It is urged by the.’counsel for the defendant, that this action is not sustainable by any known and well • settled,. principle of law. -The absence .of direct, or, at least, •analogous authority, it is certain, with a careful judge, tends to create uncertainty and doubt, not' unfrequently, whether a po- ■ sition assumed as the basis of a -right, to recover can be sustained;.'.' But case's do,'however, often occur, in the multifarious' relations and transactions of mankind', when it is, by no means, Un insuperable ohjection- to the remedy soúght 'to be-obtained, that.'there is no direct adjudication in ' point. Rulés of law must ■ sometimes, ■ of necessity, be -extended to .suit the local condition and meet the exigencies of every'people. The com-, mon law of -England, imported by our ancestors, as.’is- said, is in force in Ohio, but it rests, nevertheless, in the sound discretion of the Court to say how far it is applicable to our condition; It is one of the maxims of the common law, that for every injury a remedy is given, and when the justice of a causé stares me fully in the facej I ■ will say, w-ith Mr.. Justice Eyre, that' “ Ido not feel myself pleased to he knocked down with formal objections.” If.there is no Jinownmode of redress, it is the duty of the Court, in such case, to open some new channel through which a remedy may be obtained. But I am not aware that the plaintiff,, in the case at bar, is driven *731to the extremity to ask of the Court the adoption of any süch course. It appears to us, the"action may be sustained upon the ordinary principles applicable to a special action on the case, in general. Such an action lies to recover damages for an act done by another, either lawful or unlawful, with force or without, when the damages are not immediate, but as a consequence resulting' from some intervening act, produced by that which is the gist of the action. Examples in the books áre known to every lawyer. The action, by a singular provision of the statute of Ohio, has been extended to cases where trespass will lie, and is now a legal remedy to recover for an assault and battery. But take the action of case, as 'defined, with the general principle that the laiu gives redress for every injury, (but to which rule there are, doubtless, exceptions,) why is the plaintiff, on principle, not entitled to maintain his action ? To simplify the facts, "the - agreed case shows he was a mortgagee of Andrew Allison; the condition of the mortgage was broken and the defendant was a subsequent judgment creditor of Andrew. As against Andrew, the lién of the plaintiff’s mortgage was older than that of the defendant’s judgment. Under these circumstances, the defendant, with his execution, issued upon his judgment, interferes and lessens the plaintiff ’ s security, by removing the fixtures and destroying the mill covered by the plaintiff’s mortgage, so that the.mortgage lien is an insufficient security for the plaintiff’s debt-, and Andrew Allison has no other property of any description. In our opinion, on principle, where such security is thus- diminished, and damages result from the act, to the plaintiff, the action lies. For authority, we have examined only the cases cited. The 2 Greenleaf’s Rep. 173, presents a case directly analagous: M mortgaged to W, and afterwards erected a house on the land. M sold the premises to another, and he sold the house to the defendant, who' removed it. The mortgage was assigned to the.-plaintiff, and it was held he might recover the value of the. house. Idem, p. 387, is a similar case, but the action was trespass.

*732There is, however, no difference in principle. Possession or right of immediate possession is not always necessary to maintain cases for an injury either to real or personal property. It will lie for an injury to a reversionary interest, in either personalty or realty, though in trespass, without the aid of the Ohio statute, the rule would be different.

But it is said, the machinery of the mill was not realty or fixtures, and did not pass with the mortgage; but the evidence shows, it was placed there for permanent use; that it was attached to the mill and the freehold; and, in this case, the facts show, inevitable loss will probably result to the plaintiff, though permitted to recover in this action.

Judgment for Plaintiff.

dissenting. This action should not be sustained. The plaintiff had no claim but that derived from the mortgage, and he was out of possession. By the uniform decisions of this Court, the mortgagor in possession holds the legal title, as against ail the world, except the mortgagee, and against him till the condition is broken. 2 Ohio Rep. 223 ; 8 Ohio Rep. 222.

There was no such thing as a reversionary interest in the mortgagee. He had no rights save those to be worked out under his mortgage deed. It is well settled that, while out of possession, he cannot maintain trespass. Equally well settled is it, that for an injury, immediate and direct, trespass, and not case, is the only remedy known to the common law. •

Our statute giving the action of case where trespass would lie at common law, seems to break down old and established forms. It was enacted to place, as far as legislation could effect that object, the unskilled and ignorant upon an equality with men of experience and learning — not to create a right of action, which was before unknown, and which would give to one man a remedy that otherwise would belong to his neighbor.

This is manifestly a case of first impression. It is a novelty. There is nothing like it in all the books. Nothing which will *733bear a close analogy to it, when carefully examined. The mere fact that it is novel, however, would not be a fatal objection, in my opinion, if it were the only one. There is something more serious than novelty to be overcome. The wrong for which this suit was brought, was the detaching of ailedged fixtures. The injury complained of was direct, and done to the realty. The person in possession was the one who had the right of action. He, and he alone, should be allowed to prosecute; and he may, tomorrow, sue for and recover damages to the full extent of all the injury done to the premises. The levy of an execution upon the real property, or upon fixtures — which, as savoring of the realty; would pass by deed conveying the land — could not be justified under the execution. The officer and the defendant treated it as personal chattels; and if it was not such, they were both trespassers ab initio. The proceedings upon execution -will be no defence to a suit brought by the mortgagor, if the property sold was what the plaintiff claimed it to have been, and the rule of damages cannot bo less than the amount of the whole injury that was sustained.

My brethren argue that this proceeding would be no bar to an action by the mortgagor. They claim, however, that it would bar a recovery, so far as the damages to the reversionary interest are concerned. As I have before said, there is no reversionary interest in the mortgagee. The owner of the land, the mortgagor, has the interest affected by the supposed tres-» pass. It was his right to protect the property, pledged for the payment of his own debt, from waste; his right to have the whole of it, either to use in payment of his debts or otherwise, as might not be inconsistent with his own contracts, and no trespasser can gainsay that right.

To make the matter apparent to any one, let me suppose the act complained of to have been done by a wanton trespasser; that the mortgagor in possession prosecutes for the injury, and proves the damages to be equal to half the original value of the ?and and its appurtenances. The rule of damages would be such sum as would be equivalent to the injury. This Court *734.Would-direct the jury to’ assess 'that amount, at,'all events. The that' the land was'üíider a.'mortgage for .¡pore than its value, ''would mot-affect, the- rule. ' If,.the mortgage, should be offered' for.-such .¿- purpose, 'it. would; be ruled out*- and ' the trespasser Áyduld.-b.e''tóld 'that iC'was'the/priyilege.-qf his.advefsary.tp have W'.oWn'-'propefty' applied ,tp -the payment .-or-security of his -debts’,and that-it'was as valuable ;tó him for that purpose as-for any other. The recovery, therefore,' jVoiild be. fpf the whole amount of the damage. • ' - '

■ Now, if this .plaintiff’s, action is allowed, there is nothing in the' case which' I have .supposed to prevent the mortgagee from prosecuting andtréeóvering damages for the same injury.. The mortgaged' premises .being of.less'-value than' the debt, secured by it, and the-only means of payment* the inju.fy to the mortgagee must be held;.'under the theory of my,brethren, coextensive with the- supposed trespass. Thus, there, would be two actions, and two recoveries of full'damages; in, addition tp smart-money for the same mattér, cause and thing, by different, plaintiffs. Suqh. a. thing would mot be a-mere novelty. It would . •be an'absurd violation of justice — a wrong which would demand a new remedy; and if the Legislature would not give it, the Court would-feel itself called upon to retrace its steps, or to make such further advance as would meet 'aft evil of -its own creation. y .: ' ■

•" It is said, 'that if the, plaintiff has any remedy it.m.ustf -be-.' by this action. . ' ' • .

Cases to sustain it áre cited from other States, in which, for like injuries, trespass lias been maintained. ' It is admitted that in all 'those States, the legal estate and'right- of, possession are regarded-as in the mortgagee,; and', that'the"different rulépn Ohio renders case the proper action here.. ■ :

’ It may be, that the plaintiff will-'have no' .remedy if this, action could .not be sustained. If so, he would be placed in the same condition that many other creditors have been who took insufficient measures-to secure the debts dire them. He might have done better. There was no law to hinder him from con*735tracting. for the possession or control of the property pledged • to him as security. It was his own folly.'to leave it in the hands of his creditor. ■

The cases quoted from other States, violate no correct princi- • pie and lead to no absurdity. They give the legal action to him holding the title and the possession, and, as a consequence, would deny it to the opposite party. ■ They would send the latter, holding, as they do, that he had but an equity of re-. demption, into a court of equity to enforce any right belonging' to him. That should be done in. this State, under our decisions, by the mortgagee. One having but an equity, and .no legal title or actual possession, should not be permitted to re sort to a court of law and prosecute an action upon a mere equitable claim, contingent in its nature, and which at any moment may be utterly extinguished by the payment of the debt.