lent or let to hire; and against attorneys, carriers, wharfingers, innkeepers, &c. And where cattle or goods are wrongfully taken and detained, he may bring trespass vi et armis, replevin, trover, or detinue; or, if they are converted into money, he may waive the tort, and bring assumpsit for money had and received.(6) But the plaintiff, having once made his election, cannot afterwards bring another species of action for the same cause, either whilst the former is depending, or after it has been determined. And it is a rule, that the party applying for an information shall be understood to have made his election, and waived his remedy by action, whatever may be the fate of the motion for the information, unless the court think fit to give him leave to bring an action. (c) The law is said to abhor circuity of action: and therefore if the obligee of a bond covenant generally not to sue upon it, this shall operate as a release, and may be pleaded in bar of the action; for if it operated only as a covenant, it would produce two actions. (d) So where, to debt on bond for 2001., the defendant pleaded, that after the making of the bond, the plaintiff by indenture covenanted, that if the defendant should at such a day pay 1007., the obligation should be void, and alleged that he paid the money at the day; and upon demurrer, it was insisted for the plaintiff, that the indenture, being made after the bond, could not be pleaded in bar; but all the court held, that the defendant might well plead it in bar, without being put to the action of covenant, by circuity of action.(e) But if A. and B. are jointly and severally bound to C., who covenants with A. only, that he will not sue him, this is not construed to be a release, for there is still a remedy on the bond against B.:(f) And so where a man becomes bound to another, who covenants not to put the bond in suit before Michaelmas, and the obligee nevertheless brings debt on the bond before that time, the defendant cannot plead the covenant in bar, but must have recourse to an action upon it.(g) It is a rule, that several counts may be joined in the same declaration, *for different causes, provided they are of the same [ *11 ] nature.(a) Thus, in actions upon contract, the plaintiff may join as many different counts as he has causes of action, in account, so likewise in assumpsit, or in covenant, debt, annuity, or scire facias: And there is a case where it was holden, that debt and detinue might be joined in the same action.(b) In like manner, in actions for wrongs independently of contract, the plaintiff may join as many different counts as he has causes of action in case, or in detinue, replevin, or trespass: And he may join trespass and battery of his servant, per quod servitium amisit, (c) or (b) Com. Dig. tit. Action, M. And see Petersdorff on Bail, 40, 41, as to the expediency of adopting particular forms of action, in order to obtain the security of bail. (e) Rex v. Sparrow and another, H. 28 Geo. III. K. B. And see further, as to the election of actions, Com. Dig. tit. Action, M. 1 Chit. Pl., 4 Ed. 188. (d) 1 Durnf. & East, 446. (e) Cro. Eliz. 623. (f) 2 Salk. 575. 1 Ld. Raym. 690. 12 Mod. 551, S. C. 8 Durnf. & East, 168. (g) And. 307, pl. 316. Cro. Eliz. 352, S. C., and see further, as to circuity of action, 2 Wms. Saund. 5 Ed. 149. (2.) 4 Durnf. & East, 470. (a) 2 Wms. Saund. 5 Ed. 117, a. (b) Bro. Abr. tit. Joinder in action, 97, Gilb. C. P. 6. 1 Bac. Abr. 30. But trover and detinue cannot be joined. Willes, 118. And in order to join debt and detinue, it seems they must be both founded on contract. (e) Cro. Jac, 501. Aleyn, 9. 1 Bac. Abr. 30. 2 New Rep. C. P. 476, ante, 4. trespass and rescue, (d) in the same declaration. But, with the exceptions before mentioned, counts in action upon contract cannot be joined with counts for wrongs independently of contract; (e) nor can counts in any one species of these actions, be joined with counts in another. In a declaration on the case, one count stated, that the plaintiff, at the request of the defendant, had caused to be delivered to him certain swine, to be taken care of, for reward, by defendant for plaintiff; and in consideration thereof, defendant undertook and agreed with plaintiff, to take care of said swine, and re-deliver the same on request; and the court held, on motion in arrest of judgment, that this was a count in assumpsit, and could not be joined with counts in case.(f) Wherever several counts may be joined in the same declaration, 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. And hence, rules have been framed, in order to determine what different counts may or may not be joined in the same declaration, from the similarity of the process, the plea, and the judgment. In one case, it was said by Lee, Ch. J. that the true way to judge of this matter is, that whenever the process and judgment are the same on two counts, they may be joined; otherwise they cannot.(g) But it being found that the similarity of the process afforded but a very fallible criterion, there being the same process of summons, attachment and distress, in actions of account, covenant, debt, annuity, and detinue, and the same process of attachment and distress in actions of assumpsit, case, and trespass, none of which can be joined, it was said in a subsequent case, by Wilmot, Ch. J. that the true test to try whether two counts can be joined in the same declaration, is to consider and see whether there be the same judgment on both; and if there be, he thought they might be well joined.(h) But in a later case, the court of Common Pleas were of opinion, that the rule or test [*12] to try whether two counts can be joined, as laid down in the *for mer one, was rather too large, and not universally true:(a) and the reason for this opinion probably was, that there is the same judgment, for damages and costs, in actions of assumpsit, covenant, case and trespass, and the same entry of a misericordiâ in the three first of these actions, and yet no two of them can be joined. Therefore, in a still later case, a new criterion was substituted; and it was said by Buller, J. to be universally true, that wherever the same plea may be pleaded, and the same judgment given, on two counts, they may be joined in the same declaration.(6) But even this rule is not altogether unexceptionable; for it is clear that case and trespass cannot in general be joined, although the same plea of not guilty of the premises will serve for both, and there is the same judgment in each, for damages and costs: and though in general the judgment in trespass is quod capiatur, and in actions upon the case, quod sit in misericordia,(e) yet sometimes there is an entry of a capiatur in case, as well as in trespass.(d) It should also be observed, that this rule is merely affirm f (d) 2 Lutw. 1249. 1 Ld. Raym. 83. There is also a writ in the register, de uxore abductâ cum bonis viri. F. N. B. 89. But this writ has been said to be against law. 2 Salk. 637. (e) 5 Barn. & Ald. 652. 1 Dowl. &. Ryl. 282, S. C. (f) 6 Barn & Cres. 268. (g) 1 Wils. 252. (h) 2 Wils. 321. (b) 1 Durnf. & East, 276, and see 2 Wms. Saund. 5 Ed. 117, e. f. (c) 1 Ld. Raym. 273. 2 Wms. Saund. 5 Ed. 117, c. (d) 1 Rol. Abr. tit. Amercement, E. (a) 3 Wils. 354. ative; and it does not hold é 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; (e) and in debt and detinue, which may also be joined, not only the pleas, but the judgments are different.(f) The nature of the causes of action therefore should be attended to, in order to determine whether different counts may or may not be joined in the same declaration: and, with the exceptions which have been noticed, it may safely be 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. In order to join several counts however, in the same declaration, it is necessary that they should be all of them in the same right;(g) 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;(h) and such misjoinder of action is a defect in substance, and therefore bad on a general demurrer, or in arrest of judgment, or on a writ of error.(i) But a count for money had and received by the defendant to the use of an executor,(k) or for money paid by the plaintiff as such, to the use of the defendant,(7) may be joined with a count on a promise to the testator. So, a count upon a promise to the plaintiff as administratrix, for *goods sold and delivered by her after the [*13 ] death of the intestate, may be joined with a count upon an account stated with her as administratrix; for the damages and costs when recovered with the assets:(a) and it is a rule, that where the transaction has been entirely with executors or administrators in their representative character, and not in their personal character, or altogether in their personal character, the counts may be joined.(b) Three executors having ordered goods to be sold as the goods of their testator, afterwards sued for the amount, without styling themselves executors, and without joining a fourth executor, who was named in the will; and the court held they might recover.(c) An executor or administrator may declare as such, on an account stated by the defendant, with the testator or intestate, or with the plaintiff, of moneys due to him in his representative character. (d) And where a testator or intestate has stated an account, it is usual to declare for the balance, against his executor or administrator. Or, if an executor or administrator state an account of moneys due from the testator or intestate,(e) or, as it seems, of moneys due from himself in his representative (e) Cro. Car. 316. 1 Vent. 366. 1 Lutw. 43. (f) 5 Mod. 9. 1 Wils. 248. (g) 2 Wms. Saund. 5 Ed. 117, c. d. e. 1 Wils. 171, S. C. 3 Durnf. & East, 659. 4 Durnf. & East, 277. 3 Bos & Pul. 7. 2 Wms. Saund. 5 Ed. 117 c. (h) 1 Salk. 10. 2 Ld. Raym. 841. 2 Str. 1271. (i) 4 Durnf. & East, 347. 1 H. Blac. 108. 2 Bos. & Pul. 424. 5 Barn. & Ald. 652. 2 Chit. Rep. 343. 1 Dowl. & Ryl. 282, S. C. but see 1 New Rep. C. P. 43. 6 East, 333, S. C. in Error. (k) 3 Durnf. & East, 659, but see 2 Wms. Saund. 5 Ed. 117, c. (2) 3 East, 104. (a) 6 East, 405. 2 Smith R. 410, S. C., and see 5 Price, 412. 7 Price, 591, S. C. in error. (b) Per Le Blanc, J. 2 Smith R. 416. (d) 2 Lev. 165. 1 Durnf. & East, 487. 6 East, 405. Marsh. 147, S. C. 8 Moore, 146. 1 Bing. 249, S. C. (e) 1 H. Blac. 102. VOL. I.-2 (c) 2 Bing. 177, 9 Moore, 340, S. C. character, (f) he may be declared against as such, for what appears to be due. And, in any of the above cases, other causes of action, in the same right, may be joined in the declaration.[1] But a count upon an account stated with the plaintiffs, executors, &c., not saying as executors, &c., cannot be joined with counts on promises to the testator; for it is no allegation that the promises were made to the plaintiffs in their representative capacity; and, under such a count, proof might be given of an account stated with them individually.(g) And a count in assumpsit against husband and wife,, who was administratrix with the will annexed, upon promises by the testator to pay rent, cannot be joined with counts upon promises by the husband and wife, as administratrix, for use and occupation by them after the death of the testator. (h) In an action by the assignees of a bankrupt, the plaintiffs may join counts for money lent and advanced, and money paid by them, as assignees, with counts for money had and received to their use, and upon an account stated with them, in that character.(i) And the assignees under a joint commission against A. and B. may, in an action to recover a debt due to A., describe themselves in the declaration, as assignees of A. alone.(k) So, where the plaintiffs sued as assignees of A. and B. and also as assignees of C. for a joint demand, due to all the bank[ *14] rupts, the declaration *was holden good, on a motion in arrest of judgment. (a) The assignees under a joint commission against two partners, may recover, in the same action, debts due to the partners jointly, and debts due to them separately.(6) But the assignees of A., a bankrupt, and also of B., a bankrupt, under separate commissions, cannot recover, in the same action, a joint debt due from the defendant to both the bankrupts, and also separate debts due to each; and if in such an action the jury have assessed the damages severally, on the separate counts, the court will arrest the judgment on those counts which demand the debts due to each bankrupt separately.(e) And the assignees of A. and B., bankrupts, under a joint commission, cannot maintain an action for money had and received to the use of the bankrupts, or to their own use, if it be proved that one of them only had committed an act of bankruptcy; neither are they entitled to recover the separate moiety of one, under such commission.(d)(A.) (f) 7 Taunt. 580. 1 Moore, 305, S. C., but see 1 H. Blac. 108. 2 Bos. & Pul. 424. 2 Wms. Saund., 5 Ed. 117, d. (g) 5 East, 150, and see 2 Bos. & Pul. 424. 5 Moore, 282. 2 Brod. & Bing. 460, S. C. (h) 3 Barn. & Ald. 101, and see 1 Taunt. 212. 2 Chit. Rep. 697. (i) 5 Maule & Sel. 205; 2 Chit. Rep. 325, S. C. (k) 2 Stark, Ni. Pri. 27, and see 8 Taunt. 202. (a) 3 Durnf. & East, 779. (b) 4 Bing. 115. (c) 3 Durnf. & East, 433, and see 2 Moore, 3. 8 Taunt. 134, S. C. (d) 8 Taunt. 200. 2 Moore, 122, S. C. And see further, as to the joinder of actions, 2 Wms. Saund., 5 Ed. 117, a, b, c, d, e, f. 1 Chit. Pl., 4 Ed. 179. Steph. Pl. 279, 80. 3 Barn. & Ald. 208. 1 Chit. Rep. 619, S. C., and the cases there cited. [1] But a count in assumpsit, for money had and received by defendant as executor, to the use of the plaintiff, cannot be joined with a count for money due to the plaintiff from defendant as executor, upon an account stated with him of money due from him as executor. 7 Barn. & Cres. 444. 1 Man. & Ryl. 180, S. C. But it seems that the latter count may be joined with a count for money paid by the plaintiff, to the use of the defendant as executor. Id. Ibid. (A) As a general principle, the issuing or suing out of a writ is considered the commencement of an action. Carpenter v. Butterfield, 3 Johns. Cases. 145. Lowry v. Lawrence, 1 The limitation of personal actions is regulated by several statutes. By the 31 Eliz. c. 5, § 5, "all actions brought for any forfeiture upon a Caines, 69. Brace v. Morgan, 3 Caines, 133. Bird v. Carilat, 2 Johns. 342. Cheetham v. Lewis, 3 Johns. 42. Fowler v. Sharpe, 15 Johns. 326. Ross v. Luther, 4 Con. 158. Hogan 7. Cuyler, 8 Con. 203. Parker v. Colcord, 2 N. Hamp. 36. Society, &c. v. Whitcomb, lb. 227. Ford v. Phillips, 1 Pick. 202. Reed v. Brewer, Peck, Tenn. Rep. 276. Thompson v. Bell, 6 Monr. 560. Day v. Lamb, 7 Verm. 426. Cox v. Cooper, 3 Ala. 256. Chiles v. Jones, 7 Dana, 545. Whitaker v. Turnbull, 3 Harr. 172. Teazle v. Simpson, 1 Scam. 30. Swift v. Crocker, 21 Pick. 241. Bunker v. Shed, 8 Metef. 150. Swisher v. Swisher, Wright, 755. Caldwell v. Heilshu, 9 Watts. & Serg. 51. Pyndell v. Maydwell, 7 B. Mon. 314. The date of a writ is, prima facia, the commencement of an action, though the date is only a day or two before the action would be barred by the statute of limitations, and though the writ is not served until several weeks after its date, and no reason is shown for the delay. Bunker v. Shed, 8 Meeft. 150. The date of the writ is prima facie, but not conclusive evidence of the true time when the action was commenced. Johnson v. Farwell, 7 Greenl. 373. Day v. Lamb, 7 Verm. 426. To prevent the bar of the statute of limitations, filing the writ in good faith will be deemed a commencement of the action, although it is not served till several days afterwards, Gardner v. Webber, 17 Pick. 407. Haughton v. Leary, 3 Dev. & Batt. 21. Boughton v. Bruce, 20 Wend. 237. It is not necessary, in order to save the statute of limitations, to show that the writ was returned, or actually delivered to an officer; it is sufficient if it was sent to him with a bona fide intention that it should be served. Burdick v. Green, 18 Johns. 14. Bunker v. Shed, 8 Metcf. 150. There may be some uncertainty or ambiguity in the term "suing out the writ," but there can be no doubt that the delivery of it to an officer, or leaving it at his house, for the purpose of being executed, is a commencement of the suit. Bronson v. Earl, 17 Johns. 65, 11 Johns. 473. Field v. Jacobs, 12 Metcf. 110. Where a writ bears teste of the day when it was actually made, the day of the teste must be considered as the day of the commencement of the action. But the time of the day of the teste when the writ is actually made, is not always to be considered as the true time of the commencement of the action. Robbinson v. Burleigh, 5 N. Hamp. 225. Thus when a writ is made, in a case where a demand and refusal were necessary to give a right of action, and the demand is subsequently made, and the writ then served, the action is commenced when the plaintiff elected to use his writ, and directed the officer to serve it. Graves v. Ticknor, 6 N. Hamp. 537. The issuing of a writ of summons, although returned not served, is a suit brought; and would release the guarantor of a bond who had stipulated in consideration of total forbearance. Caldwell v. Heilshu, 9 Watts & Serg. 51. A suit is not deemed commenced, under the code of precedure in New York, so as to institute a proceeding under the act to abolish imprisonment for debt, before the summons is served on the defendant, there being neither personal service nor publication. Lee v. Averell, 1 Sandf. Sup. Ct. R. 731. It seems, that a suit is commenced, so as to support the plea of lis pendens in another suit for the same cause of action, when the writ is sued out and an attachment of property made thereon. Bennett v. Chase, 1 Foster, N. H. 570. As a general rule, a suit is not commenced, where the service of the summons is by publication, until the expiration of the time for publication prescribed by the code. Yet, where an attachment has been issued against the property of the defendant, and his goods have been taken under it, after which he dies, the court acquires sufficient jurisdiction to put the suit in such a condition that the plaintiff can enforce his lien, notwithstanding a summons has not been served; and has sufficient control over the action to substitute the personal representative of the deceased, as a party defendant, in order that the summons may be duly served. More v. Thayer, 10 Barb. Sup. Ct. 258. Where an action, brought in New York since the revised statutes, is instituted by capias, the suit is not considered as commenced until the issuing and serving of the capias; consequently, to charge a sheriff, in an action of debt for an escape, the writ must be actually served upon him while the debtor is off the limits. Carruth v. Church, Barb. Sup. Ct. R. 504. In Connecticut, however, the commencement of the action depends on the service of the writ. Clark v. Helm, 1 Root, 487; Jenks v. Phelps, 4 Conn. 149; Spalding v. Butts, 6 Id. 30; Gates v. Bushnell, 9 Id. 530. The return is evidence of the time. Perkins v. Perkins, Conn. 558. The law appears to be the same in Vermont; the writ must be served and returned. Day v. Lamb, 7 Verm. 426; Downes v. Garland, 21 Verm. 362. In Indiana, the delivery of the writ to the sheriff is the commencement of the suit. Underwood v. Tatham, 1 Smith, 152. In Arkansas, the filing of a declaration alone is not the commencement of an action. Bank v. Cason, 5 Eng. 479. In respect to the statute of limitations, an action is to be |