For it can hardly be supposed that a man's
responsibility for the consequences of his acts varies as the
remedy happens to fall on one side or the other of the penumbra
which separates trespass from the action on the case. And the
greater part of the law of torts will be found under one or the
other of those two heads.
It might be hastily assumed that the action on the case [81] is
founded on the defendant's negligence. But if that be so, the
same doctrine must prevail in trespass. It might be assumed that
trespass is founded on the defendant's having caused damage by
his act, without regard to negligence. But if that be true, the
law must apply the same criterion to other wrongs differing from
trespass only in some technical point; as, for instance, that the
property damaged was in the defendant's possession. Neither of
the above assumptions, however, can be hastily permitted. It
might very well be argued that the action on the case adopts the
severe rule just suggested for trespass, except when the action
is founded on a contract. Negligence, it might be said, had
nothing to do with the common-law liability for a nuisance, and
it might be added that, where negligence was a ground of
liability, a special duty had to be founded in the defendant's
super se assumpsit, or public calling.
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