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 (May waive the tort, &c.) 19, cases. 52. Merrill v. Lo 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 1 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 have covenant or account. Mass. S. J. Court, July 1797, ring-Lofft County of Lincoln. In this case Loring tortiously took 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. the plt. may elect assumpsit, when money has been extorted 2 Stra.915.from him, and paid to get possession of his goods. away So 320. 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. -12 Mod. 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 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 1 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. 2 D. & E. 166, Bennet v. Allcock. 3 Day's cases 327, Ch. 7, 22. 4 Co. 95, tion to bring trespass or to distrain them, Election of ac 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. election confines him to one action. A gave a note to B, to pay him $80 in good West India rum, sugar, or molasses, at his election, in eight days; he need not elect to give notice. 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 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. 4 Bos. & P. 293, 296.9 Co. 87.Sty. 199. Cro. El. 557, 600.-5 Co. 82. 1 Com. 2 Rol. 556. Cro. J. 50. 1 Com. D. 149, 150, Tiffyn v. Wingfield Cro. Car. 325,Slater v. Baker & al. 2 Wils. 362. 1 Com. D. Action M. 8. But the plt. has 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 r. 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. A makes a promise to B for the benefit of his son or daughter; B may elect to sue the promise himself, or to leave it and let his son or daughter sue C upon it. 9. So if A covenant to do a thing under a penalty, the covenantee has his election to have covenant or debt. CH. 5. Art. 1. Wilkin v. § 10. So where a man is accountable for money or goods, 1 Salk 9, he may have an action on the case or account, at his election; as where the deft. received goods of the plt. to carry beyond sea and dispose of them for the plt. 149,-Cro. 11. So if goods be taken from one by wrong, he may 1 Com. D. have detinue, replevin, or trespass; or he may have trespass 1.824. or trover for being taken by force, he may have trespass vi et armis; or he may waive the force, and have detinue to recover the goods themselves; or he may dispense demanding the goods themselves, and bring trover to recover the value of them in damages. He may bring replevin to have it decided if he shall hold the goods, and have damages for the taking, or return them to the deft. and pay damages for the damage done: where the obligee in a bond has an election, ch. 144 a. 13, 17. - v. Orrery. 12. Where the plt. may sue on either of two events; as 1 Ld. Raym. where the deft. made a contract to do an act on the first of 133, Loggin two events, the plt. may enforce a performance, though he does not call for it until both have happened. Beckford r. Saunders. § 13. Action on a conditional promise. A certificated bank- 2 H. Bl. 116, rupt promised to pay a prior debt, when he is able; the promisee cannot elect to sue this as an absolute promise, but must sue it as a conditional one, and prove the deft's. ability to pay. Contra, Ld. Loughborough. Schermer § 14. Where A makes a promise to B for the benefit of a 1 Johns, R. third person, there is an election; B may sue it, or such third 139, 149, person may sue it. A subjects himself to the action of either. horn v. VanThis however is not true in all cases. 1 Cranch 429, is a derhayden. quære. But see 2 Lev. 210; 3 Bos. & P. 149. ster. § 15. Where the plt. pays money to my servant and he mis- Stra. 480, Caapplies it, the plt. has his election to sue him or me; but it ry. Webis otherwise if the servant has paid the monies over to me, the plt. may be entitled to, or for which he is entitled to a credit not given him. 695. 701, Parker v. Norton. 16. Trover for a bill of exchange. Held, that bankrupt- 6 D. & E. cy is no bar to trover, though the conversion be before the bankruptcy. Held, where the plt. has his election to bring trover or assumpsit for money had and received, he may have trover as above, though the bankruptcy is a bar to such assumpsit; plt. may elect to waive the tort or not. The deft. dishonorably sold the plt's. bill at a discount, so received less than the amount, and this was all the plt. could have recovered, had he Сн. 6. elected assumpsit, &c.; and though he might elect to sue for less than his just demand, the law will not compel him to do it. In Massachu setts the issuing the writ is the com mencement of the action, Ch. 29, a. 7; so in New York.-18 Johns. R. 14. -8 Mod. 343, Perry v. 2 Cro. 70, 1 Com. D. 134. Doug. 215, Bristow. CHAPTER VI. THE PLT. MUST WAIT TILL THE CAUSE OF ACTION IS ACCRU. ART. 1. § 1. THE principle of law is well settled, that no action can be commenced till the right of action has arisen, and the plt. is become entitled to come into possession of the thing he demands. In the English practice it is said the plt. may sue out a latitat, before the cause of action accrued, but cannot declare till after, and there the reason given is, that the original process was only to bring the deft. into the marshal's custody, which might well be before the cause of action. 2. If the plt. sue before the cause of action is accrued, it may be pleaded in abatement, and if it appear on the record, it may be moved in arrest of judgment, or be a ground of er ror. 3. If a statute require the plt. 'to do an act, as to demand money of the deft. one month before he sues, and he does not, the deft. may plead the general issue, and defeat the action on evidence. 4. An action for a malicious prosecution cannot be maintained till that is terminated; and this matter must be stated 10 Johns. R. in the declaration. If the declaration be of the preceding term, as August term, and the cause of action laid after, as September, it is bad on general demurrer. 119. Doug. 4 Johns. R. -See Ch. 3, a. 11. 5. But if a bill of exchange be not accepted, an action will lie against the drawer before the time it is made payable, for the time of acceptance is to accommodate the acceptor, and it is not the intent to allow it to the drawer. 3 Johns. R. 202. t. Buck & al. 6. So where the deft's. wife, while sole, gave a bond to 20, a. 9; Ch. the plt., conditioned not to marry any other person but the plt., and in case she did so, or refused to marry him in one 3 Wils. 17-month after her father's death, then to pay the plt. £200; liv1 Wilson 59, ing her father, she married Day the deft.; the court held Day her bond was forfeited, and suable, though her father was living. But Lee C. J. doubted. 2 Stra. 949. Box v. and wife. 1 Sid. 307. 7. A bond cannot be sued before the breach, and if it become due after the suit is commenced, and before the plea, yet the action is too soon; for no action lies upon a contract till there is a breach of it, and it is absurd to bring an action, that must, in its nature, suppose a breach before one exists. Cн. 6. Art. 2. 8. But if one demise land, and be not seised, an action lies against him before eviction; this was an action of cove- Hob. 12, Holnant grounded on the word demise in a lease, which amounted der v. Taylor. to a covenant, the deft. was seised of the land, whereas in fact he was not seised, but a stranger was. And the Court held the "breach of the covenant was in that the deft., the lessor, had taken upon him to demise that which he could not, and that the word demise imports a power of letting, as the word dedi does a power of giving. 9. If A promise B to pay him 30s. rent a year, he cannot sue for 45s. for a year and a half, for it is payable annually. And if entire damages be given, it is void for the whole, for as to the last half year the right of action has not accrued. An entire verdict bad in part is bad for the whole. 10. Nor regularly can the surety sue his principal, till the debt is paid by the surety, or till there is judgment against the surety. See Post, Ch. 9 and 169. § 11. Nor can the assured maintain an action, on a policy of insurance, engaging to pay three months after proof of a loss, till the three months have expired. § 12. Nor can an assignee sue and recover on a covenant for a breach before the assignment; for he has no cause of action till a breach is made after the assignment. Lit. 61. 13. If the deft. allege a matter, which shews the action Cro. El. 110. brought before the cause of action accrued, which is not relied upon, but the plt. pleads over, and issue is joined on a collateral point, it will not be error. As where it only appeared by the deft's. allegation, that Agnes had been dead two years, in two years after whose death the debt was to be paid, and this he did not rely upon, but plead over to issue. 137, 138, § 14. In May 1803, the deft. agreed to remove his goods 3 Johns. R. from a store, but neglected it; whence in 1806 the plt. was M'Karras v. obliged to pay damages to A, to whom he had sold the store. Gardner. Held, the cause of action accrued when the deft. so neglected in 1803, and not when the plt. was obliged to pay charges in 1806, and after 1803 was a demand that could be set-off. 8 Johns. R. § 15. The deft. promised the plt. to pay him in certain Bernard. specific articles. Held, this was a conditional promise, and the plt. could not support his action without shewing, he offer- 15 Mass. R. ed to receive the said articles. But if A lend money to B, 75, 81. and B gives a forged security, A may sue immediately for money had and received. ART. 2. The principle of survivorship in actions &c. § 1. If 2 Esp. 91. there be two or more plts. or defts., and one or more of them die, if the cause of such action shall survive to the surviving plts. or |