committed waste therein, to recover not only the land wasted, which would make it merely a real action; but also treble damages; in pursuance of the statute of Gloucester, 6 Ed. 1. c. 5. which is a personal recompence; and so both being joined together, denominate it a mixed action. 3 Black. 118.

Parties to action dying.] Many personal actions die with the person. Thus if a lessee for years commit waste, and dies, action of waste may not be had against his executor or administrator, for waste done by the deceased. And where a keeper of a prison permits one in execution to escape, and afterwards dieth, no action will lie against his executors. But this must be understood, of that kind of keeper, to whom the prison actually belongs, as the marshal,the warden of the Fleet, not of a gaolor who acts as servant to a sheriff, for in such case, the death of the gaoler, is not any bar to an action against the sheriff, to whom in fact, the prison actually belongs. So in assault, battery, slander, or other personal injuries; if either he that is the aggressor, or the party injured, die, the action is gone. But in other actions it is

otherwise, for they survive.

ACTIONS local.] Actions real and mixed, ejectment, waste, trespasses, quare clausum fregit, &c. are to be laid in the same county where the land lieth.

transitory.] Personal and transitory actions, as debt, detinue, assault and battery, &c. may be brought in any county, (except it be against officers of places, &c. by statute 21 Jac. 1.) Co. Lit. 282. Or against officers acting under particular acts of parliament, which frequently direct actions against them, to be laid in the respective counties, where the facts happen.

If the defendant is desirous to change the venue in transitory actions he must move the court on affidavit, that if the plaintiff hath any cause of action, such cause accrued in the county of, &c. and not where the plaintiff hath laid it, &c. and such notion must be made before issue joined; for by joining is sue, he agrees with the plaintiff, as to the manner of bringing the action, and though the court seldom refuses on such an affidavit to change the venue, yet if, before or after the motion made, the plaintiff will enter into a rule, to offer material evidence, in the county where he laid his action, the cause will be tried there. 1 Sid. 44. 2 Salk, 669, 670.

But though the court, on application, seldom refuses to change the venue, yet there are cases in which the judges have refused; as where a peer of the realm brings an action of scandalum magnatum, the court will not change the venue; because a scandal raised on a peer reflects on him through the whole kingdom. 2 Mod. 215. 1 Lev. 56. S. P. A serjeant at law, barrister, attorney, or any other privileged person, whose attendance is

necessary at Westminster-hall, may lay his action in Middlesex, though the cause of action accrued in another county; and the court, on the usual affidavit, will not change the venue. 2 Salk. 668, 670. 2 Show. Rep. 176, 177, 242. S. P.

Limitation of actions.] Actions are likewise limited, and cannot be determined except within a certain time.

Thus by statute 32 Hen. 8. c. 2. A writ of right for recovery of lands is to be brought within sixty years.

By 21 Jac. 1. c. 16. Writs of formedon for any title to lands in esse, are to be sued within twenty years.

Actions of debt, on the case, of account, detinue, trover, and trespass, are to be brought within six years.

Of assault and battery within four years.
And slander within two years.

But the right of action in these cases is saved to infants, feme coverts, and persons beyond sea. And on a fresh promise the time limited may be enlarged; also the taking out and filing of a writ, is a good commencement of an action to avoid the statute of limitations, if continuances be entered, to the time of declaring. 1 Lill. 19.

Joint actions] are where several persons are equally concerned, and the one cannot bring the action,or cannot be sued, without the other.

Several actions] are where persons are to be severally charged, as on trespass committed by many it is several. 2 Leon 77.

Parties to actions.] In all actions there must be a person able to sue; the party sued must be one sueable for the thing laid; and the plaintiff is to bring his right and proper action which the law gives him for relief. 1 Shep. Abr. 20.

A man attainted of treason or felony, convict of recusancy, an outlaw, excommunicated person, convict of præmunire, an alien enemy, &c. cannot bring an action, till pardon, reversal, absolution, &c. But executors or administrators, being outlawed, may sue in the right of the testator or intestate, though not in their own right. A feme covert must sue with her husband; and infants are to sue by guardian, &c. Co. Lit. 128. Actions may be brought against all persons, whether attainted of treason or felony, a convict recusant, outlawed, and excommunicate, &c. and a feme covert must be sued with her husband. 6 Rep. 3. Salk. 5.

Action on the case] is a general action given for redress of wrongs and injuries, done without force, and not particularly provided against by law, in order to have satisfaction for damage: and in actions upon the case, the like process is to be had as in actions of trespass or debt. 19 H. 7, c. 9. Terms de Ley 17.

In all cases where a man has a temporal less, or damage by the wrong of another, ke

may have an action upon the case to be repaired in damages. But the particular damage must be specially alleged.

This action lies in a great variety of instances, of which the chief are,

1. Action on the case for words: which is brought for words spoken or written which affect a person's life, reputation, office, or trade, or tend to his loss of preferment, in marriage or service, or to his disinheritance, or which occasion him any particular damage. Comyn's Dig.

2. Action on the case likewise lies upon an esumpsit or undertaking; and such actions are founded on a contract either express or implied by law, and gives the party damages in proportion to the loss he has sustained by the violation of the contract. 4 Co. 92. Moore 667.

3. An action on the case likewise lies against carriers and others upon the custom of England: thus, if a person deliver goods to a common carrier, to carry them to a certain place, and he loseth them, action upon the case lies against him; for by the common custom of the realm he ought to carry them safely: it is the same of a common hoyman or lighterman, who is a water-carrier of goods; but goods in this case may be thrown overboard in a tempest, to preserve the passenger's lives in the lighter, &c. and no action lies. 2 Bulat. 280. And if a common carrier is robbed of goods, he is chargeable for them, because he had bis hire, and took upon himself the safe delivery of the goods. 1 Danv. 13.

So also a common inn-keeper is chargeable for goods stolen in his house, and though the inn-keeper be not of sound memory, it is said action lies against him: but if the innkeeper be an infant, no action will lie against such infant; but the owner must be a guest. Moor 177. Latch 127. 8 Rep. 33. And if an inn-keeper refuse to entertain his guest, action on the case may be brought against him. Dyer 158.

This action also lies for deceit in contracts, bargains, and sales: as if a man sell by false weights or measures, or sells wine or other things, knowing the same to be corrupt, as good and not corrupt, though without warranty, action lies. Dyer 75. 4 Rep. 18.

Cro. Jac. 270. Danv. 173.

So if a man sells a horse, and warrants him to be sound, if he be not, action on the case lies. But if he bath at the time visible infirmities, which the buyer may see, action on the case will not lie. Yelv. 114. Cro. Jac. 675.

If a surgeon neglects his patient, or applies anwholesome medicines, whereby the patient is injured, this action lieth. 3 Black. 122.

And if a counsel retained to appear on such a day in court, doth not come, by which the canse miscarries, action lies against him: so if after retainer, he become of counsel to

the adversary against the plaintiff. 1 H. v. 18.

For stopping up a water-course or way, breaking down a party wall, stopping up ancient lights, and for any private nusance to a man's water, light, or air, whereby a person is damnified, this action lieth. Cro. Eliz. 527. Yelv. 159. Where a smith promises to shoe my horse well, if he pricks him, action on the case lies; and so when he refuses to shoe him; on which I travel without, and my horse is damaged, action lies: so where goods pawned are not delivered, on offering the money. Ibid.

Where any one personates another,cheats at gaming; or where a surety is not saved harmless, this action lieth. 2 Inst. 193. So for the excessive use of an horse. Cro. Eliz. 14. 8 Rep. 146. For keeping a dog accustomed to bite sheep, if the owner know the vice of the dog. But not if it be without his consent, and he did not know the dog was accustomed to bite. 1 Danv. Abr. 19. Hetl. 171.

Action on the case will lie against a gaoler for putting irons on his prisoner; or putting him in the stocks, or not giving sufficient sustenance to him, being committed for debt. F. N. B. 83. Also masters may have action against servants, stewards or bailiffs, for any special abuse or negligence. Also for taking or enticing them away. Lane 68. Cro. Eliz. 777. 1 Shep. Abr. 52, 59.

If I trust one to buy a lease or other thing for me, and he buyeth it for himself, this action lies against him. Bro. 117.

Where a man is disturbed in the use of a seat in the church; the keeping of his courts; in taking the profits of his office; action on the case will lie. Bendl. 89. Lib. Intr. 5. Moor 987. And for setting up a new mill on a river, to the prejudice of another who hath an ancient mill, an action will lie. Lib. Intr. 9. Action on the case likewise lies for and against commoners, for injuries done in commons; as for surcharging. Style 164. Digging pits or the like. Sid. 106. Cro. Jac. 165. 2 Inst. 474.

Action on the case may likewise be brought for malicious prosecutions: where a suit is without ground, and one is arrested, action on the case lies for unjust vexation: and for falsely and maliciously arresting a person, for more than is due to the plaintiff, whereby the defendant is imprisoned, for want of bail; or if it be on purpose to hold him to bail, action on the case will lie, after the original action is determined. 1 Lev. 275. 1 Salk. 15.

Actions on the case likewise lie for conspiracy, escape, and rescous, nusances, and the like, which see under their proper titles.

ACTION upon a statute.] Upon every statute made for the remedy of any injury, mischief, or grievance, an action lies by the party grieved, either by the express words of the statute, or by implication; and such action shall be either by an action for a recompence

to the party in damages, or by way of prohi-
bition by writ, for that purpose. 2 Inst. 55.
118. 10 Co. 75 b. Comyn's Dig.
And if a statute gives a remedy in the af-
firmative (without a negative expressed or
implied) for a matter which was actionable by
the common law, the party may sue at the
common law as well as upon the statute, for
this does not take away the common law. 2
Inst. 200.

But if a man brings his action at the common law, he waives his remedy by the statute. 4 Rol.

ACTION upon a statute, qui tam.] Actions qui tam, which are sometimes called popular actions, are such as are given by acts of parliament, which impose a penalty and create a forfeiture for the neglect of some duty, or commission of some crime, to be recovered by action or information, at the suit of him who prosecutes, as well in the king's name as his own. 1 Bac. Abr. tit. Ac. 9 b. But without such penalty be given no person can sue, for the whole penalty goes to the king. 2 Hawk. P. C. 377.

In those actions or informations, the party who prosecutes has, by commencing his suit such an interest in the penalty, that the king cannot suspend or discharge the suit, as to the part, he the plaintiff, is entitled to, 2 Hawk. P. C. 392.

And wherever a statute prohibits a thing, as being an immediate offence against the public good in general, under a certain pe. nalty, and the penalty or part of it, is given to him who will sue for it, any person may bring such action or information and lay his demand qui tam. Co. Ent. 375. Lutw. 133. 138. Dyer 95. 346. and 139.

But an act which gives a remedy only to the party grieved, is not to be considered as a penal act; for the king cannot discharge it, or proceed in it after the death of the party. Cas. temp. Hard. 412. Andr. 115. 2 Ter. Rep. 148. Wood's Inst. 535. Show. 354.

By stat. 21 Jac. 1. c. 4. All offences against penal statutes prosecuted by any common informer (except in recusancy, maintenance, customs, transporting gold or silver, or munition wool or leather) shall be determined by action, plaint, bill, information, or indictment before the justices of assise, of nisi prius, of oyer and terminer, gaol delivery, or before justices of the peace having power to hear and determine the same, and shall be laid in the proper county.

Although by the above stat. of 21 Jac. 1. no action of debt or information or other suit whatever can be brought on any penal statute in any of the courts at Westminster Hall for an offence not excepted by the statute, yet when a subsequent statute gives an action of debt or any other remedy for the recovery of a penalty in any court of record, generally, it so far impliedly repeals the restraint of 21 Jac. 1. and consequently leaves the informer at his liberty to sue in the courts

of Westminster Hall. 1 Buc. Abr. tit. Ac.

9 t.

Penal actions, though the judgment may in some cases be followed by legal disabilities, are considered as civil proceedings; they are founded upon the implied contract, which every one is under by the fundamental constitution of government, to obey the directions of the legislature, and to pay the forfeiture incurred by his disobedience to such persons as the law requires; therefore the affirmation of a quaker is admissible in them; the proceedings may be amended and a neto trial may be had after a verdict for the defendant. 3 Black. 159. 1 Str. 136. 2 Str. 1227. 1 Wils. 124. 4 Ter. Rep. 753.

An informer on a popular statute shall in no case whatsoever have his costs, unless they be expressly given him by such statute, for the common law gives costs in no cases, and the stat. of Gloucester only gives costs where damages are recovered, which a penalty cannot be said to be. 1 Bac. Abr. Ac. g. h.

But wherever a statute gives a certain penalty to the party grieved, he is entitled to his costs by the stat. of Gloucester, otherwise it would be in vain for him to sue, since in many cases the costs would exceed the penalty. Ibid.

But by 18 Eliz. c. 5. and 27 Eliz. c. 10. If any informer shall delay his suit, or discontinue, or become nonsuit, or have the trial passed against him, he shall pay the defendant his costs.

ACTION PREJUDICIAL, (otherwise called preparatory, or principal) is an "action which arises from some doubt in the principal; as in case a man sues his younger brother for lands descended from his father, and it is objected against him that he is a bastard; now this point of bastardy is to be tried before the cause can any further proceed: and therefore it is termed prejudicialis, quia prius judicanda. Bract. lib. 3. c. 4. num. 6. Cowel. Blount.

ACTION OF A WRIT, is a phrase of speech used; when one pleads some matter, by which he shews the plaintiff had no cause to have the writ he brought, yet it may be that he may have another writ or action for the same matter. Such a plea is called a plea to the action of the writ; whereas, if by the plea it should appear that the plaintiff hath no cause to have an action for the thing demanded, then it is called a plea to the action. Cowel. Blount. Termes de la Ley. ACTIONARE, i. e. In jus vocare, or to prosecute one in a suit at law. Thorn's Chron. Cowel. Blount.

ACTON BURNEL. A statute so called, made 13 Ed. 1. ann. 1285. ordaining the statute merchant for recovery of debts: it was so termed from a place named Acton Burnel, a castle in Shropshire, where it was made. Cowel. Blount.

ACTOR, the proctor or advocate in civil courts or causes. Actor dominicus, was often