will lie, but ordinarily either may be prosecuted. So, if he would rescind the obligation, he may recover back moneys that have been paid upon it, or may have an action of an equitable nature for its rescission. When personal property has been wrongfully converted and the true owner does not choose to waive the tort, if it is within reach, he may seize the property by an action of replevin, or may sue for damages only.

§ 19. Considerations that should control the Election.

Chitty, in treating of the election of actions, gives nine considerations which should control the judgment of the plaintiff in the choice of remedies.40 Most of them pertain to the form of actions merely, and are without force under, our system; but there are reasons, some of which he suggests, that are important to be considered: 1. If the defendant was an infant when the cause of action arose, it may be unsafe to waive a tort and sue as upon contract, lest he defend upon the ground of infancy; and so, if an infant should so use or misuse property he may have hired, or of which he may otherwise have become a bailee, as to authorize the owner to treat his conduct as a repudiation of the contract, and enable him to hold the infant bailee as a trespasser, or as guilty of conversion of the property, he might recover, notwithstanding the infancy. 2. The statute of limitations may

41

quate remedy in damages. Schroeppel v. Hopper, 40 Barb. 425; Crary v. Smith, 2 N. Y. 60; Fry, Spec. Perf. 11. Specific performance will not be granted on a contract for the sale of goods, wares, and merchandise, nor on a gratuitous contract, though made under seal, nor on a contract in favor of an infant. See, also, Modissett v. Johnson, 2 Blackf. 431; Ashe v. Daggy, 6 Ind. 259; Allen v. Davison, 16 Ind. 416.

[Title of Case.

[General Form of Petition for Specific Performance.

[1st. Allege the making of the contract and set out or file copy.

[2d. Allege that plaintiff has performed or offers to perform all conditions of said contract on his part.

[3d. Allege the failure to perform the conditions by the defendant specifically. [4th. Add appropriate prayer.]

40 Chit. Pl. 207.

41 It is held by some courts that the election to waive the tort and treat the

have run against the remedy for the wrong, if treated as tort, where a contract may still be enforced. 3. One may desire to unite the claim in one complaint or petition with another cause of action, and, if capable of being presented in the two aspects, he may, in order to effect the union, make it sound in contract or in tort according to the character of the other cause. 4. A defendant who is sued upon contract may have suffered a tortious injury at the plaintiff's hands. If he is allowed to waive the tort and hold the plaintiff as upon contract, he may present his demand by way of counter-claim.2 5. If the defendant has wrongfully sold

transaction as a contract does not exonerate an infant tort feasor from liability. See Elwell v. Martin, 32 Vt. 217, cited with the opinion in Cooley, Torts, 112; [Shaw v. Coffin, 58 Me. 254; Munger v. Hess, 28 Barb. 75; 2 Greenl. Ev. § 368. Neither is intoxication a defense to an action for a tort. Reed v. Harper, 25 Iowa, 87; McKee v. Ingalls, 5 Ill. 30.]

42 NORDEN v. JONES, 33 Wis. 600. [This action was brought by the plaintiff against the defendant to recover on a book account alleged to be due from the defendant. Defendant set up a counterclaim of six dollars for pasturing plaintiff's cattle, and testified that plaintiff laid down his fence, and let the cattle into the pasture. Plaintiff objected to this item, as not being a subject of account, but a trespass on the part of the plaintiff, which could not be proved in this form of action. This objection was sustained before the justice of the peace. Defendant appealed to the circuit court, where the counterclaim was allowed. Norden appealed from the judgment of the circuit court. Dixon, C. J., in discussing the question whether this claim was a proper counterclaim, says: "After a careful examination of the question of law involved in the rejection of the $6 item, we are of the opinion that the circuit court was correct in holding that the justice was in error when he excluded the evidence offered by the defendant in proof of the item. The question

presented on the rejection of the $6 item is an interesting one, upon which there exists considerable contrariety of opinion and decision, both in England and in this country. It was a charge of that sum, made by the defendant against the plaintiff for pasturing the plaintiff's cattle, which the defendant testified the plaintiff had let into his (the defendant's) field by laying down defendant's fence for that purpose. The objection sustained by the justice was that the laying down of the fence and turning in of the cattle was a trespass on the part of the plaintiff, which could not be brought in or proved as a set-off or cross demand in this form of action, but that defendant must resort to his action of trespass against the plaintiff to recover the damages which he has sustained. It is not to be denied that there are numerous decisions of most respectable courts sustaining this view, while, on the other hand, there is an equal weight of most respectable authority also for holding

the plaintiff's property for more than its value, the latter would be interested in holding him for the money as received for his use, and to do so he must waive the tort; if, however, it was sold for less than its value, his interest would lead him to ignore the terms of the sale and proceed for the conversion. In those states where the true owner is authorized to treat a tortious taking or holding as a sale, he would, doubtless, be able to recover the true value, as for goods sold to the defendant, although the latter may have parted with them for a less price. 6. At common law it is necessary, in actions upon contract, to join as defendants every surviving obligor or promisor, while in actions of tort each tort-feasor is severally liable. In cases where a tort may be waived, it may not always be convenient to ascertain all the wrong-doers, so as to charge them as upon a promise; and, in thus suing a part, the plaintiff risks the delay that may arise from an answer showing a defect of parties. This consideration, however, will have no weight in those jurisdictions that authorize suits against any one or more of those who may be jointly liable. 7. In some of the states, imprisonment for debt is allowed upon judgments in actions of tort, while denied in those sounding in contract. If the creditor in those states, desires satisfaction out of the body, and if the form is allowed to control the fact, he will make his election with reference to that end. 8. When one may seize or replevy goods, or sue for their value, he may be controlled in his choice by his opinion of the defendant's solvency. 9. A purchaser may wish to enforce a broken contract either by seeking damages or a specific performance, or he may consult his interest by rescinding it.

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that a promise to pay will be implied under such circumstances, upon which an action of assumpsit may likewise be maintained. The question being new in this court under our present statutes, we are at liberty to adopt such as, in our judgment, will best subserve the ends of justice, which is, or ought to be, the object of all rules laid down in the course of judicial proceedings." Challiss v. Wylie, 35 Kan. 506, 11 Pac. 438; Muth v. Frost, 75 Wis. 166, 43 N. W. 655; Empire Transfer Co. v. Boggiano, 52 Mo. 294; Gordon v. Bruner, 49 Mo. 570.]

48 [Pierce v. Cary, 37 Wis. 232; Sawyer v. Nelson, 44 Ill. App. 184; Johnson v. Morton, 94 Mich. 1, 53 N. W. 816.]

(28)

CHAPTER III.

OF PARTIES TO ACTIONS.

1. Parties Plaintiff in Actions founded on Torts.

Section 20. Scope and Order of the general Inquiry.

21. The general Rule as to parties plaintiff in actions ex delicto.

22. Plaintiffs in actions for Injuries to Land.

23. Plaintiffs in actions for Injuries to personal Property where the

Owner is not in Possession.

23a. Plaintiffs in actions to recover Land sold when held adversely. 24. As to Joinder of Plaintiffs in actions for injuries to property. 25. Plaintiffs in real and mixed Actions.

26. Plaintiffs in actions for personal Injuries,

27. Plaintiff in actions for Injuries to married Women.

28. Plaintiffs in actions for Injuries to Servants-Seduction-Rights

of Parent in Injuries to Minors.

29. The Minor may also sue.

30. Parties as authorized by Statute-1. In Seduction.

31. Continued-2. When the Injury causes Death-Lord Campbell's

Act.

32. Continued-3. Other similar Provisions.

33. Continued 4. Plaintiffs in actions for Waste.

34. Continued-5. Joinder of Husband and Wife.

35. Continued-6. Plaintiffs in actions to protect the separate Estate of married Women.

36. Continued-7. In Injuries to same held under Married Woman's

Acts.

37. The statutory and the trust Estate further considered.

38. As to Assignees of Rights of Action arising from Torts.

39. What Rights of Action so arising survive under the Statute of 3 Edward III.

40. Statutes in the several Code States-New York, Missouri, Arkan

sas.

41. Same Subject-Statutes of Ohio, Kansas, Nebraska, Indiana, and

Iowa.

42. Continued-Wisconsin, Kentucky, Oregon, and Minnesota.

43.

Construction of these Statutes.

44. When does a Claim for a personal Injury become a Debt.

§ 20. The Scope and Order of the general Inquiry.

1

In considering who should be the plaintiffs and who should be made defendants in civil actions, I shall not confine myself to provisions upon the subject found in the Code, but, in as brief a manner as is consistent with the importance of the subject, treat of the necessary and proper parties 1 in the different classes of actions, noting the changes and their effect made by the codes of procedure and by other statutes, in the so-called code States; and, first, I will speak of parties plaintiff in actions ex delicto; second, of parties plaintiff in actions ex contractu; third, of parties plaintiff in actions for equitable relief; fourth, of parties defendant in actions ex delicto; fifth, of parties defendant in actions ex contractu; and, sixth, of parties defendant in actions for equitable relief. In the course of the inquiry I will endeavor to give the scope and effect of certain provisions of the Code, in regard to parties, which are taken from the equity practice, as applied to actions for the recovery of money or of specific property.

§ 21. The general Rule as to parties plaintiff in actions ex delicto.

In general, in actions founded upon tort, the person who has suffered the injury must bring the action, for he is the party in interest. This is the rule at common law; it is expressly recognized by the Code, and will suffice in most cases where one would bring an action for the redress of a wrong arising from a tort. Yet many questions have arisen, growing out of the nature of the injury, the relations held to the property affected, or held by or to the persons who have suffered, which modify the application of the rule, and which should be considered.

1 [Necessary or proper parties are all persons who have an interest in the subject and object of the suit, and all persons against whom relief must be obtained in order to accomplish the object of the suit. McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652; Williams v. Bankhead, 19 Wall. 563; Stevenson v Austin, 3 Metc. (Mass.) 474.]