Ibid. Ibid. Dr. Groenvelt's case, 2 L. Raym. 214. 2 Esp. Dig. 369. Slater v. Baker and 2 Wils, 359. both these cases, the party aggrieved shall have an action on the case, for damages to be assessed by a jury.(1) If a sheriff or gaoler suffers a prisoner, who is taken upon mesne process, (that is, during the pendency of a suit,) to escape, he is liable to an action on the case. e.(2) But if, after judgment, a gaoler or a sheriff permits a debtor to escape, who is charged in execution for a certain sum, the debt immediately becomes his own, and he is compellable by action of debt, being for a sum liquidated and ascertained, to satisfy the creditor his whole demand. An advocate or attorney who betrays the cause of his client, or, being retained, neglects to appear at the trial, by which the cause miscarries, is liable to an action on the case, for a reparation to his injured client.(3) If a person undertakes the cure of any wound or disease, and by neglect or ignorance, the party is not cured or suffers materially in his health, he may recover damages in this action. But the person must be a common surgeon, or one who makes public profession of such business as surgeon, apothecary, &c. for otherwise it was plaintiff's own folly to trust an unskilful person, unless such person expressly undertook the cure. And it seems that any deviation from the established mode of practice, shall be deemed sufficient to charge the surgeon, &c. in case of any injury arising to the patient. For upon this ground an action was adjudged to lie against the surgeon and apothecary, for breaking the callous of the plaintiff's leg, after it had been set. It appearing that it had been done unskilfully, and out of the common course of practice, and for the sake of making an experiment with a new instrument. (1) See Title SHERIFF. (2) See Title ESCAPE, Vol. II. 490. (3) See Title ATTORNEYS, COUNSELLORS, AND BARRISTERS, Vol. I. 211. III. Of injuries arising from mischievous dogs. If any person keeps a dog which is used to bite, this action will lie against the owner, at the suit of any person whom the dog has bitten. 2 Esp. Dig. 370. Mason v. Keeling, 1 L. Raym. 606. But the owner must have notice that the dog was used to bite. For though if a man keeps animals feræ naturæ, as lions or bears at large, without proper care, he is answerable for any mischief they do, though without notice, yet dogs being mansuetæ natura, the owner must have notice of their viciousness, or he will not be liable. And 2 Salk. 662. it is therefore matter of substance to set out the notice in the declaration. So an action will lie against the owner of a dog used to bite sheep, for killing any, after notice to the master. And it is sufficient to support the scienter in this action, that the dog had once done so before. IV. Of this action against carriers and mechanics. There is, in law, an implied contract with a common carrier(4) or bargemaster, to be answerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a common tailor, or other workman, that he performs his business in a workmanlike manner in which if they fail, an action on the case lies to recover damages for such breach of their general undertaking. But if I employ a person to transact any of these concerns, whose common profession and business it is not, the law implies no such general undertaking; but, in order to charge him with damages, a special agreement is required. V. Of this action against innkeepers. If an innkeeper, or other victualler, hangs out a sign, and opens his house for travellers, it is an implied en (4) See Title BAILMENT, Vol. I. 232. Buxenden v. Sharp, Bolton v. Banks, Kinnion v. Davis, 3 Bl. Com. 165. Ibid. 166. Ibid. VOL. IV. 2 Esp. Dig. 407. Claye's case, & Co. 32. Claye's case, Ibid. 2 Esp. Dig. 408. Ibid. cites 1 And. 29, Anon. 2 Esp. Dig. 408. Claye's ease, 8 Co. 22. gagement to entertain all persons who travel that way; and, upon this universal assumpsit, an action on the case will lie against him for damages, if he, without good reason, refuses to admit a traveller. Innkeepers are also chargeable with any losses happening in their inns by reason of the profits, arising either from the keeping of the horses, &c. of their guests, or from the profits from the guests themselves. The person chargeable as an innkeeper must be the keeper of a common inn, for such only are chargeable for the loss of the goods of the guests whom they entertain. It must appear that the person robbed in the inn was a traveller and guest; for if a neighbour comes to an innkeeper, and desires a lodging, such person is not a guest to recover against the innkeeper. So he must be received as a guest by the innkeeper, in order to make him chargeable. For if a traveller comes to an inn, and the innkeeper tells him that his house is full, and the traveller replies, that he will shift or take his chance in the inn, which the innkeeper suffers him to do, and the traveller is robbed, the innkeeper is not liable. But if the traveller had not used these words, and the innkeeper, notwithstanding his first objection, had admitted him, he had been chargeable; for in the first case, the traveller takes all risk of loss upon himself, and the innkeeper refuses to take charge; but in the latter case, the admission is an implied waiver of the first denial, and so restores the right of charging him. The loss to the guest must be occasioned by the act of the innkeeper, or some of his servants, or through their neglect. Therefore, if the guest is robbed by his own servant or companion, the innkeeper is not liable, because it was the guest's fault to have such persons with him. But if the innkeeper appoints another person to sleep in the room with his guest, and he is robbed, the innkeeper is liable. The innkeeper is only answerable for such goods of his guests, as are within his house, and so under his care. And therefore if a guest at an inn, orders his horse to be turned out to grass, and the horse is stolen, the innkeeper is not liable; but if he had turned the horse to grass, out of his own head, he had been liable, for it was his own act, and the horse entirely in his own care. S. C. Ibid. 2 Esp. Dig. 409, eites Brand v. Glass, And even while the things are in the inn, if the innkeeper directs the guest to place his goods in a particu- Moor, 158. Dyer, 266. lar place, under lock and key, or he will not be answerable for them, and the guest refuses or neglects to do so, but puts them in another place, and they are lost, the innkeeper in that case is not chargeable. But without such particular direction from the innkeeper, if the goods are lost, it will be no excuse to say that he delivered the key of the chamber to the guest, and that he did not acquaint the innkeeper what the goods were or that the thief is discovered. Claye's case, 8 Co. 22. As the innkeeper is chargeable on the ground of the 2 Esp. Dig. 409. profit he derives from his guest or his goods, where there is no profit to the innkeeper, there shall be no charge. Noy. S. C. Therefore if a guest comes to an inn, and departs Gelley v. Clark, leaving his goods there; and tells the innkeeper that he Cro. Ja 198, will return in a few days, and during his absence the goods are lost, the innkeeper shall not be charged; for he has no profit or gain from the keeping of such dead goods, and therefore shall not be chargeable for their loss. But it must not be a temporary absence, as if the guest goes out in the morning about business, and returns be- case, Cro. Jac. 189. fore night, this is not such an absence as shall excuse the innkeeper. Sir Edwin Sandy' So the rule is confined to the case of dead goods, for if York v. Grindstone, the guest leaves his horse there for any time, though he Salk. 388. is not there himself, the innkeeper shall be charged in Beadle v. Morris, 3 Bl. Com. 166. Ibid: case of a loss; for the standing of the horse is a profit to the innkeeper, and in respect of that he is chargeable. If a servant is robbed of his master's property, the master may maintain this action against the innkeeper, at whose inn the goods were lost. VI. Of this action in cases of warranty and deceit. If any one cheats me with false cards or dice, or by false weights and measures, or by selling me one commodity for another, an action on the case lies against him for damages, upon the contract which the law always implies, that every transaction is fair and honest. In contracts likewise for sales, it is constantly understood, that the seller undertakes that the commodity he sells is his own; and if it proves otherwise, an action on the case lies against him, to exact damages for this deceit.(5) (5) The following judicious remarks are from Mr. Swift's "System of the Laws of Connecticut." "The rule of the common law" (says he)" seems to be, that if a person sells a thing which he really believes, and has reasonable ground to believe is his property, as if he obtained it by fair purchase; that no action will lie against him for selling it, even though it turns out that he has no property in it; that if he sells a thing out of his possession, affirming himself to be the owner, or knowing that he is not the owner, no action lies against him: for being out of possession, the buyer must take care. These principles, however, are not founded in justice, and I presume never have been, and never will be admitted as common law in this state [Connecticut]; but that the following principle founded in equity, will be adopted; that in all cases where a person for a valuable and adequate consideration, sells goods not his own to another, the law implies that he warrants to the buyer, that they are his own, whether he affirms they are his own, or whether or not he knows that they are not his own. And that in all cases an action will lie on this implied warranty; and that the gist of the action is not whether the seller affirmed the goods to be his, or knew that they were not; but merely whether the goods were his, or not, at the time of sale. This principle most certainly is founded in reason and common sense. For if a man |