sortium vel servitium amisit:90 And for an assault and false TRESPASS. imprisonment, either without pretext of legal authority or pro- sonment, or False impricess, or under colour of process at law, where it is issued out seizinggoods, of a court which has no jurisdiction of the subject matter, 92 91 process, or voidable. or is irregular and void on the face of it, and not merely erroneous and voidable, or has been misapplied or abused;93 under legal in which cases trespass lies against the prosecutor or the plain- which is void tiff in the suit, or his attorney, or the officer, according to the circumstances of the case, and sometimes even against the judge or magistrate. These rules equally apply to property when the subject of an injury under colour of law. An officer taking the person or goods of one not named or mis- Irregular named in the process,95 or executing it after the return day96 process. or out of his bailiwick, or serving civil process on Sunday,98 is a trespasser. But where the proceedings are formal and regular, however unfounded and malicious they may be, the action on the case is the proper remedy. 97 execution of of court ex and when of ficer liable. Α party, who extends the power of a court of special or Jurisdiction limited jurisdiction to a case to which it cannot lawfully be ceeded, extended, is a trespasser,99 and the distinction in cases of excess of jurisdiction, in relation to the officer, is, that where the subject matter of the suit is not within the jurisdiction of" the court, all the proceedings are void, and the officer as well as the party is a trespasser; but where the subject matter is within their jurisdiction, and the want of jurisdiction is to the person or place, the officer is excused, unless the want of jurisdiction appears on the process.100 Cro. Jar. 501. Ld. Raym. Rep. 274. 2 Bos. & Pul. Rep. 476. 2 Maule & Selw. Rep. 436. 3 Campb. Rep. 526. n. contra. 2 Term Rep. 167. 6 East's Rep. 388. 391. 913 Cranch. Rep. 331. 2 John. Cas. 27. 12 John. Rep. 257. 13 John. Rep. 444. 1 Caines' Rep. 92. 2 John. Rep. 437. 22 13 John. Rep. 444. 3 Caines' Rep. 267. VOL. I. 3 TRESPASS. goods. This action also lies for injuries to, or taking away a chatTrespass on tel, of which the plaintiff has, at the time when the wrong is committed, the actual possession, or the constructive possession in respect of the right of property vested in him, connected with the right to reduce it to actual possession whenever he pleases:1 and the bare possession without any title is Possession of sufficient to support the action, except as against the rightful ficient. owner; and the defendant can not as in trover, set up a pa plaintiff suf Abuse of goods, rity. Trespass by relation, S ramount title in a third person. The rules in relation to the property or possession requisite to maintain trespass de bonis asportatis are essentially the same as in trover.1 The injury may consist not only in an unlawful taking, but in a subsequent abuse of a lawful possession, as where a baior of autho- lee of a chattel destroys it: and where a person having authority in law to take possession of the goods of another afterwards abuses his authority, he is responsible, not merely for the act of abuse, but it is construed to relate back to the commencement of his possession, so as to render the transaction ab initio, a trespass. As, where the owner of land, who in cases of takes cattle damage feasant, works or kills the distress, he becomes a tresspasser ab initio. But it is provided by statute that when a distress is made for rent justly due, a subsequent irregularity or unlawful act does not make the party a trespasser ab initio. A distrainer impounding cattle, taken damage feasant, without a previous assessment of the damages by the fence viewers according to statute is a trespasser ab initio.1o distress. 18 John. Rep. 432. 11 John. Rep. 377. 285. 12 John. Rep. 348. 2 Barn. & Ald. Rep. 551. 24 John. Rep. 158. 13 John. Rep. 141. 276. 561. 3 13 John. Rep. 276. Com. Dig. Abatement. H. 31. 42 Saund. Rep. 47. b. c. 1 John. Rep. 512. 6 John. Rep. 195. 7 John. Rep. 535. 8 John. Rep. 432. 11 John. Rep. 285. 377. 385. 386. 12 John. Rep. 407. 7 5 1 Chitty pl. 171 11 John. Rep. 377, 13 John. Rep. 414. 5 Taunt. Rep. 69. 78 Co. Rep. 146. 10 John. Rep. 373. 6 Bac. Abr. 559. $2 R. St. 504. P. 3. Ch. 8. T. 9. s. 28. 14 John. Rep. 425. 10 2 John. Rep. 191. 10 John. Rep. 253. 367. 13 John. ep. 477. 2. R. St. 517. P. 3. Ch. 8. T. 11. s. 1. 2. 3. 4. 2 Rev. Laws, 134. .11 But it is a general rule, that a mere non feasance, as, for in- TRESPASS. stance, a refusal to restore the goods, can not have this effect ;11 and in no case will the abuse of an authority in fact, that is, an authority granted by the party, make a trespasser ab initio.12 Trespass will not lie between the joint owners of a chattel, Joint owners except for the destruction of it.13 Where the taking is lawful, or at least excusable, trespass on the case, and not trespass, is the proper remedy.14 TRESPASS ON THE CASE. THE CASE. Origin of. would not ble injuries, Actions of trespass on the case, or actions on the case, as TRESPASS ON they are indifferently called, were known at common law,15 but are generally founded upon the equity of the statute of Westminster the 2nd.16 Trespass on the case formerly would not Formerly lie for wrongs accompanied with force, or for injuries which lie for forci were occasioned directly by force, and the distinction between direct injuries from forcible acts, for which trespass alone would lie, and consequential injuries, for which trespass on the case was the proper remedy, was sometimes attended with great difficulty. The revised statutes have abolished this distinction so far as but lies now by statute. to allow case to be brought wherever trespass will lie, making them concurrent remedies for injuries occasioned directly by force. It is provided that "Where by the wrongful act of any person, an injury is produced either to the person, per "15 John Rep. 401. 6 Bac. Abr. 560. 12 8 Co. Rep. 146. 10 John. Rep. 256. 13 John. Rep. 414. 4 Camp. Rep. 526. 6 Bac. Abr. 561. 13 15 John. Rep. 179. 142 Saund. Rep. 47. k. 11 John. Rep. 384. 15 3 Bl. Com. 123. 2 Term Rep. 129. 16 3 Reves' Hist. 89. 243. 3 Bl. Com. 51. 52. 172 R. St. 553. P. 3. Ch. 8. T. 17. s. 16. THE CASE. TRESPASS ON Sonal property, or rights of another, or to his servant, child, or wife, for which an action of trespass may by law be brought, an action of trespass on the case may be brought to recover damages for such injury, whether it was wilful, or accompanied by force or not; and whether such injury was a direct and immediate consequence from such wrongful act, or whether it was consequential and indirect.” When it lies generally, Particular instances. Trespass on the case lies besides, and where trespass would not lie, to recover damages for consequential wrongs or torts, to persons individually or relatively; or to real or personal property, or some right or privilege incident thereto. These actions are either ex delicto or quasi ex contractu: And they are said to arise from malfeasance, or doing what the defendant ought not to do; nonfeasance, or not doing what he ought to do; and misfeasance, or doing what he ought to do, improperly and they are commonly for doing or omitting something contrary to the general obligation of law, the particular rights or duties of the parties, or some implied contract between them. Actions on the case lie for some consequential hurt or damage arising from public nuisances ;18 against sheriffs and other officers for negligence in their offices;19 against persons doing things, in the line of their professions, carelessly or unskilfully, or out of their professions, if on a special undertaking;20 for injuries to health, by selling bad provisions, or exercising a noisome trade;21 for mischief done by a dog or other domestic animal, if the owner have notice that he is mischie 18 Salk. Rep. 12. 5 Co. Rep. 72. 359. 3 Bl. Com. 122. 166. 3 East's 3 Carth. Rep. 193. Rep. 348. 19 1 Roll. Abr. 93. 20 11 John. Rep. 479. 16 John. Rep. 74. 1 H. Bl. Rep. 161. Ld. Raym. Rep. 214. 2 Wils. Rep. 21 12 John. Rep. 468. 1 Roll. Abr. 90. 95. 3 Bl. Com. 122. 166.9 Co. Rep. 52. 59. a. Hutton Rep. 135. 1 Fonb. Eq. 110. vous,22 or by animals mansuetæ naturæ, or ferocis naturæ, without notice;25 for disturbing one in the enjoyment of his rights, as right of way;24 against a sheriff, for an escape on mesne or final process;25 against a sheriff for refusing to take sufficient bail;26 against rescuers of one taken on mesne or final process, in favour of the original plaintiff, or for rescuing a; distress.27 It lies in favour of a sheriff, against a person escaping;28 for clients against attorneys for neglect or misconduct,29 and sometimes in favour of the opposite party;30 against justices of the peace, or other officers, for misconduct, or for refusing or neglecting to do their duty;31 against bailees for negligence or want of that degree of care required by law, or which is expressly stipulated for ; against owners or masters of vessels for goods lost or injured through negligence; against post-masters for letters, lost by their own fault, but not if by the fault of their clerks ; against innkeepers for the loss of their guests' goods;36 against innkeepers and common carriers .35 34 TRESPASS ON THE CASE. 22 Str. R. 1264. Ld. Raym. Rep. 608. Cro. Car. 254, Sal. Rep. 662. 3 Sal. Rep. 12. Ld. Raym. Rep. 606. 109. Cro. Car. 254. 4 Co. Rep. 18. b. 14 John. Rep. 383. 3 Wils. Rep. 348. 3 Bl. Com. 236..241. 9 Co. Rep. 112. 3 Lev. Rep. 266. Cro. Eliz. 845. 1 Vent. Rep. 275. 2lb. 186. Str. Rep. 5. 638. 251 Show. Rep. 176. Cro. Eliz. 17. 2 Str. Rep. 873. 26 Cro. Car. 141. 196. 2 Wils. Rep. 313. 2 Mod. Rep. 31. 8 Co. Rep. 146. 1 Leon. Rep. 189. 6 Mod. Rep. 211. 8 Term. Rep. 127. Cro. Jac. 419. 486. Cro. Car. 77. 109. Hob. Rep 180. Hutton's Rep. 98. Cro. Eliz. 53. 3 Co. Rep. 52. b. 29 11 John. Rep. 479. 2 Wils. Rep. 325. 4 Burr. Rep. 260. Sal. Rep. 86. 30 Hutt. Rep. 125. 3 Wils. Rep. 311 Leon. Rep. 323. 15 John. 323 East's Rep. 62. 16 John. 33 Sal. Rep. 440. 3 Sal. Rep. 203. 5 Term Rep. 651. 3 East's Rep. 62. 70. 5 Burr. Rep. 2611. |