A makes a promise to B for the benefit of his son or daughter; B may elect to sue the promise himself, or to leave it and let his son or daughter sue C upon it. 9. So if A covenant to do a thing under a penalty, the covenantee has his election to have covenant or debt. he CH. 5. Art. 1. Wilkin &. 10. So where a man is accountable for money or goods, 1 Salk 9, may have an action on the case or account, at his election; Wilkin. as where the deft. received goods of the plt. to carry beyond sea and dispose of them for the plt. 149,-Cro. § 11. So if goods be taken from one by wrong, he may 1 Com. D. have detinue, replevin, or trespass; or he may have trespass E1824. or trover for being taken by force, he may have trespass vi et armis; or he may waive the force, and have detinue to recover the goods themselves; or he may dispense demanding the goods themselves, and bring trover to recover the value of them in damages. He may bring replevin to have it decided if he shall hold the goods, and have damages for the taking, or return them to the deft. and pay damages for the damage done: where the obligee in a bond has an election, ch. 144 a. 13, 17. v. Orrery. § 12. Where the plt. may sue on either of two events ; as 1 Ld. Raym. where the deft. made a contract to do an act on the first of 133, Loggin two events, the plt. may enforce a performance, though he does not call for it until both have happened. Beckford v. § 13. Action on a conditional promise. A certificated bank- 2 H. Bl. 116, rupt promised to pay a prior debt, when he is able; the prom- Saunders. isee cannot elect to sue this as an absolute promise, but must sue it as a conditional one, and prove the deft's. ability to pay. Contra, Ld. Loughborough. Schermer $14. Where A makes a promise to B for the benefit of a 1 Johns, R. third person, there is an election; B may sue it, or such third 139, 149, person may sue it. A subjects himself to the action of either. horn v. VanThis however is not true in all cases. 1 Cranch 429, is a derhayden. quære. But see 2 Lev. 210; 3 Bos. & P. 149. ster. § 15. Where the plt. pays money to my servant and he mis- Stra. 480, Caapplies it, the plt. has his election to sue him or me; but it 1y. Webis otherwise if the servant has paid the monies over to me, the plt. may be entitled to, or for which he is entitled to a credit not given him. ker v. Norton §16. Trover for a bill of exchange. Held, that bankrupt- 6 D. & E. cy is no bar to trover, though the conversion be before the 695.701, Parbankruptcy. Held, where the plt. has his election to bring trover or assumpsit for money had and received, he may have trover as above, though the bankruptcy is a bar to such assumpsit ; plt. may elect to waive the tort or not. The deft. dishonorably sold the plt's. bill at a discount, so received less than the amount, and this was all the plt. could have recovered, had he Сн. 6. elected assumpsit, &c.; and though he might elect to sue for less than his just demand, the law will not compel him to do it. In Massachu setts the issuing the writ is the com mencement of the action, Ch. 29, a. 7; so in New York.-18 Johns. R. 14. -8 Mod. 2 Cro. 70, 1 Com. D. 134. Doug. 215, CHAPTER VI. THE PLT. MUST WAIT TILL THE CAUSE OF ACTION IS ACCRU- ART. 1. 1. THE principle of law is well settled, that no action can be commenced till the right of action has arisen, and the plt. is become entitled to come into possession of the thing he demands. In the English practice it is said the plt. may sue out a latitat, before the cause of action accrued, but cannot declare till after, and there the reason given is, that the original process was only to bring the deft. into the marshal's custody, which might well be before the cause of action. §2. If the plt. sue before the cause of action is accrued, it may be pleaded in abatement, and if it appear on the record, it may be moved in arrest of judgment, or be a ground of er ror. 3. If a statute require the plt. to do an act, as to demand money of the deft. one month before he sues, and he does not, the deft. may plead the general issue, and defeat the action on evidence. § 4. An action for a malicious prosecution cannot be maintained till that is terminated; and this matter must be stated 10 Johns. R. in the declaration. If the declaration be of the preceding term, as August term, and the cause of action laid after, as September, it is bad on general demurrer. 119. Doug. 55, Milford . Mayor. 4 Johns. R. 144, 150, Weldon & al. -See Ch. 3, a. 11. 5. But if a bill of exchange be not accepted, an action will lie against the drawer before the time it is made payable, for the time of acceptance is to accommodate the acceptor, and it is not the intent to allow it to the drawer. 3 Johns. R. 202. r. Buck & al. 6. So where the deft's. wife, while sole, gave a bond to 20, a. 9; Ch. the plt., conditioned not to marry any other person but the plt., and in case she did so, or refused to marry him in one month after her father's death, then to pay the plt. £200; living her father, she married Day the deft.; the court held her bond was forfeited, and suable, though her father was living. But Lee C. J. doubted. 2 Stra. 949. 1 Wilson 59, Box v. Day and wife. 1 Sid. 307. 7. A boud cannot be sued before the breach, and if it become due after the suit is commenced, and before the plea, yet the action is too soon; for no action lies upon a contract till there is a breach of it, and it is absurd to bring an action, that must, in its nature, suppose a breach before one exists. CH. 6. Art. 2. 8. But if one demise land, and be not seised, an action lies against him before eviction; this was an action of cove- Hob. 12, Holnant grounded on the word demise in a lease, which amounted der v. Taylor. to a covenant, the deft. was seised of the land, whereas in fact he was not seised, but a stranger was. And the Court held the "breach of the covenant was in that the deft., the lessor, had taken upon him to demise that which he could not, and that the word demise imports a power of letting, as the word dedi does a power of giving. 9. If A promise B to pay him 30s. rent a year, he cannot sue for 45s. for a year and a half, for it is payable annually. And if entire damages be given, it is void for the whole, for as to the last half year the right of action has not accrued. An entire verdict bad in part is bad for the whole. 10. Nor regularly can the surety sue his principal, till the debt is paid by the surety, or till there is judgment against the surety. See Post, Ch. 9 and 169. § 11. Nor can the assured maintain an action, on a policy of insurance, engaging to pay three months after proof of a loss, till the three months have expired. 12. Nor can an assignee sue and recover on a covenant for a breach before the assignment; for he has no cause of action till a breach is made after the assignment. Lit. 61. § 13. If the deft. allege a matter, which shews the action Cro. El. 110. brought before the cause of action accrued, which is not relied upon, but the plt. pleads over, and issue is joined on a collateral point, it will not be error. As where it only appeared by the deft's. allegation, that Agnes had been dead two years, in two years after whose death the debt was to be paid, and this he did not rely upon, but plead over to issue. 14. In May 1803, the deft. agreed to remove his goods 3 Johns. R. from a store, but neglected it; whence in 1806 the plt. was M'Karras v. 137, 138, obliged to pay damages to A, to whom he had sold the store. Gardner. Held, the cause of action accrued when the deft. so neglected in 1803, and not when the plt. was obliged to pay charges in 1806, and after 1803 was a demand that could be set-off. 8 Johns. R. 407, Bush v. § 15. The deft. promised the plt. to pay him in certain Bernard. specific articles. Held, this was a conditional promise, and the plt. could not support his action without shewing, he offer- 15 Mass. R ed to receive the said articles. But if A lend money to B, 75, 81. and B gives a forged security, A may sue immediately for money had and received. ART. 2. The principle of survivorship in actions &c. § 1. If 2 Esp. 91. there be two or more plts. or defts., and one or more of them die, if the cause of such action shall survive to the surviving plts. or Сн. 6. plt., or against the surviving defts. or deft., the writ or action shall not be thereby abated, but such death being suggested on the record, the action shall proceed at the suit of the surviving plts. or plt., or against the surviving defts. or deft. Survivorship, as it respects the rights of property or the rights of actions or remedies, is altogether a matter of contract. The estate survives, or goes to the survivor, only among joint tenants. And a joint estate only arises by the act of the parties. But to encourage commerce and husbandry, a stock on a farm, or a stock used in a joint undertaking in trade, Co. Lit. 181, though occupied jointly, is an interest in common, and the share of one dying, goes to his representatives and not to the survivor. But joint interests in chattels, goods or debts, covenants and contracts go to the survivor. When a joint estate survives, the survivor does not claim from his deceased companion, but under the original grant or devise, which created a joint interest. 183. Salk. 205. Mass. S. J. Court, Essex Nov. 1800, Foster v. Hooper, jr. 3 Bac. Abr. 2. The remedy on joint contracts survives even among merchants; for if a note be given to two partners in trade, and one dies, the other, as survivor, alone must sue for and recover the debt; but it is only the remedy that survives, not the interest. § 3. Three men gave a joint note, one died, and it was adjudged that the action lay only against the survivors, and not against the administrator of the one deceased. The facts were stated in the declaration and demurrer thereto. And the survivors or survivor only are liable in equity, as well as in law. A personal action once suspended by the voluntary act of him entitled to it is gone forever. 5 Johns. R. 68.—2 Johns. R. v. Thompson. 471, 477. See Ch. 29, a. 4, 3, 5, and 5, 2, where this mat-2 Hen. & ter is explained. 697.-2 Ver non 99. 3 Wils. 72 to 118, Thomas M. 124. Mass. Act of well, admr. v. Milton. 2 Johns. R. 213, 221, Tom v. Good- A like princi- § 4. By this act the goods and estate of each deceased debtor on every joint contract, after made or implied, are liable for the payment of his debts thereon, the same as on a joint and several one, hereby the creditor may sue the administrator of the one deceased or the survivor. So was, and now, by statute, so is the law in Virginia. § 5. If a partnership be liable, as for duties on the goods imported, and the government &c. take a bond for them from one of the partners, he only is liable to an action. The government had its election to hold them all liable, as the importers of their common property, to take security for the duties from all of them; but when the government made its election, and took security for them by deed from one of them, this became the only security the government was entitled to, and by its own act, and of course the others ceased to be chargeable. One of five partners gave the bond, and held also his surety had a remedy only against him. СH. 7. 15 Mass. R. 116, 125, Phinney Wilby v. $6. Assumpsit lies by a surviving partner against the administrator of the deceased one, for property he withdrew from the joint stock, he dying insolvent, and the partnership concerns being unsettled; action being on a promise to account implied. 7. The suing out the writ is the commencement of the risonaction, to which the cause of action must be prior. The cause -2 Johns. R. of action must be complete, when the plt. sues out his writ. 342-See Ch. 20, a. 7,8. admr. of Har I Caines 69. CHAPTER VII ACTIO PERSONALIS MORITUR CUM PERSONA: ACTIONS ON CON- ART. 1. § 1. Wherever the testator could be sued on a 2 Bac. Abr. contract, his executor may be. Cro. Jam. 405. 444, 445. 1 Salk. 314.2 Ld. Raym. Cowp. 372, Tennett, v. 60.-Toller's 127. § 2. Trover does not lie against an executor for a conversion by the testator. Plea, the testator was not guilty: judg- 971.—1 Ld. ment arrested. In this case Lord Mansfield and the court Raym. 40.1. Where the cause of action is money Hambly v. laid down this rule. due, or a contract to be performed, gain or acquisition of the Trott, admr. testator, by work and labour, or property of another, or a pro- Collins mise to the testator, expressed or implied, the action sur- Palm. vives; but where the cause of action is a tort, or arises ex 330.—Stra. delicto, supposed to be by force, against the peace, there the L. of Ex. 460, action dies, as battery, false imprisonment, trespass, words, 461.---Off. Ex. nusances, obstructing lights, diverting a water-course, escape The tort of against the sheriff, &c. These as to the cause of action, or enticing an any injury to the person of the deceased or his freehold. apprentice $3. 2. As to those which survive or die in respect to the may be waivform of the action. No action in which the declaration must 2 Maule & be in form, quasi vi et armis, et contra pacem, or where the plea Sel. R. 191, must be, that the testator was not guilty, can lie against the 202, Foster executor. The action is ex delicto, and all private criminal Cites Bailey injuries or wrongs, as well as all public crimes, are buried v. Birtles & with the offender. An action on the custom against a carrier al. ex-Th. is for a tort; the plea is, not guilty, and so lies not against the Toller 461.Raym. 71.executor; but assumpsit, which is another action for the same See several cause, will lie. So if a man take a horse from another, and cases, bring him back again, trespass will not lie against his executor, 395, 405, and though it would against him; but an action for the use and hire principle ex ed. v. Stewart. 1 Johns. R. amined. |