resort to chancery for a specific performance, or seek damages at law for non-performance; or if either party should sue upon the original subject of controversy, the award may be pleaded in bar of such suit. These general principles of arbitration have been long settled by the common law, but in almost every State statutory provisions have been superadded. Thus our statute provides for submitting all controversies to arbitration, except those which involve the title to realty, and for making such submission a rule of court; the advantage of which is, that judicial process may then be had for the procurement of testimony, and when the award has been properly made, the court will enforce its performance, as if it were a verdict, without a separate suit. To attain this advantage, the directions of the statute must be strictly pursued; but the common law of arbitration is not thereby abrogated; and therefore proceedings in arbitration may be effectual at common law, when they cannot be made a rule of court.

§ 207. Redress by Suit. The result of violating any legal right is an injury or wrong. If it be of a highly dangerous or atrocious character, the public take it up, and punish it as a crime. If not, it is regarded merely as a private affair between man and man, for which the injured party has his civil remedy against the other. This remedy is secured, as we have seen, by a solemn assurance in the constitution," that all courts shall be open; and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy, by due course of law, and right and justice administered, without denial or delay." Indeed, this is only the expression of one of the fundamental articles of the social compact, by which, in return for the relinquishment of private redress, society undertakes to settle controversies between its members, according to the principles of justice, as defined by law. We must observe, however, that it is not every injury in the estimation of individuals, for which a remedy is promised; but only those injuries for which a remedy can be had by due course of law;" and these injuries. must relate either to the "lands, goods, person, or reputation" of individuals. The terms " lands and goods," as before explained, are technical words, used to designate property; the former embracing real property, and the latter personal; while the terms "person or reputation," are in like manner used to designate our personal rights or immunities. The meaning therefore is, that all injuries which the law can redress must relate either to the person or property of individuals; and this agrees with the remark heretofore made, that all laws have such relation. Hence, it will be inferred that some of the keenest injuries to the feelings or affections which persons of refined sensibilities can suffer, must be left unprovided for; and this agrees with another remark, that the law does not undertake to regulate moral right and wrong. The terms above employed, "for an injury done him," might seem to imply, that the law only undertakes to redress injuries of commission or positive injuries. But, in fact, provision is equally made for injuries of omission, or

negative injuries. Every denial to another of that which is his legal right, is as really a wrong as that which results from a direct act; otherwise there would be no remedy for the non-performance of contracts, or the refusal to comply with any other legal obligations. Such, then, is the general character of civil injuries or wrongs; but it should be observed that the law commonly uses the Latin word delictum or the French word tort instead of our equally significant English words. The remedies thus provided are called civil, to distinguish them from criminal proceedings. They are of two kinds; namely, those which are administered by courts of law, and those which are administered by courts of equity; and they will be found to differ essentially from each other, both in point of form and efficiency.

§ 208. Actions. (a) We are now to consider in what manner the law proceeds to administer civil remedies. These remedies are administered by courts, through the instrumentality of what are called actions. The term action includes the whole course of legal proceedings to obtain redress for a civil injury. The parties to an action are denominated plaintiff and defendant; and the former is said to sue or prosecute the latter. Hence, the term suit is sometimes used instead of action. In some few instances the redress sought by a civil action consists in the recovery of some specific article of property, wrongfully withheld from the plaintiff by the defendant; but most frequently the object of an action is to obtain compensation in money for an injury complained of, which compensation is technically called damages. (b) It is obvious that for injuries to property, this is generally the most easy and natural kind of redress, since money is the universal measure of value; and besides, it is often impracticable to obtain satisfaction in kind. But it may at first view appear strange, that pecuniary damages should be the redress sought for personal injuries, since we are accustomed to hold personal immunities to be beyond all price. If my property has been injured, or my dues withheld, I can readily tell the exact sum which will make me whole; but if my body has been bruised, my health impaired, or my reputation slandered, how can I tell what amount of money will compensate me for the injury? It is evident that, strictly speaking, there can be no equivalent in such cases; but it is also evident, that unless we resort to the principle of retaliation, which vindictively doubles the amount of injury, pecuniary damages, though often inadequate, constitute the only satisfaction which the law can furnish. Were we now at liberty to classify actions, upon any principle of analysis, it would follow, from what has been said, that only two classes would be necessary; and these might be, first, for injuries to the person and for injuries to property; or, secondly, for injuries of commission and for injuries of omission; or, thirdly, for the recov

(a) See 3 Black. Com. 116; 1 Chit. Plead. 83.

(b) On the subject of damages, see Sedgwick on Damages; 2 Parsons on Contracts pp. 432-508; and the leading case of Suydam v. Jenkins, 3 Sandf. 614.

ery of the specific thing and for the recovery of pecuniary damages. But instead of a simple and natural division of actions, such as either of these would be, we are compelled, by peculiar circumstances in the history of the common law, to recognize a perplexing variety of actions abounding with arbitrary and technical distinctions. The customary division of actions is into real, personal, and mixed. Real actions are those used for the recovery of real property only, without damages. Personal actions are those used for the recovery of personal property or damages. And mixed actions are those used for the recovery of real property and damages. But in this, and several other States, real actions are not in use; their place being supplied by the mixed action called ejectment, which answers every useful purpose, and is the only mixed action now in use. Personal actions are again subdivided into actions ex contractu, or actions of contract, and actions ex delicto, or actions of

tort.

To account for this diversity of civil remedies, we must look back to the history of actions; and let me apprise you beforehand, that you will find very little of that adaptation of means to ends, which is calculated to gratify a philosophic mind. On the contrary, you will find that the remedial part of the law resembles a mass of patchwork, made up at intervals and by piecemeal, without any preconceived plan or system, for the purpose of meeting the exigencies of the times by temporary expedients. It will be well to bear this in mind, while considering the forms of action; for it will help you to account for combinations and classifications, which would otherwise be unaccountable. At the earliest period of the English law of which we have any definite account, specific forms of action were in use, for such cases as had then most frequently occurred. These had been collected into a book called registrum brevium or the register of writs; and were denominated brevia formata, or fixed writs, being held to be immutable by any authority except that of Parliament; that is, the courts could not change them. Such was the state of things until 1284, when an act was passed, known as the statute of Westminster 2d, to provide for the formation of new writs in cases for which the register contained no appropriate form, but for which the progress of society made it necessary to provide; and from certain words used in this statute, the new actions formed under it are called actions on the case. (a) Our present actions, then, are traced either to the register of writs, or to the statute of Westminster; and though, judg

(a) The words of the statute, as early translated, are as follows: "That if it shall fortune in the chancery, that in one case a writ is found, and in like case falling under like law, and requiring like remedy, is found none, the clerks of the chancery shall agree in making the writ, or adjourn the plaintiffs until the next Parliament; and that the cases be written in which they cannot agree, and that they shall refer such cases until the next Parliament: and by consent of men learned in the law, a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto complainants." 1 Chitty on Pleading, 84; 8 Black. Com. 123, 183; 3 Reeve's Hist. E. L. 89; Crabb's Hist. E. L. 290.

ing from their form, they would seem to be adapted only to the redress of a few specific injuries, yet they have been gradually extended in their scope, by means of fictions and innovations, of which the common law has been peculiarly fond, so as to cover all the cases which usually occur. If, however, a case should now arise, for which the precedents thus framed furnish no established form, the question whether there be a remedy or not, is to be determined by the application of this rule: If the case be new in principle, the courts must wait until the legislature provides for it: but if it be only new in the particular instance, and comes clearly within a settled principle, the courts will entertain a special action on the case, founded on the authority of the statute before mentioned. The names of the actions now in use are, debt, covenant, assumpsit, trespass, trover, detinue, replevin, case, and ejectment. Of these, the first eight are personal actions, and the last mixed. The first three are actions of contract; and the other six, actions of tort. Assumpsit and trover are in fact actions on the case, for they originated under the statute of Westminster; but from their very general use they have become specific designations; while the word case has become a generic term, including a large class of actions for which there is no specific designation. I shall now give a very brief description of each of these actions, with reference to the injuries they are designed to remedy, taking them in the above order. The first point which a practising lawyer has to decide, is the proper action for the case presented. To decide this, he must be familiar with the scope and purpose of all the actions; and this is a matter of no small labor and difficulty, on account of the frequent want of correspondence between the original form of a particular action, and the actual purpose for which it is now employed. In describing these actions, I shall have frequent occasion to speak of the declaration, which forms a part of the pleadings to be described hereafter. For the present it is sufficient to say, that the declaration contains the plaintiff's statement of his case in court. Its form varies in each of the actions, as will appear from the specimens given in the notes. A careful examination of one declaration in each of the actions will best impress upon the memory the distinctive features of such action. In these specimens, I shall omit the caption and conclusion; which are merely formal, and the same in all declarations. I shall also omit the allegations of time and place, which cannot now be conveniently explained.

Debt. (a) The action of debt is one of those which we trace up to the register of writs. It is the remedy for recovering a debt, strictly so called; that is, a certain and liquidated sum of money due from the defendant to the plaintiff. It makes no difference whether the debt be evidenced by a sealed contract, a written contract not sealed, an implied contract, or a mere legal obligation

(a) See 1 Swift's Dig. 572; 1 Chit. Plead. 100; Steph. Plead. 14.

without any contract, provided the sum be capable of being reduced to certainty beforehand, and does not depend upon a mere arbitrary estimate of damages by a jury. Interest can be recovered in this action, because the amount is rendered certain by the law regulating the rate of interest; but it is in no case adapted to the recovery of uncertain damages. It has, however, been so far extended in modern times, without any alteration of its form, that there are now very few, if any, merely pecuniary claims, which may not be recovered by the action of debt. Thus it may now be brought to recover the price of any property sold, or the compensation for any service performed, although such price and compensation were not stipulated between the parties; for the amount in such cases is liquidated by proving the market-price or customary compensation. But this action has never been extended beyond strictly pecuniary claims, as distinguished from consequential and unliquidated damages. When such, therefore, become the subject of a suit, even though founded on contract, some other action must be resorted to. Originally, the defendant in this action was allowed to wage his law; that is, to swear that he did not owe the debt, and procure twelve of his neighbors to swear that they believed him; and this may partially account for its circumscribed scope; but the anomaly of wager of law has never been admitted in this country, and is now obsolete in England. (a)

Covenant. (b) The action of covenant is likewise one of those found in the register of writs. It is the remedy provided for the recovery of damages for the breach of a contract under seal. These contracts, on account of the theoretical solemnity of their execution, which has before been remarked upon, are called covenants, by way of eminence; and this action is confined to them only. It makes no difference what the covenant be for; whether to pay money, or to perform or abstain from any other act; if damages can be recovered at all for the breach of a contract under seal, they may always be recovered by this action. But it is evident that there are many cases in which covenant is a concurrent remedy with debt; and the plaintiff may have his option between them. Thus, whenever there is a sealed contract to pay a specific sum of money, this sum with interest may be recovered as a debt, by the action of debt; or in the shape of damages, by the action of covenant. When, however, the sealed contract is for any thing else than to pay money, the action of covenant is the sole remedy. It is obviously unneces

(a) Declaration in Debt. For that the defendant made his certain writing obligatory of the date aforesaid, sealed with his seal, and now to the court here shown, and then and there delivered the same to the plaintiff, and thereby bound himself to pay to the plaintiff, or his order, the sum of dollars, in- -days after the date thereof, which period has now elapsed. Yet the defendant has not paid the said sum of money or any part thereof to the plaintiff; but still owes the same to, and unjustly detains the same from, him.

It will thus be seen that the elements of a declaration in debt are, the fact of indebtedness in a liquidated sum, and the manner of such indebtedness.

(b) See 1 Swift's Dig. 570; 1 Chitty's Plead. 109; Steph. Plead. 76.