Сн. 3. Co. L. 133. Com. 464.- Co. L. 247. 1 Rol. Rep. 41, Pigot's case.-Mass. Statutes. 3 Bac. 339.2 Wils. 3. 1 Bos. & Pul. shall 219, Vignier v. Swanson. murrer, the court held the action lay, from the reason and necessity of the case. §3. So if the husband is banished or has abjured, he is civiliter mortuus, and the wife must sue as a feme sole. And so if she have a separate maintenance. But see Marshall v. Rutton, post. § 4. So an infant must sue by his guardian or next friend, who is any person that will undertake his cause, in which case the deft. is called upon to answer to the minor who sues by A. B. his next friend or guardian, &c. § 5. So an ideot, one non compos mentis, or any one under guardianship, must sue by his guardian, and it must be expressed that he sues by him as guardian. $ 6. If a feme covert or a minor, join in a contract with A, he must be sued alone, for it binds him only. This is the legal operation, and in this case it must be pursued. 7. There are some cases in which one may sue, on a wri346-1 Mar- ting or contract, in which he is really interested, though not named in it. As where Grandelos and Company got insurance made, but were not named as agents in the policy, for De Vignier, their principal, Vignier, though not named at all in the policy, was allowed to sue and support his action. It was averred in the declaration, the interest was in him; though it was objected that Grandelos and Co. should have been named agents on the 28 Geo. 3. But it is understood that this policy was, as in the case of Wolf and Horncastle, in the English form, that is, as well in their own names, as for and in the name or names of all and every other person or persons, to whom the same did, might, or should appertain, in part or in all." Pearson v. 66 8. But it has been decided in the Supreme Court of the Lord, 6 Mass. United States and in Massachusetts S. J. Court, that where R. 81, and Greave's these words are not in the policy, as is the case of many late forms in the United States, one in Vignier's situation not named in the policy, cannot maintain an action upon it, but in this new form the underwriter must know who he insures. case. 1 Esp. 27. 1 Stra. 516, 1 Bos. & Pul. v. Russell. $9. If a note be made to the wife, the law vests the property solely in the husband, and he must sue it, and alone endorse it. See Baron & Feme. And her endorsement is void, Dougl. 653. § 10. If A recover money of B, to the use of C, C may 296, Farmer recover it of A, though the consideration on which B paid A Tenant v. be illegal; for A shall not retain the money upon any pretence, he recovered it illegally; he cannot invalidate his own recovery. If a policy be signed by an agent, the assured may declare on one as signed by the principal; or on one as signed by the agent duly authorized; the last is the best way. Elliot, 1 Burr. 1188, Nickolson v. Croft. 11. The plt. cannot demand, in the same declaration, several satisfactions for the same thing; but must, pro formâ, lay the thing demanded under an alias in each count after the first. CHAPTER IV. WHEN THE PLT. HAS A RIGHT OF ACTION AND OF WHAT KIND. (General principles. The detail in subsequent chapters.) ART. 1. 1. Some writers have made a difference on moral principles, between a right of action and right of compensation. As if certain persons pull down my house to stop a fire, or to impede an enemy, or to effect some public good, 4 Home's and do this with sufficient cause, I can have no action against them. Yet, as my loss is to the benefit of others, I have a right to a compensation from them. Sketches 22, 23, &c. &c. 3 Bl. Com. 2. A right of action accrues, 1. When one unlawfully takes personal property from the owner; 2. Unlawfully detains it from him; or 3. Does an injury to it in his possession. 119, 120, 144, So if one party violate his contract, a right of action accrues 166. to the other. So a right of action accrues to one for an injury to his body, limbs, health, reputation, or connexions, or for an unlawful restraint of his personal liberty. And the kind of action depends on the nature of the case. Cowp. 414, 3. In bringing actions there is one general settled rule; that is, that the kind of action shall be brought, which will 419, Lindon decide the right, and in which the record will shew how it is v. Hooper.decided; for it is the very intention of the law in prescribing 1 Esp. 97, an action to decide and settle the right; and it must ever be material that the record shew how the right is decided. As if one receive my money, he is not legally entitled to keep, and the question of right cannot be completely tried in an action of assumpsit for money had and received, but may be in replevin, then replevin shall be brought. As when A takes my cattle damage feasant, and impounds them, and though I claim a right of common, I pay him money charged for the damage, I cannot have assumpsit to try the right. 1. Because on the general issue the deft. cannot be apprised of the point to which to apply his defence. 2. The right will not be decided; for it will not afterwards appear on the record. But I must bring trespass or replevin, wherein the right will come in question, and appear on the record. The deft. ought to be apprised, and generally from the record, what points he is to prepare to defend; and of course, what evidence he is same case. 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 call- CH. 4. Art. 1. 12. No action lies of any kind, where there is only dam- 1 Mod. 66, in num absque injuria, 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 proteets 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. & Munf. 423 to 446. The question of 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 See 2 Hen. action, said Lord Mansfield, in this case. Held, an officer is not liable to an action of false imprisonment for arresting a certificated bankrupt, a peer, a discharged insolvent, or a per- case and tress son who has taken advantage of a statute, which provides he pass well shall not be liable to be arrested, and if arrested, shall be dis- examined. charged, 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. 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 ley. 19. 1 Caine's R. 47. recovered. 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 |