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(E) REMEDY FOR INJURIES TO PERSONS INDIVIDUALLY.

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(F) REMEDY FOR INJURIES TO PERSONS, RELATIVELY.

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(G) REMEDY FOR RECOVERING PENALTIES ON PENAL STATUTES.

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III. OF THE FORM OF ACTION.

(A) WHETHER REAL OR PERSONAL, p. 170.

(B) WHETHER ASSUMPSIT OR ACCOUNT.-See title Ac

count, Action of, p. 139.

WHETHER CONTRACT OR TORT, p. 170.

WHETHER ASSUMPSIT OR COVENANT, p. 174.

WHETHER ASSUMPSIT OR DEBT, p. 179.

(F) WHETHER DEBT OR COVENANT. See tit. Covenant; Debt.

(G) WHETHER REPLEVIN OR DETINUE.-See tit. Detinue; Replevin; Trover.

(H) WHETHER TRESPASS OR CASE.

(a) General rule, p. 181.

(b) Injuries to real property, p. 182.

(c) Injuries to personal property, p. 187.

(d) Injuries to the person, p. 194.

Injuries to relative rights, p. 196.

(f) Injuries occasioned by persons in defendant's employ, p. 197.

(1) ESTABLISHED FORMS OF ACTION TO BE OBSERVED,

p. 198.

Whether an action be real or personal, depends on the

thing to be recovered by it, and not on the nature of the defence; therefore a replevin is a personal action, though the title

IV. OF JOINING DISTINCT AND DIFFERENT
CAUSES OF ACTION.-See tit. Joinder.

V. OF JOINING DISTINCT AND DIFFERENT
RIGHTS AND INTERESTS.-See tit. Bankrupt ;
Baron and Feme; Executor and Administrator; joinder;
Partner.

VI. OF CIRCUITY OF ACTION, p. 199.

VII. SPLITTING ACTIONS, p. 200.

VIII OF BRINGING TWO ACTIONS FOR THE SAME
CAUSE. See tit. Consolidating Actions.

IX. OF CROSS ACTIONS.-See tit. Cross Action.

X. OF A FORMER RECOVERY FOR THE SAME
CAUSE. See tit. Former Recovery.

XI. OF NOTICE OF ACTION.-See tit. Action, Notice of,
p. 206.

XII. OF BRINGING AN ACTION BEFORE THE RIGHT TO SUE HAS LEGALLY ACCRUED, p. 202.

III. OF THE FORM OF ACTION.

(A) WHETHER REAL OR PERSONAL.*

EATON V. SOUTHBY. H. T. 1738. C. P. Willes, 134. Per Cur. A replevin, it is said, is to be considered either as a real or personal action, according as the defendant shall happen to avow; this is laid down in Finch's Law, 316. but we think it is a distinction that will appear, on examination, to be without foundation. For an action is either real or personal, according as the thing to be recovered by that action is either real or personal; and as nothing that is real can be recovered by an action of replevin, be the recovery what it will, it cannot be considered as a real action. If the nature of the defence would make a difference, actions of trespass, wherein the title of land is brought in question by the plea, and actions of debt for rent, wherein the title of the land may come in question, nay, even actions brought in ques- of debt on a bond, against an heir, where riens per descent is pleaded, must be considered as real actions, which yet would be most absurd. See F. N. B. 155; Bract. 102; Wm. Jones, 214; post, tit. Annuity; and B. & B. 133; 4 M. & S. 113.

to land be

tion.

Where the

breach of an ex

press contract

amounts to a

tort, the party

injured may at

(C) WHETHER CONTRACT OR TORT.

1.

DICKSON V. CLIFTON. M. T. 1766. C. P. 2 Wils. 321.

Per Cur. If a shepherd be entrusted with sheep, and he puts his his election bring own dog among them, which occasions damage, this would be a tort, either assumpsit although there may have been an express contract with him to take

or trespass.

* Actions are divided into real, personal, and mixed. Real actions are those brought for specific recovery of lands, tenements, or hereditaments. Personal, are those brought for specific recovery of goods and chattels, or for damages, or other redress, for breach of contract, or other injuries, of whatever description-the specific recovery of lands, tenements, and hereditaments, only excepted. Mixed, are such as appertain in some degree to both, are properly reducible to neither of them, being brought both for specific recovery of lands, tenements, or hereditaments, and for damages for injury sustained in respect of such property.

care of the sheep; and he might be charged upon the contract, or as a wrong-doer.

2.

MAST V. GOODSON. M. T. 1792. C. P. 3 Wils. 348; S. C. 2 Bl. 848.

goods on a

In this case the plaintiff declared, in the first count, that the de- Hence obstructfendant did, by himself and servants, wrongfully and injuriously ing the plaintiff obstruct and hinder the plaintiff from landing divers large quantities in landing his of his goods upon a wharf, contrary to a written agreement between wharf, contrary him and the plaintiff. The second count was in trover for coals and to an agreement, other goods detained by the plaintiff. On not guilty pleaded, and may be declared issue joined thereon, the jury found a general verdict for the plaintiff, on as in tort; with 487. damages; and it was moved to arrest the judgment, on the ground that the damages were joint, and that case and trover could not be joined in one declaration.

By the Court: This is certainly a misfeasance, and sounds wholly in tort, force and wrong, and not in contract; for the agreement, or contract executed both by the plaintiff and the defendant, is only introductory to show the tort or wrong done by the defendant to the plaintiff in hindering him from the benefit of his easement which he had an undoubted right to enjoy ; therefore we are all clearly of opinion that the first count in the declaration under review is founded upon tort, and not upon contract, and that trover may be well joined with it.-Judgment for the plaintiff.

3.

LAMINE V. DORRELL. M. T. 1704. K. B. 2 Ld. Raym. 1216. S. P.
HOWARD V. WOOD. H. T. 1677. K. B. 2 Lev. 245.

the tort may be waved, and the

In an action of indebitatus assumpsit for money had and received Or where there to the use of the plaintiff as administrator of J. S. plea non assumpis an express or sit. It appeared on the trial that J. S. had died intestate, possessed implied contract, of several Irish debentures; and the defendant, pretending to be entitled to be administrator, obtained letters of administration, and plaintiff may acquired possession of the debentures, and disposed of them. The de- proceed on the fendant's letters of administration were afterwards repealed, and former; letters subsequently granted to the plaintiff, who brought the present action for the recovery of the sum for which the debentures had been sold. It was contended at the trial that the action could not be sustained in the present form, the defendant having sold the debentures as one claiming a title and interest in them, and could not therefore be charged as having received the money for the use of the plaintiff, when he received it for his own use. The remedy ought to have been trover or detinue. The point was reserved, and afterwards moved.

Sed per Cur. It is clear that the plaintiff might have maintained detinue or trover for the debentures; and although it is sometimes difficult to convert acts of a tortious nature into a contract, yet in this case the plaintiff may well dispense with the wrong, and bring an action for the proceeds of these securities. Should an action of trover be afterwards brought, the judgment on the indebitatus assumpsit may be pleaded in bar, as it would be good evidence under the plea of not guilty, because, by instituting this action, the plaintiff has ratified and confirmed the sale, and admitted it to be no conversion. On the principal point, see 2 Mod. 260; 3 Wils. 309; 2 Bl. Rep. 827; 1 T. R. 62. 403; 2 T. R. 145; 4 T. R. 211; 6 T. R. 681; 1 Taunt. 112; 1 Stark. 134; 10 East, 378. 418; 16 id. 130; 3 M. & S. 191.

As where

money is paid to

overseers of a

parish under an

order which is afterwards quashed.

But assumpsit cannot be supported to recover back money

paid for the re-, lease of cattle distrained da

4.

FELTHAM V. TERRY. E. T. 1772. K. B. Lofft, Rep. 209; S. C.
Bul. N. P. 131. cited in Cowp. 419. and 1 T. R. 387.

Where an action for money had and received was brought against an overseer of the poor, to recover money in his hands which had been levied by a sale of the plaintiff's goods on a conviction, which was afterwards quashed, the Court held, that the action was maintainable for the money produced by the sale of the goods, for the plaintiff might wave the tort, and sue for the money really due. See Irving v. Wilson, 4 T. R. 485.

5.

LINDON V. HOOPER. H. T. 1775. K. B. Cowp. 414. Where the defendant had taken and impounded the plaintiff's cattle as damage feasant, the plaintiff claimed a right of common, but paid the money charged for the damage, and then brought assumpsit for money had and received to recover it back, for the purpose of trying the right. The action was adjudged not to lie: 1st. Because that upon the general issue of non assumpsit, the defendant would not be apprized of the point to which to apply his defence; and, 2dly. That the claim of a right of common could not be decided, for it would not appear afterwards on the face of the record. The action pass or trover; should have been trespass or replevin, in which that right would come directly in question, and appear on the face of the pleadings.* See 6 T. R. 298; 1 M & S. 609.

mage feasant; but the party must replevy, or proceed by tres

The master of a servant who has been se

duced from his service may sue the seducer for the loss of ser

6.

LIGHTLY V. CLOUSTON. H. T. 1808. C. P. 1 Taunt. 112. S. P.
FOSTER V. STEWART. M. T. 1814. K. B. 3 M. & S. 191.

This was an action of indebitatus assumpsit for work and labour of the plaintiff's apprentice. On the trial it appeared that the defendant had seduced the apprentice from the plaintiff's ship, and had employed him in navigating his own. It was objected that the action was misconceived, as it ought to have been in tort.

Sed per Cur. It has long been settled that in cases of sales the vice by action plaintiff may sue for the produce and abandon the tort; the present case either ex delicto, is within that rule, and must be decided upon analogous principles; for although the defendant has wrongfully acquired the labour of the apprentice, the master may wave his right to recover damages for the tort, and may say that he is entitled to the value of his labour.

for the seduction or ex contractu,

as having hired'

the servant.

See Eades v. Vanderput, 5 East, 39. n; Comp. 419; Bul. N. P. 133; 2 Bl. Rep. 827; 2 T. R. 144; 2 Stra. 915. 1239.

7.

Where a statute THE HUDDERSFIELD CANAL COMPANY V. BUCKLEY. M. T. 1796. gives a remedy

by action of debt or "on the

case," an action in tort is main tainable, though the defendant may thereby be deprived of the benefit of a set

off.

K. B. 7 T. R. 36.

In an action on the case in tort for calls under the 74th section of the Huddersfield Canal Act (34 Geo. 3. c. 53.) which empowers the committee to make calls for money on the proprietors, and directs the owners of shares to pay, &c. and adds that "if any person shall neglect to pay the proportionable share of the money to be called for by the first call, &c. it shall be lawful for the company to sue for and recover the same in any of his majesty's courts of record by action

Lord Mansfield observed, that the particular circumstance of a promise or agreement, to return the money if the plaintiff should make out his right, did not distinguish the case from the general question.

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