unnecessary injury, there can be no recovery. Beard v. Murphy, 37 Vt. 99; McGuire v. Grant, 24 N. J. Law, 356; Moody v. McClel land, 39 Ala. 45; City of Cincinnati v. Penny, 21 Ohio St. 499; S. C., 8 Am. Rep. 73. And see ante, tit. Injunctions. But, if a person, by carelessness in making an excavation in his own ground, causes the fall of, or injury to a house erected on the land adjoining, he is liable in damages for the injury. Baltimore, etc., R. R. Co. v. Reaney, 42 Md. 117. The owner or occupant of real property is bound, so far as he may be able to do so by the exercise of ordinary care, to keep it in such condition, that it will not by any insufficiency for the purpose to which it is put injure any adjoining owner or occupant, or any lawful passer by. White v. Phillips, 15 C. B. (N. S.) 245; Schwartz v. Gilmore, 45 Ill. 455; Mullen v. St. John, 57 N. Y. (12 Sick.) 567; 15 Am. Rep. 530. And he is bound, also, to use care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, express or implied, for the transaction of business. Carleton v. Franconia Iron, etc., Co., 99 Mass. 216. And see Indermaur v. Dames, L. R., 2 C. P. 311; Holmes v. Northeastern Railway Co., L. R., 4 Exch. 254. But a proprietor is not bound to make his premises safe to persons entering for their own convenience or pleasure without his invitation, or without inducement by the use to which he has appropri ated them, either expressly or by some preparatory adaptation thereto which would naturally and reasonably lead persons to suppose that they might properly and safely enter. Straub v. Soderer, 53 Mo. 38. And see Nicholson v. Erie Railway Co., 41 N. Y. (2 Hand) 525; Zoebisch v. Tarbell, 10 Allen, 385; Gautret v. Egerton, L. R., 2 C. P. 371; ante, 653, § 1. So, it has been said that a landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents. Robbins v. Jones, 15 C. B. (N. S.) 221, 240. But see Godley v. Hagerty, 20 Penn. St. 387; Kaiser v. Hirth, 46 How. (N. Y.) 161; S. C., 4 Jones & Sp. 344. And in a recent case it is held that the mere fact that the owner of a building has leased it does not exempt him from liability for a personal injury occasioned by a defect in the entrance-way thereto, left in its original construction. Larue v. Farren Hotel Co., 116 Mass. 67. And see Anderson v. Dickie, 1 Robt. (N. Y.) 238; S. C., 17 Abb. 83; 26 How. 105. But the owner of a building with whom the tenant has covenanted "to make all needful and proper repairs, both internal and external," is not liable to a person injured by a fall of snow and ice naturally collected on the roof, which by due precaution the tenant might have prevented. Leonard v. Storer, 115 Mass. 86; 15 Am. Rep. 76. And see Pretty v. Bickmore, L. R., 8 C. P. 401; S. C., 6 Eng. R. 182. A person having the right to excavate a street or other land is bound to do it with all necessary and reasonably practicable skill and care, so as to save the neighboring proprietors from any injurious consequences, which, by overflow or otherwise, might result from changing the natural surface of the ground, and if he does not use such skill and care, he is liable for damages. Rau v. Minnesota, etc., R. R. Co., 13 Minn. 442. See, also, Livingston v. McDonald, 21 Iowa, 160; Robinson v. Black Diamond Coal Co., 50 Cal. 160. So, one who, in building or repairing his house, obstructs the public gutter in front with building materials, is liable for damage caused by the overflow of the water from very heavy rains into another's cellar. Ball v. Armstrong, 10 Ind. 181. And the occupant of upper rooms in a building must use in the conduct of his business such care, caution, attention and discretion, as an ordinarily prudent man would put forth to prevent injury being sustained by the occupant below, from water or other substances leaking through into the rooms of the latter. Warren v. Kauffman, 2 Phil. (Penn.) 259; Stapenhorst v. American Manuf. Co., 46 How. (N. Y.) 510; S. C., 15 Abb. (N. S.) 355; 4 Jones & Sp. 392; Killion v. Power, 51 Penn. St. 429; Blythe v. Proprietor, etc., 11 Exch. 781. And see Locust Mountain, etc. v. Gorvell, 9 Phil. (Penn.) 247. But if he exercise such care, caution, etc., he is not liable. Brown v. Elliott, 45 How. (N. Y.) 182; S. C., 4 Daly, 329; Rudolphy v. Fuchs, 44 How. (N. Y.) 155. So, one, who stores water on his own land, and uses all reasonable care to keep it safely there, is not liable to an action for an escape of the water which injures his neighbor, if the escape be caused by an agent beyond his control, such as a storm, which amounts to vis major, or the act of God, in the sense that it is practically, though not physically, impossible to resist it. Nichols v. Marsland, L. R., 10 Exch. 255; S. C., 14 Eng. R. 538. The proprietor of a drain, who uses ordinary care and prudence in closing it, is not liable for damage caused to his neighbor by the sudden overflow of the drain (Rockwood v. Wilson, 11 Cush. 221), and an overflow, caused by a frost more severe than had been known for twenty-five years, bursting the defendant's pipes, was held to afford no ground of action. Blyth v. Proprietors, etc., 11 Exch. 781. A man may make an excavation on his own land, and leave it unguarded without incurring any liability to strangers passing over the land who may be injured by falling into it (Bolch v. Smith, 7 Hurlst. & N. 736; Knight v. Abert, 6 Penn. St. 472; Binks v. South Yorkshire Railway Co., 3 Best & Sm. 244; Howland v. Vincent, 10 Metc. [Mass.] 371), unless the excavation is made so near to a public road or Hounsell v. Smyth, 7 C. B. And the way as to constitute a public nuisance. (N. S.) 731; Vale v. Bliss, 50 Barb. 358. ises was held not to be liable to one not invited thereon, and who, while on the premises, was injured by falling into a vat of boiling liquor used by the defendant in the usual and customary way. Victory v. Baker, 67 N. Y. (22 Sick.) 366. See, also, Pierce v. Whitcomb, 48 Vt. 127; S. C., 21 Am. Rep. 120. But see Hydraulic Works Co. v. Orr, 83 Penn. St. 332. It is, however, regarded as culpable negligence for the owner of land to leave a pit or other excavation in such an unguarded state as to injure a person having a right to be upon the land, and using that right with ordinary care. Williams v. Groucott, 4 Best & Sm. 149; Chapman v. Rothwell, 1 El. Bl. & El. 168. And if the owner places a spring gun on his premises, or does other like acts imminently dangerous to human life, and designed to endanger it, he may be held responsible even to a trespasser. Bird v. Holbrook, 4 Bing. 628; Hooker v. Miller, 37 Iowa, 613; S. C., 18 Am. Rep. 18; Gray v. Combs, 7 J. J. Marsh. (Ky.) 478; State v. Moore, 31 Conn. 479. But a house may be thus protected froin burglars. Id. And in England, it has long been usual for the proprietor of land to place spring guns and other deadly engines upon an inclosure, so concealed as not to be seen, to wound, kill or destroy any man or animal that comes upon the place; and it is there held that if proper notice be given, he is justified in inflicting any injury on men or animals, trespassing on the grounds, even to the taking of life. Ilott v. Wilkes, 3 Barn. & Ald. 304. See Johnson v. Patterson, 14 Conn. 1. There is held to be no implied obligation between the owners of distinct parts of a building, which will enable either to maintain an action against the other for mere refusal and neglect to repair his tenement, whereby the plaintiff's part is injured. Pierce v. Dyer, 109 Mass. 374; 12 Am. Rep. 716. § 19. Sheriffs. A sheriff, or other like officer, charged with the execution of process, is liable in a civil action to a person injured by his neglect to exercise due diligence in the service thereof. White v. Wilcox, 1 Conn. 347; Moulton v. Jose, 25 Me. 76; Kinnard v. Willmore, 2 Heisk. (Tenn.) 619; Ransom v. Halcott, 9 How. (N. Y.) 119; S. C., 18 Barb. 56. And a sheriff is liable for all official neglect or misconduct of his deputy, and also for his acts, not required by law, where he assumes to act under color of office. Campbell v. Phelps, 17 Mass. 244; McIntyre v. Trumbull, 7 Johns. 35. But he is so liable only while the relation between them exists (Blake v. Shaw, 7 Mass. 505), and he is not responsible for the neglect of any act or duty which the law does not require the deputy officer to perform. Clute v. Goodell, 2 McLean (C. C.), 193; Harriman v. Wilkins, 20 Me. 93. And if a deputy sheriff has authority from the creditor to manage an execution according to his discretion, the sheriff is discharged from his liability for the official neglect of such deputy. Fletchers v. Bradley, 12 Vt. 22; Samuel v. Commonwealth, 6 Monr. (Ky.) 173. And see Root v. Wagner, 30 N. Y. (13 Tiff.) 9. An action would not lie against a sheriff, at common law, for not returning an execution or other writ (Commonwealth v. McCoy, 8 Watts, 153; Clark v. Foxcroft, 6 Me. 296); but in most of the States such an action is given by statute, and the sheriff is made prima facie liable for the whole debt, if he neglects to return the writ within the return day. McGregor v. Brown, 5 Pick. 170; Swezey v. Lott, 21 N. Y. (7 Smith) 481; Moore v. Floyd, 4 Oreg. 101. So, if the sheriff make a false return, he is prima facie liable to the creditor for the amount of the debt with interest (Goodrich v. Starr, 18 Vt. 227; McArthur v. Pease, 46 Barb. 423); and he is liable to any one else, though not a party to the suit, who is damaged by the return. Cozine v. Walter, 55 N. Y. (10 Sick.) 304. And in an action against the sheriff for a false return, it does not lie with him to urge that the plaintiff's judgment is invalid under the bankrupt act, and that, therefore, no act done under, or by color of it could inure to the plaintiff's benefit. Watson v. Brennan, 7 Jones & Sp. (N. Y.) 81. If a sheriff keeps goods levied on in an unsafe place, or exposes them to destruction, he is liable for the damage sustained. Conover v. Gatewood, 2 A. K. Marsh. (Ky.) 568; Jenner v. Joliffe, 9 Johns. 381. But he is not an insurer of the goods (Price v. Stone, 49 Ala. 543); and is only liable for the same degree of diligence as an ordinary bailee for hire. Bridges v. Perry, 14 Vt. 262; Moore v. Westervelt, 27 N. Y. (13 Smith) 234; Kendall v. Morse, 43 N. H. 553. But see Hartlieb v. McLane, 44 Penn. St. 510; Browning v. Hanford, 5 Denio, 586. A sheriff, who has levied an execution upon personal property, and has been deprived of the possession thereof by writ of replevin at the suit of a claimant, is not liable for the debt and damages on the motion of the judgment creditor, although the latter has given him a bond of indemnity. Swain v. Alcorn, 50 Miss. 320. A sheriff who seizes property under an execution, and does not sell it within a reasonable time, is liable, for his non-performance, to the party injured, unless he has a legal excuse. State v. Herod, 6 Blackf (Ind.) 444; Jacobs v. Humphrey, 2 Cr. & M. 413; Fisher v. Vanmeter, 9 Leigh (Va.), 18. The extent of the liability for failing to sell is the value of the property, if it is finally lost and the defendants are insolvent, or if the only solvent defendant is released by the laches of the officer. Royse v. Reynolds, 10 Bush (Ky.), 286. The sheriff is bound to exercise reasonable care and judgment in the management of his sales. His duty is to make the money on the execution, if by fair judgment and skill it can be done according to the modes provided by law. And although his discretion should be liberally considered in the absence of bad faith, yet he is responsible for a clear neglect of its proper exercise, according to the measure stated. Wright v. Child, L. R., 1 Exch. 358; Todd v. Hoagland, 36 N. J. Law, 352. Where a sheriff, who, at the expiration of his term of office, has in his hands process not fully executed, dies before the complete execution thereof, his late under-sheriff becomes substituted in his place, and assumes all his duties and liabilities in respect to such process; and for moneys collected by him, by virtue thereof, he is personally liable. Newman v. Beckwith, 61 N. Y. (16 Sick.) 205. As to the liability of the sheriff for an escape, see ante, Vol. 3, tit. Escape. § 20. Telegraphs. The liability of telegraph companies for negligence has been said to rest entirely upon contract. Playford v. United Kingdom Telegraph Co., L. R., 4 Q. B. 706. But the better opinion is, that there is an obligation resting upon them independently of any contract, and which arises from the public nature of their employment. See Western Union Telegraph Co. v. Carew, 15 Mich. 525; Parks v. Alta California Telegraph Co., 13 Cal. 422; New York, etc., Telegraph Co. v. Dryburg, 35 Penn. St. 298. The business, though pursued for reward, is designed for the general convenience of the public; and like the business of common carriers, the interests of the public are so largely incorporated with it, that it differs from ordinary bailments which parties are at liberty to enter into or not, as they please. De Rutte v. New York, etc., Telegraph Co., 30 How. (N. Y.) 403; S. S., 1 Daly, 547. Telegraph companies in one sense may be called common carriers, as they are engaged in a public employment, and are bound to transmit, for all persons, messages delivered to them for that purpose. But the analogy between common carriers of goods and common carriers of messages is not perfect, and their responsibility differs in a manner corresponding to the difference in the nature of the services they perform. Aiken v. Telegraph Co., 5 So. Car. 358; Grinnell v. Western Union Tel. Co., 113 Mass. 299; S. C., 18 Am. Rep. 485. The rule is stated to be, that, in the absence of any special contract limiting or regulating the liability of the latter, they do not insure the safe and accurate transmission of messages, but they are bound to |