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93. Case lies for certain wrongs of negli­gence and misfeasance, which may be commit­ted in the course of performance of a contract, and also for the nonperformance of certain ob­ligations prescribed by law, such as those in­cident to hailments and public callings; also neglect of official duty, and for certain statu­tory liabilities.
THE history of the Common Law Proced­

•ure is the history of moral rights, without

65. See Foreman v. Sawyer, 73 III. 484 (1874), hold. ing that a Judgment cannot exceed the ad damnunv laid in the Declaration.
06- City of Chicago v. McLean, 133 111. 148, 24 N.E.

527, 8 LILA. 765 (1866). Special Damages must be pleaded with particularity, such as Mental pain and expenses of cure. Illinois: Garvey v. Metropolitan ~Vcst Side Elevated It, Co., 155 Ill.App. 601 (1908), involving mental suffering; New Hampshire: Corey V. Bath, $5 NB. 530, 545 (1857), involving General Damage.

67. English: Howell y. Young, 5 B. & C. 259, 108 Eng. Rep. 97 (1826); Ithode Island: Sullivan v. Water­man, 20 R.I. 372, 39 A. 243, 39 L.R.A, 773 (1825), in­volving a public nuisance; West Virginia: Wash­ington v. Baltimore and 0. It. Co., 17 W.Va. 190 (1850), involving negligence; McGlamery v. Jack­son, 67 W.Va. 417, 68 SE. 105, 21 Ann.Cas. 239 (1910), holding that a lack of an ad darnnum clause in Trespass on the Cnse is demurrable. Federal:

Jackson and Sharp Co. v. Pay, 20 AppD.C. 105 (1902), involving damages in deceit; Pollard v, Lyon, 01 U.S. 225, 23 L.Ed. 308 (1875), Involving libel and sIan(lcr.

remedy because of the lack of an appropriate Writ or precedent in the Register of Writs, until the persistence of a demand for remedy developed the Action of Trespass on the Case to cover all cases similar to, but not quite identical with Trespass.66 In the beginning the new action was merely supplementary to the old. But through the continual and con­stantly expanding application of Case, the first instance of which appeared in 1369,69 as a remedy for a wide variety of human wrongs, not otherwise remediable, most of our modern law, contract, quasi-contract, property, and tort, has been evolved, and by reason thereof, the Common Law has been able to largely make good its proud boast, first uttered as early as and by Bracton, that where there is a wrong there is a remedy. It is for this reason that the Action on the Case is fit­quently referred to as the Great Residuary Remedy of the Common Law.
Torts in Connection with Contract

MERE breach of Contract, without more, will not sustain an Action on the Case, but the remedy is Assumpsit, Covenant, or Debt.” But often one of the parties to a contract may commit a tort in the execution of it, or in its nonperformance, and case may lie for the injury. Thus, it lies against at­torneys or other agents for neglect or other breach of duty, or misfeasance in the conduct of a cause, or other business,7’ though it is

68. Sims v. Sims, 79 N.J.L, 577, 76 A. 1063 (1910). S9’ YB. 43 Edw. III, f. 33, p1. 35(1369).

70. Michigan: Potter v. Brown, 35 Mich. 274 (1877); New York: Masters v. Stratton, 7 Bill. (N.Y.) 101 (1845).

71. Alabama: Walker v. Goodman, 21 Ala. 647 (1852);

Goodman v. Walker, 30 Ala. 482, 68 Am.Dec. 134

(1857); Arkansas: Penningtons Ex’rs. v. Veil, 11

Ark. 212, 52 Am.Dec. 262 (1850). Rhode Island:

Holmes v. Peck, I El. 242 (1849); Massachusetts:

Ashley v, Root, 4 Allen (Mass.) 504 (1862); Gilbert

V. WIlliams, 8 Mass. 51, 5 Am.Dec. 77 (1811); Dear­born v. Dearborn, 15 Mass. 316 (1818); Varnum v.

Martin, 15 Pick. (l~lass.) 440 (1834): MIssissippi;

Coopwood V. Bolton, 26 Miss. 212 (1853); New

York; Church v. Murmford, ii Johns. (N.Y.) 479


more usual to declare in Assumpsit. As­sumpsit is the usual remedy for neglect or breach of duty against bailees, as against carriers, wharfingers, warehousemen, and others having the use or care of personal prop­erty, whose liability is founded on the Com­mon Law as well as upon Contract; but they are also liable in case for an injury resulting from their neglect or breach of duty in the course of their employment.72 For any non­feasance by a party in a public employment which he professes, an Action on the Case will lie by the party injured, as where a com­mon carrier fails to perform its common law obligation to serve all who apply.73

Even though there may be an express con­tract, still, if a Common Law duty results from the facts, the party may be sued ex’ delicto in Case for any neglect of misfeasance
(1814); Pennsylvania: Lynch v. Corn,, to Use of

Barton, 16 Serg. & It, (Pa.) 868, 16 Am.Dee. 582

(1827); Shreeve v. Adams, 6 Phila. (Pa.) 260 (1867);

Vermont: Crooker v. Hutchinson, 1 Vt. 73 (1827).

And Case also lies for negligence by a surgeon in per­forming an operation. Cadwell v. Farrell, 28 Iii. 438 (1862).
72. English: Carbett v. Pacldngton, 6 Barn. & c. 268,

108 Eng.Rep. 451 (1827); Pozzi v. Shipton, 8 Adol. & E. 963, 112 Eng.llep. 1106 (1835); Illinois: Warner v. Dunnavan, 23 Ill. 380 (1859); Wabash, St. L. & P. By. Co. v. MeCasland, 11 Ul.App. 491 (1582); Nevin v~ Pullman Palace Car Co., 106 ill. 222, 46 Am.Rep. 688 (1883); Kentucky: Bell v. Wood, I Dana (Ky.)

147 (1833); Massachusetts: School District in Mod-field v. Boston, H. & B. It. Co., 102 Mass. 552, 3 Am. Rep. 502 (1869); New York: Bank of Orange Coun~ ty v. Brown, 3 IVend, (N.Y.) 158 (1830); Lockwood v. Bull, 1 Cow. (N.Y.) 322, 13 Am.Dec. 539 (1823):

Virginia: Southern Express Co. v. McVeigh, 20 Grat. (Va.) 264 (1871).

And Case Is a proper remedy against one who Las hired a horse and has Ill-used it. Botch v. Hawes, 12 Pick. (Mass.) 136, 22 Am.Dec. 414 (1831).
¶3. Illinois: Mevin v. Pullman Palace Car Co., 106 111. 222, 40 Am.Rep. 688 (1883); Virginia: Southern Express Co. v. Meveigh, 20 Grat, (Va.) 264 (1871).
And where the manufacturer of an article negligently furnishes to a purchaser something different from what be purports to furnish, such as a defective rope, whereby the purchaser Is Injured, Case will lie. Brown v Edgington, ~ Man. & 0. 279, 133 trig. Rep. 751 (1841).

in performing it.~ “If the contract be laid as inducement only, it seems that Case for an act, in its nature a tort or injury, after­wards committed in breach of the contraci, may often be adopted.” ~ Thus, Case will lie f or not accounting for, and for converting,

74. English: Dickson v. Clifton, 2 Wils, 319, 95 Eng..

Rep. 834 (17661; Burnett v. Lynch, 5 Barn. & C. 605,

108 Eng.Rep. 220 (1826); Illinois: Kankakee & S.

W. It. Co. v, Fitzgerald, 17 Ill,App. 525 (18851: Nev­in v. Pullman Palace Car Co., 106 Ill. 222, 46 Am.

Rep. 688 (1883).
Where a person engaged in lending money on real es­tate security solicits money to loan, and obtains it on his promise to take security by first mortgage on property in value double the sum loaned, and then takes a second mortgage unknown to his principal, whereby the money is lost, his principal is not lim­ited to an Action of Assurnpsit, for Breach of the Contract, but may sue in Case. Shipherd v. Field, 70 III. 438 (1873).

For the diversion of a stream of water, the use of which is directly granted by Contract under Seal, Case is the Proper Remedy. The party need not bring Covenant on the agreement. Lindeman v. LIndsey, 69 Pa. 93, 8 Am.Rep. 210 (lSfl). And see, also, Striekier -v. Todd, 10 Serg. & It. (Pa.) 63, 13 Am. Dec. 649 (1823).

Where there is a positive duty created by implication of Law independent of Contract, though arising out

of a relation or state of facts created by Contract, an Action on the Case as for a Tort will lie for dis~ regard or violation of that thEy. Flessher v, Car­stens racking Co., 93 Wash. 48, 160 P. 14 (1916). See, also, Indiana; Flint & waning Mfg. Co. x. Beckett, 167 md. 491, 79 N.E. 503, 12 LILA. 924 (1900); Massachusetts: Tuttle v. Gilbert 3,11g. Co., 145 Mass. 169, 13 N.E. 465 (1887); and Comment. Landlord & Tenant; Breach of Agreement to Re­pair, S CoI.L.Itov. 666 (1908),

~ 1. Chitty, A Treatise on Pleading Action on the

Case, 152 (Springfield, 1833); Burnett v. Lynch, 5

Barn. & 0. 609, 105 Eng.Rep. 229 (1826); Mast v.

Goodson, 3 Wils. 348, 95 EngR 004 (1772); Ccc­bett v. Paekington, 6 Barn. & 0. 273, lOS Eng.Ilep.

451 (1827).
See, generally, as to Actions on the Case as deliefo, where there has been a Contract: Connecticut:

Stoyel V. Westcott, 2 Day ((Joan.) 422, 2 Am.Dee. 100 (1807); Bulckley v. Storer, 2 Day (Conn.) 531 (1807); Eumiston v. Smith, 22 Oonn. 19 (1822); Maryland:

Philadelphia W. & B. N. Co. v. Constable, 39 Md. 155 (1873); Federal: Vasse v. Smith, 6 Crancl.

227, 3 LEd, 207 (1810); EmIgh v. Pittsburg, Ft. ‘a’, & C. B. Co., 4 (Bias.) 114, Fed.Cas.No.4,4-I0 (1867).



to his own use, bills delivered to a person to be discounted, or the proceeds of such bills.~ And a Count in Case stating that the plain­tiff, being possessed of some old materials, retained the defendant to perform the car­penter work on a building, and to use those materials, but that the defendant, instead of using them, made use of new materials, there­by increasing the expense, was sustained.77

Though Covenant or Assumpsit is a con­current remedy, Case will lie for a false war­ranty on the sale of land or goods.75 And Case is the remedy for false representations (required by the Statute of Frauds to be in writing) as to the credit of a person.7° It is also the proper remedy for any other fraud or deceit independently of and without rela­tion to any contract between the parties,8° and for fraudulent representations, not intro­duced into a written contract between the

parties respecting the subject-matter of the representations.81

56. English: Samuel v. 3udin, 6 East 333, 102 Eng. Rep. 1314 (1805); North Carolina: Smith v. White, 6 fling, (N.C.) 21S (1828).
77- Elsee v. Gatward, 5 TB, 143, 101 Eng.Itep. 82 (1793).
7S. English: Stuart v. WIlkins, 1 Doug, 21, 99 Eng.

Rep. 15 (1778); WIlliamson v. Allison, 2 East 446,

102 Eng,Itep. 439 (1802); Michigan; Beebe v. Knapp,

25 MIch. 53 (1873); Carter v. Glass, 44 Web. 154,

6 N.W. 200, 38 Am.Rep. 240 (1880); New Hamp­shire: Mahurin v. Harding, 28 N.H. 128, 59 Am.Dec.

401 (1853); New York: Culver v. Avery, 7 Wend.

(N.Y.) 380, 22 Ain.Dee. 586 (1831); Ward v. Wiman,

17 Wend. (N.Y.) 193 (1837); Evertson’s Ex’rs. V.

Miles, 8 Johns. (N.Y.) 138 (1810).

79. New York; Upton v. Vail, 6 Johns. (N.Y.) 181, 5 ,Am.Dec. 210 (1810); Federal: Russell v. Clark’s Ex’rs., 7 Craneli (U.S.) 92, 3 L.Ed. 271 (1812).
$0’ English: Pasley v. Freeman, 3 T.B. 51, 100 Eng.

Rep. 450 (1789); Adamson V. Jarvis, 4 RIng. 73, 130

Eng.Rep. 693 (1827); New York: Culver v. Avery,

7 Wend. (N.Y.) 380, 22 Am.Dec. 586 (1831); Barney

v. Dewey, 13 Johns. (N.Y.) 226, 7 Am.Dec. 372 (1816);

Wardell -v. Fosdlek, 13 Johns. (N.Y.) 325, 7 Am.Dee.

383 (1816); Monell v. Colden, 13 Johns. (N.Y.) 395, 7

Am.Dec. 390 (1816); 1 Street, Foundations of Legal

Liability, 375 (Northport, 1906).

Si. Illinois: Applebee v. Rumery, 28 fll. 280 (1862); Peck v. Brewer, 48 Ill, 54 (1868); .,Brumbaeh t

If goods are obtained on credit through a fraudulent contract, the proper remedy is Case (or Trover), at least before the expira­tion of the credit; for if, before that time, Assumpsit is brought to recover the price, it is a recognition and aflirmance of the con­tract, and it may be successfully met by the defense that the term of credit has not ex­pired.82

Case will lie against a surgeon or agent to recover damages for improper treatment, or

for want of skill or care though there is a

concurrent remedy by Assumpsit on the con­tract.83

A reversioner may maintain an Action on the Case against his tenant or against a stranger for commissive or wi]Jfui waste, to the injury of the reversion; and it makes no difference that the tenant has covenanted not to commit waste, for the remedy on the covenant is merely concurrent, and not ex­clusive.84 As to whether the action will lie
Flower, 20 Ill.App. 219 (1889); Massachusetts:

Burns v. Dockray, 156 Mass. 135, 30 N.E. 551 (1802);

Michigan: Walsh v. Sisson, 49 Mich. 423, 13 NW.

802 (1882); New York: Culver -v. Avery, 7 Wend.

(N.Y.) 280, 22 Am.Dec. 586 (1831); Warden v. Fos­dick, 13 Johns. (N.Y.) 325, 7 Am.Dec. 280 (1816);

Hallock v. Powell, 2 Cal. (N.Y.) 216 (1804).

82. English; Ferguson v. Carrington, 9 Barn. & C. 50,

109 Eng.Bep. 22 (1829); Illinois; Kellogg v. Turpic,

93 III. 265, 34 Am.Itep. 163 (1879).

In some Jurisdictions, however, immediate recovery of the price Is allowed. Heilbronn v. Herzog, 165 N. Y. 98, 58 N.E. 759 (1900).

83. EnglIsh: Seare v. Prentice, 8 East 348, 103 Eng. Rep. 376 (1807); North Carolina: Gladwell v. Steg­gall, 5 thug. (NC.) 733 (1866).
$4. 1 Saund. 323b, 85 Eng.Rep. 459 (1069); Greene v. Cole, 2 Saund. 252b, 85 Eng.Rep. 1037 (1670); 1 Chit­ty, A Treatise on Pleading, c. II, Of the Form of Action, 142 (3rd Am. from the second London edi­tion by Dunlap) (Philadelphia, 1819); English: Kin~ lyside v. Thornton, 2 W.Bl. 1111, 96 Eng.Rep. 657 (1776); New York: Short v. Wilson, 13 Johns. (N. Y.) 33 (1814).

The tenant’s remedy against a stranger is Trespass, I Chitty, A Treatise on Pleading, c. II, Of the Form of Action, 107 (3rd Am. from the second London edition by Dunlap, Philadelphia, 1819); Attersoll v. Stevens, 1 Taunt. 194, 127 Eng.Rep. 807 (1808).

Sec. 93




Cli. 8

against a tenant for permissive waste (that is, a neglect to repair), there is a conflict of opinion. It seems that it does not lie, and that the only remedy is on the covenants in the lease.85
Injury to a Lien

IN the New York case of Yates v. Joyce,8° the plaintiff, A, alleged that he, as assignee of a Judgment from one K against J, which was a lien on the property of J, was about to take out Execution and seize a certain lot of land; that the defendant, B, well knowing the premises and intending to injure the plaintiff, and prevent him having satisfaction, tore down a barn on the premises worth $300, leaving the ground of less value than the plaintiff’s judgment; and that J, being in­solvent, had no other property with which to satisfy the Judgment. The defendant De­murred, and on the argument contended that the plaintiff, having a mere lien only, and not being in possession could not maintain any action against the defendant, who is answerable only to the person in possession, and that there was no precedent for such an action.

The Court, in overruling the defendant’s Demurrer, declared: “This appears to be an action of the first impression. The books do not furnish a precedent in its favor. It is obvious, however, from the statement of the plaintiff’s case, in the Declaration the truth of which is admitted by the Demurrer, that he has sustained damage by the act of the defendant, which he alleges was done fraudulently, and with intent to injure him. It is the pride of the Common Law, that wherever it recognizes or creates a private
85. Gibson v. Wells, 1 Bos. & P. (N.H.) 290, 127 Eng.

Rep. 473 (1805); Herne v. Bembow, 4 Taunt. 764,

128 Eng.Rep. 531 (1813); Jones v. Hill, 7 Taunt. 392,

129 Eng,Rep. 156 (1817).

But Is seems to lie against an assignee of the lease. Burnett v. Lynch, 5 Barn. & 0. 580, 108 EngItep. 220 (1826).

right, it also gives a remedy for the wilful violation of it. The facts stated in the Dec­laration being admitted by the Demurrer, we are to assume that the plaintiff had acquired a legal lien on the property, by means of the Judgment in favor of Kane, and the assign­ment of it to himself; and that the injury to the property was done with a full know!­edge of the plaintiff’s rights. If, then, there is any remedy for him, it is in this Form of Action only that he can obtain it. Trespass will not lie; for the plaintiff was not in pos­session. The principle which governed the decision in the case of Smith v. Tonstall, (Carth. 3; 13 Vin.Abr. 553) is somewhat analogous. It was there ruled that an action will lie against the defendant for confessing

a Judgment by fraud, in order to pi’event the

plaintiff from having the benefit of a Judg­ment he had obtained against him. It is sound principle, that where the fraudulent misconduct of a party occasions an injury to the private rights of another, he shall be re­sponsible in damages for the same; and such is the case presented by the pleadings in this cause.” ~

Injury to Reversionary interest

TRESPASS quase clausum fregit may be maintained by the owner of land for an in­jury to his freehold where it is in the occupa­tion of a tenant at will.88 This doctrine was not extended so as to apply to a remainder-man who was not entitled to possession. And it has been held that such an action will not lie by the reversioner for waste committed by a person acting under the authority of the tenant for life.88 But the reversioner or re­

87. In eecord: Gonlet v. Asseler, 22 N.Y. 225 (1860), which was decided under the Reformed Procedure.
88. Bartlett v. Perkins, 13 Me. 87 (1836); Kimball v.
Sumner, 62 Me. 305 (1823); Starr v. Jackson, 11 Mass. 519 (1810).
As to the true explanation of this result, see the dis­cu~sion under Injury to Freehold hy Tenant at Will, following immediately hereinafter.
89. Shattuck v. Gragg, 23 Pick, (Mass.) 88 (1839).

~. 11 Johns. (N.Y.) 136 (1814).

Sec. 93



mainderman is not without remedy when the injury is of a permanent character affecting the inheritance, for in such case an Action of Trespass on the Case would heY0 The Rule of Pleading, as clearly laid down in the lead­ing case of Jackson v. Pesked,9is that where the plaintiff sues as a reversioner, he must either state an injury of such a permanent nature as to be necessarily injurious to his reversion; or if the wrongful acts complained of are not of such a character as necessarily to result in an injury to the reversionary es­tate, but only of an equivocal nature, the plaintiff must allege that they were done to the damage or prejudice of his reversion; and in the latter case, the lack of such an allegation, will be fatal on demurrer; or good cause for arresting the judgment.°2
injury to Freehold by Tenant at Will

AT Common Law, a landlord, in order to maintain Trespass, must have been in actual possession of the premises at the time the trespass occurred.°3 And he had no Remedy in Waste against a tenant at will.94 In this situation it has usually been said that the wrongful act of the tenant at will terminat­ed the tenancy, restored the possession to the landlord, who could then maintain an Action of Trespass. Actually there was no direct forcible invasion of the landlord’s possession; in fact the tenant had possession by legal means. But in the face of an urgent demand for a remedy, by resort to a fiction, Trespass

90. Lawry v, La wry, 88 Me. 482, 34 A. 273 (1806).
91. 1 Maule & 8. 234, 105 Eng.Rep. 88 (1813). See also,

Maine: Lawry V. Lawry, 88 Me. 482, 34 A. 273

(1896); New Jersey: Potts v. Clark, 20 N.J.L. 536,

541 (1844).
92. Cf. Ilallignn v. Chicago & Rock Island It. It., 15 In. 558 (1854).
93. Campbell v. Arnold, I Johns. (N.Y.) 511 (1806). Cf. Shrewsbury’s Case, 5 Co.Rep. 13a, 77 Eng.Rep. 68 (1600); Starr v. Jackson, 11 Mass. 510 (1814).
94. Anonymous, SavIlle 64, 123 Eng.Rep. 1021; Cr. Shrewsbury’s Case, 5 Co.Rep. ISa, 77 Eng.Rep. 08 (1600); Starr v. Jackson, 11 Mass. 519 (1814).

was commandeered to serve, and to fill in a temporary gap in the remedial law, although its fundamental theory that it lay only for wrongful interference with possession, was clearly violated; the tenant at will in fact remained in possession after his misconduct. Thus Trespass, Case not being in existence when the problem first arose, was stretched beyond all semblance of its original theory. to cover what was in fact an indirect, conse­quential injury to the landlord’s interest. And the proof of this is that when Case came in, it was said in West v. Treude °~ that the landlord might have either an Action on the Case or Trespass against a tenant at will. In time however Trespass ceased to be used and the accepted remedy became an Action on the Case in the Nature of Waste.
Seduction of Another Man’s Daughter, Wife or Servant

WHEN the demand for a remedy arose for the seduction or debauching of another’s daughter, wife or servant, the first remedy given by the Common Law was Trespass vi et armis, the law implying force, thus en­abling the father, husband or servant to sue

in that action.96 Here again the injury was an indirect consequential one, and here, again, as in the tenant at will case, Trespass was commandeered to supply a remedy, Case not yet being available. By resort to a fic­tion, the courts treated the daughter as the servant of the master, who thus acquired a possessory interest. Seduction was an inter­ference with such possessory interest, result­ing in damage, for which Trespass thus be­came a remedy, When Case came in, it was utilized as a remedy for what was clearly an indirect consequential injury, not an in­jury to the possession of the husband, par-
95- CroCar. 187, 79 Eng.Rep. 764 (1630).
98. ~ v. Hazlewood, 5 Mees. & W. 515, 151

Eng.Rep. 218 (1839); Tu1]idge v. Wade, 3 Wi!s.K.B.

18, 95 Eng.Itep. 909 (1769); Woodward v. Walton, 2

B. & P. (N.h.) 476, 127 Eng.Rcp. 715 (1807), in which

the Dee]aration was in Trespass.



Ch. 8

ent or master. Accordingly, in Chamberlain v. Hazlewoodj’7 we find the plaintiff bringing Case for the consequential damage. In such case he may now, at his election, treat the loss of society or services, and not the defendant’s act of seduction, as the injury, and, as that is merely consequential, sue in Case.°8

The order of development is illustrated by two New York cases; in the first, Alcerley v.

Haines,9~ decided in the year 1805, Trespass was held to be the proper remedy for the seduction of a daughter, whereas, in the sec­ond, Moran v. Dawes,1 decided just twenty years later, in 1825, the Supreme Court of the State sustained Case, declaring: “It is clear, we think, both upon principle and au­thority, that Case, is, without exception, a proper remedy. (SeIw. N. P. 1083, note (17) cites 2 T.R. 167, 8, per Euller, 3., and per Holt, C. J., Ld. Raym. 1032.) Neither the injury to the person of the child nor the property of the plaintiff are, in truth, ever taken into the account. They are little more than a mere fiction, adopted in order to sus­tain the Remedy by Trespass. The direct injury may be waived in all cases; and the declaration framed to meet the consequen­tial injury, disregarding entirely every con­sideration except the loss of service, and the more important one of seduction and dis­grace. A very usual case may be supposed, in which, if we are to be governed by the technical rules relating to an Action of Tres­pass, the father would be remediless for the most aggravated form of the injury, unless he has an election. The seducer is received at the dwelling of the father on the footing of a suitor; he thus having a license to enter the house, of which he avails himself to ac­complish the seduction, with the consent of
97. 5 Mees. & W. 515, 151 Eng.Rep. 218 (1839~.

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