2.. ACCORD AND SATISFACTION.

Accord and satisfaction being a good plea in all actions where damages only are to be recovered, is consequently a good plea in trespass. But a plea of accord, without satisfaction, cannot be supported.

3. JUSTIFICATION.

As to this, if defendant has a special justification he must plead it; for he cannot give it in evidence on the general issue. For not guilty denies the taking, but a justification must admit it; and so the evidence would be inconsistent with the plea.

Selw. 1114.

2 Esp. Dig. 102.

If the defence intended to be set up by the defendant, Stat. 1792, c. 41, is, that he was a justice of the peace, sheriff, deputy sheriff, or coroner, or a town, district, precinct or parish officer, or some other officer civil or military; and that the act or thing for which he is or may be sued, is or may be any act or thing done by him, by virtue or in the execution of his office, the defendant may plead the general issue, and give the special matter in evidence, upon filing in the cause a brief statement of such special matter of defence, within such time as the court shall order, of which statement the plaintiff shall be entitled to a copy, or he may plead specially at his election.

Such statement must specify, substantially, the facts intended to be proved, and in such form as to enable the adverse party to meet them.

4. RELEASE.

A release is a good plea in trespass.

But if defendant pleads a release before the time of the action brought, he must also go on and plead with an absq. hoc. that he is guilty at any time after. For plaintiff may prove a trespass at any time before action brought; so that the plea should cover the whole time to the bringing of the action.

If a trespass is joint, a release to one is good to all, for

though a trespass be committed by several, yet it may be

1 Mass. Rep. 181.

2 Esp. Dig. 109.

Ibid. 110.

Selw. 1119.

Ibid. 1133.

Stat, 1786, c. 52, s, 2.

4 Mass. Rep. 421.

sued against one or against all, for in trespass all are principals, and each is answerable for his fellow's act; and there can be but one satisfaction, a release is a release of the trespass, and all have equal benefit.

5. ESTOPPEL.

If in an action of trespass, a verdict be found on any fact or title distinctly put in issue, such verdict may be pleaded, by way of estoppel, in another action between the same parties or their privies, in respect of the same fact or title.

6. TENDER OF AMENDS.

At the common law, if a person brought an action of trespass for taking away his beasts or other goods, tender of sufficient amends before action brought was not a bar, because the party making the tender was not the owner of the goods, as in the case of a distress, but a trespasser to whom the law did not shew any favour.

But now by statute, in all actions of trespass, quare clausum fregit, wherein the defendant shall, in his plea, disclaim all right, title and interest to the land in which the trespass is by the declaration supposed to be done, and the trespass be by negligence, or involuntary, the defendant shall be admitted to plead a disclaimer, and that the trespass was done by negligence, or involuntary, and a tender or offer of sufficient amends for such trespass, before action brought, or the defendant may have leave to bring money into court to satisfy the damage the plaintiff has sustained; and in case the jury shall not assess larger damages for the trespass than the money tendered, or brought into court, the defendant shall recover of the plaintiff his reasonable costs.

X. Of the verdict and damages.

When the trespass is found by the jury to be commit. ted severally by the defendants, who plead severally, the damages ought to be severed; but if the trespass be

joint, the damages must be jointly assessed, although

the defendants plead severally.

chase v. Boulton

et al.

4 Mass. Rep. 421.

In this case, it appeared from the report of the judge, Prop. Kenn. Purand from the verdict, that there were three distinct trespasses charged in the declaration, but that each trespass was jointly committed by some of the defendants only. The damages for each trespass were assessed jointly against those of the defendants, who jointly committed it; and also the damages for the several trespasses were severally assessed. The verdict was adjudged to be

right, and judgment rendered accordingly.

TITLE CXLVI.

2 Esp. Dig. 364.

Reynolds v. Clark, 1 Stra. 334.

2 Esp. Dig. 365.

TRESPASS ON THE CASE.

TRESPASS on the case, is an action brought for the recovery of damages, for acts unaccompanied with force, and which in their consequences only are injurious. For though an act may be in itself lawful, yet if in its effects or consequences, it is productive of an injury to another, it subjects the party to this action.

As where defendant put up a spout in his own concerns, this was an act lawful in itself, but when it produced an injury to the plaintiff, by conveying the water into his yard, trespass on the case was adjudged to lie for such consequential injury.

1. Of the general nature of this action.

2. Of injuries arising from sheriffs, attorneys and surgeons.

3. Of injuries arising from mischievous dogs.
4. Of this action against carriers and mechanics.
5. Of this action against innkeepers.

6. Of this action in cases of warranty and deceit.

7. Of this action as it respects injuries to real property. 8. Of injuries to a person standing in the relation of a husband.

9. Of injuries to a person standing in the relation of a father.

10. Of injuries to a person standing in the relation of

a master.

11. Of the declaration, pleadings and evidence.

I. Of the general nature of this action.

It is not necessary, to maintain this action, that the injury which the plaintiff has sustained, has arisen from

some act of the defendant, for the action equally lies where the injury has been caused by the neglect or culpable omission of any duty it was incumbent on the defendant to perform.

As if a person suffers the ditch which borders his neighbour's land, to become so foul that the water will not run, whereby his neighbour's land is overflowed, this action lies for such culpable omission of what he was bound by law to do.

But if the injury which the party has sustained has arisen from his own neglect and folly, and so might have been avoided, this action will not lie.

Ibid.

Ibid. 366.

Virtue v. Bird,

As where plaintiff declared, that he was employed by the defendant, to carry a load of timber from Woodbridge 2 Lev. 196. to Ipswich, to be laid down where the defendant should appoint, and that he carried it, when defendant having appointed no place where it was to have been laid down, that plaintiff's horses were detained in the cold, by which some of them died, and the rest were spoiled; after a verdict for the plaintiff, judgment was arrested, for it was the plaintiff's own fault that he did not take out his horses and lead them about, or he might have unloaded the timber in some proper place and have returned.

II. Of injuries arising from sheriffs, attorneys and

surgeons.

Every one who undertakes any office, employment, trust or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence and skill. And, if by want of either of those qualities, any injury accrues to individuals, they have therefore their remedy in damages, by a special action on the case.

A few instances will fully illustrate this matter.

If an officer of the public is guilty of neglect of duty, or a palpable breach of it, of non-feasance or misfeasance; as, if a sheriff does not execute a writ sent to him, or if he wilfully makes a false return thereof; in

3 Bl. Com. 165.

Ibid.