note. Debt may be maintained by the payee of a bill of On a bill of exchange against the drawer, but not against the acceptor. exchange, or 1 Salk. 23. Debt also may be maintained by the payee of a promissory note against the maker, but cannot be maintained on a promissory note payable by instalments, till the last day of payment be past. Rudder v. Price, 1 H. Black. Rep. 447. Actions for wrongs are, case, detinue, replevin, and trespass vi et armis. Actions on the case, are founded on common or statute Case. law, and lie for the recovery of damages for consequential wrongs, or torts to persons individually, or relatively, or to real or personal property, or some right or privilege incident thereto. The actions are either ex delicto, or quasi ex contractu, and are said to arise from malfeazance, or doing what the defendant ought not to do; non-feazance, or not doing what he ought to do; and mis-feazance, for doing what he ought to do improperly: and they are commonly for doing or omitting something contrary to the general obligation of law, the particular rights or duties of the parties, or some implied contract between them. To persons individually, ex delicto, they are for consequential hurt or damage, arising from public nuisances, or keeping mischievous animals; in nature of conspiracy, for malicious prosecutions, or civil suits, or criminal charges, libels, scandalum magnatum, or defamations of common persons; against justices or other officers for refusing bail, &c. or quasi ex contractu, against surgeons, &c. for improper treatment; to persons relatively, ex delicto, for enticing away or harbouring wives, or servants per quod, &c. To real property, corporeal, ex delicto, for nuisances of a private nature to houses, lands, &c. to the prejudice of the plaintiff's possession or reversion; or on the riot or black act, or quasi ex contractu, against tenants in nature of waste, for not repairing fences, or for not carrying away tithes. To real, incorporeal, ex delicto, for disturbance of common pasture, &c. ways, offices, franchises, tolls, ferries, and seats in churches. To property, ex delicto, they are actions of trover, over and conversion for negligence, in riding horses, driving carriages, navigating vessels, or performing works. Against sheriffs or other officers for escapes, false returns, or taking insufficient pledges, &c. for excessive or irregular distress for rent, or damage feasant, rescue of prisoners, unlawfully exercising trades, or infringing Detinue. Replevin. Trespass. patents, copyrights, &c. ; false and deceitful representations; or on the statute of hue and cry, &c. or quasi ex contructu, for deceit on sale of cattle, or goods, or immoderate use of them, when lent or let to hire, and against inn-keepers, carriers by land or by water, wharfingers, farriers, &c. Detinue lies upon a purchase, bailment, or finding for the recovery of goods in specie, or damages for detaining them. Replevin lies to recover damages for an immediate wrong without force, in taking and detaining cattle or goods under a distress for rent, or damage feasant, &c. and answers to the action of trespass, de bonis asportatis. Trespass vi et armis, lies to recover damages for immediate wrongs, accompanied with force to persons by menaces, assault, battery, wounding, maihem, or false imprisonment; to real property, as houses, lands, fisheries or watercourses; and to personal property, by destroying, damaging, taking away, detaining, or converting cattle or goods. FOR WHOM AND AGAINST WHOM AN ACTION WILL LIE. As the law grants redress for all injuries, and gives a remedy for every kind of right, so it is open to all kinds of persons, and none are excluded from bringing an action, except on account of their crimes or their country: as men attainted of treason or felony, persons outlawed or excommunicated, convict in præmunire, alien enemies, professed in orders of the papal religion, as friars, monks, &c. (unless they have attained a pardon,) infants, feme coverts (unless by special custom,) or persons not in rerum natura; but executors or persons outlawed have a right to sue in right of their testator or intestate. 1 Inst. 128. But care must be taken how such actions are brought; as if an infant is plaintiff, he must sue by his next friend or guardian (Roll. Abr. 287), unless he sues with others as executor, and then he may sue by attorney, for all of them together represent the testator, Ibid. 288. If an infant is sued, he must appear by a guardian; if not, the plaintiff may move the court to have one appointed. 2 Inst. 26. If an infant recovers by verdict, or judgment goes by default, where he is plaintiff, it cannot be assigned for error, that he is an infant; but the defendant should have summoned to stay the proceeding until a guardian was appointed. Vide 21 Jac. 1. c. 13. 4 Ann. c. 16. If an idiot sue or be sued, he must do it in person. Co. Litt. 135, b. 1863 By marriage the husband and wife are one person in Baron and law. Co. Litt. 112 and the husband is bound to provide feme. her with necessaries; and if she contracts debts for them, he is obliged to pay them. 1 Salk. 118. If she elopes with another man, he is not chargeable even for necessaries, at least if the person who furnishes them is apprized of it. 1 Lev. 5. If she is indebted before marriage, he is bound. 1 Leon. 312. and he cannot be sued alone for the debt of his wife contracted before marriage. Hitchinson v. Hewson, 7 Term Rep. 348. She must in all cases sue with her husband: and in all cases where they are both sued (although the husband may answer alone,) yet the wife shall never be forced to answer without her husband (except it be a sole merchant, i. e. when she carries on a sole and separate trade, which is by the custom of London only) 10 Mod. 6. 1 Inst. 135. But she cannot sue as a sole trader without her husband in the superior courts, 4 Term Rep. 361. Caudell v. Shaw, Beard and ux. v. Webb et al. in error. 2 Bosanq. and Pull. 93. Wherever the suit will survive to the wife, she must join in the action. 1 Wils. 224. Dunstan v. Burwell. Or where the debt is due to the feme dum sola, both must join, Moor, 422. If baron is possessed of tithes in right of the feme, they must join in debt for not setting them forth, because the feme is the proprietor. Cro. Eliz. 608. 613. If the action is brought for the labour of the wife only, she may join in the action. 2 Sid. 128. Cro. Jac. 77. But declaration must state it to be done by the wife. 2 Wils. 424. Cro. Jac. 77. The dippers at Tunbridge Wells all joined with their husbands, and held well. 2 Wils. 414. Weller and ux. and others, v. Baker. If a bond be given to baron and feme administratix, the husband alone may bring the action, and declare on it as on a bond made to himself. 4 Term Rep. 616. Ankerstein v. Clarke. In the case of Marshall v. Rutton, E. 40 Geo. 3. this Feme living court determined that a feme covert, living apart from apart from her husband, having a separate maintenance secured to husband, and her by deed, cannot contract and be sued as a feme parate mainsole. 8 Term Rep. 545. C having a se tenance by 4 If she com But if she does, and husband leaves her in his house with A husband is not bound to receive, nor is he liable to mits adultery. pay for necessaries found to his wife, after she has committed adultery, though he has before committed adultery himself, and turned her out of doors without any imputation on her conduct. Govier v. Hancock, 6 Term Rep. 603. But if she has committed adultery, and he leaves her in his house, with two children bearing his name, without making any provision for her in consequence of the separation, and she continued in a state of adultery, the husband is liable for necessaries furnished to her, unless it appear that the plaintiff knew, or ought to have known, the circumstances under which she was living. Norton v. Fazan, 1 Bosanq. and Puller, 226. If husband re- If the husband resides abroad, and the wife trade and sides abroad. obtain credit in this country as a feme sole, she is liable for her own debts. De Gaillon v. Victorie Hariet l'Aigle, 1 B. and P. 357. two children, and continues in a state of adultery. If husband has abjured the realm or is banished. Executors. Joint-tenants. Tenants in common. There is one case where the wife shall sue and be sued as a feme sole, where the husband has abjured the realm, or is banished, Co. Litt. 133. for then he is dead in law; and the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defence at all. Executors, when they bring an action, must all be named, although probate be granted to one only. 9 Co. 37. 1 Sid. 449. But when an action is brought against them it must be only against such of them as do administer. 1 Roll Abr. 924. Carth. 124. If there be two executors, one under age, and the other proves the will, and hath administration durante minore, &c. he may sue solely. But where both are of full age, though the will be proved by one only, the action must be brought in both their names. 2 Lev. 240. Colborne v. Wright. 2 Jon. 119. Raym. 198. Also, if two men have lands and goods together in joint-tenancy, and be wronged in them, they must sue jointly. Co. Litt. 180. Tenants in common ought to join in actions personal, but not real; and in slander of title, they ought to sever. Divers persons may have an action of trespass jointly for goods taken or the like; but of battery, or such personal trespass, the action ought to be single. If one trespass be done by divers, the plaintiff may make it joint, or several, as he pleases; and yet two that join in a trespass, do so make one trespasser, that one of them is answerable for the other; and if they be sued in one action, they may sever in pleas and issues, and a release to one is a release to all. Release. WITHIN WHAT TIME ACTIONS ARE TO BE BROUGHT. The limitation of suits is founded in public conveni- Limitation of ence; and attended with so much utility, that courts suits. of equity adopt the statutes made for that purpose, as a positive rule; and apply it by parity of reason, to cases not within it. 2 Burr. 961. Johnson v. Smith. 66 By the 32 H. 8. c. 2. "No person shall have a writ of Writ of right. right of the possession of his ancestor, but within sixty years, nor of his own, but within thirty years before "the teste of the original." In all actions which are of the nature of a writ of right, in which the demandant must count of a seisin, and recover any hereditament, he shall be barred, if his ancestor had not seisin within sixty years. Bro. Abr. on Stat. Lim. 16.33. All formedons in reverter or remainder shall be sued in Formedon in fifty years after title or cause of action fallen, and not reverter. after. 32 H. 8. c. 2. 66 46 descender within 20 years. And by stat. 21 Jac. 1. "All writs of formedon in Writs of "descender, remainder, or reverter, shall be sued within formedon in "twenty years next after the title or cause of action first descended or fallen, with a proviso, that if the person entitled to such writ be at the time of the said right first descended or fallen, within twenty-one years "feme covert, non compos mentis, imprisoned, or beyond "the seas, then such person and his heirs may, not"withstanding the said twenty years be expired, bring "his action, or make his entry as he might have done. "before this act; so as such person, or his heir shall, "within ten years next after his full age, discoverture, "&c. take benefit of, and sue forth the same; and at no time after the said ten years." An ejectment must be brought within 20 years. Sid. Ejectment. 432. Bull. 102. |