Page:Halsbury Laws of England v1 1907.pdf/262

 Action.

40 Sect.

1.

Old Forms of Action.

repaired in damages (h). It was adapted to every wrong and grievance a man could suffer by a special invasion of his right for which there was no other remedy, and it was no objection that the case was only new in the instance, if it was not new in principle (i). The writs in actions on the case were framed to meet the special circumstances of each plaintiff; but two of the more common, viz., trover and assumpsit, became so important as to constitute in effect separate forms of action. Actions on the case were either actions of trespass on the case, i.e., actions in respect of wrongs similar to those the subject of trespass, but unaccompanied by immediate violence or general actions on the case, which provided a remedy for all wrongs which would otherwise have been remediless. Of these latter the most important were actions on the case for w^aste, deceit, or nuisance. The chief distinction between trespass and action on the case was that the former was brought in respect of violence either actual or implied where the matter affected was tangible and the plaintiff's interest was immediate, while the latter was brought where the element of violence was absent, or the matter affected w^as intangible, or the injury was consequential, or the interest was only in reversion. In actions on the case the wrong complained of was called a tort, and not a trespass (k).

Difference

between trespass

and

case.

Case for deceit.

An action on the case for deceit (1) was both real and personal. would lie if one person, A., pretended to be another, B. (the defendant in an action for trespass), and came into Court and alleged that C. was his attorney, and then C. let judgment by default go against B. Again, where A., having undertaken to purchase a manor for the plaintiff, by collusion with C. contriving to defraud the plaintiff, fraudulently bought the manor for C. instead of for the plaintiff, it was held that the plaintiff might have an action on 62.

It

the case for deceit Case for nuisance.

63. The action on the case for nuisance, which lay for nuisance (ii), or for disturbance in the enjoyment of corporeal or incorporeal hereditaments, to a great extent superseded the real action on a writ of nuisance, or one of quod jjerinittat (o). Although in the action on the case a judgment to have the nuisance abated could not be obtained, the plaintiff could bring a second action on In the case, if it were not abated, and obtain larger damages. case of disturbance to corporeal hereditaments, when the injury was immediate and forcible, the proper remedy was by action of trespass; but where the injury was not immediate and forcible, and also in case of disturbance in the enjoyment of incorporeal

Taylor (1769), 4 Burr. 2345.

(7i)

Millar

(?)

Pasley v.

63,_per

[h)

Bird

See, further, note

{I)

(to)

(o)

Freeman (1789), STermEep. Randal (1762), 3 Burr. 1353.

Ashhurst,

J. {h), p.

43, post.

Fitz. Nat. Brev. 95.

MOEE, [n)

v.

v.

Y. B. 11 Sen.

6,

18,

pi.

10



24,

pi.

1



J.

Eoscoe, 353. Penruddocli s Case (1598), 5 Co. Eep. 101

a,

note.

55,

pi.

26,

v^r

CoTTES-