action (or suit) in equity; and that there are also other remedies afforded by the courts generically different from an action. In the present chapter, we shall speak of an action generally, as that remedy has been hitherto pursued in a court of law.

[Since all wrong may be considered as merely a privation of right, the plain natural remedy for every species of wrong is the being put in possession of that right whereof the party injured is deprived (b). This may either be effected by the specific delivery or restoration of the subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded or where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, or breach of contract: to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury, though such right be not fully ascertained till they are assessed by the intervention of the law.] The instruments whereby this remedy has been hitherto obtained by the aid of a court of common law, (for we are not for the present concerned with the remedy obtained by the aid of a court of equity,) are a diversity of actions, which are defined by the Mirrour to be "the lawful demand of one's right" (c), or as Bracton and Fleta express it, in the words of Justinian, jus prosequendi in judicio quod alicui debetur (d).

The Romans introduced pretty early set forms for actions and suits in their law, after the example of the Greeks; and made it a rule that each injury should be redressed by its proper remedy only. "Actiones," say the Pandects, "composite sunt, quibus inter se homines disceptarent; quas actiones, ne populus prout vellet institueret, certas solennesque esse voluerunt (e).

(b) Vide sup. vol. I. p. 136. (c) Ch. 2, s. 1.

(d) See Inst. 4, 6.

(e) Ff. 1, 2, 2, s. 6.

The

forms of these actions were originally preserved in the books of the Pontifical College as choice and inestimable secrets, till one Cneius Flavius, the secretary of Appius Claudius, stole a copy and published them to the people (g). And the establishment of some formule was undoubtedly useful, to define the cases in which the law considered a wrong to have been sustained, and to ascertain the nature of the remedy which it allowed; and thus to prevent the uncertainty that would otherwise have attended a subject of so much importance as the right of action (h). Or, as Cicero expresses it, "sunt jura, sunt formula, de omnibus rebus constitutæ, ne quis aut in genere injuriæ, aut in ratione actionis, errare possit. Expressæ enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicæ a prætore formulæ, ad quas privata lis accommodatur” (i). With us in England, accordingly, the several actions at law have been from time immemorial conceived in fixed forms of complaint, each exclusively appropriate to the particular kind of injury for which redress is demanded (k).

Actions at law are subject, in the first place, to this principal division-that they are either personal, real, or mixed (1).

(g) Cic. pro Muræna, s. 11; De Orat. 1. i. c. 41.

(h) Blackstone (vol. iii. p. 118) says, "the establishment of some "standard was undoubtedly neces'sary to fix the true state of a "question of right, lest in a long "and arbitrary process it might "be shifted continually, and be at "length no longer discernible."

(i) Pro Q. Roscio, s. 8.

(k) See Glanville, passim; Bract. lib. 5, De Exceptionibus, c. 17, s. 2. (7) As to this, the antient division of actions, considered in regard to their nature, and the relation which

it bears to the changes introduced by the Judicature Act, 1873, vide sup. p. 319. It may be useful here to remark that the phraseology of this division is drawn from the civil law. (See Inst. 4, 6.) Among the Romans the actio in rem (or real action) asserted a right to something against all the world, and the actio in personam (or personal action) a right merely against a particular person. By all actions of the first species (and by many of the second) the thing withheld was recovered. By other personal actions (particularly such as arose

Personal actions are those whereby a man claims the specific recovery of a debt or of a personal chattel, or else satisfaction in damages for some injury done to his person or property (m).

Real actions, or, as they are called in the Mirrour, feudal actions, which concern real property only, are those whereby the plaintiff, here called the demandant, claims the specific recovery of any lands, tenements or hereditaments (n). By these actions formerly all disputes concerning real estates were decided; but in modern times they gradually became less frequent in practice, upon account of the great nicety required in their management, and the inconvenient length of their process; a much more expeditious method of trying titles being moreover since introduced by other actions, and particularly by the species called ejectment, of which we shall have occasion presently to speak. And by 3 & 4 Will. IV. c. 27, s. 36, this class of actions (subject to one or two exceptions) was at length expressly abolished.

Mixed actions are suits partaking of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sustained (o). But they partake, in the main, of the character of real actions, and are often so called (p); and they were included in the provision of 3 & 4 Will. IV. c. 27, above mentioned.

The real and mixed actions which escaped the general demolition of their class, were the following: writ of right of dower, dower, and quare impedit (q); and to the

out of a tort) damages only were recovered; and by others again, both the subject-matter of the suit and damages were recovered, and these last were called mixed actions (actiones mixta). Hence it will be observed that the connection between the classification of actions in the two systems, is little more than nominal.

(m) 3 Bl. Com. 117.

(n) Bl. Com. ubi sup. citing Mirr. c. 2, s. 6.

(0) Bl. Com. ubi sup.

(p) Co. Litt. 285 b; Roscoe, Real Actions, 1.

(4) Although the actions of dower and quare impedit still exist, yet (as will be more fully explained hereafter) their distinctive charac

same class seems to belong (though somewhat doubtfully), the existing action of ejectment (s). The two first of these lie (in the language of the law), that is, are applicable, and are the remedies to be used, where the demandant claims lands or tenements by the particular title of dower (t); the first being applicable where a woman is endowed of part of her dower, and is deprived of the residue, lying in the same town, by the same tenant by whom she was endowed of part (u); and the second being proper in all other cases where she is entitled to dower (x):—quare impedit lies where the right to present to a benefice has been disturbed, and the object is to recover the presentation thereof:-ejectment where lands or tenements (other than such as is claimed as dower) are unlawfully withheld, and the object is their recovery. And as to the actions of dower and quare impedit, it may be observed here, that by a peculiarity that always attached to the class of real and mixed actions, they could be brought in none of the superior courts of common law except the Common Pleas (y). But ejectment has always been capable of being brought in any of such courts.

teristics, as real actions, have been now in a great measure lost by the assimilation of their procedure, in general, to that which obtains in other actions.

(8) Ejectment, prior to the statute 15 & 16 Vict. c. 76, (by which its form was remodelled,) was often considered as a mixed action (see 3 Bl. Com. 214); and was expressly so denominated in the stat. 3 & 4 Will. 4, c. 27. The correctness, however, of that arrangement is doubtful, for in its then form it was clearly a species of the personal action of trespass. (See Fitz. Ab. tit. Ejectione Firmæ, 2.) Under the Common Law Procedure Act, 1852,

above referred to, it is difficult to fix its technical character. It seems indeed to fall properly under the definition of a real action, because it claims the specific recovery of land without damages. But in its incidents, it has no connection whatever with the antiquated remedies to which that appellation commonly belongs.

(t) As to an estate in dower, vide sup. vol. I. p. 266.

(u) Roscoe on Real Actions, 29. (x) Ibid. 39.

(y) Accordingly, under the Judicature Act, 1873, they will belong to the Common Pleas division of the High Court of Justice, established

Personal actions are founded either on contracts (z) or on torts, a term used to signify such wrongs as are in their nature distinguishable from breaches of contract ;and these torts are often considered as of three kinds, viz. nonfeazance, or the omission of some act which a man is by law bound to do; misfeazance, being the improper performance of some lawful act; or malfeazance, being the commission of some act which is in itself unlawful (a). Actions founded on contract, are sometimes described in our books as actions ex contractu; and those on tort, as actions ex delicto (b).

The forms of personal actions now recognized are the following: debt, covenant, assumpsit, detinue, trespass, trespass on the case, and replevin; the three first being founded on contract, the remainder on tort (c). Of these in their order.

"Debt" lies where the object is the recovery of a certain sum of money alleged to be due from the defendant to the plaintiff (d); " covenant," where redress in damages

by that Act. (36 & 37 Vict. c. 66, s. 34.)

(z) As to contracts, vide sup. vol. II. p. 54.

(a) 1 Chit. Pl. 134, 1st edit. (b) These expressions, also, are derived from the civil law. Thus:

"In personam actio est, quotiens

66

cum aliquo agimus, qui nobis rel

ex contractu vel ex delicto obli"gatus est." Gaius, iv. 2.

(c) As to the distinction of actions, vide sup. p. 318. The above classification seems for most purposes correct; but it is to be noticed1. As to assumpsit, that properly and technically considered it is one species of the form of trespass on the case, though, being the common remedy for the breach of a promise not made by deed, it is usually treated in practice as founded on

contract, ranked as a distinct form, and of late has been usually styled an action "on promises." 2. As to detinue, that, though founded on a tort,-viz. the wrongful detainer of a chattel (see acc. Gladstone v. Hewitt, 1 Cr. & J. 565), the Common Pleas have nevertheless held that it is, for some purposes, to be looked at as "falling within the "class of actions called actions on "contract." (See Walker v. Needham, 3 Man. & Gr. 557; Danby v. Lamb, 13 C. B. (N. S.) 423.) And 3, as to trespass on the case, that, among other species in less general use, this form includes the action of trover, as to which more specific information will be given hereafter. (d) As to debt, vide sup. vol. II.

p. 142.