CASE. In Practice. A question coa sted before a court of justice. An action or at at law or in equity. 1 Wheat. 352.
A case arising under a treaty (U. S. Coast. t. 3, sect. 2) is a suit where is drawn in iestion the construction of a treaty and the decision is against the title set up by either party under such treaty. Story, J ; 1W heat. 356. And see also 6 Cranch, 286 ; 9 Wheat. 819; 11 How. 5'49; 12 id. 111.
In Practice. A form of action which lies to recover damages for injuries for which the more ancient forms of action will not lie. Stephen, Plead. 15.
Case, or, more fully, action upon the case, or tres pass on the case, includes in its widest sense oeeump sit and tracer, and distinguishes a class of actions in which the writ is framed according to the special circumstances of the case, from the ancient actions, the writs in which, called brevia fermata, are col lected in the Regietrum Brevintn.
By the common law, and by the statute Westin. 2d, 13 Edw. I. c. 24, if any cause of action arose for which no remedy had been provided, a new writ was to be formed, analogous to those already in existence which were adapted to similar causes of action. The writ of trespass was the original writ most commonly resorted to as a precedent; and in process of time the term trespass seems to have been so extended as to include every species of wrong causing an injury, whether it was malfea sance, misfeasance, ot nonfeasance, apparently for the purpose of enabling an action on the case to be brought in the King's Bench. It thus includes actions on the case for breach of a parol umiertak ing, now called assuropsit, see ASSUMPSIT, and actions based upon a finding and subsequent un lawful conversion of property, now called trover, see TROVER, as well as many other actions upon the case which seem to have been derived from other originals than the writ. of trespass, as nuisance, deceit, etc.
And, as the action had thus lost the peculiar character of a technical trespass, the name was to a great extent dropped, and actions of this character came to be known as actions on the case.
As used at the present day, case is distinguished from assampait and covenant, in that it is not founded upon any contract, express or implied; from trnver, which lies only for unlawful conversion ; from definite and replevin, in that it lies only to recover damages; and from trespass, in that it lies for in juries committed without force, or for forcible in juries which damage the plaintiff consequentially only, and in other respects. See 3 Reeves, Eng. Law, 84; 1 Speocc, Eq. Jur. 237-243; 1 Chitty, Plead. 123; 3 Blackstone, Comm. 41.
A similar divison existed in the civil law, in which upon nominate contracts an action distinguished by the name of the contract was given.. Upon in nominate contracts, however, an action priescriptis verbis (whichlay where the obligation was one already recognized as existing at law, but to which no name had been given), or in Inman (which was founded on the equity of the particular case), might be brought.
2. The action lies for; Torts not committed with force, actual or implied, 2 Ired. No. C. 38; 2 Gratt. Va. 366; 20 Vt. 151; 8 Ga.. 190; as, for malicious prosecution, 6 Munf. Va. 27, 113 ; 11 Gill & J. Md. 80 : 7 B. Monr. Ky. 545 ; 21 Ala. N. S. 491 ; see MALICIOUS PROSECUTION; fraud in purchases and sales. 5 Yerg. Tenn. 290; 1 T. B. Monr. Ky. 215; 17 Wend. N. Y. 193 ; 7 Ala. 185 ; 22 id. 501; 11 Mete. Mass. 356 ; 3 Cush. Mass. 407; 17 Penn. St. 293; 4 Strobl), So. C. 69 ; 15 Ark. 109 ; 18 Ill. 299.
Torts committed forcibly where the matter affected was not tangible, 2 Conn. 529; 2 Vt. 68; as, for obstructing a private way, 14 Johns, 383 ; 5 Harr. & J. Md. 467 5 18 Pick. Mass. 110 ; 4 Penn. St. 486; 23 id. 348; 2 Dutch. N. J. 308; disturbing the plaintiff in the use of a pew, 1 Chitty, Plead. 43; injury to a fran chise.
3. Torts committed forcibly when the in jury is consequential merely, and not, imme diate, 6 Serg. & R. 348; 6 Harr. & J. Md. 230; 4 Dev. & B. No. C. 146; as, special damage from a public nuisance, Willes, 71; 5 Blackf. Ind. 35 ; 1 Rich. So. C. 444; 3 Barb. N. Y. 42; 3 Cush. Mass. 300; 4 McLean, C.