3492. This is the appropriate form of action, too, for injuries to the absolute rights of persons when the right affected was not tangible, and consequently would not be affected by force, as reputation and health, the injuries to which are always remedied by action on the case, as libels and slanders. The act causing the injury may be done with force; thus the disturbance of an easement for which an action on the case lies may be caused by an act for which the owner of the fee could bring trespass. 21 3493. Case is not confined to injuries merely ex delicto; it is a concurrent remedy for many breaches of contract, not simply for the payment of money, whether the breach were by non-feasance, misfeasance, or malfeasance; thus, case lies against surgeons, physicians, and apothecaries, for negligence or want of skill, and it is immaterial by whom the defendant was retained; " it lies also upon an express agreement for obstructing the plaintiff in the enjoyment of an easement, of which the defendant stipulated that the plaintiff should have the benefit.22 It is a proper remedy against bailees for neglect in the care of goods.23 3494. It may be maintained against persons who by law are obliged to perform certain duties, and who refuse to fulfil them; as, common carriers who refuse to take a passenger, having room; or an innkeeper who refuses to receive a guest when he has sufficient accommodations, and the traveller tenders a reasonable reward for the accommodations required. But the guest has no right to select a particular room in the inn, nor capriciously to ask for unreasonable accommodations.25 24 3495. For injuries to the relative rights the action on the case is the appropriate remedy; when they are not with force, but consequential, this action lies. These rights exist in the husband for injuries done to the wife; the father, for wrongs to the child; the master, for torts committed against the apprentice; and a guardian, for an offence or injury against his ward, but not vice versa. The wife can maintain no action for an injury to the husband; or the child, the apprentice, and the ward for a wrong committed to the father, the master, or the guardian respectively. The husband may sustain an action on the case for criminal conversation with the wife, though trespass may also be maintained; case is the appropriate remedy for harboring a wife, an apprentice, or a ward. 26 A parent cannot maintain a suit, in the capacity of parent, for the seduction of his daughter; an action on the case lies against the seducer, though not directly nor ostensibly for the seduction, but for the consequent inability of the daughter to perform those services for which she was accountable to her master, or to her parent, who, for this purpose, is obliged to assume that less endearing relation; and if it cannot be proved she filled that office, the action cannot be sustained." It follows, therefore, that if the daughter was of full age at the time of the seduction and impregnation, and the father was not entitled to her services, and actually she was not in his service, the father can maintain no ac 21 Gladwell v. Steggall, 8 Scott, 60; 7 Carr. & P. 81; Peck v. Martin, 17 Ind. 115; Caldwell v. Farrell, 28 Ill. 438; West v. Martin, 31 Mo. 375. 22 Mast v. Goodson, 3 Wils. 348. 23 Govett v. Radnige, 3 East, 62, 70. 24 Tell v. Knight, 8 Mees. & W. Exch. 269; Rex v. Jones, 7 Carr. & P. 213. 25 Tell v. Knight, 8 Mees. & W. Exch. 269. 26 In Clough v. Tenney, 5 Me. 446, it was held that case was the only remedy for a father, where the injury was done in the house of another. When the offence has been committed in the plaintiff's house, trespass lies, and the seduction is an aggravation. In Parker v. Elliott, 6 Munf. Va. 587, it is said that for the seduction of a wife or daughter case or trespass may be brought at the choice of the plaintiff. See M'Clure v. Miller, 4 Hawks, No. C. 138, note; Gilm. Va. 33; Van Vactor v. McKillip, 7 Blackf. Ind. 578. "South v. Denniston, 2 Watts, Penn. 474; Wilson v. Sproul, 3 Penn. 49. tion for the seduction. But if, at the time of the seduction and impregnation, the daughter was under the age of twenty-one years, though she was then living at another place, the father may maintain this action, provided he was then entitled to her services.28 The gist of the action in these cases is the loss of services, and the plaintiff sues per quod servitium amisit. As this action is for the recovery of damages, if none have been sustained, the action will not lie; where, therefore, the plaintiff has connived at the misconduct of the defendant with his daughter, no action lies.29 30 For a consequential injury done to his minor child a parent may maintain case; as, where the defendant compelled the minor to mount an unruly horse, in consequence of which his leg was broken, and the father was put to expense. And for the abduction of a child an action on the case is the proper remedy, because, as in seduction, the parent here assumes the character of a master, and sues per quod servitium amisit. It is the proper remedy for an injury caused to a child employed in a factory by machinery carelessly left exposed when it should have been covered,32 31 3496. The remedy to redress injuries to personal property, not committed with force and not immediate, or where the plaintiff's right to such property is not in possession, but in reversion, is by an action on the case. The instances in which an action on the case can be maintained are very numerous; to go through them all would occupy much space, and it would be necessary to go into details not within the plan of this work. A few instances will be mentioned which will give an idea of the whole. This action lies for negligence in navigating ships; but when both parties are guilty of negligence, and the mischief done was the result of the combined neglect of both parties, both are in statu quo, and neither can recover any compensation from the other. The rule seems to be this, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover; if, by ordinary care, he might have avoided them, he is the author of his own wrong. 35 When the act which has caused the injury is immediate, the party injured may elect to regard the negligence as the cause of the action, and declare in case, or to look upon the act itself as the injury, and declare in trespass; 36 as, for negligence in driving carriages, or riding horses, or in conducting a railway train,3 whereby the plaintiff or his property is injured. So it lies for negligence, by which sparks and igneous matter flew from the engine and destroyed by fire a 28 Hornketh v. Barr, 3 Serg. & R. Penn. 36. "Hollis v. Wells, 5 Penn. Law Journ. 30. 30 Wilt v. Vickers, 8 Watts, Penn. 227. See Durden v. Barnett, 7 Ala. N. s. 169. 31 Moritz v. Garnhart, 7 Watts, Penn. 303; Jones v. Tiver, 4 Litt. Ky. 25. 82 Hayden v. Smithville Co., 29 Conn. 548. 37 33 Leame v. Bray, 3 East, 599; Ogle v. Barnes, 8 Term, 188; 1 Perr. & D. 103. See Parker v. Adams, 12 Metc. Mass. 415; Gates v. Miles, 3 Conn. 64; Case v. Mark, 2 Ohio, 169. 34 Vernal v. Gardner, 3 Tyrwh. Exch. 85; Sills v. Brown, 9 Carr. & P. 605; Monroe v. Leach, 7 Metc. Mass. 274. But, in such cases, there is a remedy in the admiralty, where the damages will be apportioned. Hay v. Le Neve, 2 Shaw, Hou. L. Sc. 401, 405. 35 Bridge v. G. J. Railway Co., 3 Mees. & W. Exch. 248. See Butterfield v. Forrester, 11 East, 60; Smith v. Dobson, 3 Scott, N. R. 336; 3 Mann. & G. 59; Raison v. Mitchell, 9 Carr. & P. 613; Turley v. Thomas, 8 Carr. & P. 103; Hawkins v. Cooper, 8 Carr. & P. 473. 36 Blin v. Campbell, 14 Johns. N. Y. 432; Dalton v. Favour, 3 N. H. 465; McAllister v. Hammond, 6 Cow. N. Y. 342; Baldridge v. Allen, 2 Ired. No. C. 206; Chaflin v. Wilcox, 18 Vt. 605; Schuer v. Veeder, 7 Blackf. Ind. 342. As, where an officer sells goods which are exempt from execution. Van Dresor v. King, 34 Penn. St. 201. "Bridge v. G. J. Railway, 3 Mees. & W. Exch. 244. stack of beans; 38 or for carelessly and negligently kindling a fire on the defendant's own land, whereby the property of the plaintiff on the adjacent land was burnt;39 or by carelessly carrying fire by which the plaintiff's stack-yard was destroyed; but not for accidental or wilful burning.40 Case will not lie for mere non-feasance where the undertaking was gratuitous only; but if the party promising have commenced upon his undertaking, case will lie for any malfeasance or neglect in the performance of it." But where an officer is bound to perform a duty, as, a sheriff, case will lie against him for non-feasance." So it lies against a city for neglect of the city council to collect an assessment to pay for the plaintiff's land taken for a street.3 So where one rightfully passes over a road obstructed by movable bars which he neglects to replace, he is liable in case for injury arising from such neglect." Or where one of two adjacent owners neglects to build his share of a division fence as required by statute." 46 47 Case is the proper remedy for injuries caused by a fraud or deceit which are done without force; as, for making a fraudulent return by a sheriff to a writ of attachment, even when the writ is void, to recover the price of a horse which had been paid for in counterfeit money; for selling a blind horse for a sound price, though the purchaser examined the horse, if the blindness could not be discovered at first view; 18 for not informing a purchaser of lands of an outstanding incumbrance upon it;19 for falsely representing the credit and circumstances of another, by reason of which credit is given to such a person and a loss occurs, and in such case it is not necessary that there should have been an intent on the part of the party making such representations to defraud him to whom they were made; 50 and if there is a design to defraud the public generally, any one suffering injury from it may maintain this action;" for falsely representing to a buyer a metal to be copper knowing it to be a composition, and an injury accrues to the purchaser.52 Case lies against a justice of the peace for concealing from a party the time when he gave judgment so as to prevent an appeal; 53 and case is also the proper remedy against an officer for a breach of duty, whether intentional and malicious or not. It lies against a sheriff for neglecting to arrest a defendant against whom he has a writ when he has an opportunity, but in such case the plaintiff must allege and prove special damages; 55 and this action lies when the sheriff arrests a person maliciously on a writ, after he knows that such a person is privileged.5 It lies for a careless and wanton act by which a consequential damage is sustained; as, by the careless discharge of a gun, by which the owner or bailee is injured, if there was no intention or reasonable ground of apprehension on 38 Aldridge v. G. W. Railway, 1 Dowl. N. s. Bail, 247; Scott, N. R. 150. 42 Abbott v. Kimball, 19 Vt. 551; Sheppard v. Shelton, 34 Ala. N. s. 652. 43 Clayburgh v. Chicago, 25 Ill. 535. 45 Saxton v. Bacon, 31 Vt. 240. 47 Lane v. Hogan, 5 Yerg. Tenn. 290. 48 Hinks v. Hinks, 46 Me. 423. Hughes v. Robinson, 1 T. B. Monr. Ky. 215. See McLane v. Fullerton, 4 Yeates, Penn. 522. 49 Morgan v. Patrick, 7 Ala. N. s. 185; Ward v. Wiman, 17 Wend. N. Y. 193. 50 Boyd v. Browne, 6 Penn. St. 310. 52 Cornelius v. Molloy, 7 Penn. St. 293. ham v. Bentley, 6 B. Monr. Ky. 428. 53 Neighbor v. Trimmer, 1 Harr. Del. 58. 51 Bartholomew v. Bentley, 15 Ohio, 659. See Stiles v. White, 11 Metc. Mass. 356; Old 54 Keith v. Howard, 24 Pick. Mass. 292; Gates v. Neal, 23 Pick. Mass. 308; Spear v. Cummings, 23 Pick. Mass. 224. 55 Williams v. Mostyn, 7 Dowl. 38; 4 Mees. & W. Exch. 145. 56 Boit v. Maguay, 7 Jur. 127. VOL. II.-2 X 377 the part of the defendant of causing the fright; when there is such intention, trespass is the proper remedy; 57 so trespass is the lawful remedy for an injury sustained, in consequence of the defendant beating a drum in the highway, and the horse becoming frightened and running away. Case, and not trespass, is the proper action by the owner of a vessel against one who discharges a musket ball at the vessel and wounds the master, by which the intended voyage is defeated and the owner of the vessel is subjected to loss.59 When the injury is committed by an agent or servant in the course of his employment, whether it be with force and immediate or without force and consequential, the action against the principal or the master must be trespass on the case when he is liable, unless it be done by his express command, and in that case trespass will lie against both; and when there has been no command of the master or principal, trespass may be brought against the agent or servant when the injury is committed with force. So if a defendant cause an injury with his dog, trespass is the remedy; if the dog cause the injury of his own accord in the absence of his owner, and he is known to him to be vicious, the remedy is case. 61 3497. This action is a concurrent remedy with assumpsit in many cases on breach of a parol contract, either express or implied. It is concurrent with assumpsit for the breach of a warranty, though assumpsit is sometimes preferred, because a count for money had and received may be joined to recover back the consideration. Case lies also against bailees for neglect, and cases of this kind are extremely numerous; against attorneys for any gross negligence or ignorance in their professional capacity. 63 Case is the only remedy for an injury to reversionary personal property; as, for an injury done to the plaintiff's cattle by the horse of the defendant, or where a slave has been hired out the owner may sue a third party in case for an injury affecting his reversionary interest.65 In these cases trover and trespass will not lie, because, to support these actions the plaintiff must prove that he was in possession,66 or in case of trover, that he had the right of possession. 3498. Injuries to real property are to real property corporeal, and to real property incorporeal. 3499. Injuries to real property corporeal are either to the possession or to the reversion. The injury to the possession takes place when the party in possession is injured by an act which is not the immediate cause of the loss, but the loss arises from it, and is consequential; as, for placing a water spout near the plaintiff's land, so that the water, when it rained, ran upon it; or for causing the water, which did not flow that way naturally, to run upon the plaintiff's land; or for digging so carelessly and negligently on his own ground as to cause the neighbor's house to fall,68 57 Cole v. Fisher, 11 Mass. 137. 67 68 Loubz v. Hafner, 1 Dev. No. C. 185. 59 Adams v. Hemmenway, 1 Mass. 145. Barnes v. Hurd, 11 Mass. 57; Johnson v. Castleman, 2 Dan. Ky. 378; Campbell v. Phelps, 17 Mass. 246; Broughton v. Wallon, 8 Wend. N. Y. 474; Havens v. Hartford R. R., 28 Conn. 69. 61 Dilts v. Kinney, 3 Green, N. J. 130. 62 Stuart v. Wilkins, Dougl. 21; Williamson v. Allison, 2 East, 446. See Kiddell v. Burnard, 9 Mees. & W. Exch. 668; Levy v. Langridge, 4 Mees. & W. Exch. 337, in error. 63 McGowan v. Chappen, 2 Murph. No. C. 61; Hilliard v. Dortch, 3 Hawks, No. C. 246. 64 Wales v. Ford, 3 Halst. N. J. 267. 65 Hawkins v. Phythian, 8 B. Monr. Ky. 515. 66 Gordon v. Harper, 7 Term, 9. 67 1 Chitty, Pl. 126, 141; Shaw v. Etheridge, 7 Jones, No. C. 225. 68 Sheve v. Stokes, 8 B. Monr. Ky. 453. When the party-wall has been built, and the adjoining owner is desirous of having a deeper foundation, he has a right to undermine such wall, using due care and diligence to prevent any injury to his neighbors; and having This action lies for obstructing the light and air, when the plaintiff has the right acquired by grant or prescription, by the erection of a building opposite to his window on the adjoining land. It may be brought by the tenant in possession, or by the person entitled to the immediate reversion, though the form of the declaration is not the same. It lies also for other nuisances to houses and lands; as, for not repairing a privy near the plaintiff's house; for not emptying a cesspool or sewer; 70 for obstructing the entrance to a house;" for making noises and annoying the plaintiff in the occupation of his house, by which the plaintiff has received an injury. For these and the like nuisances, and their consequent injuries, the party in possession may maintain an action on his possessory interest, and the reversioner on his reversionary rights.73 74 72 This action, in some cases, is a concurrent remedy with covenant when an injury has been committed on real estate. The reversioner or remainder-man, whether in fee or merely for years, may support an action on the case, in the nature of waste against either his tenant or a stranger, for commissive waste to his reversion; although there may be a covenant in a lease not to do waste." The reason why the reversioner must bring case instead of trespass is that he has not the possession, and that is required to maintain trespass. Thus case is the proper remedy for the reversioner against a third person for cutting trees on land of the tenant for life; 76 or for a mortgagee not in possession." If stone is quarried from the bed of a turnpike road and placed temporarily on the adjacent land, the reversioner in fee of the land on which the road is built must bring case, and the tenant of the adjacent land may bring trespass.78 Case may be maintained by the owner of the fee against a tenant at will for acts prejudicial to the inheritance." When the action is brought by the reversioner, he must allege and prove a damage done to him, that is, some damage of a permanent character. And for the same act the tenant and reversioner have each a separate remedy, one in trespass and the other in case, for the particular injury done to each.81 3500. For the reason just mentioned, that to support trespass possession must be proved, that action cannot be supported against a defendant for an injury to an incorporeal right, and besides, no injury can be committed with force against property which is not corporeal. The proper remedy to redress injuries against incorporeal property is an action on the case. Thus it lies for obstructions made on a road after the title of the plaintiff became vested, or for using a private way by one who had no right; or for depriving the plaintiff of the use of a well on defendant's land which he had a right to use; 85 or for not 84 83 done so, he is not answerable for any consequential damages which may ensue. Panton v. Holland, 17 Johns. N. Y. 92; Thurston v. Hancock, 12 Mass. 220; Runnels v. Bullen, 2 N. H. 534; Bouvier, Law Dict. Party- Wall. 692 Chitty, Pl. 378; Bouvier, Law. Dict. Ancient Lights. 70 1 Ld. Raym. 187, 1399, Strange, 634. 71 British Plate Manufacturers v. Meredith, 4 Term, 794. 72 2 Bingh. N. c. 134. 74 Greene v. Cole, 2 Saund. 252, d, note. 75 Kinlyside v. Thornton, 2 W. Blackst. 1111. 73 Comyn, Dig. Nuisance, B. 76 Lane v. Thompson, 43 N. H. 320. 77 Manning v. Monaghan, 23 N. Y. 539. But see Goulet v. Asseler, 22 N. Y. 225. 78 Kelly v. Donahoe, 2 Metc. Ky. 482. 80 Tinsman v. R. R. Co., 1 Dutch. N. J. 255; 81 George v. Fisk, 32 N. H. 32. 79 Files v. Magoon, 41 Me. 104. Noyes v. Stillman, 24 Conn. 15. 82 Wetmore v. Robinson, 2 Conn. 529; Wilson v. Wilson, 2 Vern. Ch. 68; Marshall v. White, Harp. So. C. 122. 83 Wright v. Freeman, 5 Harr. & J. Md. 467; Osborne v. Butcher, 2 Dutch. N. J. 308. 84 Lambert v. Hoke, 14 Johns. N. Y. 383; Williams v. Esling, 4 Penn. St. 486. 85 Shafer v. Smith, 7 Harr. & J. Md. 67. |