Scire facias, by Administrator de bonis non v. Executor for waste. 656 Scire facias against administrator, on suggestion of waste (con- For affirmation of judgment because appellant (original plaintiff) For affirmation of judgment because appellant (original defend- ib. TABLE OF CONTENTS OF THE INTRODUCTION. CHAPTER 1.- Of the nature and division of actions. SECTION 1.-Actions, real, personal and mixed. SEC. 2.-Actions local and transitory. CHAP. 2. Of the general rule that an action does not lie, until a cause SEC. SEC. 4. What actions MUST be brought against husband and wife. SEC. 5.-In what actions, husband MUST be sued alone. SEC. 6. What actions the husband shall have by surviving his wife. SEC. 7.-What actions the wife shall have by surviving her husband. SEC. 8.-What actions may or may not, be maintained against the hus- SEC. 9.-What actions may be maintained against the wife after the SEC. 10. Further remarks respecting actions in which husband and wife are concerned, containing the rules respecting the husband's liability for the debts of his wife, &c. SEC. 11.-In what cases a married woman may sue, as a feme sole. CHAP. 12. Of actions between, by and against partners in trade, joint con- SEC. 1.-Of attachments of personal estate. What is exempted from attachment, personal property mort- gaged; goods belonging to a partnership, &c., &c. SEC. 2.-Of attachments of real estate. CHAP. 17. Of foreign attachments. SEC. 1.-In what actions recourse may be had to this process. INTRODUCTION. CHAPTER I. OF THE NATURE AND DIVISION OF ACTIONS. As Governments were established among men, in order that the citizens or subjects might be protected in the enjoyment of all their reserved rights and liberties, it would seem to argue great inconsistency, if any individual, in any well regulated society, might be injured without having some tribunal established to which he might resort, with the full assurance of obtaining redress or reparation, Courts of Justice were therefore established, and immediately adopted the maxim, that there was no wrong without a remedy. Yet, it soon became apparent, that, from the imperfection of human nature, cases might frequently arise, where great damage and loss might arise to an individual from the act of another, for which no redress could be obtained, without doing great injustice or violating the dictates of sound policy. Where a case of this kind occurred, it was called a damage without injury, and the Latin phrase, damnum absque injuria became proverbial. If a judge of record, in the exercise of his judicial functions, without express malice, should make an unjust decision or decree, though to the ruin of one of the parties, yet the judge would not be liable to any action for it. See Garnett v. Ferrand, 6 Barn. & Cr. 611. And for the same reason, no action will lie against a magistrate, for any thing done under a conviction, unless there is an entire want of jurisdiction. 7 Barn. & Cr. 394. So, where any officer is entrusted by law with a judicial discretion, it seems, he is not liable to any action for any imprudent use And therefore, it was decided, that a coroner, holding an inquest, may lawfully exclude persons, at his discretion, without being liable to an action therefor. 6 Barn. & Cr. 611. 6 To afford an injured party a convenient and adequate remedy, various forms of action have been established, adapted to the nature of the wrongs which have been offered to him, and for which he seeks redress. These established forms ought to be observed and kept distinct, and their boundaries preserved, and, if it appears on the pleadings that actions of a different nature have been mixed, it will afford sufficient ground for arresting judgment. See 2 Hen. Bl. 243; 1 Stra. 635. And it seems, the Courts will not be bound by any agreement of the parties, to disregard the form of action, and give judgment on the merits. See Ker v. Osborne, 9 East, 377. See also 15 East, 309. An action of Assumpsit, therefore, cannot with propriety be brought on a covenant in an instrument under seal; nor can an action of covenant be brought on a promise in writing without seal, though a covenant is nothing more than a promise contained in a sealed instrument, and a promise is a covenant by an unsealed writing or by mere words without writing. But any number of claims for redress, if belonging to the same form of action, may be joined in one action, provided each of the wrongs are plainly set forth in separate narrations, or counts, as they are called, in the complainant's declaration or statement of the wrongs of which he complains. And in such case, if the plaintiff or complainant should bring an action on several causes of action, and should omit to introduce evidence in relation to one of them, it is said, he is not precluded by the judgment, which may be rendered in that action, from bringing another suit to obtain redress for the cause of action for which he thus omitted to introduce evidence. But, it must be made clearly to appear, that there was no inquiry into it in the former action, or he cannot recover. 6 T. Rep. 607. SEC. I.— Civil Actions are either real, personal, or mixed. 1. Real actions are either Writs of Right, strictly so called, brought by a tenant in fee simple, to recover his inheritance; Writs of Right of Dower, brought by a woman to recover Dower in the lands of her deceased husband, when she has had only a part of it; or Writs of Right de rationabili parte, brought by one parcener, &c. in fee, against the other who enters into the whole; or, 2. Writs in the nature of Writs of Right, as Quo jure, brought by tenant in fee simple, against him who claims common in the land; Dower, unde nihil habet, brought for dower; Quod permittat, which lies to have common, to remove a nuisance, &c.; Formedon, either in descender, remainder, or reverter; or, 3. Writs of Entry, upon disseizin, intrusion, alienation, and in the quibus, per, per and cui, and post; or, 4. Writs ancestral possessory; as Mort d'ancestor, upon abatement made by a stranger after the death of an immediate ancestor; Ayel, upon abatement after the death of a grandfather; Besayel, upon abatement after the death of a great-grandfather; and Cosinage, upon abatement after the death of any collateral cousin; Nuper Obiit, which lies when one parcener after the death of an ancestor enters and ousts the other, &c. &c. These were the ancient comon law remedies, but in modern times we seldom hear of any other real actions than Writs of Entry, Writs of Right, Writs of Formedon, and Writs of Right of Dower, or Dower unde nihil habet; and instead of a Quod permittat, a personal action on the case for a disturbance, or for a nuisance, would probably be the proper substitute in modern practice. 2. Personal actions are such as relate to a man's person or possessions, or whereby he claims a duty or damages in lieu of it.. They are accordingly grounded either on contracts, or on injuries. or wrongs, technically called torts, done with or without force.. Actions grounded on contracts, are account, debt, assumpsit, coxe-nant, detinue. Actions grounded on wrongs with force, are trespass, for assault and battery, wounding and maiming, &c.; or for breaking and entering one's house, or carrying away one's goods, &c. &c. Actions grounded on wrongs done without force, are case for slander, or libel; trover for goods unlawfully detained, for which, under the Revised Statutes, replevin may now be brought, &c. &c. Mixed actions are those wherein a freehold is recovered, togetherwith damages; as, actions of ejectment, under the English practice, which, though adopted in the New York practice, has never been introduced into this Commonwealth, though it has been attempted. The action of waste is expressly recognized in this Commonwealth, in ch. 60 and 105 of the Revised Statutes; and by it, the place wasted, with damages, may be recovered of the tenant in. dower, by the courtesy, or for life, or for years, by the person having the next immediate estate of inheritance. An action of the case, in nature of an action of waste, may also be brought in such case, in which damages only are recoverable, and not the place |