Election of actions. important. ses on con tract, Of the election of actions.] In many cases the plaintiff Sometimes has an election of different actions, and very important considerations will sometimes influence the choice of them.74 In In what ca- actions upon contracts, he may bring assumpsit or debt upon a simple contract, or debt or covenant upon a specialty, for the non-payment of money or if the breach of a simple contract consist in mis-feasance, he may declare in assumpsit, or in case on the special circumstances; as for deceit on the sale of cattle or goods, or immoderate use of them, when lent or let to hire; and against attornies, carriers, wharfingers, innkeepers, &c. And where cattle or goods are wrongfully taken and detained, he may bring trespass vi et armis, case, replevin, or trover; and if they are converted into money, he may waive the tort, and bring assumpsit for money had and received.75 For injuries to the person, the plaintiff may sometimes have trespass or case; and we have seen' 101 that case will always lie where trespass will, for any injury to the person, personál rights or property, or to a servant, wife, or child. on tort. Joinder of actions. tion of ac The plaintiff having once made his election, can not afterwards bring another species of action for the same cause, either whilst the former is depending, or after it has been determined ;76 but he may, after having duly discontinued it.” Of the joinder of actions.] Where the plaintiff brings two Consolida- actions for different causes of action which may be joined in tions. the same action, the court will order him to consolidate them, and to pay the costs of the application.78 It is therefore material to ascertain what causes of action are capable of being joined. General rule. It is a rule that several causes of action may be joined in the same suit, provided they are of the same nature. Thus in counts in the same action. tort and com actions upon contract, the plaintiff may join as many different counts in his declaration, as he has causes of action, in account, assumpsit, covenant, debt, or scire facias.79 So in actions for wrongs, independently of contract, the plaintiff may Joinder of join as many different counts as he has causes of action, in case, replevin, or trespass:80 and he may join trespass and battery of his servant per quod,1 or trespass and rescue or pound breach in the same declaration. But counts in ac- Counts in tions upon contract can not be joined with counts for wrongs tract cannot be joined. independently of contract, as trespass and covenant, or assumpsit and case; nor can counts in any one species of these actions, be joined with counts in another. But where a declaration contained several counts, each alleging a breach of the defendant's duty as attorney, and each containing allegations sufficient to support it either in tort or assumpsit, the objection that causes of action in tort and assumpsit had been joined, was overruled.85 to joining actions. Wherever several counts may be joined in the same decla- Criterion ration for different causes of action, there is always the same process by original writ, and, in general, the same plea or general issue, and the same judgment. Neither the process, plea, nor judgment, is singly a safe criterion; although each has been supposed to be:86 for assumpsit, case, and trespass, have the same process, and also account, covenant, and debt, yet they cannot be joined ; and assumpsit, covenant, and case, have the same judgment, yet they cannot be joined ;98 .87 VOL. I. 83 Com. Dig. Action, G. 1 John. Rep. 503. 6 East. 336. 2 Caines' Rep. 216. 84 1 Tidd. 9. 2. Saund. 117. b. c. 16 John. Rep. 146. 85 11 John. Rep. 4 79. 86 1 Wils. 252. 2 Wils. 321. 3 Wils. 354. 1 T. R. 276. 2 Saund. 117. c. 15 so in case and trespass there is the same plea, and the same judgment for damages and costs, and sometimes an entry of a capiatur in case as well as in trespass.89 It should also be observed, that this rule is merely affirmative; and it does not hold e converso, that different counts cannot be joined unless there be the same plea and judgment on all of them: for it is holden, that debt on record, specialty, and simple contract, may be joined, although they require different pleas,90 and before detinue was abolished, it might be joined with debt, although the pleas and judgments were both different.91 It General rule. may, therefore, be safely laid down as a general rule, that wherever the causes of action are of the same nature, and may properly be the subject of counts in the same species of action, they may be joined, otherwise they cannot. Causes of action in diffe cannot be joined. Cases not within the rule. 92 In order to join several counts, however, in the same rent rights declaration, it is necessary that they should all of them exist in the same right;93 and upon that ground it is holden, that a plaintiff cannot join in the same declaration, a demand as executor, with another which accrued in his own right;94 but in an action by an executor, where the money recovered will, in either case, be assets, a count on a promise to the plaintiff as executor, may be joined with a count on a promise to the testator ;95 and a count on a promise made by an executor or administrator as such, and in which he is not charged as personally liable, may be joined with a count, on a promise made by the testator or intestate.96 The original cause of action, however, must have arisen during the lifetime of the testator or intestate, and must have been one for which he might himself have sued, or would himself have been liable;97 but the omission to state that the defendant promised as executor or administrator, where the testator or intestate was himself in his lifetime liable, is cured by verdict.98 Causes of action against a defendant in his own right, and as surviving partner, may be joined in the same declaration, and it is not necessary to distinguish the demand against him as surviving partner from the other, but it may be recovered under counts against him individually.99 A partner may also join debts due to him in his own right and as survivor.100 A mis-joinder of causes of action, is a fatal defect, on demurrer, motion in arrest of judgment, or writ of error.1 SECTION VIII. OF THE TIME LIMITED FOR THE COMMENCEMENT OF ACTIONS. rence to the The plaintiff must commence his suit within a certain period General refe after the cause of action accrued, which varies according to statutes. the nature of the subject; otherwise his claim may be defeated by the interposition of some of the various provisions by statute for the limitation of actions, or by the presumption which the law allows in cases of stale and antiquated demands, that they have been satisfied. The general statutory provisions on this subject, are contained in the first title, and the five first articles of the second title, of the fourth chapter of the third part of the revised statutes. 974 T. R. 347. 12 John. Rep. 349. 928 John. Rep. 440. "1 B. & A. 29. 00 3 T. R. 433. 5 Ib. 493. 6 Ib. 582. 1 16 John. Rep. 146. 4 T. R. 347. 1 H. B. 108. 2 B. & P. 424. sed. vid. 6 East 333. SUITS RELA TING TO Of the limitation of suits relating to real property.] On REAL PRO- this subject, the first of the above mentioned articles contains PERTY. The people years after the following provisions : "The people of this state will not sue or implead any person for, or in respect to, any lands, tenements, or hereditaments, or for the issues or profits thereof, by reason of any right or title barred in 20 of the said people to the same; unless, 1. Such right or title title accrued, shall have accrued within twenty years before any suit, or other proceeding, for the same shall be commenced: or, unless, unless they 2. The said people, or those from whom they claim, shall have ved the rents received the rents and profits of such real estate, or of some part thereof, within the said space of twenty years." have recei &c; liberties and franchi As the state is barred, so are those "The last preceding section shall not extend to any suit or ses excepted. prosecution for, or in respect to, any liberties or franchises." "No action shall be brought for, or in respect to, any lands, tenaments or hereditaments, by any person claiming by virtue of any letters patent, or grants from the people of this state, unless the same might have been commenced by the people of this state, as herein specified, in case such patent or grant had not been issued or made." claiming under it. Suits for lands where 194 "When letters patent, or grants, of any lands or tenaments, the grant or shall have been issued or made by the people of this state, and patent from the state has the same shall be declared void by the judgment or decree of been ad judged void, some competent court, rendered upon a suggestion of conceal barred in 20 years after the judg ment. Suits barred unless plain be ment, or wrongful detaining, or defective title, in such case, an action for the recovery of the premises so conveyed, may brought, either by the people of this state, or by any subsequent patentee or grantee of the same premises, his heirs or assigns, within twenty years after such judgment or decree was rendered; but not after that period."5 "No action for the recovery of any lands, tenements, or tiff &c.seized hereditaments, or for the recovery of the possession thereof, within 20 shall be maintained, unless it appear that the plaintiff, his an or possessed years. 22 R. St. 292. P. 3. Ch. 4. T. 2, A.1. s. 1. 3 Ib. 293. s. 2. 4 Tb. s. 3. |