Thirdly, With the exception of the actions of ejectment and replevin, which will be treated of se parately, and a few other actions (chiefly real), which occur so seldom that it is not intended to notice them in this work, all actions will be in one of the following forms: they will be actions a

on promises, bosh rood red el of debt,

of covenant,

on the case,

of trespass,

of detinue;

and the agent must be informed in which of these forms the action is to be brought, as it must be mentioned in the writ; and if a mistake be made by naming a wrong form of action, the proceedings may be set aside as soon as the plaintiff declares, (if the application be made before the time for pleading expires,) for in that case the declaration will be in a different form of action from that mentioned in the writ, and it will therefore be irregular.

Where the action is brought to recover a simplecontract debt, as for goods sold, money lent, work and labour, or the like, it may be either an action on promises or an action of debt; the chief difference in these two forms of action, when brought for that purpose, being, that if the action be on promises, the plaintiff must execute a writ of inquiry of damages, if the defendant suffer judgment by default; but if the action be in debt, that is not necessary, but the plaintiff's costs may be immediately taxed and execution issued for the true amount of debt and costs, without a writ of inquiry.

All actions on bills of exchange and promissory notes may be actions on promises, and are usually brought in that form, for there is a method of obtaining final judgment in actions on these instruments without executing a writ of inquiry, which will be afterwards pointed out. In some cases, and as between certain parties to these instruments, the

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action of debt will also lie, and as between certain other parties it is clear that debt will not lie. As it may sometimes be desirable to bring an action of debt on a bill or note instead of an action on promises, the cases in which that form of action may with safety be adopted will here be pointed out.

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It has been decided that an action of debt will lie by the drawer against the acceptor of a bill of exchange (6), also that it will lie by the first indorsee against the drawer of a bill of exchange (c), but not by a subsequent indorsee against the drawer (d), also that an action of debt will lie by the payee against the maker of a promissory note (e), also that it will lie by the indorsee of a bill or note against his immediate indorser (f), but it will not lie against any other than the immediate indorser.

A contract always implies a promise by each party to perform it, and where either party has broken his contract, that is a breach of his promise. Therefore in all actions for the breach of any contract, other than a contract merely for the payment of money, (in which case the action may generally be either in debt or on promises,) the action will be an action on promises, and this applies to implied as well as to express contracts; but it must be understood that this does not apply to contracts under seal, in which case the action will be either in debt or covenant.

Where an action is brought on a covenant to pay a certain sum of money at a day past, for instance, on the usual covenant for payment in a mortgage deed, the action may be either an action of debt or an action of covenant. If debt be brought, a writ

(b) Priddy v. Henbrey, 1 B. & C. 674; Watson v. Kight

ley, 3 Perry & Davison, 408; S. C. 11 Ad. & E. 702.

(c) Stratton v. Hill, 3 Price, 253.

(d) Lewin v. Edwards, 9 Meeson & Welsby, 720.

(e) Bishop v. Young, 2 B. & P. 78; Hatch v. Troyes, 3 Perry & Davison, 408; S. C. 11 Ad. & E. 702.

(f) Watkins v. Wake, 7 Meeson & Welsby, 488.

of inquiry of damages need not be executed; if covenant be brought, a writ of inquiry must be executed.

An action on the case is always brought for some breach of duty committed by the defendant, or for some wrongful act done by him, which in its consequences entails an injury on the plaintiff.

An action of trespass is always brought for some immediate injury to the plaintiff's person or property, real or personal. Where the injury to either is not immediate, but only a consequence of a wrongful act of the defendant, the action will be on the case. It is sometimes a point of great nicety whether an action should be an action of trespass or an action on the case, and if the attorney have doubts on the subject, he should state the facts of the case to his agent, and he again, if he have doubts, will get them solved by his counsel.

The action of detinue is usually brought where the specific chattel detained is sought to be recovered, and it is the only action in which that can be done (damages only being recoverable in trover) ; but as the defendant may have destroyed or made away with the chattel, the judgment is in the alternative, that the plaintiff recover the chattel itself, or damages instead, which damages are usually the value of the chattel, and are ascertained by a jury; the defendant then has the option to deliver up the chattel or pay those damages. Detinue, however, will not lie unless the chattel be capable of being identified; for instance, it will not lie for loose money, but it will lie for a bag of money, for that is capable of identification, so long as the bag is unopened. This action is somewhat similar to the action of trover (which is an action on the case), and is sometimes adopted where trover also would lie, because counts in debt can be joined with a count in detinue, but they cannot be joined with a count in trover. The action of detinue is also sometimes adopted where the defendant has clearly no

right to the articles he detains, but where there is a difficulty in proving a wrongful conversion of them to his own use, which wrongful conversion is essential to the action of trover.

The following is a list of cases where (if there be no contract under seal) the form of action may be On Promises.

* For goods sold and delivered.

* For goods bargained and sold. *For work and labour.

* For money lent.

* For money paid to the defendant's use.

* For money received by defendant to plaintiff's

use.

*For interest.

* For money due on an account stated.
*For the price of real property sold.
* For the carriage of goods.

* For use and occupation.
*For servants' wages.
*For board and lodging.

* For the goodwill of a business.
* For warehouse room or wharfage.
* For horse-meat and stabling.
* For agistment of cattle.

* For the hire of goods, horses, &c.
*For covering mares or bulling cows.
* For freight.

* On an award (the submission not being under seal).

* On wagers.

* On an attorney's bill.

* On an apothecary or surgeon's bill.

*For double rent.

* For fines on admission to a copyhold. * For tolls.

*For a composition for tithes.

* For the tonnage of goods. On bills of exchange.

On promissory notes.
On bankers' checks.
On policies of insurance.

Against an attorney for negligence.
For not accepting goods.
For not delivering goods.
On guarantees.

On promises to indemnify.
On a promise of marriage.
On warranty of a horse.

On warranty on exchange of horses.

For mismanaging a farm.

For dilapidations.

T

Against vendor for not making title or delivering abstract pursuant to contract.

For not completing purchase.

Against bailees for breach of express or implied

contract.

Against agents, factors, &c., for the like.

All the actions marked with an asterisk in the above list, and also the following, may be actions

Of Debt.

On bills of Exchange.

Drawer v. Acceptor.

First Indorsee v. Drawer.

Indorsee v. Immediate Indorser.

On Promissory notes.

Payee v. Maker.

On bonds.

On an award (where submission by deed).

On covenant for mortgage-money and interest.

For rent on a lease.

On annuity deed for arrears of an annuity.

For double value.

On most penal statutes.

On judgments.

All actions for the breach of any covenant (which