[legal owner, or (where that is not possible) by making the sufferer a pecuniary satisfaction in damages. An action is, accordingly, defined by the Mirrour as being "the lawful demand of one's right" (c); or, as Bracton and Fleta express it in the words of Justinian, jus prosequendi in judicio quod alicui debetur (d).]

And in the first place, actions (according to an antient division) were either personal, real, or mixed. Personal actions were those whereby a man claimed the recovery of a debt or of a personal chattel, or else satisfaction in damages for some injury done to his person or property. Real actions,—or, as they are called in the Mirrour, feudal actions,---concerned real property only, and were actions whereby the plaintiff or demandant claimed the specific recovery of lands, tenements, or hereditaments; and it was by real actions that all disputes concerning real estates were formerly decided. But in modern times, real actions gradually became less frequent in practice, upon account of the great nicety required in their management, and the inconvenient length of their process; and a much more expeditious method of trying titles was at a later period introduced, particularly the action of ejectment, of which we shall have occasion presently to speak. Accordingly, by the Real Property Limitation Act, 1833 (3 & 4 Will. IV. c. 27), s. 36, all real actions (with but one or two exceptions) were abolished. Mixed actions were suits partaking of the natures of both real and personal actions, some real property being demanded therein, together with personal damages for the wrong sustained ; but they partook, in the main, of the character of real actions, were often so called (e), and were abolished at the same time as real actions.

On the general abolition of real and mixed actions just referred to, the writ of right of dower, the writ of dower,

(c) Ch. 2, s. 1.

(d) Inst. 4, 6.

(e) Co. Litt. 285 b; Roscoe, Real Actions, 1.

the writ of quare impedit, and the action of ejectment (ƒ), escaped destruction. The two first of these lay where the demandant claimed lands or tenements by the particular title of dower; the first of them being applicable, where the woman was endowed of part of her dower, and was deprived of the residue, lying in the same town, by the same tenant by whom she was endowed of part (g), and the second being proper in all other cases where she was entitled to dower (h). The action of quare impedit lay where the right to present to a benefice had been disturbed, the object of the action being to recover the presentation. And the action of ejectment lay, where lands or tenements were unlawfully withheld, the object of the action being the recovery of the possession. All these actions were however, abolished by the Common Law Procedure Act, 1860, s. 26, except the action of ejectment, which had been remodelled by the Common Law Procedure Act, 1852. Since the Jurisdiction Acts, the action of ejectment is commenced like an ordinary action (¿).

Personal actions are actions founded either on contracts or on torts; that is to say, they are either actions ex contractu or actions ex delicto, torts being wrongs independent of contract, and being either (1) nonfeasances, or the omission of acts which a man was by law bound to do, or (2) misfeasances, or the improper performance of lawful acts, or (3) malfeasances, or the commission of acts which were themselves unlawful (k). The forms of personal actions which were latterly recognized were eight, viz.: debt, covenant, assumpsit, detinue, trespass, trover, trespass on the case, and replerin, the three first being founded on

(f) Ejectment was often considered as a mixed action (see 3 Bl. Com. 214); and was expressly so denominated in the Real Property Limitation Act, 1833. Yet, in its form, it was a species of the personal action of trespass. (See Fitz Ab. tit. Ejectione Firme, 2.)

(g) Roscoe, Real Actions, 29. (h) Ibid. 39.

(i) Ord. I., r. 1.

(k) 1 Chitty Pl. 134, 1st edit. Turner v. Stallibrass, [1898] 1 Q. B. 56.

contract, and the remaining five on tort (1). And although all forms of action have been abolished, and every action. is now a simple action on the case, still every personal action continues to be more or less in the nature of one or other of the eight forms of action just specified; and it is accordingly desirable to treat of these eight in their order.

(1) Debt lies, where the object is the recovery of a certain sum of money alleged to be due from the defendant to the plaintiff; (2) Covenant, where redress in damages is sought for the breach of an agreement entered into by deed; and (3) Assumpsit, where damages are claimed for the breach of a promise not made by deed. On the other hand (4) Detinue lies, where the object is to recover a personal chattel unlawfully detained; (5) Trespass, where the plaintiff claims damages for a trespass vi et armis (m), that is, for an injury accompanied with actual force, i.e., a wrongful entry upon land, or a wrongful taking and keeping of personal chattels; (6) Trover, where (the wrongful taking being waived) the plaintiff claims damages for the wrongful keeping (or conversion). (7) Trespass on the case was a form of action less antient than the rest, having apparently first come into use in the reign of Edward the Third (n); being invented under the authority of the statute In consimili casu (13 Edw. I.), c. 24, upon the analogy of the old form of trespass. It lay in every case (not falling within the compass of the other forms) where damages were claimed for an injury either to the person or to property, e.g., where there was

(1) The action of detinue, though founded on a tort,--viz., the wrongful detainer of a chattel (see Gledstane v. Hewitt (1831), 1 Cr. & J. 565), was considered for some purposes as an action on contract (see Bryant v. Herbert (1878), 3 C. P. D. 389).

S.C.-I.

2 c

(m) In actions of trespass, the formal words vi et armis, and contra pacem, were formerly always used in the pleadings; but the necessity for this was abolished by the Common Law Procedure Act, 1852.

(n) Reeves, Hist. Eng. Law, vol. iii. pp. 89, 243, 391.

no act immediately injurious to person or property, but there was only a culpable omission, or where the act done was not immediately injurious, but only by consequence or collaterally, in either of which two cases, no action of trespass, properly so called, would lie, but only an action on the case, for the damages consequent on such omission or act (o). Where the subject-matter was not corporeal, so that the idea of force was inapplicable, the remedy was likewise case and not trespass, even though the injury was by act done, and its operation was direct and immediate (p). (8) Replevin is an action of limited application, being almost invariably confined to trying the legality of a distress levied upon the personal chattels of the plaintiff (q).

Actions used also to be classed as local and transitory; the former being founded on such causes of action as necessarily refer to some particular locality, as in the case of trespasses to land, the latter on such causes of action as may take place anywhere, as in the case of trespasses to goods, batteries, and the like. Thus, real actions were always in their nature local, personal actions were for the most part transitory; and local actions must formerly, as the general rule, have been tried in the county where the cause of action arose, and by a jury of that county, while transitory actions might have been tried in any county, at the discretion (in general) of the plaintiff. In respect of a trespass to land out of the jurisdiction, no action will lie (r) in an English court; but where the action is transitory (as for breach of contract), the action will lie in the English courts, whether the breach were committed in England or elsewhere (s). The distinction between actions

(0) Scott v. Shepherd (1772),

2 W. Bl. 892; 1 Sm. L. C. 11th ed. 454; Gilbertson V. Richardson (1848), 5 C. B. 502.

(p) 1 Chitty, Pl. 143, Com. Dig. Action, Case, Disturbance, (A. 2). (7) It lies, however, in other cases also of goods unlawfully

taken. (George V. Chambers (1843), 11 M. & W. 149; Mellor v. Leather (1853), 1 El. & Bl. 619.)

(r) British South Africa Co. v. Companhia de Moçambique, [1893] A. C. 603.

(8) Mostyn v. Fabrigas (1774), 1 Sm. L. C. 11th ed. 591.

as local or transitory has, so far as the place of trial, or "venue," is concerned, been abolished by the Judicature Acts; and there are now no longer any local venues (t), but the venue is in every case fixed by an order of a Master (t). The Judicature Acts have not, however, extended the jurisdiction of the courts; and the old rule that no action will lie for recovery of or trespass to land situate abroad still applies (r).

An action for damages will (in general) lie, whenever a right has been invaded or, in other words, an injury committed, although no damage has been actually sustained; it being material to the establishment and preservation of the right itself, that its invasion shall not pass with impunity (u). Thus, an action by one commoner against another, for surcharging the common, is maintainable, although the plaintiff may not himself have turned on any cattle of his own, and can therefore have sustained no actual loss (x); and in such cases, there being no ground for awarding damages (save in vindication of the right), the plaintiff recovers some trifling sum by way of nominal damages, in addition to which, the defendant has in general to pay the plaintiff's costs of the action, as well as his own. But to sustain an action for damages, it is, in general, requisite, that the plaintiff shall have sustained some loss (whether actual or nominal) of a kind proper and peculiar to himself; and so, where the damage is of a merely public character, affecting persons at large equally with the plaintiff, no civil action in general lies, e.g., no action can in general be maintained for an encroachment on the highway, but the offender is liable to be indicted, as for a public misdemeanor. On the other hand, where the plaintiff sustains any special damage, he

(t) Order XXXVI. r. 1, as amended by the Rules of the Supreme Court, July, 1902.

(u) 1 Saund. by Wms. 346 b.

(x) Wells v. Watling (1779), 2 W. Bl. 1233; Marzetti v. Williams (1830), 1 B. & Ad. 426; Blofeld v. Payne (1833), 4 B. & Ad. 410.