to produce. Of late years this rule has been too much disregarded.

4. The cases in which the plt. may have a right of action are almost infinite, and of which we can have no tolerable view, but by attending to actions in detail under their various heads, as in the following chapters.

5. Wherever the law affords a remedy to establish a private right, or to redress a private wrong, it gives a right of action, except in a very few cases, in which the remedy is by the acts of the parties, or of the law. But no right of action can be transferred generally.

6. The plt's. right of action will be best pursued in the usual divisions of actions, as in account, assumpsit, case, covenant, debt, &c. In each of which divisions the question will repeatedly occur, has the plt. a right of action or not? And when the plt's. counsel shall have decided, that he has a right of action, the question also repeatedly occurs, what kind of action is he entitled to? To answer these questions properly, it must always be material to understand precisely what his case is; whether his right of action is grounded on contract or tort, misfeasance or neglect; on a deed, judgment, or parol promise; on a title to lands, on damages to specific articles &c.

7. Whether an action be real or personal, depends on the thing to be recovered by it, and not on the nature of the defence. If damages be to be recovered, the action is personal, though it involve title to land, as is the case in replevin. The damages depending on such a title do not at all change the nature of the action. So if the land be to be recovered, the action is real.

8. In Massachusetts no case of a mixed action, in which both the freehold and damages are recovered at one and the same time, is recollected, except the case of dower in some instances, in which damages, for not seasonably assigning, are sometimes recovered in the same suit with the freehold or dower itself.

9. There are various kinds of actions in the United States, respecting the salaries of gospel ministers and other subjects, and arising out of Federal and state statutes, and constitutions, and usages, which are not found in English law-books. So there are many kinds of actions in England, respecting titles and church concerns, and other matters not known in the United States, many of which will be occasionally noticed.

10. Some, in considering the several kinds of actions, have divided them into civil and criminal; the former relating to private rights and wrongs, the latter to public. But suits that relate to criminal cases, to offences against the public,

and to the redressing of public wrongs are more properly called prosecutions than actions. Hence, the public officer who carries them on is appropriately called the public prosecutor.

11. Various kinds of real actions, anciently resorted to, are now known only in black letter land.

CH. 4.

Art. 1.

12. No action lies of any kind, where there is only dam- 1 Mod. 66, in num absque injuriâ, however frequent cases of this sort may be. Yard v. Ford. Therefore, if I keep an ancient school in a town, and one sets

up a new school near by mine, so as to draw away some of my scholars and profits, I sustain a damage, but without an injury, and can have no action.

13. But where my estate or interest supposes a grant, as of a market, I may claim an exclusive right there. One who erects a market so near mine as to lessen my business or profits, is liable to an action. When a loss is damnum absque injuria, or gives a right of action, is often a question of minute consideration. So if one have a ferry, time out of mind, by grant or statute, or in any legal form, in which he is obliged by law to keep it up, and another person erects a new ferry so as to take away a part of his custom, he has his action for such loss or injury. The principal reason of the distinction seems to be this in the case of the ferry, the owner is obliged by law to keep it up, and attend to it whether profitable to him or not; consequently, the law protects him in the exclusive enjoyment of his estate and situation: but the master of the ancient school is not obliged to keep it up any longer than he finds it for his interest to do it; and therefore there is no particular reason for the law's securing to him any exclusive benefits or for affording an action when he sustains a loss.

-See 2 Hen.

to 446. The question of

case and tres; pass well

examined.

14. In an action of trespas vi et armis innocence of inten- Doug. 671, tion is no excuse; but in an action on the case the whole turns Tarlton v. upon it. Malice, or the quo animo, is the very gist of the action, said Lord Mansfield, in this case. Held, an officer is & Munf. 423 not liable to an action of false imprisonment for arresting a certificated bankrupt, a peer, a discharged insolvent, or a person who has taken advantage of a statute, which provides he shall not be liable to be arrested, and if arrested, shall be discharged, or a person privileged from arrests. If the officer arrest on a writ to arrest, he is excused detaining the privileged person a reasonable time to ascertain the privilege. On a general principle, the officer is excused if he act in obedience to the mandate of the court; even if erroneous, he is not liable in trespass for executing it. But if the officer act oppressively, with full notice of the privilege, case may lie; but it is otherwise with the party suing out the writ and delivering it to the officer, he must see it is right at his peril. Even as to

Ch. 172, a:

9, 5.

Сн. 4.
Art. 15.

4 D. & E.
691, Smith v.
Woodcock,
Same v. Dad-

this party the remedy depends on circumstances, whether trespass or case, malice or not.

15. Actions against several on one bill, &c. As where the plt., the holder of a bill, brought four several actions at once, as one against the drawer, one against the first endorser, one against the second endorser, and one against the acceptor of the bill. Held, the court in such case stay the proceedings against any one, on his paying the bill and cost of the action, except against the acceptor who is the original defaulter, and See Ch. 9 a. against whom all the costs occasioned by the default may be recovered.

ley.

19.

1 Caine's R. 47.

The plt. may sue on a covenant or have assumpsit, Weaver v. Bentley, the covenant having wholly failed on the part of the covenantor. 1 Dallas 428.-5 Johns. 85.-11

Johns. 527, Judson v. Wass.

16. Held, the plt. could bring one action on a note against 2 Dallas 115. the maker, and one against the endorser, and recover in both Rol. Abr. 118. actions, the debt in one, and the costs in both. This seems to be law generally, except in Massachusetts. See below.

Cro. El. 644.

Cowp. 416, 419, Lindon 2 Hooper.

Feltham v.

Terry, Imp.

M. P. 175, 185.-2 Dal. 178.

3 Dallas 477.

O Mod. 140.

10 Mod. 219.

142, 159,

Skinner v.

§ 17. If A by bond acknowledges he has received B's money to buy certain goods named to B's use, B may aver A has not bought them, or paid the monies, in his action, and may sue the bond or have account.

18. The plt. may waive the tort and sue on contract, as where the plt. takes goods in execution not the deft's., but A's, he may waive the tort and the trespass, and bring assumpsit for the money the goods sold for; for it is no prejudice to him who so took the goods, for A to waive the tort, for which he might recover damages in addition to the value of the goods. See Merrill v. Loring, next chapter, &c.

19. Regularly every action must be brought against individuals by their proper names, or against a corporation truly named and described, on contracts, or for torts, or against persons made liable by particular statutes or judgments.

20. Formed actions. In these the plt. cannot vary from the set form of words the law prescribes.

$21. Conspiracy is a formed action. And so is trespass vi et armis. Yet, however, special matter may be introduced 10 Mod. 140, into either, and in trespass judgment was reversed nisi, because the plt. used the words pecias terræ, instead of clausum terræ. 22. Though the Romans had many formed actions enacted and established, yet they allowed several actions on the case, in præscriptis verbis; that is, each action adapted to the particular circumstances of the case.

Newton.

23. These are a few of the cases, in which the plt. has a right of action of this or that description. These chapters, 3, 4, 5, 6, 7, are intended merely to give a general view of the

nature and forms of actions. Actions can be seen at large and understood, only by attending to them, as considered and explained in a large part of the following chapters.

CH. 5.

Art. 1.

CHAPTER V.

WHEN THE PLT. HAS AN ELECTION IN ACTIONS, AND MAY
IN SEVERAL CASES SUE EITHER.

(May waive the tort, &c.)

19, cases.

52.

ART. 1.1. If the deft. tortiously take the plt's. goods, 1 D. & E. he may elect to bring assumpsit for the value of them or tro- 387, Ch. 9, a. ver. So if one by deed acknowledge he has received £100 Bac. Abr. of B, to be adventured to the West Indies and thence to Eng- 19.-Rol. R. land, and covenants to account on his return, B may elect to Merrill v. Lohave covenant or account. Mass. S. J. Court, July 1797, ring.-Lofft County of Lincoln. In this case Loring tortiously took away 320. a barrel of flour from the plt., and he brought assumpsit as for goods sold and delivered, and recovered the reasonable value; and on argument the court held the plt. might waive, &c. So

the plt. may elect assumpsit, when money has been extorted 2 Stra.915.from him, and paid to get possession of his goods.

v. Hodson.

If A, on the eve of his bankruptcy, fraudulently deliver 4D. & E. 211, goods to one of his creditors, his assignees may elect to disaf- Smith & al. firm the contract, and bring trover to recover the value of the 10 East 278, goods, or to affirm the contract, and bring assumpsit for the 295. price. If the deft. convert the plt's. goods, he may waive the tort, and elect to bring assumpsit for money had and received, &c.

§2. If A take away my goods, and B takes them from A, I Sid. 438. have my election to sue A or B. Salk 11; 1 Bac. Abr. 18,

29.

§ 3. If I detain a ship ready for sea, the master has his election to bring case or trespass.

16, 364.

4. If A receive my rents, I may view him as a disseisor, or 2 Dallas 178. waive the tort and have account against him. So if A slander 12 Mod. my title, whereby B wrongfully disturbs me in my possession, I may sue A or B. 2 Wils. 644; Cro. Car. 308; Lit. sect.

588; 1 Bac. Abr. 29.

5. If A deliver his goods to B, to deliver them to C, and 2 Esp. 65.— B do not deliver them, but converts them to his own use, A or Bac. Abr. C may sue B, and he who first commences his action shall exclude the other. 4 Bac. Abr. 9.

32.

6. If my cattle do damage in A's land, he has his elec- 2 Esp. 65.

Сн. 5.
Art. 1.

2 D. & E. 166, Bennet v. Allcock.

tion to bring trespass or to distrain them. Election of account or assumpsit, ch. 8, a. 1, 9.

7. So where the deft. tortiously entered the plt's. house, and debauched his daughter, above 21 years of age, but she was described as his menial servant. Held, the father had his election to bring trespass for breaking and entering his house, and getting his daughter with child, per quod servitium amisit, and consider the breaking the house as the principal part; or to bring case for the consequential damages, where the per quod &c. is the gist of the action. But if the trespass to the house had not been proved, an action on the case only would lie. See ch. 65, a. 1, s. 5, where the plt's. elec3 Day's cases tion confines him to one action. A gave a note to B, to pay 327, Ch. 7, him $80 in good West India rum, sugar, or molasses, at his election, in eight days; he need not elect to give notice.

22.

4 Co. 95,

§ 8. Upon every contract executory, a man may have an acCase of Slade. tion on the case or debt. So if one ousts the executors of

-

4 Bos. & P.
293, 296.-
9 Co. 87.
Sty. 199.
Cro. El. 557,
600.-5 Co.
82.

1 Com.

D. 149.

4 Co. 94.

2 Rol. 556.

Cro. J. 50.

1 Com. D. 149, 150, Tiffyn r. Wingfield

Cro. Car.
325,Slater v.

Baker & al.

1 Com. D.

Action M. 8.

his lessee for years of a term, they have their election to have an action on the case or trespass. And it is laid down as a rule, when there are two writs in the register for one and the same case, it is in the party's election to take either.

But the plt. Iras not an election to bring debt against an administrator, on a simple contract made by his intestate, but must bring assumpsit-was originally on account of the wager of law &c. And the court said so is the law, though the distinction between debt and assumpsit, as applicable to the case of executors, is not founded in good sense.

So a man may sometimes have case or trespass at his election; as if any one take out of his possession wood cut down by him; or distrains for toll when it was not due; or goods not distrainable; or rescues a deft. taken at the plt's. suit upon a capias. See Election, &c. Wheatly v. Stone, Hob. 180. Plt. may have trover or trespass; as where the deft's. bailiff seized the plt's. oxen for a heriot where nothing was due, and the deft. agreed and converted them. All the judges agreed that the plt. might have brought trespass against the deft.; and three judges held he had his election to bring trover or trespass; but two judges held the contrary; for, said they, by the taking, the property was out of the plt., so he could not maintain trover; but the three judges held a man may waive or lessen a tort, if he pleases, but cannot increase it.

So a man in some cases may have an action upon a statute, or at common law; as where it lies at common law, and then a statute is enacted giving a cumulative action on the statute, 1 Vent. 318, the party may elect to sue either.

332, Dutton v. Pool.

4 Bos & P. 293, 297.

Debt for an annuity, or a distress; several cases, ch. 140. His election, who is to do the first act, ch. 154 a. 9, several cases.