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Nature and definition of actions.

secured, or some remedy claimed to be given, by law, to the party complaining. In every civil action, legally prosecuted, there must be a court having jurisdiction, or it will not be an appro priate court; there must be a party complaining, who brings the action before that court; there must be a party who is charged with doing or omitting to do something, for which he is brought into court; and there must be a subject-matter of litigation; and, upon the whole case the rights of the parties are to be determined by a decision or judgment of the court. See also the cases cited in 2 Wait's Law and Pract. 40; Wait's Code, § 2.

A civil action is one prosecuted for the establishment or recovery of a right, or the prevention of a wrong, or the redress of an injury. It may be instituted by governments, corporations or individuals, to enforce any remedy or secure any relief which the law gives to a complainant against a defendant.

The term "action" includes all the proceedings from its commencement to its termination; and, therefore, the proceeding is called an action until the rendition of the decision, decree or judgment; but it is not so called after that time.

A distinction is sometimes made by applying the term "action" to proceedings at law, and "suit" to those in equity; and the familiar expression is, "an action at law," or, "a suit in equity." At the common law an action for the recovery of land, without damages, was called a real action.

An action for the recovery of some specific personal property, wrongfully withheld by the defendant from the plaintiff, or for a compensation in money for an injury sustained, which compensation is technically called damages, was called a personal action.

An action for the recovery of real estate and damages for its illegal detention was called a mixed action.

At common law, an action ex contractu is one which arises on contract, and is brought for the recovery of damages, or of a thing which belongs to the plaintiff. These actions were account, assumpsit, covenant and debt.

A personal action, ex delicto, was for the redress of a wrong unconnected with contract, and the actions were case, trover, detinue, replevin and trespass.

A local action is one which must be brought in some particular locality, whether that place be fixed by common law or by statute.

Nature and definition of actions.

A transitory action is one which may be brought in any county which the plaintiff may prefer.

An action in personam is one in which the proceedings are against the person in contradistinction to those against specific things or in rem. An action in rem is one instituted against the thing in contradistinction to personal actions, which are said to be in personam.

In this brief explanation of the nature of actions, the discussion has been limited to such matters as pertain to the practice, as distinguished from a study of the general rules of law, or the principles of equity. It must not, however, be supposed, that this omission rests upon the ground that the latter study is not deemed important. On the other hand, let the student at all times remember that his only hope of eminent success in his profession must be founded upon the possession of a profound, an accurate, and an available knowledge of all the general rules of the common law, and of the principles of equity.

CHAPTER II.

OF SOME OF THE PRINCIPAL DISTINCTIONS BETWEEN LEGAL ACTIONS, AND EQUITABLE SUITS.

ARTICLE I.

LEGAL ACTIONS.

Section 1. In general. Legal rules and principles must be expressed in general terms, and, therefore, it must sometimes happen that there are cases within the words but not within the reason or the spirit of the rule; while there are other cases within the meaning but not within the words of it. The reason of this is evident on the slightest examination, since it will readily be conceded that it is impossible for any one to foresee or provide for the endless series of complicated occurrences which must take place in society. And, whenever a case occurs which does not fall within the provisions of the general rules, there is a defect to be supplied, or injustice must result from that cause. In many of these cases, courts of equity have devised and applied such rules as a reasonable and just man would have provided had he foreseen the circumstances of the case, and had he authority to establish a rule for it. In some cases the legislature have enacted laws designed to provide remedies or rules in which the common law was found to be deficient.

The remedies afforded by the common-law courts are limited by the rules of the common law, which, as a general thing, are fixed and unbending; and one of the settled maxims of that system is, that a decided point furnishes the rule for future similar cases. In addition to this, the character of the process, pleadings, mode of trial, and the judgment all tend to reduce the application of remedial justice to the enforcement of these fixed rules, instead of attempting to investigate the complicated equities which exist in so many cases, and in which no adequate relief is to be obtained except through equitable interference. From this general statement it will be seen that one of the dis tinguishing features of common-law remedies is, that they are usually unattainable except by the application of fixed, distinct

Legal actions relate to some act done or omitted.

rules, through the aid of a court, which seeks to apply and enforce these general rules to all cases, instead of investigating and securing any peculiar equities which may exist in some particular case or class of cases.

This system, which may seem harsh in some of its aspects, has, nevertheless, one very valuable feature, and that is, it is admirably adapted to the important end of securing certainty and uniformity in the administration of the law, a result which is invaluable to a commercial people.

Section 2. Legal actions relate to some act done or omitted. It is the object of the law to give a remedy in every case which justly requires it. For this purpose the whole body of the law was created; and every important right is so guarded by familiar and public laws that each person may know what those rights are, and what remedy is afforded for an invasion of them. Every person is bound to know the general rules of the law or to submit to the consequences resulting from his ignorance, or his infringement of them. He who wrongfully invades the possession of his neighbor must respond in damages corresponding to the injury done. So he who inexcusably breaks a valid contract must make good the loss which the other party sustains in consequence.

In these cases, it will be observed, the law does not interfere until after the wrongful act has been committed, and it then holds the wrong-doer accountable for the damages resulting from his acts. The whole remedy consists in compensation to the injured party by way of damages assessed against the party in the wrong. The coercive power of the law is limited in its influence upon the parties, by declaring that every violator of its principles must respond in such damages as may be legally assessed against him, and enforced against his property or his person. It is by virtue of this system that most wrongful acts are prevented, and most contracts are performed, for the remedy by way of damages is a most effective one when properly administered. Beyond this species of remedy, the common law does not, as a general rule, extend; and, where a party would prevent the commission of a wrong, or would compel the specific performance of a contract, by means of the process of the courts, he must resort to a court of equity, where such remedies are one of the peculiar features of the system. In some peculiar cases, a resort to a court of equity is to be preferred, because

Remedy is damages - Relief by general rules.

no damages probably attainable would be as valuable as the equitable relief which is certain, if sought. But, as a general rule, the courts of law are adequate to all the emergencies of the case, and they enforce most of the remedies which parties seek through the interposition of the courts.

Section 3. Compensation in damages, or not at all. As has just been seen, the law gives damages for past injuries. But, beyond this relief, a common-law court does not go, for it will not interfere to prevent the violation of a right. It will give damages for the breach of a contract, but a court of equity will do more, it will anticipate the event, and restrain a person who merely shows an intention to break his agreement. It is in those cases in which the damages for past acts would be so small as not to afford an adequate remedy, that the powers of a court of equity are invaluable. In one of these classes of cases the relief obtained is remedial, in the other it is preventive, or, in other words, in one case it is legal, in the other equitable. Where these courts are separate, it is a general rule that neither court will usurp the functions of the other. And therefore if the injury complained of be completed, so that compensation alone can be awarded, a court of equity will not interfere, even though it might, in its discretion, have power to do so.

So, on the other hand a court of law will not entertain an application where no breach of contract has occurred, or no wrongful act has been done, even though it has power to issue an injunction under some circumstances.

In those States in which legal and equitable remedies are enforced by the same court, some of these distinctions may seem to be of no importance, and yet it is to be remembered that the mode of proceeding which is to be adopted must be legal or equitable as the case may require, as will be fully explained elsewhere.

Section 4. Affords no relief outside of the general rules. At common law, simplicity and certainty in the practice is a prominent object, and, while the rules are so general as to be readily applied to the facts of each particular case, yet they cannot be so extended or varied as to meet the requirements of a system so complicated as some of the remedies afforded by a court of equity. And it is, therefore, a general rule, that the common-law courts do not afford any relief outside of its general system of legal remedies. If other relief is sought, a different court must furnish it, or the party may be remediless.

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