Kv. 52. 99 Haynes v. Crutchfield, 7 Ala. N. s. 189. 100 Cheney's Case, 10 Coke, 119, b; Bell v. Pharr. 7 Ala. N. s. 807; Stirling v. Garritee, 18 Md. 468. 101 Brown v. Brown, 5 Ala. N. s. 508. CHAPTER XXII. ACTION ON THE CASE. 3485. Actions arising ex delicto. 3486. The origin of the action on the case. 3487. The nature of this action. 3488-3501. When an action on the case lies. 3489-3494. For injuries to the absolute rights of persons. 3490. Injuries committed under color of process. 3492. Injuries to rights not tangible. 3493. Injuries from negligence or want of skill. 3498-3500. For injuries to real property. 3499. Real property, corporeal. 3500. Real property, incorporeal. 3501. When the action is given by statute. 3504-3512. The evidence in case. 3506. In cases of criminal conversation. 3485. Having fully considered the remedies which the law affords, in courts of law, on contracts, the next object of our inquiries will be the nature and kinds of actions which have been provided to redress wrongs and injuries, independent of contract. The actions which fall under this class are case, trover, replevin, and trespass. 3486. An action on the case, or, more technically, an action of trespass upon the case, lies where a party sues for damages, for any wrong or cause of complaint to which neither covenant nor trespass will apply. In its most comprehensive signification, case includes assumpsit as well as an action in form ex delicto; but when simply mentioned, it is usually understood to mean an action in form ex delicto. This action originated as follows: At the most remote periods of the English law, as far as we have any accounts, specific forms of action were used; these forms were compiled into a book styled The Register of Writs, or Registrum Brevium. In this book is to be found a form in which to express every injury remediable by writ of trespass, properly so called, and in which writ the 1 Stephen, Pl. 15; Hammond, Nisi P. 1; 3 Wooddesson, Lect. 167; Griffin v. Farwell, 20 Vt. 151. 2 words vi et armis et contra pacem were universally inserted. These formula, framed with wisdom and matured by experience, were considered as immutable, unless by authority of parliament. They were resorted to upon all occasions, and one or another was adopted suitable to the claim or demand of the plaintiff; the courts, with a jealous care, would not allow any alteration to be made in these forms. These writs, thus gathered together, were termed brevia formata. They were adapted to those causes of complaint that most frequently occurred. In process of time, when other grievances arose, or existing evils, which till then had been overlooked or endured, became so intolerable as to require a remedy to reform them, the sufferers made application at the chancery for an original on which to ground their suit. The clerks, not feeling themselves authorized to grant new writs, which indeed would have exceeded their authority, refused to grant them, and the legislature was required to interfere. To remedy this evil the twenty-fourth chapter of the statute of Westminster the second was passed. It provides that "whensoever from thenceforth in one case a writ shall be found in chancery, and in a like case falling under the same right, and requiring a like remedy, no precedent of a writ can be produced, the clerks in chancery shall agree in forming a new one, and if they cannot agree, it shall be adjourned to the next parliament, when a writ shall be framed by consent of the learned in the law, lest it should happen for the future that the court of our lord the king be deficient in doing justice to the suitors." These provisions have been characterized as only declaratory of the common law, whose perfection could not endure the reproach that an evil should exist without a corresponding remedy. The very passage of the act, however, proves that just as the position may be in theory, in practice it was not then admitted.3 This action, then, originates in the power given by the statute of Westminster 2 to the clerks of chancery to frame new writs in consimili casu with writs already known. Under this power they constructed many writs for different injuries, which were considered in consimili casu with, that is, to bear a strong analogy to, trespass. The new writs invented for cases supposed to bear such analogy have accordingly received the appellation of writs of trespass on the case, (brevia de trangressione super casum,) as being founded on the particular circumstances of the case, thus requiring a remedy, and to distinguish them from the old writ of trespass; and the injuries themselves, which are the subjects of such writs, are not called trespasses, but bear the general names of torts, wrongs, or grievances. Whether it was the intention of the framers of the statute of Westminster second to give to new writs which might be framed under its provisions the same effect as the old writs, and they were to be placed on the same footing with the brevia formata, and like them serve as precedents in all future occasions, or whether they were to be revised, and cast anew into other moulds, which further experience might evince to be more convenient, is perhaps doubtful; certain it is that the latter doctrine prevailed.1 The writs of trespass on the case, though invented thus, pro ne nata, in va 2 Bracton, lib. 5, c. 17, s. 2. Blackstone, the learned commentator of the English law, and the willing apologist of all its imperfections, in speaking of this statute says: "So that the wise and equitable provision of the statute of Westm. 2, 13 Ed. I, c. 24, for framing new writs when wanted, is almost rendered useless by the very great perfection of the ancient forms. And, indeed, I know not whether it is a greater credit to our laws to have such a provision contained in them or not to have occasion, or at least very rarely, to use it." 3 Blackstone, Comm. 184. • Litt. 341. rious forms according to the nature of the different wrongs which respectively called them forth, began, nevertheless, to be viewed as constituting collectively a new individual form of action; and this new genus took its place by the name of trespass on the case, among the more ancient actions of debt, covenant, replevin, trespass, etc. 3487. The action of trespass on the case differs from the action of trespass vi et armis, and though the distinction is somewhat subtle, still it is clear and well defined. The criterion to distinguish the one from the other is this: Trespass vi et armis lies for an injury committed with force, and by the immediate act of the defendant, directly applied, or vis proxima. The action of trespass on the case lies when the injury arises from the remote consequences of an act, and is not the effect of immediate force. When the proximate cause of the injury is but a continuation of the original force, or vis impressa, the effect is immediate, and the appropriate remedy is an action of trespass vi et armis; but when the original force, or vis impressa, has ceased to act before the injury commenced, then there is no force and the effect is mediate, and the proper remedy is trespass on the case. Thus, if the defendant threw a log in the street and it fell on plaintiff and broke his arm, trespass would be the proper remedy; if, on the contrary, the plaintiff did not pass in the street till after night, and the log which had thus been thrown there still remained, and the plaintiff stumbled over it and broke his arm, the remedy would be trespass on the case. In the first case the injury was committed with force and by the immediate and direct act of the defendant; in the last no force was used, and the injury was not immediate, but consequential." The intent of the wrong-doer is not material, and does not affect the form of the action; for example, the act of sending up a balloon is legal, yet if in alighting the aeronaut should injure the plaintiff's garden, trespass vi et armis would be the proper remedy.7 Having given this short account of the origin and nature of the action of trespass on the case, our next inquiry will be to ascertain in what cases this action lies, the form and nature of the pleadings, what evidence may be given by the parties, and the nature of the judgment. 3488. Such action may be maintained for injuries to the absolute rights of persons, to the relative rights of persons, to personal property, to real property, and on penal statutes. 3489. Case may be maintained for any injury to the absolute rights of persons when such injury is not direct, immediate, and with force, but consequential; thus it lies to recover damages for an injury committed against the plaintiff individually for a nuisance, as an obstruction of a highway or public navigation; for an injury done by a mischievous animal when the owner had notice 8 In Tennessee, case and trespass are concurrent remedies in all cases where the latter will lie. Tenn. St. 1850, c. 141; Luttrell v. Hazen, 3 Sneed, Tenn. 20. In Maine, Wisconsin, Delaware, and Virginia, the distinction between these two actions is abolished. Me. Rev. St. ch. 82, sec. 13; Welch v. Whittemore, 25 Me. 86; Wisc. Rev. St. ch. 88, sec. 43; Schultz v. Frank, 1 Wisc. 352. 6 Legaux v. Feasor, 1 Yeates, Penn. 586; Cotteral v. Cummings, 6 Serg. & R. Penn. 348; Berry v. Hamil, 12 Serg. & R. Penn. 210; Spencer v. Campbell, 9 Watts & S. Penn. 32; Cole v. Fisher, 11 Mass. 137; Waldron v. Hopper, Coxe, N. J. 339; Carsten v. Murray, Harp. So. C. 113; Clay v. Sweet, 1 A. K. Marsh. Ky. 194; Winslow v. Beall, 6 Call, Va. 44; Barnard v. Poor, 21 Pick. Mass. 378; Maull v. Wilson, 2 Harr. Del. 443; Adams v. Hemmenway, 1 Mass. 145. Guille v. Swan, 19 Johns. N. Y. 381. See, as to intent, Keith v. Howard, 24 Pick. Mass. 292; Gates v. Neall, 23 Pick. Mass. 308; Gates v. Miles, 3 Conn. 64; Case v. Mark, 2 Ohio, 169. Marriott v. Stanley, 1 Scott, N. R. 392; 1 Mann. & G. 568; Lancaster Canal Co. v. Parnaby, 3 Perr. & D. 162. of his dangerous propensity. In the western states it is said that the common law rule requiring every man to keep his cattle at home is not in force because not applicable, and it is the duty of each land owner to fence his land if he wishes to keep cattle out.10 Case is the proper remedy for injuries caused by the unauthorized acts or carelessness of the defendant's agents or servants." 3490. When the injury is committed under color of process a distinction must be made between regular and irregular process. By regular process is meant that which is lawfully issued by a court or magistrate having competent jurisdiction; irregular process is that which has been unlawfully issued, and for which reason it will be set aside by the court. When the process is regular and the defendant has been damnified, as in the case of a malicious arrest, his remedy against the person who sued it out and set it in motion is by an action on the case, and not trespass; 12 but although the officer may be liable when a regular execution is unlawfully executed, the plaintiff is not liable in an action on the case for a tort committed by the sheriff in executing the writ unless he joined in the unlawful act.13 When it is irregular and wholly void, the proper remedy is by an action of trespass, not only against the plaintiff, but against the officer or court under whose authority it was issued; the officer who executed it will, however, be justified if the court had jurisdiction.1 3491. Case is the proper remedy for a vexatious suit, malicious prosecution, or wanton arrest, made by a prosecutor in a criminal proceeding or a plaintiff in a civil suit without probable cause, by a regular process or proceeding which the facts did not warrant, as appears by the result. The suit need not be altogether without foundation; if the part which is groundless has subjected the plaintiff to an inconvenience to which he would not have been exposed had the valid cause of complaint alone been insisted on; for example, if the defendant has been arrested and bail demanded for a larger amount than was due, if done for the purpose of vexation.16 But it must be remembered that no action lies. merely for bringing a groundless civil suit, if unattended by the seizure of the person of the party or of his property, for as to any expense he may be put to, this, in contemplation of law, has been fully compensated to him by the costs adjudged." A conspiracy to vex and harass a person by having him subjected to an inquisition of lunacy without any probable cause is actionable.18 This action may lie for improperly suing out an injunction through malice and without probable cause, but in general the remedy is on the injunction bond.20 Buller, Nisi P. 77; Domat, Lois Civ. liv. 2, t. 8, s. 2; La. Civ. Code, art. 2301; Jones v. Parry, 2 Esp. 482; Sarch v. Blackburn, 4 Carr. & P. 297; Mood. & M. 505; Smith v. Pelah, 2 Strange, 1264; Stumps v. Kelley, 22 Ill. 140. 10 Wagner v. Bissell, 3 Iowa, 396. " Illinois R. R. v. Reedy, 17 Ill. 580. 12 Swift v. Chamberlain, 3 Conn. 537; Shaw v. Reed, 16 Mass. 450; Shaver v. White, 6 Munf. Va. 113; Kimball v. Molony, 3 N. H. 376; Lovier v. Gilpin, 6 Dan. Ky. 321; Warfield v. Walter, 11 Gill & J. Md. 80; Smith v. Story, 4 Humphr. Tenn. 169. 13 Princeton Bank v. Gilson, 1 Spenc. N. J. 138. 14 Kennedy v. Terrell, Hard. Ky. 490; McCool v. McCluny, 8 Ad. & E. 449; 15 East, 615, note (c); Vail v. Lewis, 4 Johns. N. Y. 450; Cooper v. Halbert, 2 M'Mull. So. C. 419. 15 Winebiddle v. Porterfield, 9 Penn. St. 137. To support case for a malicious prosecution there must be both malice and want of probable cause. Ray v. Law, 1 Pet. C. C. 210; McCullough v. Grishobber, 4 Watts & S. Penn. 201; Muns v. Dupont, 3 Wash. C. C. 31; Travis v. Smith, 1 Penn. St. 234; Weinberger v. Shelly, 6 Watts & S. Penn. 336; Cleck v. Haines, 2 Rand. Va. 440. See Hays v. Younglove, 7 B. Monr. Ky. 545; Wilmarth v. Mountford, 4 Wash. C. C. 79; Kerr v. Workman, Add. Penn. 270. 16 Ray v. Law, 1 Pet. C. C. 210; Herman v. Brookerhoof, 8 Watts, Penn. 241. See Sommer v. Wilt, 4 Serg. & R. Penn. 19. "Murray v. Wilson, 1 Wils. 316; Sinclair v. Eldred, 4 Taunt. 7. 19 Robinson v. Kellum, 6 Cal. 899. |