torts, were trespass, replevin, detinue and deceit, but as the principles of law and equity were better understood, it was perceived, that other remedies were necessary. "The statute of West. 2. 13 Ed. I. c. 24. provided, that whensoever from thenceforth in one case a writ shall be found in the chancery, and in a like case falling under the same right, and requiring 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, where a writ shall be framed by consent of the learned in the law, lest it happen for the future, that the court of our lord the King be deficient in doing justice to the suitors." In the reign of Ed. III. the courts perceiving the imperfection of writs of trespass in the old form, availed themselves of the above mentioned statute, and endeavoured to render it more universal, and to adapt it to every man's particular case. Though this innovation had to encounter much opposition, yet in the reign of Hen. IV. writs of trespass were extended to a great variety of new cases, and had assumed the name of trespass on the case. In this reign the marks of discrimination between trespass and trespass on the case, began to be distinctly ascertained: namely,that the former should albe with force and arms, and the latter never. (w) A difficulty often arises in distinguishing between those cases in which trespass, and those in which trespass on the case, is the proper remedy. To apply or draw the line of distinction between these

ways

(w) 2 Reeve's Hist. Eng. Law, 202. 203. 239. 3 do. 58. 89.

cases, Mr. Justice Gould of Connecticut, considers to be the most subtle part of the law. The authorities, he says, are very conflicting and frequently obscure. To this very able and learned lawyer, we are indebted for the following rules in relation to this important and interesting subject. (x)

When the original act occasioning the injury was forcible, the remedy is in some cases trespass, in others trespass on the case. If the forcible act is immediately injurious, trespass is the proper action; if, on the contrary, the injury for which redress is sought, is the remote or consequential effect of the forcible act, the remedy is trespass on the case. As if A. throws a log across a highway, and B. injures himself by falling over it, here the injury to B. is consequential, and the remedy is trespass on the case. (y)

The difficulty is in applying the last rule, and in distinguishing what is the immediate and what the consequential effect of any forcible act. The injury to be immediate within the rule, need not be the instantaneous effect of the forcible act. When it is instantaneous, there is no difficulty in the application. (z)

Injuries, which are not the instantaneous ef

(2) Vide, Gould's Law Lect. Tit. Trespass on the case arising ex delicto.

(y) 3 Bla. Com. 208. 9. 6 T. R. 123. 125. 153. 5 T. R. 648. 2 T. R. 476. Salk. 380. Ld. Raym. 1832.

(z) 2 Bla. Rep. 899, 900. Vide, the distinction between nuisance and trespass, in chap. 3.

fect of some forcible act, are in some cases regarded as immediate, in others consequential.

1. When the immediate or proximate cause of the injury produced is but a continuation of the original force, the effect is immediate.

2. On the other hand, when the original force ceases before the injury or damage commences, such injury or damage is consequential, and the author of it is liable in trespass on the case only.

These two general rules Judge Gould thinks will embrace every possible case.

An action on the case is frequently given by the express provision of some statute to a party aggrieved; (a) and it has been decided, that where a navigation act empowered the company to sue for calls, &c. by action of debt or on the case, that an action on the case in tort might be supported, though the defendant was thereby deprived of the means of availing himself of a set-off. (b) And whenever a statute prohibits an injury to an individual, or enacts, that he shall recover a penalty or damages for such injury, though the statute is silent as to the form of the remedy, this action may be supported. (c)

If a statute gives a remedy in the affirmative, without a negative expressed or implied, for a matter which was actionable by the common law, the party may sue at common law as well as upon the statute. (d) But when a statute makes it lawful for

(a) Com. Dig. Tit. Action upon Statute.

(b) 7 T. R. 36.

(c) 6 Mod. 26. 2 Salk. 451. 1 Chit. Plead. 144.

(d) 1 Chit. Plead. 145. Com. Dig. Tit. Action upon Statute.

mill owners to overflow the adjacent land, and at the same time provides a remedy for those who may thereby sustain damage, and is obviously intended by the legislature to relieve mill owners from frequent suits, the remedy at common law is taken away. Thus in Massachusetts, where by the statute of 1795, c. 24. for the support and regulation of mills, it is made lawful for those who erect dams for the use of mills, to overflow land which belongs to others, and provides for the owners of the land which is thus overflowed, a particular mode of obtaining compensation; it was decided in the case of Stowell v. Flagg, (e) that the only remedy for the party whose land is overflowed by means of a mill dam lawfully erected, is by complaint to the Court of Common Pleas pursuant to the provisions of the statute. In giving the opinion of the court in this case, Parker C.J. considered, that from the general purview of the statute made expressly to relieve mill owners from the difficulties and disputes to which they were before subject, there could be no doubt of the intention of the legislature to take away the common law action, which might be renewed for every new injury, and so burthen the owner of a mill with continual law suits and expences. If it should be said, (he observed) that the legislature itself has not the constitutional authority to deprive a citizen of a remedy for a wrong actually done him the answer is

(e) 11 Mass. Rep. 364.

L

obvious, that they have a right to substitute one process for another. (ƒ)

CHAPTER IX.

OF THE PARTIES, PLEADINGS AND EVIDENCE IN AN ACTION

ON THE CASE, FOR PRIVATE NUISANCES TO, AND BY MEANS OF, A WATER-COURSE.

By whom the action may be brought. If the nuisance complained of, is to the damage of the reversionary or possessory interest, an action may be brought by the reversioner or tenant in possession, or both; and each will be entitled to recover damages commensurate with the injury which their respective interests may have sustained. (a)

If the premises affected by the nuisance be aliened, the alienee, after request made to abate the nuisance, may maintain an action. (b)

The right to commence the action by a mortgagec, exists as soon as he takes actual possession of the mortgaged premises. (c)

An action will not lie by an executor for a nuisance

(f) Vide, also Ibid. 465. Every interpretation of a statute, which leads to an absurdity or to embarrass and defeat the purposes of the statute, is to be avoided. 20 John. Rep. 740.

(a) 2 Lev. 209. 2 Wils. 161. 4 Maule & Sel. 101. 2 Har. & M'Hen. 473.

(b) 5 Rep. 101.

(c) Hatch v. Dwight, App. 74.