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(C) of the Form and Manner of pleading Accords.

In an assumpsit for wares sold and delivered, the defendant pleaded that he gave and delivered unto the plaintiff a beaver hat, in satisfaction and discharge, &c., and that the plaintiff accepted the said hat in full satisfaction and discharge of the promises, &c. The plaintiff replied protestando that the defendant never gave him any such hat in satisfaction and discharge of the said promises, pro placito dicit, that he never accepted a beaver hat in satisfaction and discharge, &c. On demurrer it was insisted first, that the issue ought to be upon the giving in satisfaction, and not upon the receiving in satisfaction, because every gift or payment must be directed by him who gives or pays, and not by him who receives it; (a) but the court held it well enough, and that the whole matter concerning the payment, as well as the acceptance in satisfaction, would be tried upon this issue; as to the objection of its being pleaded to be given in satisfaction and discharge of the promises, &c., when it should be pleaded in satisfaction of the money mentioned in the promises, and not of the very promises, the court held it of no weight. Young v. Rudd, Carth. 347; 5 Mod. 86, S. C.; 2 Salk. 627, pl. 1, S. C.; Ld. Raym. 60, S. C.; (a) Stra. 23, 1194.

[It hath been since settled that this is the proper method of pleading: for there are two requisites to a discharge, namely, payment and acceptance; and a traverse of the acceptance is an argumentative denial of the payment.]

Hawkshaw v. Rawlings, Stra. 23; Paine v. Masters, Ibid. 573.

Where the plaintiff declared for tithes bargained and sold, and the defendant pleaded that before the exhibiting of the plaintiff's bill the defendant paid, and the plaintiff accepted, a sum of money in discharge and satisfaction of the promises in the declaration, and the plaintiff replied a latitat sued out before such payment: on demurrer judgment was given against the plea; because it appeared by the replication that the plaintiff had sustained damages and costs by reason of the non-performance of the promises, and the plea did not allege the payment to have been in discharge of such damages and costs.

Francis v. Crywell, 5 Barn. & A., 886; See 2 Johns. R. 342, Bird v. Ceritat.

Where in assumpsit on several promises the defendant pleaded accord and satisfaction of the cause of action, the plea was held bad on special demurrer, since it did not go to the whole declaration. Hopkinson v. Tahourdin, 2 Chitt. R. 303; and see id. 324. Accord and satisfaction may be given in evidence on the general issue, and it is not very frequently pleaded.||

1 Ld. Raym. 566; 4 Esp. Ca. 181. The plea of accord and satisfaction should state distinctly what was given in satisfaction, allege delivery, and expressly aver an acceptance in satisfaction and discharge. State Bank v. Littlejohn, 1 Dev. & Bat. 565. It must also show that the plaintiff received something valuable. Davis v. Noaks, 3 J. J. Marsh. 497. Accord and satisfaction is a good plea to debt on a record from another state. Hardwick v. King, 1 Stew. 312. The lapse of twenty years after breach of a covenant against encumbrances, is prima facie sufficient to support the plea of accord and satisfaction to an action on the covenant. 9 Pick. 543.

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ACTIONS IN GENERAL.

THE design of entering into society being the protection of our persons and security of our property, men in civil society have a right, and indeed are obliged to apply to the public for redress when they are injured; for were they allowed to be their own carvers, or to make reprisals, which they might do in the state of nature, such permission would introduce all that inconvenience which the state of nature did endure, and which government was formed to prevent: hence, therefore, they are obliged to submit to the public the measure of their damages, and to have recourse to the law and the courts of justice, which are appointed to give them redress and ease in their affairs; and this application is what we call bringing an action. (a)

(a) Actio nihil aliud est quam jus prosequendi in judicio quod sibi debetur. Co. Lit. 285; or a legal demand of one's right. Co. Lit. 285; 2 Inst. 40. It implies a recovery of, or restitution to, something, Co. Lit. 289; and differs from a writ of error, which is no action, but only a commission to the judges to examine the record, &c. Jenk. 25; 2 Inst. 40; Yelv. 209. Yet, if by writ of error the plaintiff therein may recover, or be restored to, any thing, it may be released by the name of an action. Co. Lit. 288, b. Vide for this 2 Roll. Abr. 405. The suit till judgment is properly called an action, but not after; and therefore a release of all actions is regularly no bar of an execution. Co. Lit. 289, a; Roll. Abr. 291.

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Under this head we shall briefly take notice,

(A) of the different Kinds of Actions.

(B) In what Cases an Action will lie, and for whom, and against whom.

(C) In what Cases distinct Things may be laid in the same Action.

(A) Of the different Kinds of Actions.

ACTIONS are divided into criminal and civil

Co. Lit. 284; 2 Inst. 40.

Criminal are either to have judgment of death, as appeals of death, robbery, &c.; or only to have judgment of damages to the party, fine to the king and imprisonment, as appeals of mayhem, &c.

2 Wooddes. 487.

Civil actions are again divided into real, personal, and mixed.

Co. Lit. 284; 2 Inst. 40. Actions are either real or personal, according as the thing to be recovered is either real or personal. The nature of the defence to the action makes no difference. Willes. 134. See 4 Bos. & P. 267. Where an action is founded on privity of estate, it is local; where on privity of contract, it is transitory. Therefore, assumpsit may be brought in one state for the use and occupation of lands in another. So actions of debts or covenant between lessor and lessee, for the recovery of rent, being founded on privity of contract, are transitory. So is covenant by the assignee of the reversion, but debt is not. Henwood v. Cheeseman, 3 S. & R. 502, 503; Corporation v. Dawson, 2 Johns. Cas. 335; Low v. Hallett, 2 Caines R. 374.9

And here it may be proper to inquire a little into the nature of those real actions which were formerly in use, and how they came to be discontinued.

(A) Of the different Kinds of Actions.

Actions real, or relating unto lands, are either droitural, that is, of the right of the ancestor; or possessory, which complain of the violation of a right of which the parties themselves were possessed.

[This is not the true distinction between droitural and possessory action. Whether the action be droitural or possessory depends not upon whether it complain of an injury to the demandant himself or to his ancestor, but, whether it seek to recover the property or the possession. If the former, the action is droitural; if the latter, it is possessory. Finch has stated this correctly. "Real actions," says he, "where a freehold shall be recovered, are possessory, or in the right. Possessory, which are to recover a possession, as all assizes, writs of ayel, besayel, and cosignage. In the right, which are to recover a possession mixed with the right. And both these may either be of a possession or right in himself, or descended from his ancestors, which we call ancestral. Real actions in the right, are either founded on the right, or for the mere right." Tinch's Law, 257, 258. Note The part referred to in the first Institute in support of the doctrine of the text, viz. 1 Inst. 164, is not at all referable to it, nor is the editor aware, that it is warranted by any passage in that book.] See Black. Com. b, 3, c. 10.||

The law always distinguished between a right of entry and a naked right to the land itself; and therefore there were different remedies. To recover the naked right, the law gave only a writ of right; and in this action, the defendant at his election might put himself upon his country or wage battle. But, when the disseisee had a right of entry, it was presumed that the disseisin was fresh and recent; and therefore the trial was coram paribus curtis. But, if the disseisee did not come till the heir was seated in the possession, and had paid relief to the lord, then the entry of the disseisee was taken away, and his title became doubtful; and then they appealed to Providence in such decisions; and if any freeman would, with his own body, defend the title of the possessor, the demandant was obliged to find a champion to enter the lists with him.

Booth, 99; Co. Ent. 182; 1 H. 6, 7.

But to recover the right of possession, the ancient way was by writ of entry. Where the process was by summons grand cape before appearance, and petit cape afterwards, as in the writ of right, and the general issue was disseisivit vel non disseisivit; and this issue was tried by a jury, because, when the disseisin was fresh, they did not put it upon the hazard of a battle, as they did in those cases where the long possession had made the right doubtful.

Booth, 177, 179. || See Roscoe on Real Actions.[]

But in the writ of entry they recovered no damages: for that such writ only demanded the freehold, and was not mixed with the personalty; and therefore to recover the profits which are merely personal, they had an action of trespass, which was the proper remedy for the damages sustained.

Booth, 175; 2 Inst. 289.

There were anciently only three sorts of writs of entry; one was against the disseisor himself; the other was against his feoffee, which was called the writ of entry in the per; the third was after a second alienation, which was called a writ of entry in the per and cui; but the statute of Marlb. cap. 30, gave a writ of entry in the post, which did not lie at common law against an alienee at a third hand.

F. N. B. 191; Booth, 175; 2 Inst. 153; 3 Black. Com. c. 10, 181.

And as a man might have brought such writ of entry of his own disseisin, so he might have brought it for the disseisin of his father, or he

(A) Of the different Kinds of Actions.

might have brought it for a disseisin done to his grandfather, which was called a writ of ayel, or a disseisin done to his great-grandfather, which was called a writ of besayel, or any collateral cousins, that were more remote than brothers and sisters, uncles and aunts, nephews or nieces; and this was called a writ of cosinage.

F. N. B. 191, 221; Booth, 175, 176, 200; 3 Black. Com. 185.

But because the process in a writ of entry became tedious, when such actions were removed out of the lord's court into that of the king, and thereby the process which issued from three weeks to three weeks in the lord's court, was depending so many several terms in the king's court, therefore the assize was invented, which was in the nature of a commission to put the disseisee in possession by trial at one assizes; and this was so sudden and immediate a remedy, that the writ of entry became obsolete; and therefore when the assize was the usual remedy, the writ of entry began to be called a writ of entry in the nature of an assize.

Glanv. c. 7, § 17; Fleta, 214, 215. Vide Assize.

There were likewise other remedies, as the formedon in remainder and reverter, and a formedon in descender, which were given by the statute de donis, which created estates-tail.

So the writ of quod ei deforceat which was given by a statute passed in the same year with the statute de donis, vis. 13 E. 1, c. 4, and occasioned by it.

But the proceedings of these real actions being dilatory and expensive, and in many cases concluding the party upon one trial, a more commodious method was contrived to dispute the title to lands, which began in the reign of Henry the Seventh in this manner; by forming a term for years, and then the lessees bringing an ejectment to recover the term, and thereby to assert the title of the lessor of the plaintiff: before this time, if a termor for years, who only claimed as a bailiff to the freeholder, had been ousted of his possession, he had only a remedy to recover damages in ejectment, and could not recover the term itself (a); but in the reign of Henry the Seventh, the courts of equity having obliged such wrong-doer to a specific restitution, the courts of law likewise gave an habere facias possessionem to recover the term in specie.

F. N. B. 220. Vide head of Ejectment. 3 Black. Com. c. 11, 200; Jenk. Cent. p. 67. See the Record in Rast. 252, b. (a) The term itself was recoverable only by covenant against the lessor. Fitz. Eject. 2 P. 6, R. 2; F. N. B. 145, M. So early as the reign of Edward the Fourth it was said by Fairfax in argument, that the plaintiff in ejectione firma should recover possession of his term, as he would in a quare ejecit infra terminum. 7 E. 4, 6, b.

Personal actions are ex contractu, or those founded on contract, as debt, which is to recover the thing in numero; or detinue, which is to recover the same in specie; or (if it cannot be had) its value, and also damages for the detention; and actions of account, covenant, assumpsit, quantum meruit, quantum valebat, and annuity.

Or ex delicto, as trespasses founded on force, which are trespasses vi et armis; or upon fraud, which are actions upon the case. (b)

(b) There are many actions on the case which are not founded on fraud, as actions for injuries to incorporeal hereditaments and rights, for injuries to reputation by libel and slander, for injuries arising from negligent acts of the defendant himself and of his servants, and for various breaches of legal duty. See further, as to the distinction between actions of trespass, and trespass on the case, tit. Trespass, (A,) and see next page. VOL. I.-9

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(B) In what Cases an Action will lie, &c.

Therefore, if a man gets the goods or chattels of another by lawful means, as by bailment, borrowing, or pledging, he cannot have an action of trespass, but must bring detinue or trover, because the party had not violated his possession.

So, where a man comes to buy goods, and they agree upon a price and a day for the payment, and the buyer takes them away, trover does not lie, but an assumpsit for the money, because the property was changed by a lawful bargain.

For the non-performance of a contract to pay a certain sum in articles of merchandise, the action should be case, and not debt.

Stroud v. Shimes, 3 Halst. 134.

If I borrow a horse to go to Dover, and go to other places, the owner may have an action on the case against me, for exceeding the purposes of the loan for so far it is a secret and fallacious abuse of his property; but no general action of trespass, because it is not an open and violent invasion of it.

Roll. Rep. 128.

Where the act is lawful, (a) as the fixing of a spout, and the conse quence is injurious, the remedy is by case, and not trespass.

8 Mod. 272; 2 Ld. Raym. 1399; Fortesc. 212; 1 Stra. 634. (a) The lawfulness or unlawfulness of the act is not the criterion between the action of trespass and on the case. See 2 Black. R. 894; 3 Wils. 499, Scott v. Shepherd; where instances are put by Blackstone, J., in which trespass lies for the consequences of a lawful act, and where case may be brought for the consequences of an unlawful one. The distinction is between direct or immediate injuries on the one hand, and mediate or consequential injuries on the other. Trespass never lay for the latter. Ib. And see tit. Trespass, (A,) and the cases there.

(B) In what Cases an Action will lie, and for whom, and against whom.

Ir is clear that for all injuries done to a man's person, reputation, or property, he shall have an action, and that for every right he is to have a remedy; for want of right and want of remedy are the same thing.

It is also agreed, that where a person has several remedies, he may choose which he pleases; but he cannot devise or lay hold on any but those prescribed by the laws of his country; for if this were allowed, it would be constituting as many actions as there are men, which would be highly inconvenient.

Co. Litt. 145; Stile, 4. It is a general rule that when a new remedy is given by statute, unless the statute takes away the common law remedy, the plaintiff has his election to adopt either. 4 Halst. 384; 5 John. 175; 16 John. 220; 1 Call, 243; 6 H. & J. 383; 2 Greenl. 404; 5 Greenl. 38; 10 John. 389; 3 Day, 16. g

But in this the great difficulty is, when a man shall be said to have suffered an injury, or to have such a right as will entitle him to an action. And here the rules established by that society, of which he is a member, must govern; and therefore, though a man has a right, yet if he be barred by the statute of limitations, he can have no remedy.

So, if I promise by word only to convey lands, or to give goods, without delivering possession, or, if I promise to build a house without consideration, (b) &c., though by the laws of nature these promises are binding, yet no action lies; for without deed duly sealed and executed, or without consideration, no property is altered; and every such pro

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