Joinder of actions, whether legal or equitable.

adjudications. These inconveniences had, however, some corresponding advantages; for, if each judge had decided all his cases without the aid of previous decisions, there would remain the advantage of his own unbiased judgment, acting independently of authority, and thus securing the reasoning of a strong mind after a thorough examination of the case. Conflicting decisions upon the same question are a serious inconvenience in the practice, and they have been somewhat the cause of incongruities in the practice. But much of this evil may now be avoided, for it may be safely said, that most of the difficult questions in the practice are now settled by a clear current of authority.

In some instances the true rule is so well settled that no one would question what the rule is. In other cases, there may be a conflict in the authorities, but even these cases are less numerous than one might imagine on a first thought; and, after a careful examination of all the authorities and the statutes, the true rule may be discovered, and a harmonious system laid down for the convenience of the student, the profession and the courts.

CHAPTER IV.

RIGHT OF ACTION.

ARTICLE I.

IS A REMEDY GIVEN BY LAW.

Section 1. In general. The present work was not intended to furnish information as to the rights of action, or as to the grounds of defense; but rather to treat fully the mode of prosecuting or defending actions, or other proceedings in the courts of record. There are, however, some general suggestions of great importance in relation to the rights of action, or the grounds of defense, which ought to be made here. The rights of person and of property are numerous and frequently conflict, and the injuries done to them are frequent and serious. To learn with certainty whether the complaining party has any remedy, either at law or in equity, is sometimes quite difficult. And, for that reason, the first inquiry which naturally arises on the statement of the case is, whether an action or legal proceeding can be maintained. It is generally difficult to lay down any general rule which has no exceptions. And, as an illustration of this, it may be said, as a general rule, that there is no wrong without a remedy, and, again, there is no right without a remedy, for the want of a right and the want of a remedy are reciprocal. But, as we shall soon see, there are injuries for which the law does not furnish any remedy.

In every proceeding in a court of justice the object is, or ought to be, the establishment or recovery of a right, or the prevention of a wrong, or to furnish redress for the wrong if already committed. And no one can properly resort to a court of justice until his right has been disputed, infringed upon, or threatened by a wrongful act, for it is the injury done to him which confers on the party wronged a right to demand that redress which the law gives for the injury sustained.

Before instituting an action, the first question is, whether, upon all the facts that can be established, any remedy can be had, either of a legal or an equitable nature. If this inquiry is de

Are there sufficient existing facts.

termined in the negative, the matter is at an end. But if answered in the affirmative, then other considerations will be weighed before proceeding in the matter.

Where a party has a legal right to do a particular act, the motive with which he may assert his right will not give a right of action even where malice prompted the act. Mahan v. Brown, 13 Wend. 261; Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y. (5 Seld.) 444; Chatfield v. Wilson, 28 Vt. 49; Occum Co. v. Sprague Manuf. Co., 34 Conn. 530; Stevenson v. Newnham, 13 C. B. 285. When malice will be considered, see Lumley v. Gye, 2 Ell. & Bla. 216; Cotterell v. Jones, 11 C. B. 713.

The consent of a party to an act is generally a bar to an action for any injury sustained in consequence. Illinois Central R.R. Co. v. Allen, 39 Ill. 205. And see Broom's Legal Maxims, 201. Volenti non fit injuria.

Section 2. Are there sufficient existing facts. No part of the practice presents greater difficulties, or furnishes sharper conflicts than the establishment of the facts claimed by the respective parties to exist, and to be precisely as each party claims they are. One of the most important questions, then, is to settle whether there are such facts as the complaining party alleges. And, before considering any other point, the first investigation will be as to the actual existence of the alleged facts. If it is doubtful whether the facts ever really existed, this difficulty may be insuperable. Again, let it be supposed that the facts once really existed, but that at the present time they cannot be established by proof; in such a case it must be recollected that where the court cannot take judicial notice of a fact, it is the same as if the fact had no existence. In the next place, let it be assumed that the facts once existed, and that some proof thereof may be made, the next inquiry will be whether the opposite party is able to adduce satisfactory countervailing proofs, and, in that case, to determine whether, for all practical purposes, the facts are not really the same as though they were nonexistent.

One further consideration ought not to be overlooked, and that is in relation to the preservation or perpetuation of evidence which may now be attainable, but which may be lost by the death of a single witness, or the destruction of some important document. In every such case there ought not to be any delay in taking such steps as will preserve the evidence.

Actions for injuries to person-To property.

An action does not lie against two persons for conspiring together, maliciously and vexatiously, and without reasonable or probable cause, to commence, and for commencing, an action against the plaintiff, in the name of a third person, but for their own benefit, without there is an allegation of legal damages resulting to the plaintiff therefrom. Cotterell v. Jones, 11 C. B. 713. Whether or not it will lie with such an allegation,-quere. Ib. See 2 R. S. 551, § 1; Craig v. Twomey, 14 Gray, 486.

Section 3. Actions for injuries to person or personal rights. The numberless injuries which may be done to the person, or to personal rights, have furnished materials for a vast collection of large volumes; and a resort must be had to them and to the reports and statutes for full information. Two inquiries ought always to be made and satisfactorily answered, before instituting an action. First. Are the facts such that, upon the whole case, independently of any defense, the law will give a right of action. Secondly. Can the defense establish facts which will constitute a complete answer or bar to the action, by showing a legal excuse or justification for the acts done. These questions may not always be easy to dispose of, but their examination is an imperative duty.

Section 4. Actions relating to property, real or personal. This subject, like the last preceding one, is so vast that nothing more will be done than to remind the student of the importance of a thorough knowledge of the law relating to such property. There is no mode by which a title to it can be acquired that may not be a subject of investigation. There is no wrong which can be done to it which may not need the aid of the courts. And there is no contract which can be made in relation to it that may not become a subject of inquiry.

If the inquiry involves a question of title, then it will be necessary to examine the particular kind of title which is claimed to exist. If the right of possession is in dispute, this question may require much labor to solve it. If the action be for a wrong done to such property, the right of the complainant thereto, his right of possession at the time of the injury, and the right of the defendant to do the acts complained of, may all become important. In brief, nothing that relates to the title, the right of possession, or the claim made by the defendant, is to be overlooked, and to point them out in detail is beyond the scope of this work. Fraud in obtaining personal property is a wrong to property,

Actions founded upon contracts - Upon torts.

and an action lies as clearly as for a wrongful taking or conversion of it. Cleveland v. Barrows, 59 Barb. 364.

Section 5. Actions founded upon contracts. Some of the most important interests in society are based upon contracts, express or implied, and as actions are daily brought for the breach of such contracts, so the whole law on that subject must be a constant subject of investigation. Some few elements of contracts must always be kept in view when investigating rights claimed to be founded upon contract. There must be a subject-matter of the contract; a sufficient legal consideration; an assent given by parties legally competent; an agreement, express or implied, to do or omit some specified or understood thing; the contract must be executed in due form of law, and it must not be illegal in its nature or provisions. Some one or more of these matters require attention in every case where a remedy is claimed by virtue of a contract, or where a defense resting on contract is interposed.

Section 6. Actions founded upon torts. The infinite variety of injuries which may be done to person, to personal rights, or to property, real or personal, affords a wide field of investigation as to rights and remedies. It would be an endless task to enumerate all the wrongs of which the law takes cognizance, and in respect of which redress, in the shape of compensation in damages, is afforded. Assuming that due attention will be given to those cases in which an action will lie if the proper facts are established, it will next be important to point out some of the cases in which no action can be maintained, even in cases in which it is clear that one party has sustained damages from the acts or omissions of another.

To constitute an actionable tort, the general rule is, that there must be an actual or legal damage to the plaintiff, and a wrongful act by the defendant. But, notwithstanding this, one person may sustain a serious injury at the hands of another, as in the case of an inevitable accident (Harvey v. Dunlop, Hill & Denio, 193), or a lawful act done in a lawful manner, without any carelessness or negligence, in which cases there is no legal injury, and no tort which will sustain an action for damages. Again, a party in doing an act in necessary self-defense may injure another without being liable to an action, as where a lighted firework is thrown into a company and again thrown out in selfdefense, when it falls against another, or explodes in his face and