OF ACTIONS

upon promises by the testator to pay rent, cannot be joined with counts OF JOINDER upon promises by the husband and wife as administratrix, for the use and occupation by them after the death of the testator (h). But in an action of covenant against an executor, on the deed of the testator, the plaintiff may join a breach by the testator, and a breach since his decease (i). So an account stated by the defendant as executor, of monies due from the testator, may be supported, and may be joined with counts upon promises by the testator; and this is the common mode of declaring against executors and administrators, to save the statute of limitations (k); and a count upon an account stated by an executor as such, of monies due and owing from him in that character, may be joined with counts on promises by the testator, as such account stated does not make the executor personally liable (7) (1). haps a count for money paid for the defendant as executor may be joined with counts on promises by the testator (m). Whenever an executor, &c. is sued upon promises by him in that character, the words "as executor, &c. must be inserted in each count in stating the promise, and also in stating the debt or cause of action, if it be laid to have accrued after the testator's death (n).

Per

The consequences of a misjoinder are more important than the circum- 3dly. Constances of a particular count being defective; for in the case of a misjoinder, sequences of however perfect the counts may respectively be in themselves, the dec- misjoinder. laration will be bad on a general demurrer (2), or in arrest of judgment,

or upon error (o) (3); and if on a writ of error one of several counts in a

(h) 3 B. & Ald. 101. (i) 10 East, 313.

(k) 2 Saund. 117 e; 1 Hen. Bla. 102; Forrest's Rep. Exchequer, 98. Where an actual account has not been stated by the defendant as executor, add counts, as post, vol. ii. Counts on promises by the defendant as exccutor, should always be inserted, if he has admitted the debt, or promised payment.

(1) 7 Taunt. 580; 1 Moore, 305, S. C.; Forrest (Exch.) 98; 6 East, 405 to 412; 10

(1) Collins v. Weiser, 12 Serg. & R. 97; Malin v. Bull, 12 Serg. & R; 443; Vaughn v. Gardner, 7 B. Monroe, 326. See the observations of Mr. Chitty in the fourth edition. It has been held that a declaration stating that the defendant's testator being so indebted to the plaintiff, in a certain sum for money lent and advanced, and that the testator being so indebted in his life-time, the defendant, afterwards as such executor, after the death of the testator, promised, &c. was good. And SPENCER, J., in delivering the opinion of the court, says, The counsel seemed to suppose that the judgment on this count would be de bonis propriis, and that the executor would in this mode of declaring, be prevented from pleading plene adminstravit. If such would be the consequence then I should hold the objection to be valid; but according to the cases of Secor v. Atkinson, (1 H. Bl. 102), and of Executors of Hughes v. Hughes, 7 Bro. P. C. 550, and 2 Saund. 117, e. note 2,) the judgment will be de bonis testatoris, and this mode of declaring is adopted merely to save the statute of limitations; consequently the defendant is not prevented from making any defence under such a form of declaring, which he might have made, had the declaration stated the promise of the testator, and his liability only." Whitaker v. Whitaker, 6 Johns. 112. And promises by the defendant as executor or administrator, as well as by his testator or intestate, to pay for work and labor done for or goods sold and delivered to the intestate, may be joined in the same declaration, and a count charging a promise by the testator or intestate, in his life-time, and after his death, by the defendant, his executor, or administrator, as aforesaid, is good. Carter v. Phelps, 8 Johns. 440. A declaration by a plaintiff as administator, containing counts for goods sold, work done, and the common money counts, without stating any indebtedness to the intestate or referring to the plaintiff, in his representative character in ang subsequent part of the declaration except in a profert of letters of administration, is bad on demurrer. Christopher v. Stockholm, 5 Wend, 36, Vide 2 Leigh, 235.

(2) See Peabody v. Washington Ins. Co. 20 Barb. 339; Williams v. Bradbury, 9 Texas, 487. (3) Cooper v. Bissell, 16 Johns. 146; Pell v. Levett, 19 Wend. 546. But see S. C. 22 Wendell, 369; Rodley r. Roop, 6 Blackf. 15; Pharr v. Bachellor, 3 Ala. 237; Whitney v. Crim, 1 Hill, 61; West v. Stanley, 1 Hill, 69; The Governor v. Evans, 1 Pike, (Ark.) 349.

OF ACTIONS.

OF JOINDER declaration in assumpsit be bad, and the defendant below suffer judgment by default, and the damages be assessed generally on the whole declaration, such judgment must be reversed (p). A demurrer for mi-joinder I 206] must be to the whole declaration, and not merely to the defective count or breach (9). The plaintiff cannot, if the declaration be demurred to, aid the mistake by enterring a nolle prosequi, so as to prevent the operation of the demurrer for misjoinder (r) (1); 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 (). 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 joined, and there be a verdict for the defendant on the count in trover that does not cure the declaration (r), such doctrine is now overruled (y) (2).

[ *207 ]

OF ELECTION
OF ACTIONS.

1st. Nature

tiff's inter

est in matter affected.

* OF THE ELECTION OF ACTIONS (3).

In considering the application of each particular action, we have seen that 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 execu

tion.

1st, A strict legal title is essential to the support of some remedies, but of the plain- in others the plaintiff's bare possession of the property affected is sufficient. Where the title of the plaintiff may be doubtful, it is in general advisable to adopt the latter description of remedy. Thus an action of trespass to real 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

(p) 1 Moore, 126.

(q) 1 M. & Sel. 355, 366.

(r) 1 Hen. Bla. 110, 111, 113, 114; 4 T.

R. 360; Tidd, 9th edit. 681; 1 Saund. 207 c.
(s) 4 T. R. 348.

(t) 2 Lev. 110; Com. Dig. Action, G.; 2

Vin. Ab. 47, pl. 7.

(u) 2 M. & Sel. 583; 11 Mod. 196; 2 Vin. Ab. 48, pl. 9; 3 T. R. 483.

(x) See 2 Saund. 117 c.

(y) 2 M. & Sel. 533.

(a) Com. Dig. Actions, M.; Styles, 4; Co. Lit. 145 a; 2 Bla. Rep. 1112.

(1) The defendant can avail himself of the misjoinder only by demurring to the whole declaration; he cannot plead to one count and demur to the other. Smith v. Merwin, 15 Wend. 184. (2) But see Lusk v. Hastings, 19 Wend. 627.

(3) For cases in which an election of action may be made, See 1 Met. & Perk. Dig. pp. 61, 62; Tit. Actions, ch. 4.

be

own legal title (b): and may be defeated even if an outstanding term in ELECTION OF a trustee be shown unless it can be presumed that such term has been satis- OF ACTIONS. fied, &c. Therefore, where the title of the party injured is doubtful, the action of trespass should sometimes be chosen; and 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 of the occupier of the land may [*208 ] be doubtful (c). On the other hand, where the party interested can clearly establish a title in himself or in his trustee, and yet it may 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 a bare possession is sufficient in general to sustain an action of trover or trespass against a wrong-doer (e); and 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).

and process.

Secondly, In actions in form ex delicto, as in case, trover, detinue, and 2dly. Bail trespass, the defendant cannot be arrested without a special order of the Court or 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 particlar 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 (). But this will be the only consequence, for the Court will not on this account set aside the proceedings (1) against the defendant for irregularity (m).

Thirdly, In an action in form er contractu, we have seen that if a per- 3dly. The son who ought to be made co-plaintiff be omitted, it is a ground of non- number of the parties. (b) 1 East, 244, 246. See, however, ante, 189.

(c) 1 Saund, 341 e, n. 2; Willes, 221.

(d) Ante, 100.

(e) Ante, 61, 152, 154..

(f) B. & C. 418.

(g) See ante, 139, 140.

(h) See 4 B. & C. 465.

(i) Midd, 9th edit. 172. See Petersdorff on Bail, 40, 41, as to the expediency of adopting particular forms of action in order to ob

tain bail.

(k) 3 East, 70.

(7) 7 T. R. 80; 8 T. R. 27; 5 T. R. 402; 2 East, 305; 1 Hen. Bla. 310.

(m) 6 T. R. 363.

(1) Contra, Rogers v. Rogers, 4 Johns. 483.

OF ELECTION Suit, &c. (n) except in the case of executors or administrators (0), OF ACTIONS. whereas in actions in form ex delicto, the non-joinder of a party who

should have been a co-plaintiff, can only be pleaded in abatement (p); [ *209 ] *and consequently the latter form of action, if it can be adopted, is in many instances preferable, 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 objections (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 (). 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) (1).

4thly. The number of the causes of action.

Fourthly, Where the plaintiff has several demands of a similar kind, recoverable in different forms of action, he frequently may, and then he ought to proceed for the whole in that form of action which will embrace his various claims (r). Thus a party may declare specially against a bailee for neglect, 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.

(1) 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 defaulted, and proceed against the others. Turner v. Bissell, 14 Pick. 192.

OF ACTIONS.

5thly. The

*Fifthly, By a judicious choice of the remedy, the defendant may be fre- OF ELECTION quently precluded from availing himself of a defence which he might otherwise establish. Thus in assumpsit against a person, who has been a defence. bankrupt for money had and received by him before his bankruptcy,. however tortiously, his certificate would be sufficient bar, but by declaring in ase of trover, where the money was received tortiously, &c. he will be eprived of such defence (a) (1). 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 assignee 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 case of fraud, the statute of limitations may not begin to run till the fraud is discovered, and therefore it would be sometimes advisable to sue for the fraud, and waive the action of assumpsit. Thus where the defendant was guilty of 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 this 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 debet, 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 defendant 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 (f); 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.

Sixthly, In some cases there may be two or more actions in effect for 6thly. The the same injury, the one local, and the other transitory. Thus, debt for venue. rent, by the assignee or devisee of the lessor against the lessee, is local, [ *211 ] 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

(a) 6 T. R. 695; 1 Marsh. 184; ante, 144. (b) 4 T. R. 211; 2 Hen. Bla. 135; ante, 144. When not, see 10 East, 378, 418.

(c) 4 Moore, 502; 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.

(d) Post, tit. Pleas.

(e) Lord Raym. 1500.

(f) Ante, 144; post, tit. Pleas.
(g) Ante, 124.

(h) 1 Saund. 238, 241; Sir W. Jones, 53.
(i) Id. ibid.

(1) But the plaintiff cannot by declaring specially ex contractu when he may recover his demand under a general count, deprive the defendant of his set-off. Downer v. Eggleston, 15 Wend. 51.