Actions founded upon torts.

blinds him. Scott v. Shepherd, 3 Wils. 403; 2 W. Bla. 892. if a person's lands are exposed to the inroads of the sea, he may erect proper sea-walls for the protection of his lands, without liability for any injury which his neighbor may sustain in consequence. Rex v. Pagham, Com., etc., 8 B. & C. 360. One who owns a house commanding a fine sea view, may sell the house, and afterward build on his own land in such a manner as to shut out the sea view of such purchaser, and yet not be liable to an action. There may be other wrongs which do not cause such legal damages as to sustain an action, as where there is a slander by word of mouth, but the words do not convey an imputation of an indictable offense, if the injured party has not, in consequence, sustained some pecuniary loss, or been injured in his trade, occupation or profession. At common law the most unjust and public charge or imputation of a want of chastity on the part of a female is not actionable without proof of actual damages, though the rule is otherwise by statute in this State.

There are other cases in which the damage is too remote to give rise to a cause of action. The publication of a libel upon an opera singer, who was deterred from singing because of her fears of injury which might be done by some one influenced by the libel, but not on account of the publication of the libel itself, will not be sufficient to maintain an action by the manager against the author of the libel. Ashley v. Harrison, 1 Esp. 49. So, in an action for slander, when the defendant has uttered slanderous words in respect of the plaintiff, not imputing to him any indictable offense, and creating a cause of action only in case the utterance of the slander has caused actual legal damage to the plaintiff, and no such damage has accrued to the plaintiff directly from the utterance of the words, and they would have failed to produce any injurious consequences to the plaintiff, if they had not been repeated by another person, the injury resulting from the intervention of that other person cannot be visited upon the defendant. Ward v. Weeks, 7 Bing. 211; Parkins v.

Scott, 1 H. & C. 153.

Competition in trade is not actionable. In such a case there is no wrong, for the act done is the mere exercise of an undoubted right which belongs to every member of society. So, if a fisherman fits out a boat with lines and nets, and goes to fish in the high seas, and another fisherman comes and fishes beside him, and with tempting baits, or other contrivances, draws away

Is there an existing right of action.

the fish from the lines and nets of the first comer, with a view of catching them himself, an injury may be done; but there is no tort or wrong, for the one had as much right to fish, and to use fair and reasonable means to catch fish, as the other; but if the rival fisherman lays hold of the nets of the first comer, or violently disturbs the water and drives away the fish, and prevents the latter by force or violence from exercising his occupation or calling, there is then a wrong done to him, and he is entitled to compensation in damages. Young v. Hichens, 6 Q. B. 606.

Where the negligence of the plaintiff contributed to bring about the injury complained of, he will, as a general rule, be remediless, and upon this point the cases are very numerous. But in this connection it should be noticed that contributory negligence on the part of the plaintiff may not prevent his action, unless his acts were such that but for them the injury could not have happened; or, if it appear that the defendant might have avoided the consequences of the plaintiff's neglect or carelessness, by the exercise of due care on his own part. See the cases 2 Wait's Dig. 1087 to 1091.

An action will lie for a continuing tortious act, which injuriously affects the property of another although no appreciable damage results from it. Delaware & Hudson Canal Co. v. Torrey, 33 Penn. St. (9 Cas.) 143; see, also, Thomas v. Brackney, 17 Barb. 654; Carhart v. Auburn Gaslight Co., 22 id. 297; Honsee v. Hammond, 39 id. 89; O'Riley v. McChesney, 3 Lans. 278.

Section 7. Is there an existing right of action. A full and careful examination of a case may show clearly that there was once a good cause of action; but, as there are many ways in which such right of action may be suspended, impaired, or destroyed, it is always proper to consider how far the case in hand has been thus affected, and whether there is a present per fect right of action.

When all the facts alleged in the complaint are conceded to be true, but they are not sufficient to constitute a cause of action, the occurrence of a material fact after the service of the summons cannot be incorporated in the complaint, and will not be of any avail in maintaining the action, because the right of action must be complete before the action is brought.. McCullough v. Colby, 4 Bosw. 603; 5 id. 477; Wattson v. Thibou, 17 Abb. 184; Buchanan v. Comstock, 57 Barb. 582; Hare v. Van Deusen, 32 id. 92; Oothout v. Ballard, 41 id. 33; Smith v. Aylesworth, 40

Is there an existing right of action.

id. 104; Castrique v. Bernabo, 6 Q. B. 498; King v. Accumula tive Assurance Co., 3 C. B. N. S. 151.

As there are many important matters which require due consideration before bringing an action, it may be convenient to refer to some of them.

First. Where there has once been a good cause of action, it is well to inquire whether it has been relinquished or forfeited by any act or omission of the party entitled to it, as by laches, lapse of time or otherwise.

Secondly. If the cause of action arises on contract, has the plaintiff performed all such terms or conditions of it as the law requires of him before the other party can be put in default?

Thirdly. Are there any acts which ought to be done by the complaining party before his right of action is complete; such as making a request or demand upon the opposite party, giving notice of some matter or thing of which he is entitled to notice, or offering to do some act or perform some condition?.

Fourthly. Has the performance of the contract become illegal by act or operation of law; or has it become impossible by any acts or events which will legally excuse the performance by the defendant?

Fifthly. Has the defendant done any thing which will relieve him from the liability to an action, such as making a tender before suit brought, or offering judgment, paying the demand, or offering to liquidate damages, so that he will be relieved from the costs of the action even though the plaintiff has a verdict?

Sixthly. Has the right of action, if once perfect, been in any manner destroyed or barred, as by a release, an accord and satisfaction, an arbitrament and award, or been discharged by operation of law, or the like?

Seventhly. Has the right of action been suspended, as by taking a negotiable security which is not due; by a valid extension of the time of performance which has not expired; or by any valid agreement which prevents an immediate action?

Eighthly. Has the plaintiff recovered a judgment in a case in which he seeks a remedy founded upon such recovery, or has he been defeated in an action so as to entitle him to recover the consequent loss from the defendant; or has a right of action been established at law in those cases, in which such a recovery is necessary before an equitable remedy is given, as by injunction, etc.?

Cumulative or exclusive remedies - Illegality.

Ninthly. Where the cause of action arose upon contract, how far will an action be affected by a discharge or other proceeding under a bankrupt or insolvent law?

Tenthly. Is either party under any legal disability, such as infancy, coverture, lunacy, alienage or the like; and if so, what steps are necessary to be taken so that the remedy shall be legally pursued?

Eleventhly. Is the claim or demand barred by the statute of limitations; and if it has been, is the demand renewed by a written promise, by a valid part payment or the like?

From these general suggestions it will be seen that the plaintiff must examine the law carefully as to his original right of action, and, in addition, must, as far as possible, anticipate every ground of defense which is likely to be interposed.

Section 8. Cumulative or exclusive remedies by action. A statute which provides that a penalty imposed by it may be recovered by a summary proceeding upon complaint before two or more justices, does not bar the party from his remedy by action. Collinson v. Newcastle & Darlington Railway Co., 1 Car. & Kir. 546; Lichfield v. Simpson, 8 Q. B. 65. But where a pecuniary obligation is created by a statute, and a remedy expressly given for enforcing it, that remedy must be adopted. St. Pancras (Vestry) v. Battenbury, 2 C. B. N. S. 477; Dudley v.-Mayhew, 3 Comst. 9; First National Bank of Whitehall v. Lamb, 57 Barb. 434. Where a statute authorizes a corporation to forfeit the shares of stock of a subscriber for the non-payment of installments due upon a stock subscription, an exercise of the right of forfeiture on the part of the corporation will bar any subsequent action for such installments. Small v. Herkimer Manufacturing Co., 2 Comst. 330; Mills v. Stewart, 41 N. Y. (2 Hand) 384.

Section 9. Illegality of ground of action. No principle of law is better settled than that which declares that an action cannot be maintained upon any ground or cause which the law declares to be illegal. Davidson v. Lanier, 4 Wall. 447; Rolfe v. Delmar, 7 Rob. 80; Stewartson v. Lothrop, 12 Gray, 52; Howard v. Harris, 8 Allen, 297; Pearce v. Brooks, L. R., 1 Exch. 213; Smith v. White, L. R., 1 Eq. Cas. 626.

power which the law confers upon courts, judges or other judicial officers to take cognizance of actions or proceedings, and to decide them according to law, and to carry their decision, decree or judgment into execution. The tract of land over which such jurisdiction is exercised is called the territorial jurisdiction. Jurisdiction is original, when it is conferred on the court or officers in the first instance. It is appellate, when an appeal may be taken from the decision or judgment of another court. It is concurrent, when it may be entertained by several courts; although it is a rule, in these cases of concurrent jurisdiction, that the court which is first seized of the cause shall try it to the exclusion of the other. It is exclusive, when only one court has the right to try the suit, action, or matter in dispute. Assistant jurisdiction is that which is afforded by a court of chancery in aid of a court of law, as, for example, by a bill of discovery.

A court which takes cognizance of an action, and proceeds in it, decides in effect that it has jurisdiction, although such decision may not be announced in express terms. Clary v. Hoagland, 6 Cal. 685. And where a court has the parties before it, it must necessarily obtain jurisdiction so far as to decide whether it can entertain the suit or proceeding, that is, whether it has jurisdiction of the action. King v. Poole, 36 Barb. 242. See Cumberland Coal & Iron Co. v. Hoffman Steam Coal Co., 39 Barb. 16; 15 Abb.78; Humiston v. Ballard, 40 How. 40.

Where jurisdiction is conferred in general terms, or for general or special purposes, the grant of such jurisdiction will carry with it all such legal incidents as are necessary and proper to secure the exercise of the authority. Stief v. Hart, 1 Comst.