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Сн. 3.
Art. 1.

CHAPTER III.

OF ACTIONS GENERALLY.

284, 289.

action. See

ART. 1. Action what. 1. "An action is a lawful demand of 3 Bl. Com. one's right," Actio est prosequendi quod sibi debetur in judicio. 116.-Co. L. The word action is sometimes used in a more limited sense, What is the as when it is said, that a suit till judgment is regularly called commencean action, but not after; nor is a writ of error an action, but ment of the only a commission to the judges to examine errors; sometimes Ch. 29, a. 7. in a more extensive sense, as when it is said a scire facias, or Cowp. 382.-any writ by which the plt. may recover, is an action. When Gil. L. Evid. the remedy is gone, the right is gone. A qui tam action or 5-12 Mod. debt for a penalty, is a civil action-a mere party suit. 1 Bac. Abr. 143.—6 Mod. 34.

265.-3 Salk.

See 228. But an action does not include an information, nor the term party, the king; nor, a fortiori, the state. All law terminates in actions or prosecutions.

§ 2. Actions are, 1, personal; 2, real; and 3, mixed. Personal actions are founded on contracts or torts. By perpersonal actions a man demands a debt, or damages in lieu thereof; or damages for some injury to his property, person, or reputation. By real actions the demandant demands real property only, as lands, or rights issuing out of lands. By mixed actions the plt. demands real property; also personal 3 Bl. Com. damages for any wrong sustained, as in waste in England, and in several of the United States, the part of the inheritance wasted, also treble damages.

117, 118.

28.

3. Personal actions are ex contractu and ex delicto. The 1 Bac. Abr. last are on force or fraud. Every real action is possessory; that is, of the demandant's own possession or seisin; or ancestrel, that is, of the seisin or possession of the demandant's ancestor. Ancestrel actions are two fold. 1. Where only a bare right descends. 2. Where the ancestor died seised, and 6 Co. 4, 5. the land descends, and one intrudes into the land after it descends.

4. Though in allowing a party to choose his kind of action, the law regards substance more than form: yet the plt. Jennings v. cannot convert an action founded on a contract into a tort, so R. 335. Randall, 8 T. as to affect the principles of the case to the deft's. disadvantage; as to charge an infant, for instance, for a tort, where he Real actions made a contract; as where he contracts to hire a horse to ride, what, 2 T. and he rides him immoderately; but the plt. may waive a tort, and go only for the value of the thing taken by the deft., for this is for his advantage. As to the numerous sorts of actions the principles &c. of them in detail, see other chapters.

R. 700.

Сн. 3.
Art. 2.

Co. L. 128. Imp. M. P. 46, 47.--Coo

per's Pl. 24,

243-246, Harden v. Fisher.-1 Wheat. R. 300.

Calvin's case,

Cro. Jam. 539.-Cooper's Pl. 24,

27, 246, 248. -9 Johns. R. 303.-Troup v. Mullender.

---7 Johns. R.

214, 217.Gardiner's case.-Flu

cher's case,

R. 453-465.-

Palmer's

Nov. 1801.

1 Mass. R.

ART. 2. Who may be plt. in our courts, and maintain actions. 1. As on general principles, every person has a right to legal security in regard to his property, person, and reputation, he may be a plt., or a competent person to prosecute, unless under some legal disability. These are; 1, persons outlawed, being in their own right, but if they sue in auter droit, as executor, administrator, and officer in a corporation, &c., they are not disabled, for those they represent, and whose rights are the objects of the suit, are entitled to their law.

2. Aliens. They cannot bring a real or mixed action generally; for aliens cannot have or hold real estate in the 7 Co. 1-56 & United States, except certain British subjects, who held real estate here when independence was declared, [July 4, 1776,] and who continue to hold the same; as the separation of the two countries did not divest estates previously vested, but only created in one become an alien, an inability to take any real estate afterwards. Hence, and on the principles of Calvin's case, those British subjects who on this separation became aliens, and then held real estates in the United States, and still own them, may sue for and recover them, if disseised, and in the Federal courts, by the provisions of the Federal Constitualso 4 Wheat. tion; and on the death of such a subject, so seised of real estate here, it descends to his next akin, being citizens. case, Essex Hence, when Dr. Gardiner so become an absentee and alien, and died in 1786, seised of such estate on the river Kennebec, 256, Sheaff v. his devisees, in July 1799, in the county of Lincoln recoverO'Niel, also 1 ed; and it is the settled legal opinion, that his children alone, -- John. Ca. who are citizens, inherit his undevised estate in Massachusetts; and that such of his children as became aliens on this separation are wholly excluded. So as to the estate and children of Mr. Fleucher, and other such aliens. And a citizen may recover a share in the estate of a citizen deceased, though the demandant claim through an alien, and this on the British Statute of the 11 and 12 of Wm. III. adopted here. See construction Folliot v. Ogden, 1 H. Bl. 123–136, parties become aliens. of, 4 Wheat. R. 453, Orr v. § 3. It has been decided in Massachusetts, that an alien Hodgson.- can purchase and hold real estate, till office found, that he can essential, and grant the same, and his grantee can maintain an action to this article recover it, and may declare on his own seisin in fee. One includes only born in N. Jersey before 1775, and joined the British in 1777, jects and cit. and has ever since adhered to them as a British subject, is not izens of the an alien. U. States,

Bos. & P. 48.

401.-4

Cranch 209,

M'Ilvaine v. Coxe, 321, 323.

See Ch. 131,

as to estates by aliens

Seisin not

British sub

and confined to Englishmen and

$ 4. By the ninth article of the treaty between the United States and Great Britain, made Nov. 1794, "it is agreed, that British subjects who now hold lands in the territories of Americans. the United States, and American citizens who now hold lands the treaty of in the diminions of his majesty, shall continue to hold them,

See 6 art. of

CH. 3.

Art. 2.

mitted to live

according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives; and that neither they, their heirs, or assigns shall, so far as it may If an alien enrespect the said lands and the legal remedies incident thereto, emy be perbe regarded as aliens." By this provision, British subjects, in the U. their heirs, and assigns, though otherwise aliens, may hold, sue States, in time of war, for, and recover such lands here, as native citizens may, and not or (many lands in the United States are subject to this provision,) dered away but cannot recover in time of war.

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by the Exec

be sued; 10

-Institutes

Domat's Civ

5. By the 11 Art. of the treaty made between France cense is imand the United States, in Feb. 1778, it is provided, that the plied, and he goods, or things moveable or immovable of American citizens may sue and in France, may be disposed of by them as they pleased, and Johns. R. 69, that their heirs might inherit them, subjects of the United 75, 117, 183. States, residing whether in France or elsewhere. There was of the French a similar provision as to the estates of Frenchmen in the Uni- Law, by Arted States. Biens meubles et immeubles, are the words in ou the original treaty. Biens in the French law means estates;" il and Pubbiens meubles, personal estate; and biens immeubles, real estate. lic Law. Before this treaty was made void, a few Frenchmen aliens Code enacted acquired lands in the United States under it, which they hold, 11th and 12th and will continue to hold as long as they live. And according years of the to the case above, of Sheaff v. O'Neil, they can till office found grant them, notwithstanding the treaty has been declared void, but it is conceived they have not a legal capacity to transmit them by descent. This article involves the droit d'aubaine. Where a prisoner of war, a neutral by birth, may sue, see 8 East 287; 1 Bos. & P. 168; 2 do. 268.

French Civil

French Re

public.

Kilham v.

§ 6. In this case it was held that the plt., who left this state 2 Mass. R.. after April 19, 1775, went to and resided in the British terri- 236 to 268, tories till early in 1730, and then returned to the U. States, Ward jun.and before the treaty of peace, was not an alien, but a citizen; See French and that the Act of April 30, 1779, operated as no disquali- 1778, & 1800. fication upon him, as he was not prosecuted and convicted un- 2 Wheaton's der it. Same Gardiner v. Ward jun. &c. p. 244, &c.

Treaties of

R. 259, 278.

Palmer v.

7. But in the case of Palmer and wife v. Downer, it was Nov. Term holden, that one Downer, who was taken and carried into Bos- 1801, Essex, ton by the British, in the summer of 1775, went with them to Downer. New York, and there held an inferior office under the British government, and after the peace in 1783 settled in Nova Scotia; thereby became an alien to the United States, and that from 1775.

8. Aliens generally in regard to actions, in different sit- 4 Mass. R. uations have different rights. An alien friend may have a 481-Lit.

sect. 198.-Co. L. 129.--Dyer 2.--Litt. sec. 198.-Co. L. 129.-Salk 46.-Cro. El. 683.-7 Co. 16, Cro. Ch. 9.-Foster 186.-Stra. 1082.-Mod. 431.-1 Com. D. 415, 416.

CH. 3. personal action, but no real or mixt action; but an alien enArt. 2. emy can have neither, except he may sue as executor or administrator, or the reasons above; and Co. L. 129. So he may sue if he have a safe conduct, or a protection; Wells v. Williams. So if an alien come into the country in a time of peace, as the French protestants did, and remain after the war takes place, he may maintain a personal action; and there is no difference between an alien Christian, and an alien infidel. Plea alien enemy, Stra. 1082; Cooper's Pl. 24.

3 Burr. 1734, Ricord v. Bellingham.

6 T. R. 25 to 28, Brandon

v. Nisbitt

1 Dal. 71.

3 Dal. I.

$9. So the captain of an enemy's ship may sue on a ransom bill, given in a time of war, by a British master for the redemption of his captured ship. For this contract, like a treaty with an enemy, arises out of an act of hostility, and is binding, and is not an illegal contract with him. Sued after the peace.

§ 10. But in a subsequent case, it was observed, that that action, Ricord v. Bellingham, was brought after the peace made in 1763. And in this after case it was said, that no alien enemy can maintain an action. This was an action on a policy on goods in an American ship, at and from London to Bayonne, brought by Brandon, an agent, who in his declaration averred the policy was effected for A, B, C, D, and E, interested in the goods. Pleas that these persons were aliens, and before the ship sailed were enemies. Replication, that they owed the plt. beyond the amount of their interest in the goods, &c. General demurrer. Judgment for the deft., on the ground an action will not lie either by or in favor of an alien enemy. No case found of such an action. In this case were cited the above and also Winch v. Kuly, 1 T. R. 619; Bristow v. Towers, Dougl. 250; Planch v. Fletcher; here it did not appear the goods were French property; Anthony v. Fisher, Dougl. 648, 649; 1 Bl. Rep. 563. See more on this head of alienage, plea in abatement, and in bar, for it, and ch. 131, alienage at large. An Englishman living in, and carrying on trade under the protection and for the benefit of a hostile state, cannot sue in England. See 1 Bos. & P. 163, 345; 8 D. & E. 548; 8 East 273; 9 East 321; 8 Bos. & P. 97. Who is an alien as to commercial purposes of a hostile character. See Chitty's law of nations, 31, &c.; 1 Bos. nel v. Hector. & P. 163; 5 Rob. R. 161; 3 East 332.

3 Bos. & P. 113, M'Con

11. Persons convicted. As to these the laws are different in different states. Wherever the law allows a man to have property, it gives him an action to recover it. And how far one convicted of a crime has property must depend on the law of the land. Every citizen has a capacity to have property till the law disables him to have it.

12. Judge Blackstone states it as a principle, "that all

CH. 3.

Art. 3.

property is derived from society," and is a civil right, and may be forfeited by violating the municipal law, and the state may justly resume, on this account, one's portion of property, or any part of it, this law has assigned him, and that a forfeiture is a punishment annexed by law to some illegal act or negligence. These principles are clear, but the question still 299-2 BI. is, how far our law has extended this forfeiture; and of course, Com 267. how far it has disabled a person convicted of a crime to sue.

See Forfeiture post.

§ 13. It is clear that the English laws, in regard to forfeiture and punishments in capital cases, have never been adopted in the United States.

§14. By the 3d art. sect. 8, of the Constitution of the United States, no attainder of treason can work corruption of blood or forfeiture, except during the life of the person attainted. Nor is any forfeiture, by English or American law, incurred by verdict; but only by judgment.

1 Bl. Com.

Judicial.

§ 15. By a law passed in the colony of Massachusetts A. Colony laws D. 1641, it was enacted, (among other things,) that there 1641, Death should be no forfeiture for, or upon death judicial. And there is no statute, or clause of a statute, of the United States or of Massachusetts, that respects the forfeiture of estates, real or personal, for crimes, except said law of 1641 and Massachusetts treason act of 1777, or except certain sums, or fines, or specified portions of property.

case.

$16. Upon these principles, in Massachusetts Sup. Judi- Blackburn's cial Court, in Nov. 1795, one Blackburn was convicted of murder, and had sentence of death passed upon him for killing with a sword, and executed; and he had some property, but no inquiry was made concerning it, or the weapon as a deodand: nor is it recollected that any inquiry has ever been after the property generally, of one capitally convicted. and punished in Massachusetts, or in the courts of the United States.

Imp. M. P.

ART. 3. How in actions several persons may be plts., and Co. L. 132.general forms in suing. 1. When several persons join in Salk 119.an action, it must be in a certain form prescribed by law. 51. Therefore the wife must be sued with her husband, whenever injured in her person or property, and the injury be of a nature to survive with her; but not if she has a separate maintenance, or if the wrong be to the damage of the husband only.

Wheeler v

2. In some cases the law gives her an action, even against Essex Nov her husband, as where one Wheeler and wife were divorced Term 1800, from bed and board, in Massachusetts, and he was decreed to Wheeler. pay her a quarterly sum. This being in arrear, she brought an action of debt against him for certain arrears, and on de

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