PART I. ·

ACTIONS.

IN WHICH ACTIONS ARE CONSIDERED GENERALLY, AND IN THEIR RELATIONS TO REMEDIES, WHETHER LEGAL OR EQUITABLE.

CHAPTER I.

THE NATURE OF ACTIONS.

ARTICLE I.

THE NECESSITY FOR ACTIONS AND THEIR ORIGIN.

Section 1. Laws; their nature and objects. In every condition of civilized society there must be some customs, rules, or principles, by which rights may be investigated, duties or liabilities declared, controversies determined, and remedies enforced.

Among the advantages to be derived from entering into society are those of protection of person, and the security of property; and, therefore, men have a right, and they are in some degree compelled, to apply to the public authorities for redress when rights are withheld, or injuries have been committed.

The natural right of individuals to redress wrongs, or to take the law into their own hands, cannot exist in a well-organized state of society, except in a few instances; and the general rule is, that all rights must be declared, and all remedies enforced by the proper tribunals in accordance with settled principles and the forms of law.

The elements or principles of a system of laws may be comparatively simple in form, and few in number, when considered with reference to their origin in an early stage of society; but, as the wants of society increase, the system will expand until it extends to and includes every case which, according to justice, and the public interest, requires consideration.

It is one of the great merits and advantages of the common law, that, instead of a series of detailed practical rules, established by

Laws; their nature and objects.

positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business, to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it. These general principles of equity and policy are rendered precise, specific, and adapted to practical use, by usage, which is the proof of their general fitness and common convenience, but still more so by judicial exposition; so that, when, in a course of judicial proceeding, by tribunals of the highest authority, the general rule has been modified, limited and applied, according to particular cases, such judicial exposition, when well settled and acquiesced in, becomes itself a precedent, and forms a rule of law for future cases, under like circumstances.

The effect of this expansive and comprehensive character of the common law is, that while it has its foundations in the principles of equity, natural justice, and that general convenience which is public policy; although these general considerations would be too vague and uncertain for practical purposes, in the various and complicated cases, of daily occurrence, in the business of an active community; yet the rules of the common law, so far as cases have arisen, and practices actually grown up, are rendered, in a good degree, precise and certain, for practical purposes, by usage and judicial precedent. Another consequence of this expansive character of the common law is, that when new practices spring up, new combinations of facts arise, and cases are presented for which there is no precedent in judicial decision, they must be governed by the general principle, applicable to cases most nearly analogous, but modified and adapted to new circumstances, by considerations of fitness and propriety, of reason and justice, which grow out of those circumstances.

The consequence of this state of the law is, that, when a new practice or a new course of business arises, the rights and duties of parties are not without a law to govern them; the general considerations of reason, justice, and policy, which underlie the particular rules of the common law, will still apply, modified and adapted, by the same considerations, to the new circumstances. If these are such as give rise to controversy and litigation, they soon, like previous cases, come to be settled by judicial exposition,

Laws; their nature and objects.

and the principles thus settled soon come to have the effect of precise and practical rules. Norway Plains Co. v. Boston and Maine Railroad, 1 Gray, 263, 267, 268; Bell v. The State, 1 Swan. (Tenn.) 42.

With the advancing state of society, new questions are constantly arising for decision, and the courts adapt the practice and course of proceedings to the existing condition of things, instead of adhering to forms and rules which were established under different circumstances; and they do not decline the enforcement of rights or the administration of justice, because there is no remedy according to the old forms or rules. Wallworth v. Holt, 4 Mylne & Craig, 635.

The principle upon which the courts proceed is, that the common law does not mould the habits, the manners, and the transactions of mankind to inflexible rules, but adapts itself to the business and the circumstances of the times, and keeps pace with the improvements of the age. Lyle v. Richards, 9 Serg. & Rawle, 351.

Our system of common-law rules and of equitable principles consists of the accumulations of several centuries, as is entirely evident, when it is remembered that so much of our law is derived from that of England. So extensive, so complicated, so useful, and so practical a system could not be the work of one man, nor of one nation, nor even of one age. Its vast collection of adjudged cases is the growth of centuries; and, from a comparatively small number of decisions in the early times, the number has constantly increased, and the system of jurisprudence has expanded from time to time as the constantly recurring demands of men have presented questions to the tribunals for decision, until the result has been the establishment of a system of legal and equitable jurisprudence which is adequate to the demands or the necessities of a great commercial nation.

In the construction of this system the courts were constantly in the habit of applying to new combinations of circumstances those rules of law which were to be found in judicial precedents, or in works treating of legal principles; and, for the sake of attaining uniformity, consistency, and certainty, those rules or principles, unless clearly unreasonable, or inconsistent, were applied in all cases as they arose. But, notwithstanding the great number and variety of decisions, there always have been, and there are now, cases constantly occurring which are new in

Nature and definition of actions.

principle, or of first impression. So, too, there are cases which, though not new in principle, yet present questions which have never been determined. In all such cases, the courts avail themselves of the vast collections of principles which have been settled as law, and then from the analogies of the law, and the reason and justice of the case, they decide in such manner as will best subserve the rights of the parties, and the public interests, if such decision should be followed as a precedent.

In addition to the decisions of the courts, the legislature has enacted a vast system of statute law, in relation to rights and remedies. It is from this extensive system of legal and equitable jurisprudence, and from the various statutes of the State, that a knowledge of the practice of the courts is to be obtained. And while engaged in the study of that practice, it will be constantly borne in mind, that many of its rules are statutory enactments, instead of being principles established by the decisions of the courts. Yet, whenever the statute has not provided a rule, the courts are at liberty to resort to the decisions, for materials to supply the defect.

In the creation or establishment of laws, it is the province of the legislature to determine what is best for the public good, and to provide for it by proper enactments. The province of the judge is to expound the law, instead of making it. The written law he is to ascertain from the statutes; and the unwritten law he is to find in the decisions of his predecessors, and of the existing courts, or from the text-writers of acknowledged authority, and upon the principles which are clearly to be deduced from them by sound reason and just inference.

Section 2. Nature and definition of actions. Whenever à person believes that he is about to be injured by the act of another, or, when he feels that an injury has already been done, he will naturally adopt the most effective means of preventing or removing the injury, or of redressing the wrong committed; and on the other hand, the party against whom the claim is made will desire to know whether he can successfully resist the demand, and by what means; and, for these purposes, each party, whether complainant or defendant, must, with or without the aid of legal advisers, carefully consider the law affecting the asserted right, and the nature of the injury or offense, and the remedies or punishments, before any steps can properly be taken, whether precautionary, offensive or defensive, or the result may be a

Nature and definition of actions.

serious error by which he may become a wrong-doer, or may lose all means of redress, or may waive a good defense in consequence of his injudicious proceedings or omissions.

The general nature of an action is thus explained by an elegant writer on the laws and constitution of England : "A person (let us suppose) who has a cause of action, either in a right detained, or an injury done, is determined to bring his action; and, by his attorney, takes out process against the party complained of; in consequence of which the party complained of (whom we call the defendant), either puts in common or special bail, as the case requires. The defendant being thus secured, the plaintiff declares, in proper form, the nature of his case. The defendant answers

this declaration; and the charge and defense, by due course of pleading, are brought to one or more plain simple facts. These facts, arising out of the pleadings, and thence called issues, come next to be tried by a jury. The jury having heard the evidence upon the issue before them find (we will suppose) a verdict for the plaintiff. On that verdict, a judgment is afterward entered. The plaintiff's costs of suit are then taxed, by the officer of the court, and the judgment is put in execution, by levying on the defendant's effects the damages given by the jury, and the costs allowed by the court; which being done there is an end of the suit, and both parties are once more out of court."

The explanation just given relates to an action at law, and in some respects it differs from a description of a suit in equity, yet it serves to point out the essential features of all civil actions.

The most general division of actions is usually that of civil and criminal, but since the latter kind of action does not come within the scope of this work, no notice will be taken of that subject. See Code, §§ 4, 5, 7.

Civil actions have heretofore been divided into legal, and equitable; the former being such as are cognizable by courts of law, and the latter such as are peculiar to the jurisdiction of courts of equity. In this State there are no separate courts of law and of equity, and all remedies, legal or equitable, are administered by the same courts or judges, according to the circumstances of the particular case, although the mode of procedure may differ according to the relief or remedy desired.

A civil action is a legal prosecution, in an appropriate court, by a party complainant, against a party defendant, to obtain the judgment of that court in relation to some right claimed to be