general answer to the whole bill; it was said by Mr. Justice Story, to be "a dry, naked plea of the statute of limitations, without any averments negativing the special matters set up in the bill, which, if true, would avoid the operation of the statute;" and he held it to be clear, that "the plea should contain in itself such averments; and the answer in support thereof should also contain a full discovery of the matters so set up in avoidance of the bar." It is not sufficient for the answer alone to give such negative matters, for it is mere matter of discovery; but the plea should in itself, if true, contain a complete bar.1 § 297. It is upon the same ground, that where a particular special promise within six years is charged in the bill, to avoid the statute, the defendant must specially deny the promise, by averment in the plea; and must accompany it with an answer in support of the plea, containing a like denial of the promise, or other matter charged. He is not bound to answer to the original cause of action; for that may, consistently with the plea pleaded, be well admitted.2 1 Story, Eq. Plead. 683, 625. 2 Chapin v. Coleman, 11 Pick. (Mass.), R. 331; and see 2 Beames, Eq. Plead. 164, 170, 274. CHAPTER XXVII. TORTS. § 298. IT has before been shown that for torts quasi ex contractu, such as malfeasance, misfeasance, and nonfeasance, the action of assumpsit will lie; and that the established rule, in such cases, is, that the statute begins to run from the breach of duty, and not from the damage thereby occasioned.2 Cases admitting of some degree of doubt, as to the exact time of the breach of duty, were also cited.3 To these may here be added the following: Where goods were attached by a deputy sheriff on mesne process, the officer was held not liable to the suit of the debtor while the lien created by the attachment continues, although he does not keep the property safely; and the statute of four years within which the debtor may bring a suit, in Maine, against the sheriff, for the neglect of the deputy, in suffering the goods to be destroyed, begins to run from the time the attachment is dissolved.* § 299. But the action of assumpsit, as generally applied to cases of this kind, it was said by Chief Justice Dallas, in giving the judgment of the court in a case in the English Common Pleas, is of modern use; and in that case the court sustained an action on the case for consequential damages arising from a misfeasance as a tort unconnected with any contract. It was an action on the case against the proprietors of a stage-coach, to recover damages for an injury sustained by a passenger, in consequence of their coachman having upset the coach on which he was riding, the declaration alleging the breach of duty by the negligence of the defendant's servants; and the court held, it was not to be deemed founded on contract, or quasi ex con 1 Ante, § 71. 2 Ante, § 136. 8 Ante, § 142. Bailey v. Hall, 4 Shep. (Me.), R. 408. tractu, nor was it necessary to prove any contract in order to sustain the action.1 § 300. Actions upon the case for nuisances, such as the obstruction of ways and watercourses, and the diversion of the latter, must be brought some time within the time limited for the right of entry upon land, after such obstruction or diversion; and the right of action is not necessarily postponed until it can be shown that some actual damage has resulted therefrom to the plaintiff. That there exists a right in such cases, and that that right has been invaded is sufficient; and if an action should be delayed until specific damage could be proved, the defendant, by a continued and uninterrupted adverse enjoyment might set up a title in analogy to the time limited for the right of entry upon the land, which could not be successfully opposed. The law, therefore, implies damage in all such cases, before any actual damage has resulted. Every continuance of that which was originally a nuisance the law considers a new nuisance, and, there 1 Brotherton v. Wood, 3 Brod. & Bing. R. 54, and 7 Eng. Com. Law R. In delivering the judgment of the court, Chief Justice Dallas said: "On the part of the plaintiffs in error, it was contended that the statement of the case in the declaration amounts to a contract, and that being so, all the rules which relate to actions founded on contracts must govern, and that it is a rule of law that such actions are joint, and must be maintained against all the defendants named in the declaration, or fail altogether. If it were true that the present action were founded on contract, so that, to support it, a contract between the parties to it must have been proved, the objection would deserve consideration. But we are of opinion, that this action is not so founded, and that, on the trial, it could not have been necessary to show that there was any contract, and therefore the objection fails. The action is on the case against a common carrier, upon whom a duty is imposed by the custom of the realm, or in other words, by the common law, to carry and convey their goods and passengers safely and securely, so that by their negligence or default, no injury or damage happen. A breach of this duty is a breach of the law, and for this breach an action lies, founded on the common law, which action wants not the aid of a contract to support it." 2 Allen v. Ormond, 8 East, R. 4; Gardner v. Trustees of Newbury, 2 Johns. (N. Y.), Ch. R. 162; Bolivar Manufacturing Company v. Neponset Manufacturing Company, 16 Pick. (Mass.), R. 241; Crooker v. Bragg, 10 Wend. (N. Y.), R. 260; Pastorias v. Fisher, 1 Rawle (Penn.), R. 27; Angell on Watercourses, 166 to 170. The rule is the same in respect to rights of common. If A, a commoner, infringe the rights of B, another commoner, as commoner, by surcharging, it is necessary that B should have A's right ascertained, otherwise the wrongful act of the latter, would, in process of time, become evidence of an adverse right. Hobson v. Todd, 4 Term R. 71; Pindar v. Wadsworth, 2 East, R. 158. [Where one, having a right to use land for a specific purpose, perverts it to other uses, the statute runs from the time of the perversion. Rogers v. Stoever, 24 Penn. St. 186.] fore, though the party complaining cannot in an action on the case, recover upon the original cause of action, after the expiration of six years, he may for its continuance any time before the right of entry is barred as above mentioned,1 and recover not only nominal damages, but such actual damage as has accrued any time within six years. § 301. By the statute of James, actions on the case for torts other than slander, must be brought within six years from the time when the cause of action accrued. But actions upon the case for words spoken must, by that statute, be commenced and sued within two years next after the words spoken. This, however, only extends to cases where the words are actionable in themselves, and not to cases where words, not actionable in themselves, become so by reason of some special damage arising from the speaking of them. Thus, slander of title is not within the limitation of two years, because it is not actionable unless special damage has accrued in consequence, as the slandering of title does not in itself import loss, but may occasion injury by preventing the selling or letting of the land. Nor does it extend to actions for words founded upon an indictment, or other matter of record; nor to actions for libel.5 Cases where words are not actionable in themselves, but become so in consequence of the uttering of them, come under the head of actions on the case, and must, therefore, be sued within six years from the time when the cause of action is proved to have accrued, which is the special damage. § 302. The sixth section of the statute of James provides, that, "in all actions upon the case for slanderous words, if the jury, upon the trial of the issue upon such action, or the jury that shall inquire of the damages, do find or assess the damages under forty shillings, then the plaintiff or plaintiffs, in such action shall have and recover so much costs as the damages so given or assessed amount unto, without any further increase of the same. In those cases, therefore, where 13 Black. Com. 219; Com. Dig. T. Act. on the case for Nuisance; Staples v. Spring, 10 Mass. R. 72; Baldwin v. Calkins, 10 Wend. (N. Y.), R. 167; Bridleman v. Foulke, 5 Watts (Penn.), R. 308; [Delaware, &c. v. Lee, 2 N. J. 243]. 2 Brown v. Gibbens, Salk. R. 206. 3 Law v. Harwood, Cro. Car. 140. 41 Sid. R. 95; Blanch on Lim. 99. 5 Arch. Plead. 29; Blanch, supra. the jury assess damages under forty shillings, and where, in consequence of the statute, the plaintiff recovers no greater costs than damages, the time of limitation is two years; for the words must have been actionable in themselves. But where full costs are allowed, although the damages be under forty shillings, the action is not within the limitation of two years, for in this case, the slanderous words could not have been actionable within the meaning of the act, but became actionable only by reason of the special damage, which, being the gist of the action, the limitation is six years, which begins to run from the time that the consequential damage accrued.1 § 303. In actions for slander, if no notice be given of a defence under the statute, the plaintiff may give in evidence words spoken more than two years before the commencement of the action.2 But where the declaration alleged the words to have been spoken on a particular day within two years, and the plaintiff produced evidence of words spoken more than two years before the commencement of the action, the defendant was allowed, without terms, to file a plea of the statute.3 § 304. By the statute of James, it is required that the action sur trover shall be commenced and sued within the time and limitation after mentioned. But from the omission of trover in the perclose, it has been contended, that trover was not within the statute. But in the case in which this objection was taken, the whole court conceived, that although actions of trover are not mentioned in the perclose, yet the words being, that, "actions upon the case shall be brought within six years," the action of trover is implied in those general words.* The action of trover must, therefore, be brought within six years after the cause of action accrued; and the time when the cause of action is considered to have accrued, in an action of trover, is the time of the conversion. For any man may take the goods of another into 1 Blanch on Lim. 100. The statute of Mississippi, which declares that every action on the case for words spoken, shall be commenced and sued within one year next after the words spoken, and not after, embraces words written as well as spoken. Menter v. Stewart, 2 How. (Miss.), R. 698. [Contra, in Illinois, Hasell v. Shelby, 11 Ill. 9.] 2 Brickell v. Davis, 21 Pick. (Mass.), R. 404. 8 Ibid. 4 Swayn v. Stephens, Cro. Car. 245. |