OF JOIN DER OF AC TIONS. declaration be demurred to, aid the mistake by entering a nolle prosequi, so as to prevent the operation of the demurrer for misjoinder (r); though the Court will in general give the plaintiff leave to amend by striking out some of the counts on payment of costs (s). In some cases, however, a misjoinder may be aided by intendment after verdict (t). And by taking separate damages, or by entering a remittitur damna, the misjoinder may be aided (u); and though it is reported to have been decided that if assumpsit and trover be [*237] joined, and there be a verdict *for the defendant on the count in trover, that does not cure the declaration (x), such doctrine is now overruled (y). OF ELEC ACTIONS. OF THE ELECTION OF ACTIONS. In considering the application of each particular action, we have seen that TION OF the party injured frequently has an election of several remedies for the same injury (a). As the due exercise of this election is of great importance, it may be useful concisely to state the principal points which direct the choice of several remedies. And these may be with reference to, 1st, the nature of the plaintiff's right or interest in the matter affected; 2dly, the security of bail, and the process; 3dly, the number of the parties to the action; 4thly, the number of the causes of action, and the joinder thereof in one suit; 5thly, the nature of the defence, and whether it be advisable to compel the defendant to plead specially; 6thly, the venue, or place of trial; 7thly, the evidence to be adduced by the plaintiff or defendant; 8thly, the costs; and, 9thly, the judgment and execution. 1st. Na 1st, A strict legal title is essential to the support of some remedies, but in ture of the others the plaintiff's bare possession of the property affected is sufficient. interest in Where the title of the plaintiff may be doubtful, it is in general advisable to matter af adopt the latter description of remedy. Thus an action of trespass to real fected. property may be supported against a stranger by any person in the actual possession, though he have no title; but in ejectment the lessor of the plaintiff must in general recover on the strength of his own legal title (b); and may be defeated even if an outstanding term in a trustee be shown, unless it can be presumed that such term has been satisfied, &c. Therefore, where the title of the party injured is doubtful, the action of trespass should sometimes be chosen; asd as the defendant in replevin for a distress taken damage feasant, must in his avowry or cognizance state, and if denied, must prove a title to the locus in quo, in fee or tail, in himself, or some person from whom he derives his title, an action *of trespass is preferable to a distress, where the title TION OF ACTIONS. of the occupier of the land may be doubtful (c). On the other hand, where oF ELEC the party interested can clearly establish a title in himself or in his trustee, and yet it may be doubtful in which particular person the legal title may be vested, a distress, or an action of ejectment where there has been an ouster, may be advisable, because in replevin brought for the distress, there may be several avowries upon different titles, and in ejectment there may be several counts on demises by different parties. In some cases we have seen that where the property of a person has been taken away or withheld from him, he may waive the tort and sue in assumpsit for the value (d); but as bare possession is sufficient in general to sustain an action of trover or trespass against a wrongdoer (e); it may often be better to adopt one of those forms of action than to sue in assumpsit for money had and received, as in the latter form of action a stricter right to the goods or the proceeds might be required (f). So, where an injury is done to a messuage or land, it may often be better to sue in the name of the tenant than in the name of the landlord as reversioner (g), because in the latter form of action strict proof of the letting and reversionary interest is indispensable (h). cess. Secondly, In actions in form ex delicto, as in case, trover, detinue, and tres- 2dly. Bail pass, the defendant cannot be arrested without a special order of the Court and proor a judge, and it is not usual to grant such order, except where there has been an outrageous battery, or the defendant is about to quit the kingdom (i) ; and therefore in cases where it may be material to have the security of bail, the action should, if possible, be framed in assumpsit for money had and received, &c., adding such other special counts as may be advisable under the circumstances of each particular case (k). Where, however, the defendant has been already arrested, the form of action must correspond with the affidavit to hold to bail and the form of action stated in the capias, or other process; for otherwise the defendant will be entitled to his discharge out of custody on filing common bail (1). But this will be the only consequence, for the Court will not on this account set aside the proceedings (491) against the defendant for irregularity (m). [*239] Thirdly, In an action in form ex contractu, we have seen that if a person 3dly. The who ought to be made co-plaintiff be omitted, it is a ground of nonsuit, number of the parties. &c. (n) except in the case of executors or administrators (o), whereas in actions in form ex delicto, the nonjoinder of a party who should have been a co-plaintiff, can only be pleaded in abatement (p); and consequently the latter form of action, if it can be adopted, is in many instances preferable, TION OF ACTIONS. OF ELEC- where there is reason to doubt who should be joined as a plaintiff. We have also seen that a joinder of too many defendants in an action in form ex contractu is a ground of nonsuit (q); and that the omission of a person who ought to be made a defendant may be pleaded in abatement (r); but that in actions in form ex delicto the omission of a party jointly concerned in committing the injury cannot in general be pleaded in abatement, and that when the injury may in point of law have been committed by several, the joinder of too many defendants will be no ground of objection (s); and therefore, where it may be doubtful how many persons should be made defendants, it is advisable to declare in case, in preference to an action of assumpsit (t). So, a distress for a rent-charge is frequently preferable to an action, because in the latter all the pernors of the estate charged with the payment must be joined (u) (492). 4thly. The the causes Fourthly, Where the plaintiff has several demands of a similar kind, renumber of coverable in different forms of action, he frequently may, and then he ought of action. to proceed for the whole in that form of action which will embrace his various [*240] claims (x). Thus a party may declare specially against a bailee for *neglect, 5thly. The defence. either in assumpsit or in case; if he have also a money demand against the bailee, due on simple contract, he should declare for both causes of action in assumpsit; but if, instead of the money demand, he have a distinct cause of action in trover, the declaration should be in case, with a count in trover, in order to avoid the expense of two actions (y). So, for a money demand due on a simple contract, the plaintiff in general has an option to declare either in assumpsit or debt; if there be also another demand of an unliquidated nature, founded on a simple contract, it is then proper to declare in assumpsit for both causes of action; but if there be no unliquidated demand, or if part of the demand be due on specialty, debt may be preferable. So, in an action against the assignees of a bankrupt for rent, if it be doubtful whether they have accepted the lease, although they have taken possession, it is advisable to declare in debt on the lease, and add a count in debt for use and occupation. So debt on a life policy, with a count for money had and received, may be preferable to covenant; because, under the common count, the premium may in some cases be claimed. And as debt and detinue may be joined (z), the declaration should be in those forms of action, where the defendant detains the plaintiff's goods, and also owes him a debt. Fifthly, By a judicious choice of the remedy, the defendant may be frequently precluded from availing himself of a defence which he might otherwise establish. Thus in assumpsit against a person, who has been a bankrupt, for (492) By st. 1834, c. 189, a plaintiff in an action founded on contract, brought against several defendants, might discontinue as against one who had been defeated, and proceed against the others. Turner v. Bissell et al., 14 Pick. R. 192. TION OF ACTIONS, money had and received by him before his bankruptcy, however tortiously, his or ELEC certificate would be a sufficient bar, but by declaring in case or trover, where the money was received tortiously, &c. he will be deprived of such defence (a). And where goods have been sold by a person in contemplation of bankruptcy by way of fraudulent preference to a creditor, the remedy by the assignees should be trover, and not assumpsit as for goods sold and delivered; because, in the latter form of action, the defendant might avail himself of the debt from the bankrupt as a set-off (b). And in cases of fraud, the statute of limitations may not begin to run *till the fraud is discovered, and therefore [ *241 ] it would be sometimes advisable to sue for the fraud, and waive the action of assumpsit. Thus, where the defendant was guilty of a fraud in not taking a sufficient security on his investing plaintiff's money, the plaintiff might waive the fraud, and sue in assumpsit for not procuring sufficient security; but if it be apprehended that the defendant would in such action of assumpsit establish a defence under the statute of limitations, it would be better to declare in case for the fraud, as the statute might then only run from the time the fraud was discovered (c). The election of the form of action was also frequently material, in order to compel the defendant either to take issue upon some particular allegation in the declaration, instead of putting the plaintiff to prove the whole of his case, or to compel the defendant to state his ground of defence specially (d). Thus, in covenant for rent, the defendant must plead to some particular allegation, and there is no general issue; but in debt on a lease he might have pleaded nil debit, and thereby compelled the plaintiff to prove the whole of his declaration (e). So trespass was in general preferable to case, because in the latter, under the general issue, the defendaat might not only dispute the plaintiff's statement of his cause of action, but also give in evidence most matters of defence, but which he must have pleaded specially in trespass (ƒ); and detinue was in some cases preferable to trover, in order to compel the defendant to plead his lien specially (g). But the general pleading rules of Hil. Term, 4 W. 4, requiring a special plea, in most cases have put an end to many of the former grounds of preference. venue. Sixthly, In some cases there may be two or more actions in effect for the 6thly. The same injury, the one local, and the other transitory. Thus, debt for rent, by the assignee or devisee of the lessor against the lessee, is local, and must be laid in the county where the estate lies (h); but in covenant, at the suit of the same parties, upon an express covenant for the payment of rent, &c. the venue is transitory (i); and consequently the latter form of action should be adopted, where *it may be advisable to try the cause out of the county where [*242 ] the estate is situate. Seventhly, The evidence must also be attended to in the election of actions. 7thly. The (a) 6 T. R. 695; 1 Marsh. 184; ante, 165. (b) 4 T. R. 211; 2 Hen. Bla. 135; ante, 165. When not, see 10 East, 378, 418. (c) 4 Moore, 508; 2 B. & B. 73, S. C.; see also 3 B. & A. 288, 626; 2 B. & C. 153; 3 D. & R. 326, S. C.; sed vide 5 B. & C. 259; 8 D. & R. 14, S. C. (e) Lord Raym. 1500. (f) Ante, 165; post, tit. Pleas. (h) 1 Saund. 238, 241; Sir W. Jones, 53, Id. ibid. evidence. TION OF ACTIONS. OF ELEC Thus, it is frequenlty more convenient that the action should be trespass than case, because if it be laid in trespass, no nice points can arise upon the evidence, by which the plaintiff may be defeated upon the form of the action, as there may in many instances, if case be brought (k). And here we may again allude to the advantage of using trespass by the tenant, rather than case by the reversioner, in the case of injury to land (1). And very often the form of action, by driving the defendant to plead more specially, may narrow the plaintiff's evidence (m). 8thly. Costs. 9thly. Judgment and exccu Eighthly, In actions in form ex contractu, the plaintiff is in general entitled to full costs, though he recover less than 40s. damages, it having been decided that the 22 & 23 Car. 2, c. 9, does not extend to actions of assumpsit, debt, detinue, or covenant (n); and therefore it is not in general material, so far as respects the costs, which of these forms of action be adopted. But in trespass for injuries to the person, or to real property, if the plaintiff recovers less than 40s. damages, he is not entitled to more costs than damages; and therefore, for such injuries, when practicable, it is frequently advisable to declare in case or trover, in which full costs are usually recoverable (o). So an action on the case was frequently preferable to an action of trespass against several defendants, because in trespass, if one defendant was acquitted, he might obtain his costs, but which he was not entitled to in an action on the case (p). And as no fine was paid upon issuing an criginal writ in covenant, that action was on that account in some cases preferable to debt. The 3 & 4 W. 4, c. 42, s. 32, enabling the judge to give an acquitted defendant his costs in every form of action, and the 2 W. 4, c. 39, abolishing the use of an origi nal writ in personal actions, have put an end to the last two grounds of prefer ence. Ninthly, The action of debt is frequently preferable to assumpsit or covenant, because the judgment in debt by nil dicit, &c. is in general final, and extion. ecution may be issued immediately without the expense and delay of a writ of [*243] *inquiry, which is usually necessary in assumpsit or covenant, in the case of judgment by default (q); and it is better to proceed in debt on an award than on the arbitration bond, because in case of judgment by default in an action on the latter, a writ of inquiry is necessary, under the 8 and 9 W. 3, c. 11 (r) (493). Replevin or detinue is preferable to trover, when it is important to obtain the goods themselves (s). (k) 3 East, 600. (m) Ante, 240. (n) Tidd, 9th edit. 963. (0) 6 T. R. 129, 130; Tidd, 9th edit. 963. The judge may, in the latter actions, certify to take away costs; but this power is not often exercised. (p) See Tidd, 9th edit. 986. (4) Tidd, 9th edit. 573. But in many cases the writ of inquiry is, it seems, necessary even in debt; as in debt for use and occupation, for not setting out tithes, or for foreign money, 5 B. & Ald. 885; Tidd, 9th edit. 573. Sed quære. (r) Post, vol. ii. (s) Ante, 142, 189; 2 Stark. 288. (493) By the statute of the State of New York, sess. 24. c. 25. s. 2. no writ of error "brought to reverse any judgment given in any personal action," is a stay of execution, unless bail in error be put in. {2 Rev. Stat. 595. s. 27, 28. } |