on behalf of the Crown (i); and perhaps he may sue for injuries done to his freehold property.

He may also sue for any personal wrong done to him before or after the commencement of the period of his disability, e. g., for an assault (k).

laws.

An outlaw cannot, while his outlawry lasts, come into Outcourt for any other object than to apply to have his outlawry reversed or set aside (1), and cannot, therefore, bring an action as long as his disability continues (m).

An outlaw is restored, on the reversal of his outlawry, to all his rights (n), and stands in the same position as if he had never been outlawed (0).

enemies.

An alien enemy cannot, during the continuance of war, Alien unless under the licence or protection of the Crown (p), bring an action, or continue an action commenced before the war began (q). Under the term alien enemy are included not only the subjects of any state at war with us, but also any British subjects or the subjects of any neutral state voluntarily residing in a hostile country.

British subjects detained prisoners abroad are not alien enemies (r), and in one case, a person held as a prisoner of war in this country was allowed to sue upon a contract for services rendered by him whilst a prisoner (s).

The disability of an alien enemy ceases on the restoration of peace (t); and though no action can be brought on contracts made with him during the time of war, an

(i) Cole, Ejectment, 573. Doe d. Griffith v. Pritchard, 5 B. & Ad. 675. (k) Bernard's case, Owen, 22; Com. Dig., Forfeiture, B. 2.

(7) Coke, Litt., 128 a.

(m) Addison, Contracts, 6th ed., 1024.

(n) Com. Dig., Outlawry, C. 5.

(0) Ibid., and St. John's College v. Murcott, 7 T. R. 259.

(p) Wells v. Williams, 1 Salk. 46.

(q) Le Brett v. Papillon, 4 East, 502; Alcinous v. Nigreu, 4 E. & B. 217; 24 L. J. 210, Q. B.

(r) Antoine v. Morshead, 6 Taunt. 237; Daubuz v. Morshead, 6 Taunt. 332.

(s) Sparenburgh v. Bannatyne, 1 B. & P. 163.

(t) Harman v. Kingston, 3 Camp. 150, 152; Flindt v. Waters, 15 East, 260.

Persons

who cannot be sued.

alien, whose country has been at war with our own, can, on the restoration of peace, bring an action on a contract (u) made or for a wrong done before the commencement of the war (x).

The disabilities of an alien enemy are less than they at first sight appear. "On declaring war, the king usually, in a proclamation of war, qualifies it by permitting the subjects of the enemy resident here to continue so long as they peaceably demean themselves, and without doubt such persons are to be deemed alien friends in effect (y) and though an alien should come here after the war commenced, yet, if he has been commorant here by the licence of the king ever since, he may clearly maintain an action" (z).

To an action for breach of contract by two or more persons, it is a defence that one of them is a felon, an outlaw, or an alien enemy (a); and it is said, that if the cause of action be capable of severance, as an injury done to a joint chattel (b), the plaintiff, who is not a felon, &c., may recover for his share of damages in spite of the disability of his co-owner.

Felons, outlaws, and aliens, can sue as executors, administrators (c), or trustees, and on all occasions. where they do not sue in their own right.

Felons, outlaws, and aliens are liable to be sued.

Exception 2.-The sovereign, foreign sovereigns, and ambassadors cannot be sued.

The king cannot be made defendant in an action.

(u) Provided that the Crown has not interfered to seize the debt, Flindt v. Waters, 15 East, 260.

(x) Harman v. Kingston, 3 Camp. 150, 152; Flindt v. Waters, 15 East, 260.

(y) Coke, Litt., 129 b, note by Hargreave.

(2) Williams, Exors., 6th ed., 222.

(a) Com. Dig., Abatement, E. 2.

(b) Lush, Practice, 3rd ed., 5.

(c) Caroon's case, Croke, Car. 9; Brocks v. Phillips, Croke, Eliz. 683, Coke, Litt., 128 b; Kynnaird v. Leslie, L. R. 1 C. P. 400; 35 L. J. 226, C. P.

Redress must be sought for, if it is obtainable at all, by a Sovereign. petition of right (d).

A foreign sovereign clearly cannot be sued in the Foreign courts of this country for any act done by him in the sovereigns. character of a sovereign prince (e); and it would appear

most probable that he can in no case be made defendant in an action (f).

sadors.

A public minister (g) accredited to the Queen by a Ambasforeign state, is privileged from liability to be sued here in civil actions (h), and hence such a minister has been held not liable to be sued for calls due to a company of which he was shareholder (i); nor would it seem can he be sued for a tort, e. g., an assault.

(d) Canterbury's case, 1 Phil. 322; and Com. Dig., Action, C. 1.

(e) Duke of Brunswick v. King of Hanover, 6 Beav. 1; 2 H. L. 1; Wadsworth v. Queen of Spain, 17 Q. B. 171; 20 L. J. 488, Q. B.

(f) But see Munden v. Duke of Brunswick, 10 Q. B. 656; 16 L. J. 300, Q. B. Westlake, Private International Law, ss. 135-139.

(g) Magdalena Steam Nav. Co. v. Martin, 2 E. & E. 94; 28 L. J. 310, Q. B.

(h) Magdalena Steam Nav. Co. v. Martin, 2 E. & E. 115; 28 L. J. 310, Q. B.

(i) Ibid.

CHAPTER II.

Division of actions.

Cause of action.

THE DIVISION OF ACTIONS.

ACTIONS are of different kinds, and can be classed or divided on various principles (a).

They can be divided,—firstly, according as they are actions on contract (called also actions ex contractu), or actions for a wrong or tort (called also actions ex delicto), under which main classes they can be again subdivided according to what are called their forms; -secondly, according as they are transitory or local.

The most important division is that into actions on contract, and actions for tort.

(A) Actions on Contract and Actions for Tort, or Actions ex contractu and Actions ex delicto.

The maintenance of an action depends upon the existence of what is termed a cause of action," i. e., of a right on the part of one person (the plaintiff), combined with the violation of, or infringement upon, such right by another person (the defendant). Thus, if A. enters into a contract with X. for the supply of goods by X. to A., and X. does not supply the goods, or if X.

(a) An old division is that into real actions, i.e., actions brought for the specific recovery of lands, tenements, and hereditaments; personal actions, i.e., actions brought either for the specific recovery of goods, or for the recovery of debts, or of damages in compensation for a breach of contract, or any other injury; and mixed actions, i.e., actions appertain ing in some degree to both of the former classes. All the actions treated of in this treatise are, with the exception of Ejectment, personal actions. Ejectment, which may be considered a mixed action, is treated of sepa rately. See Chap. XXXIII.

፡፡

has a

wrongfully imprisons A., A. has in either case a cause of action" against X. In the first instance A. right to have the contract performed by X., and there has been a violation or infringement upon this right in consequence of the non-performance or breach of the contract by X. In the second instance A. has a right to his personal liberty, and there has been a violation or infringement upon this right, through the imprisonment of A. by X. There goes, it should be noticed, to make up the cause of action at once the "existence" and the "violation" of a right, and the expression cause of action means (in strictness) the whole cause of action, i. e., all the facts which together constitute the plaintiff's right to maintain the action (b). This should be noticed, because, whilst the expression "action on contract" directs attention to the right only as the foundation of the action, the expression "action for tort" directs attention to the "infringement" of the right only as the foundation. of the action, and because the expression cause of action is sometimes less accurately (c) used as meaning one part only of the cause of action, sc., the violation of, or the infringement upon, the plaintiff's right.

In each of the supposed cases (sc., of an action for the non-delivery of goods, and of an action for false. imprisonment,) there exists a right on the part of the plaintiff; but his right is in each instance of a different character. In the first case, A.'s right is a right against X. only, and depends solely on the existence of a contract between him and X. In the second case, A.'s right, sc. not to be deprived of his personal liberty, is a right against X.; but it is also a right possessed by A. against the world generally, and it is further a right in dependent of the existence of any contract between A. and X. The first right, is a right dependent upon the existence of a contract. The second right is independent of the

(b) See Allhusen v. Malgarejo, L. R. 3 Q. B. 340; 37 L. J. 169, Q. B.; Sichel v. Borch, 2 H. & C. 954; 33 L. J. 179, Ex.

(c) Slade v. Noel, 4 F. & F. 424; Fife v. Round, 6 W. R. 283.