CASE practice. A contested question before a court of justicea
suit or action a cause. 9 Wheat. 738.
CASE, remedies. This is the name of an action in very general use,
which lies where a party sues for damages for any wrong or cause of complaint
towhich covenant or trespass will not lie. Steph. Pl. 153 Wodd. 167 Ham. N. P.
1. Vide Writ of trespass on the case. In its most comprehensive signification,
case includes assumpsit as well as an action in form ex delicto; but when simply
mentioned, it is usually understood to mean an action in form ex delicto. 7 T.
R. 36. It is a liberal action; Burr, 906, 1011 1 Bl. Rep. 199; bailable at
common law. 2 Barr 927-8; founded on the justice and conscience of the Tiff's
case, and is in the nature of a bill in equity 3 Burr, 1353, 1357 and the
substance of a count in case is the damage assigned. 1 Bl. Rep. 200.
2. An action on the case lies to recover damages for torts not committed with
force actual or implied, or having been occasioned by force, where the matter
affected was not tangible, or where the injury was not immediate but
consequential; 11 Mass. 59, 137 1 Yeates, 586; 6 S. & R. 348; 12 S. & R.
210 ; 18 John. 257 19 John. 381; 6 Call, 44; 2 Dana, 378 1 Marsh. 194; 2 H.
& M. 423; Harper, 113; Coxe, 339; or where the interest in the property was
only in reversion. 8 Pick. 235; 7 Conn. 3282 Green, 8 1 John. 511; 3 Hawks, 2462
Murph. 61; 2 N. H. Rep. 430. In these several cases trespass cannot be
sustained. 4 T. 11. 489 7 T. R. 9. Case is also the proper remedy for a wrongful
act done under legal process regularly issuing from a court of competent
jurisdiction. 2 Conn. 700 11 Mass. 500 6 Greenl. 421; 1 Bailey, 441, 457; 9
Conn. 141; 2 Litt. 234; 3 Conn. 5373 Gill & John. 377. Vide Regular and
3. It will be proper to consider, 1. in what cases the action of trespass on
the case lies; 2. the pleadings 3. the evidence; 4. the judgment.
4. 1. This action lies for injuries, 1. to the absolute rights of persons 2.
to the relative rights of persons; 3. to personal property; 4. to real
5. - 1. When the injury has been done to the absolute rights of persons by an
act not immediate but consequential, as in the case of special damages Irising
from a public nuisance Willes, 71 to 74 or where an incumbrance had been placed
in a public street, and the plaintiff passing there received an injury; or for a
malicious prosecution. See malicious prosecution.
6. - 2. For injuries to the relative rights, as for enticing away an infant
child, per quod servitium amisit, 4 Litt. 25; for criminal conversation,
seducing or harboring wives; debauching daughters, but in this case the daughter
must live with her father as his servant, see Seduction; or enticing away or
harboring apprentices or servants. 1 Chit. Pl. 137 2 Chit. Plead. 313, 319. When
the seduction takes place in the husband's or father's house, he may, at his
election, have trespass or case; 6 Munf. 587; Gilmer, 33but when the injury is
done in the house of another, case is the proper remedy. 5 Greenl. 546.
7. - 3. When the injury to personal property is without force and. not
immediate, but consequential, or when the plaintiff Is right to it is in
reversion, as, where property is injured by a third person while in the hands of
a hirer; 3 Camp. 187; 2 Murph. 62; 3 Hawks, 246, case is the proper remedy. 8
East, 693; Ld. Raym. 1399; Str. 634; 1 Chit. Pl. 138.
8. - 4. When the real property which has been injured is corporeal, and the
injury is not immediate but consequential, as for example, putting a spout so
near the plaintiff's land that the water runs upon it; 1 Chit. Pl. 126, 141;
Str. 634; or where the plaintiff's property is only in reversion. When the
injury has been done to, incorporeal rights, as for obstructing a private way,
or disturbing a party in the use of a pew, or for injury to a franchise, as a
ferry, and the like, case is the proper remedy. l Chit. Pl. 143.
9. - 2. The declaration in case, technically so called, differs from a
declaration in trespass, chiefly in this, that in case, it must not, in general,
state the injury to have been committed vi et armis; 3 Conn. 64; see 2 Ham. 169;
11 Mass. 57; Coxe, 339; yet after verdict, the words " with force and arms"
will, be rejected as surplusage; Harp. 122; and it ought not to conclude contra
pacem. Com. Dig. Action on the Case, C 3. The plea is usually the general issue,
l0. - 3. Any matter may, in general, be given in evidence, under the plea of
not guilty, except the statute of limitations. In cases of slander and a few
other instances, however, this cannot be done. 1 Saund. 130, n. 1; Wilies, 20.
When the plaintiff declares in case, with averments appropriate to that form of
action and the evidence shows that the injury was trespass; or when he declares
in trespass, and the evidence proves an injury for which case will lie, and not
trespass, the defendant should be acquitted by the jury, or the plaintiff should
be nonsuited. 5 Mass. 560; 16 Mass. 451; Coxe, 339; 3 John. 468.
11. - 4. The judgment is, that the plaintiff recover a sum of money,
ascertained by a jury, for his damages sustained by the committing of the
grievances complained of in the declaration, and costs.
12. In the civil law, an action was given in all cases of nominate contracts,
which was always of the same name. But in innominate contracts, which had always
the same consideration, but not the same name, there could be no action of the
same denomination, but an action which arose from the fact, in factum, or an
action with a form which arose from the particular circumstance, praescriptis
verbis actio. Lec. Elem. 779. Vide, generally, Bouv. Inst. Index, h. t.
CASE, STATED, practice. An agreement in writing, between a plaintiff
and defendant, that the facts in dispute between them are as there agreed upon
and mentioned, 3 Whart. 143.
2. The facts being thus ascertained, it is left for the court to decide for
which party is the law. As no writ of error lies on a judgment rendered on a
case stated, Dane's Ab. c. 137, art. 4, n. 7, it is usual in the agreement to
insert a clause that the case stated shall be considered in the nature of
3. In that case, a writ of error lies on the judgment which may be rendered
upon it. And a writ of error will also lie on a judgment on a case stated, when
the parties have agreed to it. 8 Serg. & Rawle, 529.
4. In another sense, by a case stated is understood a statement of all the
facts of a case, together with the names of the witnesses, and, a detail of the
documents which are to support them. In other words, it is a brief. (q. v.)
CASH, commerce. Money on hand, which a merchant, trader or other
person has to do business with.
2. Cash price, in contracts, is the price of articles paid for in cash, in
contradistinction to the credit price. Pard. n. 85; Chipm. Contr. 110. In common
parlance, bank notes are considered as cash; but bills receivable are not.
CASH-BOOK, Commerce, accounts. One in which a merchant or trader
enters an account of all the money, or paper moneys he receives or pays. An
entry of the same thing ought to be made under the proper dates, in the journal.
The object of the cash-book is to afford a constant facility to ascertain the
true state of a man's cash. Pard. n. 87.
CASHIER. An officer of a moneyed institution, who is entitled by
virtue of his office to take care of the cash or money of such institution.
2. The cashier of a bank is usually entrusted with all the funds of the bank,
its notes, bills, and other choses in action, to be used from time to time for
the ordinary and extraordinary exigencies of the bank. He usually receives
directly, or tbrough subordinate officers, all moneys and notes of the
bankdelivers up all discounted notes and other securities, when they have been
paid draws checks to withdraw the funds of the bank where they have been
deposited; and, as the executive officer of the bank, transacts much of the
business of the institution. In general, the bank is bound by the acts of the
cashier within the scope of his authority, expressed or implied. 1 Pet. R. 46,
70Wheat. R. 300, 361 5 Wheat. R. 326; 3 Mason's R. 505; 1 Breese, R. 45; 1 Monr.
Rep. 179. But the bank is not bound by a declaration of the cashier, not within
the scope of his authority; as when a note is about to be discountedby the bank,
he tells a person that he will incur no risk nor responsibility by becoming an
indorser upon such note. 6 Pet. R. 51; 8 Pet. R. 12.Vide 17 Mass. R. 1 Story on
Ag. 114, 115; 3 Halst. R. 1; 12 Wheat. R. 183; 1 Watts & Serg. 161.
To CASHIER, punishment. To break; to deprive a military man of his
office. Example: every officer who shall be convicted, before a general court
martial, of leaving signed a false certificate relating to the absence of either
officer or private soldier, or relative to his daily pay, shall be, cashiered.
Articles of war, art. 14.
CASSATION, French law. A decision which emanates from the sovereign
authority, and by which a sentence or judgment in the last resort is annulled.,
Merl. Rep. h. t. This jurisdiction is now given to the Cour de Cassation.
2. This court is composed of fifty-two judges, including four presidents, an
attorney-general, and six substitutes, bearing the title of advocates general; a
chief clerk, four subordinate clerks, and eight huissiers. Its jurisdiction
extends to the examination and superintendence of the judgments and decrees of
the inferior court, both in civil and criminal cases. It is divided into three
sections, namely, the section des requetes, the section civile, and the section
criminelle. Merl. Rep. mots Cour de Cassation.
CASSETUR BREVE, practice. That the writ be quashed. This is the name
of a judgment sometime sentered against a plaintiff when he cannot prosecute his
writ with effect, in consequence of some allegation on the defendant's part. The
plaintiff, in order to put an end to any further proceeding in the action,enters
on the roll cassetur breve, the effect of which is to quash his own writ,which
exonerates him from the liability to any future costs, and allows him to sue out
new process. A cassetur bill a may be entered with like effect. 3 Bl. Com. 340;
and vide 5 T. R. 634; Gould's Plead. c. 5, 139; 3 Bouv. Inst. n. 2913-14. Vide
CASTIGATORY, punishments. An engine used to punishwomen who have been
convicted of being common scolds it is sometimes called the trebucket, tumbrel,
ducking stool, or cucking stool. This barbarous punishment has perhaps never
been inflicted in the United States. 12 S. & It. 225. Vide Common Scold.
CASTING VOTE, legislation. The vote given by the president or speaker
of a deliberate assembly; when the votes of the other members are equal on both
sides, the casting vote then decides the question. Dane's Ab. h. t.
CASTRATION, crim. law. The act of gelding. When this act is
maliciously performed upon a man, it is a mayhem, and punishable as such,
although the sufferer consented to it.
2. By the ancient law of England this crime was punished by retaliation,
membrum pro membro. 3 Inst. 118. It is punished in the United States generally
by fine and imprisonment. The civil law punished it with death. Dig. 48, 8, 4,
2. For the French law, vide Code Penal, art. 316. 3. The consequences
ofcastration, when complete, are impotence and sterility. 1 Beck's Med. Jur.
CASUPROVISO, practice. A writ of entry given by the statute of
Gloucester, c. 7, when a tenant in dower aliens in fee or for life. It might
have been brought by the reversioner against the alienee. This, is perhaps an
obsolete remedy, having yielded to the writ of ejectment. F. N. B. 205 Dane's
Ab. Index, h. t.
CASUAL. What happens fortuitously what is accidental as, the casual
revenue's of the government, are those which are contingeut or uncertain.
CASUAL EJECTOR, pratice, ejectment. A person, supposed to come
upon-land casually, (although usually by previous agreement,) who turns out the
lessee of the person claiming the possession against the actual tenant or
occupier of the land. 3 Bl. Com. 201, 202.
2. Originally, in order to try the right by ejectment, Several things were
necessary to be made out before the court first, a title to the land, in
question, upon which the owner was to make a formal entry; and being so in
possession he executed a lease to some third person or lessee, leaving him in
possession then the prior tenant or some other person, called the casual
ejector, either by accident or by agreement beforehand, came upon the land and
turned him out, and for this ouster or turning out, the action was brought. But
these formalities are now dispensed with, and the trial relates merely to the
title, the defendant being bound to acknowledge the lease, entry, and ouster. 3
Bl. Com. 202;.Dane's Ab. Index, h. t.
CASUS FOEDORIS. When two nations have formed a treaty of alliance, in
anticipation of a war or other difficulty with another, and it is required to
determine the case in which the parties must act in consequence of the alliance,
this is called the casus foederis, or case of alliance. Vattel, liv. 3, c. 6,
CASUS FORTUITUS. A fortuitous case; an uncontrollable accident an act
of God. See Act of God; Cas fortuit; Fortuitous event.
CASUS OMISSUS. An omitted case.
2. When a statute or an instrument of writing undertakes to foresee and to
provide for certain contingencies, and through mistake, or some other cause, a
case remains to be provided for, it is said to be a casus omissus.For example,
when a statute provides for the descent of intestates estates, and omits a case,
the estate descends as it did before the statute, whenever that, case occurs,
although it appear to be within the general scope and intent of the statute. 2
Binn. R. 279.
3. When there has been a casus omissus in a statute, the subject is ruled by
the common law: casus omissuset oblivioni datus dispositioni juris communis
relinquitur. 5 Co. 38. Vide Dig. 38, 1, 44 and 55 Id. 38, 2, 10; Code, 6, 52, 21
CATCHING BARGAIN, contracts, fraud. An agreement made with an heir
expectant, for the purchase of his expectancy, at an inadequate price.
2. In such case, the heir is, in general, entitled to relief in equity, and
way have the contract rescinded upon terms of redemption. 1 Vern. 167; 2 Cox,
80; 2 Cli. Ca. 136; 2 Vern., 121; 2 Freem. 111; 2 Vent. 329; 2 Rep. in Ch. 396;
1 P.Wms. 312; 3 PWms. 290, 293, n.; 1Cro. C. C. 7; 2 Atk. 133; 2 Swanst. 147,
and the cases cited in the note; 1 Fonb.140 1 Supp. to Ves. Jr. 66 Id. 361 1
Vern. 320, n. It has been said that all persons dealing for a reversionary
interest are subject to this rule, but it may be doubted whether the course of
decisions authorizes so extensive a conclusion and whether, in order to
constitute a title to relief, the reversioner must not combine the character of
heir. 2 Swanst. 148, n. Vide 1 Ch. Pr. 112, 113, n., 458, 826, 838, 839. A mere
hard bargain is not sufficient ground for relief.
3. The French law is in unison with these principles. An agreement, which has
for its object the succession of aman yet alive, is generally void.Merl. Rep.
mots Succession Future. Vide also Dig. 14,6, and Lesion.
CATCHPOLE, officer. A name formerly given to a sheriff's deputy, or to
a constable, or other officer whose duty it is to arrest persons. He was a sort
of serjeant. The word is not now in use as an official designation. Minshew ad
CAUSA MATRIMONII PRAELOCUTI, Engl. law. An obsolete writ, which lies
when a woman gives land to a man in fee simple, or for a less estate,
to the intent that he should marry her and he refuses upon request.
New. Nat. Bre. 455.