which remedies are given by the twenty-third chapter of the second title, are injuries of a peculiar nature, and partake of a criminal character. Actions for the above enumerated injuries partake of the nature of criminal prosecutions. They are exceptions to the rule for the measure of damages laid down in the last section, and a jury in estimating damages in such cases, may take into consideration the misconduct of the defendant, and increase the damages at their discretion for the purpose of punishing him. Other personal injuries are not exceptions to the rule in the last section.

53. In every case of an injury, the condition of the defendant is to be preferred; that is, the facts must be proved by the plaintiff. Where the right or the wrong are equal, the condition of the defendant or the party in possession of the thing in dispute, is to be preferred.

54. The enumeration of particular injuries, except those to reputation in some of the preceding sections, shall not be construed to exclude from the class of injuries, any particular case not enumerated, which amounts to an injury agreeably to the principles of the first six sections, or the tenth section. The first six sections and the tenth section, contain general principles; which the others are designed to explain, apply or restrain. But they are only to be restrained by express words, not by mere omissions.

55. All the provisions of this title are to be considered as annexed to, incorporated in, and controlling all the provisions of the second title, except those contained in the twenty-third chapter:

TITLE II.

OF REMEDIES.

CHAPTER I.

OF ACTIONS.

1. An action is a mode of proceeding to obtain redress of an injury by means of a court of justice.

2. The party who seeks redress in an action, is called the plaintiff, the party against whom the action is brought is called the defendant.

3. Actions are divided into three general classes,—where the injury for which redress is sought is a breach of contract, the action is said to be an action growing out of contract; where it is an injury of any other description, the action is said to grow out of a wrong. The third class, consists of actions growing out of judgments in former actions.

4. Actions growing out of contracts, are subdivided into those in which a specific performance of the contract is sought, and those which are intended to recover damages for the non-performance of the contract.

5. There are three actions growing out of contract, in which the specific performance of a contract is sought,debt,-specific performance of contracts, other than for the payment of money,—and injunction.

6. An action of debt is an action to enforce the payment of a sum of money, which the defendant has contracted to pay to the plaintiff.

7. An action for the specific performance of a contract, other than for the payment of money, is an action in which it is sought, to compel a defendant to do any act other than the payment of money, in pursuance of a contract into which he has entered. It may be briefly called an action of specific performance.

8. An action of injunction, is an action in which the plaintiff seeks to compel the defendant, to permit matters to remain in the present state, either in pursuance of a contract, or because of a right growing out of the general principles of law. It is classed with actions founded on contract as a matter of convenience, although it is capable of being applied in cases, where the wrong is not, precisely, a breach of any contract.

9. An action to recover damages for the breach of a contract, is an action in which the plaintiff seeks to obtain from the defendant a sum of money, as damages or compensation for the injury he has sustained by reason of the defendant not performing some contract, into which he, or some person under whom he claims, or whom he represents, had entered. It may be briefly called an action of damages.

10. Whenever a person is bound under a penalty, that himself or any other person, shall do or omit any act, and the obligation is violated, or whenever any person is bound in any sum of money, the obligation to be released or void, on the omission or doing of any act by himself or any other person, in case of a breach of the contract or condition, an action of contract, shall be the proper remedy. In such action the plaintiff may recover the amount of the damages sustained by him in consequence of the act or omission complained of, and no more, even although the penalty or sum in which the party is bound, may exceed such amount of damages. Against a surety, or the principal party, if sued with the surety, the plaintiff can never recover more than the penalty or sum in which such surety was bound: but he may have a separate action against the principal, either of contract or damages, according to the circumstances, and recover the excess of his damages beyond the penalty.

11. There are three actions growing out of wrongs,replevin, ejectment,-and the action to recover damages for a wrong.

12. Replevin is an action to recover the possession of moveable property, wrongfully withheld by the defendant from the plaintiff.

13. Ejectment is an action to recover possession of real or immoveable property, wrongfully withheld by the defendant from the plaintiff. A widow may recover her dower in ejectment.

14. The action to recover damages for a wrong, is an action in which the plaintiff seeks to obtain from the defendant, a sum of money, as damages or compensation for the injury he has sustained, by reason of some act of the defendant. It may be briefly called an action of damages. It is the action which lies for every injury, for which there is no other remedy.

15. Besides the actions growing out of contracts and wrongs, there is another action of a peculiar nature, growing out of a judgment in some former action. It is called an action of enforcement.

16. Enforcement is an action, in which the plaintiff seeks to have enforced, some judgment of the court formerly rendered, but which, from lapse of time, or change of parties, cannot be enforced by immediate execution.

17. Where the cause of action grows out of a contract, and the plaintiff intends to proceed against several defendants upon the same contract, he must sue them all in one action, unless one or more of them, live out of the jurisdiction of the court. He is not obliged to join the representatives of deceased persons with living original parties. He may sue each of such representatives separately.

18. No action of ejectment, can be commenced more than twenty years after the cause of action has accrued; nor any action of enforcement more than twelve years after the rendition of the judgment on which it is founded. Actions for the violation of written contracts, must be commenced within seven years; actions for personal injuries within one year; and all other actions within three years after the cause of action accrued, and not after. This section is to furnish no defence, unless expressly relied on in the defendant's answer. If either of the parties be absent from the colony during any part of the time, or be under age, or insane during any part of the time, such part of the time shall not be reckoned, unless in the case of personal injuries committed without the limits of the colony.

19. For every personal injury done to a married woman, or a woman who afterwards marries, her husband shall be entitled to an action, which shall survive to her if he die before it be brought to a conclusion, and she may be made a party in his stead. For every personal injury done by a married woman, or a woman who afterwards marries, an action shall lie

against her husband, which may be revived against her, and she be made a party in his stead, if he die before it be brought to a conclusion. In either case, if the husband die before the action be brought, the action may be brought by or against the surviving wife.

20. In every form of action, where the right or the wrong is equal, the condition of the defendant or person in possession of the thing in dispute, is to be preferred.

CHAPTER II.

OF THE MODE OF COMMENCING

ACTIONS AND BRINGING

DEFENDANTS INTO COURT.

1. Actions are commenced, and defendants brought before the courts, by means of writs.

2. A writ is a written or printed paper, authenticated by the seal of the court, and signature of the clerk, directed to the sheriff or other person, commanding him to do, or abstain from doing, some act.

3. All actions, except injunction and replevin, shall ordinarily be commenced by a writ of summons, directed to the sheriff, requiring him to summon the defendant or defendants to appear at a day appointed, to answer the complaint of the plaintiff or plaintiffs, without specifying such complaint. The writ of summons shall also contain a clause requiring the sheriff to have the writ before the court, at the day appointed for the appearance of the defendant or defendants. It shall only be issued on the written direction of the party or his agent.

4. It shall be the duty of the sheriff to produce to the court the writ of summons, with his return endorsed thereon, either that he has summoned, the person or persons directed in the writ of summons to be summoned, or that they cannot be found, as the fact may be. There may be different returns as to different persons named in the same writ.

5. If the sheriff return that the defendant or defendants, or any of them, cannot be found, a writ of re-summons may be issued as to such defendant or defendants.

6. A writ of re-summons, differs from a writ of summons only by the insertion therein, after the word 'summon' of the