wasted. This action on the case in the nature of waste, may be brought not only by the person having the next immediate estate of inheritance, but by the person having a remainder in fee or in tail, after an intervening estate for life, and also by one who has a remainder or reversion for life or for years only, and each shall recover such damages as it shall appear that he has suffered by the waste.

SEC. II. - Actions are also divided into local and transitory.

Local actions have reference to some particular place, and must be brought in the county where the place is situated. Thus, real actions must be brought in the county where the land lies.

Transitory actions, i. e. where the merits of the action have no reference to place, may be brought in any county; subject however, to certain restrictions established by statute for the convenient administration of justice. Thus, actions for breach of contract, or for personal wrongs, such as slander, assault and battery, &c., may generally be brought in any county.

But, by ch. 90, Rev. Stat. § 14, &c., all transitory actions between parties who both live within the State, must generally be brought in the county where one of the parties lives. Otherwise the writ abates, and the defendant is allowed double costs.

Where the plaintiff lives out of the State, the action may be brought in any county. See ibid.

Under this provision, it has been held that a citizen of another State may sue a corporation, having a place of business in some particular county, in whatever county in the State he thinks fit. Allen v. The Pacific Insurance Company, 21 Pick. 257.

By sec. 15 of ch. 90, Rev. Stat., where there are two or more plaintiffs, the action may be brought in the county where either of them lives. So the action may be brought in the county where either of the defendants lives. But under ch. 109, § 7, Rev. Stat., trustee actions must be commenced in a county where one of the trustees dwells. See post.

By sec. 16, where both parties are towns, school districts, or parishes, the action must be brought in the county where one of them is situated. Where the action is between a town, &c. and a natural person, the action may be brought either in the county where the town is situated, or where the natural person lives.

the

Where one of the parties is a corporation of any other description, the action may be brought in any county in which such corporation shall have any established place of business, &c.; other party is a natural person, the action may be brought in the county where he lives. See the above case, Allen v. The Pacific Insurance Company, 21 Pick. 257. See also Rev. Stat. ch. 44, sections 11 and 21.

By sec. 19, all actions, whether local or transitory, against the inhabitants of a county, shall be brought either in the county where the plaintiff resides, or in the county against which the action is brought, or in an adjoining county, at the plaintiff's election.

Actions by the inhabitants of a county, shall be brought either in the county where the defendant lives, or in a county adjoining the county which brings the action.

By the Rev. Stat. ch. 90, § 17, penal actions must be brought in the counties where the offences are committed, unless otherwise provided.

By ch. 109, Rev. Stat. § 72, a person summoned to answer as trustee, before a Justice of the Peace, is not held to answer out of the county in which he dwells; and if he is out of the county at the time of the service on him, and shall not return. before final judgment, he shall not be chargeable as trustee.

[See Rev. Stat. Maine, ch. 114, § 1-15 ]

CHAPTER II.

OF THE GENERAL RULE, THAT AN ACTION DOES NOT LIE UNTIL A CAUSE OF ACTION HAS ACCrued.

Until some injury has been offered, there is no ground for an application to the tribunals of justice for redress. And if an action should be commenced thus prematurely, it cannot be sustained by any cause of action happening afterwards, although of precise y the same nature, because it is apparent that the subsequent cause of action cannot be the one set forth in the first action. And therefore, if the defendant, on the first of December, promise to pay on the first day of January, no action can be maintained until the first of January. See Cro. Car. 575.

In debt upon a bond for payment of money, if it does not become due until after the action is commenced, it will be bad. See 1 Sid.

8.

In debt upon bond for performance of covenants, if a breach be assigned for a time after the action is commenced, it will be bad. Ibid.

So in covenant, an assignee cannot recover for a breach before the assignment. Leo. 51.

If a bond is given, conditioned to pay money at several times, it is forfeited by the first failure of payment, and an action may be maintained immediately. 1 Wils. 80.

But if a man by a single bill or bond, without penalty binds himself to pay a sum of money in different portions on different days, debt will not lie until the last day of payment be past. Co. Litt. 292, b.

So, if a man covenants to do any thing at several times, covenant lies after every default. Ibid.

Where the surety, on a note which he has discharged, attached the real estate of the principal debtor, on a writ containing a declaration on a note which the surety anticipated to obtain of him, and after obtaining such note attached his personal estate, it was held, that the attachment of the real estate was the commencement of the action, and, as the note on which the suit was founded was not then in existence, there was no cause of action. The attachment, both of the real and personal estate, was consequently dissolved. Swift v. Crocker, 21 Pick. 241.

But merely filling up the writ, if no service had been made until after the note had been signed, would not have been fatal to the action. A writ may be considered as made at such time as it was in fact designed by the plaintiff for actual use, where the justice of the case requires it. If the plaintiff can show that his writ was only to be used on a certain contingency, he is allowed so to do. In this action, the attachment was dissolved on the application of certain creditors of the defendant, under the provisions of the Revised Statutes. See ibid.

So, where a writ against the indorser of a note, was delivered to an officer, with instructions not to serve it until after he had given the indorser notice of the non-payment of the note by the maker, and the writ was not in fact served until after such notice had been given, it was held, that the action was not commenced until the service of the writ. Seaver v. Lincoln, 21 Pick. 267.

Quere, however, the propriety of suffering an officer to be an agent to do any collateral act, upon the due performance of which

the plaintiff's right of action is to depend, and note, that in Gardner v. Webber, 17 Pick. 407, it was held, that the date of the writ is the time of the commencement of an action, and not the time when it is served. And therefore, if it is dated before the expiration of the statute of limitations, but served after, it will take away the statute.

If a note is made payable generally, on a certain day, it becomes due, and an action may be commenced on it at any time on the third or last day of grace; but if it is made payable at a bank, there is no default of payment until the closing of business hours at the bank; consequently, no action can be sustained if commenced before the expiration of such business hours, on a note so given. Church v. Clark, 21 Pick. 311.

On a note of hand for the payment of money by instalments, action lies upon every default, but the plaintiff must count only for the money due, and not for the whole sum. And. 370.

Where a note of hand is drawn payable after sight, it must be presented for payment before action can be brought. 2 Taunt, 323.

If goods are sold, to be delivered on a certain day, the seller cannot maintain an action pro tanto, on each delivery. 2 N. Rep. 61.

No action can be maintained against a consignee of goods for sale, for not accounting for and returning the goods undisposed of, without demand. 1 Taunt. 572.

But when a bill of exchange is dishonored by the drawee's refusal to accept, every one who became a party to it before the holder is immediately liable to him, though before the day at which it is payable. Doug, 551.

If land under incumbrance is sold with a warranty against incum rances, an action of covenant will lie immediately for the breach, and nominal damages may be recovered; and if, pending the action, the plaintiff extinguishes the incumbrance, he may recover the amount in that action, as damages. 20 Pick. 474.

Where it is apparent on the record that an action has been commenced before the cause of action accrued, it may be moved in arrest of judgment, or assigned for error. 2 Lev, 197; Show. 147.

CHAPTER III.

OF THE PARTIES TO ACTIONS, OR THOSE WHO MAY SUE OR BE SUED.

See Com. Dig. Action, B. C.

The following, as well as all common persons, may generally

commence suits.

An alien friend.

But an alien enemy cannot sue, though the objection is discouraged.

So, a foreign trading company; and they may sue by their name of reputation. Strange, 612; Ld. Raym. 1532.

So, a foreign sovereign may sue in his political capacity, as well as in his private right. See Dow & Clark, 175,

But, it seems, a foreign government not acknowledged, cannot See 9 Vesey, 347; 11 Vesey, 283.

sue.

An idiot or lunatic shall sue in his own name. 1 Pop. 141; 1 Brownl. 197.

An infant may sue by his next friend. By the Revised Statutes of Massachusetts, every guardian has a right to sue for the debts due to his ward, and shall represent him in all legal proceedings, unless where some other person is appointed for that purpose, as guardian or next friend. Ch. 79, § 17.

A person deaf, dumb, and blind, an idiot, lunatic, non compos mentis, may be sued; but, if no guardian appeared on their behalf, if a suggestion were made of such disability it is supposed the court would esteem it their duty to appoint a guardian ad litem.

A person outlawed cannot sue in his own right, though he may as executor or administrator.

In general, a feme covert cannot sue without her husband.

But, it seems, after a divorce from bed and board, if the husband should refuse to pay the alimony, which the court had decreed for the wife's maintenance, she may sue her husband ex necessitate rei.

And under the Revised Statutes of Massachusetts, ch. 77, if the husband should abandon his wife, without making sufficient provision for her maintenance, the Supreme Judicial Court, on application made by her for that purpose, and she being of the age of twentyone years, may authorize her to commence, prosecute, and defend