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Action.

50 Sect.

3.

Modern Actions.

of the action must be looked at, and the form of it, as stated in the and the rule appears to be that, if the pleadings, is immaterial {e) relationship between the parties is such that the plaintiff can maintain an action by showing the breach of a duty arising at common law out of that relationship, his action must be regarded On the other hand, if his cause of action is as founded on tort. that the defendant ought to have done something, or taken some precaution, not embraced by the common law Hability arising out of their relationship, then he is obliged to rely on contract, and his action is founded on contract (/). It must be noticed, however, that it is not every " action founded on tort" which falls within the above-mentioned provision as to costs. The provision does not apply to an action, e.g., for trespass to land, where pecuniary damages for the tort are indeed claimed, but where an injunction is the substantial relief asked for and granted (f/), nor to an action of detinue, where the plaintiff claims and recovers not only damages, but the actual goods in specie (li).

Sub-Sect. Transitory

and local actions.

3.

Actions Transitory or Local.

80. The old distinction between "local" and "transitory" actions, though of far less importance than it was before the passing of the Judicature Acts, must still be borne in mind in connection with actions relating to land situate outside the local "Transitory" actions were those in jurisdiction of our Courts. which the facts in issue between the parties had no necessary connection with a particular locality, e.g., actions in respect of " trespass to goods, assault, breach of contract etc. whilst "local actions were those in which there was such a connection, e.g., disputes as to the title to, or trespasses to, land (?'). One importance of this distinction lay in the fact that in the case of local actions the plaintiff was bound to lay the venue truly, i.e.,

Venue.

in the county (originally in the actual hundred) in which the land In the case, however, of a transitory action, he in question lay (j).

might lay Court

it

to alter

wherever he pleased, subject to the power of the it in a proper case ik). Local venues have now been

and, therefore, so far as actions relating to land in distinction may be disregarded. It is, however, important from another point of view, viz., In the case of real that of jurisdiction as distinct from procedure. abolished

(1),

England are concerned, the Foreign land.

(e) Bryant v. Herbert (1878), 3 C. P. D. 389, and per A. L. Smith, L.J., in Tur7ier v. StalUbrass, [1898] 1 Q. B. 56, at p. 58. See also (/) Per Collins, L.J., in Tamer v. Stallibrass, supra, at p. 59. Govett V. Radnidge (IHO'i), 3 East, 62. {g) Keates v. Woodward, [1902] 1 K. B. 532, approving Bradley v. Archibald, [1899] 2 1. E. 108, and overruling St. John's College, Cambridge v. Pierrepont (1891), 61 L. J. (q. b.) 19. [h) Dit Pasquier v. Cadbury, Jones & Co., Ltd., [1903] 1 K. B. 104. (?') See generally as to this subject ^r^^^s7^ S'ow^ A yi/r/c« Co. v. Companliia de Mofambicjue, [1893] A. C. 602, 618. See the notes to Mostyn v. Fabrigas (1775), 1 Smith, L. 0. (11th ed.) 618. (./ (k) The practice of altering the ve/ntr apparently originated about 1600 A.D. see Lvnight v. Farnaby (1706), 2 Salk. 670, per Holt, C.J., and 3 & 4 Will. 4,

c.

42

s.

22.

(?)'See E. S.

C, Ord.

36,

r. 1,

and Buckley

y.

Hull Bocks

Co., [1893] 2

Q. B. 93.