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and another count for the breach of any contract not a covenant.
Now that no form or cause of action is mentioned in the writ (d), and different causes of action may be combined in the same declaration (e), forms of action may be considered practically abolished. But it is still essential, with a view to understand the rules as to parties, to bear in mind the distinction between different forms.
These forms may be considered (f) as subdivisions or species of the two classes of actions on contract, and actions for tort respectively.
Of the above eight forms three belong to actions ex Nature contractu, five to actions ex delicto.
Debt" lies where a person claims the recovery of a Debt. debt, i. e., a liquidated or certain sum of money alleged to be due to him, and is generally founded on some contract alleged to have taken place between the parties, or on some matter of fact from which the law will imply a contract between them (g).
(d) C. L. P. Act. 1852, s. 3.
(e) Ibid., 8. 41. (f) They may be so considered for convenience ; but the division of actions into forms existed earlier than, and independently of the division into actions ex contractu and actions ex delicto. Case originally included assumpsit, trover was considered a species of case, and detinue was held for some purposes an action ex contractu, 3 Steph. Com., 6th ed., 485 n. (c), Danby v. Lamb, 11 C. B., N. S., 427.
(9) Stephen, Pleading, 6th ed., 16. Assumpsit could never be main
“ Covenant” lies where a party claims damages for a breach of covenant, i. e., of a promise under seal (h).
Assumpsit” lies where a party claims damages for a breach of a simple contract, i. e., a promise not under seal.
“ Trespass” lies where a party claims damages for a trespass committed upon him, i.e., for an injury of a direct and immediate kind committed on the person, or tangible and corporeal property of the plaintiff.
“ Case" (or “ Trespass on the case ") lies where a party claims damages for any wrong not included under the head of trespass.
Case includes under it the greater number of torts, e.g., torts arising from negligence, fraud, &c.
As distinguished from trespass it lies for an indirect, as contrasted with a direct and immediate injury (i). But the distinction between the one form and the other is in many cases very fine, and there are instances wherein both or either trespass or case will lie (j).
“ Trover" lies where the plaintiff sues for damages for an interference with his right to possession of specific goods and chattels. Such interference is technically called “conversion."
“Detinue" lies where the plaintiff claims to recover specific goods or chattels wrongfully detained by the defendant.
This action differs in practice little from trover (k).
tained where covenant could, and vice versa ; but debt could sometimes be
(h) See previous note.
(j) Ibid., 423, and generally notes to this case. Case has been defined
(k) Mockford v. Taylor, 19 C. B., N. S., 209; 34 L. J. 352, C. P.
action for detinue obtain the return of the goods (1), and that the gist of detinue is the wrongful detainer of the goods (m), and of trover the wrongful dealing with them.
“ Replevin ” lies where goods have been wrongfully Replevin. distrained, and occasionally where they have been wrongfully taken, though not as a distress (n).
(B) Local and Transitory Actions. Actions are further divided into “ local ” actions and Local and “transitory" actions.
actions. A local action is one which necessarily depends on local matters, such as the breaking into a house, the diversion of a stream, and generally injuries to real property which must happen in a particular place.
A transitory action is one which depends on transitory matters, such as the making and breach of a contract, or an assault to the person, which might happen as well in one place as in another (o).
As a general rule, actions for wrongs in respect of land are local; and other actions, e.g., for breach of contract or for wrongs not connected with real property, are transitory.
A local action must be tried in the county in which the cause of action arose.
(1) C. L. P. Act, 1854, s. 78; and Day, Procedure Acts, 3rd ed., 273. (m) Selwyn, N. P., 13th ed., 583.
(11) Mellor v. Leather, 1 E. & B. 619, 22 L. J. 76, M. C. ; Mennie v. Blake, 25 L. J. 389, Q. B. The action of ejectment is treated of separately. The action of account is so rarely brought as to be practically obsolete. See Selwyn, N. P., Account, 13th ed., 1. It is not the aim of this treatise to treat of the action of writ of right of dower, dower, and quare impedit.
(0) Mostyn v. Pabrigas, notes, 1 Smith L. C., 6th ed., 649 ; Bullen, Pleadings, 3rd ed., 2.
More accurately perhaps a local action is one which arises from some infringement of a right which must, if committed at all, be committed at a particular place. A transitory action is one which arises from some infringement of a right which m from its nature, be committed at any place whatever. See, as to the effect of this distinction, Chapter III.
A transitory action may be tried in any county whatever at the option of the plaintiff.
Hence a local action cannot be tried in our courts where the matters complained of took place beyond their jurisdiction, i.e., beyond the limits of England, Wales, and Berwick-upon-Tweed (p).
A transitory action can be tried in our courts whether the cause of action arose within or without the jurisdiction (9).
(P) See further, p. 55, post.
(9) Actions for Damages and Actions for Debt. - Another way of regard ing actions, is as actions for damages and actions for debt.
Under the head of actions for damages come all actions for tort, and all those actions on contract in which anything is claimed beyond a fixed and definite sum of money.
It is plain, that in an action for wrong, what is sought to be recovered is an indefinite sum, viz., such damages as the jury think fair compensation to the party aggrieved, e.g., assaulted or slandered. It is equally plain, that in some actions for breach of contract, what is sought to be recovered is a definite sum or debt, as, for example, where A. lends B. 201., and demands, simply and solely, its repayment; whilst, in others, what is sought for is an indefinite sum or damages, e.g., where an action is brought for the non-delivery of goods, where the plaintiff of course seeks compensation for the damage which he has suffered by the non-delivery of the goods.
It is sometimes, however, not easy to decide at first sight whether an action is brought to recover a liquidated demand, i. e., a debt, or an unliquidated demand, i.e., damages. Thus, an action for a sum due on a
a bill of exchange is one for a liquidated demand or debt ; but if there be added to this demand a further claim for the expense of noting, the action becomes an action for an unliquidated demand or damages (Rogers v. Hunt, 24 L. J. 23, Ex. ; 10 Ex. 474).
The following, for example, are all claims for debts, or liquidated damages, viz. :
Claims under the common indebitatus counts, e.g., for money paid or
Claims for a sum certain due on a bond or covenant.
The following, on the other hand, are claims for unliquidated damages, viz. :
A claim for noting a bill of exchange (Rogers v. Hunt, 24 L. J. 23, Ex. ; 10 Ex. 474).
Claims under a guarantee (Williams v. Flight, 2 Dowl. N. S. 11; Atwool v. Atrool, 2 E. & B. 23 ; 22 L. J. 287, Q. B.
But compare Brown v. Tibbets, 31 L. J. 206, C. P. ; 11 C. B., N. S. 855).
A claim for not accepting a bill of exchange (Hutchinson v. Reed, 2 Camp. 229).
A claim for damage from delaying a ship (Seeger .v. Duthie, 8 C. B., N. S., 72 ; 30 L. J. 65, C. P.).
Claims upon a non-adjusted policy (Beckwith v. Bullen, 8 E. & B. 683 ; 27 L. J. 163, Q. B.).
A claim for the value of goods lost (Meyer v. Dresser, 33 L. J. 289, C. P., 16 C, B., N. S., 646).
The test hy which to ascertain the nature of any claim is to consider what is the point to be decided by the jury. If all they have to decide is, first, was there a contract between the plaintiff and the defendant ? secondly, what was the contract between the plaintiff and the defendant ? and, thirdly, has it been broken !-then the action is brought for a liquidated demand or debt. Thus, where the plaintiff claims the price of goods sold, the sole questions for the jury are—first, did the defendant buy the goods ? secondly, at what price were the goods sold, i. e., what was the contract ? and, thirdly, have they been paid for or not, i.e., has the contract been broken? The action is, therefore, for a liquidated demand or debt.
If the jury would have to decide, in addition to the three points already mentioned, the following fourth point, i, e., what damage has the plaintiff suffered by the breach of contract ?-then the action is one for an unliquidated demand or damages. Thus, where the action is for the nondelivery of goods, the jury must consider-first, was there a contract ? secondly, what was the contract ? thirdly, were the goods delivered or not, i.c., was the contract broken ? and fourthly, what damage did the plaintiff suffer by the breach ? (Rogers v. Hunt, 24 L. J. 33, Ex., and 10 Ex. 474 ; Hodsall v. Baxter, 28 L. J. 61, Q. B. ; Hall v. Scotson, 23 L. J. 85, Ex., 9 Exch. 238). The action is, therefore, for an unliquidated demand or damages.
Several results of practical importance depend upon the distinction between actions for debt and actions for damages. The only result which need be noticed here is its effect upon the right of "set-off.”
If x. is indebted to A. in 101., and A. is indebted to X. in 101. or more, and A. sues X. for the 101. which he owes him, X. can set off the debt which A. owes him against the debt which he owes A. ; and can, by
; 80 doing, according to the amount of the respective debts, either defend himself from an action at the suit of A., or else reduce the amount recovered by A.
But it is a rule of law, that only debts (i.e., liquidated claims) can be set-off against debts.
Neither can one claim for unliquidated damages be set-off against another, nor can a debt be set-off against a claim for unliquidated damages.